In conversation with Rebecca Mammen John on the journey of criminal jurisprudence in the country with respect to the contemporary era

Rebecca Mammen John is a name that does not require an introduction, her feats in legal profession are enough to light up the sky. She is the first woman to be designated as a Senior Counsel by the High Court of Delhi on the criminal side. A graduate of Delhi University’s prestigious faculty of law, John has been practising law since 1988. Her decades-long practice has played an important role in moulding the criminal jurisprudence in India and her portfolio includes representation of the Talwar parents in the Aarushi Talwar murder case, stockbroker Harshad Mehta, cricketer S. Sreesanth, victims of the anti-Sikh riots in 1984, victims of Hashimpura massacre and more recently the Priya Ramami defamation case. EBC/SCC Online Student Ambassador Syed Haroon is in conversation with Senior Advocate Rebecca John on the journey of criminal jurisprudence in India with respect to contemporary era.

Watch the Podcast of the interview HERE

  1.  Throughout your glorious career spanning decades, have you seen a paradigm shift in how offences related to women and children have been treated by courts, and whether this change (the Priya Ramani judgment) is sufficient or is it still far from enough?

It has been a mixed bag! The Mathura judgment (Tukaram v. State of Maharashtra, (1979) 2 SCC 143), was in fact a regressive judgment and the societal outrage that followed, in particular, when four law professors (Upendra Baxi, Raghunath Kelkar and Lotika Sarkar of Delhi University and Vasudha Dhagamwar of Pune) wrote an open letter to the Supreme Court, resulted in  amendments to the Code of Criminal Procedure. Later, Bhanwari Devi was disbelieved and all the accused men were acquitted on the ground that upper caste men could never sexually assault a lower caste woman.

On the other side, the Supreme Court delivered the famous Vishaka judgment((1997) 6 SCC 241), the judgment in Mary Roy case, where the Court recognised and upheld constitutional rights and freedoms guaranteed to women.

So, there have been victories and defeats. Generally, our courts have been progressive about the rights of women, but there have also been judgments that have not been progressive.

2. Frankly, it was a pleasant surprise to hear ACMM Ravindra Kumar Pandey’s progressive views in the Priya Ramani judgment, wherein he specifically stated, and I quote, “Sexual abuse takes away dignity and self-confidence. Right of reputation cannot be protected at the cost of the right to dignity.” How do you see the country’s legal system adapting to the said judgment, and will it pave a positive way forward?

We must celebrate the judgment; it is a right step forward. However, it is a judgment by a Judge of the lower judiciary, not from a constitutional court or a court of record so, it cannot act as a precedent. But it can be of persuasive importance, in the way Judges of other courts look at offences of this nature.

I would, however, like to add that the judgment of the ACMM was passed in the context of Priya Ramani case, where she was accused of defamation, and where she had taken a specific statutory defence available to her under Section  499 IPC,  that is, the defence of truth made in public interest and for the public good.

3. The #MeToo movement has ushered in significant changes in society for quite some time now and has had a remarkable influence on feminist jurisprudence, and its interpretation thereof, in India. Yet, why is it that we see several defamation cases against various victims of sexual harassment, who summon up the courage to finally speak out?

The #MeToo movement began in America in 2017, then moved to other countries, and then came to India in 2018. Women used the platform to talk about incidents of sexual harassment and sexual assault faced by them at the workplace. I think most of the women who had made those disclosures were not interested in commencing criminal prosecutions. The criminal justice system in India is slow and harsh. Women accessing the justice system have often felt let down by the system. Perhaps that is why they found the #MeToo platform safe and cathartic. Criminal defamation cases were filed against women to silence them and create a chilling atmosphere so that other women would stop speaking up.

4. Despite several judgments such as Lalita Kumari, it is observed that police in rural areas usually refuse to register FIRs in rape and sexual offences, especially if the accused is well connected or if the victim does not have adequate legal representation, despite the fact that these offences are cognizable. What can be done to correct this system?

Systemic problems exist and a judgment here or a judgment there is not going to change the realities on the ground. There is a problem with language — the language used against women is violent, full of abuses, and misogynistic. It is the same language that percolates down to different branches of the law enforcement apparatus including the police and even perhaps the judiciary. This needs to change and we can do that only if we ourselves use language that is respectful, within our homes, on the streets, in the workplace, where women have expectations of being treated fairly and equally.

Yes, the police do not register complaints, although they are duty bound to do so but unless the ecosystem changes and there is accountability, we cannot expect any miraculous change in the way the police conducts itself.

5. We saw a lot of hue and cry about Justice Pushpa Ganediwala’s interpretation of sexual assault under Protection of Children from Sexual Offences Act, 2012 (POCSO), to the extent that even Justice Madan Lokur (Retd) of the Supreme Court and former Chief Justice Pradeep Nandrajog of the Hon’ble Bombay High Court criticised it openly. Do you think that such a literal and strict interpretation is justified, or the courts must interpret such provisions liberally to assist the victim who has suffered unbearable trauma?

I think that interpretation was perverse and therefore it was rightly stayed by the Supreme Court, on the case being mentioned by the Attorney General for India. It is not a question of literal or non-literal interpretation, it was a perverse interpretation.

6. We have seen an exponential rise in cases relating to caste and religious violence on minorities in India, which is treated in an abhorrent manner by the authorities as well as the State. What in your opinion, has led to this and why?

It is largely to do with the political ecosystem that we are living in, that permits this kind of violence to take place with impunity. When you give impunity to people to act in a particular way, and not hold them to account, you will see an exponential rise in crimes against minorities and marginalised sections of society. If there is political will to control these crimes, the situation will change dramatically. If courts act firmly and consistently, law enforcement agencies will not be able to act in a partisan manner. Recently, the Delhi High Court asked the Delhi police why information relating to a person’s charge-sheet was circulated to the media even before the trial court had taken cognizance of the offence. Earlier too, the Court came down heavily on media houses and the police for leaking inadmissible confessional statements of the accused and sensationalising them, thereby causing prejudice to persons who were yet to face trial.  The judiciary needs to intervene consistently and proactively, to protect and uphold the rule of law.

7. The Delhi High Court recently relied on a news report by journalist Mr Ravish Kumar to grant bail to three accused in a Delhi riots case. In the case, HMJ Suresh Kumar Kait pointed out that, “17. … the investigating agency seems to have concentrated only on one side of the building….” In your decades-long practice, have you seen it as a trend from the investigating authorities or, it is a recent find?

We have, in the past witnessed cases where the investigating agency went after a person for no apparent reason; today we see it happening all the time. One narrative is projected as the truth and investigating agencies are blind or consciously ignore obvious counter-narratives. Often they partner with the media to spread falsehood. It is no doubt the role of the media is to unearth the truth and question investigative findings — a role it is sadly not playing today.

8. It is common knowledge that “bail is a rule and jail is an exception”. However, we have seen a recent trend that bail has been denied to many students, activists, and protestors on whom FIRs have been filed on very vague and inexplicable grounds. What are your views on this matter?

The jurisprudence that “bail is a rule and jail is an exception” that Justice Krishna Iyer and Judges before him laid down, is the jurisprudence on which India’s constitutional values have been founded. One cannot pronounce someone guilty till she/he is actually found guilty of the said offence. It is the prosecution that must prove its case and not the defence; and the presumption of innocence is paramount. Today these foundational values are being ignored and people are held in custody for long periods of time, based on little or no evidence. I find arrests without any material and purely on vague accusations, very disturbing. I find the increasing trend of arresting young people, even more disturbing. The power of arrest must be used with due circumspection and care.

Secondly, if arrested, the power of bail must be exercised liberally by courts. If someone is accused of committing a heinous crime and there is sufficient evidence to show that he or she has committed that crime, that person may be denied bail in the facts and circumstances of the case but a lot of the offences for which people are being arrested today, are not offences where any physical overt act has been committed, these people are being arrested for something they spoke about or wrote and neither the thought, nor the speech, nor the written script actually instigated any violence or caused any public disorder. Bail must not be denied in these cases.

9. Furthermore, where a person is sent to judicial or police custody, she/he is not provided, in most instances, the basic necessities, and is moreover subjected to violence. Do you see these actions are meant to break the spine of the person in custody and how legal is this?

Human dignity must never be compromised at any cost and every individual is entitled to all the protections available under Articles 21 and 22 of the Constitution. Lawyers must ensure that custodial crimes are brought to the notice of the court and pursue remedies effectively. Courts must always be mindful of constitutional guarantees and must apply their minds to the facts of each case before remanding accused persons to custody. Police custody is not the norm and courts must be satisfied that there exist circumstances justifying police custody remand.

10. We saw that even though the Bombay High Court dismissed Arnab Goswami’s writ petition and granted liberty to approach the court via regular bail under Section 439 CrPC. However, the Supreme Court with alarming alacrity allowed Arnab’s bail under Article 32, even though regular bail proceedings were pending in the Sessions Court, as directed by the Bombay High Court with a special direction for swift disposal of the same. How procedurally consistent or legal was such an order, and what impact on similar future litigation would it entail? Also, what are your views on the Supreme Court judgments wherein the judgment is such that it works to limit the scope of Article 32 of the Constitution of India?

Arnab Goswami judgment, (2021) 2 SCC 427, as laid down by the Supreme Court is a good judgment. The problem, however, is not with the judgment but the manner in which courts respond to different cases. A charge can be laid that the law is being selectively used to protect some individuals and target others. That should never happen.

Coming to the question of judgments seeking to limit the scope of Article 32 of the Constitution of India, Arnab Goswami judgment itself invoked Article 32 to grant protection to the accused. The Supreme Court  reminded the High Court that its power under Article 226 is wide and that it should exercise those powers liberally. A citizen should be able to access constitutional courts for redressal and the doors of the courts must always remain open. Of course propriety demands that the High Courts be approached first as the High Court’s power under Article 226 is wide and extensive.

11. Kindly shed some light on the meaning and legality of a transit remand/transit remand bail? Additionally, what are your views on Disha Ravi’s arrest and the authority’s sheer lack of non-compliance to the ratio of Arnesh Kumar judgment?

Disha Ravi has been granted bail, while rejecting most of the claims of the investigating agency. Simply because there is a power to arrest, it does not mean that the same should be exercised recklessly. The evidence against Ravi was very sketchy, it is unclear how any offence is made out and yet the police chose to exercise its power to arrest.

As far as transit remand is concerned, there is a 2019 judgment of the Delhi High Court which states that if the arrestee is from outside the jurisdiction of the arresting police, then the arrestee ought to be produced before the nearest Magistrate for purposes of obtaining transit remand. The court must apply its mind to the facts and circumstances of the case, before deciding whether transit remand should be granted. Section 57 of the Code of Criminal Procedure mandates  that the police must produce the arrestee before a court, within 24 hours of arrest; so, while the Delhi police may not have committed any illegality in not obtaining transit remand, propriety demanded that they should have sought transit remand at Bangalore, before she was brought to Delhi.

12. The statement that ultimately the law won, gives rise to another question, that when the law is such which is made to curtail the freedoms of citizens in the country Justice Gupta (Retd) of the Supreme Court said that laws such as UAPA [Unlawful Activities (Prevention) Act, 1967] should be repealed as it is used to restrain the people who are speaking up. How do you think the Government should deal with the laws which are used in a regressive manner while maintaining the balance with national security and national interest?

I believe that the Penal Code is equipped to deal with most situations and we must not multiply legislations except where it is required to deal with special crimes, especially financial crimes. Why was UAPA reintroduced in 2008 along with National Investigation Agency Act, after the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and Prevention of Terrorism Act, 2002 (POTA) were repealed? Did we not learn  any lessons from their  misuse and the  recognition of such misuse, by the Indian Parliament.

Statutes like the UAPA, I believe, are draconian; and it is time that we re-examine them. An individual committing specific acts of violence that affect public order, may be prosecuted but speech, dissent and debates that do not affect public order are not prosecutable offences. The provisions of the UAPA that extend the period of investigation from 90 to 180 days, the stringent provisions against grant of bail, have led to the near permanent incarceration of so many activists, students and public intellectuals.

13. I would end my question series by asking you about your experience as a successful advocate in this abysmally high male-dominated profession i.e. criminal litigation, and what would be your advice to young and upcoming women/female/transgender lawyers?

Recognise your privilege! Although I am a woman practising criminal law, which is essentially a male-dominated sphere, I am still privileged, I come from an urban, English speaking background and unless I recognise that I am privileged, any advice given to anyone else would be meaningless. Yes, I survived as a criminal lawyer in a male-dominated profession but that survival was nowhere near the daily acts of struggle and survival that so many of my fellow countrymen and women go through.

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