Apar GuptaTime gifts us clarity though reflection. Half a century may seem sufficient to dull passions but even today public memory of the Nanavati case continues to tilt objectivity towards emotion. A part of this can be fastened onto movie depictions that bear little responsibility for factual accuracy. However, in public discussion, there is not much distinction between the Nanavati case and the Nanavati movie (Rustom). Such a merger is unfortunate given the legacy of the case and the focus it brings to deficiencies in the legal system.
Decades after the Supreme Court convicted Commander Kawas Manekshaw Nanavati for the murder of his wife’s paramour, Prem Ahuja, the case continues to raise questions on the proper role of media trials, and secondly the fairness of a justice system that fosters gender inequality within legal codes.
Continuing concerns on media trials
It is easy to hate a tabloid. Cheap, sensationalist, read in secret and with guilt. But the tabloid also speaks the popular voice and during the pendency of the Nanavati case it even helped define it. Through the pages of the Bombay-based weekly publication, Blitz, an entire campaign was carried out to secure Nanavati’s acquittal.
Such an acquittal came through a jury only to be reversed by the Bombay High Court and then confirmed by the Supreme Court.
Many commentators say the entire incident contributed to the abolition of jury trials in India. This presumes a systemic shift in adjudication premised on the ability of media to influence members of a jury more immediately than a judge trained in law to appreciate facts. It is, hence, natural to expect media trials to no longer influence court verdicts or do so only to a limited extent. This, for various reasons, remains an aspiration.
Providing recognition to an unfulfilled ideal, the 200th Report of the Law Commission of India suggests various amendments to the Contempt of Courts Act. Principally, by making a court’s power wider to prevent and punish publications.
One of its influential prescriptions was to make the power to prevent publication start from the point of arrest by the police rather than when the case subsequently enters court. The implication of this change would be that the court would be empowered to prevent media reports made immediately on arrest that may damage the defence of an accused.
At the same time, censorship of the press should be proportional and legitimate to securing the rights of the accused. Anuj Bhuwania, who has written on the nature and effect of media trials, argues that the intent of wishing away and censoring the media should not be applied in all circumstances.
On the contrary, according to Bhuwania, “The incarceration of the accused while the case is still being adjudicated leaves them with limited resources to fight such cases in the court of public opinion… Often, access to the media, even if limited, enables the accused to give their side of the story.”
Today, reasoned policy prescriptions that would balance the rights of the press and the accused exist on record, but not in law.
Patriarchy, thy name is law
While it is a legal cliché that procedure is the handmaiden of justice, without form there cannot be substance. A good example is the Limitation Act, 1963, that provides specific periods within which civil cases should be filed. The principle of law is that private rights if left unenforced are lost with time. This law provides a curious type of cases a period of limitation of a year. The category provided under Article 77 of the Limitation Act reads: “for compensation for loss of service occasioned by the seduction of the plaintiff’s servant or daughter”.
Hence, if a person’s daughter is seduced, the resulting financial loss should be claimed within a year. The same applies to servants, also going on to imply that a person’s daughter is the same as a servant. Also implying both are considered property and not human beings.
It must be mentioned that the law of limitation is not some obscure statute but is used every moment a civil case is filed in a court in India. Given its status as dominant civil statute one feels an acute loss of words.
The law of limitation does not stand in isolation. The Nanavati case, if reviewed dispassionately, can be characterised as an honour killing — enabled to an extent by law. Aarti Sethi draws this link by stating the case, “is a double-bind where the law and its opposite, the violation of the law, have to be followed at the same time. The commander turns himself in because while recognising he has broken the law which says he must not kill, he has stayed true to an ideal which says he must protect his honour…”
Sethi further puts forward two powerful critiques to buttress her point on the discriminatory treatment in law to women. The first relates to the excuse of sudden and grave provocation that is recognised for instances when culpable homicide may not amount to murder. She states that such an excuse may be more naturally availed by a man for murdering an adulterous wife, than by a wife for murdering an abusive husband.
Sethi’s second critique is more certain and focuses on the existence of Section 497 of the Indian Penal Code, 1860, that punishes adultery. The provision applies to a man who has sexual relations with the wife of another man without his consent. It presumes the absence of agency of a married woman, and the man who seduces her as being solely responsible. Positions inconsistent with modern liberal values. It also leads to an argument that such a criminal sanction of the law legitimises the three shots fired by Nanavati into the chest of Prem Ahuja.
This provision has over the years been criticised and its repeal has been advocated repeatedly. Again, this remains on the statute books.
We live in times when public commentary is regularly directed against the judiciary. But the Nanavati case is an example where it withstood all public pressure and sidestepped discriminatory legal codes. Problems continue to exist on both and it is the legislature that is to blame even today for failing to correct them.
Fifty-five years is a long time to consider and change — the form, substance and even the clichés of law.
This article was originally published in The Telegraph on September 7, 2016.