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)
Monday, October 29, 2007
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.”
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