A Colloquium on human trafficking was organised on Sunday by the state legal services authorities of Punjab, Haryana and UT Chandigarh, in collaboration with the governments of Punjab and Haryana. The event was held at the Chandigarh Judicial Academy and was sponsored by the Union Ministry of Home Affairs.
Eminent speakers and chief guest, Jasbir Singh, Acting Chief Justice of the Punjab and Haryana High Court, discussed concerns related to human trafficking and the possible ways to curb it. Speaking on the occasion, P M Nair, special Director General of CRPF, explained the dimensions, challenges and existing responses on human trafficking. He presented a documentary made by the United Nations, with him as the project head, featuring real life cases of children who were traded for money and appeals made by Bollywood actors like Amitabh Bachchan, John Abraham and Preity Zinta to stop human trafficking.
Shanta Sinha, Chairperson of the National Commission for Protection of Child Rights (NCPCR) and Ravi Kant, President of Sakti Vahini, a Non Governmental Organisation, emphasized that the present legal framework against human trafficking has loopholes and more stringent laws need to be developed. Sinha said that about 80 percent of the present child labour force is employed in the agricultural sector as only 65 procedures are prohibited by the Child Labour Act in India. This leads to more trafficking of children for agricultural sector and work at home based units. Ravi Kant applauded the recent order passed by the Punjab and Haryana High Court to register FIRs for all missing children.
U Sarathchandran, member, Secretary of National Legal Services Authority, New Delhi, elucidated the role of the judiciary along with cases of human trafficking from Bihar and Madhya Pradesh, which were caught and duly handled by the judicial authorities. Justice Roshan Dalvi of Mumbai High Court and Swati Chauhan, Judge at the Family Court, Mumbai, threw light on the legal provisions against trafficking and protection of victims alongwith the prosecution of traffickers.
In his address, Acting Chief Justice of the Punjab and Haryana High court, Jasbir Singh, said, “It is shameful that human beings are treated as commodities today. It’s a gross disruption in moral values and righteousness”. He added that in this regard there is a need to follow the principle of four Ps- prohibition, prevention, prosecution and partnership.
The colloquium was attended by a gathering of more than 500 jurists and other members of the judicial fraternity.
The Supreme Court today modified one of its order on welfare and rehabilitation of sex workers on the Centre’s submissions that the last year’s order gave an impression that it seeks to legalise prostitution. Allaying the Centre’s fears that it was giving its seal of approval to prostitution, a special bench of justices Altamas Kabir and Gyan Sudha Misra modified its earlier order, saying “the modification shall not be construed that by this order any encouragement is being given to prostitution.”
Modifying its earlier order, the bench clarified that it would only examine the “conditions conducive for sex workers to work with dignity in accordance with provisions of Article 21 of the Constitution.”
It added it was keen that sex workers should be given opportunity to avail rehabilitation measures of the government and other agencies for them. While adjudicating a petition for rehabilitation of former sex workers, the apex court had on July 19, 2011 framed three terms of reference. Appointing a broad-based panel to look into the matter, the apex court by its July 2011 order had formulated three questions related to prevention of trafficking, rehabilitation of sex workers who wish to leave the sex work and “conditions conducive for sex workers who wish to continue working as sex workers with dignity.”
On the Centre’s submission that the third term gave an impression that prostitution has been sought to be legalised, the apex court modified it to read as “conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.
“The above modification shall not be construed that by this order any encouragement is being given to prostitution,” the bench added. Justice Sudha also observed, “While we do not wish to encourage sex trade we would emphasise rehabilitation of sex workers for which we had taken the issue. “We wish to add although the sex workers have right to live with dignity. There has to be collective endeavours by courts and sex workers to give up flesh trade in case they are given alternative platform on employment.”
TIMES OF INDIA
KOCHI: Fiat Justicia, an NGO working in the legal field, has approached the Kerala high court seeking a ban on strikes by lawyers. The strike by lawyers on July 11 and 12 led to gross miscarriage and delay of justice and is against the specific directions of the Supreme Court in the matter, the petition filed through advocate M R Hariraj said.
Lawyers in Kerala had stayed off courts on July 11 and 12 as a mark of protest against the High Education and Research Bill and alleging encroachment upon the functions of the Bar Council of India as well as the State Bar Councils by the ministry of human resources development. The decision to support the strike was adopted by the Bar Council of Kerala in a meeting of the state council and all bar associations on July 1.
According to the petition, the court must restrain lawyers from resorting to strike and impose penalty on those engaging in it. It is also alleged that the Centre, state and high court didn’t take any action to avert the strike. It resulted in adjournment of over 90% of cases and is a violation of the directions of the Supreme Court in various judgments, the NGO contends. The NGO also points out that a representation was made to the chief justice of India demanding initiation of suo motu proceedings against those who conducted the strike.
The high court should issue specific directions to lower judicial forums that fall under the high court’s administrative superintendence as the supreme court held in Harish Uppal vs Union of India case in 2003 that damage caused by illegal call for strike by lawyers to parties must be compensated by suo motu action by the concerned courts.
NEW DELHI: The Supreme Court may have declared in numerous judgments that speedy trial was intrinsic to right to life of an accused, but on Wednesday the court said it was apprehensive about fixing a time limit for completion of a criminal trial as it could be misused by intelligent criminals.
This comment came from a bench of Justices H L Dattu and C K Prasad during the hearing on a petition by advocate Ranjan Dwivedi, who has sought quashing of the trial proceedings against him in the L N Mishra murder case on the ground of inordinate delay saying the 37-year-long trial has blighted him personally, physically and socially.
Senior advocate T R Andhyarujina said Dwivedi was 27-year-old when the bomb blast at Samastipur railway station killed Mishra on January 2, 1975. The trial has dragged on for no fault of his, and now the accused is a frail 64-year-old. He said there was a grave danger of immense prejudice during the trial of Dwivedi as 31 of 39 defence witnesses cited by him to prove his innocence have died. As many as 22 judges have handled the trial at various stages.
“It is a unique case. The apex court has declared that right to speedy trial was a requirement under Article 21 guaranteeing right to life. But, the trial has dragged on for 37 years. In 1992, the Supreme Court had directed day-to-day trial in this case for a speedy conclusion. Two decades later, we are no where near the end,” Andhyarujina said.
“Whether the accused would get convicted or acquitted is immaterial. The question important here is whether any judicial system would tolerate such inordinate delay? Should the Supreme Court allow it to continue any more,” he added.
The bench said there was no denying that delay had been frequent in the judicial system in India. “Delay will continue to happen given the system we have. Delay definitely affects the trial but can the Supreme Court fix a time limit for completion of a criminal trial. The SC had earlier in a judgment specifically struck down fixation of a time limit for completion of trial,” it said.
“It is a unique case. But if we quash the proceedings, we may be sending a wrong signal, which may be used by an intelligent accused at a later date. We do not want this to happen because of our order,” the bench said.
The court was apprehensive that if a time limit was fixed on the trial, then an unscrupulous accused could deliberately delay the trial by challenging every order against him in higher courts and thus designed delay the trial to seek its quashing after a decade or so.
The bench said since the trial has reached the fag end after dragging for nearly four decades, it could ask the trial court to complete it in the next three months by holding proceedings on a day-to-day basis refusing adjournment on any ground to the accused and prosecution. It asked Andhyarujina and additional solicitor general Harin Raval to give their views to expeditious completion of the 37-year-long trial by Thursday.
Role of Ananda Marg was suspected in the case, and several people were arrested. The chargesheet was filed against several people, including Dwivedi. The trial was transferred to Delhi by the Supreme Court in December, 1979, after the attorney general alleged that Bihar government was interfering with the trial. Charges were framed against the accused in 1981. Dwivedi was granted bail in 1978.
In a democracy, the remedy for a malfunctioning legislature and executive must come from the people, not the judiciary
It is evident that the Pakistan Supreme Court has embarked on a perilous path of confrontation with the political authorities, which can only have disastrous consequences for the country. Recently its Chief Justice said that the Constitution, not Parliament, is supreme. This is undoubtedly settled law since the historical decision of the U.S. Supreme Court in Marbury vs. Madison (1803).
The grave problem, however, that courts are often faced with is this: on the one hand, the Constitution is the supreme law of the land and, on the other hand, in the garb of interpreting the Constitution, the court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
The solution was provided in the classical essay “The Origin and Scope of the American Doctrine of Constitutional Law” published in 1893 in the Harvard Law Review by James Bradley Thayer, Professor of Law at Harvard University. It elaborately discusses the doctrine of judicial restraint. Justices Holmes, Brandeis, and Frankfurter of the U.S. Supreme Court were followers of Prof. Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law,” and in a lecture at the Harvard Law School said: “If I were to name one piece of writing on American Constitutional Law, I would pick Thayer’s once famous essay, because it is a great guide for judges, and therefore the great guide for understanding by non-judges of what the place of the judiciary is in relation to constitutional questions.”
The court certainly has power to decide constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self restraint.
Separation of powers
The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary, must respect each other, and must not ordinarily encroach into each other’s domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically elected body, which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.
Apart from the above, as pointed out by Prof. Thayer, judicial over-activism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problems in the ordinary way, and correcting their own errors”.
In Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899 (paragraphs 17 to 19), the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. — While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.”
Judicial restraint is particularly important for the Supreme Court for two reasons:
(1) Of the three organs of the state, only one, the judiciary, is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.
(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.
Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or the executive then take over judicial functions? If the legislature and the executive do not perform their functions properly, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because the judiciary has neither the expertise nor the resources to perform these functions.
In this connection I may quote from an article by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978): “If, then, the Thayer tradition of judicial modesty is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:
“First, how legitimate is government by Judges? Is anything beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called ‘that wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?’
“Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused?
“Third, can nine men [the Supreme Court Judges] master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.
“Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.”
In Marbury vs. Madison (1803), Chief Justice Marshal, while avoiding confrontation with the government of President Jefferson, upheld the supremacy of the Constitution. Another example is the very recent judgment of U.S. Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.
In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed: “Judges must know their limits and not try to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each of the organs of the state must have respect for the others and must not encroach into each other’s domain.” A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi.
New Deal legislation
A reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive court kept striking down this legislation, President Roosevelt proposed to pack the court with six of his nominees. The threat was enough, and it was not necessary to carry it out. In 1937, the court changed its confrontationist attitude and started upholding the legislation (see West Coast Hotel Vs. Parrish). “Economic due process” met with a sudden demise.
The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.
It is not my opinion that a judge should never be activist, but such activism should be done only in exceptional and rare cases, and ordinarily judges should exercise self restraint.
In Dennis vs. U.S. (1950), Justice Frankfurter observed: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardised when Courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures”.
The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.
(Justice Markandey Katju is chairman of the Press Council of India.)
The Union Cabinet today approved the proposal for introduction of the Criminal Law (Amendment ) Bill, 2012 in the Parliament.
The Law Commission of India in its 172nd Report on `Review of Rape Laws` as well the National Commission for Women have recommended for stringent punishment for the offence of rape. The High Powered Committee (HPC) constituted under the Chairmanship of Union Home Secretary examined the recommendations of Law Commission, NCW and suggestions various quarters on the subject submitted its Report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft was further examined in consultation with the Ministry of Women and Child Development and the Ministry of Law & Justice and the draft Criminal Law (Amendment) Bill, 2012 was prepared.
The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code,1860, replacing the word `rape’ wherever it occurs by the words `sexual assault`, to make the offence of sexual assault gender neutral, and also widening the scope of the offence sexual assault.
The punishment for sexual assault will be for a minimum of seven years which may extend to imprisonment for life and also fine for aggravated sexual assault, i.e., by a police officer within his jurisdiction or a public servant / manager or person talking advantage of his position of authority etc. The punishment will be rigorous imprisonment which shall not be less than ten years which may extend to life imprisonment and also fine.
The age of consent has been raised from 16 years to 18 years in sexual assault. However, it is proposed that the sexual intercourse by a man with own wife being under sixteen years of age is not sexual assault. Provision for enhancement of punishment under sections 354 and 509 of IPC and insertion of sections 326A and 326B in the IPC for making acid attack a specific offence have been made.