The story of corporate lawyer Janhavi Gadkar allegedly killing two men in a taxi while she was driving her Audi drunkenly down the wrong side of a Mumbai highway is deeply tragic and troubling, in many different ways.
First and foremost, the fate of the two blameless victims - Mohd Salim Saboowala, aged 50, and the taxi’s driver Mohd Hussain Sayaed, aged 57 - is tragic without reservation. Indeed, the death of the sober who have done nothing wrong is tragic in every drink driving case (and even more tragic is the victim blaming by defence lawyers or supporters is rife, if almost universally condemned, in similar cases).
But if the events in the Gadkar case happened as they have been alleged, there certainly appears to be legal and moral culpability and the law should and hopefully will take its proper course.
However, in parallel a trial by media is taking place right now that has turned into a self-righteous witch hunt that will achieve little in making our roads safer.
People’s frustrations about the outcome of the Salman Khan case, who got bail immediately after having been pronounced guilty by a trial court after 13 years, and other cases similar to Khan’s that semi-regularly hit the headlines, have frictionlessly been transferred directly onto Gadkar.
Being human
I have never interacted with Gadkar, to the best of my knowledge, but Gadkar is presumably a normal and fallible human being, as the rest of us, and for some she is also presumably a former colleague or friend.
She has allegedly made at least one big mistake while in a state of severe inebriation, but morally, does that make her a monster?
She wouldn’t be the first or the last to have made a big mistake while drunk, and she wouldn’t by any means be the only one where such a mistake has cost lives.
Statistics from 2011 showed that 70 per cent of 1.34 lakh road accident fatalities in India were due to drunken driving.
That does not absolve Gadkar from blame, but just like every other drunken driver, she must be entitled to a fair trial no matter what she has allegedly done.
However, that’s not the narrative that’s currently the flavour of the week in the media, online and off.
De-human
Barkha Dutt tweeted acidly on Friday:
Janhvi Gadkar - Poor Little Rich Girl. You killed two people. All your money wont buy you the grit& grace of their families. Drink to that.
None of us know all the circumstances relating to this accident, despite heavy media coverage of minute detail after detail, in-part powered by unnamed police officials, as it so often is, who are eager to share details of their investigation and Gadkar’s statements given to them (presumably, in part, while she was still inebriated).
Reporters filled in the blanks with some good old-fashioned detective work (according to the Mumbai Mirror, she told cops that she had had two pegs of whiskey but the restaurant bill said she bought six small pegs, at Rs 502 plus taxes each; she allegedly told the lawyer friend she drank with “don't worry, I have done this before”; the Mirror also ‘found out’ that she had not eaten after having drunk and the paper somehow established that she had drunk exactly 180ml of whiskey, 150ml above the legal limit).
So let me speculate and make some things up completely out of thin air about person X, that could absolve someone in a similar situation to her morally and/or legally to varying degrees.
Maybe X’s drink was spiked? Maybe a third party drank some of X’s drinks or the restaurant overbilled and she only had two pegs after all? Maybe the drink interacted in an unknown way with some medication X was taking? Maybe X is bipolar and was in the midst of a manic episode, causing X to take greater risks and drink to excess?
Or, maybe X simply made a very stupid mistake with terrible consequences for others.
The fact is that until there is a trial and she is proven guilty beyond reasonable doubt we don’t really know anything other than what the media is writing about it and what the police are telling us (who obviously have an incentive to showing off their drunk-driver-busting skills). There could be any of a hundred different reasons that could at least in-part excuse why someone in Gadkar’s or X’s position could have done what she allegedly did.
The impulse to drum up a media storm to ensure she does not ‘escape justice’ is strong but it is misplaced. Writing her off as an Untermensch is easiest, as it is to transfer our frustrations from the rich and famous who escape justice onto this “poor little rich girl”, quoting Dutt.
I don’t know who her family is or how rich or little she is at age 35, but working an upper-mid-level legal department job at Reliance Industries would likely place her amongst Bombay’s higher earners.
It is therefore a fact that she will be able to afford pretty decent defence lawyers, which is something that 90 per cent (if not 99 per cent) of people accused of a serious crime in India will never get access to.
But she is not a Salman Khan in any way other than her being more privileged than the average person. Like Khan she is also photogenic, which means newspapers will happily use her pictures on front pages.
Everyman
Gadkar, being so similar to many of the English-language media’s readers and viewer, has become a convenient but powerless stand-in for every single drunk driver who ever killed anyone, while also feeding into middle-class angst with the narrative of, “this could have been us or one of our friends”, and India’s righteous anger about the rich getting away with murder (which, frankly, they do every day).
But being privileged or a woman or being able to afford decent lawyers is not Gadkar’s fault either, and stereotyping her as a spoilt and entitled rich girl is despicable and reeks of sexism to boot.
“Instead of beer, I had two pegs of Ballantine's whiskey for fun,” she reportedly told police, presumably while still drunk (it’s not clear if a lawyer was present while she allegedly said this).
That reported statement alone prompted plenty of ink to be spilled, including an opinion column in the Daily O, headlined “these women who drink whisky for fun”. It blamed “Jahnavi Gadkar, homicidal maniac of a drunken lawyer who killed an innocent father and a taxi driver”, for setting back women’s hard-won right to have “fun” (as “the headlines the day after scream ‘woman has whisky 'for fun' and kills innocents’”).
The subtext is that this woman has let the side down by daring to make the same mistake that lakhs of men and other women make every year, and should be blamed for the next day’s sensationalist headlines too.
“Another drunk-driving accident: Why do Indians think that the laws are for someone else?” read a Scroll.in headline to an article that dealt largely in what-ifs about how Gadkar’s could have avoided doing what she allegedly did.
Unfortunately the ‘Indian psyche’ is practically unlikely to be a major cause of people drunk driving.
In the USA, drunk driving contributed to 31 per cent of all 10,076 traffic deaths in 2013, and it and other Western countries have mostly managed to cut their drunk driving death rates with a mix of stricter enforcement, public awareness campaigns and public attitudes towards drunk driving.
India’s problem will lie with all of these, but mostly with the fact that a law, which is not properly enforced, becomes a law that loses its power.
The role that law enforcement plays in all this is central. The fact is that particularly in places like Mumbai or Delhi, driving while having drunk a drink or two or three is worryingly commonplace.
The insidious thing with booze is that the more of it you have, the more confident you’ll (wrongly) feel that you are sober enough to drive home.
On top of that, the drunker you are, the more confident you’ll become that should the police catch you, all you need to do is flash your advocate’s or press card to get you off (in most cities).
And if that doesn’t work, your slight inebriation is probably nothing that a few hundred Rupees for the friendly neighbourhood cop won’t fix.
So rather than demonising one woman who has allegedly made one very big mistake that she is certain to regret for the rest of her life and that many other people make every night, we should be focusing our energies on fixing ineffective policing and enforcement of our laws, as well as our judicial system so it does not take 13 years or longer to get some half-hearted versions justice.
Let’s get something clear: roasting Gadkar in the nine circles of hell on Twitter, in talk shows or in opinion columns, is not a public awareness campaign; it is first and foremost about feeding an outrage industry.
And whoever is the target of the week for such outrage will quickly be forgotten and replaced by another, equally easy target next week, while the real problems remain unsolved, and as that cycle goes on, more lives will continue to be tragically lost to drunk driving again, week after week, night after night.
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On a serious note, if the other car also had airbags possibly such tragedy could have been averted.
It's one thing to blame the person driving and easy too!
But what many in the media are ignoring is the weak safety standards in India for automobiles as compared to developed countries. In many countries a car can't be sold without airbags, Abs and Ebd and very soon ESP too!
Another focus area should be prevention of drunk driving.
This one incident would be forgotten soon, until next time unless some broader steps are taken to eradicate the problem from its root.
This post essentially states that let us not make a judgment without knowing all the facts...the NLUD blog post may not have tried anyone in particular, but it specifically did pronounce judgment
There are millions of people in Delhi who use to talk over the phone while driving and when they meet with any such accident due to their negligence/carelessness, how should they be treated? Should they be hanged till death. I am asking this question to all those who use to talk over the phone while driving. Here, one more question arises, if suppose any such accident take place by these common people, does media creates hype of any such incident. Definitely, NO!!
Put it this way, If you are driving a car and at the same time you are taking over the phone and accidentally you hit someone on the roadside and the person dies - Should you be hanged for this?
The crux of Kian's story is that Kian's does understand that the incident was obviously unfortunate, and two innocent people died due to negligence of a drunk person. But at the same time Kian wants to draw your attention on on one very basic issue which is very common in all the metropolitan cites like Delhi and Mumbai where people use to talk over the phone while driving or even they do not wear seat belts. If these people sometime meet with the same incident how should they be treated by Media?
Of Course, there is law and it is the duty of the court to decide what went wrong and what punishment should be given to the guilty to meet with the justice.
Using a mobile while driving is like juggling grenades. That's why there's a law against it. I find even the ringtone of a mobile in the vehicle highly distracting.
It is precisely because "millions of people" in Delhi drive while using a mobile that Delhi has the highest rate of auto-fatalities in India. All the more reason to make some examples and start handing out some tough sentences. No need to hang anybody, a 10 year non-paroleable sentence will do the trick. A media trial might at least bring some attention to the issue and alert the cops (and drivers) to be more vigilant.
What now, that you've shared your opinion?
Often celebs cry hoarse when they committ a crime that they be are treated differently/harshly just because they are celebs.
This media trial in gadkar's case is also following the same path! 'She is a lawyer so she should have known' , 'cancel bar licence' !!!
She has been arrested and charged, so let's the courts do their job and let media report on it fairly without the outrage that is only being employed for TRPs...
In your media language, content creation and making it to sell against competition is the job for so called journalists/media houses, in emotional issues it going to be different version of the stories like this for people employed on this domain to keep the tempo going for couple of weeks/month. Add-in social channels its multi-folded. Just imagine, replace the Omni vehicle with School Bus, will you dare write this article even though the message is same?
Before you pull in another other statistics from civil structurally strong western country for showcase, Indian people vent out here because "Law/Judiciary fail to deliver here". If you dare touch/criticize them. Police are easy to bully to act, when shouted they will oblige.
Attention will prevail till another elite member does any pinching act to override this. At this point let people vent out their emotions and they will. what else on offer.
Are you kidding?
Lots of lawyers and non-lawyers indulge in extreme dangerous acts that endanger the lives and limbs of those around them ???? Really ??
Are you speaking for yourself Kian, coz you sure as hell dont speak for this lawyer (and all the lawyer / non lawyer friends and family of mine).
This female who is now in custody is part of a growing trend of being grossly negligent to the point of being criminal and then when caught, try to evoke sympathy using logic such as :
"She was a hardworking person but made a mistake"
"She cared a lot for people around her"
"She's being victimised"
"She did charity"
"She is being demonised"
"Media Trial"
I mean are you nuts?? I guess you are writing this farce of an "article" because you harbour deep insecurities. Maybe it could have been you instead of Jahanvai.You're just quick to show a "perspective" as a way of assuaging any guilt you may have arising from something similar you or your friends have indulged in the past.
The fact is that she's a criminal. Criminal because she knowingly did not comply with safety laws and in the process two lives were lost for nothing. In my book this is a shameful criminal act and the thought that she will walk after a few years makes me throw up -- as does the tone of this irresponsible and ludicrous article. I feel worried that youngsters reading your article will think its ok to DUI and not doing so is just a "mistake" in the court of moral standing if not the court of law.
Maybe the day Mrs or Master Ganz falls victim to a similar 'mistaken' driver, you will understand the sheer criminality of this act. Till then take a break from expressing your views.
Hats off to you for writing a well balanced piece that articulates what a lot of us who know Janhavi feel.
For what it is worth, while she had a great job and was highly regarded, from what I know and from press articles, her family is not particularly well off. She did very well for herself, but she did not appear to have a particularly privileged background.
This has been a tragedy in all respects. The way the media have reacted has been a tragedy as well. Spoilt little rich girl? At least the press can try and get the facts right.
Thanks for writing this piece.
m.timesofindia.com/city/mumbai/Body-basic-Alcohol-doesnt-go-down-well-with-women/articleshow/47660727.cms
Are you from Desai Diwanji? To be replicating a certain partners dialogues and statements??
Drunk or not. She should be hanged.
Are you stressing on the age kian. 'Fifties'. They coul've very well lived a lot lot more had it not been her at the wheel
But should victim be ignored ? A boy is regretting getting good marks, a family is not going to celebrate Eid, this year. To many this would not make a impact. But Janhavi Gadkar should not be shown leniency by just saying that x percent of people commit this mistake every night. Driving at that speed, driving on wrong side after drinking 6 times the permissible limit, this should not be treated as an incident, it is by any yardstick of logic, a crime.
Kian, most of us know that as soon as Salman's Appeal in High Court starts, all the focus will shift there & Janhavi will be forgotten.
Fact is, the media doesn't really care about the victims really. This is going to offend some but I'm being intentionally crass, the most cynical of the tabloid media would have 'preferred' if the victims had been a mother and young child, or an upper-middle-class family of 5 (preferably not Muslims), or a bus full of beauty queens.
That would have meant that they could have done many more frontpage stories and profiles about the effect the accident had on the victims, which all their middle-class readers would have shared much more on social media.
And for the avoidance of doubt, I'm not saying any of the journalists wished anyone dead, but I'm nearly certain that at least one editor must have thought or maybe even told the hacks: Ok, we've done enough stories about the victims, we've done enough as our readers will care, let's get some more mileage out of rich daddy's girl and her Audi.
www.abplive.in/india/2015/06/12/article616397.ece/Mumbai-has-lost-its-insaniyat-Families-of-Audi-crash-victims-seek-justice
indiatoday.intoday.in/story/mumbai-audi-crash-victims-daughter-shares-her-ordeal-with-rajdeep-sardesai/1/443911.html
m.timesofindia.com/city/mumbai/Audi-crash-Accident-victims-family-wants-lawyers-degree-to-be-confiscated/articleshow/47648023.cms
www.msn.com/en-in/news/national/mumbai-drunk-driving-accident-janhavi-gadkar-is-also-a-victim-says-lawyer/ar-BBl4Md4
I don't read any of the 3 hardcopy papers you refer to, so I can't be 100% sure, but I dare you to do a test tomorrow: count the number of stories about her, and compare to number of stories about victims.
And if Gadkar had been a 50 year old man or a taxi driver, the story would have made page 4 at best in any of these papers...
Next thing you'll be telling me you don't read the Mumbai Mirror.
Mid-day:
9 articles mentioning Gadkar: www.mid-day.com/search/gadkar_all
2 mentioning Sabuwala: www.mid-day.com/search/sabuwala_all
Mirror:
7 mentioning Gadkar: www.mid-day.com/search/gadkar_all
6 mentioning Sabuwala (of which only 2 are actually about them, it seems): www.mumbaimirror.com/getsearchdata.cms?query=sabuwala
HT:
A staggering 23 mentioning Gadkar: www.hindustantimes.com/Search/search.aspx?q=gadkar&op=All&pt=all&auth=all
7 mentioning Sabuwala (of which 4 seem to actually be about the victims in some way): www.hindustantimes.com/Search/search.aspx?q=sabuwala&op=All&pt=all&auth=all
That being said, I do not think this case is getting disproportionate attention. In most drunk driving cases both the victim and the offender often die. It's not often that you have a situation like this where you get to examine the issue. Kudos to media for bringing it to our attention. First with Alistar Pereria's case, Salman Khan's and now this.
Hope someone will move a PIL to improve the situation of drunk driving.
The majority of people on Twitter in India are certainly middle class, and a large number are journalists, so I inevitably follow them.
Clearer now or still feeling nasty?
Any mention about the victims is only in the passing and as a prelude to some argument or a legal / philosophical construct.
I find no difference between your educated sophist stance about the 'alleged offender's' rights and those of the numerous arguments and defense put out by RJD party as regards Ram Murti Verma. There too, the honourables pontificate about the 'right of the alleged' in having a fair trail and that the truth will out in court etc......all while a human was burnt alive.
Its sickening when one watches 'closing of ranks'..
Just because I don't launch into hyperbole about their suffering, does not give you the right to judge how I feel about it or how much I care about other human lives.
If I had started the article beating my chest with homilies about how a violent death thrust about an innocent family is a terrible thing, would you have been happier?
I doubt it.
Maybe X’s drink was spiked? Maybe a third party drank some of X’s drinks or the restaurant overbilled and she only had two pegs after all? Maybe the drink interacted in an unknown way with some medication X was taking? Maybe X is bipolar and was in the midst of a manic episode, causing X to take greater risks and drink to excess?
And what if X has links with certain websites who are trying to suggest she is innocent?
The point, which you missed, is that we only ever hear one side of the story, and there could in theory be hundreds of extenuating factors, which her lawyer is sure to bring up in court to hopefully get a fair trial that won't be presided over by a judge playing to the media and popular opinion.
That said, once the legal process kicks in, it likely will take several years, and the odds seem very high that she will go to prison, if things actually went down as has been alleged in light of the evidence and witnesses apparently available.
But why are you speculating?
- Paid news.
- Let's make the firm crowd happy.
- Get the upper middle class connect going.
- All while not speaking much of those who lost their life and their family.
- Even admitting to having properly read about them.
- Calling her 'crime' a 'MISTAKE'.
But let me save poor-corporate-junky to appease to my read base.
As bad as the mainstream media. Each playing to their respective galleries.
All while pulling wool over everyone's eyes about eventually law will take its own course.
NOT FAIR KIAN.
Just like not fair Barkha.
Both of you are in the same boat.
The media is flaying Gadkar alive, and the narrative they're building up with wall to wall coverage and opinions demonising her makes it hard for her to have a fair trial.
They're picking on her because she's an easy target that's easy to demonise in a tabloid fashion by appealing to readers base prejudices and sensationalism.
They barely if ever report about any of the other drink driving death cases that happen every single night in Mumbai.
All I'm doing is pointing that out, it's just my opinion.
Why does it make you so angry?
While you are correct that not all drunk driving fatalities get this same attention you seem to be in error in saying that "it's just my opinion. Why does it make you so angry".
Have always admired your journalism and had hoped that you would understand as a journalist it is never "just your opinion" once you express it in ink to people who read you. What if Barkha Dutt, whom you and many seem to be very critical of, said the same thing about her tweet or if all the journalists who are ensuring the "wall to wall" coverage did the same.
As a member of the press you cannot shy away from your responsibility towards fair journalism by hiding behind the "it's my opinion" veil.
Your article though purportedly seeking to highlight the sensationalism and TRP centric media coverage which pervades India seems to fall into a lame defence for the lady accused, something which seems like your version of pandering to your (mostly) law firm / in house lawyer reader base.
While on one hand you snidely refer to other media houses speculating and manufacturing facts you then go ahead and present speculation about "X" under the guise of variable theories.
As a responsible journalist you should at least attempt to answer these questions which your readers are asking and not sweep it away under "it's my opinion".
Hoping for a revert.
Keep up the good work on BCI.
Regards
Separately, dont necessarily agree with your piece entirely and the way that you have put it up. While she is is the perfect ensemble of what the media would like to call a 'darling killer' (of course alleged) since she fits the profile of what makes news in India, it is not one bit surprising of how the media is targeting her, making sexist judgements and assumptions and assertions. While she cannot expect any leniency either from the law or public opinion, her being a woman, lawyer, rich, audi driver, divorced, photogenic, one who likes to have fun, with men or without men, or whatever other stuff is a non issue here. Some readers are missing this import which I think you are trying to have (but appears to be slightly coloured with bias towards the victim- hence the rage here).
The answer probably is her car had airbags and she wore a seatbelt.
It's time the automobile industry be pressurised or the law be changed to make these standard features in all cars. Most cabs in Mumbai don't have seat belts that work.
That being said nothing justifies drunken driving.
Its not that BMWs / Audis / Mercs are more accident prone or only their drivers crazy. Drunk driving is common. Rather than addressing the legal issues and how it can be stopped, we are targeting the perpetrators specifically and subjecting them to media trials. Drunk driving is not a unique problem which is limited to India. Its the laws and the half hearted implementation which has made people believe that they can get away with drunk driving. If only laws and their implementation stricter, people would be scared to even touch their cars after drinking.
While this is Mumbai and cops still are very strict with such offences, one should come to Delhi / NCR and see how drunk driving has become a status symbol. If one wishes to take a cab after going out drinking and do the sensible thing, he / she is considered to be a "fattu".
But then it's the rare combination of all these 'ifs' that has made this incident a perfect news for media coverage.
To cite an example, last week itself in my city a dumper truck crashed into 4 vehicles killing 6 people (including women, children). The driver ran away, so we don't know if he was drunk. The news was reported just like any other news. Nothing more, nothing less.
I'm pointing out that there is no balance in media coverage and public discourse, which basically damns her to hell and singles her out for being, what they portray as, a 'poor little rich girl' for doing and saying some very stupid stuff that she's very likely to pay for in accordance with law.
Save the outrage for if the justice system does NOT do its job.
In fact she ain't as high profile(connected) as people are making her out to be given that she'll spent 14 days in custody. Remember the khan didn't spend a single day in police custody and got bail at Rs.250 on the day of the accident itself!
She's just plain 'unlucky' I guess that Sallu bhai put the glare on these offences. The issue is such a hot potato now that even Lalit Modi will not be able to escape police or judicial custody if he were in Jahanvi's boots.
Had this been 5 years ago, I'm wiling to bet she'd have gotten away with a fine of Rs 100.
Of course you can't be judgmental about her. Why should one? (1) Drink and Drive (2) Killing 2 people by driving. Oh no. You cant be judgmental about her.
Its alright, even salman khan did it. right? That's the standard now.
Supporting incidences of trial by media where it's probably not necessary, weakens the judicial system, it doesn't strengthen it.
There are many crimes under IPC and special laws that provide for death penalty. Some of them are for non-violent offences. I fail to see why at least on the books (I know rarest of rare etc) this can't be made punishable with death.
Ideally if you knowingly get behind the wheel of a vehicle while intoxicated and you happen to kill someone, you should be punished with death.
But unfortunately we all want to cry poor little rich girl.
You disgust me Kian.
The reason that law sees 'drink driving' killing as a 'lesser' evil, is because the requisite mens rea (guilty mind) is of a different quality.
There is usually no intent to kill someone by a drunk driver getting behind the wheel, but what it amounts to is easily gross negligence or utter recklessness, which under the law are seen as less guilty states of mind.
However, I agree that penalties for drink driving and enforcement of these should be harsher.
That said, the death penalty is very ineffective and will end up executing innocents, who are disproportionately poor and can not get effective legal representation.
Even the hang-em-high USA is moving in the other direction: www.legallyindia.com/Bar-Bench-Litigation/right-wing-nebraska-becomes-19th-us-state-to-abolish-death-penalty
It's the same when you are intoxicated and behind the wheel of a car. If you are intoxicated and you get behind the wheel of a vehicle, intent is immaterial. The crime is the negligence. You know that you are intoxicated. You know that you are likely to cause injury or death by driving. There is no need to worry about specific intent to kill. That level of negligence alone should warrant a sentence of death or at least imprisonment for life or exiled to a penal colony (We need to bring this back) The law needs to be amended.
We need to amend the law. It cannot be that she walks with 3 years after killing two people. This cannot and should not be the case.
Maybe the following is a better tiger analogy: Let's say you were really drunk, and went for a walk with Ballu on a leash, which you sometimes do although you know Ballu is a dangerous animal. Then, because you're so drunk, you stumble and fall and let go of Ballu's leash near a playground where Ballu eats 2 kids.
You didn't intend for Ballu to eat those two kids, but you were reckless in your handling of a dangerous animal. In a similar way, a person who drinks and drives is reckless in their handling of a dangerous machine and should be punished.
I think I disagree with you about penal colonies also. One point of imprisonment is pure and simple punishment and retribution, eye-for-an-eye type thing.
But there is also the idea that punishment under law should be to reform and to prevent someone to reoffend, not to take a potentially productive member of society out of society forever, unless they are so beyond repair that it's best to lock them up and throw away the key.
Unlike psychopath murderers, the law would argue that a drunk driver can be reformed and become a productive member of society after their jail sentence without posing a risk to anyone, having hopefully learnt their lesson (and hopefully lost their driving licence permanently).
But unfortunately, the victims are poor. It seems that not only do the poor have trouble finding a lawyer, they have trouble even finding sympathy at the bar.
A similar phenomenon is happening though in demonising Gadkar or people like her. We're creating an us versus them mentality.
In this case, tabloid readers say: I don't drink drive, I and my family are good persons who don't go out drinking during the week without a driver or taxi, UNLIKE that silly rich girl with a nice car who drinks too much (for a woman), is unmarried and is a maniac murderer.
By making her different from us, in our minds and with our rhetoric, she becomes an 'other' and it becomes easier to condemn her and to feel good about ourselves in the process, because we are NOT like her.
This is not a mistake its negligence that killed 2 people. She deserves more than 10 years in Jail. Unfortunately under 302 the max she an get is 10 years. I hope to God she gets the full 10 years of which some are spent in solitary confinement.
So what have recent governments done to fix this, other than messing about with things like the NJAC in what seems to be a political power game?
Only radical measures of reform of trial and lower courts, tackling of pendency, pay of judges, policing, improvement in legal education, regulation of lawyers (via the BCI) can achieve anything here.
However, all the law ministries that I can remember have been lame ducks for as long as I can remember without any political will to do anything on this.
And having even a flawed rule of law is a damn sight better in my book than a system based around the righteous anger of those who have a voice (a few journalists, newspapers, blogs and a few rich people) or around angry mob rule, which could have also materialised after Gadkar's accident to lynch her, if it had happened on a different road perhaps...
Furthermore, the media is a beast that can't necessarily be trusted either all the time, and it's motives aren't necessarily aligned to yours or other citizens' either (though I would trust many journalists more than most politicians and perhaps also a few judges, but then again I'm maybe biased on that front).
And while you and others do have the democratic right to be angry, at the same time I and others also have the right to criticise such anger and point out its dangers.
I think there's a lot of pent-up frustration among the public that is being directed at this lady. Part of the frustration is due to an ineffective judicial and law enforcement system, and partly from the way our megastar got 'bail'ed out in minutes.
You're right that there is a lot of pent up frustration in the public.
I get frustrated every time a drunk psycho swerves dangerously past at 10 pm when I drive back home with my wife and kid after a movie on a Saturday night. I'm frustrated that these people know that they can get away with it 99% of the time with no trouble. I'm frustrated that generations of Indians treat it as a minor transgression, much like the misogynistic attitude towards sexual harassment (which is also treated by many older Indians as a small mischief).
The fact that for decades DUI has been treated with kid gloves is no entitlement to Jahanvi Gadkar to get away with 10 hours of community service. Now is a good time for the courts to send a strong message that DUI is just as bad as killing someone in a moment of anger. To the victim and their family the effect is the same.
I am also a lawyer like Jahanvi, I also meet my clients at 10 pm to chat and bond and I also like a drink with my friends. The difference is that I am responsible enough to stay away from a steering wheel no matter how little I've drunk.
Her father worked in Unity projects and mother in BEST. They lived in Ghatkopar until they moved to Kandivli.
She was married in 2003 and separated in 2010.
(I was surprised at the kind of details some newspapers pull out)
So how exactly does this affect the fact that:
(a) she was drinking and driving in full contravention of the law.
(b) she killed couple of people who would not even have known she existed before her car struck theirs.
Her parents could have been Aung Sang Suu Kyi and Ban Ki Moon and even then she'd be a criminal deserving of a decade or more in Davy Jones' Locker
which some additional details that our media grabbed.
Btw, she isn't super rich as has been made out! She seems to be 'work hard,party hard' type of a girl.
Bottomline: One act of stupidity can ruin a lifetime!
Thank God you penned this down. At least one person with me..
Of course I wrote this article in-part because Gadkar is a lawyer and the case is of big interest and a topic of discussion amongst LI readers, and because it concerns the judicial system.
But other than that, was genuinely shocked and saddened at the tone of coverage and the hostile, often gleeful and borderline-sexist reactions that a 'spoilt rich girl' is getting her just desserts, and wanted to share my heartfelt view.
Kianz, even though your point is well taken, you have chosen a topic which is extremely controversial. I see a contradiction in the article. While you are (in some ways)sympathetic to Gadkar, you simultaneously suggest that law ought to take its course. This issue is like America's war on terror, you are either with them, or against them!
I can condemn what Gadkar did, blame her personally for being irresponsible, stupid or reckless, yet at the same time feel sympathy for her as a person, yet call for the law to punish her, yet also blame police corruption or road safety laws, yet also insist on a fair trial.
Just focusing on her personally is a lazy option, that insists on a world of black and white, good vs evil, which is so simplistic it is dangerous and will not ever improve things.
It's easily possible to cover such issues without demonisation. And interestingly, very little of the coverage so far has been suggesting solutions - it's all just, this girl is spoilt, stupid and rich, let's punish her as hard as possible.
Such rhetoric makes people feel good about themselves momentarily, but does little to actually fix underlying causes. One better approach would be to report on every drink driving case prominently, and not just those featuring good looking young women who are lawyers... Another would be campaigns for better car safety laws and against police corruption, but I don't see much of that either...
Yes the fact that she is a lawyer, photogenic and rich should not add or subtract from justice delivery. In an ideal world it won't. But here where most - including those who are supposedly the protectors of law - v. easily turn a blind eye, the responsibility on the media is all the more.
BD's comments are uncalled for. But they make good copy. In turn, so does your article - both target views and engagements. And as long as they both serve to deliver exemplary Justice that is fine. Remember that exemplary Justice delivered and so seen can be the strongest message to send. One reason why crime in Saudi is much lesser.
Speaking of demonizing or publicly shaming people instead of fixing laws. Most of this,in my opinion is done, by the common man to whom justice is delayed / denied. Demonizing if u ask me is the common man's way of serving justice in case of a person who is spared (temporarily or permanently) by weak courts.
Yes media makes a spectacle out of all this only to conveniently forget later. But the next time an issue of drunken driving crops up , jahanvi's name will be added the "Salman Khan" list for sure, just as Salman's noble deed is being fondly recalled today when jahanvi's case has been bradcasted.
There's no denying that fixing up the judicial system is going to take some time and even more time is required to drill the significance of laws into wayward citizens' heads. Until then public shaming is the only vehicle / weapon that the average law abiding citizen has in order to make the law disrespecting lot come to their knees.
i read your article and i am an avid reader of legally india. i agree with a lot of the issues you have raised. yes there is an outrage industry in india. and yes this lady is being sacrificed at its altar.
inida is an incredibly hupocritical place where everybody wishes to demonstrate the superirority of their own value system by attacking somebody else. the llaccused lady is not some ambani or some birla. she was not friving a ferarri. she was driving a basic low end audi. i see newrly a hundred of those each day. she by no stretch of imagination can be considered rich. yet because she represents a cocktail of a woman who is single, a professional, drinks and drives a flashy car , she represents the stereotypical "modern woman" who is always bashed. she is an easy target for mindless bashing. yes nothing can forgibe what she did, but the way she is being pilloried at the post by the high and mighty is disgusting.
kian i do have a bone to pick with you though. while i agree with this article, you have ignored some other articles which represent the way in which the law and media treat different accused differently. take for example
1- salmans bail. a purchased order if there ever was one. salve was there for window dressing so that the judge had an excuse to tell people that he gave the bail because of salve.
2- jayalalithas bail by dattu. and followed by her acquittal by the state court. the bail order given to her by the cji was absolutely cringe inducing to see with nariman being there for window dressing.
3- the arrest of tomar by the dlehi police. obv his degree is fake, i personally think kejriwal is a loony and tomar should be sacked . but his arrest and the manner of the arrest was just terrible.
4- the pervasive and indepth corruption in the judiciary.
my only suggestion is that you do an article on one of these issues as well.
on 1. It's hard to tell what's going on. I don't think an order was purchased, but I think that this article we commissioned (but it seems forgot to post on LI) sort of gets it right:
www.livemint.com/Consumer/xLojbGhFIyu6aevhfcatCM/Legally-explained-What-why-and-how-the-Supreme-Court-decid.html
2. These are such big and complex and political cases I don't know where I would start. It's easy making allegations about them, but they can also be explained through smart litigation strategy. Again, I don't know enough about the ins and outs to really give an informed comment there right now.
3. Hmm, Tomar seems to me a matter of: the police hates the AAP and was only too happy to pay them back, so they spent far more time on this case (perhaps nudged by the central government a little) than they would have done if Tomar was not of AAP. That said, their reasons for refusing bail don't seem unreasonable - maybe he would start (allegedly) tampering with more documents if he's out?
4. Well, where do you start on that mammoth topic (without getting arrested)? :)
Your article is generally well written- however mentioning that "the media is demonising this lady who has allegedly made one very big mistake that she is certain to regret for the rest of her life", made me cringe with disbelief.
I strongly differ : going by reports, this lady has had several drunken hit & runs over the past few weeks- don't you think this is habit (and not circumstance) and a total disregard of the law & humanity? Everytime, she has gotten away by flashing money and playing the card of the fairer sex. Are we sure she has not maimed or killed someone before?
Most of the so-called media witch-hunts that you so elaborately dissect- epitomize this repetitive behaviour, reckless nature, blatant disregard of others lives and the belief that money can erase any crime or accident? Please- she is no victim !
Regards
Neil
Usually it is not some deep-seated evil that makes drunk drivers kill, but it is recklessness, or even underlying causes such as alcoholism, or simply stupidity.
Perhaps it'd be better to describe it as a psychological problem rather than just plain stupidity, you're right.
Most drink drivers are repeat offenders and don't kill someone the first time they do it. They do it once, maybe after only 1 or 2 drinks, and don't have an accident or just a minor scrape, and think, well, that wasn't a problem, why do people make such a fuss about drink driving?
"I am different," they think, "I can handle my booze and I'm a great driver."
And so people increasingly get used to driving and drinking, and 100 times they might not have an accident, and they drink more and more, until one day they've drunk so much they're incapable that this happens.
Drunk driving needs education to eradicate, and not demonisation, which only works on a very simplistic level.
Kian this reply of yours smacks of servitude and unashamed attempt to protect the poor rich girl. Fancy words you are using to hide her crime. You have called it a mistake and now she was just "reckless". everything but an accused.
Makes me wonder how well you know the lady accused and to what lengths you will go to preach her case.
I am sure she had not reached where she had without "education". There is enough education, on TV, in print and various other media against drunk driving. Perhaps when all else fails we need demonisation to make an example of some people to create a deterrent for others.
If those poor victims were unlucky to be on the wrong place at the wrong time and met death; maybe this lady was at the wrong place and wrong time as well and her actions result in a landmark judgement !
1) She is a habitual offender. She had hit people a week back from what I hear. This incident was insufficient to make the 'wonderful' lady more mature to know when to stop / clean up her act.
2) I am not casting aspersions on her - but [...].
3) She appears to have lied to the police mentioning she was trying to wear off her alcohol post leaving Marine Plaza. She actually went to Irish Pub and drank some more. She not only has committed a perjury but also exposed her friend to commit it i.e. the friend who accompanied her to Marine Plaza.
Please note that being a wonderful person and being successful does not for a single moment make her any less culpable than what she is when you read the above. And for all us lawyers, please refer justice is blind.
But is the media witch hunt and digging out of half-baked facts necessary or helpful?
The Mirror wrote that she'd had 180ml of whiskey, whereas later reports suggest that she allegedly imbibed the majority of alcohol afterwards via drinking beer at another pub.
Does this hysteria of falling over each other trying to break new details and 'facts' of her drunken night out help anyone other than newspaper proprietors?
In respect of her 'lies to the police', we don't know why she lied, what state she was in, or if all of us would have done differently if we were as drunk as she allegedly was and in that exact position.
She might deserve it, but let's face it, in a scary situation such as being arrested, people often say the wrong things, even if they are trained lawyers.
But would completely agree with Kian. We as a society get carried away with emotions and do not think reasonably to prevent such accidents and its consequences from happening in future.
Why has this case got so much of publicity - it has all classic ingredients to attract public attention and TRPs - offender is a girl, drunk, in audi, escapes injury, executive with big corporate house, making good money. on the other hand victims have died and been seriously injured, are from middle class or lower middle class background, returning from a family celebration. These are enough for media to chase the story with vengeance including carry it on headlines.
What surprised me is that accidents and death on account of drunken driving is not uncommon in India. So what is so different in this case to merit so much of attention. There was another incident of drunken driving where the drunk businessman caused death of a lady and her child in Ahmadabad 2-3 days after Gadhkar accident. This news was reported, but did not merit the same news coverage and was definitely not worthy of a headline or such heated debate. You just have to google and you will find innumerable stories of drunken driving accidental deaths caused by truck drivers and bus drivers and taxi drivers. But none of these accidents merit news coverage.
Media should report such cases but after reporting facts,a responsible media should have taken up the various reasons why the statistics in drunken driving accidents are increasing and what the authorities/ police/ judiciary are doing to prevent/ reduce it. Instead there is stereotyping of Gadhkar and women in general. Add to that the reports of how women cannot handle whiskey. Is it fine if men drink whiskey and drive. God forbid if any accidents are ensued then, it is fine as it is a man who was drunk and driving.
Sincerely wish that all this energy is focussed to think up measures to reduce such unfortunate accidents, while allowing law to take its course in deciding the Gadhkar case. Let us not punish Gadhkar but be more positive in our efforts to ensure such accidents do not happen in future.
I say that if this is the case then she wouldn't be the first or the last to have been condemned like this. If the accident/ incident in the course of life journey then the accusation is part of it. Accept both. In fact accident, accusation, defence all will go together you do your part of defence let other do their part of accusation. Don't muzzle.
If 100,000 drink driving deaths take place every year, there should be at least 100 articles every day about another drink driving death in the paper, with an equal amount of attention and condemnation.
They're not - most are ignored because they're so routine and the perpetrators are people most readers don't care about: this one is covered because people want to read about it and it is easy and feels 'just' to demonise a 'spoilt little rich girl'.
What’s my point? The following : (1) When you drink (and heavily at that), you should know the consequences of it (as any mature adult would know). (2)Knowing the consequences and still getting behind the wheel to drive is akin to firing a pistol in a crowded mall and hoping that you won’t kill anyone. (3) RULES ARE RULES. Driving under the influence of alcohol is prohibited. She broke the law. Let her be punished as per the law of the land. There are no excuses for breaking the law – certainly the ones that you offer in your article are puerile at best and dangerous at worst. (4) Trial by media is an overhyped issue. Yes orders can be purchased in our country, but that is corruption. I find it difficult to believe that an experienced judge will fall prey to what is being claimed/asserted in tabloids – such a person is not fit to be a judge at all. If a judge does not go by evidence but by what is written in newspapers, that order is surely bad in law and liable to be struck down at the appeal stage.
The last portion of your article is well taken – that the real issues of enforcement/policing/judiciary will be glossed over. However, any attempt to find excuses for Ms. Gadkar’s conduct should be firmly denounced irrespective of whether she is rich or poor, man or woman. I don’t want anyone to call her an “untermensch”, but I wish we had even half as much respect for rules as the country that gave us that word.
You are entitled to your opinion and I (and a lot of others it seems) am entitled to vehemently oppose that opinion.
I did not seek to find excuses for her - I said that in any criminal case, there will be extenuating circumstances and a story that's not being told, i.e., that of the defendant.
There are thousands of theoretical reasons that could change the narrative of all this slightly.
Drink driving is about 'should' and 'could haves'. It is deeply irresponsible and reckless, which is why it's punished by jail time, but people don't begin drink driving because they are psychopaths. It just becomes like a really bad and dangerous and stupid habit to them...
In the US, "one-third of the drunk driving problem – arrests, crashes, deaths, and injuries – comes from repeat offenders".
www.madd.org/drunk-driving/about/
You (and the victims) have to be extremely 'unlucky', statistically, if the first time you drink anything over the limit you immediately cause a deadly accident.
It's a slippery slope - you drink drive for the first 10 times on one peg, then you gradually get confident and drink drive 10 times on 2 pegs of whiskey, at which your reaction time is maybe 10% slowed.
Then you drive 10 times on 3 pegs, at which you maybe feel quite drunk but can just about justify to yourself that 'You've done this before', and probably won't have an accident yet.
Then, sooner or later comes the 'unlucky' tipping point or the 'one final mistake' that changes your and your victim's lives forever: You drive while blind drunk after 10 pegs, either because you have no self control at all or because something deep inside you tells you, 'I've done this before', it's ok. Then you crash by your own blind drunkenness or because something happens on the road that you can't react to in time.
Are you to blame for such behaviour? Yes. Should you be criticised for it? Yes.
But asking for you to be locked up with the key thrown away doesn't solve any of the underlying problems.
Drink driving needs to nipped in the bud by effective policing, mandatory counselling or medical treatment for alcoholism, and heavy fines and even jail terms, even on a first offence, so that it doesn't become a habit for people.
Once it is a habit, it's probably too late...
Its a crime not a mistake.
Education unfortunately does not prevent people from doing stupid things or making such mistakes...
One is a person drinking and driving, knowing there is a much increased chance that they will kill someone in an accident.
The other is a terrorist who goes out of their house looking to kill themselves and as many people as possible.
What do you think about texting and driving or speaking on the phone while driving? Should they be hanged by the neck too until death, if they kill someone in an accident?
There are millions of people in Delhi who talk over the phone while driving and when they meet with any accident in due to their carelessness, how should they be treated? Should they be hanged till death. I am asking this question to all those who talk over the phone while driving. Here, one more question arises, if suppose any such accident take place by these common people, does media create hype of any such incident. Definitely, NO!!
The crux of Kian's story is that Kian's does understand that the incident was obviously unfortunate, and two innocent people died due to negligence of a drunk person. But at the same time Kian wants to draw your attention on on one very basic issue which is very common in all the metropolitan cites like Delhi and Mumbai where people use to talk over the phone while driving or even they do not wear seat belts. If these people sometime meet with the same incident how should they be treated by Media?
Of Course, there is law and it is the duty of the court to decide what went wrong and what punishment should be given to the guilty to meet with the justice.
You compare Texting and Drink and Drive...do you know why Drink and Drive is punishable...after drinking and that too excessive you lose your control and ability to Judge situation...does that happen by texting...I am not sure you are ignorant or wishful.....but I guess some "Class"ification is going on to save drunken people.....
Quote:distracteddriveraccidents.com/texting-driving-dangerous-drunk-driving/
You haven't met the accused and I assume you haven't the victims either....still your heart weeps so deeply for that drunkard and not for victim.....I am just wondering what may be the reason......now in Modern society we presume we don't differentiate
on Caste or Color....but it seems some of us do On "Class".....am I wrong here my "Human" friend?
When a lawyer in Mumbai was murdered by her building's watchman, tragic as it was, I didn't write a long column about that either, as the mainstream media is perfectly capable of doing it for LI to do so:
www.legallyindia.com/News/2012-mumbai-lawyer-murder-convict-gets-life-sentence
The overwhelming media narrative in this case has been about demonising Gadkar.
I wrote a criticism of that narrative, in a bid to inject a bid of reason and balance into the debate rather than the hang-her-high attitude that seems to be prevailing.
So you say media should not cover the case until the courts verdict is out as this may contribute to witch hunt and trial by media.
What does that leave media to do then?
But you're right, maybe that's too much to ask of our newspapers...
As usual it can be seen that media and social networking always manage to blow things out of proportion. we always seem to miss the big picture due to the low lying clouds. As you rightly mentioned this outrage will quickly be forgotten and replaced by another incident waiting to happen. All this is because of our inability to enforce existing rules. And moreover,i dont understand the need to enforce rules in the first place. shouldnt the fact that these rules exist be enough for us to refrain or have the scare of the consequences if caught driving after drinking. But no, we are well aware of our system operates and always find a way out. You can always plan an outing and not carry your car that day or you can always hire a driver for as low as 500 bucks for an unplanned sitting. but this call has to come from the concience of the individual. If he/she has no fear of the system, they will be confident that they can get away from anything and alchohol only raises your confidence levels(in the wrong way).
www.saddahaq.com/human-interest/harishsalve/does-the-law-apply-to-harish-salves-bentley-accident
www.legallyindia.com/201405144713/Bar-Bench-Litigation/man-dies-crashing-into-harish-salve-s-bentley-now-family-considers-suing-salve
Janhavi Gadkar was probably asked by a policeman/ policewoman why she had whiskey.
Now a person will drink whiskey for one of two reasons, either he/she is an alcoholic addicted to whiskey or he/she drinks it socially for fun.
Social drinking is for fun isn't it?
So her very innocuous statement becomes socially scandalous in the media because she is a woman and because good Indian women do not drink alcohol especially whiskey.
So the headlines become woman drinks whiskey for fun and kills two!
Since she is wealthy, young, attractive she becomes a bigger media story.
This will play itself out until another scandal comes along.
At the same time, the initial media reports tried to shield the Reliannce CFO she had drinks with, who escorted her to her car, while he took a cab himself. She was too drunk to walk on her own.
You obviously don't have a real point to make apart from meaningless tu tu mein mein.
- What is glaring is that she lied about meeting up with the Reliance CFO later. Was she pressured to do so? Otherwise why would she lie about this?
Also, she admits she drove rashly, why would she do that being a lawyer.
Yes she was drunk and that was independently established. But why admit in your statement that you drove rashly?
I don't think a person that drunk can be charged with that as there is no way she could have had the knowledge in her condition that her drunk driving could cause death.
At the moment that she exited the pub and got into her car, she was of unsound mind being drunk and could not have known at that time that her driving in that condition would be dangerous and could cause death. So there could not have been the requisite mens rea for culpable homicide under Section 299 IPC.
She should instead have been charged for causing death by negligence under Section 304A.
timesofindia.indiatimes.com/city/mumbai/Janhavis-bail-plea-Police-mechanically-invoke-culpable-homicide-section/articleshow/47674372.cms
Therefore her having admitted to rash driving in her statement might be used against her to try and stick the charge of culpable homicide.
I think Janhavi Gadkar's culpability is much less than Salman Khan's culpability. Gadkar was too drunk to make a sound decision on her own and the Reliance CFO she was with and staff at the pub did not make the right decision in letting her drive off. She could neither stand nor walk unaided.
Salman Khan on the other hand had at least two other people in his car both of whom could have driven instead of Salman if the latter was drunk. Salman Khan was also warned by his police guard that he was driving rashly.
If you look at the comments made on the LI articles on the Salman Khan drunk driving case, some of them were awful, saying things like Bhai rocks etc.
Records she was too drunk to walk unaided and Reliance CFO escorted her to her car.
Reading to this gibberish, I think Jahanvi was totally innocent and the police must not only release her ASAP but must also give her a written apology.
Instead let's arrest and prosecute each of the following for culpable homicide and lock them away for a decade
Roll-call of accused
====================
#1 Board members + CEO of Audi A.G. for making cars that can deal such crushing blows when colliding head-on
#2 Board members + CEO of Maruti Suzuki for making a weak car like the EECO taxi that cannot protect it's occupants from a head on collision with an Audi at 120 kmph
#3 Reliance CFO (for obvious reasons)
#4 Reliance CEO (for letting the CFO have drinks during a business meeting at night)
#5 Brihanmumbai Municipal Corporation for making such a good road that a car can do 120 kmph
#6 Mumbai Police for not putting up a nakabandi that would have reduced Jahanvi's speed.
#7 Board members + CEO of the liquor company that made the whisky Jahanvi drank.
#8 Finally, the two victims (deceased) for being idiotic enough to venture out in a taxi at a late hour when it is a known fact that the drunk party animals will be out in full force...........wait, can they be prosecuted for causing their own death ???
No one is or has ever argued that she is completely innocent (if all allegations are true), and if that's what you understood, you need to work on your reading comprehension.
But if legal discussions about mens rea, intent and criminal law are too complicated for you, maybe you're best off not commenting anymore...
For instance, I just got this message on Whatsapp from an unknown number:
It appears he was upset about the article. We talked it out and I explained that despite having sympathy for the victims, I thought that Gadkar deserved a fair trial, why it's important in a democratic society, etc.
I think we're friends now :)
Maybe my article just wasn't good enough and it contained too many things that a lawyer audience might agree with, but laypersons would take as insensitivity...
You did not defend Janhavi Gadkar or state that she should not be punished. Instead you wrote: "But if the events in the Gadkar case happened as they have been alleged, there certainly appears to be legal and moral culpability and the law should and hopefully will take its proper course."
You first sympathized with the victims.
But you cautioned against making Gadkar the subject of a hate campaign singling her out.
The two examples you gave of the hate directed against her, Barkha Dutt's tweet and the very silly Daily O article titled “these women who drink whisky for fun” are both good examples of hate.
Gadkari seems deeply apologetic about her mistake. Probably horrified. Yes she killed two people by a huge mistake and will pay for it, but how does that make Barkha tweet that. Yes the victims families might have grit and grace but why tweet that Gadkar has none and that somehow her being rich is responsible for that. She did not murder two people, she made a mistake and will pay for it.
The Daily O article demolishes Gadkar on the basis of an unsubstantiated statement attributed to Gadkar that she said "She'd done this before" and insisted on driving home. Now I think this statement was attributed to Gadkar by one of her colleagues at the hotel when Gadkar was still not very drunk. First this statement is unverified. Second Gadkar became much more drunk afterwards at the pub when she mixed beer with the whiskey.
It could be that the anti-Gadkar media tirade is directed by Reliance media managers to deflect attention from the CFO who in my opinion certainly has moral culpability if not legal. CCTV at the pub would show exactly how drunk Gadkar was at the end. Medical opinions could establish if she would be considered of sound mind given the alcohol content in her blood.
Someone that intoxicated could easily fall asleep at the wheel.
Media reports state that two cars followed her just before the accident, that might have further made her reckless given her condition.
This cracked me up. :)
Also I used to be a drunk driver back in the day , J 49 days, today I look back and I hate myself,what the media is doing s spreading awareness to all he Richie rich snobs , don't drink and drive your money will get you in a sh t hole.
yeah we have the lorry drivers drinking and killing people but understand they not schemers like salman khan or a possible law twister jhanvi, peace.
Stop arguing maty you ending up n a whirl pool of hate.
This has nothing to do with Janhavi's actions, which are inexcusable and not the subject of this comment.
Just shows what a sham media coverage has become. If this had happened to the CFO of a company in the U.S. or the UK, they would have been all over this, asking some pretty hard questions.
More generally, as others have said in their comments, if we are to deal with drink driving we must fix some responsibility on the people who allow others to drink and drive in this manner.
Do you always insist that a friend who you are drinking with must take a cab, and if they say "No, am gonna drive my own car back", how exactly are you gonna impose your insistence upon them? Are you really saying that if you failed to do so, it's somehow (at a moral level at least) your fault that your friend caused an accident? I don't know about that. People (even people who report to you at work) can be quite forceful with their views when they are drunk and the subject under discussion is their own ability to drive back in such a condition.
SImilarly, if you had been drinking with a friend from work and they subsequently drove back drunk and caused an accident and you heard about it the next morning, would you really rush to the Police and voluntarily tell them that you were the last person the Accused was drinking with? If your honest answer to that is yes, then I must say (based on my own limited experience with people) that you belong to an Elite Minority List on the morality scales. In most circumstances, normal people don't make the choice that could bring upon them a lot of inconvenience and reputational risk especially when the offence in question had nothing to do with them!
Just because he is CFO of Reliance (or of any other "Evil Corporate), you are trying to foist very high expectations of moral behaviour on him, almost as if his "moral offence" was even greater than Janhavi's! How is your approach any different or fairer than the sensationalism-driven, prejudiced and imbalanced reporting on Janhavi in the MSM that Kian has addressed in this article (which viewpoint, I again reiterate, I agree with)?
So here we have the Reliance CFO asking Gadkar to join him for drinks at around 11 pm at night. If she ended up so drunk at the end of the night so as to be unable to walk unaided (which news reports record) then certainly its not too much to expect that the Reliance CFO should have insisted that Gadkar take a cab or should have arranged for her to get home safely.
Your paragraph 2 which I reproduce below is all speculation. You imagine that the CFO asked Gadkar not to drive and she forcefully insisted that she would. The facts of what happened are not out yet.
"Do you always insist that a friend who you are drinking with must take a cab, and if they say "No, am gonna drive my own car back", how exactly are you gonna impose your insistence upon them? Are you really saying that if you failed to do so, it's somehow (at a moral level at least) your fault that your friend caused an accident? I don't know about that. People (even people who report to you at work) can be quite forceful with their views when they are drunk and the subject under discussion is their own ability to drive back in such a condition."
Also, I do not know the nature of the relationship between the CFO and Gadkar. Were they merely colleagues, friendly colleagues, or friends or more? There was a big difference between their ages and positions in the company.
What if something else happened at the car when the CFO escorted Gadkar? We can speculate on many scenarios without access to facts, CCTV or to statements of Gadkar and the CFO.
Also the CFO is in a position of authority vis-a-vis Gadkar due to their positions in the company. He must have heard that Gadkar had been arrested for killing two people in an accident after she left his company. He knew that he had information that was relevant to the crime committed. A CFO of a listed company is a very responsible position whose incumbent must inspire trust. Therefore the CFO certainly should have contacted the police on his own.
Also was the meeting between the CFO and Gadkar a "work" meeting or a "personal" meeting? Tee company's obligations towards getting Gadkar home safely would also depend upon this.
"Mr Agarwal in his statement claimed that their meeting was work related where they wanted to discuss issues pertaining to the company,” said the officer."
"At Irish House, Gadkar and Mr Agarwal drank around five pitchers of beer between themselves, working up a bill of nearly Rs 5,500. So drunk was Ms Gadkar after the second session that she fell while standing up to leave from her table at the pub when staffers rushed to her aid. Mr Agarwal however helped her to her car, a red Audi Q3."
Read more at:
economictimes.indiatimes.com/articleshow/47697456.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
"According to the statement provided by Gadkar to the police, she was drunk after a party and was so high on alcohol that she was unable to understand the road and drove through the wrong side of the Eastern Freeway, causing her Audi to ram into the taxi.The alcohol test conducted on the blood sample of Gadkar has revealed that he had 200mg of alcohol in 100ml of blood, which is six times more than the permissible limit of 30mg in 100ml."
This is very high alcohol content -
According to en.wikipedia.org/wiki/Blood_alcohol_content this would cause Nausea, vomiting, Emotional swings, Anger or sadness, Partial loss of understanding, Impaired sensations, Decreased libido, Possibility of stupor as behavior and Severe motor impairment, Loss of consciousness, Memory blackout as impairment.
I don't think a person with 200mg of alcohol in 100ml of blood would be considered mentally sound to be able to form any kind of intent.
See below. Gadkar was at 0.2 where the effects are "Feeling dazed, confused or otherwise disoriented. May need help to stand or walk. If you injure yourself you may not feel the pain. Some people experience nausea and vomiting at this level. The gag reflex is impaired and you can choke if you do vomit. Blackouts are likely at this level so you may not remember what has happened."
Legal impairment is at 0.08. It is illegal to drive at 0.08 in the US and Canada. In India it is illegal to drive at 0,03.
"The effects of alcohol intoxication are greatly influenced by individual variations among users. Some users may become intoxicated at a much lower Blood Alcohol Concentration (BAC) level than is shown.
0.02-0.03 BAC: No loss of coordination, slight euphoria and loss of shyness. Depressant effects are not apparent. Mildly relaxed and maybe a little lightheaded.
0.04-0.06 BAC: Feeling of well-being, relaxation, lower inhibitions, sensation of warmth. Euphoria. Some minor impairment of reasoning and memory, lowering of caution. Your behavior may become exaggerated and emotions intensified (Good emotions are better, bad emotions are worse)
0.07-0.09 BAC: Slight impairment of balance, speech, vision, reaction time, and hearing. Euphoria. Judgment and self-control are reduced, and caution, reason and memory are impaired, .08 is legally impaired and it is illegal to drive at this level. You will probably believe that you are functioning better than you really are.
0.10-0.125 BAC: Significant impairment of motor coordination and loss of good judgment. Speech may be slurred; balance, vision, reaction time and hearing will be impaired. Euphoria.
0.13-0.15 BAC: Gross motor impairment and lack of physical control. Blurred vision and major loss of balance. Euphoria is reduced and dysphoria (anxiety, restlessness) is beginning to appear. Judgment and perception are severely impaired.
0.16-0.19 BAC: Dysphoria predominates, nausea may appear. The drinker has the appearance of a "sloppy drunk."
0.20 BAC: Felling dazed, confused or otherwise disoriented. May need help to stand or walk. If you injure yourself you may not feel the pain. Some people experience nausea and vomiting at this level. The gag reflex is impaired and you can choke if you do vomit. Blackouts are likely at this level so you may not remember what has happened.
0.25 BAC: All mental, physical and sensory functions are severely impaired. Increased risk of asphyxiation from choking on vomit and of seriously injuring yourself by falls or other accidents.
0.30 BAC: STUPOR. You have little comprehension of where you are. You may pass out suddenly and be difficult to awaken.
0.35 BAC: Coma is possible. This is the level of surgical anesthesia.
0.40 BAC and up: Onset of coma, and possible death due to
respiratory arrest."
Seema Sapara (and also Kian)
What is the point of quoting all this? Is there any doubt about the effect of blood alcohol ?
One does not need to be a Chemistry major to know that alcohol impairs judgment and locomotion skills (at the least). Even small kids know that drinking causes hilarious after effects, portrayed time and again in Tintin, Asterix, Chacha Chaudhury and others. Forget driving, even walking and awareness can become so badly affected that some people make asses of themselves after a couple of drinks. Driving at night in a city is perilous as it is, even without alcohol so I cannot imagine what it would be after a few pegs.
That's why there is a law against it. A law which perhaps an uneducated driver may try to claim he did not know but which a VP of Reliance, aged 35 had no excuse for not knowing. Actually this is one of those few laws which I have found everyone to know, even taxi drivers will grumble about 'nasha pe chalana' (drunk driving) when they see party brats speed down city roads at 2 am.
There is simply no justification for what this female did. And it is pretty much the same as firing a loaded gun into a crowd (attracting S. 304, second part. What I say is not just a view, the supreme court and Bombay HC have blessed it in the Alastair Perriera case and Sallu bhai looks set to follow suit.
I am puzzled at the tone of this piece of moral hopscotch and can only put it down to an attempt by the author (and those who agree with him) to exorcise the ghosts of their own past. No sane person would conceive of remotely trying to shift the criminality of the act away from Jahanvi Gadkar.
She certainly cannot be held liable for culpable homicide not amounting to murder with a BAC level of 0.2. I even question whether she could have the requisite mens rea for Section 304A.
& I find it difficult to believe that Gadkar and the CFO had a work related discussion when during the meeting Gadkar's BAC levels must have varied between 0.1 to 0.2.
News reports state that Gadkar fell, couldn't walk unaided, she claims she does not remember anything after she reached the expressway (she had a blackout and memory loss) etc.
Most people posting above are talking of being responsible enough not to drive when their BAC levels were probably between 0.03 to 0.1 max. At 0.2 BAC you lose the ability to take that decision to be responsible and you are dependent upon others to take that decision for you.
All very unfortunate for the victims and for Janhavi Gadkar.
Your reply has just exposed what a pitifully ignorant lawyer you are. For all the big talk you make on these forums you're just like the rest - throwing a few superficial points around with poor reasoning and zero research.
You're trying to make out a case that Jahanvi Gadkar was out of her senses due to all that whisky she consumed - hence no culpability - yada yada. Somewhat like pleading an insanity defence.
Except DUI is vastly different from insanity. Insanity is insanity because it is not in the control of the sufferer. Do you think a ranchi inmate can help it when he or she goes psycho? (Or even Norman Bates from the reel Psycho (1960))?
I don't have the time to give you an introductory course on criminal law but here is what the Bombay High Court said in 2007 while upholding the conviction of a Mr Alistair Perreira (similarly accused of DUI and running over footpath dwellers)
"Getting drunk and under the influence of liquor using a big stick or other weapon for giving blow on the head of a person resulting in death, would obviously be an act done with knowledge that the act would or is likely to cause death. Merely because an automotive car or scooter is involved in the same process would not by itself take the offence outside the scope of Section 304 "
"In the present case, the court has to examine whether a person in drunken condition, rashly and negligently chooses to drive in an overcrowded car, was fully aware that (a) poor persons sleep on the footpath of Mumbai (b) it is prohibited in law to drive a vehicle in drunken condition (under influence of liquor) and (c) it is also prohibited in law to drive a vehicle beyond permissible speed limit."
"Even before the accused started driving the car he would be deemed to be aware of the law that it is an offence to drive a vehicle under the influence of liquor. In the present case the knowledge would be attributable to the accused as any person of common prudence would be deemed to have knowledge that he is not to drive the vehicle in drunken condition and that too at such high speed and in the manner as the accused was driving the vehicle."
"The very fact that he drove the car under the influence of liquor at a very high speed with loud music and making noise while driving are the pieces of evidence and attendant circumstances, which would attribute the knowledge to the accused that his act could produce fatal result of losing control over the car and could injure persons sleeping on the footpaths or even could cause their death."
Alistair Perriera was eventually convicted by the Bombay HC of culpable homicide not amounting to murder (due to act done with knowledge that it is likely to cause death) and sentenced to 3 years. You can easily read that judgment online.
I expect nothing less for dear hardworking, petite, softspoken, affectionate, friendly and kind Ms Jahanvi Gadkar, that star of a person, role model for millions and inspiration for would-be lawyers. An enhanced punishment of 7+ years would send the right message that this sort of criminal act will not be tolerated.
First let me clarify that I am not putting up a defence for Gadkar here. I was merely indulging in some exploratory musings on the factual and legal issues this matter raises.
You cite and quote from an SC decision that merely makes an observation that a drunk driver would be presumed to possess the knowledge that "his act could produce fatal result of losing control over the car and could injure persons sleeping on the footpaths or even could cause their death."
That's fine. That decision however does not consider the argument I have presented that the BAC of the accused would impact upon the mental capacity of that accused at the moment the accused took the decision to drive. And that in cases of very high BAC, issues of mental capacity of the accused may arise.
The argument I make was neither taken before that Bench and nor was it discussed or dismissed. Indeed the facts of that case might have been similar to the Salman Khan case where the BAC level was too low to claim mental incapacity.
I still point out that I am simply exploring (and certainly to an extent superficially since no one is paying me to do otherwise) the legal issues and am not giving a legal opinion here. As such I welcome engagement, discussion, dissent etc.
Loss of mental capacity due to high levels of alcohol intoxication is to a certain extent in the control of the drinker but the point I make is that once mental capacity is lost due to a high level of intoxication, what legal consequences should follow and what impact would such loss of mental capacity have on the legal requirement for mens rea in a criminal offence committed by a severely intoxicated person.
Now there might be cases where this issue has been discussed and the Court has ruled that the loss of actual mental capacity remains irrelevant, but the decision you cite clearly does not state this.
So I don't agree with you that I am pitifully ignorant or that I am merely "throwing a few superficial points around with poor reasoning and zero research". I am of course merely commenting on a news site. But my comments are certainly not as worthless as you declare. Some might actually appreciate them.
I found your comment though to be too self-righteous and too sure of itself. If I were Gadkar's defence counsel, I'd certainly explore along the lines of my musings.
If there is anything about the law that I have learnt, its that there is always an exception to be argued to any certainty.
Actually they do. As does this follow on post.
Do you know why your argument was never taken before that bench (or any other bench) ? Not just in India, but all over the world.
Because that logic is utterly ridiculous. A sensible (or reasonable) person would stop to think twice (or more) before starting any drink if they knew they had come in their car without a driver and had to drive back. It's not hard at all. I've done it a zillion times. You are welcome to do some proper research and show a single case in the last twenty years in the USA or the UK where a DUI vehicular homicide case has been let off on grounds of "insanity". The only person susceptible to insanity here is the lawyer who suggested that defence.
Done what you ask?
Done this - Declined a drink because I do not wish to tempt fate when I have a car parked outside and a home to get back to.
My self-righteousness on this issue comes from being very careful with my drinking habits from the day I started driving and sparing a thought for all those who might happen to be on the same road as I. As a pedestrian and also a passenger on Indian roads I do not think it is too much to ask other drivers to be equally careful.
So I looked at the Bombay High Court decision in Alistair Perriera. In that case, the accused actually denied that he was drunk. He did not claim diminished mental capacity due to severe intoxication and very high BAC say 0.2. The accused also denied negligence and claimed mechanical failure as the cause of the accident.
Also the accused's BAC was not properly measured but some reports say his blood alcohol level was twice the permitted limit, so it was probably around 0.06. Again a BAC of 0.06 is too low to claim mental impairment. So in Alistair Perriera the issue of mental impairment due to severe intoxication was neither raised, nor relevant nor decided.
The Bom HC merely held that in case of drunk driving, a person would be presumed to have knowledge that his act was dangerous and could cause death.
However note the following extracts from this decision which lend themselves to the interpretation that the knowledge ingredient in Sec 299 for culpable homicide is actual knowledge as deduced from the totality of circumstances and not a legal presumption. Further even if there were a legal presumption of knowledge in drunk driving cases, could not that be displaced by the positive establishment of mental impairment due to severe intoxication, say a BAC of 0.2.
" To establish knowledge as an ingredient of criminal offence, there has to be an affirmative or circumstantial evidence to bring home to the accused that he had knowledge of his acts. What a person of normal and ordinary prudence foresee by utilization of his sense directly, would be knowledge."
"Knowledge'is an awareness on the part of the person concerned indicating his state of mind."
"These two requirements i.e. " knowledge" and "reason to believe" have to be deduced from various circumstances in the case."
"A very important principle of law has been enunciated by the Supreme Court in the case of Jayprakash v. State (Delhi Administration) . The court accepted that intention and knowledge both are factors which have to be gathered from the facts and circumstances of each case and there cannot be a yardstick uniformly provided for application of such principle."
"But whether the intention is there or not is one of fact and not one of law."
"It can thus be seen that the 'knowledge'as contrasted with 'intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, 'intention'is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end."
"Knowledge'being of lesser degree has to depend considerably on attendant circumstances and awareness of a common man in relation to the acts and deeds immediately preceding or at the time of occurrence of the offence."
""Actual knowledge" stricto senso may not be the sine qua non of the ingredients of Section 304 Part(II) of IPC. 'Knowledge',as understood in its common parlance would have to be gathered from the evidence on record substantive or circumstantial, and the attendant circumstances thereto. While objectively analysing the evidence on record for gathering knowledge contemplated under this provisions, the court, inter alia, may have to examine the following aspects to which knowledge may relate to:
(a) The evidence and attendant circumstances in relation to an act or omission committed by the actor /offender prior to the actual occurrence of the incident;
(b) Whether the actor/offender could reasonably perceive the consequences of his acts, misdeeds or omission, examined from the point of view of `normal human conduct of a person of common prudence'; and"
" Knowledge is not a term to be construed in abstract. It must be given objective meaning keeping in view the facts and circumstances of a given case. Simplest test would be whether as a norm of normal behaviour the person can perceive by his senses the consequences of his acts, omissions or commission; where such human conduct brings results which are criminal offences, it would satisfy actus reus. Where a physical event which is prohibited by law is even preceded by offences, which is known to the offender, the knowledge can be gathered more affirmatively, as ultimately it is a question of fact dependent upon the evidence on record and the attendant circumstances."
[...]
Here is a disclosure. I work for a senior lawyer with a flourishing criminal practice. I was aware of the legal position on DUI and possible arguments long before I put fingers to keyboard.
[...]
The Alistair Perreira judgment is 43 pages and requires a careful reading. It places on record quite clearly, several times that the accused was found drunk and the offence of homicide while DUI was very much a case of culpable homicide not amounting to murder.
Anyway FWIW, this is what the court said:
"On facts it can hardly be believed that a person in drunken condition or under the influence of liquor, having 0.112% v/v alcohol in his blood driving a vehicle rashly and negligently with high speed and with high tape recorder sound, would not have knowledge that there is every likelihood of his meeting with an accident resulting in death or injury to others, particularly those sleeping on the footpaths. The knowledge of such facts can neither be far away from reality and, in any case, would squarely fall within the term of "knowledge" appearing in Section 304 Part(II). "
65. One of the main arguments raised on behalf of the accused was that the prosecution has no way proved that the accused was drunk or under influence of liquor. Even medical evidence in this regard has also not been proved in accordance with law. This argument is again without any merit.
[...]
LOL
I actually sat through many months of the Perriera hearings and I can tell you this...if he was daft enough to plead insanity, he'd have got a 10 year sentence instead of just 3.
Thanks for the innovative ideas. [...]
But Gadkar had 0.2 BAC which causes a dazed confused, disoriented state
Surely its not too absurd for her lawyers to attempt to argue that she should not be attributed knowledge for culpable homicide not amounting to murder and that she be tried under 304A.
The Bom HC in Perriera did not settle this issue and neither was this issue before the SC in Perriera.
Surely its worth a try.
Gadkar's lawyers are already arguing for 304A. Surely her 0.2 BAC is an additional supporting argument for them to do this?
You have still not read the Perriera judgment else you would not his blood alcohol was measured and found to be 0.l12 (it's mentioned several times in the order so I dunno how you missied it).
304A has been pleaded by DUI killers since time immemorial (and that used to succeed) but not anymore as the Perriera and Nanda judgments have proven. It's a settled issue. I would now advise a plea of guilty under 304 with request for mitigated sentence instead if 304A. The decks are now clear for prosecution under 304 part (ii) and in another ten years I'm sure they will be prosecuted under S. 300 for imminently dangerous acts.
The Periera judgement says 0.112% with no indication what was BAC. Is this 0.112 in ml or l / mg or gm?
I reproduce para 65 from the Bom HC judgement, no where does it say BAC of 0.112, instead it says "the blood contained 0.112 percent W/v of ethyl alcohol." that's not BAC unless we know more.
"One of the main arguments raised on behalf of the accused was that the prosecution has no way proved that the accused was drunk or under influence of liquor. Even medical evidence in this regard has also not been proved in accordance with law. This argument is again without any merit. The Investigating Officer (P.W.17) has clearly stated that she had taken the accused in custody, taken him to the hospital and his blood sample was taken by the doctor and sent for Chemical Analysis. Dr. Barve P.W.1 has also stated that he had taken the blood sample of the accused and found him in drunken condition. After the blood and urine samples were subjected to analysis, Exhibit 48, was the report received from the Director, Forensic Science Laboratory and Chemical Adviser to Government wherein it was stated that bottle with seal intact was received, contents of which showed 42% v/v of ethyl alcohol in water. It was not a medicinal/antiseptic/ toilet preparation, nor a flavouring material. Exhibit 49, the report of the Chemical Analyser of the analysis of blood sample of accused which was received in seal intact condition states that "the blood contained 0.112percent W/v of ethyl alcohol.". Common Exhibit 49 was given to these blood and urine test reports. The urine test result indicated that "the urine contained 0.056percent W/v of ethyl alcohol". This was the ocular and documentary evidence produced by the prosecution to show that the accused was drunk while driving the vehicle which met with an accident. In accordance with the provisions of Section 66(1)(b) of the Bombay Prohibition Act, 1949 if it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent, weight in volume, then he would be deemed to have committed offence, unless he proves otherwise. During the cross examination of the prosecution witnesses not even a suggestion was made at any point of time that the accused was not drunk or was not driving under influence of liquor."
News reports describe the Maharashtra Advocate General Ravi Kadam as having stated "Chemical analysis of his blood sample, which was not challenged by the defence, showed that alcohol quantity in Alistair's blood was twice the permitted limit." see www.rediff.com/news/2007/jul/03alis.htm?zcc=rl
That would mean a BAC of around 0.06 as the permitted limit is 0.03.
I responded to the rest of your comment at the end see comment no. 85.
Gadkar's BAC was 0.2. At that level, Gadkar could not have had the mental capacity to "decide" whether or not to drive drunk, i.e., she was mentally incapable of understanding the consequences of her decision to drive.
Another point, according to news reports Gadkar fractured an arm but might have used it when/ after she was extricated from her car. This would fit in with her BAC being 0.2 as that increases the pain threshold.
You think quoting all this rubbish will give some impression that Jahanvi Gadkar's action was akin to sleepwalking?
FYI here is what Kian Ganz's home country has to say about DUI causing death
"The fact that the offender was under the influence of drink or drugs is an inherent element of this offence. The guideline is based both on the level of alcohol or drug consumption and on the degree of carelessness.
The increase in sentence is more marked where there is an increase in the level of intoxication than were here is an increase in the degree of carelessness reflecting the 14 year imprisonment maximum for this offence compared with a 5 year maximum for causing death by careless or inconsiderate driving alone. "
-- source is Crown Prosecution Service website
www.cps.gov.uk/legal/s_to_u/sentencing_manual/death_by_careless_driving_under_the_influence/
The punishment in the UK for such offences is a minimum of 14 years BTW. Maybe Kian Ganz forgot to bring that up in this shameless defence of drunk driving. Mrs Gadkar should get the statutory maximum in India, given the fact that she was a well-educated lawyer and expected to know the law.
Take the infamous R v Lipman (1970) case where Lipman killed a girl while hallucinating that snakes were attacking him, having taken LSD. It was held that he couldn't be guilty of murder, because due to his intoxication he was incapable of having the necessary intent to kill (because he literally didn't know that he was murdering someone).
However, manslaughter would stick, because recklessness is sufficient to prove manslaughter (rather than specific intent).
Here's a good summary of intoxication and intent under English common law.
e-lawresources.co.uk/Intoxication.php
However, drink driving is a completely different category, since there's a public interest in discouraging people from drinking and driving and then claiming drunkenness as a defence to the killing, hence the almost strict liability provision under UK law.
But I think what Seema is arguing is that the amount of drunkenness can make a difference in whether the charge is culpable homicide (requiring recklessness), rather than the lesser charge of driving rashly (requiring only negligence).
I'm not an Indian criminal law expert, and this is not what I covered in the article, but would be interesting to get some basic legal principles on drink driving in India out.
Are the only offences committed by someone killing someone while drink driving, a) driving under the influence, and b) culpable homicide, or rashly driving & killing?
Given that causing death by drunk driving can either fall under culpable homicide not amounting to murder - requiring knowledge and under death by negligence or rash driving, it seems we do not really have a strict liability principle in the statute at least. If there was, then there would be no reason to create two separate offences of differing culpability.
Has the Supreme Court ruled on this?
The Bom HC decision in Alister Anthony Pareira does not really settle this issue.
Therefore is this issue still technically open under Indian law?
Kian, surely you're not trying to obfuscate the issue?
Let me ask you a simple question assuming you are qualified as a lwyer in the U.K.
Can a person who drinks say 10 pegs of Glenfidditch and then drives and then kills someone after losing control of his vehicle expect to be let off and remanded to a mental institution on the plea of insanity? Will such a plea be seriously entertained by an English court? Are the chances for such an accused good?
Yes or No ?
Quote:I assume you're familiar that strict liability means that you won't be let off, irrespective of your intent or level of intoxication. But that's because drinking and driving is in a special category under UK law.
It's been ages since I've done my criminal law, but if I remember rightly, you might only be able to escape liability if you avail of another defence, such as involuntary intoxication or self-defence.
Anything still unclear in my earlier comment?
"Ages since I read criminal law..."
Why so hesitant in giving a straight answer? this is not a cross examination and your knowledge is not on trial here. I read somewhere that Kian Ganz is a lawyer from UK so I thought he can clarify whether this "defence" of insanity is valid there. Surely if we cannot take a cue from the U.K., where will we take our cues from? :)
Anyway I'll take that as a yes.
Point proved.
Like I said, I'm not an expert, all I'm sharing is vaguely remembered criminal law from university and the jurisprudence on intoxication in general is quite complicated, so a qualification to my comments seems sensible.
"If you wanna drive drunk, make sure you are really so drunk that you cannot be held responsible for what you do"?
Please enlighten.
In the US, regular enforcement and tests on drivers ensure that persons driving drunk are strictly penalized as a deterrent. The measures include suspension of licence, restricted licences, imprisonment, mandatory installation of ignition interlock devices, mandatory counselling, alcohol treatment, attendance at an alcohol highway safety school, and compliance with all drug and alcohol treatment requirements, etc. These penalties apply in cases of drunk driving even when there is no accident.
Compare this to the fine for drunk driving in India if you are ever caught. The other Mumbai lady in the news this week paid a fine of Rs. 2000.
See www.nhtsa.gov/people/injury/research/809-050pdf.pdf
"The relative risk of receiving a fatal injury in a single vehicle crash increases steadily with increasing driver BAC for both males and females in every age group with one exception (see Figure 1 and Table 6.1). Among all male and female drivers, except those in the 16-20 group, the relative risk of receiving a fatal injury is lower for drivers with a positive BAC under 0.02% than for drivers with 0.0% BAC. Remarkably, however, for the 16-20 age group, the comparable relative risk was substantially increased even at this low positive BAC, by 55% among males, and by 35% among females. Looking at relative risk across the six age and gender groups, we find that at a BAC of 0.035%, it was elevated by a factor between 2.6 and 4.6, at a BAC of 0.065%, by a factor between 5.8 and 17.3, at a BAC of 0.09%, by a factor between 11.4 and 52, at a BAC of 0.125%, by a factor between 29.3 and 240.9, and at a BAC of
0.220%, by a factor between 382 and 15,560."
At a BAC of around 0.2, the risk of a fatal injury in a single vehicle crash increases by anyrhing between 382 to 15,560%.
Janhavi Gadkar endangered her own life as well. The only reason she survived was because she was driving an Audi with airbags and the other car was an easily crushable Omni van.
This is a very settled issue.
Voluntary intoxication is not a defence against criminal charges. This is so settled that in some states of the USA this defence has not been used in over thirty years.
As the Supreme Court and Bombay HC have said, this is not a defence in India as well.
A second year law student who comes up with this 'defence' can be commended for originality.
A lawyer with some years of practice [should not].
Does Indian law have strict liability for causing death due to drunk driving. If yes, then why are there two separate offences based upon knowledge or negligence.
Where has the Indian Supreme Court ruled on this?
Your argument is valid, but it's not fair to challenge another's capability. She is entitled to an opinion as much as you and I are. Even defence lawyers put up silly arguments as the last resort.
Thanks for sharing the legal provisions around such cases. I found this thread more insightful than many other websites where emotions of lay people run high.
Sorry if I was harsh to her. I know defence lawyers put up silly arguments but there us a difference between silly arguments and arguments that have been tried and are now discarded from criminal jurisprudence. Maye Jahanvi's lawyers can argue that she had a mysterious driver who fled the scene ... or that her drink was spiked. That's silly but original. But to say she was insane because she drank 10 pegs is not silly, its stupid.
"OK, maybe Indian criminal lawyers can shed some light on these questions.
Is there a strict liability principle for causing death or injury due to drunk driving in India that does not depend upon the state of mind (intent, knowledge or negligence) of the driver?
Does Indian law make a distinction between general intent and specific intent crimes when it comes to the voluntary intoxication defence? Please cite the relevant SC decisions.
Is culpable homicide not amounting to murder a specific intent crime as opposed to a general intent crime? What about negligently causing death under 304A?
What does the current Indian law state on how to determine whether a case of causing death due to drunk driving will attract culpable homicide not amounting to murder or negligently causing death under 304A? If this choice depends upon facts of the case, then what kind of facts make a difference? Do these facts concern the state of mind of the accused? Will the intoxication level of the accused and diminished mental capacity due to severe intoxication form part of such relevant facts?
Has the Bombay High Court in Alister Anthony Pareira answered the above questions? Please quote the relevant extracts. I don't think it has.
I have one more theoretical question.
What if Gadkar's severe intoxication at 0.2 BAC made it impossible for her to move from her seat at the pub to her seat at the car unaided. What if Gadkar could physically not have sat in her car and driven off in that condition if pub staff and/or the CFO had not helped her? Would this be relevant for her culpability in any way. The crime would not have been committed without the actus reus of the CFO who helped Gadkar to and into her car. What then? "
But there is the question of whether she will be charged with the 2-year-maximum jail term causing death by rash driving, or the 10-year maximum culpable homicide charge.
In fact, that is exactly what her defence lawyer has been trying to argue in the bail plea, and what any criminal lawyer would try to argue in a trial, presumably.
See here:
www.legallyindia.com/Bar-Bench-Litigation/janhavi-gadkar-bail-plea-deferred-2-days-as-victim-s-daughter-files-ia
If we can't argue about theoretical points of law on a website about lawyers, then where should this be argued?
There is no doubt on the issue. The SC and the Bombay HC have held that such an offence amounts to culpable homicide not amounting to murder under S. 304 second part (and not 304A), punishable by a term upto ten years in jail. Alistair Perriera was convicted under this provision as has Salman Khan. Expect more to come in the days ahead.
I shall pray earnestly that this lady (Jahanvi, not Sapra) gets the maximum sentence. IF she does not deserve it, I dont know who does. We may as well repeal the IPC.
I.e., in a theoretical scenario where someone is so drunk that they're incapable of the requisite mens rea of recklessness, how is that dealt with by law?
Does the law presume that the original act of getting blind drunk while knowing there's a car one has to drive reckless? I think in some jurisdictions the very first drink is presumed to be the reckless act.
I agree that for policy reasons there needs to be liability, but I'm trying to figure out how this fits into existing criminal law in the absence of a specific statute dealing with causing death by drink driving.
Ordering and consuming that particular drink which takes you above the legal limit for driving, though not an actus reus by itself - is the point at which mens rea can first begun to be attributed to the accused. In my view, there are two key mens rea questions to ask here:
1. Can the accused reasonably be expected to know that the consumption of that particular drink is likely to take him/her above thelegal alcohol limit? That is the first question to be asked to determine the "commencement" of mens rea. But this is not a conclusive question in itself to be able to establish mens rea - because, a defence lawyer could still argue that it has not been established that at THAT point in time, the accused had an intent to drive while still being at BAC level above permissible limits.
2. Therefore, the second mens rea question to ask would be - Did the accused know or can the accused be reasonably be expected to know at the point of entering his/her car that the act of driving a car while his/her BAC was above legal limits was not only a criminal act in itself (under the Motor Vehicles Act, carrying prison term and revocation of licence as possible punishment) but also an extremely dangerous one which could cause grievous hurt or death to people (including himself/herself)?
If the answers to both the above mens rea questions is a YES, then the ingredients for an offence requiring recklessness (say, 304 second part) have clearly been satisfied. How resoundingly the prosecution is able to answer the above questions in the affirmative will have a bearing on the sentencing, of course, and that is a matter of evidence to show mitigating or exacerbating factors.
Now, the only question left to establish is whether the accused can avail of any exemptions from the liability for recklessness. Can being under the influence of alcohol by itself be a valid defines to an offence of recklessness causing death? In my view, probably not. Especially when one views the fact that drunken driving is a strict liability offence under the MV Act and carries a possible prison term as a punishment. But the alcohol factor, combined with other circumstances, could perhaps, be used as a good defence strategy. Therefore, if the defence is able to establish CHRONIC ALCOHOLISM (as opposed to merely "Hey, I was just totally totally drunk THAT night and had no ability THAT night to make the right decisions), then it could make for a good defence. The idea is to be able to argue that the accused is a CHRONIC alcoholic who is INHERENTLY INCAPABLE of taking the decision to not drink alcohol beyond permissible limits. This is a matter of medical evidence. The only other scenario as I see it, where the alcohol factor can be a defence is if the defence is able to establish INVOLUNTARY/FORCED CONSUMPTION of huge amounts of alcohol.
Also, other usual defences like GSP, for example, may not be arguable here for a "recklessness" offence. In my view, GSP has been specifically allowed as a defence for the offence of murder because the offence of murder requires the highest form of mens rea (intent to kill) to be established beyond reasonable doubt, and also because the punishment for murder is death or life......so there was a need felt to provide a GSP type defence. The same yardstick may not work for recklessness offences because the level of culpability or mens rea required to constitute these offences is significantly lower than for murder. But factors pointing to GSP or similar circumstances could surely be used as strong mitigating factors by the defence wrt sentencing.
You earlier claimed that I did not read your posts. My turn to do the same. Please read the quotations from the judgment in my earlier post. The court has held that DUI death = doing a dangerous act with knowledge that it is likely to cause death, therefore culpable homicide.
Is there a strict liability principle for causing death or injury due to drunk driving in India that does not depend upon the state of mind (intent, knowledge or negligence) of the driver?
Does Indian law make a distinction between general intent and specific intent crimes when it comes to the voluntary intoxication defence? Please cite the relevant SC decisions.
Is culpable homicide not amounting to murder a specific intent crime as opposed to a general intent crime? What about negligently causing death under 304A?
What does the current Indian law state on how to determine whether a case of causing death due to drunk driving will attract culpable homicide not amounting to murder or negligently causing death under 304A? If this choice depends upon facts of the case, then what kind of facts make a difference? Do these facts concern the state of mind of the accused? Will the intoxication level of the accused and diminished mental capacity due to severe intoxication form part of such relevant facts?
Has the Bombay High Court in Alister Anthony Pareira answered the above questions? Please quote the relevant extracts. I don't think it has.
I have one more theoretical question.
What if Gadkar's severe intoxication at 0.2 BAC made it impossible for her to move from her seat at the pub to her seat at the car unaided. What if Gadkar could physically not have sat in her car and driven off in that condition if pub staff and/or the CFO had not helped her? Would this be relevant for her culpability in any way. The crime would not have been committed without the actus reus of the CFO who helped Gadkar to and into her car. What then?
"304A has been pleaded by DUI killers since time immemorial (and that used to succeed) but not anymore as the Perriera and Nanda judgments have proven. It's a settled issue. I would now advise a plea of guilty under 304 with request for mitigated sentence instead if 304A. The decks are now clear for prosecution under 304 part (ii) and in another ten years I'm sure they will be prosecuted under S. 300 for imminently dangerous acts."
So what this person is actually contending is that until the Periera decision, death by DUI cases used to be treated as 304A in some cases, but that after the Periera decision, all death by DUI cases will be culpable homicide not amounting to murder.
So essentially this means is that the Periera decision modified Indian law on this issue? I would respond that there can be no judicial legislation in criminal law and that if as a policy matter, the Indian law on death by DUI needs to be made more stringent, that requires Parliamentary intervention and legislation.
Also, my reading of the Periera Bom HC and SC decisions do not convince me that after Periera it is no longer possible to argue for 304A in death by DUI.
See my comment at 84 again.
One person died after she hit an auto and some others were injured. This was a BMW case.
epaper.timesofindia.com/Default/Layout/Includes/MIRROR/ArtWin.asp?From=Archive&Source=Page&Skin=MIRROR&BaseHref=MMIR%2F2013%2F02%2F12&ViewMode=HTML&PageLabel=1&EntityId=Ar00100&AppName=1
Isn't there something wrong here in how the police relied upon Periera to charge her with culpable homicide not amounting to murder? Unless there were other facts that could justify a charge under 299 + 304 II instead of what they first charged her with – 304A ?
An NRI Nooriya killed two persons (one a policeman) while driving drunk. She was convicted under 304 II for culpable homicide not amounting to murder and sentenced to 5 years rigorous imprisonment.
The news report states " The court relied upon the testimony of police inspector Vijayalaxmi Hiremath, who conducted the breath analyser examination. The result revealed a lot of alcohol content in Nooriya’s bloodstream, as much as 457 mg per 100 ml."
So her BAC would be 0.457, more than double even that of Gadkar. The defence claimed that at this high a BAC, a person would be rendered unconscious.
The Court response apparently was "The court rejected the Defence’s contention that at this level a person would become unconscious. Reasoning that alcohol tolerance levels varied from person to person, judge Bohari remarked, “The accused is holding a US passport. It appears she was habituated to consuming alcoholic beverages. Cigars were also seized from her bedroom.”
Actually at a BAC of 0.457, a person would be close to death. See the effects of different BAC levels I posted above. A 0.4 BAC would result in "Onset of coma, and possible death due to respiratory arrest."
What is curious is that the news report states that the BAC estimate of 0.457 was based upon a breath analyzer test. No blood test is mentioned.
There is something wrong about this case.
The news report also states "Referring to the high-profile 1999 BMW hit-and-run case, in which businessman Sanjeev Nanda was convicted, and the Alistair Pereira case, the court pointed out that the apex court had ruled that such cases should fall under the offence of Section 304 (II)."
Once again the sessions judge relied upon the SC to rule that such a case would be triable under 304 II and not 304A. I again state that I find no basis in the Bom HC and SC Pariera decisions to conclude that henceforth all death by DUI cases automatically fall under 304 II irrespective of facts. Judges cannot rewrite criminal law.
This is not to state that the Nooriya case was not a fit case for 304 II. I don't know enough facts of the Nooriya case and haven't read the judgments to comment on this.
Seema Sapra,
[...]
you can still read the trial court judgment here www.scribd.com/doc/126143294/Nooriya-Haveliwala-Hit-and-Run-Case-Judgement-Mumbai-NDPS-Court-Judgement where it states clearly that her blood tests during medical examination after the crime indicated 0.169% BH level. The judge himself has found that the breath analyser test was at fault so I'm sorry to burst your bubble.
Btw there is nothing mysterious about a breath analyser test giving BAC readings. It is an estimate based on alcohol metabolates in the breath and the voltage they give rise to. Some complicated stuff for sure. It's an indirect estimation that plenty of countries use.
What does this prove?
That it's a good idea to read court judgments and not hindu.com for framing views on criminal law.
I also wish I could read the part of your comment that Kian censored :)
I further wish I could identify the real you behind your anonymous mask.
This whole process has been fun and educative for me. Thanks for making me read Periera too, I wouldn't have but for your taunts.
Happy to hear that. On a serious note you have to really research more about this stuff before publishing a view. It is a coincidence that this happened to be my area of practice.
Legal arguments aside, I have witnessed first hand the terror and mayhem that reckless drivers and drunk drivers can cause. Lives are snuffed out, youngsters are maimed forever, careers are cut short. There is simply no bloody excuse for people to drink and drive. None whatsoever. Today it is Mohd Salim Saboowala and Mohd Hussain Sayaed RIP. Tomorrow it could be your kids, partner or your parents - unless more examples are made of such perps and the fear of god (and a long jail sentence) instilled in these criminals.
There needs to be a holistic effort at improving the entire system, from education, to enforcement by police, to trials and sentencing by the courts.
Just making an example out of one or two when the media is paying attention and decides the perp is newsworthy, won't change a jot other than making a handful of middle-class types not drunk drive for a few weeks until they forget again...
Anyway, this thread has been very interesting and insightful (other than occasional bit of ad hominem abuse), so let's close it for now... :)
"Mumbai: A court on Friday rejected the bail application moved by 35-year-old corporate lawyer Jahnavi Gadkar who is accused of mowing down two persons in Mumbai on 10 June under the influence of alcohol.
"The application is rejected," Magistrate Richa Khedkar said in her order while extending Gadkar's judicial custody till July 10."
Questions:
1. How is Gadkar more likely to tamper with evidence than our favourite superstar who was granted bail immediately on the day of the accident? It may be noted that he was never placed in police/judicial custody for a day, while this lady whose offence is similar, is not granted bail.
2.A senior lawyer was explaining the legal provisions in the context of Salman's bail acceptance in 2 minutes by HC following his conviction/sentencing by lower court.
"Bail is the norm, jail is exception".
Was this provision only applicable to Salman, and will not apply to Janhavi?
3.How much money, power, influence is required to actually make the law work for you? Clearly, gadkar has some of that, but is unable to secure bail.
4.At the moment, Gadkar is an accused. Salman is a convict. Isn't grant of bail to a convict supposed to be a bigger deal than that to an accused? If yes, why does the fround reality differ?
I think we are no different from the right wing white population of USA, who accuse black and brown people of terrorism for a crime and when white people commit the same crime, everyone is asked to hold back their reins and analyze issues like psychological problems.
Media is meant to publish "facts" not publish a personal opinion / statement of condemnation so as to prejudice against an individual. They are a self proclaimed pillar of accountability and need to be taught where they are to draw the line!
again, everybody who is reading this article with even an inch of rationality and logic, would understand that the death of innocent people is not being undermined, what is being said is that let the rule of law prevail!
making such lucid and loose comments (especially the disguised and coward commentator "Guest") as have been done by some readers only establishes their faith in fabricated information and media publications against the dictate of the legal system.
very well said COMMON MAN! to add Barkha Dutt, Aurunab Goswamy, Karan Thapar etc are all anchors paid lots of money to talk rubbish and sell news because everybody is in the business of making money!
suddenly its time for these hypocrites to take on somebody's cause by defaming another because she has made decent money through hard work. "Poor rich girl", thats just too low Barkha, especially for your standards! you are an award winning journalist, get your wit together PLEASE!
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