Blind to what, Your Honour?
INDIRA JAISINGH IN THE TIMES OF INDIA
Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.
The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.
To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.
This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.
It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.
This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.
Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.
It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.
Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.
The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.
Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.
All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.
A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.
A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.
The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.
It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.
We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.
The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.
The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.
The writer is Additional Solicitor General of India
Experts discuss ways to curb human trafficking- Judicial Colloquium held in Chandigarh
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.
Of mines, minerals and tribal rights
BRINDA KARAT IN THE HINDUThe proposed liberalisation of the mining and minerals sector is an assault on the rightful owners of the land and its resources.
Tribal and indigenous communities across the world have been asserting their rights to the mineral wealth often found under the land they own or possess or have traditional rights to. They have been historically denied even a share of that huge wealth, leave alone legal rights of ownership. Under the contemporary deregulated neo-liberal policy framework, the exploitation and plunder of natural resources, including minerals, by domestic corporates and multinational mining companies has intensified. But the resistance by affected communities across the world has also grown and is reflected, over the years, in the establishment of an international framework through ILO and U.N. Conventions, which recognise in varying degrees the rights of indigenous and tribal communities to ownership, control and management of land and resources traditionally held by them either individually or as a community; the right to a decisive role in decision making for development needs in their areas; and the right to prior, free and informed consent to any projects in their areas. While these are encouraging advances won by the struggles and immense sacrifices of tribal communities, what is important is their translation into legal instruments in member countries. The issue has immediate relevance for India, as the UPA government has introduced a Mining and Minerals (Development and Regulation) Amendment Bill, 2011 (MMDRA), which is presently before the Parliamentary Standing Committee.
Promoting privatisation
In India, ownership of minerals lies with the State. However, the Central government which has control over all major minerals like iron ore, bauxite, copper, coal and most State governments which have control over minor minerals like sand, stone, granite, etc., have promoted privatisation through leasing mines to private companies apart from handing over captive mines of iron ore and bauxite to steel and aluminium corporates like the Tatas and Birlas. According to a recent report compiled for the industry by Ernst and Young, of the 4.9 lakh hectares of land given out in mining leases in 23 States by the end of 2009, 95 per cent of the leases comprising 70 per cent of the land were given to private companies.
The MMRDA Bill aims to further deregularise and liberalise the mining sector and encourage privatisation based on the recommendations of the Hoda Committee. It introduces the concept of high technology reconnaissance, prospecting and exploration licences, and easy terms of conversion to mining leases to encourage the entry of FDI and foreign companies. It also gives weightage, in the allocation of leases, to a set of criteria which favour such companies and also allows them activity on much larger tracts of land than previously. This has adverse implications for equity, the environment and growth.
While these aspects need comprehensive analysis, here we focus on those provisions, which claim to address the rights of tribal communities. There is a provision that makes it mandatory for coal mining companies to give funds amounting to 26 per cent of the profits. For other major minerals, an annual amount, which is the equivalent of the royalty paid in the financial year, must be given. While the principle of mandatory payment by companies is necessary, the problem in the MMRDA is that these funds are to be under the control of a district mineral foundation dominated by mine owners and the bureaucracy with a nominal representation of local communities. Interestingly, in the U.S. where the Federal Government had set up trusts to manage funds paid by companies using the land on reserves owned by Native Indians, the government was recently forced to pay a compensation of $1.2 billion to 41 Native American communities for “mismanagement of the assets” of the trust and is expected to have to pay another $3.4 billion in a similar case. When the affected people do not have a decisive say in the management of such funds, as in the case of the proposed district mineral foundation in the MMRDA Bill, “mismanagement” is inevitable. Also, rates of royalties in India are notoriously low. Until recently, for example, the royalty for one tonne of iron ore fixed by the Central government for Orissa was just Rs. 26. With a low extraction cost of only Rs. 250 to 300 per tonne and a high market price around Rs. 7,000 a tonne, mining companies made huge profits. While royalty rates have been recently increased, it is still a pittance compared to the profits companies make.
Patron-client relationship
The very premise of the scheme replicates the patron-client relationship, which has reduced tribal communities into recipients of charity, instead of recognition as owners of the land and its resources. The related provisions of the Bill constitute an outright assault on the constitutional rights given to the tribal communities, in particular in Fifth Schedule areas.
The Bill gives legal sanction to the arbitrary rights of governments, both at the Centre and the States, to give different types of licences and leases from reconnaissance to exploration, prospecting and finally extraction without any procedure for even consulting, leave alone taking the consent of tribal communities. The only reference to “consultation” (not consent), is for the grant of licences for minor minerals (but not major) in Fifth and Sixth Schedule areas where “the gram sabha or the District council, as the case may be shall be consulted.” Thus even the provisions under other laws such as the Panchayat Extension (to Schedule Areas) Act (PESAA), which mandates consultation with the gram sabhas, are violated by the complete absence of any consultative process prior to the granting of lease for major minerals, which are the main sites of tribal deprivation. In another provision for notification of giving leases in forest areas and wildlife areas, the State government has to “take all necessary permissions from the owners of the land and those having occupation rights.” Thus an unwarranted differentiation is made between the rights of tribal communities in Fifth Schedule non-forest areas and forest areas. However even in the case of forest areas there is no provision for what would happen in case the owner does not give permission.
In Fifth Schedule areas, the law prohibits transfer of tribal held land to non-tribals. Different States have also enacted such laws like 70/1 in Andhra Pradesh, the Chotanagpur Tenancy Act and the Santhal Parganas Tenancy Act in Jharkhand. None of the mining companies that gets leases is owned by adivasis. Presumably this was the reason why in the Samata case, the Supreme Court held that sale, transfers and even leases of tribal land to non-tribals are illegal. It directed that governments should consider a mechanism to include cooperative societies of tribal communities for mining operations. The Bill overrides the Samata judgment. Tribal cooperatives have been disqualified in the list of those eligible to get a lease for mining of major minerals, which can only be companies registered under the relevant laws. It is only for minor minerals and small deposits in the Fifth and Sixth Schedule areas that the State government “may” (not “shall”) consider tribal cooperatives for getting the lease. An earlier draft of the Bill in 2010 had included a provision for a guaranteed stake of tribal communities in mining companies. The provision had said “the company”… “will allot free shares equal to 26 per cent through the promoters quota.” South African law under the Broadbased Black Economic Empowerment Act has a provision of mandatory sale of 26 per cent shares in all mining companies to “historically socially disadvantaged sections.” But in India, caving in to pressure from mining lobbies, the earlier provision has been replaced with a token allotment of “one share per member of the affected family.”
There are other issues such as compensation and compensatory jobs in lieu of lost livelihood which are inadequate and also ambiguous. With cuts in permanent jobs and widespread contractual and casual work in the mining sector, the promise of employment to land losers cannot be taken at its face value. Seen together with the pending Land Acquisition Bill which specifically excludes the issue of leasing tribal land, this Bill not only buries the ownership rights of tribal communities but facilitates the easy entry of international and domestic corporates to Fifth Schedule and tribal-dominated mineral-rich areas to plunder the natural resources of our country. India, which is a signatory to many international conventions on the protection of tribal rights, is violating these conventions and adding to the burden of historical injustice. The Bill, in its present form, should and must be opposed and resisted. Concerned movements should work together for an alternative model which will recognise the ownership and other rights of tribal communities in mining in Fifth Schedule and tribal areas through effective legal mechanisms.
(Brinda Karat is a member of the Polit Bureau of the Communist Party of India – Marxist.)
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Privacy right is no cover for unlawful act: counsel
THE HINDU
When there is a conflict between individual right on homosexuality and societal interest in morality, the latter will prevail, counsel Harshvir Pratap Sharma argued in the Supreme Court strongly opposing the Delhi High Court judgment de-criminalising homosexuality between two consenting adults.
Appearing for the former BJP MP, B.P. Singhal, Mr. Sharma told a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya that fundamental rights should not be read in isolation. They should be read along with the Directive Principles of State Policy. Every fundamental right was subject to public health, morality and decency.
Counsel faulted the High Court judgment, contending that consent for unlawful act was not consent in the eye of law and one could not claim the right to privacy for indulging in it. The court had dismissed petitions claiming right to gamble. “Tomorrow a pregnant woman might claim the right of abortion. Will the court allow it?”
Pointing out that India is a country of different religions and cultural identities, counsel said the Supreme Court, while deciding the question of legalising homosexuality between two consenting adults, should take this factor into consideration.
He said the Naz Foundation, petitioner before the High Court, claimed that it was working on a HIV/AIDS prevention programme. But when the Lucknow police raided one of its premises, several articles and videos were seized and it was found that the Foundation was carrying out perverted sexual practices in safe places on a collective scale.
Arguing that Mahatma Gandhi had considered homosexuality a vice and immoral, counsel said the word ‘unnatural’ would mean immoral, irrational and against public policy, and any unnatural act would be an offence. Pointing out that the court could interfere only if there was violation of one’s fundamental right, he said that in this case there was no complaint of violation. It was mere apprehension of violation and the court could not interfere unless and until the right was violated, he said.
Additional Solicitor-General Mohan Jain, appearing for the Health Ministry, in his written submissions, explained its concern for opposing the High Court judgment. “According to the National AIDS Control Organisation, the overall HIV prevalence among different population groups in 2008-09 shows that HIV is higher among the HRG [High Risk Groups], Injecting Drug Users [IDU] 9.19 %, Men who have Sex with Men [MSM] 7.3% and Female Sex Workers [FSW] 4.94 %, while HIV prevalence among the general population is estimated to be less than 0.5%. The estimated number of MSMs and Transgenders [TGs] at high risk in 2009 is 4.12 lakh. Through Targeted Intervention [TI] projects, 2.85 lakh (69%) MSMs and TGs have been covered under services. Since many MSMs are married and have sex with women, their female sexual partners are also consequently at risk for HIV/infection” Reluctance to reveal the same sex behaviour rendered risky sexual practices going unnoticed and unaddressed in MSMs.
The ASG said: “The fear of harassment by law enforcement agencies mostly leads to sex being hurried, particularly because these groups lack ‘safe place’ and they often utilise public places for their indulgence. They do not have the option to consider safer sex practices. The hidden nature of such groups hampers interventions under the National AIDS Control Programme, which is aimed at prevention of AIDS. This makes a large section of MSMs invisible and unreachable.” By creating a friendly environment, the people involved in risky behaviour would be encouraged to reveal information and this would help in providing them total access to the services of preventive efforts.
The ASG said: “HIV Sentinel Surveillance in India, implemented by the National AIDS Control Organisation, is the largest and one of the best systems in the world. The methodology adopted is globally accepted and in accordance with WHO/UNAIDS recommendations for HIV/AIDS surveillance. For this purpose, sentinel sites are set up at specific service delivery points or facilities such as ANC [Antenatal clinic], STI [Sexually Transmitted Infection] clinics and TI projects. TI projects are NGO-based projects that provide prevention services to high-risk groups [Female Sex Workers, MSMs and IDUs.] They are reached at several identified “hot spots” such as brothels, clubs, bus stops, railway stations, parks, theatres, etc, where the high-risk group individuals can be approached. Based on data from the NACP on population size and vulnerabilities of the risk groups, these sentinel sites are established at places where high HIV prevalence is expected and therefore, need to be closely monitored under the programme.”
http://www.thehindu.com/news/national/article2943631.ece
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When right to private defence is wrong
BY GEETA RAMASESHAN PUBLISHED IN THE HINDU
A police claim of self-defence to justify encounter killings must be held to higher standards of proof as the force is armed and trained for combat.
The “encounter” deaths of five persons suspected of having carried out two bank robberies in Chennai is reminiscent of the Batla house encounter. It has once again focused attention on the practice of extrajudicial killings in Tamil Nadu. Reports in The Hindu indicated that the police got a tip-off about where the perpetrators were, after the photograph of one suspect appeared in the media. As a follow-up, the official version goes, policemen visited the premises where the five men were and asked them to surrender. They in turn fired on the police, which resulted in the five being shot dead. Such a construction poses many uncomfortable questions.
How was the man in the photograph identified as one of the five men in the house? Again, why did the police not wait for the men to surrender? At the time of firing there was nothing to indicate that those killed were involved in the heist. They were purported to have been identified by eyewitnesses after they were killed.
The official claim that the police had to exercise their right of self-defence as they were shot at raises more questions than answers. It sweeps under the carpet disturbing aspects about the modus operandi of the police, in instances when they seem to conduct themselves more like vigilante groups rather than as protectors of the law.
In all cases of encounter deaths, the practice is to claim that the killings were done in self-defence. Under the penal code, the right of private defence is available to all, and no distinction is made between the police and layman. However the taking away of life can be done only under exceptional circumstances. The person seeking the right of private defence must have a reasonable apprehension that the person who is killed, would have killed him or her, or caused grievous hurt, could commit rape, kidnapping or abduction.
Private defence or murder
As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.
But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.
However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.
NHRC guidelines
In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.
While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.
The Madurai based human rights organisation, People’s Watch, has documented at least 23 such instances in the past four years in Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.
A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.
(Geeta Ramaseshan is an advocate at the Madras High Court. E-mail: geetaramaseshan@gmail.com)
http://www.thehindu.com/opinion/op-ed/article2943201.ece?homepage=true
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Govt must encourage democratic rights, not police power: Jaitley
ARUN JAITELY IN THE PIONEER
The Supreme Court has pronounced a landmark judgement on the incident that took place on the midnight of June 4-5, 2011 at Ramlila Maidan, Delhi where Baba Ramdev and his supporters were carrying on a protest against corruption and prevalence of black money in India.
They were agitating against the reluctance of the Government to take key steps to eliminate the menace of corruption and black money.
Admittedly, the protest was peaceful. The essence of democracy is the right to have an alternative opinion and to agitate for its acceptance. The term Satyagraha, originated in a news-sheet Indian Opinion in South Africa in 1906. It was an adaptation by Gandhiji from one of competition entries in South Africa. Satyagraha went beyond the concept of ‘passive resistance’. The essence of Satyagraha was non-violence but aggression. Its force lay in truth and the ability to struggle for it. The satyagrahi invited to himself the adverse consequences of his action. He was willing to suffer the punishment as consequence of his struggle.
The Supreme Court in its judgement has upheld the right to peaceful protest as a Constitutional right. The Court has rightly observed – “Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance.
The Government has to respect, and in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions”.
The right to peacefully protest subject to just restrictions is now an essential part of free speech and the right to assemble. Additionally, it is an affirmative obligation of the State to make that exercise of this right effective.
Recent experiences have shown that the political establishment encourages the use of police powers to render weak and otiose the exercise of such rights. Team Anna repeatedly had difficulties in being allotted a centrally-located place to organise its protest. Police powers were used to dictate that the size of protest must be miniscule and not large. When large open areas, such as the Ramlila Maidan and other centrally-located sites are available, recent experiences have shown that police discretion has been used to discourage people from using such sites for organising protests. The Supreme Court has taken note of some such practices.
A reading of the judgement of the Supreme Court confirms the fact that the protest by Baba Ramdev and his supporters was absolutely peaceful. The Supreme Court has observed that – “There was no disturbance or altercation whatsoever and the followers of Baba Ramdev were peacefully waiting in queues that stretched for over two kilometres. If the police wanted to limit the number to 5,000, it could have easily stopped the people at the gate itself.
However, no such attempt was made. The conduct of the police goes to indicate that the police action resulted from instructions from the Government and their current stand regarding the number of persons present is nothing but an after thought.”
The court, further referring to the conduct of the protesters, noticed that – “None of the stated conditions, admittedly, had been violated, and as such there was no cause for the police to withdraw the said permission…Even for the sake of arguments, it is assumed that there was a requirement for seeking permission from the police and the police had the authority to refuse such a permission and such authority was exercised in accordance with the law, then also this respondent and the public at large were entitled to a clear and sufficient notice before the police could use force to disperse the persons present at the site. Imposition of an order under Section 144 Cr PC was neither called for nor could have been passed in the facts and circumstances of the present case…
In fact the order was passed in a pre-planned manner and with the only object of not letting Baba Ramdev to continue his fast at the relevant date and time… The documents on record show that some of the police personnel certainly abused their authority and were unduly harsh and violent towards the people present at the Ramlila Maidan, whereas some others were, in fact, talking to the members of the gathering as well as had adopted a helpful attitude.”
What happened on the midnight of 4-5th June, 2011 at Ramlila Maidan becomes increasingly clear from the final directions of the Court. A peaceful protest was being organised by Baba Ramdev and his supporters as a part of their Constitutional guarantees when Section 144 was unlawfully imposed. The protesters were peaceful. They had followed every condition imposed on them. The entry into the pandal was regulated by the police. Suddenly a decision was taken to evict the gathering.
The Supreme Court in this regard has observed – “The decision to forcibly evict people sleeping at Ramlila Maidan at the midnight of 4-5th June, 2011 whether taken by the police independently or on consultation with the Ministry of Home Affairs, is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the Right to Freedom of Speech and Expression was unsupported by cogent reasons and material facts. It was an invasion of legal protections available to them even under the provisions of the CrPC.
Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution… From the facts and circumstances that emerge from the record before this Court, it is evident that it was not a case of emergency.”
The Court has further held that even if the Government decided to evict the people present, they were entitled to a reasonable notice. On the contrary, disproportionate force was used, water canons, lathi charge and tear gas shell injuring many people and leaving one dead.
These conclusions by the Supreme Court upheld the Constitutional guarantees that citizens are entitled to. They go a long way in strengthening the Indian democracy and allowing space for peaceful dissent within our political system. The observations of the court and the law so declared will go a long way in safeguarding the right to protest, which makes dissent co-existent with democracy. The Court deserves full credit for this.
However, after this, the judgement takes a curious turn. It imposes an obligation on the protesters to obey every lawful order. Admittedly, neither the imposition of Section 144 in this case nor the withdrawal of permission or the manner of forcible eviction were lawful. Why should the protesters have accepted such an order? How then can the principle of ‘contributory negligence’ be imposed on a protester who was exercising his fundamental right to protest?
The concept of ‘contributory negligence’ is born out of a law of tort. It cannot be used to dilute the width and exercise of a Fundamental Right. ‘Contributory negligence’ is a defence where a person who is wronged could have acted in his own interest and taken due care and caution so that not to contribute to injury. It is a legal plea available as a defence in a Tort action. Its application to restrict the exercise of Fundamental Right is wholly unwarranted and legally untenable.
India attained its Independence through peaceful struggle. Passive resistance, civil disobedience and Satyagraha are well-known instruments of protest. They essentially involve peaceful and non-violent methodologies of protest. Satyagraha is an instrument where truth is used for assertion. A satyagrahi himself bears the punishment for violating the law and for disagreeing with an oppressive regime. To equate the right of a satyagrahi with contributory negligence undoes the advantage of an otherwise landmark law that this judgement has laid down. If a protester is within his Constitutional rights to organise a peaceful protest, he is equally within his rights not to accept an illegal order denying his right to protest. He runs the risk of being punished if the order is held to be lawful. But when a protester violates Section 144, he is always willing to suffer a punishment.
The law declared is understood to mean that every time his fundamental right to protest is intercepted by the State; he must immediately comply with the order or run the risk of being liable for contributory negligence. A citizen cannot be compelled to abdicate his Fundamental Rights merely because the State decides to restrict his right to protest.
The judgement of the Supreme Court lays down a landmark law inasmuch as it upholds the right to protest as a Fundamental Right of Speech and assemble.
However, it shakes the foundation of the Fundamental Right by laying down a highly doubtful proposition that once the right to protest is denied, the protester must meekly accept the denial or run the risk of a contributory negligence to the police oppression. This part of the judgement requires extensively debate and possible reconsideration.
Writer is Leader of Opposition in the Rajya Sabha
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‘Sensitivity must to defend human rights’
UNE: Future lawyers need to equip themselves with knowledge and information if they want to deal with complaints relating to human rights violations, said Supreme Court justice Balbir Singh Chauhan on Saturday. He was speaking on the “Role of judiciary in protection of human Rights” at the Justice Y V Chandrachud lecture series 2012. The function, attended by judicial officers and lawyers, was organised by the Pune Bar Association (PBA) at the Ashoka hall of the district and sessions court.Justice Chauhan, the chief guest for the event, emphasised the need to introduce more courses on human rights violations, as such events have become rampant in the country.
Describing the incident of Baba Ramdev‘s rally at Ramlila Maidan last year as a clear case of human rights violations, the SC judge advised lawyers to have a sensitive approach while dealing in human rights violations cases. He also criticised the police for abusing its authority by inflicting injuries on a sleeping crowd in the garb of invoking Section 144 of the Criminal Procedure Code.
Citing the case of film actress Khushboo, who had to face 28 litigations by lawyers, and remained in prison for six weeks, because she had given an interview on live-in relationship, the judge said there was no law to initiate prosecution in such cases as none of the lawyers were defamed.
Among the others who spoke at the function include Justice Abhay Thipsay of the Bombay High Court, principal district and sessions judge Anant Badar, Harshad Nimbalkar, member of Bar Council of Maharashtra and Goa, PBA president Dhananjay Taur and others.
Later, attending the Justice P N Bhagwati International Moot Court competition at the New Law College, Justice Chauhan traced the history of legal education in India and commented on the quality of legal education and applauded the high professional quality existing today in law colleges across India. He also spoke on natural justice as well as human rights being the most essential components for dignified humanity.
Total 26 teams from national law schools and six foreign teams from the UK, the US and Europe have participated in the competition. The guests were introduced by Mukund Sarda, dean and principal of the college.
National Legal Research Desk on Violence Against Women and Children
Supreme Court of India
The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women. Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.
Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs. These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.
The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult. Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.
Supreme Court upholds verdict matching NREGA pay with state wages
Supreme Court of India
NEW DELHI: The Supreme Court has refused to stay a recent Karnataka High Court verdict that has said the central government is liable to pay higher wages under the country’s flagship rural employment programme in tandem with that of the state minimum wage rate. It has further asked the government to find a way to end the disparity between the wages paid under Mahatma Gandhi National Rural Employment Act (MGNREGA) and state mandated rates under the Minimum Wages Act. The move might mean an additional outgo of around Rs 900 crore in the current financial year from the central government to six states which have a minimum wage rate that is higher than the MGNREGA rate. The Karnataka High Court had in September directed the central government to match the wages under MGNREGA with the state’s minimum wage rates.
The central government had however decided to file a Special Leave Petition to the SC contesting the order. The SC, however, stayedthe order on the payment of arrears prior to the Karnataka high court order providing the central government some relief. The Court stated that non-payment of minimum wages under the scheme is tantamount to forced labour. It had further strongly urged the Solicitor General to harmonise the MGNREGA wage rates with minimum wages in a manner in which the state Minimum Wages Act is respected. The court also said that the matter should not be treated in an adversarial manner and asked the government to resolve the issue in a consultative manner. Earlier rural development minister Jairam Ramesh had favoured softening the central government’s stance by complying with the KHC order while suggesting an amendment to create a special wage rate for MGNREGA under the Minimum Wages Act to tackle the issue on a long term basis. Ramesh, however met opposition from the Finance Ministry and the Law Ministry and on the insistence of PM Manmohan Singh had to file the SLP. The six states with disparate wage rates are Andhra Pradesh , Rajasthan, Kerala, Karnataka , Mizoram and Goa.
‘Because Andaman’s forests are Jarawa infested …’
PANKAJ SEKHSARIA IN THE HINDU
The road to ‘civilisation’ is paved with bad intentions.
Infestation, in’fes•ta’tion n. the state of being invaded or overrun by pests or parasites. Do people inhabit the lands and forests that they have been living in for thousands of years or do they infest them? The answer to this no-brainer of a question might well lie at the root of the problem being faced by the Jarawas in the Andaman Islands today. The video showing the Jarawa women dancing on the Andaman Trunk Road, apparently for food, is just the latest manifestation of a malaise that is so deep that one might well argue that there is no hope for the Jarawa.
In 1965, the Ministry of Rehabilitation, Government of India, published an important document related to the Andaman & Nicobar Islands: ‘The Report by the Inter Departmental Team on Accelerated Development Programme for A&N Islands.’ The contents of the report and their purpose were evident in the title itself — it laid out the roadmap for the development of these islands and set the stage for what was to happen over the decades that have followed.
This little known report of less than a 100 pages in size is remarkable for the insight it provides into the thinking and the mindset of the times. There is what one might call a shocker on every page of this document and here is a just a sampling:
Page 26: …The Jarawas have been uniformly hostile to all outsiders with the result that about half the Middle Andaman is treated as a Jarawa infested (emphasis added) area which is difficult for any outsider to venture… With the present road construction and the colonisation of the forest fringes, friction has become more frequent, and no month passes without a case of attack by the Jarawas.
Page 69: The completion of the Great Andaman Trunk Road would go a long way to help in the extraction of forest produces…
A nation that had just fought its way out of the ignominy of being a colony was well on the way to becoming a coloniser itself. And those that came in the way could only be pests or parasites infesting the forests that had valuable resources locked away from productive use.
It is also pertinent to note here that in 1957 itself, more than a 1000 sq. km of these “Jarawa infested” forests of South and Middle Andaman had already been declared protected as a Jarawa Tribal Reserve under the provisions of the Andaman and Nicobar Protection of Aboriginal Tribes Regulation (ANPATR) — 1956. The 1965 report was in complete violation, or was a result of complete ignorance of this legal protection to the Jarawa and the forests that they have inhabited for thousands of years.
The seeds that were sown then have bloomed into myriad noxious weeds today and if one knows this history, the latest video that has generated so much heat is not in the bit surprising. Much space in the media, both print and electronic, has been occupied in the last few days by a range of claims and counter claims — about the date of the video, about the police involvement in its making, the role of tour operators and about fixing blame and responsibility. A little known fact that lies at the root of the issue has been all but forgotten — the existence of the Andaman Trunk Road, where this infamous video was shot about three years ago. The Andaman Trunk Road that the 1965 report offered as a good way of extracting resources from the forests of the Jarawa had been ordered shut by a Supreme Court order of 2002.
It’s been a decade now and in what can only be called audacious defiance, the administration of this little Union Territory has wilfully violated orders of the highest court of the land. A series of administrators have come and gone but contempt for the Supreme Court remains.
Whenever asked about the order, the administration has tried to hide behind technicalities of interpreting the court order and arguing that the court had never ordered the road shut in the first place. They forget that in March 2003, a few months after the SC orders had been passed, they had themselves filed an affidavit with a plea to “permit the use/movement through the Andaman Trunk Road.” If it was not ordered shut, why the plea to keep it open? A few months later, in July 2003, the Supreme Court appointed Central Empowered Committee reiterated explicitly that the court orders include those for the closure of the ATR in those parts where it runs through the forests of the Jarawa Tribal Reserve. The A&N administration has clearly violated the court’s order both in letter and in spirit.
It is a spirit that was evocatively articulated by Dr. R.K. Bhattacharchaya, former Director of the Anthropological Survey of India, in a report he submitted to the Calcutta High Court in 2004. “The ATR”, he said, “is like a public thoroughfare through a private courtyard… In the whole of human history, we find that the dominant group for their own advantage has always won over the minorities, not always paying attention to the issue of ethics. Closure of the ATR would perhaps be the first gesture of goodwill on part of the dominant towards an acutely marginalized group almost on the verge of extinction”.
The video in all its perversity offers us another opportunity, when all others in the past have been brushed aside either due to ignorance, arrogance or then sheer apathy. It’s still not too late to make that ‘gesture of goodwill’ because otherwise there will be many more such videos down the years and much worse will follow. The lessons from history are very clear on this. And it will hardly be a consolation that a few people will be left saying we told you so.
(The writer is associated with Kalpavriksh, one of the three NGOs whose petition before the Supreme Court resulted in orders for the closure of the Andaman Trunk Road in 2002. He is also the author of Troubled Islands — Writings on the indigenous peoples and environment of the A&N Islands.)
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- Jarawa Tribal Women: Authorities Order ‘Human Safari’ Tour Operator’s Arrest [VIDEO] (ibtimes.com)
- Jarawa Tribe of Andaman & Pan – Indian Mentality (mevidur.wordpress.com)
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