[Reader-list] A must read ( part1)

[Mitra Waghmare]

Hi all,
          Here is a text from a friend author of mine--a text  you must know
all and even if you can't refute, you must read it.( here is the first
part.)
Mitra



Dear Everybody,
              With Arushi Talwar and her
mate--servant's murder ( her illicit affair expert
father being the alleged culprit) as well as one
Grover's bloodied corpse in Mumbai besides which Maria
and her keen killer boyfriend ( Mathew) are reported
to have copulated twice, the question of sexual
morality and death thinking  has again sprung up. And
I think this is the time again to visit and pull in
the uncomfortable question of morality vis a vis
legality. I had sent this question and a bit unedited
draft of the paper below to some  in the wake of  the
event of the sad  rape and murder of Scarlet
Keeling,when the old debate about our moral character,
ambitious and risky life style had again cropped
up.I'm sending this now to all of you.

The majority view, as you know, argues that these
questions are irrelevant to the questions of
justice.And in 2002 an amendment reckoned with this
view.
   Long back in the year 2003 I had drafted a shorter
version of this article criticizing this amendment and
which was published in Bengali in 2003 and in English
in 2004.I'll never forget the nightmare I had had
while
publishing this argument. But again while this debate
reappears in 2008, I'm surprised to find many of my
friends,political parties ( a few representatives to
whom I've talked to), even some lawyers are willing to
buy this argument and a campaign for nullifying the
2002amendment which sought to exclude all inquiries
into the moral character of the persons involved, may
as well begin.But not before you document your
important views.
Friend,Please answer two questions, 1) Do you agree
with me( please go through the document below) that an
inquiry into moral questions, including the moral
character of the complainant and the defendant is
absolutely relevant in matters of (sexual) violence
including murder as a variation on the above theme?
2) If you do not, please tell me why not?



 'Law stands between politics and morality' – Jurgen

Habermas , Law and Morality, The Tanner Lectures on

Human values , Harvard university, Oct1,2, 1986





CHARACTER (ISING) RAPE, CONTEMPLATING AMENDMENT



What was noticeable in the  episode in which Anil

Biswas ( now deceased general secretary of the  CPI(M), West Bengal ) was
shouted at and condemned by nearly

everybody -  when he had reported ( in 2003) that there were

questions in the locality about the  'lifestyle' of an

alleged rape victim,  was the immense confidence with

which  the argument of  Biswas was put down. This

false  confidence derived from the Indian Evidence (

Amendment) Bill, 2002 becoming Indian Evidence

Amendment Act, 2003. The act  sought to amend the

Indian Evidence Act, 1872, and provided for deletion

of clause 4 of section 155 by specifically providing

in Section 146  that in a prosecution for rape or

attempt to commit rape, it will not be permissible to

'put questions in the cross examination of the

complainant as to her general immoral character'. In

Section 155(4) this could have been used  previously

to impeach the credit of  the complainant as a

witness. Before that there was the 177th report of the

Law Commission of India and the National Commission

for Women who had unanimously recommended the deletion

of Section 155(4) of the Indian Evidence Act. The

recommendations were pushed forward keeping in view

instances -  where people have been acquitted  because

of the immoral character of the complainant or the

latter were  harassed in cross examination.

              But this amendment was in a sense

redundant if we want to closely read   two other

Sections [151,152] of the  Indian Evidence Act (

I.E.A).  Section 151 states, 'The Court may forbid any

question or inquiries which it regards as indecent or

scandalous although such questions or inquiries may

have some bearing on the questions before the Court

unless they relate to fact in issue or to matters

necessary to be known in order to determine whether or

not the facts in issue …'; Section 152 states, ' The

Court shall forbid any question which appears to it to

be intended to insult or annoy, or which, though

proper in itself, appears to the Court needlessly

offensive in form'. The question is, despite this

immunity and the power of the trial judge to

intervene, the courts must have failed in their duties

to protect a rape complainant from being scandalized

while being questioned; through this amendment the

Indian legislature vis a- vis the Supreme Court

acknowledges this failure perhaps. No explanation has

been forwarded on this count from any quarters. In the

Rajya Sabha itself this question was raised by Shri S.

Shumugasundaram but he ended up having had to welcome

the Bill—such is the compulsion to be politically

correct.

This is a technical and nearly a fatal objection to

the amendment - from within the I.E.A. But the

amendment arguers and makers  have had

other serious sociological reasons too—which are

abundant in the media; abundant and cheap because any

critical argument against – is avoided or suppressed.

The reasons forwarded by  the protagonists are1) immoral

character has nothing to do with the fact that one is

violated or has perpetrated violence; 2) immorality

should be left alone so that we are able to respect a

persons' privacy; 3) morality of character is an

ethico-moral issue, not a legal one;

                      We shall address each of them.



1.READING CHARACTER IN THE I.E.A



We must first try to prove that the question of one's

character is vital for a case of rape or sexual

assault. Now-everybody knows  that a

poetess—Madhumita Shukla was murdered in U.P ( around 2002-03) and

a lot has been written on it, the minister had had to

resign and all that. But  her preeminently  dangerous lifestyle—a

disposition to sleep with the politicians and

criminals of Gorakhpur—does it have nothing to do with her own

death?  To hobnob with  Amarmani Tripathi—the infamous

minister who has had  nearly 38 cases against him for

murder, land grab  to rape—his moral character  has

nothing to do with Madhumita's death? It would be

scandalous to consider the  woman's death separate

from the kind of lifestyle she was used to; the kind

of action norms she had set for herself – the kind of

'character' that she was.  Would it have been

irrelevant if her or the ministers' character  had

featured in the trial considering she was raped- not

murdered? Not at all. And provided the woman had led a

sane life in accordance with acceptable moral

standards but still she was raped, then the character

of the alleged rapist would have featured in a vicious

way. This is missing in the I.E.A. Infact what was

actually wrong is the gender bias in the Section [

155(4) ] where the immoral character of the

complainant could be invoked by the defence lawyer to

impeach  only the complainants' witness; the witness

is understandably a woman here. The moment we make it

gender neutral we assume the bias is corrected. But

instead of giving it a corrective, the amendment

makers have done away with the whole thing. (Character

here   signify serial and  stable dispositions of an

individual over time, i.e our actions and behaviorial dispositions

by which we come to be known as reliable or a cheater,  romantic or

someone always with sexual intent etc.) And this

weighing of dispositions of individuals is what makes

everyday life going; you know  a guy to be 'good', you

decide to  go to a date and return being raped ( for

this read the ever growing literature on date rape);

you know somebody is of questionable 'morals'- so

decide not to go on a date or go at a time, at a place

where his morals will not get the go. Likewise, for

every person we just cannot afford to start from zero;

therefore when it is suggested that in a rape or in a

case of  sexual assault or simply violence which has sexual side brackets;

any question of character is uncalled for—the obvious thing that comes to
mind is,

are we products of our past actions? Do  our pasts

have a lot to do with our present or all  our actions

are  arbitrary and accidental and  there is no  logic

to be gained? The point is- claims on the past—even our

pasts -- can be contested but cannot be done without.

And that we everyday invoke and use these character

traits to guide us in our actions is absolutely

relevant. And because crime has this life as the

backdrop, 'situations' as well as 'characters',

'dispositions' as well as 'life style' have to be

taken into account ( and this briefly answers

the situational psychological objections

regarding behavioral inconsistency and the impossibility of character or
'character building' by teaching virtues: what I'm arguing for is coherence,
not consistency).

              What is actually wrong is the

gender bias in the Section where the immoral character

of the complainant could be invoked by the defence

lawyer to impeach her witness; the witness is

understandably a woman here. The moment we make it

gender neutral we assume the bias is corrected. The

immoral character clause should be applied on both the

complainant and the alleged perpetrator; for men --it

should be made more rigorously so—given the

patriarchial nature of our society and men like

Amarmani Tripathy.

The way it is happening now strategically-- is well

illustrated  by one www.onlinedetective.com which will

give you all information u regard necessary to date,

marry, have sex or start a business: here it is-

 "And how do you really know that the guy you've started

dating isn't actually a convicted wife-beater with

several restraining orders on him, or that the new

employee you're about to hire really has all the

qualifications she says that she does? What if your

new neighbor that's suddenly started playing with your

kids after school is actually a convicted child

molester? You need to know these things in order to

protect yourself, your family, and your business" ;

this is the 2003 version of their site.)

 If these are our inquiries in everyday life, it  is a

wonder that these are considered irrelevant in a

criminal case. The phrase 'protection' above  is signifying and deserves
close thinking.



 Here is an other  example with a legal niche:

 in  2003 again at West London an Indian businessman –

Amarjit Chouhan along with his family was murdered.

The UK  police  arrested two English men

– examining whose past records – the police had come

to the conclusion   that the two were ' violent' and

'dangerous'.  Now violent and dangerous  are apparently

morally negative characteriological  traits of a person, but in the eyes

of the Law -  they having surveyed the behavioral

history of the  individuals—are   historical decisions

with legal consequences  and not immediately  moral ones ( the use of
'history' in law is already a disputed territory). Here

character does not stand for popular evaluative common

sense conceptions of good-bad, right- wrong etc,

because no incentives are there for being a morally

better person ( his crimes will still be tried)

instead there is a sense that  immoral behaviour is

more a threat to society's security  than a moral one;

infact  there is a legal -blame worthiness in the

sense a repeated offence might ensure more stringent

punishment. If our recommendation to include the

character of the convict is accepted, in that case

reinvoking the case of Amarmani Tripathi, any past

conviction will also add a dimension  to this.  This is  clearly

explicated in I.E.A ( Section 54, Explanation 2) : 'A

previous conviction is relevant as evidence of bad

character'. This statement proves again that character

in the I.E.A does not derive from ordinary or mere moral  precepts as

the Law Commission et.al understand it but has special

techno-legal value.

Let us extend this  argument to the sphere of Indian politics :

wasn't this  the clause we are pressing through a bill

in a different form-for the knowledge of the pasts of

our political representatives to be delivered to the

people?—or else why are we concerned about their past

convictions?—even their moral history held in their

'clean' images—in short –their ' characters'? Because

we are invoking the moralization of politics ( that

politics should not violate  moral norms), - aren't

we? We are moved by the current  demoralization of

politics, but at the same time—it is peculiar  we are

about to argue in favour of the de-moralization of Law

 -that law and morality should be separate ( which is

in reality a rational illusion of modernity)—not

knowing that the demoralization of politics is only a

step further! To be more concrete—what has been

considered a relevant inquiry for a political

representative is irrelevant for an ordinary citizen?

This is awfully undemocratic and politically self

defeating.