V.R. Krishna Iyer,The Hindu Nov 14,2007
Jawaharlal Nehru was the first and foremost Prime Minister of India. He brought brave new Bharat international stature and pre-eminence in the non-aligned movement. He and the Indian National Congress of which he was president, stood for swaraj, swadeshi, and a socialistic pattern of society. The Planning Commission was set up with the creative-dynamic objective of shaping a revolutionary transformation with an egalitarian vision and strategy. Prime Minister Indira Gandhi, with a humanist drive and socialist vision, gave more economic teeth and political pragmatism to the progressive social justice pledge. She abolished the privy purses of the profusion of princes, nationalised leading private banks and other key enterprises and, most important, amended the Constitution to declare the Republic to be socialist, secular and democratic.
Those who dismiss, denigrate or disregard the socialist element, with its egalitarian and agrarian focus, betray Gandhi, Nehru and Indira. Those who treat the key promises in the Preamble to the Constitution — which is a fundamental factor in the basic structure of the polity — with cynical contempt, with feelings of dollar domination, rupee devaluation, and the submissive illusion that our world is beholding a decadence of socialism and an escalation of White House supremacy and occupation by multinational corporations, are guilty of the same kind of betrayal. The Congress has jettisoned its swaraj and soul, and serendipitously found inspiration in U.S. Inc. Having assumed office by taking an oath of allegiance to the socialist, secular, democratic Constitution, anyone who commits colonially conditioned violation of these values cannot honestly continue in offices of state power. How can they observe November 14 in the name of Nehru unless they proclaim with statesmanly integrity that they stand by the Preamble which is paramount and adhere to the socialistic dimension of government inscribed therein?
The Left, which runs a few State governments and supports the Union government and ensures its survival, must not submit to the hidden agenda of neo-capitalist rule, with dependencia syndrome, if any moral principles govern their ideology and politics. Exotic pressures, swadeshi-allergic imports and luxury investments using the trans-Atlantic mantra of globalisation, liberalisation and privatisation represent a dubiously democratic elite mafiacracy. Socialism, under the present establishment, is suffering a Seppuku pathology. “The purpose of development should not be to develop things but to develop man.” (The Cocoyoc Declaration, 1974). If distorted it is a disastrous slogan, with land-grab freebooters robbing the poor into homeless slavery and the rich lawlessly exhibiting class ‘affluenza’. We have two Bharats, one ruling the other with the aid of state power.
Such is the horror: contemporary anti-socialist, para-colonial society coalition administrations which boast of ersatz per capita income are blinking at the slums and the petty peasantry. This is silent terrorism, tacit debunking of humanism. This grave situation is defended de facto by a strange Left stance which formally opposes a pro-U.S. nuclear deal but actually sustains the same Cabinet by ensuring its continuance — which amounts to a riddle wrapped in a mystery. What an inconvenient truth. This is the fate of our socialistic Constitution.
U.S. nuclear big business is lobbying to make India a quasi-colony — which is an inconvenient truth that our sovereign executive hides. Why be a nuclear mendicant before the unipolar mega-power? Nehru, Indira or Morarji would never have succumbed to this imperial deal. We have, beyond doubt, wind power, solar power, hydro-power, earth heat power, wave power — if only we have the will to use globally available technology. But do we have the do-or-die spirit of swaraj?
Now comes another mega-mendacious observance. November 14, we are told by the Central government, is Children’s Day. But in reality those who run the Republic have scant regard for the Indian child, the celebration of Nehru’s birthday notwithstanding. Gabriela Mistral, a Nobel prize winner, wrote: “We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait, the child cannot. To him we cannot answer tomorrow. His name is today.”
Read Maria Montessori: “Humanity shows itself in all its intellectual splendour during this tender age as the sun shows itself at the dawn, and the flower in the first unfolding, of the petals; and we must respect religiously, reverently, these first indications of individuality.”
To rob a generation of tender wonders of the right to rise to their mental, moral height, to unfold their flowering of faculties and to crib their personality, is societal criminality and culpable desertification of fertile human resources.
The Supreme Court, in M.C. Mehta v. State of Tamil Nadu, dwelt upon the obligation of state and society towards the children of India.
Here comes the poignant pertinence of the noble U.N. Convention on the Rights of the Child. In Mehta, the court recalled the commitment that India made to the world community by acceding to the Convention on the Rights of the Child (1989). The Convention covers the full personality of the child in every dimension. Acceding to the instrument represented a reinforcement of the tryst of the Republic with the children of India which has to be redeemed. The girl child faces everything from foeticide to ‘sati-cide’ to ‘dowry-cide’ to ‘rapicide’.
India has come under international censure, more so because even poorer African countries have done better by children than the Socialist Republic of India where the little child is still made to work on crackers and carpets. Every match box or cracker, every bangle, every brass-ware piece, every hand-made carpet or polished precious stone has on it a streak of innocent blood and the tormented tears of some child forced to slave.
The Central government has not made any comprehensive legislation to implement the U.N. Convention and save the juvenile victim. This tragic indifference induced UNICEF to set up a committee of which this writer was the Chairman, and many distinguished persons including Margaret Alva and Justice A.M. Ahmadi were members, to consider how best to give effect to the Convention on the Rights of the Child. We drafted a regular Bill doing justice to the Convention and presented it to Prime Minister Atal Bihari Vajpayee. He praised the draft and agreed to bring it before Parliament. His term expired and the Congress came to power. Years have passed since, many a Children’s Day has passed, and now another November 14 has come.
The Union Government has aggravated the number of street children, allowed the escalation of child illiteracy by making lower kindergarten and upper kindergarten so expensive as to keep poor children out, and blinked culpably at the growing sexual abuse of juveniles.
A code for child rights is overdue. The tragedy of India is that there is no more Nehru, no more child rights, no more constitutional duty to enact a “paedo-code” to go by the U.N. Convention of which India is a signatory.
Wednesday, November 14, 2007
Monday, October 29, 2007
Contempt of court and the truth
The contest is between truth and its suppression. The choice then is between the plea of truth to expose judicial misconduct and the attempt to stifle such publication by the use of the contempt power.
In 2002, there were adverse comments widely reported in the print media in Karnataka regarding the private behaviour of some sitting judges of the High Court. The High Court suo motu commenced contempt proceedings against several publications for scandalising the Court and lowering its authority. The matter reached the Supreme Court and an agonised Chief Justice Khare while criticising the media for not disclosing their sources stated that “I will reward the media if they come out with the truth”… “I personally believe that truth should be a defence in a contempt case.”
Broadly, criminal contempt means either scandalising the Court or prejudicing a fair trial or interference with the administration of justice.
In the “Mid-day” case, a bench of the Delhi High Court without considering the defence of truth has imposed a severe sentence of four months imprisonment on the media for scandalising the Court. The case is now pending in the Supreme Court and raises far-reaching questions of public law.
The law as laid down by the Supreme Court following earlier cases was that justification or truth was no defence against summary proceedings for contempt when words were used which scandalised the Court or lowered its authority.
Parliament has now intervened and radically changed the law by Act 6 of 2006 by amending Section 13 of the Contempt of Courts Act, 1971 which states — “Notwithstanding anything contained in any law for the time being in force ... (b) the court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”
The Statement of Objects and Reasons to the Bill states that the amendment “would introduce fairness in procedure and meet the requirements of Art. 21 of the Constitution.”
When the provisions of the Bill were discussed in the Lok Sabha, Law Minister H.R. Bharadwaj said “Suppose, there is a corrupt judge and he is doing corruption within your sight, are you not entitled to say that what you are saying is true? Truth should prevail. That is also in public interest.”
The National Commission to Review the Working of the Constitution (NCRWC) headed by the distinguished former Chief Justice of India, M.N. Venkatachaliah, in its report stated “Judicial decisions have been interpreted to mean that the law as it now stands, even truth cannot be pleaded as a defence to a charge of contempt of court. This is not a satisfactory state of law. … A total embargo on truth as justification may be termed as an unreasonable restriction. It would, indeed, be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto ‘Satyameva Jayate’ in the High Courts and ‘Yatho dharmas tatho jaya’ in the Supreme Court, the courts could rule out the defence of justification by truth. The Commission is of the view that the law in this area requires an appropriate change.”
Chief Justice E.S. Venkataramiah, whose judgments on press freedom are liberal and well known — gave an interview to journalist Kuldip Nayar on the eve of his retirement. He stated “the judiciary in India has deteriorated in its standards because such judges appointed as are willing to be ‘influenced’ by lavish parties and whisky bottles.” … “in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyers’ house or a foreign embassy.” The columnist further reported that “Chief Justice Venkataramiah reiterated that close relations of judges be debarred from practicing in the same High Court.”
At the instance of a leading advocate, a petition was filed against Justice Venkataramiah bringing this interview to the notice of the Nagpur Bench of the Bombay High Court for instituting contempt proceedings against him for scandalising the entire judiciary. The Division Bench observed that the entire interview appeared to have been given with an idea to improve the judiciary and it was not a fit case where suo motu action was called for and dismissed the petition on merit.
International standards and laws of other democracies would be informative and enable us to arrive at the right standards. Professor Michael Addo of the University of Exeter has collected the views of many European experts in “Freedom of Expression and the Criticism of Judges.”
In European democracies such as Germany, France, Belgium, Austria, Italy, there is no power to commit for contempt for scandalising the court. The judge has to file a criminal complaint or institute an action for libel. Summary sanctions can be imposed only for misbehaviour during court proceedings.
In Belgium, the media have been very critical of the functioning of the administration of justice and have strongly criticised individual judges. This tension between the press and the judiciary led to a seminal pronouncement of the ECHR (European Court of Human Rights). Leo De Haes and Hugo Gijsels were editor and journalist of a weekly magazine Humo. They published five articles in which they criticised judges of the Antwerp Court of Appeal in virulent terms for having awarded custody of children to their father although there were serious allegations against him of incest and abuse of children. The three judges and the Advocate-General instituted proceedings against Haes and Gijsels seeking compensation for damage caused by the defamatory articles. The Tribunal of first instance held against the journalists and the same was affirmed by the Brussels Court of Appeal and on further appeal by the Court of Cassation. The journalists applied to the ECHR and succeeded. It was held that though courts had to enjoy public confidence and judges had to be protected against destructive attacks that were unfounded, the articles contained detailed information based on thorough research, and the press had a duty to impart information and ideas of public interest and the public had a right to receive them It was held that there was a breach of Article 10 of the European Human Rights Convention which guaranteed freedom of speech and expression and there was also a breach of Article 6(1) (fairness of trial) because the Tribunal refused to study the reports of professors relied upon by the journalists. The journalists were awarded damages and costs of over Francs 964000 against the State. The case shows that there is no summary right of committal for contempt and the judges adopted proceedings for libel which ultimately failed.
Professor Addo concludes in relation to Art. 10 of the European Convention of Human Rights that although all countries in Europe had an offence relating to the criticism of judges on their books only a few continue to punish for this offence and there is an emerging common European standard.
In the U.K., the offence of scandalising the court has become obsolete. The judiciary was vigorously criticised by the English press in the Spy Catcher case. Peter Wright a former intelligence officer wrote his memoirs but the Court of Appeal injuncted the publication of the book in England. The House of Lords, by a majority of three against two confirmed the interim injunction and enlarged it. The Times of London came out with a blistering editorial which said: “Yesterday morning the law looked simply to be an ass. Those who regretted this fact were waiting with quiet confidence for the Law Lords to do something about it . . . But yesterday afternoon the law was still an ass ... In the hands [of] Lords Templeman, Ackner and Brandon (the majority who ruled for the gag order) it had become unpredictable and wild seemingly responsive only to autocratic whims.”
The Daily Mirror came out with a front page caption “You Fools” and published the photographs of Lords Templeman, Ackner, and Brandon upside down.
In the United States, contempt power is used against the press and publication only if there is a clear imminent and present danger to the disposal of a pending case. Criticism however virulent or scandalous after final disposal of the proceedings will not be considered as contempt. The U.S. Supreme Court observed — “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste on all public institutions ... And an enforced silence, however, limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect.”
Our Parliament, by the recent amendment where justification or truth can be bona fide pleaded in the public interest has attempted clearly to bring our law in line with European and American standards.
Truth was treated as an ‘untouchable’ while exercising contempt jurisdiction for scandalising the Court. Parliament has now opened the doors of the temple of justice for the erstwhile untouchable.
In the case of Veeraswami, a former Chief Justice of Madras High Court, the Supreme Court observed: “A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system.”
The contest is between truth and its suppression. The choice then is between the plea of truth to expose judicial misconduct and the attempt to stifle such publication by the use of the contempt power. The Delhi High Court through its “Mid-day” judgment has catapulted the issue nationally and internationally.
(The writer is a Senior Advocate in the Supreme Court. Email: abdsad@airtelbroadband.in)
In 2002, there were adverse comments widely reported in the print media in Karnataka regarding the private behaviour of some sitting judges of the High Court. The High Court suo motu commenced contempt proceedings against several publications for scandalising the Court and lowering its authority. The matter reached the Supreme Court and an agonised Chief Justice Khare while criticising the media for not disclosing their sources stated that “I will reward the media if they come out with the truth”… “I personally believe that truth should be a defence in a contempt case.”
Broadly, criminal contempt means either scandalising the Court or prejudicing a fair trial or interference with the administration of justice.
In the “Mid-day” case, a bench of the Delhi High Court without considering the defence of truth has imposed a severe sentence of four months imprisonment on the media for scandalising the Court. The case is now pending in the Supreme Court and raises far-reaching questions of public law.
The law as laid down by the Supreme Court following earlier cases was that justification or truth was no defence against summary proceedings for contempt when words were used which scandalised the Court or lowered its authority.
Parliament has now intervened and radically changed the law by Act 6 of 2006 by amending Section 13 of the Contempt of Courts Act, 1971 which states — “Notwithstanding anything contained in any law for the time being in force ... (b) the court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”
The Statement of Objects and Reasons to the Bill states that the amendment “would introduce fairness in procedure and meet the requirements of Art. 21 of the Constitution.”
When the provisions of the Bill were discussed in the Lok Sabha, Law Minister H.R. Bharadwaj said “Suppose, there is a corrupt judge and he is doing corruption within your sight, are you not entitled to say that what you are saying is true? Truth should prevail. That is also in public interest.”
The National Commission to Review the Working of the Constitution (NCRWC) headed by the distinguished former Chief Justice of India, M.N. Venkatachaliah, in its report stated “Judicial decisions have been interpreted to mean that the law as it now stands, even truth cannot be pleaded as a defence to a charge of contempt of court. This is not a satisfactory state of law. … A total embargo on truth as justification may be termed as an unreasonable restriction. It would, indeed, be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto ‘Satyameva Jayate’ in the High Courts and ‘Yatho dharmas tatho jaya’ in the Supreme Court, the courts could rule out the defence of justification by truth. The Commission is of the view that the law in this area requires an appropriate change.”
Chief Justice E.S. Venkataramiah, whose judgments on press freedom are liberal and well known — gave an interview to journalist Kuldip Nayar on the eve of his retirement. He stated “the judiciary in India has deteriorated in its standards because such judges appointed as are willing to be ‘influenced’ by lavish parties and whisky bottles.” … “in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyers’ house or a foreign embassy.” The columnist further reported that “Chief Justice Venkataramiah reiterated that close relations of judges be debarred from practicing in the same High Court.”
At the instance of a leading advocate, a petition was filed against Justice Venkataramiah bringing this interview to the notice of the Nagpur Bench of the Bombay High Court for instituting contempt proceedings against him for scandalising the entire judiciary. The Division Bench observed that the entire interview appeared to have been given with an idea to improve the judiciary and it was not a fit case where suo motu action was called for and dismissed the petition on merit.
International standards and laws of other democracies would be informative and enable us to arrive at the right standards. Professor Michael Addo of the University of Exeter has collected the views of many European experts in “Freedom of Expression and the Criticism of Judges.”
In European democracies such as Germany, France, Belgium, Austria, Italy, there is no power to commit for contempt for scandalising the court. The judge has to file a criminal complaint or institute an action for libel. Summary sanctions can be imposed only for misbehaviour during court proceedings.
In Belgium, the media have been very critical of the functioning of the administration of justice and have strongly criticised individual judges. This tension between the press and the judiciary led to a seminal pronouncement of the ECHR (European Court of Human Rights). Leo De Haes and Hugo Gijsels were editor and journalist of a weekly magazine Humo. They published five articles in which they criticised judges of the Antwerp Court of Appeal in virulent terms for having awarded custody of children to their father although there were serious allegations against him of incest and abuse of children. The three judges and the Advocate-General instituted proceedings against Haes and Gijsels seeking compensation for damage caused by the defamatory articles. The Tribunal of first instance held against the journalists and the same was affirmed by the Brussels Court of Appeal and on further appeal by the Court of Cassation. The journalists applied to the ECHR and succeeded. It was held that though courts had to enjoy public confidence and judges had to be protected against destructive attacks that were unfounded, the articles contained detailed information based on thorough research, and the press had a duty to impart information and ideas of public interest and the public had a right to receive them It was held that there was a breach of Article 10 of the European Human Rights Convention which guaranteed freedom of speech and expression and there was also a breach of Article 6(1) (fairness of trial) because the Tribunal refused to study the reports of professors relied upon by the journalists. The journalists were awarded damages and costs of over Francs 964000 against the State. The case shows that there is no summary right of committal for contempt and the judges adopted proceedings for libel which ultimately failed.
Professor Addo concludes in relation to Art. 10 of the European Convention of Human Rights that although all countries in Europe had an offence relating to the criticism of judges on their books only a few continue to punish for this offence and there is an emerging common European standard.
In the U.K., the offence of scandalising the court has become obsolete. The judiciary was vigorously criticised by the English press in the Spy Catcher case. Peter Wright a former intelligence officer wrote his memoirs but the Court of Appeal injuncted the publication of the book in England. The House of Lords, by a majority of three against two confirmed the interim injunction and enlarged it. The Times of London came out with a blistering editorial which said: “Yesterday morning the law looked simply to be an ass. Those who regretted this fact were waiting with quiet confidence for the Law Lords to do something about it . . . But yesterday afternoon the law was still an ass ... In the hands [of] Lords Templeman, Ackner and Brandon (the majority who ruled for the gag order) it had become unpredictable and wild seemingly responsive only to autocratic whims.”
The Daily Mirror came out with a front page caption “You Fools” and published the photographs of Lords Templeman, Ackner, and Brandon upside down.
In the United States, contempt power is used against the press and publication only if there is a clear imminent and present danger to the disposal of a pending case. Criticism however virulent or scandalous after final disposal of the proceedings will not be considered as contempt. The U.S. Supreme Court observed — “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste on all public institutions ... And an enforced silence, however, limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect.”
Our Parliament, by the recent amendment where justification or truth can be bona fide pleaded in the public interest has attempted clearly to bring our law in line with European and American standards.
Truth was treated as an ‘untouchable’ while exercising contempt jurisdiction for scandalising the Court. Parliament has now opened the doors of the temple of justice for the erstwhile untouchable.
In the case of Veeraswami, a former Chief Justice of Madras High Court, the Supreme Court observed: “A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system.”
The contest is between truth and its suppression. The choice then is between the plea of truth to expose judicial misconduct and the attempt to stifle such publication by the use of the contempt power. The Delhi High Court through its “Mid-day” judgment has catapulted the issue nationally and internationally.
(The writer is a Senior Advocate in the Supreme Court. Email: abdsad@airtelbroadband.in)
Why are NGOs, sting operations silent on Naxal menace?
29 Oct 2007, 0253 hrs IST,Dhananjay Mahapatra,TNN Times of India
EW DELHI: India signed the International Convention on the Prevention and Punishment of the Crime of Genocide in 1948 and ratified it in 1958. Under this, a signatory state is bound to effectively act upon and legislate upon the intents of the mandate of the convention.
According to the convention, genocide means any of the following acts, committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, that would include killing members of the group.
It slso includes causing serious bodily injury or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group.
In the 2002 killings in Gujarat, a frenzied mob, with state patronage, systematically targeted Muslims that the world rightly branded as one of the worst genocides in India.
Union home minister Shivraj Patil’s well-informed deputy, Sri Prakash Jaiswal, told the Lok Sabha in 2005 that 790 Muslims and 254 Hindus were killed, 223 more were missing and 2,500 were injured.
The state government’s effort to botch the inquiry to help the perpetrators get acquitted by the court was derailed by a vigilant group of NGOs, supported by the media, and the timely intervention of the Supreme Court, which did not mince words in blaming the then Gujarat administration.
A series of sting operations unveiled and continue to unveil the ugly faces behind the carnage. Exactly 23 years ago, a frenzied mob led by political leaders butchered Sikhs in Delhi after two bodyguards from the community assassinated Indira Gandhi to take revenge for Operation Bluestar, the Army action to flush out terrorists holed up in the Golden Temple at Amritsar.
The official toll - 2,733 Sikhs were killed. Unofficial figures put it at around 4,000. Till date, not a single conviction of consequence has taken place, given the shoddy investigation done by the police at the behest of those in power, and commission after commission have failed to identify the perpetrators.
In the wake of Nanavati Commission report on anti-Sikh riots being tabled in Parliament in 2005, which led to the resignation of Union minister Jagdish Tytler, Prime Minister Manmohan Singh said his government would seek to prosecute those guilty of inciting the deadly riots in 1984.
For all these years, the NGOs, the media and the sting operators did not think it a fit subject to probe and unmask the masterminds of this genocide.
Killings by Naxalites, waging a war for the have-nots against the exploiters, have crossed the four-figure mark in the last five years. Jaiswal in 2005 told the Lok Sabha that 76 districts in nine states were badly affected by Maoist violence.
In 2006, he was contradicted by Patil, who claimed to have personally collected the data, which showed that only 50 districts were affected. In 2007, addressing a chief ministers’ conference in Delhi, the PM said Naxalite movement had spread to over 160 districts.
There is hardly any activism on the part of NGOs, media or sting operators to expose the masterminds behind the Naxals who have defied the state machinery and strike at will. The tears shed by victims - be it of Gujarat riots, anti-Sikh riots or Naxal violence - are identical.
Article 2 of the Genocide Convention applies equally upon all three forms of attack. Why is it then that only one of them gets highlighted and not the others?
It is time the Centre took appropriate steps to prevent such carnages through legislative and socio-economic measures. That alone would justify its decision to ratify the convention 50 years ago.
( dhananjay.mahapatra@timesgroup.com )
EW DELHI: India signed the International Convention on the Prevention and Punishment of the Crime of Genocide in 1948 and ratified it in 1958. Under this, a signatory state is bound to effectively act upon and legislate upon the intents of the mandate of the convention.
According to the convention, genocide means any of the following acts, committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, that would include killing members of the group.
It slso includes causing serious bodily injury or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group.
In the 2002 killings in Gujarat, a frenzied mob, with state patronage, systematically targeted Muslims that the world rightly branded as one of the worst genocides in India.
Union home minister Shivraj Patil’s well-informed deputy, Sri Prakash Jaiswal, told the Lok Sabha in 2005 that 790 Muslims and 254 Hindus were killed, 223 more were missing and 2,500 were injured.
The state government’s effort to botch the inquiry to help the perpetrators get acquitted by the court was derailed by a vigilant group of NGOs, supported by the media, and the timely intervention of the Supreme Court, which did not mince words in blaming the then Gujarat administration.
A series of sting operations unveiled and continue to unveil the ugly faces behind the carnage. Exactly 23 years ago, a frenzied mob led by political leaders butchered Sikhs in Delhi after two bodyguards from the community assassinated Indira Gandhi to take revenge for Operation Bluestar, the Army action to flush out terrorists holed up in the Golden Temple at Amritsar.
The official toll - 2,733 Sikhs were killed. Unofficial figures put it at around 4,000. Till date, not a single conviction of consequence has taken place, given the shoddy investigation done by the police at the behest of those in power, and commission after commission have failed to identify the perpetrators.
In the wake of Nanavati Commission report on anti-Sikh riots being tabled in Parliament in 2005, which led to the resignation of Union minister Jagdish Tytler, Prime Minister Manmohan Singh said his government would seek to prosecute those guilty of inciting the deadly riots in 1984.
For all these years, the NGOs, the media and the sting operators did not think it a fit subject to probe and unmask the masterminds of this genocide.
Killings by Naxalites, waging a war for the have-nots against the exploiters, have crossed the four-figure mark in the last five years. Jaiswal in 2005 told the Lok Sabha that 76 districts in nine states were badly affected by Maoist violence.
In 2006, he was contradicted by Patil, who claimed to have personally collected the data, which showed that only 50 districts were affected. In 2007, addressing a chief ministers’ conference in Delhi, the PM said Naxalite movement had spread to over 160 districts.
There is hardly any activism on the part of NGOs, media or sting operators to expose the masterminds behind the Naxals who have defied the state machinery and strike at will. The tears shed by victims - be it of Gujarat riots, anti-Sikh riots or Naxal violence - are identical.
Article 2 of the Genocide Convention applies equally upon all three forms of attack. Why is it then that only one of them gets highlighted and not the others?
It is time the Centre took appropriate steps to prevent such carnages through legislative and socio-economic measures. That alone would justify its decision to ratify the convention 50 years ago.
( dhananjay.mahapatra@timesgroup.com )
Sunday, October 28, 2007
Women emerge as primary victims in trafficking
Nava Thakuria
October 28, 2007, Updated: Bangladesh Time 12:00 AM
Trafficking in human beings, especially women and children, is a heinous crime that violates all tenets of human rights and dignity-that is how the Indian Women and Child Development minister Renuka Chowdhury expressed her reaction while attending a South Asia regional conference in New Delhi recently. The three-day regional conference was organized by the United Nations Office on Drugs and Crime (UNODC) in collaboration with the government of India, where hundreds participants from Afghanistan, Pakistan, Nepal, Bhutan, Bangladesh, Maldives, Sri Lanka and India rubbed soldiers to discuss about the burning issue of trafficking.
The issue of human trafficking that is identified as a serious crime in the human society and a billion dollar global illicit trade came out for rigorous discussion in the conference. Various speakers in the conference reaffirmed their point of views terming human trafficking as a multi-faceted problem, often associated with illiteracy, poverty, lack of employment and also cultural practices.
The United Nations describes trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of a threat or use of force or other forms of coercion, of abduction, of fraud for the purpose of exploitation. Trafficking is primarily done for sexual exploitation, but many times trafficked victims are used for forced labour, organ removal and marriage or adoption.
According to the UN understanding, human trafficking that involves the illicit and clandestine movements of persons across national borders is a booming illegal international trade (after arms and drugs trafficking), making an estimated USD 32 billion annually at the expense of millions of victims, who are victims of sexual exploitation and forced labour. It is also estimated that nearly 1,50,000 people, mostly young women and children are trafficked within South Asia annually with promises of a good job, a good marriage, or stardom in the entertainment industries.
"Human trafficking is world's third largest profit-making illicit industry and the South Asia has emerged as the home to the second largest numbers of internationally trafficked persons (after Southeast Asia)," informed Gary Lewis, Representative (South Asia) of UNODC. South Asia is otherwise home to one-fifth of the world's population and nearly 500 million people of the underdeveloped region live in poverty (surviving with less than a dollar a day).
The head of UNODC, Delhi office also acknowledged, "Poverty is the primary cause of trafficking in the region." Revealing that India had emerged as the favoured destinations in South Asia, Mr Lewis informed that over 25,000 women and children are trafficked from Bangladesh annually to India. The share from Nepal is likely to be 15,000, who are brought illegally for the primary purpose of prostitution and slavery, he added.
Porous borders with economically poorer Bangladesh and Nepal (from where none need visa to visit India) aggravate the problem of cross-border trafficking. Bangladesh remained a source country for women and children for a quite a long time, traffickers target their preys in the poverty stricken rural areas.
On the other hand, Nepal is identified as a source country in the region. Fair looking Nepali young women are the primary victims of the trafficking, though new trend emerges with attraction for boys too. Unconfirmed statistics reveal that in average 12,000 Nepali women with minors are trafficked every year for sexual exploitation in outer countries. Most of the trafficked women from Nepal were later found infected with HIV/AIDS and also tuberculosis.
India with over a billion populations also remained a state of origin and transit country for trafficking in persons. It is estimated that that 90 per cent of India's sex trafficking is internal, where States like Andhra Pradesh, Orissa, Bihar, West Bengal and the Northeast contribute their shares. But often, women and children, trafficked from neighbouring countries, are sent to the Middle East, Gulf countries and even to the Europe. Pakistan and Sri Lanka have also lately joined in the circuit.
Addressing the conference, the minister Ms Chowdhury also argued that trafficking is by and large a gendered phenomenon. The trafficking in India is primarily for the purpose of commercial sexual exploitation. There are nearly three million sex workers in India and 40 per cent of them are children or adolescent girls. Statistics reveal that children below the age of 10 years are also found in the brothel of Indian cities like Mumbai and Delhi now a day, the minister disclosed.
"Many believe that having sex with young and virgin girls would cure them of diseases. It is nonsense," Ms Chowdhury uttered. She emphasized on reducing the demand for prostitutes, engagement of children in workplaces, use of forced labour and empowering all collaborative efforts of governments, NGOs and other institutions to deal with the situation.
Ms Chowdhury also informed that New Delhi was formulating a joint action plan with Bangladesh and Nepal to combat the growing tendency of human trafficking in the region. "We are working for a joint effort (with Dhaka and Kathmandu) to formulate policies ensuring quick and safe return of the cross-border trafficked victims," added the minister.
The ministry of Women and Child Development (in India) was actively engaged in organizing the conference on October 9,10,11 in New Delhi that brought together nearly 700 delegates representatives of government, civil societies, private sectors, film industries, media and partnering UN agencies. The regional conference under the global initiative to fight trafficking (UN.GIFT) concluded with a Delhi Declaration at Vigyan Bhawan highlighting the seriousness and magnitude of the crime with a series of focus areas to deal with the issue effectively.
The 19-point declaration, which was read out in presence of many high profile Indian ministers, Afghan deputy Labour minister Wasil Noor (Muhmand) with other dignitaries, resolved to 'call upon all concerned including police, prosecutors and judiciary to undertake concerted action in law enforcement so that offenders are punished quickly, certainly and severely in a time bound manner'.
The declaration also urged upon the States to ratify the UN Transnational Organized Crime Convention and its supplementary protocols to prevent, suppress and punish trafficking in persons and smuggling of migrants. While encouraging 'all efforts towards evolving a synergistic approach in dealing with trafficking issue', it also stressed on working 'towards systemic training and capacity building of all stakeholders'.
The role of youths is recognized as change agents in the declaration with an aim to promote education of the girl child that would finally empower the women 'to their full participation in economic life and decision making'. Identifying 'inter-state and intra-state source, transit and destination routes for forced labour' as a focus area in the declaration, where it was also emphasized on promoting the mode of safe migration.
One important point of the declaration includes building 'a coalition of media partners and popular personalities to advocate for the prevention of trafficking. Mentionable that a good number of media persons and many Bollywood (Indian commercial film industry based in Mumbai) personalities including John Abraham, Amisha Patel, Kiran Kher, Mita Vashisht, Meghna Gulzar with Usha Utthup, Talat Aziz, AK Bir joined the conference and interacted with the vibrant audience that ended in stimulating debates.
Addressing the conference, where officials of UNFPA, UNDP, UNIFEM, UNICEF, ILO and several law officials participated, the Labour minister Oscar Fernandes described forced labour as a global menace that is prevalent in many countries. "Trafficking plays a major role in this exercise, which forces millions of people into the clutches of traffickers," affirmed the minister.
Kiran Bedi (director general, Bureau of Police Research and Development) and Vijay Shankar (director, Central Bureau of Investigation), who were part of a panel discussion during the conference, emphasized on evolving a synergistic approach to all the efforts with an aim to combat the human trafficking effectively. Others who supported the move included David Arkless (corporate affairs officlal, Manpower Inc), Kailash Satyarthi (chairman, Global March against Child Labour) and Carmen Madrinan (executive director, ECPAT).
An UNODC official informed, around 10,000 human trafficking victims, mostly women and young girls, were rescued annually from traffickers in India. At the same time, thousands traffickers with customers were also arrested. "Corporate sector can make an invaluable contribution in curbing trafficking by creating livelihood opportunities and supporting organizations which prosecute traffickers and protect rescued victims," Jeff Avina, director of operations with UNODC in Vienna argued while addressing the assembly that included participants from distinguished companies like Tata Steel, Microsoft, HSBC, Reliance Health etc.
The Indian Home (Interior) minister Shivraj Patil assured the gathering in the valedictory function that New Delhi would support all international efforts to fight against human trafficking in the region. While describing the problem as old, complicated and difficult to get resolved, the important minister in Dr Manmohan Singh's cabinet stressed on modification of existing laws and empowering law-enforcing machineries to efficiently deal with the trafficking issue. He concluded emphasizing on a comprehensive policy with national, regional and international perspectives to efficiently deal with the trafficking issue in the trouble torn South Asia.
October 28, 2007, Updated: Bangladesh Time 12:00 AM
Trafficking in human beings, especially women and children, is a heinous crime that violates all tenets of human rights and dignity-that is how the Indian Women and Child Development minister Renuka Chowdhury expressed her reaction while attending a South Asia regional conference in New Delhi recently. The three-day regional conference was organized by the United Nations Office on Drugs and Crime (UNODC) in collaboration with the government of India, where hundreds participants from Afghanistan, Pakistan, Nepal, Bhutan, Bangladesh, Maldives, Sri Lanka and India rubbed soldiers to discuss about the burning issue of trafficking.
The issue of human trafficking that is identified as a serious crime in the human society and a billion dollar global illicit trade came out for rigorous discussion in the conference. Various speakers in the conference reaffirmed their point of views terming human trafficking as a multi-faceted problem, often associated with illiteracy, poverty, lack of employment and also cultural practices.
The United Nations describes trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of a threat or use of force or other forms of coercion, of abduction, of fraud for the purpose of exploitation. Trafficking is primarily done for sexual exploitation, but many times trafficked victims are used for forced labour, organ removal and marriage or adoption.
According to the UN understanding, human trafficking that involves the illicit and clandestine movements of persons across national borders is a booming illegal international trade (after arms and drugs trafficking), making an estimated USD 32 billion annually at the expense of millions of victims, who are victims of sexual exploitation and forced labour. It is also estimated that nearly 1,50,000 people, mostly young women and children are trafficked within South Asia annually with promises of a good job, a good marriage, or stardom in the entertainment industries.
"Human trafficking is world's third largest profit-making illicit industry and the South Asia has emerged as the home to the second largest numbers of internationally trafficked persons (after Southeast Asia)," informed Gary Lewis, Representative (South Asia) of UNODC. South Asia is otherwise home to one-fifth of the world's population and nearly 500 million people of the underdeveloped region live in poverty (surviving with less than a dollar a day).
The head of UNODC, Delhi office also acknowledged, "Poverty is the primary cause of trafficking in the region." Revealing that India had emerged as the favoured destinations in South Asia, Mr Lewis informed that over 25,000 women and children are trafficked from Bangladesh annually to India. The share from Nepal is likely to be 15,000, who are brought illegally for the primary purpose of prostitution and slavery, he added.
Porous borders with economically poorer Bangladesh and Nepal (from where none need visa to visit India) aggravate the problem of cross-border trafficking. Bangladesh remained a source country for women and children for a quite a long time, traffickers target their preys in the poverty stricken rural areas.
On the other hand, Nepal is identified as a source country in the region. Fair looking Nepali young women are the primary victims of the trafficking, though new trend emerges with attraction for boys too. Unconfirmed statistics reveal that in average 12,000 Nepali women with minors are trafficked every year for sexual exploitation in outer countries. Most of the trafficked women from Nepal were later found infected with HIV/AIDS and also tuberculosis.
India with over a billion populations also remained a state of origin and transit country for trafficking in persons. It is estimated that that 90 per cent of India's sex trafficking is internal, where States like Andhra Pradesh, Orissa, Bihar, West Bengal and the Northeast contribute their shares. But often, women and children, trafficked from neighbouring countries, are sent to the Middle East, Gulf countries and even to the Europe. Pakistan and Sri Lanka have also lately joined in the circuit.
Addressing the conference, the minister Ms Chowdhury also argued that trafficking is by and large a gendered phenomenon. The trafficking in India is primarily for the purpose of commercial sexual exploitation. There are nearly three million sex workers in India and 40 per cent of them are children or adolescent girls. Statistics reveal that children below the age of 10 years are also found in the brothel of Indian cities like Mumbai and Delhi now a day, the minister disclosed.
"Many believe that having sex with young and virgin girls would cure them of diseases. It is nonsense," Ms Chowdhury uttered. She emphasized on reducing the demand for prostitutes, engagement of children in workplaces, use of forced labour and empowering all collaborative efforts of governments, NGOs and other institutions to deal with the situation.
Ms Chowdhury also informed that New Delhi was formulating a joint action plan with Bangladesh and Nepal to combat the growing tendency of human trafficking in the region. "We are working for a joint effort (with Dhaka and Kathmandu) to formulate policies ensuring quick and safe return of the cross-border trafficked victims," added the minister.
The ministry of Women and Child Development (in India) was actively engaged in organizing the conference on October 9,10,11 in New Delhi that brought together nearly 700 delegates representatives of government, civil societies, private sectors, film industries, media and partnering UN agencies. The regional conference under the global initiative to fight trafficking (UN.GIFT) concluded with a Delhi Declaration at Vigyan Bhawan highlighting the seriousness and magnitude of the crime with a series of focus areas to deal with the issue effectively.
The 19-point declaration, which was read out in presence of many high profile Indian ministers, Afghan deputy Labour minister Wasil Noor (Muhmand) with other dignitaries, resolved to 'call upon all concerned including police, prosecutors and judiciary to undertake concerted action in law enforcement so that offenders are punished quickly, certainly and severely in a time bound manner'.
The declaration also urged upon the States to ratify the UN Transnational Organized Crime Convention and its supplementary protocols to prevent, suppress and punish trafficking in persons and smuggling of migrants. While encouraging 'all efforts towards evolving a synergistic approach in dealing with trafficking issue', it also stressed on working 'towards systemic training and capacity building of all stakeholders'.
The role of youths is recognized as change agents in the declaration with an aim to promote education of the girl child that would finally empower the women 'to their full participation in economic life and decision making'. Identifying 'inter-state and intra-state source, transit and destination routes for forced labour' as a focus area in the declaration, where it was also emphasized on promoting the mode of safe migration.
One important point of the declaration includes building 'a coalition of media partners and popular personalities to advocate for the prevention of trafficking. Mentionable that a good number of media persons and many Bollywood (Indian commercial film industry based in Mumbai) personalities including John Abraham, Amisha Patel, Kiran Kher, Mita Vashisht, Meghna Gulzar with Usha Utthup, Talat Aziz, AK Bir joined the conference and interacted with the vibrant audience that ended in stimulating debates.
Addressing the conference, where officials of UNFPA, UNDP, UNIFEM, UNICEF, ILO and several law officials participated, the Labour minister Oscar Fernandes described forced labour as a global menace that is prevalent in many countries. "Trafficking plays a major role in this exercise, which forces millions of people into the clutches of traffickers," affirmed the minister.
Kiran Bedi (director general, Bureau of Police Research and Development) and Vijay Shankar (director, Central Bureau of Investigation), who were part of a panel discussion during the conference, emphasized on evolving a synergistic approach to all the efforts with an aim to combat the human trafficking effectively. Others who supported the move included David Arkless (corporate affairs officlal, Manpower Inc), Kailash Satyarthi (chairman, Global March against Child Labour) and Carmen Madrinan (executive director, ECPAT).
An UNODC official informed, around 10,000 human trafficking victims, mostly women and young girls, were rescued annually from traffickers in India. At the same time, thousands traffickers with customers were also arrested. "Corporate sector can make an invaluable contribution in curbing trafficking by creating livelihood opportunities and supporting organizations which prosecute traffickers and protect rescued victims," Jeff Avina, director of operations with UNODC in Vienna argued while addressing the assembly that included participants from distinguished companies like Tata Steel, Microsoft, HSBC, Reliance Health etc.
The Indian Home (Interior) minister Shivraj Patil assured the gathering in the valedictory function that New Delhi would support all international efforts to fight against human trafficking in the region. While describing the problem as old, complicated and difficult to get resolved, the important minister in Dr Manmohan Singh's cabinet stressed on modification of existing laws and empowering law-enforcing machineries to efficiently deal with the trafficking issue. He concluded emphasizing on a comprehensive policy with national, regional and international perspectives to efficiently deal with the trafficking issue in the trouble torn South Asia.
Register all marriages: Supreme Court
Order covers all religions across the length and breadth of the country
J. Venkatesan
NEW DELHI: The Supreme Court on Thursday ordered compulsory registration of marriages of couples belonging to all religions across the country. It directed States and Union Territories which have not enacted rules to this effect so far as per its 2006 orders to frame the necessary rules within three months.
A Bench of Justice Arijit Pasayat and Justice P. Sathasivam passed this order on a petition filed by a divorcee, Seema, seeking directions for making registration of marriage compulsory. The Bench reiterated that marriages should be compulsorily registered “in respect of persons who are citizens of India even if they belonged to various religions”.
In February last year the Court had held that compulsory registration of marriages of all religions would be a step in the right direction for prevention of child marriage – a practice still prevalent in many parts of the country. The Court had said that one way to curb the practice was to make it mandatory legally for all to register their marriage, mentioning their age at the time of marriage.
The Court agreed with the National Commission for Women that compulsory registration of marriages would be of critical importance to various women-related issues such as prevention of child marriage and ensuring a minimum age of marriage; prevention of marriages without the consent of parties; checking illegal bigamy/polygamy; enabling married women to claim their right to live in the matrimonial home, maintenance, etc.
In July this year the Court was informed by the amicus curiae assisting it that though some States had framed the rules, it had been done only for Hindu marriages and not in respect of all religions. Accordingly the Court granted three months to the States and Union Territories to frame rules to cover marriages of all religions.
“It appears that the States of Andhra Pradesh, Bihar, Chhattisgarh, Goa, Himachal Pradesh, Karnataka, Tamil Nadu, Meghalaya, Mizoram, Rajasthan, Sikkim and Tripura have complied with the direction,” it said on Thursday.In West Bengal, it added, changes had been made to the West Bengal Special Marriages Rules, 1969, Registration of Muslim Marriages and Divorces Registration Rules and Registration Rules of Hindu Marriage Act for making registration of marriages compulsory and providing for consequences for not doing it.
“So far as other States and UTs are concerned, some of them have not filed any affidavit, and in respect of others the directions have been complied with in respect of Hindus. The directions given by the order dated February 14, 2006, have not been fully complied with. We, therefore, direct that the States and UTs which have not acted in line with the directions given on February 14, 2006, shall forthwith do it and in no case later than three months from today. Place this matter after four months. The affidavits indicating compliance shall be filed before the next date of hearing.”
J. Venkatesan
NEW DELHI: The Supreme Court on Thursday ordered compulsory registration of marriages of couples belonging to all religions across the country. It directed States and Union Territories which have not enacted rules to this effect so far as per its 2006 orders to frame the necessary rules within three months.
A Bench of Justice Arijit Pasayat and Justice P. Sathasivam passed this order on a petition filed by a divorcee, Seema, seeking directions for making registration of marriage compulsory. The Bench reiterated that marriages should be compulsorily registered “in respect of persons who are citizens of India even if they belonged to various religions”.
In February last year the Court had held that compulsory registration of marriages of all religions would be a step in the right direction for prevention of child marriage – a practice still prevalent in many parts of the country. The Court had said that one way to curb the practice was to make it mandatory legally for all to register their marriage, mentioning their age at the time of marriage.
The Court agreed with the National Commission for Women that compulsory registration of marriages would be of critical importance to various women-related issues such as prevention of child marriage and ensuring a minimum age of marriage; prevention of marriages without the consent of parties; checking illegal bigamy/polygamy; enabling married women to claim their right to live in the matrimonial home, maintenance, etc.
In July this year the Court was informed by the amicus curiae assisting it that though some States had framed the rules, it had been done only for Hindu marriages and not in respect of all religions. Accordingly the Court granted three months to the States and Union Territories to frame rules to cover marriages of all religions.
“It appears that the States of Andhra Pradesh, Bihar, Chhattisgarh, Goa, Himachal Pradesh, Karnataka, Tamil Nadu, Meghalaya, Mizoram, Rajasthan, Sikkim and Tripura have complied with the direction,” it said on Thursday.In West Bengal, it added, changes had been made to the West Bengal Special Marriages Rules, 1969, Registration of Muslim Marriages and Divorces Registration Rules and Registration Rules of Hindu Marriage Act for making registration of marriages compulsory and providing for consequences for not doing it.
“So far as other States and UTs are concerned, some of them have not filed any affidavit, and in respect of others the directions have been complied with in respect of Hindus. The directions given by the order dated February 14, 2006, have not been fully complied with. We, therefore, direct that the States and UTs which have not acted in line with the directions given on February 14, 2006, shall forthwith do it and in no case later than three months from today. Place this matter after four months. The affidavits indicating compliance shall be filed before the next date of hearing.”
Family against woman
Indira Jaising
Posted online: Friday, October 26, 2007 at 0000 hrs
A year after the law to protect women from domestic violence was enacted, it continues to be defeated by social prejudice and blindspots
October 26 marks the first anniversary of the Protection of Women from Domestic Violence Act. The law was conceived as a civil law as distinct from the existing criminal law: Section 498A IPC. It was often said that criminal law had no space for settlement of disputes and could give no relief beyond a conviction. It was to meet this need that the new law was passed.
It provided for the right to residence in the shared household, the right to protection orders, gave power to courts to restrain alienation of assets, mandated return of stridhan and other significant reliefs. It defines violence in all its dimensions, from the physical to the sexual and economic. This definition was taken from the UN Model Code on domestic violence and from the Convention on the Elimination of All Forms of Violence Against Women, to which India is a party. It applies not only to married women but also women in live-in relationships, daughters/mothers facing violence in domestic relationships.
One year is an appropriate time to evaluate the functioning of a law. However, there are no systems to do this on a systematic basis since there are no computerised data bases of orders and judgments. Given this, the Lawyers Collective, which was largely involved with this law in its formative stages, undertook the task of evaluating enforcement, using available data. The chief justice of India facilitated the collection of data from different high courts. Our report, ‘Staying Alive’, is based on this.
The report shows that the law’s main users are women in matrimonial relationships. A few widows have been able to prevent dispossession by using the law, and some young girls have prevented forcible marriages by fathers. The major breakthrough the law achieved was the declaration of the right to reside in the shared household. Surprisingly, it took independent India 60 years to ensure this right. The law makes a clear distinction between the ownership of the shared household and the right to reside in it. What the law does is to grant the right to reside and not to be dispossessed, except by authority of law. It thus prevents forcible dispossession.
This provision suffered a major setback at the hands of the judiciary. The Supreme Court, even before the ink on the Act was dry, declared in a judgment that a woman could claim this right only in relation to a household owned/ rented by her husband. This means that even if her husband lives with his parents and she has her matrimonial residence there, she cannot claim right to residence there. The judgment not only overlooks the law itself, it also overlooks the existing social reality of the joint family, which continues to be the predominant pattern. The report documents how several courts have been refusing relief to women based on this judgment. It demonstrates that in India women have lesser protection than tenants, who cannot be evicted except by procedure established by law.
There have been major protests around this law. Organisations to ‘Save the Indian Family’ have been formed; women who campaign for the law are being told that they are ‘frustrated’ and are ‘home breakers’. It is obvious that respect for human rights of women in domestic relationships — the premise on which the law is based — is not something intrinsic to the ‘Indian Family’. The right to live with dignity is not conceded to women in the private domain. These attitudes predominate at all levels, particularly in the upper classes, among bureaucrats and decision-makers. They have determined the terms of this debate ignoring the Constitution’s egalitarian values. It is therefore not surprising that the law is not implemented, even when the conferment of rights is explicit in letter and spirit. One of the major recommendations of the ‘Staying Alive’ report is that the Supreme Court judgment be reviewed, to restore the right to residence.
The number of cases filed in different states varies greatly. If 3,440 cases were filed in Rajasthan, Haryana had only 235 cases till July 2007. Manipur, Meghalaya, Nagaland and Arunachal Pradesh have none in the same period. Some states have figures varying from 5 to 65. These figures may or may not reflect levels of violence in the state against women. They may reflect a combination of higher levels of violence combined with greater awareness of the law. Certainly, in Rajasthan, that seems to be the case. The Northeast continues to use tribal customary forums and has not used the law. No data is available for UP, since the high court there did not send the information.
The law envisages the appointment of protection officers on a full-time basis to record incidents and support women in distress. Interestingly Rajasthan, which has the highest number of cases, has not made such appointments and continues to rely on the police to perform this function, defeating, to a large extent, the need for a multi-agency response to stop violence. Other states have simply designated health workers as protection officers. Most states have appointed protection officers only at the district level, leaving a big gap between the users of the law and the courts. When asked to explain this shortcoming, states have claimed there is no budget for this.
Middle and upper class women continue to be the main users of the law. Working class women are not using it or are unable to access privatised services or lawyers. Also, every state has reported dowry as a major factor in the breakdown of relationships.
By far the most interesting example comes from Andhra which, early on, put in place multiple agencies to activate the law. The police have been sensitised to inform women of their rights. Protection officers work full-time to record complaints of violence and file applications. Legal aid is being given invariably. Why has this not happened in other states? Difficult to say, but clearly Andhra has a better system of management of case work and documents.
All said and done, freedom from violence in the private domain still remains a distant dream for women in domestic relationships, a year after this revolutionary law came into the statute books.
The writer is director, Lawyers Collective, Womens’ Rights Initiative
Posted online: Friday, October 26, 2007 at 0000 hrs
A year after the law to protect women from domestic violence was enacted, it continues to be defeated by social prejudice and blindspots
October 26 marks the first anniversary of the Protection of Women from Domestic Violence Act. The law was conceived as a civil law as distinct from the existing criminal law: Section 498A IPC. It was often said that criminal law had no space for settlement of disputes and could give no relief beyond a conviction. It was to meet this need that the new law was passed.
It provided for the right to residence in the shared household, the right to protection orders, gave power to courts to restrain alienation of assets, mandated return of stridhan and other significant reliefs. It defines violence in all its dimensions, from the physical to the sexual and economic. This definition was taken from the UN Model Code on domestic violence and from the Convention on the Elimination of All Forms of Violence Against Women, to which India is a party. It applies not only to married women but also women in live-in relationships, daughters/mothers facing violence in domestic relationships.
One year is an appropriate time to evaluate the functioning of a law. However, there are no systems to do this on a systematic basis since there are no computerised data bases of orders and judgments. Given this, the Lawyers Collective, which was largely involved with this law in its formative stages, undertook the task of evaluating enforcement, using available data. The chief justice of India facilitated the collection of data from different high courts. Our report, ‘Staying Alive’, is based on this.
The report shows that the law’s main users are women in matrimonial relationships. A few widows have been able to prevent dispossession by using the law, and some young girls have prevented forcible marriages by fathers. The major breakthrough the law achieved was the declaration of the right to reside in the shared household. Surprisingly, it took independent India 60 years to ensure this right. The law makes a clear distinction between the ownership of the shared household and the right to reside in it. What the law does is to grant the right to reside and not to be dispossessed, except by authority of law. It thus prevents forcible dispossession.
This provision suffered a major setback at the hands of the judiciary. The Supreme Court, even before the ink on the Act was dry, declared in a judgment that a woman could claim this right only in relation to a household owned/ rented by her husband. This means that even if her husband lives with his parents and she has her matrimonial residence there, she cannot claim right to residence there. The judgment not only overlooks the law itself, it also overlooks the existing social reality of the joint family, which continues to be the predominant pattern. The report documents how several courts have been refusing relief to women based on this judgment. It demonstrates that in India women have lesser protection than tenants, who cannot be evicted except by procedure established by law.
There have been major protests around this law. Organisations to ‘Save the Indian Family’ have been formed; women who campaign for the law are being told that they are ‘frustrated’ and are ‘home breakers’. It is obvious that respect for human rights of women in domestic relationships — the premise on which the law is based — is not something intrinsic to the ‘Indian Family’. The right to live with dignity is not conceded to women in the private domain. These attitudes predominate at all levels, particularly in the upper classes, among bureaucrats and decision-makers. They have determined the terms of this debate ignoring the Constitution’s egalitarian values. It is therefore not surprising that the law is not implemented, even when the conferment of rights is explicit in letter and spirit. One of the major recommendations of the ‘Staying Alive’ report is that the Supreme Court judgment be reviewed, to restore the right to residence.
The number of cases filed in different states varies greatly. If 3,440 cases were filed in Rajasthan, Haryana had only 235 cases till July 2007. Manipur, Meghalaya, Nagaland and Arunachal Pradesh have none in the same period. Some states have figures varying from 5 to 65. These figures may or may not reflect levels of violence in the state against women. They may reflect a combination of higher levels of violence combined with greater awareness of the law. Certainly, in Rajasthan, that seems to be the case. The Northeast continues to use tribal customary forums and has not used the law. No data is available for UP, since the high court there did not send the information.
The law envisages the appointment of protection officers on a full-time basis to record incidents and support women in distress. Interestingly Rajasthan, which has the highest number of cases, has not made such appointments and continues to rely on the police to perform this function, defeating, to a large extent, the need for a multi-agency response to stop violence. Other states have simply designated health workers as protection officers. Most states have appointed protection officers only at the district level, leaving a big gap between the users of the law and the courts. When asked to explain this shortcoming, states have claimed there is no budget for this.
Middle and upper class women continue to be the main users of the law. Working class women are not using it or are unable to access privatised services or lawyers. Also, every state has reported dowry as a major factor in the breakdown of relationships.
By far the most interesting example comes from Andhra which, early on, put in place multiple agencies to activate the law. The police have been sensitised to inform women of their rights. Protection officers work full-time to record complaints of violence and file applications. Legal aid is being given invariably. Why has this not happened in other states? Difficult to say, but clearly Andhra has a better system of management of case work and documents.
All said and done, freedom from violence in the private domain still remains a distant dream for women in domestic relationships, a year after this revolutionary law came into the statute books.
The writer is director, Lawyers Collective, Womens’ Rights Initiative
Child slavery thriving in Indian cotton industry
Anusha Lall
OneWorld South Asia
26 October 2007
India has distinction of having the largest area under cotton cultivation in the world and has been a pioneer in developing hybrid cotton seeds for commercial use. The Indian cottonseed industry is also marked by the highest proportion of child labour in its workforce.
The local seed farmer justifies the continued and increasing employment of children, particularly girls.
'Cross- pollination work [with reference to cottonseed cultivation in India] is very labour intensive and a large number of labourers [are] required to do this work. It is also delicate work and needs to be handled carefully. We prefer young girl children for this task because with their delicate fingers (nimble fingers) they can handle this work better than adults. They also work more intensively than adults. We can control them easily. They listen to us and do what ever we ask them to do.
‘The most important thing is labour costs. Nearly half of our investment goes towards payment of labour charges. The wage rates for children are far lower than adult wages. We can reduce our labour costs considerably if we hire girl children. If we want to hire adult labour we have to pay higher wages. With current the procurement price we get from the seed companies we can not afford to pay higher wages to the labourers.'
- Sivaramakrishna, (Seed Farmer), Mahaboobnagar District, Andhra Pradesh
Thus the majority of the labour force in this labour intensive sector is children, primarily girls, preferred on counts of minimising costs (as labour costs account for about 50% of total cultivation costs in the industry) through low wages (well below market and official minimum standards), higher levels of productivity that can be extracted from children by way of longer hours (8 to 12 hours) and more intensive work regimes, and also effective control.
The situation is rendered more complex with reference to the elements of bonded labour, the role of large national and multinational companies and of the contract farmers, etc.
Citing a recent report, the exploitation of child labour in the industry is linked with larger market forces; a multi-tiered, complex economic relationship, masking social and legal responsibility. The nature and the scale of the problem also hold implications for child trafficking, and conditions of migrant workers.
The children for most part are employed on a long-term contract basis through advances and loans extended to their parents by local seed producers, who have agreements with the large multinational and national seed companies. Most of these children belong to the disadvantaged sections as the Scheduled Castes, the Scheduled Tribes, and the Other Backward Classes, and 90 per cent are either school dropouts or have never attended schools.
The situation of these children is further characterised by unsafe and exploitative conditions, which can be exemplified by reference to the regular resort to verbal abuse and physical violence by the employers, and a report of the brutal rape and killing of two minor girls in Kurnool District, Andhra Pradesh.
Another condition specific to the cottonseed cultivation industry is the exposure of the children to poisonous pesticides used in high quantities. This exposure to health risks was also cited in the report of Physicians for Human Rights, 2003. The general health problems reported by children working in this industry were seen to include severe headaches, nausea, weakness, convulsions and respiratory depression. A few child deaths due to pesticide exposure were also reported in Andhra Pradesh.
Some facts and figures further highlight the entrenchment of the problems in the Indian economy and the role of the various players. Andhra Pradesh, Tamil Nadu and Karnataka in South India and Gujarat and Maharashtra in Central India account for nearly 95 per cent of total cottonseed production in the country. In 2006-07 nearly 416, 460 children under the age of 18 (54% of which were under the age of 14) were employed on cottonseed farms in these states (with the exception of Maharashtra).
The role of several Indian companies (Nuziveedu, Raasi, Ankur and Mahyco – the last a joint venture partner of multinational company Monsanto) can be presented as prominent examples, and multinationals (for example Monsanto, Bayer) can be identified in making use of 200,000 children employed by farmers sub-contracted for BT cottonseed cultivation.
The increasing area coverage under commercial cotton and cottonseed production, with especial reference to the substantial increase in the area under BT hybrid cotton has resulted in the growing control of multinational companies in the industry (for instance Monsanto has patent right over BT gene, therefore indirect control through sub-licence agreements with Indian seed companies).
The strength of the concern for the issue of child labour in the face of large scale-violations has led to growing pressure from national and international civil society. This has resulted in some proactive initiatives (including initiatives by seed companies in their production farms) as well as interventions (especially in the state of Andhra Pradesh) by the government, NGOs (such as the MV Foundation), and other organisations (such as ILO-IPEC, UNICEF).
NGO interventions have focused on bringing girl children back to mainstream education, campaigns against child labour, etc. while the overall response of state and central governments as well as the seed industry remain wanting, whereby the impact of interventions becomes diffused.
Existing employment practices in cottonseed cultivation are in denial of rights of children and in violation of national laws and international conventions (denial of children's rights to education, health and safe living).
This form of bonded labour, work conditions and low wages are also in contravention of the national Children (Pledging for Labour) Act 1933, Bonded Labour System (Abolition) Act 1976, Child Labour (Prohibition and Regulation) Act 1986, Article 21A of the Indian Constitution which guarantees every child the right to free and compulsory education up to the age of 14 years, ILO Conventions Number 138 and 182 regarding minimum age for admission to employment and the prohibition of worst forms of child labour respectively as well as the UN Convention on the Rights of the Child.
This piece is informed by Davaluri Venkateswarlu’s recent report on 'Child Bondage Continues in Indian Cotton Supply Chain: More than 400,000 children in India involved in hybrid cottonseed cultivation' (Commissioned Study by India Committee of Netherlands, and OECD et al, September 2007) and proceeding reports highlighting the problem.
OneWorld South Asia
26 October 2007
India has distinction of having the largest area under cotton cultivation in the world and has been a pioneer in developing hybrid cotton seeds for commercial use. The Indian cottonseed industry is also marked by the highest proportion of child labour in its workforce.
The local seed farmer justifies the continued and increasing employment of children, particularly girls.
'Cross- pollination work [with reference to cottonseed cultivation in India] is very labour intensive and a large number of labourers [are] required to do this work. It is also delicate work and needs to be handled carefully. We prefer young girl children for this task because with their delicate fingers (nimble fingers) they can handle this work better than adults. They also work more intensively than adults. We can control them easily. They listen to us and do what ever we ask them to do.
‘The most important thing is labour costs. Nearly half of our investment goes towards payment of labour charges. The wage rates for children are far lower than adult wages. We can reduce our labour costs considerably if we hire girl children. If we want to hire adult labour we have to pay higher wages. With current the procurement price we get from the seed companies we can not afford to pay higher wages to the labourers.'
- Sivaramakrishna, (Seed Farmer), Mahaboobnagar District, Andhra Pradesh
Thus the majority of the labour force in this labour intensive sector is children, primarily girls, preferred on counts of minimising costs (as labour costs account for about 50% of total cultivation costs in the industry) through low wages (well below market and official minimum standards), higher levels of productivity that can be extracted from children by way of longer hours (8 to 12 hours) and more intensive work regimes, and also effective control.
The situation is rendered more complex with reference to the elements of bonded labour, the role of large national and multinational companies and of the contract farmers, etc.
Citing a recent report, the exploitation of child labour in the industry is linked with larger market forces; a multi-tiered, complex economic relationship, masking social and legal responsibility. The nature and the scale of the problem also hold implications for child trafficking, and conditions of migrant workers.
The children for most part are employed on a long-term contract basis through advances and loans extended to their parents by local seed producers, who have agreements with the large multinational and national seed companies. Most of these children belong to the disadvantaged sections as the Scheduled Castes, the Scheduled Tribes, and the Other Backward Classes, and 90 per cent are either school dropouts or have never attended schools.
The situation of these children is further characterised by unsafe and exploitative conditions, which can be exemplified by reference to the regular resort to verbal abuse and physical violence by the employers, and a report of the brutal rape and killing of two minor girls in Kurnool District, Andhra Pradesh.
Another condition specific to the cottonseed cultivation industry is the exposure of the children to poisonous pesticides used in high quantities. This exposure to health risks was also cited in the report of Physicians for Human Rights, 2003. The general health problems reported by children working in this industry were seen to include severe headaches, nausea, weakness, convulsions and respiratory depression. A few child deaths due to pesticide exposure were also reported in Andhra Pradesh.
Some facts and figures further highlight the entrenchment of the problems in the Indian economy and the role of the various players. Andhra Pradesh, Tamil Nadu and Karnataka in South India and Gujarat and Maharashtra in Central India account for nearly 95 per cent of total cottonseed production in the country. In 2006-07 nearly 416, 460 children under the age of 18 (54% of which were under the age of 14) were employed on cottonseed farms in these states (with the exception of Maharashtra).
The role of several Indian companies (Nuziveedu, Raasi, Ankur and Mahyco – the last a joint venture partner of multinational company Monsanto) can be presented as prominent examples, and multinationals (for example Monsanto, Bayer) can be identified in making use of 200,000 children employed by farmers sub-contracted for BT cottonseed cultivation.
The increasing area coverage under commercial cotton and cottonseed production, with especial reference to the substantial increase in the area under BT hybrid cotton has resulted in the growing control of multinational companies in the industry (for instance Monsanto has patent right over BT gene, therefore indirect control through sub-licence agreements with Indian seed companies).
The strength of the concern for the issue of child labour in the face of large scale-violations has led to growing pressure from national and international civil society. This has resulted in some proactive initiatives (including initiatives by seed companies in their production farms) as well as interventions (especially in the state of Andhra Pradesh) by the government, NGOs (such as the MV Foundation), and other organisations (such as ILO-IPEC, UNICEF).
NGO interventions have focused on bringing girl children back to mainstream education, campaigns against child labour, etc. while the overall response of state and central governments as well as the seed industry remain wanting, whereby the impact of interventions becomes diffused.
Existing employment practices in cottonseed cultivation are in denial of rights of children and in violation of national laws and international conventions (denial of children's rights to education, health and safe living).
This form of bonded labour, work conditions and low wages are also in contravention of the national Children (Pledging for Labour) Act 1933, Bonded Labour System (Abolition) Act 1976, Child Labour (Prohibition and Regulation) Act 1986, Article 21A of the Indian Constitution which guarantees every child the right to free and compulsory education up to the age of 14 years, ILO Conventions Number 138 and 182 regarding minimum age for admission to employment and the prohibition of worst forms of child labour respectively as well as the UN Convention on the Rights of the Child.
This piece is informed by Davaluri Venkateswarlu’s recent report on 'Child Bondage Continues in Indian Cotton Supply Chain: More than 400,000 children in India involved in hybrid cottonseed cultivation' (Commissioned Study by India Committee of Netherlands, and OECD et al, September 2007) and proceeding reports highlighting the problem.
Thursday, October 18, 2007
FIR can’t wait for inquest: apex court
Legal Correspondent,Hindu October 18,2007
New Delhi: Registration of the first information report (FIR) in a murder case must be done immediately after the crime and it cannot be lodged after an inquest has been held.
“Lodging of FIR is necessary for setting the criminal law in motion. It can be lodged by anybody. Section 157 of the Code of Criminal Procedure mandates that the FIR [after it is registered] be sent to the nearest magistrate within 24 hours. It, however, should not be too sketchy so as to make initiation of investigation on the basis thereof impossible.”
Only information on commission of an offence might not to all intents and purposes satisfy the requirement of the FIR, said a Bench consisting of Justices S.B. Sinha and H.S. Bedi.
“FIR provides a valuable piece of evidence although it may not be substantial evidence. The reason for insisting on lodging of FIR without undue delay is to obtain the earlier information in regard to the circumstances, in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of an FIR is always considered to be vital.”
In the instant case, a trial court in Maharashtra awarded life imprisonment to Ramesh Baburao Davaskar and seven others holding them guilty in a murder case. The Bombay High Court confirmed their conviction and sentence of life imprisonment. Allowing the appeals against this judgment, the Bench agreed with counsel’s contention that the copy of the FIR, which was ante-timed, was received by the magistrate four days after the murder.
The Bench pointed out that no explanation had been offered for the delay in registering the FIR.
It acquitted the appellants and directed them to be set at liberty forthwith.
New Delhi: Registration of the first information report (FIR) in a murder case must be done immediately after the crime and it cannot be lodged after an inquest has been held.
“Lodging of FIR is necessary for setting the criminal law in motion. It can be lodged by anybody. Section 157 of the Code of Criminal Procedure mandates that the FIR [after it is registered] be sent to the nearest magistrate within 24 hours. It, however, should not be too sketchy so as to make initiation of investigation on the basis thereof impossible.”
Only information on commission of an offence might not to all intents and purposes satisfy the requirement of the FIR, said a Bench consisting of Justices S.B. Sinha and H.S. Bedi.
“FIR provides a valuable piece of evidence although it may not be substantial evidence. The reason for insisting on lodging of FIR without undue delay is to obtain the earlier information in regard to the circumstances, in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of an FIR is always considered to be vital.”
In the instant case, a trial court in Maharashtra awarded life imprisonment to Ramesh Baburao Davaskar and seven others holding them guilty in a murder case. The Bombay High Court confirmed their conviction and sentence of life imprisonment. Allowing the appeals against this judgment, the Bench agreed with counsel’s contention that the copy of the FIR, which was ante-timed, was received by the magistrate four days after the murder.
The Bench pointed out that no explanation had been offered for the delay in registering the FIR.
It acquitted the appellants and directed them to be set at liberty forthwith.
Constitutionalism and judicial governance
The judiciary’s effort to infuse accountability in the functioning of government institutions and the growth and development of human rights jurisprudence have demonstrated the importance of judicial governance.
C. Raj Kumar ,HINDU EDITORIAL PAGE OCTOBER 18,2007
When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.
Yet there were great expectations that in the years to come, the Constitution would move from a document worthy of admiration to a solid commitment on the part of power holders. It is this ability of Constitutions to act as limitations on the exercise of power, and in that process delineate the functions of the government and outline the rights of the people, that distinguishes them from other legislation. The experience of 60 years of constitutional governance helps us understand the working of the Constitution in general and the role of the judiciary in particular.
Constitutional historian Granville Austin said the transcendent goal of the Indian Constitution was to promote “social revolution.” For this, the framers intended to fulfil the basic needs of citizens, and hoped that it would bring about fundamental changes in the structure of Indian society. The theme of social revolution runs throughout the proceedings and documents of the Constituent Assembly. This theme formed the basis of the decision to adopt the parliamentary form of government and direct elections, the fundamental rights, the directive principles of state policy, and many of the executive, legislative, and judicial provisions of the Constitution. Although the social revolution theme was espoused throughout the Constitution, Parts III and IV — fundamental rights and directive principles of state policy — demonstrate the core of this commitment. These are perceived as the conscience of the Constitution, because they provide the base for human rights and human development policies for governance. The Constitution ensures that the fundamental rights are guaranteed as a matter of legal obligation rather than as a political concession. These are basic human rights and have been interpreted as civil, political, economic, social and cultural rights. Articles 12-35 of Part III elaborate on the fundamental rights. Articles 36-51 outline the framers’ vision for good governance and they constitute the directive principles of state policy. They are not enforceable in a court of law, but the principles laid down therein are fundamental to governance. It is the duty of the state to apply these principles in making and implementing laws.
The dialectical relationship between promoting constitutionalism and the development of judicial governance presents three important challenges for understanding the role of law and institutional politics in India:
Role of the judiciary: The judiciary is uniquely placed in the matrix of power structure within the system of governance. Judges are not elected but clearly have the power and indeed the responsibility to check the exercise of powers and actions of elected representatives and appointed officials. The judiciary as an institution is vastly respected, notwithstanding huge challenges in ensuring access to justice, judicial process and issues of transparency and accountability. It is vested with ensuring that the rights and freedoms of the people are protected and the powers exercised by the government in adopting policies are in accordance with the Constitution and other legislation.
In theory, if the different branches of the government adhere to the basic principle of separation of powers and function within their limits, it is considered a sound system of governance. In practice, however, a number of issues have emerged and challenges occurred. It is in this context that the three branches of the government — the legislature, the executive and the judiciary — need to have a certain degree of trust in, and deference to, the actions of one another in matters within their respective jurisdictions.
However, trust and deference in relation to the actions of a particular branch should not undermine the judiciary’s responsibility to adjudicate on the constitutional and legislative validity of the actions of the government. Clearly, this delicate balancing act of rightfully intervening when necessary requires a deeper understanding and appreciation of the principles of constitutionalism. Rule of law is about all people and institutions respecting laws and acting in accordance with the law. The legislature and the executive as collective powerhouses are bound by these principles as much as ordinary citizens are.
Judicial governance: The term ‘judicial governance’ in itself is subject to challenge as the judiciary is not supposed to be involved in ‘governance’. However, the effort of the Indian judiciary to infuse accountability in the functioning of government institutions, and the growth and development of human rights jurisprudence have demonstrated the central importance of judicial governance. Of course, there is no doubt that it has posed critical challenges to parliamentary accountability and executive powers and, more important, reinforced the need for improving efficiency and effectiveness of governmental institutions.
The need for social reform preceded the Constituent Assembly bestowing on the judiciary the role of guardian of individual rights. Hence, the protection of liberties within the constitutional framework needed to be balanced with achieving social reform. The Supreme Court perceived itself to be an institutional guardian of individual liberties against political aggression. In that process, it went beyond the framers’ vision of achieving an immediate social revolution. It took upon itself a role similar to that of the United States Supreme Court as defined by Chief Justice Marshall in Marbury vs. Madison (1803). This perception led the court to develop implied limitations on the powers of the political branch that is analogous to the U.S. judiciary’s approach to the separation of powers. The best known of these implied limitations, the ‘basic features limitation’, precludes the Indian Parliament from amending the Constitution in such a way as to displace its basic features.
Civil society expectations: Legal provisions relating to human rights as a normative framework provide little guidance and help for the masses in India who are aspiring to fulfil their basic rights, in particular their right to acquire and experience the basic needs of survival and existence. The civil society seeks to enforce good governance so that all human rights are promoted and protected. It is imperative for the Indian society to work towards internalising the values of constitutionalism so that the exercise of all powers is subject to accountability.
Undoubtedly, the wider civil society has embraced the notion of judicial governance, given the fact that it provides certain social expectations for creating accountability. The relaxation of the rules of locus standi; recognition of a range of human rights under the “right to life” provision of the Constitution, and the development of public interest litigation are important milestones in meeting civil society expectations on the working of the judiciary.
However, given the range of injustices in our society, institutional responses, including that of the judiciary, need to be further expanded. The Indian experience has demonstrated that the initial judicial recognition of human rights has culminated in the passage of an amendment, which guarantees the fundamental right to education.
If democracy is to become meaningful in India, it should be based on two important factors: enforcement of the rule of law and the reform of the political system – each dwelling upon the other. The judiciary is well suited to support both these initiatives.
(C. Raj Kumar is Associate Professor of Law at City University of Hong Kong and Honorary Consultant to the National Human Rights Commission in India. Email: crajkumar4@yahoo.com)
C. Raj Kumar ,HINDU EDITORIAL PAGE OCTOBER 18,2007
When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.
Yet there were great expectations that in the years to come, the Constitution would move from a document worthy of admiration to a solid commitment on the part of power holders. It is this ability of Constitutions to act as limitations on the exercise of power, and in that process delineate the functions of the government and outline the rights of the people, that distinguishes them from other legislation. The experience of 60 years of constitutional governance helps us understand the working of the Constitution in general and the role of the judiciary in particular.
Constitutional historian Granville Austin said the transcendent goal of the Indian Constitution was to promote “social revolution.” For this, the framers intended to fulfil the basic needs of citizens, and hoped that it would bring about fundamental changes in the structure of Indian society. The theme of social revolution runs throughout the proceedings and documents of the Constituent Assembly. This theme formed the basis of the decision to adopt the parliamentary form of government and direct elections, the fundamental rights, the directive principles of state policy, and many of the executive, legislative, and judicial provisions of the Constitution. Although the social revolution theme was espoused throughout the Constitution, Parts III and IV — fundamental rights and directive principles of state policy — demonstrate the core of this commitment. These are perceived as the conscience of the Constitution, because they provide the base for human rights and human development policies for governance. The Constitution ensures that the fundamental rights are guaranteed as a matter of legal obligation rather than as a political concession. These are basic human rights and have been interpreted as civil, political, economic, social and cultural rights. Articles 12-35 of Part III elaborate on the fundamental rights. Articles 36-51 outline the framers’ vision for good governance and they constitute the directive principles of state policy. They are not enforceable in a court of law, but the principles laid down therein are fundamental to governance. It is the duty of the state to apply these principles in making and implementing laws.
The dialectical relationship between promoting constitutionalism and the development of judicial governance presents three important challenges for understanding the role of law and institutional politics in India:
Role of the judiciary: The judiciary is uniquely placed in the matrix of power structure within the system of governance. Judges are not elected but clearly have the power and indeed the responsibility to check the exercise of powers and actions of elected representatives and appointed officials. The judiciary as an institution is vastly respected, notwithstanding huge challenges in ensuring access to justice, judicial process and issues of transparency and accountability. It is vested with ensuring that the rights and freedoms of the people are protected and the powers exercised by the government in adopting policies are in accordance with the Constitution and other legislation.
In theory, if the different branches of the government adhere to the basic principle of separation of powers and function within their limits, it is considered a sound system of governance. In practice, however, a number of issues have emerged and challenges occurred. It is in this context that the three branches of the government — the legislature, the executive and the judiciary — need to have a certain degree of trust in, and deference to, the actions of one another in matters within their respective jurisdictions.
However, trust and deference in relation to the actions of a particular branch should not undermine the judiciary’s responsibility to adjudicate on the constitutional and legislative validity of the actions of the government. Clearly, this delicate balancing act of rightfully intervening when necessary requires a deeper understanding and appreciation of the principles of constitutionalism. Rule of law is about all people and institutions respecting laws and acting in accordance with the law. The legislature and the executive as collective powerhouses are bound by these principles as much as ordinary citizens are.
Judicial governance: The term ‘judicial governance’ in itself is subject to challenge as the judiciary is not supposed to be involved in ‘governance’. However, the effort of the Indian judiciary to infuse accountability in the functioning of government institutions, and the growth and development of human rights jurisprudence have demonstrated the central importance of judicial governance. Of course, there is no doubt that it has posed critical challenges to parliamentary accountability and executive powers and, more important, reinforced the need for improving efficiency and effectiveness of governmental institutions.
The need for social reform preceded the Constituent Assembly bestowing on the judiciary the role of guardian of individual rights. Hence, the protection of liberties within the constitutional framework needed to be balanced with achieving social reform. The Supreme Court perceived itself to be an institutional guardian of individual liberties against political aggression. In that process, it went beyond the framers’ vision of achieving an immediate social revolution. It took upon itself a role similar to that of the United States Supreme Court as defined by Chief Justice Marshall in Marbury vs. Madison (1803). This perception led the court to develop implied limitations on the powers of the political branch that is analogous to the U.S. judiciary’s approach to the separation of powers. The best known of these implied limitations, the ‘basic features limitation’, precludes the Indian Parliament from amending the Constitution in such a way as to displace its basic features.
Civil society expectations: Legal provisions relating to human rights as a normative framework provide little guidance and help for the masses in India who are aspiring to fulfil their basic rights, in particular their right to acquire and experience the basic needs of survival and existence. The civil society seeks to enforce good governance so that all human rights are promoted and protected. It is imperative for the Indian society to work towards internalising the values of constitutionalism so that the exercise of all powers is subject to accountability.
Undoubtedly, the wider civil society has embraced the notion of judicial governance, given the fact that it provides certain social expectations for creating accountability. The relaxation of the rules of locus standi; recognition of a range of human rights under the “right to life” provision of the Constitution, and the development of public interest litigation are important milestones in meeting civil society expectations on the working of the judiciary.
However, given the range of injustices in our society, institutional responses, including that of the judiciary, need to be further expanded. The Indian experience has demonstrated that the initial judicial recognition of human rights has culminated in the passage of an amendment, which guarantees the fundamental right to education.
If democracy is to become meaningful in India, it should be based on two important factors: enforcement of the rule of law and the reform of the political system – each dwelling upon the other. The judiciary is well suited to support both these initiatives.
(C. Raj Kumar is Associate Professor of Law at City University of Hong Kong and Honorary Consultant to the National Human Rights Commission in India. Email: crajkumar4@yahoo.com)
Wednesday, October 17, 2007
Balance personal liberty and societal interest
The Hindu October 17,2007
Before issuing warrants, says court
New Delhi: Issuing guidelines to trial courts and the High Courts, the Supreme Court has said a non-bailable warrant (NBW) should be issued to bring a person to court when a bailable warrant is unlikely to have the desired result.
“This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or police authorities are unable to find the person to serve him with a summons; or it is considered that the person could harm someone if not placed in custody immediately,” said a Bench comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari.
Order set aside
The Bench was setting aside an order of the Uttarakhand High Court, which issued NBWs to secure the presence of two office-bearers of the Sanatan Dharma Pratinidhi Sabha on the basis of a criminal complaint against them.
Writing the judgment, Justice Bhandari said personal liberty was paramount. “Therefore, we caution courts to refrain from issuing NBWs. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants.”
The Bench said, “There cannot be any straightjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of a heinous crime and it is feared that he is likely to tamper with or destroy evidence or is likely to evade the process of law, issuance of NBWs should be avoided.”
It said, “As far as possible, if the court is of the opinion that a summons will suffice in getting the appearance of the accused in the court, summons or bailable warrants should be preferred. Warrants, either bailable or non-bailable, should never be issued without proper scrutiny of facts and complete application of mind, due to serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.”
Before issuing warrants, says court
New Delhi: Issuing guidelines to trial courts and the High Courts, the Supreme Court has said a non-bailable warrant (NBW) should be issued to bring a person to court when a bailable warrant is unlikely to have the desired result.
“This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or police authorities are unable to find the person to serve him with a summons; or it is considered that the person could harm someone if not placed in custody immediately,” said a Bench comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari.
Order set aside
The Bench was setting aside an order of the Uttarakhand High Court, which issued NBWs to secure the presence of two office-bearers of the Sanatan Dharma Pratinidhi Sabha on the basis of a criminal complaint against them.
Writing the judgment, Justice Bhandari said personal liberty was paramount. “Therefore, we caution courts to refrain from issuing NBWs. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants.”
The Bench said, “There cannot be any straightjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of a heinous crime and it is feared that he is likely to tamper with or destroy evidence or is likely to evade the process of law, issuance of NBWs should be avoided.”
It said, “As far as possible, if the court is of the opinion that a summons will suffice in getting the appearance of the accused in the court, summons or bailable warrants should be preferred. Warrants, either bailable or non-bailable, should never be issued without proper scrutiny of facts and complete application of mind, due to serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.”
Friday, August 03, 2007
Report of NHRC Committee on Missing Children
July 2, 2007
Deeply concerned with the manner in which young children went missing from Nithari village in Noida, UP, the National Human Rights Commission constituted a Committee on February 12, 2007 to examine the issue in depth. The Committee was also to evolve simple and practical guidelines so that the Commission can come up with appropriate recommendations. The Committee held wide ranging consultations with various stakeholders in government, including Ministry of Home Affairs, Ministry of Women & Child Development, Ministry of Labour, Ministry of Social Welfare, Delhi Government, Delhi Police, National Crime Records Bureau, UNICEF and leading NGOs in India working in this field and also experts having indepth knowledge of the subject.
After carrying out intensive consultations the NHRC committee came out with the following recommendations which would be forwarded to relevant authorities across the States and Union Territories and also to the Government of India so that tracing and restoring missing children back to their families would become an easier task.
Recommendations/Suggestions of the NHRC Committee
1. PRIORTY ISSUE: Irrefutably, the problem of 'Missing Children' is a grave matter which is also a human rights issue. It is acknowledged that it has not been received the attention it deserves from the government and society at large. Therefore, this issue needs to be made a "priority issue" by all stakeholders, especially the law enforcement agencies. The Directors General of Police of States should take appropriate steps to issue police orders/circulars/standing instructions etc., sensitize all officers in this regard and also make them accountable.
2. MISSING PERSONS SQUAD/DESK IN POLICE STATIONS: The Committee recommends that every Police Station across the country should have Special Squad/Missing Persons Desk to trace missing children. This Squad/Desk should have a Registering Officer who should be made responsible of registering complaints of missing children. He/she should maintain complete records of efforts made by them to trace missing children as well as by the Special Squad. The Registering Officer should also write incident reports and keep them on record in Station Diary/case diary, as the case may be. In addition to this, the Registering Officer should also work as an Enquiry Officer whereby he/she should be made responsible for following up the entire procedure of tracing/tracking the missing child. The JAPU (Juvenile Aid police Unit) can, if required, be utilized for addressing the issue of missing children, even though the children who are missing can never be labeled as juveniles, but are, in fact, children in need of care and attention. The functioning of this unit/squad should be regularly monitored/ reviewed by Senior Officers and wherever necessary timely instructions and assistance should be provided to the Registering-cum-Enquiry Officer.
3. COURT DIRECTIVES: There is a need to reiterate the implementation of the Supreme Court Guidelines given on 14/11/2002 in Writ Petition (Cri.) No 610 of 1996 filed by Horilal Vs. Commissioner of Police, Delhi & Ors. in all police stations across the country. This would entail prompt and effective steps for tracing missing children.
As per the directions given by the Delhi High Court, a Cell relating to missing persons/children was set up in the Central Bureau of Investigation (CBI). This Cell has been functioning ever since but due to lack of adequate resources, desired results could not be achieved. Since the CBI is a Central investigating agency having powers and jurisdiction to take up cases of inter-state and international ramifications, it would be desirable to strengthen this Cell to enhance its capacity to coordinate and investigate criminal cases relating to missing children and persons.
4. ROLE OF DISTRICT ADMINISTRATION: The legislation enjoins upon the district administration in the country to get places where children are employed, periodically inspected. The Committee notices with deep anguish that in this task the district administration all over the country has failed. This is evident from the fact that even today, the number of children found engaged as domestic help and bonded /child labour is enormous. Again, it is a matter of concern that in the identified cases of child labour and bonded labour in which prosecutions are launched against the employer the conviction rate is not even 1 per cent which obviously has resulted due to lack of supervision. Such an apathy towards this vital issue has to be curbed in favour of a proactive approach. The Committee urges the authorities concerned to hold district administration accountable for dereliction in discharging this responsibility.
The Committee is of the opinion that this exercise of regular inspections, if undertaken with all earnest, will ensure linking back a large number of children missing from their homes.
5. MANDATORY REPORTING: The State Police Headquarters should evolve a system of mandatory reporting whereby all incidents of missing children across the country should be reported to the newly constituted National Commission for Protection of Child Rights (NCPCR) within 24 hours of occurrence. Failure to report promptly would give rise to the presumption that there was an attempt to suppress the incident. The reporting should be done promptly and the procedure could be the same as is being followed by the concerned authorities for reporting custodial death cases to the NHRC.
6. INVOLVING PANCHAYAT RAJ INSTITUTIONS (PRIs) ETC: In order to make the investigative procedures concerning missing children more transparent and user-friendly, it would be preferable for the police investigating team to involve the community at large, such as representatives of Panchayati Raj Institutions / Municipal Committees/ Neighbourhood Committees/Resident Welfare Associations, etc, in addition to existing help lines. This will enable the community to get fully involved along with the police in tracing missing children. The Directors-General of Police should seriously consider taking full advantage of these agencies in the task of not only investigating crimes relating to children but also in tracking down missing children. The role of Panchayats and such bodies should be extended to:
· Prompt reporting of missing children;
· Prompt dissemination of intelligence, if any, to the law enforcement agencies;
· Rendering assistance to law enforcement agencies for tracing children;
· Provide timely feed-back to the law enforcement agencies about the return of the child..
7. INVOLVING NGO's: In places where vulnerable groups of children are found in large numbers, there is need for enforcement agencies to evolve some kind of a mechanism in partnership with non-governmental organizations and social workers, whereby apart from rendering counseling to them, awareness raising activities are also carried out. This would not only instill confidence in them but also strengthen them and give them special protection so that they are in no way lured by external agencies/factors. This initiative could be taken by the Missing Children Squad/Cell in the Districts. The DGPs need to ensure action on this initiative.
8. NATIONAL DATABASE AND MONITORING: NCRB should establish a National Tracking System that would encompass the grass-root level in locating and tracing missing children. There should be prompt reporting of not only missing children cases, but also of return/rescue/recovery. All instances where children are rescued from places of exploitation including places of sexual exploitation and also exploitative labour, should be dovetailed into the NCRB data base. The database should be updated on a regular and systematic basis. This also involves revising the reporting format with respect to the rescue and recovery of persons who have been trafficked. The Director NCRB should liaise with the Project Coordinator, Anti Human Trafficking UNODC, New Delhi and workout the format as the UNODC is working in the field of empowering law enforcement agencies and developing appropriate projects etc. with respect to Anti Human Trafficking and related issues. This could be made effective through web-based and other intra and inter State networking linkages. The information that is gathered ought to be appropriately disseminated. It is suggested that the NCRB evolve one-page useful position papers that has information with regard to various crimes, including the relevant statistics. This could be useful and accessible tool for different agencies that are dealing with a particular problem. For example, relevant information relating to missing children, if it is put in a page or two will be far more accessible and readable for all stakeholders than information complied as part of a voluminous report prepared by the NCRB.
9. SCRB/DCRB: There is an urgent need to revive State/District Crime Records Bureax. The database on missing persons, their return and the processes involved should be properly documented. The State Missing Person's Bureax (MPB), needs to be revamped, made functional and strengthened. The officers should be well trained and knowledgeable to address the issues in an analytical manner and from the perspective of Human Rights. The SCRB and the MPB should have proper liaison between them, so that the database of SCRB and NCRB are dovetailed to the functioning of MPB and the Special cell/ squad to be set up in the Police Stations. The MPB data should be specifically updated with the data of rescued children from trafficking crimes.
10. HELPLINE: There is a need to establish a Child Helpline through NGOs/PRIs/other agencies with adequate support from Government in all the districts. The Department of Women & Child Development, Govt. of India, may take the initiative to set up such a national network.
11. OUTSOURCING PRELIMINARY INQUIRY TO NGOs: The NHRC Committee came to know about several instances where NGOs are actively functional, delivering the best results, in tracing missing children and also documenting them. Such efforts and initiatives have supplemented the work of the law enforcement agencies. The synergy of police and NGOs can be of immense help in addressing this issue and in providing tremendous support to the police agencies who are preoccupied with several other tasks, especially in those places where the police station strength is very poor. Therefore, Preliminary Inquiry into missing persons could be outsourced to NGOs, who are willing to undertake this task. MHA may issue appropriate guidelines to the States in this regard. Each State can identify a few such NGOs and notify them if required. As of today nothing stops NGOs from causing such inquiries and many are already doing this work. Therefore, the best option, in the given situation, is to develop synergy between the law enforcement agencies and the NGOs and institutionalize this partnership.
12. COGNIZABILITY OF THE EVIDENCE: As of now the issue of missing children is not a cognizable offence and the very fact of missing of a child does not convey occurrence of a crime. However, some States like Andhra Pradesh, Tamil Nadu allow police to register FIRs and take up investigation. In order to facilitate proper enquiry/investigation, it is advisable that an FIR is registered by the police with respect to the issue of missing children. However, experience shows that in many cases a child may not have gone missing and the panic reaction of the parents or wards lead to such reporting. Therefore, all such issues may not warrant registration of an FIR immediately. Nevertheless, it is advisable to register FIR if a missing child does not come back or is not traced within a reasonable time. The State Governments are advised to consider issue of appropriate directions to the law enforcement agencies to set a time limit of 15 days from the date of reporting that if a missing child is not traced back within 15 days, a presumption may be made of some malafide and an FIR registered with respect to all such issues of missing children.
13. SENSITIZATION OF STAKE HOLDERS: There is a need to sensitize all ranks of police personnel and other stakeholders to the issue of missing children. For this a two-day module be designed by BPRD, so that uniform training is imparted to all concerned. Along with this, there is a need to prepare suitable reading material that includes good practices about missing children from other States/Union Territories as well as other countries.
14. RESCUE OF CHILDREN IN NEED OF CARE AND ATTENTION: There is a need to identify "run away children", "abandoned children" "neglected children" and such "vulnerable children" who are often found roaming around places where they are particularly exposed to abuse and exploitation such as railway stations, traffic junction etc. Their vulnerability increases due to a lack of support structures - family or otherwise. Proper identification, provision of care and support, and a 'safe place' is vital for them. These children are, under the JJ Act, are the children in need of care and attention which they should be given. This can be achieved by producing them before CWC and ensuring proper care in the concerned Homes. If Government Homes are not available, Government agencies should support appropriate NGOs to set up such Homes. The State Governments are called upon to notify such NGOs immediately so that they can become functional without delay. States should ensure that such notifications are done on a time frame of one month from the date of application by the NGOs.
15. I-CARD FOR CHIDREN: The local administration should facilitate the schools to keep a watch on their children, especially when they become untraced or become dropouts. Schools and old teaching institutions should introduce photo identity cards of children, so that tracing is possible. All such photos with identity particulars be documented and data base be developed urgently. The State Governments and the Central Government should take initiatives in this regard. Schools should embark on a programme of empowering the children on their rights, legal strengths and defence mechanisms in case of need.
16. POVERTY ALLEVIATION MEASURES: It is acknowledged that poverty is one of the main factors in pushing children into inhospitable conditions and making them vulnerable for exploitation. The Central and State Governments have introduced several schemes to be implemented at Gram Panchayat level with the object of providing job opportunities to the poor and the disadvantaged and elevating them from the poverty line. All these programmes, especially concerning children welfare should be properly planned at the Gram Sabha level following the Antyodaya approach. Schemes such as Mid-day Meal Scheme, Sarva Siksha Abhiyaan, Health Immunization etc. deserve to be properly monitored for achieving optimum results. Proper implementation of these poverty alleviation programs are indeed a human rights approach. If such schemes and programmes of the Government are implemented it can be reasonably expected that the vulnerable sections will become empowered to resist exploitation that often takes place now.
17. ROLE OF STATE COMMISSIONS: There is a need to involve State Human Rights Commissions, Women Commission of State/ Centre etc., with regard to the issue of missing children. Such bodies have tremendous overarching influence on all stakeholders in addressing the issues appropriately in their respective jurisdictions.
18. ROLE OF MEDIA: In view of the current dreadful situation, the media can play an important role in increasing public awareness of missing children and the plight of the thousands of hapless families whose children are listed as untraced. This could be achieved as follows:
§ At the newsroom level, crime reporters and metro editors need to include the category of missing children as a regular beat and as part of their daily news grind.
· These stories need to be followed up and tracked regularly just like other stories of murder, human trafficking, etc. A LOST and FOUND series could be commenced. The cases of missing children being traced/returned home should be treated as the ``good news" stories which will also encourage the police/local authorities to step up their actions.
· The large picture story on the enormity of the continuing malaise of missing children, could coincide with Human Rights Day, Children's Day and so on.
· Newspapers can make a separate section in their classified sections on missing children. The notices and advertisements on missing children need to have a better display and be given more prominence and space in newspapers and TV bulletins.
· Just as some newspapers carry a daily/weekly count of say, victims of terrorism, a new slot of missing children in the city/country can be commenced.
· Newspapers or TV channels with an emphasis on local news can have an arrangement with either the police or a local NGO, which has worked in the area to print without charge announcements and advertisements on missing children.
· The missing child story should also be picked up for the daily crime shows many TV channels have commenced. Just as investigative stories are done on the flesh trade, on organ smuggling etc. case studies of how missing children end up in brothels or factories can be carried. Cases can be picked from solved cases or; where children were smuggled across borders. Identities can be masked if need be.
· Media organizations like media unions, the women's press corps and so on can collaborate with agencies like the NHRC and other NGOs working on children's rights issues to hold seminars and symposiums on the subject.
19. ATTENTION TO TRANSIT POINTS OF TRAFFICKING: There is a need to keep special vigils at railway stations, bus-stands, airports, sea- ports and such other places, which act as transit points for missing children, including children who run away or are made to run away. In this context, the Government Railway Police, the Railway Protection Force, Airport and Seaport authorities needs to be oriented about the issue of missing children.
20. MISSING CHILDREN FROM ACROSS BORDER: This is a grey area, which largely remains unaddressed. It has been reported that several foreign children who have been trafficked into India have been punished as illegal immigrants and are made to suffer. NHRC recommends the state governments to undertake review of all such cases and provide relief to such children, as all trafficked children, irrespective of their nationality, are children in need of care and attention. Moreover, there is a need of developing a Protocol on this issue. It is learnt that UNODC in its anti human trafficking project can provide the required technical assistance. In this regard the Ministry of Women and Child Development can utilize the technical assistance of UNODC and in close coordination with the MEA, develop a protocol on this topic. The Project Coordinator, UNODC may provide the required technical assistance.
21. SURVEY AND RESEARCH: The world of missing children is unknown and there is no proper study or research on this issue. Even today the exact figures of missing or traced children are not available. The existing legislation requires the State and district authorities to periodically carry out inspections/surveys of places where children are employed with a view to identifying missing children and those engaged in bonded labour/child labour. This task has remained a low priority area. There is an urgent need for the State administration to undertake micro studies especially at the places where children are reportedly vulnerable.
A village-wise survey of all children who have gone missing or even recovered is an urgent need to understand the realistic dimensions of the problem. Studies by academic institutions into various factors behind the vulnerability of children are recommended in order to generate right response.
Deeply concerned with the manner in which young children went missing from Nithari village in Noida, UP, the National Human Rights Commission constituted a Committee on February 12, 2007 to examine the issue in depth. The Committee was also to evolve simple and practical guidelines so that the Commission can come up with appropriate recommendations. The Committee held wide ranging consultations with various stakeholders in government, including Ministry of Home Affairs, Ministry of Women & Child Development, Ministry of Labour, Ministry of Social Welfare, Delhi Government, Delhi Police, National Crime Records Bureau, UNICEF and leading NGOs in India working in this field and also experts having indepth knowledge of the subject.
After carrying out intensive consultations the NHRC committee came out with the following recommendations which would be forwarded to relevant authorities across the States and Union Territories and also to the Government of India so that tracing and restoring missing children back to their families would become an easier task.
Recommendations/Suggestions of the NHRC Committee
1. PRIORTY ISSUE: Irrefutably, the problem of 'Missing Children' is a grave matter which is also a human rights issue. It is acknowledged that it has not been received the attention it deserves from the government and society at large. Therefore, this issue needs to be made a "priority issue" by all stakeholders, especially the law enforcement agencies. The Directors General of Police of States should take appropriate steps to issue police orders/circulars/standing instructions etc., sensitize all officers in this regard and also make them accountable.
2. MISSING PERSONS SQUAD/DESK IN POLICE STATIONS: The Committee recommends that every Police Station across the country should have Special Squad/Missing Persons Desk to trace missing children. This Squad/Desk should have a Registering Officer who should be made responsible of registering complaints of missing children. He/she should maintain complete records of efforts made by them to trace missing children as well as by the Special Squad. The Registering Officer should also write incident reports and keep them on record in Station Diary/case diary, as the case may be. In addition to this, the Registering Officer should also work as an Enquiry Officer whereby he/she should be made responsible for following up the entire procedure of tracing/tracking the missing child. The JAPU (Juvenile Aid police Unit) can, if required, be utilized for addressing the issue of missing children, even though the children who are missing can never be labeled as juveniles, but are, in fact, children in need of care and attention. The functioning of this unit/squad should be regularly monitored/ reviewed by Senior Officers and wherever necessary timely instructions and assistance should be provided to the Registering-cum-Enquiry Officer.
3. COURT DIRECTIVES: There is a need to reiterate the implementation of the Supreme Court Guidelines given on 14/11/2002 in Writ Petition (Cri.) No 610 of 1996 filed by Horilal Vs. Commissioner of Police, Delhi & Ors. in all police stations across the country. This would entail prompt and effective steps for tracing missing children.
As per the directions given by the Delhi High Court, a Cell relating to missing persons/children was set up in the Central Bureau of Investigation (CBI). This Cell has been functioning ever since but due to lack of adequate resources, desired results could not be achieved. Since the CBI is a Central investigating agency having powers and jurisdiction to take up cases of inter-state and international ramifications, it would be desirable to strengthen this Cell to enhance its capacity to coordinate and investigate criminal cases relating to missing children and persons.
4. ROLE OF DISTRICT ADMINISTRATION: The legislation enjoins upon the district administration in the country to get places where children are employed, periodically inspected. The Committee notices with deep anguish that in this task the district administration all over the country has failed. This is evident from the fact that even today, the number of children found engaged as domestic help and bonded /child labour is enormous. Again, it is a matter of concern that in the identified cases of child labour and bonded labour in which prosecutions are launched against the employer the conviction rate is not even 1 per cent which obviously has resulted due to lack of supervision. Such an apathy towards this vital issue has to be curbed in favour of a proactive approach. The Committee urges the authorities concerned to hold district administration accountable for dereliction in discharging this responsibility.
The Committee is of the opinion that this exercise of regular inspections, if undertaken with all earnest, will ensure linking back a large number of children missing from their homes.
5. MANDATORY REPORTING: The State Police Headquarters should evolve a system of mandatory reporting whereby all incidents of missing children across the country should be reported to the newly constituted National Commission for Protection of Child Rights (NCPCR) within 24 hours of occurrence. Failure to report promptly would give rise to the presumption that there was an attempt to suppress the incident. The reporting should be done promptly and the procedure could be the same as is being followed by the concerned authorities for reporting custodial death cases to the NHRC.
6. INVOLVING PANCHAYAT RAJ INSTITUTIONS (PRIs) ETC: In order to make the investigative procedures concerning missing children more transparent and user-friendly, it would be preferable for the police investigating team to involve the community at large, such as representatives of Panchayati Raj Institutions / Municipal Committees/ Neighbourhood Committees/Resident Welfare Associations, etc, in addition to existing help lines. This will enable the community to get fully involved along with the police in tracing missing children. The Directors-General of Police should seriously consider taking full advantage of these agencies in the task of not only investigating crimes relating to children but also in tracking down missing children. The role of Panchayats and such bodies should be extended to:
· Prompt reporting of missing children;
· Prompt dissemination of intelligence, if any, to the law enforcement agencies;
· Rendering assistance to law enforcement agencies for tracing children;
· Provide timely feed-back to the law enforcement agencies about the return of the child..
7. INVOLVING NGO's: In places where vulnerable groups of children are found in large numbers, there is need for enforcement agencies to evolve some kind of a mechanism in partnership with non-governmental organizations and social workers, whereby apart from rendering counseling to them, awareness raising activities are also carried out. This would not only instill confidence in them but also strengthen them and give them special protection so that they are in no way lured by external agencies/factors. This initiative could be taken by the Missing Children Squad/Cell in the Districts. The DGPs need to ensure action on this initiative.
8. NATIONAL DATABASE AND MONITORING: NCRB should establish a National Tracking System that would encompass the grass-root level in locating and tracing missing children. There should be prompt reporting of not only missing children cases, but also of return/rescue/recovery. All instances where children are rescued from places of exploitation including places of sexual exploitation and also exploitative labour, should be dovetailed into the NCRB data base. The database should be updated on a regular and systematic basis. This also involves revising the reporting format with respect to the rescue and recovery of persons who have been trafficked. The Director NCRB should liaise with the Project Coordinator, Anti Human Trafficking UNODC, New Delhi and workout the format as the UNODC is working in the field of empowering law enforcement agencies and developing appropriate projects etc. with respect to Anti Human Trafficking and related issues. This could be made effective through web-based and other intra and inter State networking linkages. The information that is gathered ought to be appropriately disseminated. It is suggested that the NCRB evolve one-page useful position papers that has information with regard to various crimes, including the relevant statistics. This could be useful and accessible tool for different agencies that are dealing with a particular problem. For example, relevant information relating to missing children, if it is put in a page or two will be far more accessible and readable for all stakeholders than information complied as part of a voluminous report prepared by the NCRB.
9. SCRB/DCRB: There is an urgent need to revive State/District Crime Records Bureax. The database on missing persons, their return and the processes involved should be properly documented. The State Missing Person's Bureax (MPB), needs to be revamped, made functional and strengthened. The officers should be well trained and knowledgeable to address the issues in an analytical manner and from the perspective of Human Rights. The SCRB and the MPB should have proper liaison between them, so that the database of SCRB and NCRB are dovetailed to the functioning of MPB and the Special cell/ squad to be set up in the Police Stations. The MPB data should be specifically updated with the data of rescued children from trafficking crimes.
10. HELPLINE: There is a need to establish a Child Helpline through NGOs/PRIs/other agencies with adequate support from Government in all the districts. The Department of Women & Child Development, Govt. of India, may take the initiative to set up such a national network.
11. OUTSOURCING PRELIMINARY INQUIRY TO NGOs: The NHRC Committee came to know about several instances where NGOs are actively functional, delivering the best results, in tracing missing children and also documenting them. Such efforts and initiatives have supplemented the work of the law enforcement agencies. The synergy of police and NGOs can be of immense help in addressing this issue and in providing tremendous support to the police agencies who are preoccupied with several other tasks, especially in those places where the police station strength is very poor. Therefore, Preliminary Inquiry into missing persons could be outsourced to NGOs, who are willing to undertake this task. MHA may issue appropriate guidelines to the States in this regard. Each State can identify a few such NGOs and notify them if required. As of today nothing stops NGOs from causing such inquiries and many are already doing this work. Therefore, the best option, in the given situation, is to develop synergy between the law enforcement agencies and the NGOs and institutionalize this partnership.
12. COGNIZABILITY OF THE EVIDENCE: As of now the issue of missing children is not a cognizable offence and the very fact of missing of a child does not convey occurrence of a crime. However, some States like Andhra Pradesh, Tamil Nadu allow police to register FIRs and take up investigation. In order to facilitate proper enquiry/investigation, it is advisable that an FIR is registered by the police with respect to the issue of missing children. However, experience shows that in many cases a child may not have gone missing and the panic reaction of the parents or wards lead to such reporting. Therefore, all such issues may not warrant registration of an FIR immediately. Nevertheless, it is advisable to register FIR if a missing child does not come back or is not traced within a reasonable time. The State Governments are advised to consider issue of appropriate directions to the law enforcement agencies to set a time limit of 15 days from the date of reporting that if a missing child is not traced back within 15 days, a presumption may be made of some malafide and an FIR registered with respect to all such issues of missing children.
13. SENSITIZATION OF STAKE HOLDERS: There is a need to sensitize all ranks of police personnel and other stakeholders to the issue of missing children. For this a two-day module be designed by BPRD, so that uniform training is imparted to all concerned. Along with this, there is a need to prepare suitable reading material that includes good practices about missing children from other States/Union Territories as well as other countries.
14. RESCUE OF CHILDREN IN NEED OF CARE AND ATTENTION: There is a need to identify "run away children", "abandoned children" "neglected children" and such "vulnerable children" who are often found roaming around places where they are particularly exposed to abuse and exploitation such as railway stations, traffic junction etc. Their vulnerability increases due to a lack of support structures - family or otherwise. Proper identification, provision of care and support, and a 'safe place' is vital for them. These children are, under the JJ Act, are the children in need of care and attention which they should be given. This can be achieved by producing them before CWC and ensuring proper care in the concerned Homes. If Government Homes are not available, Government agencies should support appropriate NGOs to set up such Homes. The State Governments are called upon to notify such NGOs immediately so that they can become functional without delay. States should ensure that such notifications are done on a time frame of one month from the date of application by the NGOs.
15. I-CARD FOR CHIDREN: The local administration should facilitate the schools to keep a watch on their children, especially when they become untraced or become dropouts. Schools and old teaching institutions should introduce photo identity cards of children, so that tracing is possible. All such photos with identity particulars be documented and data base be developed urgently. The State Governments and the Central Government should take initiatives in this regard. Schools should embark on a programme of empowering the children on their rights, legal strengths and defence mechanisms in case of need.
16. POVERTY ALLEVIATION MEASURES: It is acknowledged that poverty is one of the main factors in pushing children into inhospitable conditions and making them vulnerable for exploitation. The Central and State Governments have introduced several schemes to be implemented at Gram Panchayat level with the object of providing job opportunities to the poor and the disadvantaged and elevating them from the poverty line. All these programmes, especially concerning children welfare should be properly planned at the Gram Sabha level following the Antyodaya approach. Schemes such as Mid-day Meal Scheme, Sarva Siksha Abhiyaan, Health Immunization etc. deserve to be properly monitored for achieving optimum results. Proper implementation of these poverty alleviation programs are indeed a human rights approach. If such schemes and programmes of the Government are implemented it can be reasonably expected that the vulnerable sections will become empowered to resist exploitation that often takes place now.
17. ROLE OF STATE COMMISSIONS: There is a need to involve State Human Rights Commissions, Women Commission of State/ Centre etc., with regard to the issue of missing children. Such bodies have tremendous overarching influence on all stakeholders in addressing the issues appropriately in their respective jurisdictions.
18. ROLE OF MEDIA: In view of the current dreadful situation, the media can play an important role in increasing public awareness of missing children and the plight of the thousands of hapless families whose children are listed as untraced. This could be achieved as follows:
§ At the newsroom level, crime reporters and metro editors need to include the category of missing children as a regular beat and as part of their daily news grind.
· These stories need to be followed up and tracked regularly just like other stories of murder, human trafficking, etc. A LOST and FOUND series could be commenced. The cases of missing children being traced/returned home should be treated as the ``good news" stories which will also encourage the police/local authorities to step up their actions.
· The large picture story on the enormity of the continuing malaise of missing children, could coincide with Human Rights Day, Children's Day and so on.
· Newspapers can make a separate section in their classified sections on missing children. The notices and advertisements on missing children need to have a better display and be given more prominence and space in newspapers and TV bulletins.
· Just as some newspapers carry a daily/weekly count of say, victims of terrorism, a new slot of missing children in the city/country can be commenced.
· Newspapers or TV channels with an emphasis on local news can have an arrangement with either the police or a local NGO, which has worked in the area to print without charge announcements and advertisements on missing children.
· The missing child story should also be picked up for the daily crime shows many TV channels have commenced. Just as investigative stories are done on the flesh trade, on organ smuggling etc. case studies of how missing children end up in brothels or factories can be carried. Cases can be picked from solved cases or; where children were smuggled across borders. Identities can be masked if need be.
· Media organizations like media unions, the women's press corps and so on can collaborate with agencies like the NHRC and other NGOs working on children's rights issues to hold seminars and symposiums on the subject.
19. ATTENTION TO TRANSIT POINTS OF TRAFFICKING: There is a need to keep special vigils at railway stations, bus-stands, airports, sea- ports and such other places, which act as transit points for missing children, including children who run away or are made to run away. In this context, the Government Railway Police, the Railway Protection Force, Airport and Seaport authorities needs to be oriented about the issue of missing children.
20. MISSING CHILDREN FROM ACROSS BORDER: This is a grey area, which largely remains unaddressed. It has been reported that several foreign children who have been trafficked into India have been punished as illegal immigrants and are made to suffer. NHRC recommends the state governments to undertake review of all such cases and provide relief to such children, as all trafficked children, irrespective of their nationality, are children in need of care and attention. Moreover, there is a need of developing a Protocol on this issue. It is learnt that UNODC in its anti human trafficking project can provide the required technical assistance. In this regard the Ministry of Women and Child Development can utilize the technical assistance of UNODC and in close coordination with the MEA, develop a protocol on this topic. The Project Coordinator, UNODC may provide the required technical assistance.
21. SURVEY AND RESEARCH: The world of missing children is unknown and there is no proper study or research on this issue. Even today the exact figures of missing or traced children are not available. The existing legislation requires the State and district authorities to periodically carry out inspections/surveys of places where children are employed with a view to identifying missing children and those engaged in bonded labour/child labour. This task has remained a low priority area. There is an urgent need for the State administration to undertake micro studies especially at the places where children are reportedly vulnerable.
A village-wise survey of all children who have gone missing or even recovered is an urgent need to understand the realistic dimensions of the problem. Studies by academic institutions into various factors behind the vulnerability of children are recommended in order to generate right response.
NHRC Calls For Forceful Implementation Of
New Delhi, February 4, 2007
'NHRC commits to enforcement of Rights of Children', this was stated by Dr. Justice Shivaraj V. Patil, Acting Chairperson of NHRC at the valedictory function of a two-day National Conference on Juvenile Justice System in India organized by the Commission. Dr. Patil said that the provisions of Juvenile Justice Act, 2000 along with its amendments in 2006 have to be looked into and forcefully enforced to get the maximum result. He said there has to be a development-oriented culture for the Rights of Children.
The Acting Chairperson said Section IV of the Act as amended makes its mandatory for the Constitution of Juvenile Justice Board in every district in a time period of one year. He said we should take a cue from this and exercise our legal rights if no such board is established at the expire of one year on August 22, 2007. He said the distinguish gathering which deliberated the issue for two days can always sit together again and discuss legal and constitutional angles threadbare so that we can come out with few but concrete recommendations which will go a long way in brining about difference in the life of juveniles. He said these recommendations have to be vital, meaningful and effective for the enforcement of the Juvenile Justice Act. Referring to the NGOs, he said they are the eyes and ears of the Commission on what is happening in the field and with their experience can enrich the tasks which will be taken up by the Commission. He called for sensitizing the field functionary so that no juvenile is treated as an accused but helped to join the mainstream of the society.
The experts in the field who deliberated for two-days came out with a number of suggestions, they include:-
· Juvenile Justice System (JJS) must become an integral part of human resource development planning and kept apart from criminal justice system to ensure development opportunities for children in conflict with law and in need of care and protection, without alienating them from social mainstream, the participants at the two-day conference on JJS suggested.
· The conference felt that there is an urgent need to ensure that appropriate bodies are constituted in every district of every State and UT to expeditiously take up cases relating to juveniles and children in need of care and protection. The participants perceived that the Juvenile Justice Board (JJB) should protect the best interests of the juveniles and in no way function as a criminal court. The delegates stressed that to achieve this sensitizing personnel responsible for the implementation of Juvenile Justice System is essential. They were of the view that a variety of measures suggested in the Juvenile Justice Act 2000 with its amendments of 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles.
NHRC which is currently monitoring the status of implementation of JJ Act, 2000 has felt that majority of the States have not constituted the required number of these Institutions / Boards as prescribed in the Act.
· The Conference felt unanimously that the number of homes/institutions catering to the needs of juveniles, their capacity and the financial allocations were not in tune with the requirement. The amount spent on vocational training, health and recreation was negligible and there was a need to converge all the resources for this purpose. They felt that there is a need to set up adequate number of institutions like Observation Homes, Special Homes, Children Homes, Shelter Homes and After Care Organizations to ensure holistic rehabilitation and reintegration of such children. The Commission has said that there is an urgent need to reconstitute Central, State, District and City Advisory Boards in compliance with Sec 62 A of the JJA 2000. The Commission's monitoring has further revealed the absence of rules in many States and Union Territories under the JJA 2000.
· Keeping in view the NHRC's observations, it was felt that the Commission can direct all the State Governments / Union Territories to frame the required rules under the amended Act within three months. And also ask them to constitute Child Protection Units in every district to take up matters related to such children.
· All the speakers strongly supported the idea that under no circumstance, a juvenile or a child should be lodged in a police lock up or a jail and at least one police officer should be designated as the juvenile or child welfare officer. Such officer should be given training to deal with juveniles or children. They also felt the need that the Special Juvenile Police Unit should inform a Member of JJB, the probation officer, the parents/ guardian of the juvenile placed under their charge.
· As per the amended JJA, the State Govt./ JJB should review all cases where a juvenile is undergoing sentence. It should also be ensured that child friendly measures for keeping the child integrated with the family and mainstream of the society are adopted. They said such a move would not push the juveniles back to commit any offence and prevent them from becoming hardened criminals.
· They were of the view that a variety of dispositions as suggested in the 2000 and the amended Juvenile Justice Act 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles. The Conference said probation played a significant role in the treatment and rehabilitation of juveniles. All the delegates felt that probation could be used as an effective alternative rather than sentencing the juveniles or confining them to some institutions. They also emphasized the need to ensure free legal aid to juveniles and a patient hearing in all legal proceedings against them taking into account their dignity and best interest.
· The delegates also stressed the need for formulating minimum standards for various community and institutional services for juveniles/children under the amended act and suggested that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules) be the basis for formulating these standards.
· The conference also highlighted the need for specialized training modules for persons involved in the implementation of Juvenile Justice System. All concerned must be imparted specialized knowledge about the philosophy of juvenile justice and the Juvenile Justice (Care and Protection of Children) Act under which they operate besides international human rights standards and instrument relating to administration of juvenile justice.
The two-day Conference on February 3 & 4, 2007 deliberated on a number of issues including situational analysis of children, emerging issues in Juvenile Justice System, children in conflict with law: adjudication and dispositional alternatives, Community based models for care and protection of children and Preparation of action plan on Juvenile Justice. Hundred participants from all over the country comprising Judicial Officers, Chairpersons/Members of Juvenile Justice Board/Welfare Committees, Academicians, Government Officials, Police Officials, Social Activist and Senior representatives of voluntary organizations joined the Conference to exchange their views on the issue.
'NHRC commits to enforcement of Rights of Children', this was stated by Dr. Justice Shivaraj V. Patil, Acting Chairperson of NHRC at the valedictory function of a two-day National Conference on Juvenile Justice System in India organized by the Commission. Dr. Patil said that the provisions of Juvenile Justice Act, 2000 along with its amendments in 2006 have to be looked into and forcefully enforced to get the maximum result. He said there has to be a development-oriented culture for the Rights of Children.
The Acting Chairperson said Section IV of the Act as amended makes its mandatory for the Constitution of Juvenile Justice Board in every district in a time period of one year. He said we should take a cue from this and exercise our legal rights if no such board is established at the expire of one year on August 22, 2007. He said the distinguish gathering which deliberated the issue for two days can always sit together again and discuss legal and constitutional angles threadbare so that we can come out with few but concrete recommendations which will go a long way in brining about difference in the life of juveniles. He said these recommendations have to be vital, meaningful and effective for the enforcement of the Juvenile Justice Act. Referring to the NGOs, he said they are the eyes and ears of the Commission on what is happening in the field and with their experience can enrich the tasks which will be taken up by the Commission. He called for sensitizing the field functionary so that no juvenile is treated as an accused but helped to join the mainstream of the society.
The experts in the field who deliberated for two-days came out with a number of suggestions, they include:-
· Juvenile Justice System (JJS) must become an integral part of human resource development planning and kept apart from criminal justice system to ensure development opportunities for children in conflict with law and in need of care and protection, without alienating them from social mainstream, the participants at the two-day conference on JJS suggested.
· The conference felt that there is an urgent need to ensure that appropriate bodies are constituted in every district of every State and UT to expeditiously take up cases relating to juveniles and children in need of care and protection. The participants perceived that the Juvenile Justice Board (JJB) should protect the best interests of the juveniles and in no way function as a criminal court. The delegates stressed that to achieve this sensitizing personnel responsible for the implementation of Juvenile Justice System is essential. They were of the view that a variety of measures suggested in the Juvenile Justice Act 2000 with its amendments of 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles.
NHRC which is currently monitoring the status of implementation of JJ Act, 2000 has felt that majority of the States have not constituted the required number of these Institutions / Boards as prescribed in the Act.
· The Conference felt unanimously that the number of homes/institutions catering to the needs of juveniles, their capacity and the financial allocations were not in tune with the requirement. The amount spent on vocational training, health and recreation was negligible and there was a need to converge all the resources for this purpose. They felt that there is a need to set up adequate number of institutions like Observation Homes, Special Homes, Children Homes, Shelter Homes and After Care Organizations to ensure holistic rehabilitation and reintegration of such children. The Commission has said that there is an urgent need to reconstitute Central, State, District and City Advisory Boards in compliance with Sec 62 A of the JJA 2000. The Commission's monitoring has further revealed the absence of rules in many States and Union Territories under the JJA 2000.
· Keeping in view the NHRC's observations, it was felt that the Commission can direct all the State Governments / Union Territories to frame the required rules under the amended Act within three months. And also ask them to constitute Child Protection Units in every district to take up matters related to such children.
· All the speakers strongly supported the idea that under no circumstance, a juvenile or a child should be lodged in a police lock up or a jail and at least one police officer should be designated as the juvenile or child welfare officer. Such officer should be given training to deal with juveniles or children. They also felt the need that the Special Juvenile Police Unit should inform a Member of JJB, the probation officer, the parents/ guardian of the juvenile placed under their charge.
· As per the amended JJA, the State Govt./ JJB should review all cases where a juvenile is undergoing sentence. It should also be ensured that child friendly measures for keeping the child integrated with the family and mainstream of the society are adopted. They said such a move would not push the juveniles back to commit any offence and prevent them from becoming hardened criminals.
· They were of the view that a variety of dispositions as suggested in the 2000 and the amended Juvenile Justice Act 2006 should be effectively executed to ensure better care and rehabilitation of the juveniles. The Conference said probation played a significant role in the treatment and rehabilitation of juveniles. All the delegates felt that probation could be used as an effective alternative rather than sentencing the juveniles or confining them to some institutions. They also emphasized the need to ensure free legal aid to juveniles and a patient hearing in all legal proceedings against them taking into account their dignity and best interest.
· The delegates also stressed the need for formulating minimum standards for various community and institutional services for juveniles/children under the amended act and suggested that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules) be the basis for formulating these standards.
· The conference also highlighted the need for specialized training modules for persons involved in the implementation of Juvenile Justice System. All concerned must be imparted specialized knowledge about the philosophy of juvenile justice and the Juvenile Justice (Care and Protection of Children) Act under which they operate besides international human rights standards and instrument relating to administration of juvenile justice.
The two-day Conference on February 3 & 4, 2007 deliberated on a number of issues including situational analysis of children, emerging issues in Juvenile Justice System, children in conflict with law: adjudication and dispositional alternatives, Community based models for care and protection of children and Preparation of action plan on Juvenile Justice. Hundred participants from all over the country comprising Judicial Officers, Chairpersons/Members of Juvenile Justice Board/Welfare Committees, Academicians, Government Officials, Police Officials, Social Activist and Senior representatives of voluntary organizations joined the Conference to exchange their views on the issue.
Wednesday, August 01, 2007
NHRC - DRAFT GUIDELINES FOR SPEEDY DISPOSAL OF CHILD RAPE CASES.
(i) The complaint relating to child rape cases shall be recorded promptly as well as accurately. The complaint can be filed by the victim or an eyewitness or anyone, including a representative of non-governmental organization, who has received information of the commission of the offence. The case should be taken as follows:
a) Officer not below the rank of SI and preferably lady police officer.
b) Recording should be verbatim
c) Person recording to be in civil dress
d) Recording should not be insisted in police station, it can be at the residence of the victim.
(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;
(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynecologist, while examining the victim should ensure recording the history of incident;
(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;
(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;
(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;
(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;
(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;
(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.
TRIAL COURT
i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;
ii) Atmosphere in the court should be child friendly;
iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;
iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.
a) Officer not below the rank of SI and preferably lady police officer.
b) Recording should be verbatim
c) Person recording to be in civil dress
d) Recording should not be insisted in police station, it can be at the residence of the victim.
(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;
(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynecologist, while examining the victim should ensure recording the history of incident;
(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;
(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;
(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;
(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;
(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;
(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.
TRIAL COURT
i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;
ii) Atmosphere in the court should be child friendly;
iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;
iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.
Saturday, July 14, 2007
Govt drags feet on 'coming-of-age' law
13 Jul 2007, 0320 hrs IST,Dhananjay Mahapatra,TNN
NEW DELHI: Last year, a petition filed by National Commission for Women (NCW) had raised questions about when a young girl come of age in India. Responding to the court’s notice, Centre through additional solicitor-general Gopal Subramaniam, had assured on January 3 this year that the government is in the process of removing anomalies and so sought time for bringing a clear legislation in this regard.
Yet, after the budget session of Parliament, the promised action to rectify the anomalies has yet to emerge from Centre’s legislative closet, a possible reason why the apex court once again sought a response from government.
The seeds of confusion lie in provisions of Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955, the exception to rape in Indian Penal Code and Immoral Traffic (Prevention) Act.
The Child Marriage (Restraint) Act, 1929, says a child is a person, who if a male, has not completed 21 years of age, and if a female, has not completed 18 years
The Hindu Marriage Act, 1955, says a female has to be 18 years before she can legally marry
However, the Indian Penal Code, while defining rape in Section 375, exempts a person from this charge if he has forcible sexual intercourse with his wife who is above 15 years of age
Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed the age of 16 years and a minor means who has completed the age of 16 years and not completed 18 years
The Indian Majority Act says a person is a major if he/she has completed 18 years
These legal prescriptions about adulthood of a female and her marriageable age, coupled with the exception set out under Section 375 of IPC, complains Sharma in his petition, has encouraged "Romeos" to lure girls who are above 15 years of age. The petition’s concern is obvious — that girls not quite able to take a mature decision on marriage may fall prey to a passing fancy or the glib talk of an older man.
On the other hand, the ostensible concern of high courts which ruled on 15 being the "age of discretion" was whether intercourse in an "underage" marriage could amount to the criminal offence of rape given that the girl had consented to marriage.
The courts have refrained from making things clearer when dealing with cases of a young couple where the girl has completed 15 years of age, Sharma’s counsel Daya Krishan Sharma pleaded, citing the Andhra Pradesh HC and the Delhi HC rulings.
In both these cases, HCs had refused to proceed on rape charges against the husbands though the girls were not of marriageable age as per the Hindu Marriage Act. The HCs had ruled that the girls, having completed 15 years of age, had reached the "age of discretion".
During hearing of the NCW petition, the apex court took a "humanitarian" approach and clarified that it would not set aside these two HC orders as it would unsettle the lives of the young couples.
NEW DELHI: Last year, a petition filed by National Commission for Women (NCW) had raised questions about when a young girl come of age in India. Responding to the court’s notice, Centre through additional solicitor-general Gopal Subramaniam, had assured on January 3 this year that the government is in the process of removing anomalies and so sought time for bringing a clear legislation in this regard.
Yet, after the budget session of Parliament, the promised action to rectify the anomalies has yet to emerge from Centre’s legislative closet, a possible reason why the apex court once again sought a response from government.
The seeds of confusion lie in provisions of Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955, the exception to rape in Indian Penal Code and Immoral Traffic (Prevention) Act.
The Child Marriage (Restraint) Act, 1929, says a child is a person, who if a male, has not completed 21 years of age, and if a female, has not completed 18 years
The Hindu Marriage Act, 1955, says a female has to be 18 years before she can legally marry
However, the Indian Penal Code, while defining rape in Section 375, exempts a person from this charge if he has forcible sexual intercourse with his wife who is above 15 years of age
Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed the age of 16 years and a minor means who has completed the age of 16 years and not completed 18 years
The Indian Majority Act says a person is a major if he/she has completed 18 years
These legal prescriptions about adulthood of a female and her marriageable age, coupled with the exception set out under Section 375 of IPC, complains Sharma in his petition, has encouraged "Romeos" to lure girls who are above 15 years of age. The petition’s concern is obvious — that girls not quite able to take a mature decision on marriage may fall prey to a passing fancy or the glib talk of an older man.
On the other hand, the ostensible concern of high courts which ruled on 15 being the "age of discretion" was whether intercourse in an "underage" marriage could amount to the criminal offence of rape given that the girl had consented to marriage.
The courts have refrained from making things clearer when dealing with cases of a young couple where the girl has completed 15 years of age, Sharma’s counsel Daya Krishan Sharma pleaded, citing the Andhra Pradesh HC and the Delhi HC rulings.
In both these cases, HCs had refused to proceed on rape charges against the husbands though the girls were not of marriageable age as per the Hindu Marriage Act. The HCs had ruled that the girls, having completed 15 years of age, had reached the "age of discretion".
During hearing of the NCW petition, the apex court took a "humanitarian" approach and clarified that it would not set aside these two HC orders as it would unsettle the lives of the young couples.
Adoption norms to be streamlined
July 11,Hindustan Times
The government, in a new set of regulations for child adoption, have proposed that parents who have given their children up for adoption cannot claim them back again.
The draft guidelines on the adoption of Indian children without parental care, released on Wednesday, proposes to bring adoption of orphaned, abandoned or surrendered children under the Juvenile Justice Act, 2006, thereby giving legal sanctity to the adoption process.
JK Mittal, chairperson of the Central Adoption Resource Agency (CARA), said: “Once child adoption comes under the JJ Act, there will be uniformity in the child adoption process in the country.
Secondly, adoption will mean legal separation of the child from his or her biological parents.”
Under the new guidelines, the time required for adoption has been reduced to three months from the existing six months. “The courts will have to settle adoption claims in two months as per the JJ Act,” Mittal said.
The government also wants to adopt the international child adoption standards. For this, Hague convention regulations have been incorporated in the proposed guidelines. It will result in the child getting citizenship immediately after touching the country of his or her adoption. Normally, it takes two-three months.
Inter-country adoption will not be allowed through an agency anymore. Foreigners will have to apply directly to CARA, which will then direct them to a registered agency for child adoption. “It will break the nexus between agencies,” Mittal said.
The guidelines also propose mandatory state government registration of all childcare homes. Women and Child Development Minister Renuka Chowdhury said the Centre will make HIV/AIDS test mandatory for all children admitted by the adoption agencies. CARA will also create a central data bank on children for adoption within India and outside.
The government, in a new set of regulations for child adoption, have proposed that parents who have given their children up for adoption cannot claim them back again.
The draft guidelines on the adoption of Indian children without parental care, released on Wednesday, proposes to bring adoption of orphaned, abandoned or surrendered children under the Juvenile Justice Act, 2006, thereby giving legal sanctity to the adoption process.
JK Mittal, chairperson of the Central Adoption Resource Agency (CARA), said: “Once child adoption comes under the JJ Act, there will be uniformity in the child adoption process in the country.
Secondly, adoption will mean legal separation of the child from his or her biological parents.”
Under the new guidelines, the time required for adoption has been reduced to three months from the existing six months. “The courts will have to settle adoption claims in two months as per the JJ Act,” Mittal said.
The government also wants to adopt the international child adoption standards. For this, Hague convention regulations have been incorporated in the proposed guidelines. It will result in the child getting citizenship immediately after touching the country of his or her adoption. Normally, it takes two-three months.
Inter-country adoption will not be allowed through an agency anymore. Foreigners will have to apply directly to CARA, which will then direct them to a registered agency for child adoption. “It will break the nexus between agencies,” Mittal said.
The guidelines also propose mandatory state government registration of all childcare homes. Women and Child Development Minister Renuka Chowdhury said the Centre will make HIV/AIDS test mandatory for all children admitted by the adoption agencies. CARA will also create a central data bank on children for adoption within India and outside.
Friday, June 22, 2007
IPC 2008
Fast-Tracking Justice
The Outlook
Menon committee recommends:
· Crimes to be reclassified under four codes; tackling marginal offences via civil/administrative procedures
· Online registration of FIRs
· Statements to police on audio or video be made admissible evidence
· Code of Ethics for criminal lawyers; legal help for the poor and weaker sections; better witness protection
· Liberal use of bail and probation, to avoid short-term imprisonment.
***Few may remember the six persons mowed down by Sanjeev Nanda's BMW eight years back. But it's tough forgetting images of defence and prosecution lawyers subverting justice on TV. The delays, witnesses turning hostile and the lawyers shielding the influential accused ...the motifs recur every time a high-profile case comes to court. The verdicts in the Jessica Lall and Priyadarshini Mattoo cases held out the first glimmer of hope. Then a committee was set up in June 2006 to draft a national policy on criminal justice. Headed by Dr N.R. Madhava Menon, director, National Judicial Academy, Bhopal, the panel's other members were Anil Chowdhry, former secretary, internal security; Kamal Kumar, director, National Police Academy; M.D. Rijhwani, senior member, Bombay Bar; and Dr P.K. Seth, joint secretary, judicial.One year on, the panel has submitted its deliberations to the government. These have now been sent for examination by a consultative committee of the Union home ministry. Suggesting sweeping changes, the underlying criterion of the policy is to have a "justice delivery system which is faster, fairer, uncomplicated and inexpensive".One of its most basic but significant recommendations is online registration of FIRs. Most police stations in the metros have already been computerised; the process of modernisation of police stations elsewhere is on. Online FIRs would to a large extent circumvent the problem of the police turning away victims and refusing to register FIRs.The policy also seeks to redefine and reclassify crimes to reduce the burden on courts and prisons. It recommends a fourfold code-based classification of all offences presently covered by the Indian Penal Code (IPC) and local laws.The reclassification revolves around bunching together offences with similar punishments. Thus, marriage disputes and other civil offences have been brought under a Social Welfare Offences Code, along with prohibition offences, vagrancy and minor campus indiscipline. Arrest and detention in these cases is not necessary. "Compensation and community service can better meet the ends of justice," notes the committee.More serious offences that require some level of police intervention have been classified under a Correctional Offences Code. These include offences punishable with up to three-year imprisonment and/or fines. Such offences can in most cases be handled by Lok Adalats which could impose fines, probation or short-term imprisonment.Only grave offences, punishable with imprisonment beyond three years and the death penalty, says the panel, should be included in the IPC. It's in these cases that the panel wants the state to spend its maximum energy, time and resources, keeping in mind a "need for efficiency, effectiveness and fairness".The final classification relates to the Economic Offences Code. This would cover select financial offences, the investigation of which requires multi-disciplinary, inter-state and international effort. The committee also makes a strong case for certain international crimes and acts of terror to be designated as federal offences, so that they can be dealt with more effectively by an all-India law enforcement agency rather than being left to the state police.Having categorised the crimes, the committee moves on to dispensation of justice. Admitting the prosecution "to be the weakest link of the criminal justice system", it emphasises the need to draw up a separate code of ethics for lawyers serving this wing of law. Bar councils and criminal courts are to be entrusted with jointly enforcing it. The committee calls for special care to be taken for prosecutor selection, training, service conditions and supervision.There is no rest for the defence either. Noting that the "justice system seems heavily geared towards the rich and the powerful", the committee urges the setting up of a Public Defender System to make legal services available to those who cannot afford an expensive defence. Besides, the committee enjoins upon the criminal justice administration to adopt proactive policies to protect the weaker sections of society, including women, children and SC/STs.Criminal courts figure next. They have an obligation to give speedy justice by expediting all processes, note Menon and his men. "Day-to-day trial has to be restored," with the government providing the courts with better resources and infrastructure to speed up trial procedures. Victim and witness protection too is emphasised, with the panel recommending facilities for victims and witnesses in criminal courts and that they be "treated with due courtesy". The need for a witness protection law, as suggested by the Law Commission, is reiterated even as it advocates punishment for false testimonies.The committee also tenders a solution to prevent the overcrowding of jails. It suggests that undertrial prisoners be kept in separate institutions. Bail and probation should be made available to keep the prison population within reasonable limits. The panel recognises the need for the police to speed up the process of investigations, proposes that they be allowed to use electronic surveillance more liberally than now, but frowns upon custodial violence, and suggests it be dealt with most severely. The panel also feels that statements made to the police on video or audio be made admissible as evidence provided a lawyer has been made available to the accused.Finally, to ensure the smooth functioning of the system, an independent, professionally managed department of criminal justice under the MHA is advocated. The department will have two major divisions: a bureau of criminal justice statistics to collate all information relating to crime, and a research and monitoring division to analyse data and engage in pilot projects.
The Outlook
Menon committee recommends:
· Crimes to be reclassified under four codes; tackling marginal offences via civil/administrative procedures
· Online registration of FIRs
· Statements to police on audio or video be made admissible evidence
· Code of Ethics for criminal lawyers; legal help for the poor and weaker sections; better witness protection
· Liberal use of bail and probation, to avoid short-term imprisonment.
***Few may remember the six persons mowed down by Sanjeev Nanda's BMW eight years back. But it's tough forgetting images of defence and prosecution lawyers subverting justice on TV. The delays, witnesses turning hostile and the lawyers shielding the influential accused ...the motifs recur every time a high-profile case comes to court. The verdicts in the Jessica Lall and Priyadarshini Mattoo cases held out the first glimmer of hope. Then a committee was set up in June 2006 to draft a national policy on criminal justice. Headed by Dr N.R. Madhava Menon, director, National Judicial Academy, Bhopal, the panel's other members were Anil Chowdhry, former secretary, internal security; Kamal Kumar, director, National Police Academy; M.D. Rijhwani, senior member, Bombay Bar; and Dr P.K. Seth, joint secretary, judicial.One year on, the panel has submitted its deliberations to the government. These have now been sent for examination by a consultative committee of the Union home ministry. Suggesting sweeping changes, the underlying criterion of the policy is to have a "justice delivery system which is faster, fairer, uncomplicated and inexpensive".One of its most basic but significant recommendations is online registration of FIRs. Most police stations in the metros have already been computerised; the process of modernisation of police stations elsewhere is on. Online FIRs would to a large extent circumvent the problem of the police turning away victims and refusing to register FIRs.The policy also seeks to redefine and reclassify crimes to reduce the burden on courts and prisons. It recommends a fourfold code-based classification of all offences presently covered by the Indian Penal Code (IPC) and local laws.The reclassification revolves around bunching together offences with similar punishments. Thus, marriage disputes and other civil offences have been brought under a Social Welfare Offences Code, along with prohibition offences, vagrancy and minor campus indiscipline. Arrest and detention in these cases is not necessary. "Compensation and community service can better meet the ends of justice," notes the committee.More serious offences that require some level of police intervention have been classified under a Correctional Offences Code. These include offences punishable with up to three-year imprisonment and/or fines. Such offences can in most cases be handled by Lok Adalats which could impose fines, probation or short-term imprisonment.Only grave offences, punishable with imprisonment beyond three years and the death penalty, says the panel, should be included in the IPC. It's in these cases that the panel wants the state to spend its maximum energy, time and resources, keeping in mind a "need for efficiency, effectiveness and fairness".The final classification relates to the Economic Offences Code. This would cover select financial offences, the investigation of which requires multi-disciplinary, inter-state and international effort. The committee also makes a strong case for certain international crimes and acts of terror to be designated as federal offences, so that they can be dealt with more effectively by an all-India law enforcement agency rather than being left to the state police.Having categorised the crimes, the committee moves on to dispensation of justice. Admitting the prosecution "to be the weakest link of the criminal justice system", it emphasises the need to draw up a separate code of ethics for lawyers serving this wing of law. Bar councils and criminal courts are to be entrusted with jointly enforcing it. The committee calls for special care to be taken for prosecutor selection, training, service conditions and supervision.There is no rest for the defence either. Noting that the "justice system seems heavily geared towards the rich and the powerful", the committee urges the setting up of a Public Defender System to make legal services available to those who cannot afford an expensive defence. Besides, the committee enjoins upon the criminal justice administration to adopt proactive policies to protect the weaker sections of society, including women, children and SC/STs.Criminal courts figure next. They have an obligation to give speedy justice by expediting all processes, note Menon and his men. "Day-to-day trial has to be restored," with the government providing the courts with better resources and infrastructure to speed up trial procedures. Victim and witness protection too is emphasised, with the panel recommending facilities for victims and witnesses in criminal courts and that they be "treated with due courtesy". The need for a witness protection law, as suggested by the Law Commission, is reiterated even as it advocates punishment for false testimonies.The committee also tenders a solution to prevent the overcrowding of jails. It suggests that undertrial prisoners be kept in separate institutions. Bail and probation should be made available to keep the prison population within reasonable limits. The panel recognises the need for the police to speed up the process of investigations, proposes that they be allowed to use electronic surveillance more liberally than now, but frowns upon custodial violence, and suggests it be dealt with most severely. The panel also feels that statements made to the police on video or audio be made admissible as evidence provided a lawyer has been made available to the accused.Finally, to ensure the smooth functioning of the system, an independent, professionally managed department of criminal justice under the MHA is advocated. The department will have two major divisions: a bureau of criminal justice statistics to collate all information relating to crime, and a research and monitoring division to analyse data and engage in pilot projects.
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