President’s Rule and the Legislative Council: more clarity required

The objective of President’s Rule can be neither furthered nor hindered by anaesthetising the Legislative Council.

The Hindu 20th March 2008

A Judge of the Karnataka High Court intercepted me during my morning walk and asked: “Why have you not held a session of the Legislative Council? That will add a new dimension to our constitutional jurisprudence.”

That is a question that has been asked by a countless number of people. Indeed, the Judge was referring to an ongoing public discussion in the wake of the imposition of President’s Rule in Karnataka. Does the Legislative Council cease to function while the Legislative Assembly is dissolved by the operation of Articles 356 and 357 of the Constitution?
Literal interpretation

Yes, say the literal interpreters of the Constitution. They argue that the Upper House is clinically dead but kept alive with life support during such a period. They are, quite rightly, guided by the wording in the Presidential Proclamation suspending several Articles of the Constitution: Article 174(1) and (2) which empower the Governor to summon each House of the Legislature and prorogue it; Article 194 dealing with the powers, privileges, and so on of the Legislature, its members and committees; Article 208 which empowers the framing of rules of procedure for the conduct of the Legislature; and, above all, the provision, 356(1)(b), which declares that “the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.”

This, they claim, extinguishes any activity of the Council notwithstanding what Article 172(2) declares: that the “Legislative Council of a State shall not be subject to dissolution.” On the other hand, the liberalist approach would argue that it could never have been the intention of the Constitution or even of the Home Ministry that the consequences of the suspension of the provisions just mentioned should visit the Legislative Council as well.

How does one understand the mandate that the Council “shall not” be subject to dissolution? An answer to this did not figure in the frank yet highly civilised dialogue with the Governor and others. India’s top lawyer F.S. Nariman tried to help them while inaugurating a seminar on the role and status of the Legislative Council: “There was a purpose in Article 172(2)... these words are of vital import. The message that is sent out by our Constitution is clear — that its members are expected to deliberate and continue to deliberate on a continuing basis... there is total lack of understanding of our Constitution.”
Continued deliberation

“Continued deliberation” could be: 1. A Council session convened for a limited purpose: limited in the absence of a whole range of governmental business as well as Question Hour, and so on; 2. It could be in the various committees exclusive to the Council (since the Assembly has been dissolved); 3. It could even be for a legitimate, formal consultation with the “executive committee” comprising the Governor, his Advisors and the Chief Secretary.

The Council could not be convened since Article 174 which empowers the Governor to “summon the House or each House of the Legislature of the State...” has been suspended. Significantly, “each House” can be summoned. In other words, the Council alone can be summoned if the reach of that disabling order was confined to the Assembly.
Simple modification

The Governor is perfectly right in expressing his helplessness in the matter. Since a functioning Council cannot be an obstacle to the working of President’s Rule, a simple modification to the Presidential Proclamation would have been proper. I believe that, in future, any unwarranted mechanistic listing of suspended Articles enveloping the Upper House would be avoided.

“But what prevents the functioning of our Committees on Petitions, Governmental Assurances, and Privileges?” ask the MLCs. Surely, Article 174 is not relevant here? Maybe, but the Governor has been advised thus: “When the Presidential Proclamation categorically states that all the functions of the Legislature [which undoubtedly includes Legislative Council] are taken over by Parliament, it is impossible to conceive that the Legislative Council could function simultaneously. The Committees of the Legislative Council being [an] extended wing of the Council, the said Committees also cannot function.”

The Advocate-General’s first opinion had categorically advised the Council to go ahead with its committees. Curiously, however, he changed it subsequently on the ground that the Proclamation took away “all the functions of the Legislature,” to be handled by Parliament.

But lo and behold, it does not. While the Proclamation refers to “all functions of the Government,” it clearly and in a separate paragraph refers only to “the powers of the Legislature,” and not to “all the functions of the Legislature.” The term “powers of the Legislature” can only mean the law-making power, and the Legislative Council does not, on its own, make laws. Committee work, on the other hand, is in a completely different category. Committees ought to continue against the background that the Legislative Council “shall not be subject to dissolution.”

Secondly, it will be untenable to keep the Council, in effect, in a state of “suspended animation.” That concept was formulated in Bommai (1994) and is applicable only to the Assembly.
Right of consultation

Finally, as to “consultation” with the MLCs of a living House, it is disturbing to be told that they have no explicit “right” of consultation.

“What earthly purpose will be served in continuing as Legislators of a House which cannot be dissolved and certainly cannot be ‘suspended’ like the Assembly but which is not allowed to function?”, is another question thrown at me by the MLCs. I have maintained a diplomatic silence.

The objective of President’s Rule is to prepare the ground for fresh elections to elect a new government which can function in accordance with the Constitution. That objective can be neither furthered nor hindered by anaesthetising the Legislative Council.

(The author is Chairman, Karnataka Legislative Council.)

How to . . . improve your drafting

From Times Online
March 3, 2008

The written side of litigation may not be as glamorous but it's where much of the war is fought, says Catherine Newman, QC
Catherine Newman, barrister
Interview by Alex Aldridge

Become a better lawyer: running a case, doing a deal, moving in-house and other tips from the top

Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.

Ambiguity is what gets lawyers into trouble. When writing a formal opinion one is able to think about exactly how to phrase something. But with advice increasingly being given more casually, there’s much greater scope for confusion to creep in. The immediacy of email means there’s an awful temptation to dispense with the polishing stage — and in litigation a little bit of polishing can make a huge difference.

Try not to make your missives too stinging. Many moons ago I was asked to draft an opinion explaining to a country solicitor why a client couldn’t extract money from a company that the court had ordered her to hand over to the other side. Of course, it was glaringly obvious that such a course of action would have been completely improper and likely to result in further litigation. Being very young, I may well have used that term “improper”. I certainly didn’t pull my punches. The response, a copy of which I still have to this day, begins: “I have received a stinging missive from Miss Chariots of Fire, who is fortunate that she does not have to make a living by the exercise of personal charm . . .”

Gradually you learn to code your language in more outwardly acceptable terms. A Chancery favourite is “utterly misconceived.” I use that a lot. Or, “We’re finding it rather difficult to understand the point you’re making.” If you receive that one, you can be sure that the other side thinks you’re talking complete bollocks.

A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.

Develop a flexible, anonymous style. If people spot your hand in the drafting, they may use it against you. There was an arbitration where we were against a solicitor based in Kazakhstan, who wrote the most mind-bogglingly rude letters — always unwise as judges hate correspondence that unnecessarily raises the temperature. This guy’s downfall was his inability to resist using certain pet phrases over and again. His client would never go to a meeting; he’d go to “a high level meeting with senior personnel” — that sort of stuff. It didn’t take long to spot the documents in which he’d had a hand.

Do your best to assist the court. Sitting part-time as a judge in Guernsey and as a recorder in the Crown Court, I’m well aware that case files often arrive on a judge’s desk at 4.15 in the afternoon on the day before a hearing begins. I always try to provide a thumbnail picture of my client’s arguments early on in my skeleton argument, just in case whoever is trying the case hasn’t managed to plough through everything I’ve written.

Other barristers are rather more cynical. I certainly know of two or three members of the profession who, when they don’t have a strong case, deliberately obfuscate by making their skeletons as long-winded and confusing as possible in the hope that the judge won’t have time to untangle the various arguments.

The written aspect of the job may not be as glamorous as the oral side of things. But it’s something that we commercial barristers take enormous pride in. I remember being asked as a very junior barrister to prepare a note on a particular section of an act of parliament that the court was construing. To my absolute delight, Lord Hoffmann (then a first instance judge), included a very brief acknowledgment of my “helpful” note in his judgment. Now that was real praise.

Catherine Newman, QC, is a barrister at Maitland Chambers

Putting the executive in its place

B.P. Jeevan Reddy

The Hindu , March 6,2008

If the government ignores the will of Parliament and proceeds to finalise the Indo-U.S. nuclear deal, it would mean the executive is asserting its supremacy over Parliament – an unacceptable situation, constitutionally speaking.

A basic premise of the parliamentary system of government is the supremacy of Parliament. The executive — the political executive — is drawn from and is a part of Parliament. It is not independently elected.

While Parliament can override the executive will, the converse is not, and cannot be, true. India has adopted the parliamentary form of government both at the Centre and the States.

The Constitution is not exhaustive of the constitutional system prevailing in our country; conventions are a part of and constitute an essential component of the system. This is a proposition no student of constitutional law would dispute. In many respects, the Constitution is silent and the silences are filled by the conventions. Just as we have borrowed the parliamentary system of government from the United Kingdom, so have we borrowed its conventions too — with appropriate adaptations, of course.

By way of illustration, there is no provision in the Constitution requiring the President to invite the leader of the single largest party in the Lok Sabha to form a government. Article 75(1) merely says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”

Literally read, the President can as well invite the leader of the second largest party and give him or her sufficient time to cobble up a working majority by one or another means. It is the convention that obligates the President to invite the leader of the single largest party or the single largest pre-election formation to form a government and no President will dare to violate this convention.

Another instance: Prior to amendment of clause (1) of Article 74 by the Constitution (Forty Second) Amendment Act, the Constitution did not say in so many words that the President is bound to act in accordance with the advice tendered to him by the Council of Ministers with the Prime Minister at its head. Literally read, the clause enables the President to ignore such advice and act in his discretion. But soon after the commencement of the Constitution, when a doubt was raised on this point, it was made clear to the President by the highest legal functionary of the state — which he gracefully accepted — that since India has adopted the British parliamentary system and conventions, the President is bound by, and is bound to act in accordance with, such advice. There was never any departure from this convention. Of course, the 42nd Constitutional Amendment Act, 1976 expressly incorporated this convention in the Constitution. Even without this amendment, it is clear, the position would be the same. The decisions of the Supreme Court in 1955 (Ram Jawaya Kapur) and 1974 (Shamsher Singh) make it clear that we have borrowed the British parliamentary system, with all that goes with it.
Negation of concept

On the Indo-U.S. nuclear deal, a substantial majority of Parliament has made its position clear: it is opposed to the deal in the present form, particularly because of the governing provisions of the Hyde Act passed by U.S. Congress. The question is not whether the majority is right — or whether the government is not right. The political executive cannot sit in judgment over the wisdom, or the motives, of the majority in Parliament; it has to abide by it. Otherwise, it would be a clear negation of the very concept of parliamentary form of government.

If the executive (the Government of India) ignores the will of Parliament and proceeds to finalise the deal, it would mean the executive is asserting its supremacy over Parliament — an unacceptable situation, constitutionally speaking. On the other hand, every action of the executive can be reviewed by Parliament; no act of the executive is immune from legislative oversight. To assert the contrary is to undermine the very concept of the accountability of the executive to Parliament [recognised in Article 75(3)] as also the concept of parliamentary supremacy over the executive. A situation should not be allowed to develop where the majority in Parliament is driven to pass a resolution disapproving the nuclear deal, which may compel the government to tender its resignation.

It is true that under our constitutional system — again following British practice — it is for the government of the day to enter into treaties with foreign powers and that there is no provision for approval or ratification of such treaties by Parliament or by either of its Houses. But under our Constitution, it is not an unquestionable right of the executive. It can be controlled and regulated by our Parliament by making a law as contemplated by Entry 14 of the Union List in the Seventh Schedule to the Constitution.

It is true that Parliament has not so far made any law with reference to this Entry laying down the parameters of and/or laying down the manner in which this power has to be exercised. Our Parliament has chosen not to act in the matter despite the experience of the Uruguay Round of GATT Treaties — in particular, the Agreement on TRIPS (Trade-Related Intellectual Property Rights) where the executive signed the agreement containing provisions directly contrary to the recommendations of a parliamentary committee of 40 members drawn from all parties.

But all this does not mean that when a substantial majority in both the Houses expresses itself unambiguously against this particular agreement signed by the government, the latter is entitled to ignore Parliament’s will and go ahead and finalise the deal — as it is made to appear from recent statements emanating from governmental circles. It is not really necessary to go into the question whether the agreement entered into between India and the U.S. on civilian nuclear cooperation amounts to a ‘treaty’ or whether it is a mere ‘agreement.’ Whether it is a treaty or a mere agreement, the action of the government entering into it is not — and cannot be — outside the purview of Parliament. It is also not a question of procedure, namely under which rule of the House Parliament expressed its intention. It is a matter of substance and of democratic ethos and political morality.
Wrong precedent

That Parliament has expressed its will in unambiguous terms is enough. If the Government of India yet proposes to proceed to finalise the 123 agreement, it would be a wrong, and an unhealthy, nay, an undemocratic, step and would amount to laying down a wrong precedent for the future governments to follow. The Preamble to our Constitution speaks of the resolve of the people of India to constitute India into a “Democratic Republic” among other requisites. It is Parliament that represents the will of the people — not the executive, which is only a part of Parliament. It is inconceivable that a part can defy the whole.

A passing thought: if the foreign policy of a country is meant to subserve the interests of that state — and not be an exercise in charity — one finds it amusing to see hordes of incumbent and former officials of the U.S. government descending on India to persuade, cajole, advise, and threaten us into finalising the djavascript:void(0)
Publish Posteal at the earliest.

(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)

Gurgaon no exception

The incident of organ trade is shocking but not surprising in a country where there is an annual demand for 150,000 kidneys, while the transplants remain only 3,500. It's time authorities streamlined organ transplant law

The kidney excavations at knife-point has been among the biggest stories during the last two weeks. The principal targets are three -- the police for conniving with and even facilitating the macabre organ digger, the health authorities for not doing enough to stop organ trade and medicos for hoodwinking and causing the poor to bleed (sometimes to death.)

The story revives memories of Robin Cook's novel and the film Coma (1978) which unraveled a grotesque story of how young men and women visiting a particular hospital for a simple procedure, were deliberately rendered comatose; to be strung up brain dead until their livers and kidneys were harvested by ruthless auctioneers operating a bizarre global organ trade.

The Gurgaon kidney scam is no less wacky. The difference is that in the novel, the victims were young, educated, independent and able-bodied. The Gurgaon outfit sounded rudimentary and the victims were poor, illiterate and defenceless. The only reason why it made so much news was because at long last at least one racketeer had been nabbed. Otherwise, accounts about South Indian fisherfolk ravaged by the tsunami selling off a kidney each for Rs 50,000 and 50 per cent of village populations in Pakistan living on one kidney have been recounted for years; as have been reports about thousands of organs purloined from Chinese prisoners fated for execution.

But the exposé and the notoriety that surrounds the Gurgaon scam demand wider thinking about the issue. Kidneys are the most frequently transplanted organs (around the world). In a country where poverty is ubiquitous, life is cheap and demand outstrips the supply, strategies have to be practical. Several countries have a solution whereby the donor has to explicitly dissent to organ donation during his lifetime.

In the US, the regulation of organ donation is left to individual States within the limitations of the Federal National Organ Transplant Act, 1968. Many States in the US have encouraged organ donation by allowing the donor's consent to be entered on the driver's licence. Thereafter, state regulations lay down the systems and processes to be followed.

In the early 1990s when I was the Secretary for Medical and Public Health in Delhi, doctors and policemen made several suggestions. Pass a law, they suggested, that in case an accident victim's body is not claimed on the spot, the organs may be harvested at a designated facility and used according to the registry of needy recipients. Looking at the number of accident cases involving young people, it will be easy to operationalise this strategy, particularly if it were coupled with the consent given on the driving licence.

Efforts have been on for decades to persuade the public to donate just corneas -- far less threatening than retrieving kidneys, but to little avail. Aishwarya Rai has fluttered her gorgeous lashes on countless television commercials encouraging people to pledge their eyes (like her), but the supply remains woefully short. The Economic and Political Weekly writing editorially has referred to an annual demand for 1,50,000 kidneys while the transplants remain only 3,500. The well-intentioned 1994 Organ Transplant Act has clearly failed to prevent the illegal trade of kidneys because criminals would hardly present themselves before the authorisation committee to humbly seek permission.

The recent comments by the Chief Justice of the Supreme Court that the problem is with the implementation and not the law appear to address the enforcement angle. However, no less important is the fact that in a country where poverty drives people to sell their land, house, livestock, jewellery and even children, what is the value of a kidney for the love of money? Especially when it is possible to live perfectly well on its pair?

There is also the whole question of the emotiveness that surrounds death. Whether Indians exhibit their feelings more or less is not the point. In the Indian context, when funeral rites are given such enormous importance, few families would be willing to face the additional trauma of waiting for organ removal in a hospital setting. It is not that the idea of harvesting organs or the establishment of organ banks should not be pursued. The point only is that it will take a long time to convince families overwrought with grief to take decisions and get embroiled with hospitals and operation theatres for one minute longer than necessary. The consent on the driving licence is perhaps a good way of giving freedom to the individual, but also to the police to whisk away deceased accident victims for organ retrieval while preserving the body for the last rites.

Second, it is the fundamental duty of every local Government to build awareness among poor people that they might be compromising their lives by agreeing to donate a kidney. For starters, all construction and building contractors should be enjoined under municipal regulations to display a film about the harmful effects of kidney removal, for all hired labour. The message may yet percolate to a wider group of poor people -- particularly those living in urban areas where nursing hospitals, homes and kidney seekers abound.

"Ensure adherence to model code in future"

Election Commission tells Modi and Sonia they violated the Model Code of Conduct

This is the text of the unanimous decision of the Election Commission of India on the complaints of violations of the Model Code of Conduct in the recent election speeches in Gujarat by Gujarat Chief Minister Narendra Modi, Congress president Sonia Gandhi and Congress general secretary Digvijay Singh.

Shri Narendra Modi,
Chief Minister,
Gujarat,
Gandhi Nagar.

You were called upon to submit your reply on the complaint filed by Ms. Teesta Setalvad, Secretary, Citizens for Justice and Peace, and on news reports for violation of provisions of Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 6th December 2007. The representation dated 8th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.

The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India. The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —

“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”

The Commission cannot help expressing its deep anguish over the fact that sagacious advice and high expectations of the Supreme Court seem to have been belied in the instant case. It can hardly be gainsaid that some of the impugned utterances in your speech under reference had the effect of aggravating the existing differences to create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The amount of controversy and national debate which those utterances created all over the country and which even attracted the attention of the Apex Court of the country bear ample testimony to the above fact of aggravating the existing differences between the main communities inhabiting the State of Gujarat. Your attention in this context may be invited to the following observation of the Supreme Court in Ziauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra (AIR 1975 SC 1788):-

“Our Constitution makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the Preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed, and language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.”

The justification provided for the above referred utterances as reaction / counterblast to certain propaganda, as alleged by you, to have been carried out against you can also hardly be accepted. Dealing with a similar contention, the Supreme Court observed in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)], as follows:-

“We do not find any force in the contention that exhibits P-3 and P-4 were published as a counterblast to exhibit D-62 and, therefore, the said documents are not hit by Section 123(4) of the Act (Representation of the People Act, 1951). Sub-section (4) of Section 123 defining a corrupt practice is not conditioned by any proviso to the effect that it would cease to be a corrupt practice if the statement was made to counteract the rival statement of an opponent.”

The Commission, after careful consideration of all aspects, has come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, has conveyed its displeasure and advised you to be more cautious in future so that the salutary provisions of the Model Code of Conduct are adhered to and duly observed in letter and spirit.

Smt. Sonia Gandhi,
President,
Indian National Congress,
24, Akbar Road,
New Delhi.

You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007.

The representation dated 10th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.

The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model code of conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the model code of conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —

“The duty at the top echelons of leadership at the State and National level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”

The sagacious advice and high expectations of the Supreme Court do not seem to have been given due respect in the instant case. Some of the impugned utterances in your speech under reference amount to an attack on the personal character or conduct of the political/administrative functionaries running the present Government of Gujarat. Your attention in this connection is invited to the following observation of the Supreme Court in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)]:-

“The words ‘personal character or conduct’ are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a persons actions or behaviour ... what is more damaging to a person’s character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political career.”

The Supreme Court also observed in Inder Lal Vs. Lal Singh (AIR 1962 SC 1156) that:

“If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct … if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party.”

The Commission, after careful consideration of all aspects, has thus come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, conveys its displeasure and expects that in future the salutary provisions of the Model Code of Conduct will be adhered to and duly observed in its letter and spirit.

Shri Digvijay Singh,
General Secretary,
Indian National Congress,
24, Akbar Road,
New Delhi.

You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007. The representations dated 11th and 15th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission. The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.

The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —

“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”

In keeping with the above sagacious advice and high expectations of the Supreme Court, you were expected to avoid all references to certain communities indulging in terrorism which had the effect of aggravating the existing differences or create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The Commission, after careful consideration of all aspects, has advised you to be more cautious in future so that the salutary provisions of Model Code of Conduct are adhered to and duly observed in its letter and spirit.

Customary payments, gifts not dowry: SC

NEW DELHI: The Supreme Court has ruled that demand for money and presents from parents of a married girl at the time of birth of her child or for other ceremonies, as is prevalent in society, may be deprecable but cannot be categorised as dowry to make it a punishable offence.

This means, if a daughter-in-law is being harassed for customary gifts by parents-in-law, then they could be booked under ordinary penal provisions but not under the tough anti-dowry laws providing stringent punishments.

Acquitting the parents-in-law of a woman who had accused them of harassing her for dowry, a Bench comprising Justices Arijit Pasayat and S Sathasivam took help of a 2001 judgment of SC to say that not all demands from the parents-in-law could be categorised as 'dowry' under the Dowry Prohibition Act. It said though the Act covers payment of money or articles during, before or after marriage by the girl's parent to her in-laws, the cash and presents given had to have a link with the marriage to become objectionable in law.

"Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression 'dowry'," said Justice Pasayat, writing the judgment for the Bench.

A Haryana trial court had continued the dowry harassment charges against the woman's husband while acquitting the parents-in-law, the married sister and brother of the husband. Though the high court allowed quashing of charges against the sister and brother, it said the parents-in-law were liable to be proceeded against.

The apex court said that when the trial court had held that an attempt had been made by the woman to rope in as many relatives of her husband as possible, the HC should have given some reasons while reversing a well-reasoned order.

It said judicial discipline demanded the HCs to give clear reasons when reversing a trial court order backed by facts. "Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutible face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision," the Bench said.

dhananjay.mahapatra@timesgroup.com

Needed, a code of child rights

V.R. Krishna Iyer,The Hindu Nov 14,2007

Jawaharlal Nehru was the first and foremost Prime Minister of India. He brought brave new Bharat international stature and pre-eminence in the non-aligned movement. He and the Indian National Congress of which he was president, stood for swaraj, swadeshi, and a socialistic pattern of society. The Planning Commission was set up with the creative-dynamic objective of shaping a revolutionary transformation with an egalitarian vision and strategy. Prime Minister Indira Gandhi, with a humanist drive and socialist vision, gave more economic teeth and political pragmatism to the progressive social justice pledge. She abolished the privy purses of the profusion of princes, nationalised leading private banks and other key enterprises and, most important, amended the Constitution to declare the Republic to be socialist, secular and democratic.

Those who dismiss, denigrate or disregard the socialist element, with its egalitarian and agrarian focus, betray Gandhi, Nehru and Indira. Those who treat the key promises in the Preamble to the Constitution — which is a fundamental factor in the basic structure of the polity — with cynical contempt, with feelings of dollar domination, rupee devaluation, and the submissive illusion that our world is beholding a decadence of socialism and an escalation of White House supremacy and occupation by multinational corporations, are guilty of the same kind of betrayal. The Congress has jettisoned its swaraj and soul, and serendipitously found inspiration in U.S. Inc. Having assumed office by taking an oath of allegiance to the socialist, secular, democratic Constitution, anyone who commits colonially conditioned violation of these values cannot honestly continue in offices of state power. How can they observe November 14 in the name of Nehru unless they proclaim with statesmanly integrity that they stand by the Preamble which is paramount and adhere to the socialistic dimension of government inscribed therein?

The Left, which runs a few State governments and supports the Union government and ensures its survival, must not submit to the hidden agenda of neo-capitalist rule, with dependencia syndrome, if any moral principles govern their ideology and politics. Exotic pressures, swadeshi-allergic imports and luxury investments using the trans-Atlantic mantra of globalisation, liberalisation and privatisation represent a dubiously democratic elite mafiacracy. Socialism, under the present establishment, is suffering a Seppuku pathology. “The purpose of development should not be to develop things but to develop man.” (The Cocoyoc Declaration, 1974). If distorted it is a disastrous slogan, with land-grab freebooters robbing the poor into homeless slavery and the rich lawlessly exhibiting class ‘affluenza’. We have two Bharats, one ruling the other with the aid of state power.

Such is the horror: contemporary anti-socialist, para-colonial society coalition administrations which boast of ersatz per capita income are blinking at the slums and the petty peasantry. This is silent terrorism, tacit debunking of humanism. This grave situation is defended de facto by a strange Left stance which formally opposes a pro-U.S. nuclear deal but actually sustains the same Cabinet by ensuring its continuance — which amounts to a riddle wrapped in a mystery. What an inconvenient truth. This is the fate of our socialistic Constitution.

U.S. nuclear big business is lobbying to make India a quasi-colony — which is an inconvenient truth that our sovereign executive hides. Why be a nuclear mendicant before the unipolar mega-power? Nehru, Indira or Morarji would never have succumbed to this imperial deal. We have, beyond doubt, wind power, solar power, hydro-power, earth heat power, wave power — if only we have the will to use globally available technology. But do we have the do-or-die spirit of swaraj?

Now comes another mega-mendacious observance. November 14, we are told by the Central government, is Children’s Day. But in reality those who run the Republic have scant regard for the Indian child, the celebration of Nehru’s birthday notwithstanding. Gabriela Mistral, a Nobel prize winner, wrote: “We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait, the child cannot. To him we cannot answer tomorrow. His name is today.”

Read Maria Montessori: “Humanity shows itself in all its intellectual splendour during this tender age as the sun shows itself at the dawn, and the flower in the first unfolding, of the petals; and we must respect religiously, reverently, these first indications of individuality.”

To rob a generation of tender wonders of the right to rise to their mental, moral height, to unfold their flowering of faculties and to crib their personality, is societal criminality and culpable desertification of fertile human resources.

The Supreme Court, in M.C. Mehta v. State of Tamil Nadu, dwelt upon the obligation of state and society towards the children of India.

Here comes the poignant pertinence of the noble U.N. Convention on the Rights of the Child. In Mehta, the court recalled the commitment that India made to the world community by acceding to the Convention on the Rights of the Child (1989). The Convention covers the full personality of the child in every dimension. Acceding to the instrument represented a reinforcement of the tryst of the Republic with the children of India which has to be redeemed. The girl child faces everything from foeticide to ‘sati-cide’ to ‘dowry-cide’ to ‘rapicide’.

India has come under international censure, more so because even poorer African countries have done better by children than the Socialist Republic of India where the little child is still made to work on crackers and carpets. Every match box or cracker, every bangle, every brass-ware piece, every hand-made carpet or polished precious stone has on it a streak of innocent blood and the tormented tears of some child forced to slave.

The Central government has not made any comprehensive legislation to implement the U.N. Convention and save the juvenile victim. This tragic indifference induced UNICEF to set up a committee of which this writer was the Chairman, and many distinguished persons including Margaret Alva and Justice A.M. Ahmadi were members, to consider how best to give effect to the Convention on the Rights of the Child. We drafted a regular Bill doing justice to the Convention and presented it to Prime Minister Atal Bihari Vajpayee. He praised the draft and agreed to bring it before Parliament. His term expired and the Congress came to power. Years have passed since, many a Children’s Day has passed, and now another November 14 has come.

The Union Government has aggravated the number of street children, allowed the escalation of child illiteracy by making lower kindergarten and upper kindergarten so expensive as to keep poor children out, and blinked culpably at the growing sexual abuse of juveniles.

A code for child rights is overdue. The tragedy of India is that there is no more Nehru, no more child rights, no more constitutional duty to enact a “paedo-code” to go by the U.N. Convention of which India is a signatory.

Contempt of court and the truth

The contest is between truth and its suppression. The choice then is between the plea of truth to expose judicial misconduct and the attempt to stifle such publication by the use of the contempt power.


In 2002, there were adverse comments widely reported in the print media in Karnataka regarding the private behaviour of some sitting judges of the High Court. The High Court suo motu commenced contempt proceedings against several publications for scandalising the Court and lowering its authority. The matter reached the Supreme Court and an agonised Chief Justice Khare while criticising the media for not disclosing their sources stated that “I will reward the media if they come out with the truth”… “I personally believe that truth should be a defence in a contempt case.”

Broadly, criminal contempt means either scandalising the Court or prejudicing a fair trial or interference with the administration of justice.

In the “Mid-day” case, a bench of the Delhi High Court without considering the defence of truth has imposed a severe sentence of four months imprisonment on the media for scandalising the Court. The case is now pending in the Supreme Court and raises far-reaching questions of public law.

The law as laid down by the Supreme Court following earlier cases was that justification or truth was no defence against summary proceedings for contempt when words were used which scandalised the Court or lowered its authority.

Parliament has now intervened and radically changed the law by Act 6 of 2006 by amending Section 13 of the Contempt of Courts Act, 1971 which states — “Notwithstanding anything contained in any law for the time being in force ... (b) the court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”

The Statement of Objects and Reasons to the Bill states that the amendment “would introduce fairness in procedure and meet the requirements of Art. 21 of the Constitution.”

When the provisions of the Bill were discussed in the Lok Sabha, Law Minister H.R. Bharadwaj said “Suppose, there is a corrupt judge and he is doing corruption within your sight, are you not entitled to say that what you are saying is true? Truth should prevail. That is also in public interest.”

The National Commission to Review the Working of the Constitution (NCRWC) headed by the distinguished former Chief Justice of India, M.N. Venkatachaliah, in its report stated “Judicial decisions have been interpreted to mean that the law as it now stands, even truth cannot be pleaded as a defence to a charge of contempt of court. This is not a satisfactory state of law. … A total embargo on truth as justification may be termed as an unreasonable restriction. It would, indeed, be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto ‘Satyameva Jayate’ in the High Courts and ‘Yatho dharmas tatho jaya’ in the Supreme Court, the courts could rule out the defence of justification by truth. The Commission is of the view that the law in this area requires an appropriate change.”

Chief Justice E.S. Venkataramiah, whose judgments on press freedom are liberal and well known — gave an interview to journalist Kuldip Nayar on the eve of his retirement. He stated “the judiciary in India has deteriorated in its standards because such judges appointed as are willing to be ‘influenced’ by lavish parties and whisky bottles.” … “in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyers’ house or a foreign embassy.” The columnist further reported that “Chief Justice Venkataramiah reiterated that close relations of judges be debarred from practicing in the same High Court.”

At the instance of a leading advocate, a petition was filed against Justice Venkataramiah bringing this interview to the notice of the Nagpur Bench of the Bombay High Court for instituting contempt proceedings against him for scandalising the entire judiciary. The Division Bench observed that the entire interview appeared to have been given with an idea to improve the judiciary and it was not a fit case where suo motu action was called for and dismissed the petition on merit.

International standards and laws of other democracies would be informative and enable us to arrive at the right standards. Professor Michael Addo of the University of Exeter has collected the views of many European experts in “Freedom of Expression and the Criticism of Judges.”

In European democracies such as Germany, France, Belgium, Austria, Italy, there is no power to commit for contempt for scandalising the court. The judge has to file a criminal complaint or institute an action for libel. Summary sanctions can be imposed only for misbehaviour during court proceedings.

In Belgium, the media have been very critical of the functioning of the administration of justice and have strongly criticised individual judges. This tension between the press and the judiciary led to a seminal pronouncement of the ECHR (European Court of Human Rights). Leo De Haes and Hugo Gijsels were editor and journalist of a weekly magazine Humo. They published five articles in which they criticised judges of the Antwerp Court of Appeal in virulent terms for having awarded custody of children to their father although there were serious allegations against him of incest and abuse of children. The three judges and the Advocate-General instituted proceedings against Haes and Gijsels seeking compensation for damage caused by the defamatory articles. The Tribunal of first instance held against the journalists and the same was affirmed by the Brussels Court of Appeal and on further appeal by the Court of Cassation. The journalists applied to the ECHR and succeeded. It was held that though courts had to enjoy public confidence and judges had to be protected against destructive attacks that were unfounded, the articles contained detailed information based on thorough research, and the press had a duty to impart information and ideas of public interest and the public had a right to receive them It was held that there was a breach of Article 10 of the European Human Rights Convention which guaranteed freedom of speech and expression and there was also a breach of Article 6(1) (fairness of trial) because the Tribunal refused to study the reports of professors relied upon by the journalists. The journalists were awarded damages and costs of over Francs 964000 against the State. The case shows that there is no summary right of committal for contempt and the judges adopted proceedings for libel which ultimately failed.

Professor Addo concludes in relation to Art. 10 of the European Convention of Human Rights that although all countries in Europe had an offence relating to the criticism of judges on their books only a few continue to punish for this offence and there is an emerging common European standard.

In the U.K., the offence of scandalising the court has become obsolete. The judiciary was vigorously criticised by the English press in the Spy Catcher case. Peter Wright a former intelligence officer wrote his memoirs but the Court of Appeal injuncted the publication of the book in England. The House of Lords, by a majority of three against two confirmed the interim injunction and enlarged it. The Times of London came out with a blistering editorial which said: “Yesterday morning the law looked simply to be an ass. Those who regretted this fact were waiting with quiet confidence for the Law Lords to do something about it . . . But yesterday afternoon the law was still an ass ... In the hands [of] Lords Templeman, Ackner and Brandon (the majority who ruled for the gag order) it had become unpredictable and wild seemingly responsive only to autocratic whims.”

The Daily Mirror came out with a front page caption “You Fools” and published the photographs of Lords Templeman, Ackner, and Brandon upside down.

In the United States, contempt power is used against the press and publication only if there is a clear imminent and present danger to the disposal of a pending case. Criticism however virulent or scandalous after final disposal of the proceedings will not be considered as contempt. The U.S. Supreme Court observed — “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste on all public institutions ... And an enforced silence, however, limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect.”

Our Parliament, by the recent amendment where justification or truth can be bona fide pleaded in the public interest has attempted clearly to bring our law in line with European and American standards.

Truth was treated as an ‘untouchable’ while exercising contempt jurisdiction for scandalising the Court. Parliament has now opened the doors of the temple of justice for the erstwhile untouchable.

In the case of Veeraswami, a former Chief Justice of Madras High Court, the Supreme Court observed: “A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system.”

The contest is between truth and its suppression. The choice then is between the plea of truth to expose judicial misconduct and the attempt to stifle such publication by the use of the contempt power. The Delhi High Court through its “Mid-day” judgment has catapulted the issue nationally and internationally.

(The writer is a Senior Advocate in the Supreme Court. Email: abdsad@airtelbroadband.in)

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 )

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.

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.”

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