Chandigarh stalking case: Seeking Barala's resignation is unfair; families can't be punished for sins of errant sons

The Chandigarh stalking case, where the daughter of a senior IAS officer was harassed by the son of the Bharatiya Janata Party's (BJP) Haryana unit president, has stirred the conscience of the nation, and rightly so. After all, this is not the first such instance where children of senior politicians have flouted laws, secure in their arrogance that their privileged background will ensure the police will not touch them.

But it's not like guilty children have been supported or encouraged by their powerful politician parents in every instance. The laws of the country have ensured prosecutions, convictions and punishments in several cases. Manu Sharma, son of a powerful Congress leader from Haryana, is in jail after being convicted in the notorious Jessica Lal murder case.

More recently, Gujarat deputy chief minister Nitin Patel's "heavily drunk" son was prevented by authorities from boarding a plane to fly abroad.

So, the question we need to address regarding the Chandigarh stalking case is — has BJP's Haryana chief Subhash Barala tampered with the law to protect his son? If he has, then the party high command should not only sack him but also prosecute him under relevant laws. But there is no evidence to that effect. But the lack of evidence establishing his involvement hasn't stopped people from demanding his resignation.

Such demands are coming not only from the Congress but also from within a section of the BJP and from many leading women activists. Even the victim's father, Virender Kundu, has said involving the Barala family is not proper. Addressing the media, he said it was "rather unfortunate" that families of the accused had to face hardship, and that he didn't hold the families accountable for "acts of the children".

Haryana BJP president Subhash Barala. PTI file photo

Haryana BJP president Subhash Barala. PTI file photo

Assuming the automatic involvement of the entire family in a crime committed by one member is dangerous, in more ways than one. In medieval ages, there was the concept of the "corruption of blood", under which punishment extended from a person on to his/her blood relations, as also did the quantum and duration of the punishment.

In the 21st century, however, such a concept shouldn't have any relevance. If a member of a group kills a person, why should the entire group be tried for murder? A person may very well be trusted despite his/her family members doing something illegal. Why should we associate the wrongdoings of a previous generation with the subsequent generation?

Taken at face value, such an interpretation would also mean Sonia and Rahul Gandhi are "suspended" from politics until Robert Vadra can clear all corruption charges against him. In fact, it may impact an overwhelming majority of India's political scene, since many leaders have pending charges against their children, parents or relatives. Former Union minister P Chidambaram too may have to give up his parliamentary seat, since his son Karti is a "key suspect" in money laundering and tax evasion cases.

And all this is not logic, but its perversity. Justice and fairness demand that only those who commit the crimes should be solely responsible.

In the US, for instance, the law specifically prohibits the "corruption of blood" argument. There the general principle is that you cannot hold responsible the family members of a guilty person for his/her crimes if they were not a party to them. In fact, in Florida, there is a statutory exemption for family members — it even forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an "offender avoid or escape detection, arrest, trial, or punishment", with one important exception — the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, "unless the court finds that the person (claiming the exemption) is a victim of domestic violence".

Even in India, the IPC does not automatically implicate the relatives. In fact, the Supreme court had recently expressed its concern with regard to false implication of the husband and his relatives in the cases under Section 498A of the IPC. It said that relatives should not suffer the ignominy of a criminal trial in the absence of specific and credible allegations.

Of course, the IPC does embody the concept of 'Joint Liability' (Section 34 of the IPC). "Acts done by several persons in furtherance of common intention — when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if done by him alone."

When the IPC was enacted in 1860, Section 34 didn't include the words "in furtherance of common intention". An amendment was made in 1870 to amend the IPC and these words were then included in Section 34.

But in many cases thereafter, various high courts and the Supreme Court have ruled that "common intention" has to be determined, whether it was present before the crime was commitment. If the prosecution fails to establish solid evidence in this regard, the person accused of helping in the crime is exonerated. In fact, it has been argued that Section 34 needs to be read with various other sections of the IPC and cannot be applied on its own, and has to be applied with some other section so as to make a person jointly liable for the offence.

Viewed thus, it would be unfair to implicate Subhash Barala in his son's crime. Did he really instigate his son to harass the girl? Or did he try to impede the prosecution? Nothing suggests as yet that this was the case. Why then, should he be punished?

However, all this is not to suggest that prosecution of family members for harbouring fugitives can be an option, regardless of the nature of the crime or the extent of the family member's involvement. Even if it is understandable that it will not be easy to turn away family members at moments of need, the family must accede to the eternal principle of justice — that if accurately and fairly imposed (due process of law), punishment for what the society or the country considers a crime must weigh above anything else.

Updated Date: Aug 09, 2017 06:37 AM

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