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Legal fraternity indignant over Ansals escaping jail term

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By Parmod Kumar

New Delhi: The Supreme Court’s decision to waive off the rest of the jail term of the powerful Ansal brothers, convicted for causing death in the Uphaar cinema fire by their negligence, hasn’t gone down too well in the judicial corridors and also evoked much disquiet among the average litigant about the court’s lenient attitude towards the rich and the powerful.

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The apex court Wednesday said that Ansal brothers will not go back to Tihar Jail to serve their remaining jail terms as it imposed a fine of Rs. 30 crores each on them.

Describing it “unfortunate order”, where the victims have been completely given a good-bye, well-known lawyer Kamini Jaiswal told IANS: “Having waited for 19 years with full faith and confidence in judiciary this must be a traumatic experience” for them.

“This fortifies the impression carried by many that the (judicial) yard-stick varies for the rich and famous and the poor,” Jaiswal added.

“The judgment is not in accordance with the law of the land. Fifty-nine people have died. The case of gross negligence was clearly established. Therefore it was a fit case to award maximum sentence of two years (as provided) under the Section 304A of the Indian Penal Code”, senior counsel Shekhar Naphade told IANS.

However, holding that there was “nothing wrong in the order,” Rupinder Singh Sodhi: a former Delhi High Court judge and now a practicing senior counsel in the apex court, told IANS: “Ansals have already undergone a substantial part of the one year sentence awarded to them by the Delhi High Court. There is a provision for fine under Section 304A Fine is not a lesser sentence. Nor is it a compromise nor can you term it blood money as has been said.”

“Please understand, we don’t believe in an eye-for-an-eye or a tooth-for-a-tooth,” Justice Sodhi said, addding: “This is a sentence provided under Section 304A IPC and it is that sentence that has been awarded to Ansals. They have been given both.”

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Section 304A that provides for punishment for causing death by negligence says:”Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

Differing with Justice Sodhi, Jaiswal said: “If the application for enhancement of sentence (as was sought by the CBI) was to be rejected, the sentence given by the High Court should at least have been have been confirmed.”

Naphade had reservations over the way entire case was handled, saying: “Perhaps the case could have been brought under Section 304 part II but unfortunately that angle was not seriously pursued.”

There seems to be a disquiet amongst the lawyers over the manner in which the punishments under the penal provision gets invoked differently depending on the social milieu of the litigant and it is this that found expression when senior counsel Ravindra Srivastava told IANS: “The law regarding sentencing should be consistent and should be consistently applied.”

(IANS)

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India Gets A Win, Supreme Court Decriminalizes Homosexuality

In December 2013, a Supreme Court bench said that it was for the legislature to look into desirability of deleting section 377 of IPC.

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Homosexuality, India
SC decriminalises homosexuality, victory for gay rights. Pixabay

 In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.

Homosexuality, India
LGBTIQ people have a right to live unshackled from the shadow.
Pixabay

“It is the constitutional and not social morality which will prevail,” said the court.

The verdict sparked celebrations in the LGBTIQ community across India even as the judgment was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets.

Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.

Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.

“An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice,” said the Chief Justice.

“Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices,” he added.

Homosexuality, India
In separate but unanimous verdicts, a five-judge Constitution Bench struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional. Pixabay

 

In a concurring judgement, Justice Nariman said homosexuality is “not a mental disorder or disease”.

He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.

Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

“They cannot be pushed into obscurity by an oppressive colonial legislation… Sexual minorities in India have lived in fear, hiding as second class citizens,” said Justice Chandrachud, adding “the state has no business to intrude on such matters”.

Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality.

“LGBTIQ people have a right to live unshackled from the shadow,” she said.

Homosexuality, India
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The Supreme Court verdict, which overruled its own earlier judgment, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.

The Delhi High Court bench, headed by then Chief Justice A.P. Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law — finding it unconstitutional and a hurdle in the fight against HIV/AIDS.

In December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case, had set aside the high court’s judgment and said that it was for the legislature to look into desirability of deleting section 377 of IPC.

The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community — dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur — which was then marked to the Constitution Bench by a Division Bench.

Homosexuality, India
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The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court.

Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them “mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship”. (IANS)