Part one, published in "Deccan Chronicle" June 15th 2005:

"OUR MEN IN BLACK" BY RAM JETHMALANI

Ram Jethmalani says it is time for a frank appraisal of the system. We publish this argument not out of disrespect for the judiciary but in a spirit of honest, democratic debate.

In whichever city I am, I do not miss the opportunity of dropping in at the biggest bookstore and browsing through its shelves. Both in New York and in London, a fair sized book kept glaring at me. Its title was catchy and of great interest to a lawyer with a keen interest in the working of the judicial system, particularly the composition of the country’s highest court and the quality of its judgments. The title was Men In Black followed by the sub-title How the Supreme Court is Destroying America.

Somehow I resisted the temptation to pick up the book and only recently I entered a well-known bookstore in Bangalore. Lo and behold, the book made its aggressive presence felt once again. This time I bought it and read it. It proved great reading. The author, Rush Limbaugh, is one of US’ pre-eminent commentators and constitutional lawyer and this book produced a flattering certificate from Edwin Meese, US attorney general under President Ronald Reagan: Men in Black is one of the finest books on the Constitution and the judiciary I’ve read in a very long time. It combines history, law, and current events in an extremely interesting, insightful and compelling examination of a dire problem – the intensifying assault on our constitutional process and governmental structure by a relentlessly power-hungry judiciary. There is no better source for understanding and grasping the seriousness of this issue the Men in Black.”

It is encouraging that Parliament, academicians and the bar are currently concerned about judicial reform. I write this with a sense of urgency and anguish. I cannot in this piece pretend to be exhaustive or even nearly so. I propose to write only about the Supreme Court and that too only about the manner in which criminal justice is being administrated by some of the judges of that court. I will completely avoid the power hungry aspect to which Edwin Meese refers. I only discuss the intellectual inadequacy of some judges who daily presume to deal with the live and liberty of unfortunate citizens. The power of the Supreme Court to punish for contempt of itself has deterred many from making a frank appraisal and evaluation of our judicial stock. I am aware that the Supreme Court has ruled that in exercising its contempt jurisdiction it is not fettered by the Contempt of Courts Act and also that the truth of a statement made about judges is no defence to a charge of contempt. Even so, it is time that somebody courageously spoke up. What follows is no means flattering to the Men in Black, I believe some of them have disgraced the criminal justice system of this country and exposed it to ridicule by all right thinking people the world over.

On April 5, the Lordships Mr. Justice B.N. Agarwal and Mr. Justice H.K. Sema dismissed the appeal of one swami Premananda against his conviction for raping between 1990 and 1994 some 13 girls and also the murder of one inmate of the ashram between April 10 and 17, 1991. He was sentenced to two life imprisonments and denied the benefit of any remissions, which are admissible to all prisoners. Contrary to the provision of the code, no separate charge of each act of rape was framed nor were the dates, particulars and mode of commission of the rapes indicated to the accused. It is conceded at every stage that the charges were hopelessly bad, the objections had been properly taken in the trial court itself and yet the defect was arrogantly left uncertified. The charge itself contains a prolific preamble reading: A-1 Premananda is the founder of Premananda Ashram in Melapachaikudi village in the year 1989 and the ashram is an institution for the reception and care of women and children within the meaning of explanation 2 of Sec. 376 Indian penal Code and A-1 by claiming himself possessing miraculous powers by performing lingothbhavam and taking out vibhoothi from out of empty hand mouth and A-1 misused the belief reposed in him by the disciples and the inmates of the ashram for cheating and for outraging the modesty of the women and also for committing rape on the inmates, who had taken shelter in the ashram.”

It is quite clear from the preamble that no forcible rape was at all alleged and nor indeed any statutory rape of a minor girl. On the charges as framed he should have been acquitted because the consent of a girl is vitiated and not held to be consent only if the girl was made to believe that the accused was her husband or had intoxicated her. This is not intended to be a restatement of the poor convict’s case strong though it is and I believe he should have been acquitted.

Swami Premananda, who was originally running an orphanage in Sri Lanka, migrated to South India after the ethnic riots in his native country. He founded a new ashram in Fathimanagar about 30 miles away from Trichy in Tamil Nadu. The ashram is situated on sprawling land. It had a school, a library, a prayer room and a larger kitchen. About 500 persons live in the ashram and 200 of them, 100 boys and 100 girls, receive free education, lodging and boarding. This is how the prosecution witness – not a defence witness – one Dinesh, described the work of the Ashram: “The girls and the boys were maintained separately in the ashram and the rules were strict. At the time of doing the work and the pujas, the girls and boys would be together. At other times the boys and girls would be in their respective places. The married couples who came to the ashram were allowed to be together. If unmarried men and women came to the ashram, they would stay separately. The girls who stayed in the girls’ section were allowed to speak to each other. The children who came with their parents were not restricted to speak with their parents and to be with their parents. Right from the day the ashram functioned in Matale and functioned in Fathimanagar, the principle of the ashram was to spread the religion and the religious feelings amongst the people. Three times puja sessions were being conducted at the ashram. There were severe regulations and restrictions. A-1 and Divya used to deliver religious discourses in the ashram. Outsiders never delivered any religious discourses in the ashram.”

The ashram was wholly functioning on donations from appreciative devotees. No grant was received from any government or instrumentality of the state. Girls from the ashram were even married out and sometimes to foreigners. Among the teachers in the ashram were selfless foreigners from England, Switzerland and other countries who did missionary work. Such full time workers were called Matajis. Many foreigners attended the discourses and other festivals which were regularly celebrated there. The story of rapes on minor girls even if partially true would have spread like wildfire, the devotees would have deserted, the flow of funds would have stopped and the institution would have decayed and died out. Instead it flourished.

One of the girls in the ashram was one Arul Jyothi. Her story illustrates the point this piece makes. On November 19, 1994 the police raided the ashram and in two batches, removed to the police station about 20 girls out of the many that lived in the ashram.

The background of the police visit was a conspiracy of three actors to expose that they called evil happenings in the Ashram. Among these three actors, the principal one was a young man called Anand Mohan, an unemployed lothario of Trichy who having once visited the ashram was impressed by the mass marriages that were performed of the inmates of the ashram to outsiders. This great social service and uplift of orphans arranged by the swami made him a regular visitor. But during these visits he got involved in torrid affairs with two female inmates. One was Suresh Kumari who approached him to help with securing a false school certificate. She complained that Swamiji was the obstacle in securing it. Anand Mohan agreed to oblige. The second woman on his agenda was a German teacher by the name of Ella. He planned to marry her and make himself a lucrative career somewhere in Europe. Ella however disappointed him. In the eyes of Anand Mohan, the swami was the villain who frustrated his ambitions. The swami told Ella that Anand Mohan is an immoral drunkard and the marriage would surely end in divorce. Anand Mohan had thus a score to settle with the swami and his institution.

The second character was one Mark Denis, an American devotee, who ended in claiming money from the swami. Though a charge was framed that the swami cheated him of money, he did not turn up to give evidence. He had questioned Suresh Kumari but she had not spoken of any sex with the swami, much less rape by him. The three decided in October 1994 to finish the swami and destroy his institution. Suresh Kumari and two others left the ashram and were lodged for a time in Anand Mohan’s house.

In fact, the eventual story of Suresh Kumari was that she had had sex with the swami prior to the year 1991 as a result of which she left the ashram and managed to reach Chennai. There she met some policemen: they brought her back to the ashram and put her in charge of her mother. Neither the policemen nor the mother supported the story of rape.

Anand Mohan, Suresh Kumari and the rest of them went to the Hindu and related whatever they had to say. The Hindu did not find anything worth publishing. Then they went to the Indian Express which published two articles on November 14 and 15. A first information report was lodged by Suresh Kumari, by no means a free and voluntary act of hers but made in consultation with some lawyers belonging to a women’s organisation. Whatever Suresh Kumari had to say had been taped by Anand Mohan and Suresh Kumari had herself taped what other girls had said to her. Both these tapes disappeared at the trial. But these tapes and even the oral evidence of Suresh Kumari and her companions did not produce anything which the Hindu felt inclined to publish in public interest. In the case the first information report was in fact and in substance lodged with the Hindu. Surprisingly, no one from the Hindu was either interrogated or examined at the trial.

The story of Arul Jyothi in this background is easy to understand. (please see note in red) From the age of two, she was brought up in the swami’s ashram in Sri Lanka. When the swami migrated to India, she followed him along with some other children of the ashram. She first lived in Trichy and after three years shifted to its present site in Fathimanagar. In July 1996 when she evidence she was 21 years old. Eight years earlier she was raped in her own room where she was sleeping alongside another girl. She complained to none.

(Here Mr. Jethmalani refers to the story of Aruljothi as it was laid down in the legal documents. It should be clear that this is not Aruljothi’s true story; in reality she never had any sexual activity (with or without her consent) with Swami Premananda. )

After three years the swami has a second act of sex with her. Still after another year the swami called her to his room but she did not go. Thereupon in the presence of more than 200 persons in the dharmasala, the swami pulled her hair, knocked her against the wall and pricked her eyes with a stick. She alleged still a fourth act of rape five days before the arrest of the swami on November 19, 1994. She admitted that she had never told anybody about these forcible rapes. One hour before his arrest the swami told her that he will soon return and asked her to keep her mouth shut. While in police custody she discovered that she was pregnant. On February 21 1995 she was aborted. In cross-examination the steps, stages and installments in which Arul Jyothi’s story was fabricated from time to time was brought out with great clarity. On November 19, 1994 when the police visited the ashram in large numbers, the police enquired as to who the girls were, who had been victimized by the swami. None of the girls including Arul Jyothi implicated the swami. After two days, Arul Jyothi was removed from the ashram and taken to the police station in Pudukkottai. At the police station when the police asked her whether he had sexual intercourse with them, she answered no. “never I nor other girls told the police anything. We did not tell the police anything about Accused A-1 having sexual intercourse with us: she told even the court. During three days of interrogation the swami had thus not been implicated.

The girls were then sent for a medical examination. She was found on medical examination to be used to sexual intercourse. She told the doctor and it was so recorded in the hospital paper that her condition was due to contact with a known person for five years. When asked whom she had described by these words, she said that she has lied to the doctor. The doctor who had asked her urine sample instead was given tap water. She did not remember what other lies she spoke to the doctor. She had known the swami 15 years and the description in the hospital records did not fit the swami. The prosecution admits that the hospital record is correct. The police then got another statement from her after the medical examination. In her statement as recorded by the police she mentioned none of the acts of rape as deposed to in courts but alleged a totally different one and only one and not four. She declared that one day at 3 p.m. in the puja room she had intercourse with the swami, but this was with her consent. She gave neither the date, nor the month, nor the year of this single act of sexual intercourse.

But she admitted that at that time she was 19 years old. This act even if admitted to be true, did not make out any offence of rape. But it is obvious that police pressure was building up and they had managed at least to secure this not very helpful admission from her. It certainly damaged the image of the swami as a spiritual man but no charge of rape could be sustained on this story.

Part two, published in "Deccan Chronicle" June 16th 2005:

"WHEN EVIDENCE IS TAINTED"

After nearly two months, in the third week of January, 1995, the police got another statement from Arul Jyothi in which she added one more act of sex by Swami Premananda, but again she admitted that it was a consensual act. So after two months of further police pressure, the police managed to get from her something which was morally damaging, but legally useless.

The shocking truth of how the police secured these falsehoods came to be exposed when they committed the mistake of sending her to a magistrate to record her statement under Section 164 of the Criminal Procedure Code. Obviously, the police assumed that she would repeat the same falsehoods to the magistrate. She, however, let the cat out of the bag. She confessed to the magistrate that the police had beaten the girls before they implicated the swami.

The defence further established that throughout this period she had been telling the people in charge of Udavum Karangal, where the girls were perennially under police guard and which was virtually a police station, that she had been impregnated not by the swami but by somebody else.

When after being beaten by the police she agreed to implicate the swami, she had to write a letter of apology to Vidyasagar of Udavum Karangal, that she regretted that she had consistently lied to him and attributed her pregnancy to some other person. (Please see note in red below.)

Aruljothi was in police custody for three years. During that time she was beaten and forced by the police to say that Swami had raped her and made her pregnant and that she requested an abortion. Only after her release and return to the Ashram, could Aruljothi explain what really happened to her and that she had never been pregnant. Therefore, only then the true story came out. However, these facts have never been accepted by the Courts as legal or official statements. Mr. Ram Jethmalani based his arguments on the statements recorded earlier in the Courts in which she had stated that she had been pregnant and therefore he argues accordingly.

At the trial, the police got DNA evidence from the Hyderabad Forensic Laboratory to prove that the swami had fathered the foetus aborted from Arul Jyothi. Never had an expert been so demolished by cross-examination. His record was shown to be that of a miserable fake. When it was shown to him that the alleged examination of the foetus was not even done by using recognised enzymes which would identify the polymorphic sites, he threw up his hands and said that the whole experiment was done by his associate who alone can explain. The foetus was also examined by Dr Wilson Wall, an expert attached to the Home Office in London. He reported that the foetus was certainly not fathered by the swami. But a respectable scientist of international repute, who came to give evidence when no other experts were available in India, was brushed aside as being interested evidence.

It is not the object of this article to show how unfairly the case of the swami has been dealt with by the courts. The purpose is to show how three courts have sanctioned the beating of the girls to obtain an implicating statement from a witness.

A clinching episode may now be adverted to. A blood sample of Arul Jyothi was needed to be sent to England for some tests about the parentage of the foetus. The trial court peremptorily refused this request. But the high court reversed and ordered that Arul Jyothi should be called and the blood sample be taken from her. On March 24, 1997 the police brought her to the court. When asked whether she would be willing to give blood, she refused. When asked why, she said, “I have had no relation with the swami. I had intercourse only with Satish.” Reluctantly, the trial court recorded this statement on oath. The prosecution declined cross-examination. The latest disclosure of truth went unchallenged by the prosecution.

This truth was consistent with her earlier assertions including her statement to the doctor and her assertions to her guardians at Udavum Karangal. Moreover, it was fully corroborated by the Home Office expert.

The conviction of rape of Arul Jyothi has been maintained by the trial court, by the two judges of the high court and the two judges of the Supreme Court. Instead of sending the policemen to jail they earned commendations and promotions and the face of Indian criminal justice has been blackened for all times.

It was argued before the two judges that beating a witness and making him implicate someone is not only a grave offence under the penal code, but renders the evidence inadmissible by reason of the breach of the procedural safeguard contained in Section 163 of the Code of Criminal Procedure. All the three judgments concede that the girls were beaten before they implicated the swami. But so what, they say.

Curiously, the judgment of the apex court does not even mention this serious argument, and today my students in the law college and the devotees of the swami the world over are asking: “Does Indian law allow police officers to beat witnesses and does it allow the court to act on such tainted evidence?” My only answer is that our law and legal system are civilised but some Gentlemen in Black who have no experience or understanding of the system, who in all honesty and in conscience should refuse themselves from hearing complex matters of criminal law, are giving it a bad name.

This incident calls for introspection on the method of the selection of our judges of the superior court.

Concluded.

© 2005 The Asian Age 

– Ram Jethmalani