LAW RESOURCE INDIA

Indian court asks government to curb sex tourism

Jan 17, 2010

In view of the increasing incidences of rape, sexual offences, sexual abuse of children, particularly street-children, the Indian government and the law ministry were urged to redefine rape and include related sexual offences in its ambit.

While the Supreme Court has asked the government to come out with foolproof measures to curb ‘sex tourism’ in the country and register cases of rape against those pushing children into prostitution rackets or having sex with them, a delegation of representatives from various national women’s organisations has met and submitted a memorandum to the Union law minister Veerappa Moily demanding that the Sexual Offences (Special Courts) Bill be introduced in Parliament and the definition of rape be expanded and punishment be enhanced.

Expressing shock at the fact that 70 per cent of sex workers are children, a two-judge Bench of Justices Dalveer Bhandari and AK Patnaik said: “Obviously, it is a case of rape if the girls are less than 18 years. If you register 376 IPC (rape) cases, they (accused) will learn the lessons of their life. But the problem is that you don’t do it.”

The apex court said this enormous problem cannot be addressed in a mechanical manner. “We need enormous efforts to deal with it. Gigantic problems have to be dealt on a priority basis,” the judges observed. The apex court gave the direction to solicitor general Gopal Subramaniam during the hearing on a PIL after counsel Aparna Bhat, appearing for certain NGOs, submitted that child prostitution amounted to rape and the menace has reached alarming proportions.

“Just taking them out of the brothel and putting them on the streets is not going to solve the problem. The efforts will bear fruits only after they are properly rehabilitated which is their right (children) under Article 21 (right to liberty),” the apex court said.

Source: ANN

Rathore isn’t the only guilty man around

BY VIR SANGHVI IN HINDUSTAN TIMES

Such is the reality of today’s India that there is never a shortage of cases that leave us moved and indignant. But every now and then, there is a case that also makes us thoughtful. The Ruchika case is one such instance. In case you haven’t been following the details of the case, here’s what happened.

Ruchika was a happy, school-going 14-year-old with a passion for tennis. As often as she could, she would practise at the state tennis association’s courts. At that time, a police officer called S.P.S. Rathore was president of the Haryana Lawn Tennis Association. In August, 1990, Rathore called Ruchika to his office and molested her. Ruchika was traumatised, told family friends and eventually her father found out. Nine days later, on August 21, 1990, she recorded a statement before the then DG of Haryana, R.R. Singh. That should have been enough to finish off Rathore’s career.  Instead, it finished off Ruchika — and eventually, nearly finished off her family.

Rathore contacted Ruchika’s father and said that if she did not withdraw the complaint, he would destroy the family. He proved as good as his word. When the complaint was not withdrawn, he sent policemen to Ruchika’s house to threaten the family. They would be thrown out of the house and arrested, they were told. Then, goondas began turning up at night and throwing stones at the house. During the day, they would scream filthy abuse at Ruchika. The family could not complain because the goondas appeared to have police protection. Next, false cases of auto-theft were registered against Ashu, Ruchika’s brother. When the family still did not buckle under, Ruchika was thrown out of one of Chandigarh’s top schools where she had studied since she was a child — and where Rathore’s daughter was also a student. She had to give up tennis, her great passion. She began to live like a prisoner in her house.

Then, the police arrested Ashu and began torturing him. He was beaten up again and again, often in the presence of Rathore who threatened him even as his policemen tortured the boy. In October, 1993, Ashu was picked up by the police and according to his own statement, was handcuffed and paraded around the neighbourhood. “The police officers were abusing my sister and father. I was like an animal in a cage…my father begged the police to be afraid of God and not to inflict this torture on me.” Ashu was beaten up again in jail. He was denied food and water. When eventually, he was released on December 23, 1993, he had another shock waiting for him. Unable to live this way, Ruchika had committed suicide.

The false cases against Ashu were thrown out by the courts. But the family’s torture did not end there. When Ruchika’s father tried to get justice for his dead daughter, he was threatened again and driven out of his home. He went underground to avoid a vengeful Rathore and spent several years in Himachal. But thanks to his courage and the bravery of his friend Anand Prakash, and his daughter Aradhana, the case of molestation against Rathore remained alive.

A few days ago, nearly two decades after the incident had occurred, a court finally held Rathore guilty. He was sentenced to a mere six months in jail and walked out of the courtroom smirking. Anybody who saw Ruchika’s father on TV will sympathise with the grief and helplessness of a good man who has lost nearly everything. And I can entirely understand why so many people feel the urge to pick up a gun and see that vigilante justice is done at once, given that the system has failed. (Though, of course, this would be wrong, etc. etc.) But it’s not enough to be angry. We need to focus on the lessons of this sad and tragic tale.

First of all, why did Rathore get away with the molestation in 1990 when Ruchika filed a complaint before the then DGP, R.R. Singh? It was because he was close to Haryana politicians. R.R. Singh now says that political pressure ensured that no action was taken. The then Home Secretary also says that he was unable to move against Rathore because of political pressure.

Ruchika’s father says that the politician in question was O.P. Chautala. Of course Chautala denies this and his supporters blame other politicians. But nobody denies that Ruchika died because politicians protected Rathore. What does this say about our system? It has become a knee-jerk reaction for the middle class to blame politicians for everything. But the truth is that politicians can only function if officials help them. The real problem is not that politicians are venal but that members of the educated middle class — IAS and IPS officers — either help them in return for protection and advancement (as Rathore clearly did) or refuse to speak out when injustice is committed. It is all very well for various Haryana officials to now blame politicians. But where were they when Ashu was being tortured? Where were they when Ruchika was driven to suicide?

Secondly, why is the judicial system so slow and infirm? Even if we accept that the police were unwilling to file charges or take action, the case did eventually go to court. Even then, it took till 2009 for Ruchika’s father to achieve any kind of justice — however inadequate — for his daughter. If the legal system had moved faster, Ruchika’s father would not have been forced to go underground and his family would not have been destroyed.

Lawyers will tell you that everybody knows what needs to be done to fix the judicial system: more courts, more judges etc. But no government does it. No electorate demands it. It never becomes an issue. And millions are denied justice in India every day. Thirdly, the reason we are so angry about the Ruchika case is because we can see her father on TV and hear his story. But let’s not forget that each year there are thousands of Ruchikas. India’s policemen, officials and politicians mistreat, torture, molest, rob and rape poor people all the time. Because the victims are not middle-class, we never get to hear of these cases. Look at it logically. If Rathore could destroy a respectable, middle-class family, how do you suppose he would treat a poor, helpless family? And do you really believe that Ruchika was the first girl he molested? How many other cases have gone unreported because the parents did not have the guts or the resources to fight for justice?

So, let’s punish Rathore.

But let’s not stop there. Let’s find the cops who tortured Ashu. They knew what they were doing. They should be, first, thrown out of service and then should face legal proceedings. If cops feel that there is no accountability — which, frankly, there isn’t — they will continue to harass and torture citizens. It is time the present Chief Minister of Haryana took a stand to make up for the sins of his fellow politicians. And as for us, in the middle class and media, I am sure our pressure will yield results. But we need to go beyond our class and our interests.

Millions of Indians face injustice that is even worse.  It is our duty to fight for them, as well.

http://www.hindustantimes.com/Rathore-isn-t-the-only-guilty-man-around/H1-Article1-491010.aspx

Rape of the law- State machinery has failed to act

BY KULDIP NAYYAR  IN TRIBUNE

India is not a banana republic. But certain incidents indicate that the country is rapidly forfeiting the right to be counted among the civilized nations. Take the rape of a Russian girl in Goa. Shanta Ram Naik, a member of the Rajya Sabha, the House which sets tone to public debates, wants a different treatment of the rape cases in which women move around with strangers after midnight. The member expressed no regret for the rape because the Russian girl was outside her place past 12 at night.

I thought Goa Chief Minister Digambar Kamat would have taken Naik to task. But nothing like that happened. Instead, the Chief Minister said that a girl who went out with a man at night was asking for something like rape. He did not care for the impression he was creating through his statement inside India and in foreign countries.

Asked about the action his government would take against the member, the Chief Minister said: “Let the Russian government write to me.” Yet his police has been trying to bribe the girl repeatedly. The last offer made to her was Rs. 15 lakh.

Congress Foreign Minister S.M.Krishna had no word of condemnation either. He merely said: “Foreigners should be more careful.” I do not know whether the Minister for Tourism would agree with the Foreign Minister. But how does Goa expect foreigners or, for that matter, Indians to visit the place where one of the ministers of the state says that Goa is the “rape capital of the world.”

The incident prompted Moscow’s Consul General in Mumbai, Alexander Mantytsky, to write to the Indian authorities about the concern he felt on behalf of his nation.

According to one estimate, the Russians make up about 40,000 of the 400,000 international tourists who visit Goa every year.

Sabina Martins, who runs the NGO, Bailancho Saad, has let the cat out of the bag when she says: “No longer does tourism advertisements talk about the natural beauty or the hospitable nature of the state. It is now promoted along the ‘wine, women and song’ line, which is different from the local culture.”

What has shocked me the most is the silence of Sonia Gandhi, the Congress president. She is probably busy calculating what political repercussion the action against the accused, John Fernandes, a heavyweight in the state, would have on the Congress government in Goa.

True, the party rule hangs in balance because the revolt of a few members can make the government fall or bring the opposition to power. But is this what counts ultimately? No morality, only politics!

A television network has asked for three days in a row why no action has been taken against the rapist. Some Parliament members have also posed the same question to the government. But it has preferred to remain silent.

The question is whether the state machinery has any responsibility to pursue the case where a rape has been committed. The accused may be let off or there may be nothing proved against him. But how can the police, looking after the law and order machinery, sit silent? It is apparent that political pressure can let off
the rapists.

This is confirmed by a case in Haryana. After 19 years, a special court of the Central Bureau of Investigation (CBI) has sentenced former state Director General of Police SPS Rathore to six months’ imprisonment and fined Rs 1,000. He was accused of molesting a 14-year-old girl. I

t is a travesty of justice that the police Director General gets only six months in prison. The court is not to blame for a light sentence because the CBI, for obvious reasons, refused to charge the DGP for the real crime. The FIR was filed nine years after the molestation and that too was changed to a memorandum. The pressure used can well be imagined. Still the state government found Rathore so useful, then IG, that he was promoted after four years of his committing the crime.

How powerful was Rathore can be judged from the fact that goons were placed outside the victim’s house to accost and harass her whenever she stepped out. Her house was pelted with stones, smattering the windows.

Three years later she consumed insecticide and died a day later. Her father sold the house in Panchkula, near Chandigarh, and went to Kolkata. Two brothers of the victim faced 11 cooked-up cases which went on for years before they were acquitted.

The mother says in a statement: “We were threatened when we filed a memorandum against Rathore for exemplary punishment.” But Rathore was given a bail even for the light imprisonment. The entire police system in Haryana and the CBI, which played with the investigation have to be cleaned up.

Punjab and Haryana High Court Chief Justice Mukul Mudgal can appoint a special team to reinvestigate the case. The Supreme Court did so in the case of Gujarat where it found the judgment was not correct.

It is time that the government introduces the much-awaited police reforms and overhauls the judicial system. How can a case of molestation against a former DGP go on for 19 years? All those ministers, bureaucrats and police officials who are responsible for the cover-up should be brought to justice.

Let this be a test case to punish even the highest in the country. After knowing the details, the nation feels abhorred and inaction would look like a compromise with pressure and power.

Yet another affront comes from an American Ice cream company, Haagen-Dazs. While opening its branch at Delhi, it puts outside a board to say that only international passport holders can buy ice cream, thereby meaning that no Indian could enter.

This was an outrage for a sovereign country. The company removed the board but it did not tender an apology. The company merely said that the advertisement idea did not work the way it imagined it would. A simple question that the company should answer is: Would it have dared to put up such a board in America, the country which owns the company?

The developed countries consider the Third World a playground to test their arrogant and bizarre ideas. But then the Third World has become prone to humiliation.

Rape of the law
State machinery has failed to act
by Kuldip Nayar

India is not a banana republic. But certain incidents indicate that the country is rapidly forfeiting the right to be counted among the civilized nations. Take the rape of a Russian girl in Goa. Shanta Ram Naik, a member of the Rajya Sabha, the House which sets tone to public debates, wants a different treatment of the rape cases in which women move around with strangers after midnight. The member expressed no regret for the rape because the Russian girl was outside her place past 12 at night.

19 years, 6 months

EDITORIAL IN INDIAN EXPRESS

On August 12, 1990, police officer S.P.S. Rathore molested 14-year-old Ruchika Girhotra. That it has taken all of 19 years to be able to write that sentence without fear of libel tells us something of our criminal justice system. And in those 19 years Ruchika committed suicide, her family went through hell, Rathore rose up the ranks to become Haryana’s top police officer. When a beaming Rathore walked out of a Chandigarh court on Monday, convicted of molestation but sentenced to just six months in jail, the verdict mocked all that our law and justice system stands for.

In the 19 years between Ruchika’s first complaint to Monday’s judgment, the crime of molestation was compounded by many other horrors. First was the long delay in filing an FIR, despite the then Haryana DGP’s recommendation. Then there was the prolonged hounding of the Girhotra family. The many cases filed against Ruchika’s brother were finally halted only after the Punjab and Haryana high court stepped in. Meanwhile, the family went into hiding, and Ruchika killed herself. Even in death, she was besmirched. In court, the defence counsel’s lengthy arguments cast aspersions on her character and that of her father. Though no charges of abetment to suicide or criminal harassment have been successfully proved against Rathore, the travesty of justice that Ruchika and her family faced — over and above her molestation — is in plain sight.

In this context, it is still some consolation that Rathore’s crime has been confirmed by a court of law — even if the sentence seems paltry for such a crime and other accusations remain unresolved. The case shows once again how inept the system can be, by design or otherwise, in speedily processing cases. Prompt registering of an FIR, a speedy trial and swift conviction might have prevented the many horrors that followed Rathore’s original crime. Besides, when there is clear power asymmetry between the perpetrator and the victim, the judicial process must be extra-sensitive to protecting the victim and complainants against retribution. S.P.S. Rathore was even at the time of the crime a powerful officer; in a shocking act of political indifference, he was promoted all the way to eventually become Haryana’s DGP. As the higher judiciary and law ministry ponder ways to speed up justice delivery, the many injustices inflicted on Ruchika Girhotra during the agonisingly long wait for justice provides a salutary, if sobering, lesson.

http://www.indianexpress.com/news/19-years-6-months/558986/

Juvenile justice

Posted in CHILD RIGHTS, JUVENILE JUSTICE, RIGHTS, TRAFFICKING, UNCATEGORIZED, VICTIMS by NNLRJ INDIA on November 15, 2009

A saga of negligence and apathy

by K.P. Singhin THE TRIBUNE CHANDIGARH

Children are the most vulnerable group in any population. They can be exploited, ill-treated and directed into undesirable channels by anti-social elements. In Legal Aid committee V. UOI, the Supreme Court observed, “children require the protective umbrella of society for better growth and development as they are not in a position to claim their entitlements.”

The state is the foster father for all those children who are deprived of parental care. It has the duty of giving protection to them.

Ideally, every home should be a ‘Child Care Home’ but the ground realities are different. Materialism has adversely affected familial relationships. Consumerism has taken its toll on social bonding. Homes are breaking and indifference has settled in community behaviour. We are evolving as individuals but degenerating as a social animal. In the prevailing cultural and social milieu, children have been led to the doorsteps of criminal world.

According to the National Crime Record Bureau, 32,681 juveniles are arrested by police every year in India on charges of murder, rape, dacoity, robbery, burglary, theft, hurt and other crimes. Six percent of them are girls. Juvenile delinquency has increased by 1.1 per lakh of population in 1995 to 1.7 per lakh of population in 2008. Poverty and illiteracy were the two main causative factors behind this.

In all, 27 per cent of the arrested juveniles were illiterate, 37 per cent under primary, 72 per cent from the BPL families, 6.8 per cent from the middle income group and 0.2 per cent from the high income group. The ill-effects of juvenile delinquency can be mitigated if the fundamental principles for the administration of juvenile justice are put into practice.

The Beijing Rules and Riyadh Guidelines have declared the fundamental rules which should be applied to deal with the problem. India, being a signatory to all the conventions on the Rights of Child, is under legal and moral obligation to enact laws conforming to international standards. Articles 15(3), 21, 21(A), 22(1), 22(2), 23, 234, 37(e), 37(f), 45, 47 and 51A(k) of the Indian Constitution impose a primary responsibility on the state to ensure that all the needs of children are met and their basic human rights are fully protected.

The Juvenile Justice (Care and Protection) Act 2000 and the Juvenile Justice Rules, 2007 are the laws to deal with juvenile delinquents and juveniles in need of the care and protection. The Fundamental Principles for Administration of Juvenile Justice, as elaborated in Justice Rules, 2007 include presumption of innocence, right to be heard, positive measures, principles of no harm, no maltreatment and principle of best interest. Unfortunately, the apathy of the law enforcement agencies and the law adjudication authorities have rendered these laws as non-existent.

To provide a child-friendly environment, the cases of ‘juveniles in conflict with law’ are to be adjudicated upon by the Juvenile Justice Board, to be constituted by the state government concerned in every district. Almost all Boards are functioning from the regular court premises, contrary to law.

Childhood is the age for play and personality development and not for facing prolonged trial in the court. The rule 13(6) (d), therefore, rightly prescribed that cases of juveniles should be disposed of by the Board within four months. It can be extended by two months in exceptional cases involving transnational criminality, large number of witnesses and inordinate delay in production of witnesses.

Except in serious crimes, delay in trial beyond six months should automatically lead to termination of the proceedings against the juvenile. Despite the clear mandate of law, lakhs of cases are pending in courts beyond six months. This is illegal and gross injustice to the children.

The state machinery is equally negligent in providing infrastructure and facilities for the juveniles. The Child Welfare Committees to be constituted as per the provisions of JJ Act 2000 and JJ Rules 2007 are not in place in all the states. The Children’s Home and Shelter Home with prescribed facilities are non-extent. The selection committee for social workers to be associated with the Juvenile Justice Boards and Child Welfare Committees under the chairmanship of a retired High Court judge has not been constituted in most states.

The state is required to put the apparatus in place to ensure proper adoption, foster care, sponsorship and rehabilitation of juveniles. The objective is to ensure social reintegration of every juvenile as a normal citizen. A juvenile is the responsibility of the state till he or she attains the age of 18 years. The After Care organisations are designed to prepare the juveniles who have attained adulthood, to rise on their feet.

Unfortunately, the After Care organisations and the Social Reintegration mechanism as envisaged in the JJ Act have not been provided adequately in any of the states. To protect the human rights of children, crimes against children have been separately defined under the Act. All these crimes are cognisable offences where police can register FIRs and arrest offenders without warrant. The police is ignorant and hardly any cognisance is taken under these provisions though the children are suffering atrocities including the exploitation of child labour in public view.

Any law is as good or bad as its enforcement. The Juvenile Justice Act 2000 is the best law and a complete code which anyone can imagine for the juveniles’ care and protection. Deplorably, these laws and rules are not implemented in letter and spirit.

The law enforcement agencies should be told that acting in violation of the law is unpardonable. They can be held liable for their negligence. The only saving grace for them till now is that victims of criminal negligence are poor children who have no spokesperson to raise the voice for them at appropriate forum.

The children’s rights need to be protected if the civilisation has to progress in the right direction. There is an imperative need for sensitising those who are given the responsibility of protecting the children’s rights.

The writer, a senior IPS officer, is Inspector-General of Police, Training, Haryana

READ THE ARTICLE IN TRIBUNE

Juvenile justice
A saga of negligence and apathy
by K.P. Singh

Children are the most vulnerable group in any population. They can be exploited, ill-treated and directed into undesirable channels by anti-social elements. In Legal Aid committee V. UOI, the Supreme Court observed, “children require the protective umbrella of society for better growth and development as they are not in a position to claim their entitlements.”

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SAFETY MEASURES IN SCHOOL-TRY GOVT OFFICIAL FOR CRIMINAL NEGLIGENCE

Posted in CHILD RIGHTS, CONTEMPT OF COURT, CORRUPTION, EDUCATION, HUMAN RIGHTS, PIL by NNLRJ INDIA on September 17, 2009

Ravi Kant , Advocate Supreme Court of India

Just a few days ago five school girls died in a stampede in a Government school in Delhi. The reason may be a matter of discussion and investigation but it is very important that the basic minimum standards for safety need to be ensured in all schools across the country.

It is the administration which has the responsibility to keep a check on such schools which don’t adhere to the basic safety measures. All private schools need to be checked and those schools should be forced to ensure such standards. It is a national shame when young helpless children die due to the negligence of the school. It is a tragedy for the family and a shame for the administration.

In the present case the exit for the school was single and constricted.
The Supreme Court in May 2009 had given orders that the chief secretary should comply with all the guidelines laid down by the national building code of India in a span of one month of the order and ensure these standards. It is a fact that governments don’t care of such orders. If those guidelines had been ensured and complied with might be those children should have been alive today.

The Supreme Court bench of Justice Dalveer Bhandari and Justice Lokeshwar Panta had said in the case related to the Kumbakonam Fire tragedy Avinash Mehrotra Vs Union of India (Writ Petition 483 of 2004)

35. In view of what has happened in Lord Krishna Middle School in District Kumbakonam and other incidents which have been enumerated in the preceding paragraphs, it has become imperative that each school must follow the bare minimum safety standards, in addition to the compliance of the National Building Code of India, 2005, in particular Part IV ¬ Fire & Life Safety and the Code of Practice of Fire Safety in Educational Institutions (IS 14435:1997) of the Bureau of Indian Standards. The said safety standards are enumerated here in below:

3.1 FIRE SAFETY MEASURES IN SCHOOLS:

i. Provision of adequate capacity and numbers of fire extinguishers of ISI marks to be provided in eye-catching spots in each block of the school.

ii. First Aid kits and necessary medicines should be readily available in the school.

iii. Provision of water tank and separate piping from the tank with hose reel to the ground floor and first floor.

iv. Fire fighting training to all teachers and students from X to XII standards.

v. Fire Task Force in every school comprising of Head of the institution, two teachers / staff members and one member from the Fire and Rescue Department should be constituted. The Fire & Rescue Department member shall monitor and make fire safety plan and conduct inspections once in every three months.

vi. Display of emergency telephone numbers and list of persons to be contacted on the notice board and other prominent places.

vii. Mock drills to be conducted regularly. Fire alarm to be provided in each floor and for rural schools separate long bell arrangement in case of emergency.

viii. All old electrical wiring and equipment shall be replaced with ISI mark equipments and routine maintenance conducted by the School Management in consultation with the Fire and Rescue Department.

ix. No High Tension lines should run inside or in close proximity to the school. Steps must be taken to shift them if they are already there.

x. The Fire and Rescue Department shall frame guidelines with “DOS and DON’Ts’ for schools and issue a fitness certificate, which shall be renewed periodically.

3.2 TRAINING OF SCHOOL TEACHERS & OTHER STAFF:

i. The teachers along with other staff shall be trained to handle safety equipment, initiate emergency evacuations and protect their students in the event of fire and other emergencies by the Fire and Rescue Department.

ii. They shall also be trained in providing emergency first-aid treatment.

iii) There shall be a School Safety Advisory Committee and an Emergency Response Plan drafted by the Committee in approval and consultation with the concerned Fire & Rescue Department.

iv) Emergency Response Drills conducted at regular intervals to train the students as well as the school staff.

v) All schools to observe Fire Safety Day on 14th of April every year with awareness programs and fire safety drills in collaboration with the Fire and Rescue Department.

3.3 SCHOOL BUILDING SPECIFICATIONS:

i. The school buildings shall preferably be a `A’ Class construction with brick / stone masonry walls with RCC roofing. Where it is not possible to provide RCC roofing only non- combustible fireproof heat resistance materials should be used.

ii. The nursery and elementary schools should be housed in single storied buildings and the maximum number of floors in school buildings shall be restricted to three including the ground floor.

iii. The School building shall be free from inflammable and toxic materials, which if necessary, should be stored away from the school building.

iv. The staircases, which act as exits or escape routes, shall adhere to provisions specified in the National Building Code of India 2005 to ensure quick evacuation of children.

v. The orientation of the buildings shall be in such a way that proper air circulation and lighting is available with open space all round the building as far as possible.

vi. Existing school buildings shall be provided with additional doors in the main entrances as well as the class rooms if required. The size of the main exit and classroom doors shall be enlarged if found inadequate.

vii. School buildings have to be insured against fire and natural calamities with Group Insurance of school pupils.

viii. Kitchen and other activities involving use of fire shall be carried out in a secure and safe location away from the main school building.

ix. All schools shall have water storage tanks.

3.4 CLEARANCES & CERTIFICATES:

i. Every School shall have a mandatory fire safety inspection by the Fire and Rescue Services Department followed by issuance of a `no objection certificate’ to the School as a mandatory requirement for granting permission for establishing or continuation of a School.

i. An Inspection Team consisting of experts like a Civil Engineer, a Health Officer, a Revenue Officer, a Psychologist, a Fire Officer, a local body officer and a development officer besides the educational authorities shall carry inspection and assessment of infrastructural facilities before the commencement of each academic year. The Team shall submit its Inspection Report to the concerned district Chief Educational Officer.

iii. The building plans for schools shall be prepared only by a Government certified engineer and the PWD Executive Engineer concerned should inspect the building and award a structural stability certificate. Stability Certificates shall be issued by the State or Central Government Engineers only and shall be mandatory for granting permission for establishing or continuation of a School.

iv. In every district, one Recognition Committee headed by a retired judge shall be constituted. Officials from Revenue Department, Public Works Department, Fire Service, Electricity Board, Health and Education Department, a reputed NGO shall be members. They shall visit the schools periodically or at least the erring institutions as listed by the Chief Education Officer.

v. Conditional recognition / approval shall never by resorted to for any school.

36. In this petition, we need not take any action contrary to government policy to fulfill the Constitution’s mandate. Union and State officials have already filed wide-ranging plans to improve school safety. Along with the National Building Code, a combination of the better parts of these plans would bring the nation’s schools to an adequate level of safety. States have also expressed enthusiasm for reform and some have asked this Court expressly for direction.

37. Many States have already begun implementation. The most forward thinking States have enacted and enforced the National Building Code in their schools. Often these States have also created, empowered and funded a state-wide emergency response office. The coordinated efforts and concentration of knowledge in these administrative units make States better able to prepare for emergencies, as much as to respond once the problem has started. For example, the State of Gujarat has established such an emergency management office. Having already settled building codes and other large issues, the State can focus on other aspects of emergency management. With the assistance of outside experts, Gujarat recently created a colouring book to teach children how to respond to emergencies. On a smaller scale, but no less vital, in the Union Territory of Pondicherry, administrators replaced all thatched roofs and allocated an additional Rs.500 lakhs to build pucca classrooms. Some States have counted their schools and know which require repairs; they provided these details in their affidavits along with detailed plans for improvement. We are encouraged by the agreement shared among States that safety must improve. Our order should provide additional stimulus for the general aims of the States’ already agreed policy.

38. In the end, we should need to do little but enforce existing laws and encourage States in their own well-intentioned safety programmes. However, in the years since the fire at the Lord Krishna Middle School, some States have moved slowly and safety standards have varied in quality across States. These delays and variations have subjected millions more school children to danger from fire, earthquakes and other causes, when simple enhancements could offer much greater protection. Articles 21 and 21-A of the Constitution require that India’s school children receive education in safe schools. In order to give effect to the provisions of the Constitution, we must ensure that India’s schools adhere to basic safety standards without further delay.

39. It is the fundamental right of each and every child to receive education free from fear of security and safety. The children cannot be compelled to receive education from an unsound and unsafe building.

40. In view of what happened in Lord Krishna Middle School in District Kumbakonam where 93 children were burnt alive and several similar incidences had happened in the past, therefore, it has become imperative to direct that safety measures as prescribed by the National Building Code of India, 2005 be implemented by all government and private schools functioning in our country.

We direct that:-

(i) Before granting recognition or affiliation, the concerned State Governments and Union Territories are directed to ensure that the buildings are safe and secured from every angle and they are constructed according to the safety norms incorporated in the National Building Code of India.

(ii) All existing government and private schools shall install fire extinguishing equipments within a period of six months.

(iii) The school buildings be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely.

(iv) Evaluation of structural aspect of the school may be carried out periodically. We direct that the concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction in duty must attract immediate disciplinary action against the concerned officials.

(v) Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments.

41. The Education Secretaries of each State and Union Territories are directed to file an affidavit of compliance of this order within one month after installation of fire extinguishing equipments.

42. List this petition on 07.12.2009 to ensure compliance of this order.

In light of the above orders of the Court in which almost four months have gone by the Govt of NCT of Delhi did not care to implement the orders of the court and therefore a case of criminal negligence is made out against the Education Secretary and Chief Secretary. Until and unless such senior officials are not brought to book such tragedies will continue to happen. The Govt of NCT of Delhi should not be let off by paying simple ex gratia payment but they should be held accountable for criminal negligence and the Govt should pay a heavy compensation to the parents as it is the administration which is responsible for such an accident.

NHRC DRAFT GUIDELINES FOR SPEEDY DISPOSAL OF CHILD RAPE CASES.

Posted in CHILD RIGHTS, CRIMINAL JUSTICE SYSTEM by NNLRJ INDIA on May 26, 2009

(i) The complaint relating to child rape cases shall be recorded promptly as well as accurately. The complaint can be filed by the victim or an eyewitness or anyone, including a representative of non-governmental organization, who has received information of the commission of the offence. The case should be taken as follows:

a) Officer not below the rank of SI and preferably lady police officer.

b) Recording should be verbatim

c) Person recording to be in civil dress

d) Recording should not be insisted in police station, it can be at the residence of the victim.

(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;

(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynecologist, while examining the victim should ensure recording the history of incident;

(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;

(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;

(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;

(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;

(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;

(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.

TRIAL COURT

i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;

ii) Atmosphere in the court should be child friendly;

iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;

iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.

http://nhrc.nic.in/child rape cases (New Guidelines).doc

Child slavery thriving in Indian cotton industry

Posted in CHILD RIGHTS by NNLRJ INDIA on October 28, 2007

Anusha Lall
OneWorld South Asia
26 October 2007

India has distinction of having the largest area under cotton cultivation in the world and has been a pioneer in developing hybrid cotton seeds for commercial use. The Indian cottonseed industry is also marked by the highest proportion of child labour in its workforce.

The local seed farmer justifies the continued and increasing employment of children, particularly girls.

‘Cross- pollination work [with reference to cottonseed cultivation in India] is very labour intensive and a large number of labourers [are] required to do this work. It is also delicate work and needs to be handled carefully. We prefer young girl children for this task because with their delicate fingers (nimble fingers) they can handle this work better than adults. They also work more intensively than adults. We can control them easily. They listen to us and do what ever we ask them to do.

‘The most important thing is labour costs. Nearly half of our investment goes towards payment of labour charges. The wage rates for children are far lower than adult wages. We can reduce our labour costs considerably if we hire girl children. If we want to hire adult labour we have to pay higher wages. With current the procurement price we get from the seed companies we can not afford to pay higher wages to the labourers.’

- Sivaramakrishna, (Seed Farmer), Mahaboobnagar District, Andhra Pradesh

Thus the majority of the labour force in this labour intensive sector is children, primarily girls, preferred on counts of minimising costs (as labour costs account for about 50% of total cultivation costs in the industry) through low wages (well below market and official minimum standards), higher levels of productivity that can be extracted from children by way of longer hours (8 to 12 hours) and more intensive work regimes, and also effective control.

The situation is rendered more complex with reference to the elements of bonded labour, the role of large national and multinational companies and of the contract farmers, etc.

Citing a recent report, the exploitation of child labour in the industry is linked with larger market forces; a multi-tiered, complex economic relationship, masking social and legal responsibility. The nature and the scale of the problem also hold implications for child trafficking, and conditions of migrant workers.

The children for most part are employed on a long-term contract basis through advances and loans extended to their parents by local seed producers, who have agreements with the large multinational and national seed companies. Most of these children belong to the disadvantaged sections as the Scheduled Castes, the Scheduled Tribes, and the Other Backward Classes, and 90 per cent are either school dropouts or have never attended schools.

The situation of these children is further characterised by unsafe and exploitative conditions, which can be exemplified by reference to the regular resort to verbal abuse and physical violence by the employers, and a report of the brutal rape and killing of two minor girls in Kurnool District, Andhra Pradesh.

Another condition specific to the cottonseed cultivation industry is the exposure of the children to poisonous pesticides used in high quantities. This exposure to health risks was also cited in the report of Physicians for Human Rights, 2003. The general health problems reported by children working in this industry were seen to include severe headaches, nausea, weakness, convulsions and respiratory depression. A few child deaths due to pesticide exposure were also reported in Andhra Pradesh.

Some facts and figures further highlight the entrenchment of the problems in the Indian economy and the role of the various players. Andhra Pradesh, Tamil Nadu and Karnataka in South India and Gujarat and Maharashtra in Central India account for nearly 95 per cent of total cottonseed production in the country. In 2006-07 nearly 416, 460 children under the age of 18 (54% of which were under the age of 14) were employed on cottonseed farms in these states (with the exception of Maharashtra).

The role of several Indian companies (Nuziveedu, Raasi, Ankur and Mahyco – the last a joint venture partner of multinational company Monsanto) can be presented as prominent examples, and multinationals (for example Monsanto, Bayer) can be identified in making use of 200,000 children employed by farmers sub-contracted for BT cottonseed cultivation.

The increasing area coverage under commercial cotton and cottonseed production, with especial reference to the substantial increase in the area under BT hybrid cotton has resulted in the growing control of multinational companies in the industry (for instance Monsanto has patent right over BT gene, therefore indirect control through sub-licence agreements with Indian seed companies).

The strength of the concern for the issue of child labour in the face of large scale-violations has led to growing pressure from national and international civil society. This has resulted in some proactive initiatives (including initiatives by seed companies in their production farms) as well as interventions (especially in the state of Andhra Pradesh) by the government, NGOs (such as the MV Foundation), and other organisations (such as ILO-IPEC, UNICEF).

NGO interventions have focused on bringing girl children back to mainstream education, campaigns against child labour, etc. while the overall response of state and central governments as well as the seed industry remain wanting, whereby the impact of interventions becomes diffused.

Existing employment practices in cottonseed cultivation are in denial of rights of children and in violation of national laws and international conventions (denial of children’s rights to education, health and safe living).

This form of bonded labour, work conditions and low wages are also in contravention of the national Children (Pledging for Labour) Act 1933, Bonded Labour System (Abolition) Act 1976, Child Labour (Prohibition and Regulation) Act 1986, Article 21A of the Indian Constitution which guarantees every child the right to free and compulsory education up to the age of 14 years, ILO Conventions Number 138 and 182 regarding minimum age for admission to employment and the prohibition of worst forms of child labour respectively as well as the UN Convention on the Rights of the Child.

This piece is informed by Davaluri Venkateswarlu’s recent report on ‘Child Bondage Continues in Indian Cotton Supply Chain: More than 400,000 children in India involved in hybrid cottonseed cultivation’ (Commissioned Study by India Committee of Netherlands, and OECD et al, September 2007) and proceeding reports highlighting the problem.

NHRC – DRAFT GUIDELINES FOR SPEEDY DISPOSAL OF CHILD RAPE CASES.

Posted in CHILD RIGHTS by NNLRJ INDIA on July 31, 2007

(i) The complaint relating to child rape cases shall be recorded promptly as well as accurately. The complaint can be filed by the victim or an eyewitness or anyone, including a representative of non-governmental organization, who has received information of the commission of the offence. The case should be taken as follows:

a) Officer not below the rank of SI and preferably lady police officer.
b) Recording should be verbatim
c) Person recording to be in civil dress
d) Recording should not be insisted in police station, it can be at the residence of the victim.

(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;

(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynecologist, while examining the victim should ensure recording the history of incident;

(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;

(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;

(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;

(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;

(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;

(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.

TRIAL COURT

i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;

ii) Atmosphere in the court should be child friendly;

iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;

iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.

Govt drags feet on ‘coming-of-age’ law

Posted in CHILD RIGHTS by NNLRJ INDIA on July 14, 2007

13 Jul 2007, 0320 hrs IST,Dhananjay Mahapatra,TNN

NEW DELHI: Last year, a petition filed by National Commission for Women (NCW) had raised questions about when a young girl come of age in India. Responding to the court’s notice, Centre through additional solicitor-general Gopal Subramaniam, had assured on January 3 this year that the government is in the process of removing anomalies and so sought time for bringing a clear legislation in this regard.

Yet, after the budget session of Parliament, the promised action to rectify the anomalies has yet to emerge from Centre’s legislative closet, a possible reason why the apex court once again sought a response from government.

The seeds of confusion lie in provisions of Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955, the exception to rape in Indian Penal Code and Immoral Traffic (Prevention) Act.

The Child Marriage (Restraint) Act, 1929, says a child is a person, who if a male, has not completed 21 years of age, and if a female, has not completed 18 years

The Hindu Marriage Act, 1955, says a female has to be 18 years before she can legally marry

However, the Indian Penal Code, while defining rape in Section 375, exempts a person from this charge if he has forcible sexual intercourse with his wife who is above 15 years of age

Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed the age of 16 years and a minor means who has completed the age of 16 years and not completed 18 years

The Indian Majority Act says a person is a major if he/she has completed 18 years

These legal prescriptions about adulthood of a female and her marriageable age, coupled with the exception set out under Section 375 of IPC, complains Sharma in his petition, has encouraged “Romeos” to lure girls who are above 15 years of age. The petition’s concern is obvious — that girls not quite able to take a mature decision on marriage may fall prey to a passing fancy or the glib talk of an older man.

On the other hand, the ostensible concern of high courts which ruled on 15 being the “age of discretion” was whether intercourse in an “underage” marriage could amount to the criminal offence of rape given that the girl had consented to marriage.

The courts have refrained from making things clearer when dealing with cases of a young couple where the girl has completed 15 years of age, Sharma’s counsel Daya Krishan Sharma pleaded, citing the Andhra Pradesh HC and the Delhi HC rulings.

In both these cases, HCs had refused to proceed on rape charges against the husbands though the girls were not of marriageable age as per the Hindu Marriage Act. The HCs had ruled that the girls, having completed 15 years of age, had reached the “age of discretion”.

During hearing of the NCW petition, the apex court took a “humanitarian” approach and clarified that it would not set aside these two HC orders as it would unsettle the lives of the young couples.

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