Bhim Army chief Chandrasekhar Azad, who was arrested 25 days ago for participating in protests against the Citizenship Amendment Bill and the National Register of Citizens at Delhi’s Jama Masjid on December 20, got bail today.
But he must live in exile for a month.
Additional District Judge Kamini Lau orally imposed several conditions while granting Azad bail. Azad cannot visit Shaheen Bagh, another place in the national capital where the people have been protesting for over a month now; he cannot hold dharnas or agitate against the citizenship law and the NRC; every Saturday, he must appear before the local Station House Officer in Saharanpur, Uttar Pradesh, where he is from.
These conditions, the judge reasoned, are necessary owing to the upcoming Delhi Assembly election. The conditions are also temporary, she stressed. He must live outside Delhi only till February 16, she assured Azad’s lawyers.
Azad may, however, visit the Jama Masjid, a shrine in Jor Bagh and the Guru Ravidas temple to offer prayers within 24 hours of his release, Lau said. Thereafter, he will be escorted to his doorstep in Saharanpur, she told the Bhim Army chief’s advocate, Mehmood Pracha.
The written order does not reflect some of these observations. According to the conditions listed in the bail order, Azad must mark his presence before the SHO every Saturday for a month after his release. Thereafter, he must mark his presence on the last Saturday of every month until further orders.
The applicant “shall not misuse the benefit of bail by indulging in commission of a similar offence in future and keeping in view the pending Assembly election in Delhi, the applicant who is neither a permanent resident nor an elector in Delhi shall not visit Delhi for the next four weeks and whenever the applicant is required to come to Delhi for his medical treatment, he shall inform his schedule to DCP Crime. During the period of his visit the applicant shall be under escort”, the order said, adding that this condition has been imposed till February 16.
Had Azad submitted a Delhi address, the conditions would have been different, Lau said.
She delivered the order after hearing arguments over two days. At the hearing yesterday, Lau had pulled up the public prosecutor for defending the state’s reasons for arresting Azad. “Where is the violence? What is wrong with any of these posts? Who says you cannot protest? Have you read the Constitution?” the judge had asked him. In contrast, Lau’s oral observations today were more tempered, perhaps aware of how her observations the previous day had gone viral.
Lau chastised Azad for a tweets referencing Modi. “Haan, yeh galat hai,” she said. This is wrong. “You must respect the PM and the office. It’s our country and our people. We elected them.”
Condemning the violence that has marked protests against the citizenship law in Delhi, Lau argued that fundamental duties were as important as fundamental rights. “One’s right ends if it stops the rights of the others,” she said. “One cannot block roads, inconvenience people and destroy public property. After all, it’s our country and the taxpayers’ money. I am happy that you are reading the preamble time and again, we must keep reminding ourselves. When it comes to rights, we must perform our duties as well. We may differ in our outlooks.”
The order exiling Azad drew mixed reactions. Kavita Krishnan, Secretary of the All India Progressive Women’s Association and a member of the politburo of the Communist Party of India (Marxist-Leninist), took to Twitter to express her outrage.
I held my tongue while Judge Kamini Lau was being lauded by all. We are desperate to grab at crumbs, I know, but we shd not. Today, she has imposed an outrageous 'tadipar' condition on @BhimArmyChief till Delhi polls. Not surprised. Why? Read on.— Kavita Krishnan (@kavita_krishnan) January 15, 2020
Krishnan’s observation on limited points may not be out of order. Over the years, Lau has given orders that have been welcomed for their reasoning, while some have raised eyebrows.
In a verdict delivered on April 30, 2011, Lau, then additional sessions judge, opined that “an alternative punishment castration of rapists is the crying need of the hour” and sought a public debate on the issue.
Lau awarded Dinesh Yadav, the convict who had repeatedly raped his 15-year-old stepdaughter over four years, a 10-year prison term but lamented that there was no law that allowed chemical castration for rapists and molesters.
In her verdict, Lau buttressed her argument citing examples of countries where chemical castration was used as a punishment.
“My hands are tied since I am bound by the law of the land,” Lau said in her judgment which was marked to the Union ministry of law and justice, and chairpersons of the National Commission for Women and the Delhi Commission for Women. “My conscience, however, tells me this is a crime which is required to be addressed differently and a full public debate with regard to the imposition of castration (both surgical and chemical) as an alternative punishment for the offence of rape and molestation is the crying need of the hour,” she had said.
In a justice delivery system often criticised for long delays, Lau’s handling of the Mirchpur lynching case is an example of how fast court’s can work in sensitive matters.
The 2010 Mirchpur lynching case was adjudicated in a record nine months. The matter was transferred to Lau’s court in December 2011. In September 2012, she delivered her verdict convicting 15 of the 97 accused.
“A large section of Indian society still regard a section of their own countrymen as inferior and in the words of Justice Markandey Katju this mental attitude is simply unacceptable in the modern age, and it is one of the main causes holding up the country’s progress,” she observed in her verdict. “It is unfortunate that the centuries-old Indian caste system still takes its toll from time to time. This case unfolds the worst kind of atrocities committed by the so-called upper caste against the so-called lower caste in a civilized country. It is absolutely imperative to abolish the caste system as expeditiously as possible for the smooth functioning of Rule of Law and Democracy in our country,” she wrote in her judgement.
From suggesting open jails as a means of reform to being one of the first judges to declare triple talaq as an invalid means of divorce, Lau’s observations are vast in the range of topics. According to a 2011 profile of her, Lau grew up around lawyers. Her father was the state’s standing counsel and three siblings are practising advocates. Lau, who joined the judicial services in 1992, has done a doctorate in criminology and is known to interpret the law both in its letter and its spirit.
Of late, however, she has come to be associated with being slapped with contempt charges for questioning the verdicts of two Delhi High Court judges. The contempt charges were dropped by the Supreme Court, after she tendered an apology.
Finding balance on women’s issues
Lau has appeared fairly balanced on the issue of women’s rights. Even as she sought chemical castration for rapists and molesters, she has not failed to pull up women where they have misused the law.
In 2011, Lau described the misuse of provisions of dowry laws as “legal terrorism” while acquitting a woman’s husband, his father, brother and mother. She observed,“Section 498A in recent years has become the consummate embodiment of gross human rights violation, extortion and corruption, and even the Supreme Court of our country has acknowledged this abuse and termed it as ‘legal terrorism’. The provisions of Section 498A IPC are not a law to take revenge, seek recovery of dowry or to force a divorce but a penal provision to punish the wrongdoers.”
She added, “The victims are often misguided into exaggerating the facts by adding those persons as accused who are not connected with the harassment under a mistaken belief that by doing so they are making a strong case as has happened in the present case where the complainant has involved the entire family of the husband.”
Lau, who is fond of quoting poetry in her verdicts, reproduced a verse from lyricist Sahir Ludhianvi: “Taaruf rog ho jaaye to usko bhoolna behtar; Taalluk bojh ban jaaye to usko todna achcha. Vho afsaana jise anjaam tak laana na ho mumkin; Use ek khoobsoorat mod dekar chhodna achcha.”
“Now is the time for the complainant to move forward,” she said, referring to the woman while dismissing her appeal.
A few years ago, lawyer Karuna Nundy relied on Lau’s observation in her written submissions on seeking the removal of immunity granted to husbands from rape charges. “Though our Legislatures are yet to take a serious note of the rampant marital sexual abuse which the women in our country suffer silently as has happened in the present case but that does not mean that a battered wife who has been sexually abused and has invoked the Legal System of our Country is not entitled to any State assistance which help is already available to other victims of sexual abuse? She is the responsibility of the State and s required to be taken care of just as any other victim of aggravated sexual assault and abuse and the State cannot abdicate its responsibility and she cannot be discriminated only because she happens to be the wife of the sexual aggressor,” Lau had observed in State vs Vinod Saini.
Allowing marriages within same gotra
In 2008, coming to the defence of two lovers belonging to the same gotra , or ancestral lineage, Lau observed that the Hindu custom prohibiting such unions had no place in the modern age. Suggesting that the Hindu Marriage Act did not bar such marriages, she had observed, “It is evident that the law does not prohibit a swagotra marriage and hence there is no reason why two individuals who are in love and are not within the prohibited degree of relationship cannot be allowed to marry and live happily as man and wife.”
“The Hindu Marriage Act, which abrogates and modifies all the past laws and has made marriage now strictly adult and monogamous; has done away with the caste and gotra restriction,” Lau had added. “It is time that certain misconceptions about swagotra marriage are cleared and there is need to educate people in view of thoughtless opposition to such marriages and ruthless aftermath which follows in the form of honour killing or social ostracisation.”
On suicide and mental illness
In another verdict, Lau penned her concerns about provisions of a proposed mental health bill that assumed a person who committed suicide to be mentally ill. She said this provision could be misused. Her concerns were recorded in a 2013 judgement relating to a 72-year-old who was accused of killing his wife in cold blood without any apparent motive and then attempting to end his own life by consuming a corrosive substance.
“I am sure this proposed amendment is not intended to be an instrument to silence nonviolent protests, political opponents or to quell a political upsurge,” she had opined. “I am of a firm view that it is grossly criminal to criminalize attempt to suicide and stigmatize the victim. Such criminalization only pushes people to the limit since they know that they could be jailed in failed suicide attempts and penalizing a person attempting to commit suicide and ending their own lives does not create hope for the future. By Criminalization suicide the law, says in effect, that one should just resign one self to despair. What we need to do is to change the conditions that give rise to despair…Criminalization may motivate those attempting suicide to ensure that they die, rather than survive and face punishment.”
Referring to the 210th Report of the Law Commission on Humanization and Decriminalization of Attempt to Commit Suicide, 2008, Lau had said, “When a troubled individual tries to end his life, it would be cruel and irrational to visit him with punishment on his failure to die. While on the one hand the proposed amendment seeks to create a presumption of mental illness in an attempt to decriminalise attempt to commit suicide whereas on the other hand it does not take care of the mischief it seeks to cause since a person presumed to be suffering from mental illness is deemed under law to be incapable of giving consent, entering into a contract, execute documents including Wills or dealing with the property etc.”
If the amendment was passed by the parliament, she had argued, “it will take into its fold activists political, social, environmental etc, who like Mahatma Gandhi, Vinoba Bhave, Irom Sharmila, Swami Nigamananda, Anna Hazare and others undertake non-violent means of protest by sitting on fast unto death for causes which may be termed as noble, unfortunately making them liable to be branded as those suffering from mental illness, unless contrary is proved.”
She had further pointed out that “so many women in our country who attempt to take this extreme path of self-destruction as a last resort since we have failed to provide them a safe and secure environment, dignity, respect and freedom from exploitation and violence, would then stand the risk of being branded as suffering from mental illness with adverse legal consequences following such a presumption.”
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