A proven case

V VENKATESAN IN THE FRONTLINE

THE case Nandini Sundar vs State of Chhattisgarh arose out of a writ petition (civil) filed in 2007 in the Supreme Court by Nandini Sundar, a Professor of sociology at the Delhi School of Economics; Ramachandra Guha, a historian; and E.A.S. Sarma, former Secretary to Government of India and former Commissioner, Tribal Welfare, Government of Andhra Pradesh. The petitioners had alleged that the State of Chhattisgarh was actively encouraging a group called Salwa Judum, a civil vigilante structure, to counter Maoist insurgency, and that had resulted in violation of human rights.

The State government created Salwa Judum in June 2005, projecting it as a spontaneous people’s movement to take care of the law and order situation in the naxalite-prone Dantewada district. It comprised about 6,500 Special Police Officers (SPOs), or Koya commanders, appointed by the State government. The force was substantially financed by the Central government. Its members started out with meetings in and around Kutru village of Dantewada district under the aegis of the Jan Jagran Abhiyan. The Jan Jagran Abhiyan was subsequently renamed Salwa Judum.

In May 2006, Nandini Sundar, Guha and Sarma undertook a fact-finding mission to Chhattisgarh as part of the Independent Citizens’ Initiative and heard complaints against the activities of Salwa Judum. They then approached the National Human Rights Commission (NHRC), the Prime Minister, the Union Home Minister, and the National Commission for Scheduled Tribes, among others, and alerted them about the human rights violations by Salwa Judum. Failing to elicit an effective response from them, the civil rights activists approached the Supreme Court with a writ petition.

The Salwa Judum case was one of those rare cases heard by the Supreme Court; it was heard for 26 days spread over five years. Eleven judges, belonging to different Benches comprising two or three judges, heard the matter at different times. When Justice B. Sudarshan Reddy and Justice Surinder Singh Nijjar delivered the judgment in the case on July 5, they did so after hearing the case for 16 days during 2010-11.

According to Nandini Sundar, all the judges who heard the case were sympathetic towards the concerns raised in the petition. The hearings in the case could have concluded much earlier had the Chhattisgarh government not sought frequent and unnecessary adjournments.

The Reddy-Nijjar Bench held that the formation of Salwa Judum on a temporary basis was an abdication of the state of its constitutional responsibility to provide appropriate security to citizens by having an appropriately trained professional police force, of sufficient numbers and with proper equipment on a permanent basis. The Bench also held that the Salwa Judum policy violated both Articles 14 (equality before law) and 21 (protection of life and personal liberty) of those employed as SPOs as well as of the citizens living in those areas. Therefore, the Bench ordered the State government to disarm the SPOs, desist from using them to counter Maoist activities, and protect their lives.

The Bench also directed the State government to prevent the operation of Salwa Judum or any other such group that seeks to take the law into its own hands or violates the human rights of any person. The Bench held that the appointment of SPOs to perform any of the duties of regular police officers was unconstitutional.

Unusual case

Nandini Sundar was also an unusual case in that the court undertook to examine the issues of evidence very much like a trial court and yet did not compromise on the standards to be adopted while evaluating evidentiary issues. The court found its task easy to carry out primarily because most of the allegations made in the petition stood proven in terms of admissions by the State and Central governments and their corroboration by a number of independent fact-finding reports.

The state sponsorship of Salwa Judum was clear and could not be denied. The petitioners showed to the court that Salwa Judum activists, accompanied by security forces and the district police, went into villages, burnt houses, looted grain, livestock and money, and even raped women and killed individuals. Reports by Human Rights Watch, the National Commission for Protection of Child Rights, and the NHRC corroborated these allegations. In addition to this, the petitioners had annexed testimonies by victims. A documentary film produced by Channel 4 of Britain was included as Annexure F-3 in the evidence provided by the NHRC.

Forcible evacuation of villagers into Salwa Judum camps, which the State government euphemistically referred to as relief camps, was proved. Such villagers were made to abandon their fields and prevented from returning to their homes.

Chhattisgarh Chief Minister Raman Singh denied that minors were appointed as SPOs. However, the petitioners proved that minors were appointed as SPOs by producing their photographs and also the police memorials to SPOs Sujeet Kumar Mandavi and Manglu Ram showing that they were 17 and 18 years old respectively when they were killed in a naxalite attack on the Rani Bodli outpost.

A picture of mass violation of fundamental constitutional rights emerged from the testimonies of residents of 110 villages, given at an open rally organised by the Adivasi Mahasabha in June 2007 in Cherla in Khammam district of Andhra Pradesh. The translations of these testimonies (with originals in Gondi and Hindi) were given to the court as annexures to the writ petition. The lists of people killed or raped, and the number of houses burnt were also annexed to the petition. Independent reports corroborated these testimonies.

In the first two years of Salwa Judum (2005-07), the number of people forcibly removed from 644 naxalite-affected villages to Salwa Judum camps was 47,238. There were 20 such camps. These data, taken from an official memorandum of the State government, were annexed to the petition.

Considering the facts of the recruitment of SPOs, the court expressed its dismay at the violation of law. It found that the State government recruited the SPOs first under Section 17 of the Indian Police Act, 1861 (IPA), and later under Sections 9(1) or 9(2) of the Chhattisgarh Police Act, 2007 (CPA). Section 9(1) or 9(2) of the CPA does not specify the conditions under which the Superintendent of Police may appoint “any person” as an SPO.

The court felt that that would be a grant of discretion without any indicia or specification of limits, on the number of SPOs who could be appointed, their qualifications, their training or their duties. Conferment of such unguided and unchannelised power, by itself, would clearly be in the teeth of Article 14, it said. In contrast, Section 17 of the IPA sets forth the circumstances under which such appointments could be made and the conditions to be fulfilled. The court, therefore, held the appointment of SPOs to perform any of the duties of regular police officers other than those specified in Sections 23(1)(a)(h) and 23(1)(a)(i) of the CPA (dealing with disasters and movement of people and vehicles) unconstitutional.

It was also dissatisfied with the State government’s New Regulatory Procedures governing the recruitment of SPOs, which made it clear that the SPOs were to be used for counter-insurgency activities. The court agreed with the petitioners that the lives of thousands of tribal youth appointed as SPOs were placed in grave danger because they were employed in counter-insurgency activities.

The State government cynically claimed in its affidavit that 173 of the SPOs “sacrificed their lives” in this bloody battle, thus proving the petitioner’s contention, the court observed. It also noted that the SPOs suffered a higher rate of deaths, as opposed to what the formal security forces suffered, and this only implied that the SPOs were involved in front-line battles or that they were placed in much more dangerous circumstances without adequate safety of numbers and strength that formal security forces would possess.

The court noted that the SPOs had become cannon fodder in the killing fields of Dantewada and other districts of the State and that the training they received was clearly insufficient. It was shocked that the SPOs, with little or no education, were expected to learn the requisite range of analytical skills and legal concepts and familiarise themselves with other sophisticated aspects of knowledge within a span of two months. Although the State government claimed that it had preferred candidates who had passed the fifth standard for recruitment as SPOs, it implied that some, or many, who had been recruited might not have passed the grade. As the SPOs had such limited schooling, the court found the State government’s claim that they had learnt legal subjects in 42 hours astounding.

While the State government stated that the SPOs were provided firearms only for self-defence, the court felt that they were being placed in volatile situations in which the distinction between self-defence and unwarranted firing might be very thin. It would require a high level of discretionary judgment, which the young SPOs were incapable of exercising, the court said.

In Paragraph 49, the court referred to the State government’s admission that many of the youth who were willing to be recruited as SPOs were motivated by the fact that they or their families had been victims of naxalite violence or wanted to defend their hearth and home from naxalite attacks.

From this the court inferred that those recruited as SPOs might be actuated by feelings of revenge. Such feelings, it opined, would hinder the development of a cool and dispassionate analysis of Maoist actions and could even result in the SPOs branding non-Maoists as Maoists or Maoist sympathisers and causing more people to take up arms against the state.

The court also deplored the Central government’s argument that its role was limited to approving the total number of SPOs and the extent of reimbursement of the “honorarium” paid to them and that it had nothing to do with issuing directions as to how the SPOs were to be recruited, trained and deployed.

It reminded the Central government that the Constitution cast a positive obligation on the Centre to undertake all such necessary steps to protect the fundamental rights of all citizens and, in some cases, even of non-citizens. The court noted with concern that it was the financial assistance extended by the Union that had enabled the State government to appoint barely literate tribal youth as SPOs and give them firearms.

The SPOs were paid an honorarium of Rs.3,000 a month, which the Union reimbursed. The court found it clearly unconscionable that the Central government did not find it necessary to evaluate the capabilities of these SPOs and had abdicated its responsibilities. When the Central government expressed its readiness to issue advisories to the State government requiring the latter to recruit SPOs after careful screening and improve the standards of training, it did not at all inspire the confidence of the court that the Centre would take all necessary steps to mitigate a vile social situation that it had, willy-nilly, played an important role in creating.

Many analysts have expressed surprise that the Reddy-Nijjar Bench devoted 22 paragraphs of its judgment to a discussion of ideological issues, which largely appear irrelevant in deciding the issue before the court. These paragraphs indict the neoliberal development paradigm and the resultant privatisation and globalisation in clear terms. This paradigm, expressed succinctly in Paragraph 10, says that unless development occurs, via rapid and vast exploitation of natural resources, the country will not be able to either compete on the global scale or accumulate the wealth necessary to tackle the endemic and seemingly intractable problems of poverty, illiteracy, hunger and squalor.

The court says, on the basis of historical evidence, that a development paradigm depending largely on the plunder and loot of natural resources more often than not leads to the failure of the state and that on its way to such a fate, millions will be condemned to lives of great misery and hopelessness.

Primary motive

Those who are unable to understand the link between these early paragraphs of the judgment with the petition before the court must read Paragraph 53. The Bench says in this paragraph that it is abundantly clear from the affidavits of the State and Central governments that one of the primary motives behind employing tribal youth as SPOs is to make up for the lack of adequate formal security forces on the ground. The court said the situation had been created in large part by the socio-economic policies followed by the state. It reasoned:

“The policy of privatisation has also meant that the State has incapacitated itself, actually and ideologically, from devoting adequate financial resources in building the capacity to control the social unrest that has been unleashed. To use those tribal youngsters as SPOs to participate in counter-insurgency actions… clearly indicates that issues of finance have overridden other considerations such as effectiveness of such SPOs and of constitutional values.”

The Bench observed that involving these ill-equipped and barely literate youngsters in counter-insurgency activities revealed a disrespect for their lives and dignity, thus violating Article 21. Also, the temporary nature of the employment of the SPOs would endanger their lives further by subjecting them to dangers from the Maoists after they were disengaged from duty, the court said.

The Bench also found proof for the violation of Article 14 in that the SPOs were expected to perform all the duties of police officers and were subjected to all the liabilities and disciplinary codes as members of the regular police force, and their lives were placed on the line, plausibly to a greater extent than the members of the regular security forces, and yet they were paid only an “honorarium”.

The Communist Party of India (Maoist) has welcomed the judgment, reassuring the SPOs that the Maoists do not see them as their enemies. The Maoists have promised to take the responsibility of rehabilitating the SPOs and ensuring livelihoods for them if they returned to the villages and severed all ties with the government. According to the People’s Union for Democratic Rights, the CPI (Maoist)’s statement allays the fear that there may be retaliatory violence against the erstwhile SPOs.

The State government has decided to seek a review of the judgment, but the judgment makes it clear that it is the State and Central governments that need to review their approach to the Maoist threat. A number of civil society movements have urged the State government to give priority to instilling confidence among the affected communities by investigating all instances of alleged criminal activities by Salwa Judum, filing of first information reports and ensuring diligent prosecution of all SPOs charged with various offences, apart from rehabilitating the victims, as directed by the Supreme Court.

http://www.frontlineonnet.com/stories/20110812281604300.htm

Development, justice and the Constitution

Supreme Court of India

KALPANA KANNABIRAN IN THE HINDU

Three judgments by the Supreme Court, in July, demonstrate the significance of social action. They draw important connections between courts, social sciences and social movements; connections that are often forgotten or negated in courts.

Three judgments by the Supreme Court in the month of July mark a sharp departure from pedantic legalism and point to the possibilities of a transformative constitutionalism that sustains and elaborates the idea of constitutional morality developed in the Naz Foundation judgment of the Delhi High Court in 2009. The three cases are also very different pieces that speak to different realities in similar fashion: Ram Jethmalani v Union of India (SIT); Nandini Sundar and Others v State of Chhattisgarh (SJ); and Delhi Jal Board v National Campaign for Dignity and Rights of Sewerage and Allied Workers (DJB). It might be argued, and rightly too, that radical jurisprudence by the Supreme Court is not a recent phenomenon — it has an older history rooted in struggles for civil and political rights. While that is the genealogy of this jurisprudence, we need yet to celebrate each signpost in the development of deliberative jurisprudence that responds not merely to the manifestations of a case, narrowly construed, but sees the larger socio-political context as an inextricable part of the bare facts, so to speak.

The guarantee of public goods — security, infrastructure for governance, law making and enforcement, provision of material and cultural goods especially for classes that lack the power, privilege and status to secure these for themselves — is state obligation. Neither markets (which cater to self-centred activities of individuals and groups) nor purely private social action can be expected to stand in for the state and provide public goods (SIT, 7). Central to the delineation of the problem in these cases is the opening out of the idea of constitutionalism to include a broader idea of justice that enables the mapping of injustice in all its complexity. Tracing the link between the existence of perennial channels for unaccounted monies abroad and the erosion of developmental goals of the state, the Supreme Court contextualises the need to reign in cash flows and ensure total accountability with reference to the structure of a neo-liberal economy. Gunnar Myrdal’s caution about the dangers of a “soft state” that spawns the “unholy nexus between the law maker, the law keeper, and the law breaker” (SIT, 10) is immediately relevant.

“Carried away by the ideology of neo-liberalism, it is entirely possible that the agents of the State entrusted with the task of supervising the economic and social activities may err more on the side of extreme caution, whereby signals of wrongdoing may be ignored even when they are strong. Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large-scale illegal mining have become all too familiar, and may be readily cited (SIT, 15).”

The framework of justice by this token stretches illimitably beyond the narrow confines of constitutional law and decided cases to the letter and spirit of the constitution.

“Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual (SJ, 3).”

In Chhattisgarh

The court locates the heart of the conflict and repression in Chhattisgarh in the amoral political economy endorsed by the state and the departure of state policy from Nehruvian socialism in favour of a free market economy, the natural corollary of which is “muscular and violent statecraft.” The intimate connections between neo-liberal economic policy and a violently authoritarian state have been demonstrated in one country after another. The routine derogation of fundamental rights and human rights, large-scale displacement and dispossession of primarily indigenous tribal communities is an inseparable part of this process.

Courts have more often than not insulated themselves from philosophical and political frameworks of justice, ploughing the over-trodden, unproductive furrow of strictly applied “constitutional law” instead. Drawing on a wide range of writing — from Conrad’s Heart of Darkness to reports prepared at the instance of the Planning Commission — the Salwa Judum judgment puts back into focus the constitutional scheme with socialism and the directive principles of state policy at the centre. It is against this backdrop that the Supreme Court frames the issue of compliance to Articles 14 and 21, and Article 355 with specific reference to the large-scale occupation of schools and hostels by security forces ostensibly to combat maoist forces; the deployment of the “koya commandos” or the salwa judum and the arbitrary use of extreme violence by this militia armed by the state; the arbitrary terms of employment of this tribal workforce that violates constitutional safeguards; and the obstruction of citizen’s peace missions by the state. The adverse impact of this entire scenario is directly on the adivasi communities of Chhattisgarh — both as gun-toting SPOs and subjugated villagers.

Sewerage workers

The case of the Delhi Jal Board points to the predicament of sewerage workers in a globalised economy where essential jobs are outsourced by the state, which then refuses to take responsibility for the health or safety of workers, and challenges claims to reparations. The specific questions placed before the Supreme Court by the state authorities concerned the locus standi of the National Campaign for Dignity and Rights of Sewerage and Allied Workers; the appropriation of legislative powers by the high court; the validity of the high court’s order of interim compensation to families of workers who had died after inhaling noxious fumes while cleaning manholes. That the state needs judicial intervention (which ironically, it challenges) in order to provide the barest of safeguards and entitlements to the most underprivileged category of workers is cause for concern, throwing as it does, the entire range of constitutional guarantees and obligations to the winds.

While upholding the decision of the Delhi High Court, the Supreme Court importantly for us, asserts that social action litigation is an important part of constitutionalism. In a situation where the implementation of the goals set out in the Preamble to the Constitution has been halting and sporadic over six decades, the court observes, arguments against judicial activism and on judicial overreach have the sole object of tiring out those who espouse the cause of the weak and the poor (DJB, 15). Yet, private social action can only force public accountability — remedies are and must be part of state obligation (as the SIT bench reminds us).

Each of the three cases considered here demonstrate the significance of social action — the campaign against state repression and the Salwa Judum in Chhattisgarh, the nationwide campaign against corruption that began in a sense with the movement for the right to information, and the movement for dignity of workers engaged in hazardous and stigmatised forms of labour. The judgments draw important connections between courts, social sciences and social movements, connections that are often forgotten or negated in courts.

These judgments take a radical view of “development,” thereby addressing not just fundamental rights, but importantly, rendering the Directive Principles justiciable in effect — by resisting a disaggregated reading of the Constitution. At the other end, what the constitutionalism approach to the problem of development accomplishes is the framing of development as a bounded endeavour — and hence of justice as spatially and socially hedged in, to be held together by the state, through clear measures of protection against harm, distribution of good and the realisation of capabilities. These are not responsibilities easily or willingly borne by any government, but are undeniably state responsibility and must be used to discipline governments.

(Kalpana Kannabiran is Director, Council for Social Development, Hyderabad.)

http://www.thehindu.com/opinion/op-ed/article2296451.ece

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A cruel joke on the nation

JAN LOK PAL COMMITTEE MEMEBERS

PRASHANT BHUSHAN SR. ADVOCATE  IN THE HINDU

All that the government’s Lokpal bill would do is to create an illusion that it has acceded to the public demand for an independent anti-corruption agency.

The Union Cabinet announced on July 28 that in order to honour the commitment it had given to Anna Hazare and the nation at large, it would table a Lokpal bill during the monsoon session of Parliament beginning on August 1. Though the exact contents of the bill as approved by the Cabinet is not known, its basic features as announced by various Ministers show that such a Lokpal as envisaged in the government’s bill will not be able to tackle any significant case of corruption and will in fact be a cruel joke on the nation.

Looking at the major scams that have erupted in recent times, we find that the government’s Lokpal, apart from being sarkari in the sense that it will be selected by a committee dominated by people from the government, would not be able to investigate them. Thus, it would not be able to investigate the Commonwealth Games scam, the Bellary mining scam or the Adarsh Society scam, since it would have no jurisdiction over State government officials. Similarly, it would not be able to investigate the Public Distribution System scam or the scams in the National Rural Employment Guarantee Scheme, because it would have no jurisdiction over officials below Group A. For the same reason it would not be able to take up any of the corruption cases that plague the common people. It would not even be able to investigate the cash-for-votes scam, since that involves the acts of MPs in Parliament. It would also not be able to properly investigate the 2G spectrum scam, since it cannot call for papers from the Prime Minister’s Office, which are relevant for a proper investigation.

Quite apart from the severely restricted nature of the sarkari Lokpal’s mandate, the distinction drawn by the government’s bill between the level of the officers to be investigated (with lower-level officials to be investigated by the Central Bureau of Investigation (CBI) that is under the government, and higher-level officials by the Lokpal) would create enormous confusion about jurisdiction. Since one often does not know in advance the level of the officers who may be involved in a scam, and usually officials of all levels are involved, one would not know whether to lodge the complaint with the government’s CBI or the sarkari Lokpal. If the CBI started an investigation into the Public Distribution System scam on the basis of the assumption that it involved junior officials, and then found that the money trail goes right up to the top, would the investigation then be transferred to the Lokpal? That would lead to duplication of investigation, apart from the very real possibility of the CBI having already ruined the investigation. That is why different investigative agencies are not designated to investigate offences depending on the identity of the culprits. Thus, normally there is one agency to investigate offences under the Prevention of Corruption Act irrespective of the status of the person involved. There may be a different agency to investigate separate offences under other laws, such as the Enforcement Directorate for offences under the Foreign Exchange Management Act, or the Income Tax Department for offences coming under the Income Tax Act. And will we allow corruption by junior officials to be dealt with by the same agencies that are today sleeping over it?

On UNCAC lines

The Jan Lokpal bill had been framed on the lines suggested by the U.N. Convention Against Corruption (UNCAC), which requires all countries to establish independent anti-corruption agencies which would have the jurisdiction to investigate all public officials. The civil society group has therefore tried to set up a comprehensive, independent, empowered but fully accountable Jan Lokpal which would have an adequate investigative machinery under its control (the anti-corruption wing of the CBI to begin with, which would be brought under the administrative and supervisory control of the Jan Lokpal) and would be able to investigate all Central public servants for corruption. The Jan Lokpal bill also provided for Lokayuktas in the States that would be similarly empowered to investigate State public servants. Moreover, the Jan Lokpal would be selected by a broad-based selection committee that would be largely independent of the government, to avoid the kind of farce that has been witnessed in the selection of the Central Vigilance Commissioner (CVC).

What we have in the government’s bill is an agency that would be essentially selected by the government (five of the nine members of the selection committee would be government nominees), would have jurisdiction over less than half a per cent of the public servants, and would be additionally crippled by the fact of not being able to investigate the Prime Minister, judges or MPs for corruption connected with their acts in Parliament. They say that nine members of the Lokpal cannot handle complaints against 40 lakh Central public servants. But that would be done by the investigating machinery supervised by the Lokpal. It has been estimated that on a ratio of one Lokpal official for every 200 public servants, the Lokpal would have a total of about 20,000 officials working under it. That is a medium-sized department. The Delhi Police alone has 80,000 officials.

On the Prime Minister, judiciary

Some of the provisions of the government’s proposal, such as granting immunity from investigation to the Prime Minister, show illiteracy about the basic features of the Constitution. In 1975, a Constitution Bench of the Supreme Court unanimously struck down the Constitution (39th Amendment) Act that sought to put the election of the Prime Minister above challenge, on the ground that such a provision would violate the basic structure of the Constitution. A provision to grant immunity from investigation and prosecution to the Prime Minister would similarly fall foul of several basic features of the Constitution. In no civilised country is the head of the government immune from corruption investigation. Even in India he or she has not been immune. The CBI can, and occasionally under court directions has, investigated the Prime Minister (as in the case involving some leaders of the Jharkhand Mukti Morcha). The problem is that the CBI is under the Prime Minister himself and therefore cannot conduct a credible investigation of the Prime Minister. That was the entire rationale for an independent Lokpal — to free the agency investigating corruption from the administrative control of the very people that it may seek to investigate. This is precisely what the UNCAC requires.

Similarly, the rationale for the government’s proposal to remove the judiciary from the Lokpal’s ambit suffers also from conceptual confusion. They say that bringing the judiciary within the investigative ambit of the Lokpal would compromise the independence of the judiciary. The judiciary needs to be independent of the government. Normally the police or the CBI can investigate judges for corruption. However, the Supreme Court in Veeraswami’s case directed that since the police are under the government, which can be used by the government to harass judges by way of investigation, the prior written permission of the Chief Justice of India would be required for such investigation. This, despite the fact there had been no instance of any judge being harassed in such a manner, since the judiciary can always use its power of judicial review to quash any mala fide investigation.

However, if the investigation of judges would be done by a Lokpal that would be independent of the government (with the further safeguard in the Jan Lokpal bill that a bench of seven members of the Lokpal would grant permission for investigation or prosecution of judges), the whole rationale for the permission of the Chief Justice disappears. We have seen that in the past such permissions have often been denied even in deserving cases for reasons of conflict of interest. Yet the government’s bill seeks to exempt judicial corruption from being investigated by an independent Lokpal, and seeks to retain the present system of investigation by a government-controlled agency after obtaining permission from the Chief Justice of India.

India is today plagued by corruption of such enormous breadth and depth and running across all public authorities that it is now at serious risk of becoming a banana republic and a mafia state. It was in recognition of this alarming reality, demanding a comprehensive, independent, empowered though accountable anti-corruption authority, that Anna Hazare went on an indefinite fast on April 5, 2011.

After seeing the extent of public support for this demand, the government agreed to a joint drafting committee for the Lokpal bill. Refusing to meet most of the demands of the civil society group in the Jan Lokpal bill, the government has now come out with its bill, which will not succeed in tackling even one per cent of India’s corruption.

All that the bill will do is to create an illusion that the government has acceded to the public demand for an independent anti-corruption agency. But the government will have to pay a heavy price for again having underestimated the ability of the people to see through such a charade. The long suffering people have had enough. Come August 16, they will get a glimpse of public anger.

(Prashant Bhushan is a Senior Advocate and member of the civil society team that drafted the Jan Lokpal Bill.)

http://www.thehindu.com/opinion/op-ed/article2306020.ece

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A constitutional value for privacy

USHA RAMANATHAN IN THE HINDU

The fine line between transparency for accountability and transparency as a stand-alone ambition is getting fudged.

The notion of privacy has been under attack in recent times. Information technology, with its seemingly limitless capacity to hold, and give access to, all kinds of data and details about peoples, places, happenings and scores of other facts and fiction, has overwhelmed concerns about privacy. Facebook and its kin, though of remarkably recent origin, have already spun a web of forgetfulness around the significance of privacy.

The possibilities offered by technology have encouraged the state to get greedy for all that it can gather about people. In the beginning, it was only the census. The census was confidential. Not even a court could demand, and get, information about an individual collected as part of the census. The census was to get to know the state of the nation; not to delve into details about individuals. The census belongs to a tradition that is being edged into obscurity by more recent forays into data gathering and use.

Collection of statistics

In the past three years, the state has begun to work at enhancing its capacity to reach into people’s lives and know all. Take, for instance, the 2008 law authorising the collection of statistics. This replaced a law of 1953 vintage that was concerned with “industry, trade and commerce,” and sought the help of returns filed and registers maintained in collecting data and churning out statistics. The 2008 Act is ambitious and expands its interest to “economic, demographic, scientific and environmental aspects.” The 2008 law derives its information from multiple sources, including individuals and households who are bound to give information when asked, on pain of punishment if they refuse or give information that was misleading. The law provides no boundaries reining in the statistician’s curiosity. So, to study sex selective abortion, and given that the skewed sex ratio is a matter for national concern, if the statistician decides to seek household data on miscarriages and abortions, that information has to be provided. And, ultrasound clinics can be called upon to be “informants” (a term the law uses), and we may never know that our personal history has travelled from database to database. Confidentiality is crumbling away, unheeded.

In April 2011, rules made under the Information Technology Act 2000 directed that every user of a cyber cafe should provide information including name, address and identification particulars. This, along with the photograph of the person as also a list of sites the person visited, should be preserved for at least one year. The idea of the friendly neighbourhood cyber café owner being the repository of this information does not seem to have struck the rule-giver as bizarre. Another set of rules, also dated April 11, 2011, gives the government the power to demand and get any data including “sensitive” data from any body corporate. This may include information about mental, physical and physiological health, sexual orientation.

In December 2009, the Home Ministry set up and hosted NATGRID. As a part of this, 21 databases are to feed 11 security agencies. It is closed to scrutiny; so we will never know what is being done with data, but we will all be under surveillance. All, of course, in the interests of national security.

The unique identification, or UID, project, marketed as voluntary and increasingly being projected as mandatory so that enrolment targets can be met, is a tool to achieve convergence of data that exist on various databases. It is, of course, not only the state that has an avid interest in these developments. The “market” supports the idea of connecting databases. Convergence will make the fortunes and foibles of the population transparent to the marketers. It is no wonder that they do not protest.

The explanation

This extraordinary momentum to get to “know” the people of India is explained away as being necessary to curb terrorism, or to prevent leakage and corruption, or as being essential to reach services to the poor. Or to give identity to those who the state does not know exist, and which ignorance can only be remedied by giving them a number by which it may be known that they exist. Or to make it possible to produce good statistics, which could, just perhaps, aid better planning. Ominous terms such as surveillance and “social control” are hardly, if ever, invoked even if they underpin each of these exercises. Revealing a steep decline in respect for civil liberties even among those representing civil society, the National Advisory Council‘s Communal Violence Bill adopted the idea of interception and non-transmission of communication — before it was withdrawn following criticism.

The Jan Lokpal Bill is drenched in a notion of transparency that treats the “private” as the enemy of the public, and as dispensable. In all this, the fine line drawn in the Right to Information discourse between transparency for accountability and transparency as a stand-alone ambition is getting badly fudged.

Now, happily, it has come to pass that the Supreme Court had lent its weight to the constitutional value of privacy in the Black Money judgment (Ram Jethmalani vs. Union of India, decision of July 4, 2011). The government has been objecting to the judgment as being a case of judicial overreach. It is a little difficult to understand this stance. The government had set up a high-level committee comprising 10 senior officers from various revenue and investigating wings of the state. The Supreme Court renamed this as a Special Investigation Team, while including the Director of the Research and Analysis Wing (RAW) in it. It is not clear why, and maybe an explanation would have helped.

What has irked the state, however, is the inclusion of two former judges of the Supreme Court to “guide and direct” the team. The judges found that “the major problem in the matters before us has been the inaction of the state,” and this inertia and lack of urgency needed to be set right. Yet, it is not as though the judges took the matter away from the executive; what they did was to introduce the judicial element, which would monitor progress in the investigation and act as a spur. This could be just what is needed to add a dash of transparency to governmental proceedings.

This same decision goes on to protect the individual person. In a refreshing return to constitutionalism and restoring significance to privacy when placed in a balance with public interest, the judges have expended thought and effort (paragraphs 72-77) in explaining the “right to privacy.” To pluck a couple of statements which are representative of what the judges held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner… We are not proposing that constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly and without forethought as to the damage they may cause.”

The difference between a transparent state and a private citizen has been clearly established. These are words to be weighed while looking for the limits on the power of the state, and as privacy jurisprudence is developed.

(The author is an independent law researcher working on the jurisprudence of law, poverty and rights.)

http://www.thehindu.com/opinion/op-ed/article2306023.ece

Cabinet approves the Lokpal Bill, 2011

The Union Cabinet today approved the proposal for the enactment of a new legislation in the form of the Lokpal Bill, 2011. The Bill provides for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.

The Bill envisages setting up the institution of Lokpal consisting of Chairperson and eight Members with the stipulation that half of the Members shall be Judicial Members. It will have its own Investigation Wing and Prosecution Wing with such officers and staff as are necessary to carry out its functions.

The Lokpal shall inquire into allegations of corruption made in respect of Prime Minister, after he has demitted office; a Minister of the Union; a Member of Parliament; any Group ‘A’ officer or equivalent; Chairperson or member or officer equivalent to Group ‘A’ in any body/ Board/ corporation/ authority/ company/ society/ trust/ autonomous body established by an Act of Parliament or wholly or partly financed or controlled by the Central Government; any director, manager, secretary or other officer of a society or association of persons or trust wholly or partly financed or aided by the Government or in receipt of any donations from the public and whose annual income exceeds such amount as the Central Government may by notification specify. However, the organisations created for religious purposes and receiving public donations would be outside the purview of Lokpal.

The Lokpal shall not require sanction or approval under Section 197 of the Code of Criminal Procedure, 1973 or Section 19 of the Prevention of Corruption Act, 1988, in cases where prosecution is proposed. The Lokpal will also have powers to attach the property of corrupt public servants acquired through corrupt means

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Supreme Court says it has sky-high powers to chase injustice

Supreme Court of India

J VENKATESAN IN THE HINDU

The limits of power exercised by the Supreme Court when it chases injustice are the sky itself, a Bench of the apex court has said.

“It is plenary power exercisable outside the purview of ordinary law to meet the demand of justice. Article 136 of the Constitution is a special jurisdiction. It is residuary power. It is extraordinary in its amplitude. The limits of Supreme Court when it chases injustice are the sky itself,” said the Bench of Justice J. M. Panchal and Justice H. L. Gokhale.

Stopping illegality

“The appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with the ordinary appellate power exercised by appellate Courts and appellate Tribunals under specific statutes. The powers under Article 136 can be exercised by the Supreme Court in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist,” it said.

Writing the judgment, Justice Panchal said: “Where there is manifest injustice, a duty is enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment of the High Court as it is well-settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allow illegality to be perpetuated.”

Rejecting the contention that the Supreme Court should not do anything which was not prayed for or challenged, the Bench said: “When an apparent irregularity is found by this Court in an order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it. There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.”

The Bench was of the view that the power under Article 136 “is meant to supplement the existing legal framework. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.”

Instant case

In the instant case, the appellant, A. Subash Babu, a police officer in Andhra Pradesh, was alleged to have entered into a second marriage by suppressing the fact of his first marriage which was in subsistence. Aggrieved, the second wife filed a complaint for offences of bigamy, suppression, cheating, dowry and cruelty. The Andhra Pradesh High Court quashed the charges of dowry and cruelty, holding that the second marriage was void but allowed other charges to remain. The present appeal was directed against this judgment.

Dismissing the appeal, the Supreme Court held that the woman with whom the second marriage was contracted by suppressing the fact of former marriage would be entitled to maintain complaint against her husband under Sections 494 and 495 of the Indian Penal Code. Further without any appeal against quashing of charges under Section 498 A, the Bench said it could order reopening it to render justice.

Height of perversity

“A bare reading of the complaint together with statutory provisions makes it abundantly clear that the appellant having a wife living, married the second wife by concealing from her the fact of former marriage and, therefore, her complaint against the appellant for commission of offence punishable under Section 494 and 495 IPC is maintainable and cannot be quashed on this ground. To hold that a woman with whom second marriage is performed is not entitled to maintain a complaint under Section 494 IPC though she suffers legal injuries would be height of perversity,” said the Bench.

http://www.thehindu.com/todays-paper/article2289379.ece

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Let us amend the law, it is only fair to women

THE HINDU / JUSTICE DR  A R LAKSHMANAN

This refers to the article “A law that thwarts justice” ( The Hindu , June 27, 2011) by Ms. Prabha Sridevan, former Judge of the Madras High Court. I have analysed it and am in agreement with the views expressed by the author for my own reasons.

As Chairman of the Law Commission of India, I took up for consideration the necessity of amending Section 15 of the Hindu Succession Act, 1956 which deals with the general rules of Succession in the case of female Hindus dying intestate — not having made a will before one dies — in view of the vast societal changes that have taken place.

The Hindu Succession Act, 1956 is part of the Hindu Code which includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

The Hindu Succession Act made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband’s property as also to her father’s property. The Act was amended in 2005 to provide that the daughter of a co-parcener in a joint Hindu family governed by the Mitakshara Law shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

Scheme of succession

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu.

Source of acquisition

The group of heirs of the female Hindu dying intestate is described in 5 categories as ‘a’ to ‘e’ of Section 15 (1) which is illustrated as under:

In a case where she dies intestate leaving property, her property will firstly devolve upon her sons and daughters so also the husband. The children of any pre-deceased son or daughter are also included in the first category of heirs of a female Hindu;

In case she does not have any heir as referred to above, i.e., sons, daughters and husband including children of any pre-deceased sons or daughters (as per clause ‘a’) living at the time of her death, then the next heirs will be the heirs of the husband ;

Thirdly, if there are no heirs of the husband, the property would devolve upon the mother and father ;

Fourthly, if the mother and father are not alive, then the property would devolve upon the heirs of the father which means brother, sister, etc ;

The last and the fifth category is the heirs of the mother upon whom the property of the female Hindu will devolve if in the absence of any heirs falling in the four preceding categories.

This is the general rule of succession, but the Section also provides for two exceptions which are stated in Sub-Section (2). Accordingly, if a female dies without leaving any issue, then the property inherited by her from her father or mother will not devolve according to the rules laid down in the five entries as stated earlier, but upon the heirs of father. And secondly, in respect of the property inherited by her from her husband or father-in-law, the same will devolve not according to the general rule, but upon the heirs of the husband.

The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did not contain any clause corresponding to Sub-Section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The intent of the legislature is clear that the property, if it originally belonged to the parents of the deceased female, should go to the legal heirs of the father.

So also under Clause (b) of Sub Section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and after acquiring the full right, would not, in any way, alter the rules of succession given in Sub Section (2) of Section 15.

The 174 {+t} {+h} Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

The basis of inheritance of a female Hindu’s property who dies intestate would thus be the SOURCE from which such female Hindu came into the possession of the property and the manner of inheritance which would decide the manner of devolution.

The term ‘property’ though not specified in this Section means property of the deceased heritable under the Act. It includes both movable and immovable property owned and acquired by her by inheritance or by devise or at a partition or by gift or by her skill or exertion or by purchase or prescription. This Section does not differentiate between the property inherited and self-acquired property of a Hindu female; it only prescribes that if a property is inherited from husband or father-in-law, it would go to her husband’s heirs and if the property is inherited from her father or mother, in that case, the property would not go to her husband’s, but to the heirs of the father and mother.

This is very aptly illustrated by the following illustration:- A married Hindu female dies intestate leaving the property which is her self-acquired property. She has no issue and was a widow at the time of her death. As per the present position of law, her property would devolve in the second category, i.e., to her husband’s heirs. Thus, in a case where the mother of her husband is alive, her whole property would devolve on her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid down in case of a male Hindu dying intestate, i.e., if the father of her deceased husband is alive, the next to inherit will be her father-in-law and if in the third category, the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

Thus, in the case of the self-acquired property of a Hindu married female dying intestate, her property devolves on her husband’s heirs. Her paternal and material heirs do not inherit, but the distant relations of her husband would inherit as per the husband’s heirs.

The case for change

The Hindu Succession Act, 1956 was enacted when, in the structure of the Hindu society, women hardly went out to work. There has been a vast change in the social scene in the past few years and women have made progress in all spheres. The consequence is that women are owning property earned by their own skill. These situations were not foreseen by the legislators.

If that is so, what is the impact of these socio-economic changes? Do they warrant any change in the law of succession in relation to the property of a female Hindu dying intestate? What is the fallout of a gradual disintegration of the joint Hindu family and the emergence of nuclear families as a unit of society over the years in the context of law of succession governing the issue at hand?

A fundamental tenet of the law of succession has been the proximity of relation in which a Successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case. The fact that women have been given the right to inherit from her parental side also assumes relevance in the present context. These developments and changes lead to competing arguments and approaches that may be taken in re-defining the law of succession in case of a female Hindu dying intestate. Thus, three alternative options emerge for consideration, namely:

1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family.

2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family.

3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband.

The third option may be taken first as this can be disposed of summarily. The option essentially means continuation of the status quo. We have seen earlier that socio-economic changes warrant corresponding changes in the law as well.

We may now take up the first option. The protagonists of this approach contend that the general order of succession reflects a gender bias. It will be relevant to refer to a passage in Pradhan Saxena – Succession Laws and Gender Justice in Re-defining Family Law in India by Archana Parasar, Amit Dhanda, New Delhi.

The supporters of the said approach contend that the joint family system has slowly eroded and that an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family, a married woman’s dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children and husband are not alive. She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law.

Accordingly, it is urged that Section 15(1) should be modified to ensure that the general order of succession does not place a woman’s husband’s heirs above those who belong to her natal family like her father and mother and thereafter, her brother and sister. It is contended that when a man dies intestate, his wife’s relatives do not even figure in the order of succession despite the manner in which he may have acquired the property. In view of this, parity is sought in the case of a female by applying the same rules as applicable to male’s property.

Accordingly, it is suggested that it would be better to amend Section 15(1) to specify the general rules of devolution, which will apply not only to self-acquired property by a woman, but also to other property acquired through her family, gifts, etc. The only proviso which would then be needed would be the property that a woman acquires from her husband’s family.

The second option in this regard is that the property of a female Hindu dying intestate devolves upon the heirs depending upon the source from which, the said property was acquired by her, the self-acquired property of such female be simultaneously inherited by her heirs both from the husband family as well as the natal family in equal share. The fact remains that in spite of her closeness to and dependence on her natal family, her relations with her husband’s family are not separated and uprooted in entirety. She continues to be a member of her husband’s family, getting support from it in all walks of life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed as claimed by the protagonists of the first option. Lest, there may be social and family tensions which may not be in the overall interest of the family as a whole and as such, ought to be avoided. In any case, it is open to the female Hindu to bequeath her property the way she likes by executing a Will.

Conclusions

In the present scenario, when amendments are made to the effect that women have been entitled to inherit property from her parental side as well as from husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

If this amendment is brought about, the effect will be as under:

A married Hindu female dies intestate leaving self-acquired property at the time of her death, the only surviving relatives being her mother-in-law (L) and her mother (M).

Pre-Amendment

As per the present law, her property would devolve entirely on ‘L’ and ‘M’ will not get anything from her property.

Post Amendment

By the proposed amendment, her mother-in-law and mother should equally inherit her self-acquired property.

A married Hindu female dies intestate leaving self-acquired property and she has no heirs as per Clause ‘a’ of the Schedule, the only surviving relatives are her husband’s brother and sister (BL & SL) and her own brother and sister (B&S).

Pre-Amendment

As per the present law, her property would normally devolve upon ‘BL’ and ‘SL’. ‘B’ and ‘S’ do not inherit anything from her in this property.

Post Amendment

By the proposed amendment, her own brother and sister should equally inherit along with her brother-in-law and sister-in-law.

The above amendment, suggested by me as Chairman of 18 {+t} {+h} Law Commission as early as in June 2008 in the public interest, is still pending with the Union Law Ministry.

(The writer is a former Judge of the Supreme Court of India and former Chairman, Law Commission of India. His email id is jusarlakshmanan@ gmail.com)

Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

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These contested acres

Supreme Court of India

Jaitirth Rao  In The Indian Express

The Supreme Court’s judgment in the Noida land acquisition case has raised concerns because some have interpreted it as being against the spirit of economic reform. It is this columnist’s contention that far from being anti-market, this judgment is pro-freedom, pro-market, pro-citizens and against the machinations of an emerging tyrant state in India.

In 1978, the short-lived Janata government was at the forefront in amending our Constitution to remove the right to property as a fundamental right of Indian citizens. B.R. Ambedkar, Benegal Rau, K.M. Munshi, Alladi Krishnaswami Aiyar and Rajendra Prasad had correctly included property as a fundamental right knowing full well that if tyrant kings (the executive branch of government in modern times) are allowed to arbitrarily seize property, then free citizens will inexorably be turned into servile subjects. The prevalent mood in the 1970s was tragically of the socialist persuasion. The judiciary was accused of ruling in favour of rich mahants and zamindars like Golak Nath. It was assumed that the fundamental right to property was a privilege of the rich. Ironically, when this right was removed as a fundamental right, the sufferers have not been rich individuals or corporations. Instead, in state after state, the government has used its sovereign right of eminent domain to acquire land from the poor, re-zone the land and sell/ lease it to rich capitalists and corporations at subsidised prices. Those who had warned in 1978 that the constitutional amendment was dangerous and anti-people have been proved to be prescient. Whenever rights of citizens are abridged by the state claiming to act on behalf of the poor, as night follows day it must follow that this abridgement will sooner or later be used to oppress the poor and the weak.

The state’s sovereign right of eminent domain is supposed to be exercised to acquire land for “public purposes”. Public purposes have always implied the creation of public goods like roads, railway tracks, canals, reservoirs, sewage farms, etc. To argue that factories (that primarily benefit their owners), flats (that benefit builders and new home-buyers), shopping malls (that benefit builders) and so on are “public goods” is an insult to the language and vocabulary of just laws. And yet, this is how the Government of West Bengal argued in Singur and Nandigram and the Government of UP has argued in Noida. In Bengal, the tribunal of the people rejected this. (A cynic would argue that this is in keeping with the hoary Bengali leftist tradition of deciding disputes in the streets and not in courts.) In UP, our courts have come to the rescue of property owners (in this case poor farmers). Our Supreme Court’s judgment is entirely in keeping with the spirit of the dissenting judgments of Justice Sandra Day O’Connor (and two others) and a separate dissenting judgment of Justice Clarence Thomas of the US Supreme Court in the case of Kelo vs City of New London.

Justice Thomas was quite clear that the right of eminent domain can be used only for public goods — not “to take from Peter to give to Paul”, or in Indian terms to take from farmers and give to factory owners or real estate developers. In Kelo vs City of New London, the wealthy “Paul” was the well-known pharmaceutical giant Pfizer Corporation. The poor “Peter” was a humble American citizen named Kelo who owned a plot of land and a home in the city of New London. The political leaders of New London were tempted by Pfizer’s grandiose plans to “develop” a so-called depressed neighbourhood. Pfizer promised to create 3,169 new jobs and increase municipal revenues by $1.2 million per year. The fact of the matter is that while hapless Citizen Kelo’s house has been seized by the politicos of the City of New London, Pfizer has merrily walked away from its commitments. Ergo: no jobs, no tax revenues for the city. The parallel with the seizures of enormous parcels of land from Kelo’s brethren in India to create shining new SEZs which are yet to come into being is obvious.

Criticising the majority judgment in the US case, Justice O’Connor said: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” Justice Thomas went one step further when he wrote as follows: “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.” Even though these learned justices may never have visited India, it is indeed quite uncanny as to how they have anticipated the behaviour of the Indian state. Claiming that factories, apartment blocks and shopping malls are “economically beneficial”, property is being transferred from the poor to the rich. The justices referred to this as the “reverse Robin Hood” phenomenon.

There is no point in hiding behind the usual smokescreen of blaming colonial laws. The issue in India rests with the illegitimate definition of public purpose and the Machiavellian manner in which re-zoning (which drives up land prices) is done after the land has been acquired from powerless citizens at absurdly low rates. The proposed new law with endless arguments about whether forcible acquisition for a factory or a mall is in order after 70 or 80 per cent of the land has been acquired by the powerful corporation/ developer is a deliberate attempt to confuse the issue in order to continue to support crony capitalist behaviour. The only fair solution is to have an extremely narrow definition of public purpose and to re-zone land usage before so-called development activities are started, not afterwards. Better still, restore property as a fundamental right so that citizens can go to courts to fight an executive branch which is hand-in-glove with “citizens with disproportionate influence”.

The writer is an entrepreneur based in Mumbai
jerry.rao@expressindia.com

http://www.indianexpress.com/news/these-contested-acres/821699/0

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Rehabilitation of Women in Prostitution – A time for Action

The Supreme Court has issued notice to all States and Union of India on the issue of Rehabilitation. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.

 Ravi Kant , Advocate Supreme Court of India & President, Shakti Vahini

 Recently the Supreme Court had issued notice to all states while noting down the concern on the pathetic conditions of Sex Workers:

“ Although we have dismissed this Appeal, we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. As already observed by us, a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed herself.

We propose to have the response of the Centre and the States in this regard and hence the case shall be listed before us again on 04.05.2011 to be taken up as first case on which date the first compliance report indicating therein the first steps taken by the Central and the State Governments in this regard shall be submitted. Issue notice to the Central Government and all the State Governments which will also file responses by the date fixed for hearing.”

 The court was expressing anguish and concern about failure of the Union of India and the States to effectively implement the National Plan of Action 1998 to combat trafficking and Rehabilitation has caused irreparable damage to lakhs of victims who have been caught in this illegal trade. The applicants states that this Honourable Court in Gaurav Jain Vs Union of India keeping in view of the legislative inertia and the consequent failure of the government  directed that a high level committee be constituted to make an indepth study of these problems and to evolve such guidelines to protect the rights and interest of victims of sexual exploitation. It also  laid down certain guidelines and further  directed that a high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent  with the guidelines.

 The central government pursuant to the directions issued by this Honurable Court in Gaurav Jain case constituted a “Committee  on the Prostitution , Child Prostitutes & Plan of Action to combat trafficking and commercial and Sexual Exploitation of Women and Children”. In 1998 a Report containing an Action Plan was prepared by the Department of Women and Child Government of India . Apart from the highlighting the problems faced in addressing issues of commercial sexual exploitation which are set out hereinafter detailed recommendations were made with a view to arrest the systematic problem , including issues relating to law enforcement and legal reforms.

 The above recommendations have not been implemented. In fact there has never been any serious attempt by Respondents to address the issues /recommendations made by the committee. Further the Action Plan does not have any budgetary or non budgetary support from the Government. The petitioner believes that there has been no study relating to the economic cost of implementing the recommendation and the sources through which such costs could be met. In the years from 2001- 2010 the Government of India has focused its initiatives on the issue to combat trafficking. It has formulated the Swadhar and Ujjwala initiatives which are primarily aimed at rehabilitation of trafficked victims. The Government of India in 2010 has formed special Anti Human Trafficking Units across the country under the Ministry of Home Affairs . Apart from the above mentioned initiatives the respondents  have  failed  miserably to formulate special schemes for rehabilitation of women who are in prostitution and also failed to implement the guidelines which were formulated in the National Plan of Action 1998 for rehabilitation of women in the red light area.

The Govt of India , UNIFEM and National Human Rights Commission undertook a study on the issue of Human Trafficking and to propose  recommendations to combat this crime. The NHRC report came out with a set of recommendations which have till date not been complied with. The failure to implement the measures set out in 1998 Plan of Action and also the recommendations of the NHRC report has caused severe injury and prejudice to the victims of prostitution . The legislative deficit, coupled by callousness displayed by the respondents continues to ruin the lives of lakhs of women who are caught up in the Illegal Sex Trade being openly run from the red light areas. The respondents have failed and neglected to accept responsibility and discharge their duty as mandated by law.

 Due to the callous attitude of the Union of India and the various state governments the trade in the red light area has been thriving. Combined with lax law enforcement and insufficient support structures the trafficking in Human Beings is on the increase. It is due to the problem of trafficking the victims are forcefully pushed into this illegal and viscous trade. The victims are mostly minors when they are brought and are sold to the organized crime thriving in the red light areas. From there these victims are tortured and forced into prostitution. The victims are kept in bonded conditions and are forced to live a life of bondage , sexual slavery , repeated and forced rape , deprivation of basic human rights and hidden away from law enforcement agencies. The victims after repeated human rights violation , continued torture and bodily harm are forced to do and act as there captors desire. These victims are then forced to cater to ten to fifteen men each day . This bonded conditions continue for at least seven to ten years or until the victim can be rescued. The seven to ten years of bonded and sexual slavery is serious violation of Article 23 (3) and Article 21 of the Constitution of India. During this period the victims is forced to suffer repeated rape ten to fifteen times and also during this process of forced and sexual slavery the victim also gets exposed to Sexually Transmitted diseases and HIV/AIDS. The economics of the illegal trade of human misery and also the the exploitation has been vividly explained in the NHRC / UNIFEM

 The victim after immense suffering and years of exploitation and sexual slavery multiplied with lax law enforcement is left with no choice but to continue in the illegal trade. The victims cannot return to their homes for the fear of stigma and shame. They are left to their pathetic situations. Some of them are forced to continue in the trade and many with no choice left become part and parcel of the illegal trade. The Victims continue to suffer and with no rehabilitation or support from the government are left to beg and die in utter neglect. They don’t even venture out as they will be further exploited. Thus the suffering and violation of basic human rights and fundamental rights continue .

 The Honourable Court in VishalJeet Vs Union of India explained the pathetic situation of the victims:

 “No denying the fact that prostitution always remains as a running sore in the body of civilisation and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making its way onwards leaving a track marked with broken hopes. Therefore, the necessity for appropriate and drastic action to eradicate this evil has become apparent but its successful consummation ultimately rests with the public at large.

 It is highly deplorable and heart-rending to note that many poverty stricken children and girls in the prime of youth are taken to ’flesh market’ and forcibly pushed into the ’flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions–indeed there is none–that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”

 The Honurable Supreme Court in Vishaljeet Vs Union of India laid down certain guidelines for eradication of the malady :

 This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers. The Courts in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences. Apart from legal action, both the Central and the State Government who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction.Bhagwati, J. (as he then was) in Lakshmi Kant Pandey v.Union of India, [1984] 2 SCC 244 while emphasizing the importance of children has expressed his view thus: “It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ’supremely important national asset’ and the future wellbeing of the nation depends on how its children grow and develop.”

 We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard. Accordingly, we make the following directions:

 1. All the State Governments and the Governments of Union Territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.

 2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women’s organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and associations etc., the main objects of the Advisory Committee being to make suggestions of:

 (a)  the measures to be taken in eradicating the child prostitution, and

(b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution.

 3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatarists and doctors.

4. The Union Government should set up a committee of its own in the line, we have suggested under direction No.(2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children.

 5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.

 6. The Advisory Committee can also go deep into devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.

 7. The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commissioner of Police, Delhi for necessary action. We may add that we are not giving an exhaustive list of the members for the constitution of the committee. Therefore, it is open to the concerned Government to include any member or members in the committee as it deems necessary.

 We hope and trust that he directions given by us will go a long way towards eradicating the malady of child prostitution, Devadasi system and Jogin tradition and will also at the same time protect and safeguard the interests of the children by preventing of the sexual abuse and exploitation.

 The Honourable Supreme Court in Gaurav Jain vs Union of India had keeping in view the legislative inertia and the consequent failure of the Government to protect the rights and interest of the victims ,laid down certain guidelines and further directed high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines. The Supreme Court realizing the enormity of the problem and the need to urgently mend the systematic and symbolic failures proceeded to give further directions in the manner as follows:

 “The Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women the Child Development as the chairperson and three or four Secretaries from the concerned State Governments, to be nominated by the Minister of Welfare. They would make an in-depth study into these problems and evolve such suitable schemes as are appropriate and consistent with the directions given above. The Committee should be constituted within one month from the date of the receipt of this judgment. The Committee should finalise the report within three months thereafter. As soon as the report is submitted. the same may be communicated to all the State Governments and the concerned Ministries for their examination. Within two month from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decision. The Committee should finalise the report with further suggestions or amendments, if suggested in the conference. Thereafter, the report should be finalised and then direction would be given to the State Governments for effective implementation of the schemes. The nodal Department would enforce and regularly be supervised by the Ministry of Welfare, Government of India. A permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis, and to take such other steps as may be expedient in the effective implementation of the schemes. Periodical progress as to funding and enforcement of the scheme should be submitted to the Registry of this Court. If further directions would be needed, liberty is given to the parties to approach this Court. In that view of the matter, it is believed and hoped that the above law and directions would relieve the human problem by rehabilitation of the unfortunate fallen women cought in the trap of prostitution ; their children would be brought into the mainstream of the social order ; these directions would enable them to avail the equality of opportunity and of status, with dignity of person which are the arch of the Constitution.”

The Advisory committee formed pursuant to the judgement of this Honourable Court  in Vishal Jeet vs Union of India have remained defunct and many states have not even convened meetings of the committee. The Central Advisory Committee formed by the Government of India , Ministry of Women and Child has been meeting regularly since 2005 and has been addressing the problems of trafficking. Though the committee has not focused on the issue of rehabilitation of women in prostitution. These committees were formed with the intention to promote inter department cooperation and approach the problem in a unified manner.

 When Shakti Vahini  (Writ Petition 190 0f 2002) had petitioned to the Supreme Court that such committees were not functional and pursuant to the Supreme Court notice many governments had formed the committees just to file affidavits in the Supreme Court. After that again these committees became non functional. The National Plan of Action 1998 formed pursuant to the Honourable Supreme Court order has remained a dead document as nothing much has been done for the emancipation of women victims.

 The National Human Rights Commission in 2006  has also framed a Plan of Action to combat Trafficking but the same has also remained as a dead document. The Government of India has initiated several initiatives in collaboration with NGOs to combat trafficking and has also formed a special cell in the Ministry of home Affairs , Government of India as the Nodal Agency for the Anti Human trafficking Units. The law enforcement agencies are also being sensitized on the issue of Trafficking and several modules for police trainings have been formulated by United Nations office on Drugs and Crimes ( UNODC) , Bureau of Police Research and Development (BPRD) and Ministry of Home Affairs. The Union of India in collaboration with NGOs has launched Ujjwala and Swadhar Schemes which are more focused towards trafficked children and as short stay homes.

 The Government of India unfortunately has till date not devised any proper scheme for rehabilitation for women in prostitution so that they can become part of the mainstream.

Ratification of the UN Protocol on Human Trafficking

 The Government of India has recently ratified the UN Protocol .  This also implies that  Government of India formally adopting definition of Human Trafficking which is :“Trafficking in persons” which shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

 The UN Protocol makes Human Trafficking and Smuggling a organised crime and call upon states to provide victim support , victim repatriation , witness support and protection , Joint Investigations between member nations  etc. It specially calls upon nations to ensure  implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. It mandates nations to  ensure that take into account the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. It also provides for nations to provide for the physical safety of victims of trafficking in persons while they are within its territory and  ensure that its domestic legal system contains measures that offer  victims of trafficking in persons the possibility of obtaining compensation for damage suffered. It takes a commitment from nations that they shall establish comprehensive policies, programmes and other measures inter alia  to prevent and combat trafficking in persons; and (b) to protect victims of trafficking in persons, especially women and children, from revictimization. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.

 It mandates that nations shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: (a) whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons; the types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and the means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them.

 It ensures that nations  shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with nongovernmental organizations, other relevant organizations and other elements of civil society.

 State Liablity

 The Government of India and the various states have failed in their duty as the problem of prostitution is a serious violation of Fundamental Rights as enshrined in Article 21 and Article 23 of the Constitution of India. India is also a signatory to international conventions such as the Convention on Rights of the Child (1989), Convention on Elimination of all forms of Discrimination Against Women (1979), UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000) and the latest South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002). The Constitutional , International, Statutory obligations   and orders of the Honourable Supreme Court makes it mandatory for the Government of India and the different state Government to combat this heinous organised crime and also to provide support to the victims of Prostitution.

 Rehabilitation / Compensation approach

 The Supreme Court in Bandhua Mukti Morcha  1984 (3) SCC 161 has elucidated the rehabilitation of Bonded Labour and directed the Government to award compensation to Bonded labour under the provisions of Bonded Labour System (Abolition) Act 1976 after taking note of serious violation of Fundamental & Human Rights :

 “The other question arising out of the implementation of the Bonded Labour System (Abolition) Act 1976 is that of rehabilitation of the released bonded labourers and that is also a question of the greatest importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion.

 The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and (illusory) security’ as against a world of freedom and starvation. The State Governments must therefore concentrate on rehabilitation of bonded labour and evolve effective programmes for this purpose. Indeed they are under an obligation to do so under the provisions of the Bonded Labour System (Abolition) Act 1976. It may be pointed out that the concept of rehabilitation has the following four main features as admirably set out in the letter dated 2nd September 1982 addressed by the Secretary. Ministry of Labour, Government of India to the various States Governments:

 (i) Psychological rehabilitation must go side by side with physical and economic rehabilitation;

 (ii) The physical and economic rehabilitation has 15 major components namely allotment of house-sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, horticulture, animal husbandry, training for acquiring 134 new skills and developing existing skills, promoting traditional arts and crafts, provision of wage employment and enforcement of minimum wages, collection and processing of minor forest produce, health medical care and sanitation supply of essential commodities, education of children of bonded labourers and protection civil rights;

 (iii) There is scope for bringing about an integration among the various central and centrally sponsored schemes and the on-going schemes of the State Governments for a more qualitative rehabilitation. The essence of such integration is to avoid duplication i.e. pooling resources from different sources for the same purpose. It should be ensured that while funds are not drawn from different sources for the same purpose drawn from different sectors for different components of the rehabilitation scheme are integrated skillfully;and

(iv) While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would need the total requirements of the families of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.

We would therefore direct the Government of Haryana to draw up a scheme on programme for “a better and more meaningful rehabilitation of the freed bonded labourers” in the light of the above guidelines set out by the Secretary to the Government of India, Ministry of Labour in his letter dated 2nd September 1982. The other State Governments are not parties before us and hence we cannot give any direction to them, but we hope and trust that they will also take suitable steps for the purpose of securing identification, release and rehabilitation of bonded labourers on the lines indicated by us in this Judgment.”

The compensation since 1978 has undergone a change and presently the compensation is Rs20,000 and access to Government schemes of poverty alleviation and also housing under Indira Awas Yojana .

 Supreme  Court in MC Mehta vs State of Tamil Nadu and Others – Writ Petition (Civil) No.465/1986 seeing the severe violation of fundamental rights in cases of child labour laid down guidelines for compensation and rehabilitation :

 “ It may be that the problem would be taken care of to some extent by insisting on compulsory education. Indeed, Neera thinks that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. therefore, unless the family is assured of income allude, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are, however, of the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain a will-o’-the wisp. Now, if employment of child below that age of 14 is a constitutional indication insofar as work in any factory or mine or engagement in other hazardous work, and if it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfillment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs.20,000/-; and the Inspectors, whose appointment is visualised by section 17 to secure compliance with the provisions of the Act, should do this job. The inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs.20,000/- which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the concerned child. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high yielding scheme of any nationalised bank or other public body.

As the aforesaid income could not be enough to dissuade the parent/guardian to seek employment of the child, the State owes a duty to come forward to discharge its obligation in this regard. After all, the aforementioned constitutional provisions have to be implemented by the appropriate Government, which expression has been defined in section 2(i) of the Act to mean, in relation to establishment under the control of the Central Government or a railway administration or a major port of a mine or oil field, the Central Government, and in all other cases, the State Government.

 Now, strictly speaking a strong case exists to invoke the and of an Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39(e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child. This would also see the fulfillment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unni Krishnan. We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”. The very large number of child-labour in the aforesaid occupations would require giving of job to very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector establishment or, for that matter, in a public sector organisation., we are not issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as above-mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5,000/- for each child employed in a factory or mine or in any other hazardous employment.

 The aforesaid would either see an adult (whose name would be suggested by the parent/guardian of the concerned child) getting a job in lieu of the child, or deposit of a sum of Rs.25,000/- in the Child Labour Rehabilitation-cum- Welfare Fund. In case of getting employment for an adult, the parent/guardian shall have to see that his child is spared from the requirement to do the job, as an alternative source of income would have become available to him.”

 The  Supreme Court in Delhi Domestic Working Women’s Forum Vs. Union India and others writ petition (CRL) No.362/93 in recognition of severe violation of Fundamental rights of Rape Victims had directed the National Commission Women to evolve a “scheme so as to wipe out the tears of unfortunate victims of rape’’. The Supreme Court observed that having regard to the Directive Principles contained in Article of the Constitution, it was necessary to set up a Criminal Injuries Compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial and in some cases are too traumatized to continue in employment.

“ In this background, we think it necessary to indicate   the broad parameters in assisting the victims of rape.The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well- acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.

 (2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3)The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

 (5)The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.

 (6)In all rape trials anonymity of the victim must be maintained, as far as necessary.

 (7)It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

 (8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

 16. On this aspect of the matter we can usefully refer to the following passage from The Oxford Handbook of Criminology (1994 Edn.) at pages 1237-38 as to the position in England:

 ”Compensation payable by the offender was introduced in the Criminal Justice Act, 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where ‘injury, loss, or damage’ had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penological thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1988 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, impose a duty on the court to give reasons for not doing so. it also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review ….

The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.”

 17.Section 10 of the Act states that the National Commission for men shall perform all or any of the following functions, namely:, (a) Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws. (b) Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal.

 18. Having regard to the above provisions, the third respondent will have to evolve such scheme as to wipe out the tears of such unfortunate victims. such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall necessary steps for the implementation of the scheme at the earliest.

 The National Commission for Women pursuant to the orders of the Honourable Supreme Court has drafted a scheme for Compensation. Some states have already started the implementation of the scheme. The scheme The scheme has proposed a compensation of Rs2 to Rs3 Lakhs for Rape victims.

The Government of India has recently amended the  The Code of Criminal Procedure 1973 as amended by  The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation.

“357A. Victim compensation scheme. — (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation.

 (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

 (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

 (5) On receipt of such recommendations or on the application under sub-section

(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”.

Article 23of the Constitution of India prohibits ,”Traffic in Human Beings” this Honourable Court has held that the expression “Traffic in Person” in Article 23(1) of the Constitution of India is evidently a very wide expression which includes the prohibition of traffic in women for immoral and other purposes . In the case of women in prostitution the failure to implement the National Plan of Action drafted pursuant to the Judgement in Gaurav Jain vs Union of India has resulted in serious deprivation of fundamental rights.

The trafficked victims and women in prostitution go through serious fundamental rights violation which includes bondage and sexual slavery  and repeated rape and gang rape. The crimes are very serious in nature which results in deprivation of Fundamental Rights and therefore the state is liable. As mentioned above this Honourable Court has already ordered compensation in Bonded Labour and for victims of Rape , the victims of Human Trafficking and women in Prostitution also are eligible for compensation from the State.

 The failiure of the Union of India and the State Governments to draft a suitable rehabilitation scheme for women in prostitution is a serious violation of orders of this Honourable Court and also violation and deprivation of Article 21 and Article 23(1) of the Constitution of India. Article 23 read with Article 39, 41 and 42 together constitute inalienable rights and the failure to grant such right would constitute deprivation of basic fundamental rights. The problem of trafficking and prostitution is also serious violation of Article 14 , Article 19 of the Constitution of India.

 A way forward – Suggested Recommendations

 Shakti Vahini after held several meetings with women victims of the red light area of GB Road on the issue of Rehabilitation after the Honourable Supreme Court issued notice to the Union of India and all states in the present case. The victims have provided suggestions as to how the State can formulate schemes which can help them to reintegrate back to the society. The victims have also come out with suggestions so that they can be reintegrated in the society and also be rehabilitated which are as follows:

1. Compensation to be paid for serious violation and deprivation of Fundamental rights.

 2. The women in prostitution are in bondage condition for several years . As a result there is a serious loss of identity and the organised crime changes their names frequently. This ultimately leads to having no identity and hence access to government schemes and government facilities are completely not available to the Victims. The Government of India and the State Government should at once issue identity cards , Ration Cards , UID Cards so that domicile can be proved. Without these documents the women have no approach to the government facilities.

3) The Women victims of prostitution and Human Trafficking undergo serious violation of Fundamental rights and are forced to live a life of sexual slavery and bondage. They have no source of income and they should be treated as Below Poverty Line. This will enable them to access the schemes for Poverty Alleviation.

 4) Most of the victims of Human Trafficking and Women in Prostitution belong to the lower strata of the society and are tribals and belong to the SC and ST communities. The schemes for alleviation of these communities should be open to all those victims who belong to such communities

 5) The Government should provide schemes for training and Income generation programme and also link these schemes with Nationalised Banks and agencies like Rashtriya Mahila Kosh . The training provided should encourage entrepreneurship and this needs to be supported by easy and low interest credit. Services of NGOs can be asked to provide mentor support.

6) The victims of trafficking and prostitution who want to leave the place should be provided residential facilities and rehabilitation scheme as soon as possible.

7)  All schemes of social security and Health facilities should be accessible to victims of trafficking.

 Legal aid and legal support should be provided to the victims .

 9)   States in destination area should also accept responsibility of victims as they are liable because their fundamental rights violation has taken in the destination areas. This is because many a times states pass on the responsibility of the victims on the home state and the home states accepts no responsibility.

10) The present schemes of swadhar and Ujjwala are completely irrelevant compared to the magnanimity of the crime.

11) Any scheme devised by the Government of India should have strong budgetary support.

 12) The victims of trafficking and women in prostitution categorically state they are victims of organised crime and have landed in this situation due to they were forced in this situation. They all agree that in no case prostitution should be allowed or regulated.

13) Government should frame stringent laws to convict traffickers who indulge in trafficking of women and children. The Law enforcement agencies should take action against such criminals.

 14) The whole illegal business of prostitution is run by organised crime who have links across the country. The honourable court should direct the law enforcement agencies to launch investigation against these perpetrators

When the Supreme Court said that the victims of Commercial Sexual Exploitation should be provided “ a life of dignity” it should not be meant that the court is talking about legalization. Organizations and individuals with vested interest who have to gain from such illegal trade start speaking about the legalization issue.

 It is a reality that Govt of India has never had a serious view on the issue of rehabilitation. It may be thing of past as the Government of India with the liberalization of the economy has now no dearth of the funds to do it. The Government is already spending huge amounts in National Rural Health Mission, Sarva Shiksha Abhjiyan , National Rural Employment Gurantee Scheme, Integrated Child Protection Scheme (ICPS) & etc.

Recently the Government of India has launched Anti Human Trafficking Units across the country. This is a specialised force which will work exclusively to combat Human Trafficking. The results are already being felt with more such gangs being busted. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.

The writer is practising advocate in the Supreme Court of India and is President of Shakti Vahini a leading non governmental organization working on anti trafficking. He can be reached at : ravikantsv@gmail.com

Enactment of a new legislation in place of Benami Transactions (Prohibition) Act, 1988 – Introduction of the Benami Transactions (Prohibition ) Bill, 2011

The Union Cabinet today approved the proposal for the enactment of a new legislation in the form of the Benami Transactions (Prohibition) Bill, 2011 to replace the existing Benami Transactions (Prohibition) Act, 1988 and for its introduction in Parliament. During the process of formulating the rules for implementing certain provisions of the present Act which was passed in 1988, it was found that owing to infirmities in the legislation, formulation of the rules would not be possible without a comprehensive legislation by repealing the Act. The Bill contains elaborate provisions dealing with the definition of benami transaction and benami property, prohibited benami transactions, consequences of entering into a prohibited benami transaction and the procedure for implementing the benami law. Properties held by a coparcener in a Hindu undivided family and property held by a person in fiduciary capacity are excluded from the definition of benami transaction. Further, properties acquired by an individual in the name of spouse, brother or sister or any lineal ascendant or descendant are benami transactions which are not prohibited. Consequently, they are not subject to penal provisions.

Where any person enters into a benami transaction in order to defeat the provisions of any law or to avoid payment of statutory dues or to avoid payment to creditors, the beneficial owner, benamidar and any other person who abets or induces any person to enter into such benami transaction, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to a fine. A benami property shall also be liable for confiscation by the Adjudicating Authority after the person concerned has been given due opportunity of being heard.

Background:

The major infirmities of the existing Act were:

1. Powers of a civil court have to be conferred on the authorities under the Act.
2. Specific provisions have to be introduced for vesting of confiscated property with the Central Government.
3. An appropriate appellate structure has to be defined, while barring jurisdiction of a civil court against an action taken by the authorities under the Act.
4. Matters of procedure relating to its administration, notice of hearing to parties concerned, service of notice and orders, powers of the competent authority relating to gathering of evidence etc are to be provided.
5. The word ‘wife’ needs to be replaced with the word ‘spouse’ and property purchased in the name of certain other family members is to be allowed under the Act.

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