Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters
Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.
It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.
For basic rights
PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights.
In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it originated. He emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.”
No longer were the Court’s clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.
This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it.
The new intervention
However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.
The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”
Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.
Matters of policy of government are subject to the Court’s scrutiny. Distribution of food-grains to persons below poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.
The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged version of a lecture he recently delivered at the sesquicentennial of the Bombay High Court.)
The Supreme Court today modified one of its order on welfare and rehabilitation of sex workers on the Centre’s submissions that the last year’s order gave an impression that it seeks to legalise prostitution. Allaying the Centre’s fears that it was giving its seal of approval to prostitution, a special bench of justices Altamas Kabir and Gyan Sudha Misra modified its earlier order, saying “the modification shall not be construed that by this order any encouragement is being given to prostitution.”
Modifying its earlier order, the bench clarified that it would only examine the “conditions conducive for sex workers to work with dignity in accordance with provisions of Article 21 of the Constitution.”
It added it was keen that sex workers should be given opportunity to avail rehabilitation measures of the government and other agencies for them. While adjudicating a petition for rehabilitation of former sex workers, the apex court had on July 19, 2011 framed three terms of reference. Appointing a broad-based panel to look into the matter, the apex court by its July 2011 order had formulated three questions related to prevention of trafficking, rehabilitation of sex workers who wish to leave the sex work and “conditions conducive for sex workers who wish to continue working as sex workers with dignity.”
On the Centre’s submission that the third term gave an impression that prostitution has been sought to be legalised, the apex court modified it to read as “conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.
“The above modification shall not be construed that by this order any encouragement is being given to prostitution,” the bench added. Justice Sudha also observed, “While we do not wish to encourage sex trade we would emphasise rehabilitation of sex workers for which we had taken the issue. “We wish to add although the sex workers have right to live with dignity. There has to be collective endeavours by courts and sex workers to give up flesh trade in case they are given alternative platform on employment.”
NEW DELHI: The Supreme Court may have declared in numerous judgments that speedy trial was intrinsic to right to life of an accused, but on Wednesday the court said it was apprehensive about fixing a time limit for completion of a criminal trial as it could be misused by intelligent criminals.
This comment came from a bench of Justices H L Dattu and C K Prasad during the hearing on a petition by advocate Ranjan Dwivedi, who has sought quashing of the trial proceedings against him in the L N Mishra murder case on the ground of inordinate delay saying the 37-year-long trial has blighted him personally, physically and socially.
Senior advocate T R Andhyarujina said Dwivedi was 27-year-old when the bomb blast at Samastipur railway station killed Mishra on January 2, 1975. The trial has dragged on for no fault of his, and now the accused is a frail 64-year-old. He said there was a grave danger of immense prejudice during the trial of Dwivedi as 31 of 39 defence witnesses cited by him to prove his innocence have died. As many as 22 judges have handled the trial at various stages.
“It is a unique case. The apex court has declared that right to speedy trial was a requirement under Article 21 guaranteeing right to life. But, the trial has dragged on for 37 years. In 1992, the Supreme Court had directed day-to-day trial in this case for a speedy conclusion. Two decades later, we are no where near the end,” Andhyarujina said.
“Whether the accused would get convicted or acquitted is immaterial. The question important here is whether any judicial system would tolerate such inordinate delay? Should the Supreme Court allow it to continue any more,” he added.
The bench said there was no denying that delay had been frequent in the judicial system in India. “Delay will continue to happen given the system we have. Delay definitely affects the trial but can the Supreme Court fix a time limit for completion of a criminal trial. The SC had earlier in a judgment specifically struck down fixation of a time limit for completion of trial,” it said.
“It is a unique case. But if we quash the proceedings, we may be sending a wrong signal, which may be used by an intelligent accused at a later date. We do not want this to happen because of our order,” the bench said.
The court was apprehensive that if a time limit was fixed on the trial, then an unscrupulous accused could deliberately delay the trial by challenging every order against him in higher courts and thus designed delay the trial to seek its quashing after a decade or so.
The bench said since the trial has reached the fag end after dragging for nearly four decades, it could ask the trial court to complete it in the next three months by holding proceedings on a day-to-day basis refusing adjournment on any ground to the accused and prosecution. It asked Andhyarujina and additional solicitor general Harin Raval to give their views to expeditious completion of the 37-year-long trial by Thursday.
Role of Ananda Marg was suspected in the case, and several people were arrested. The chargesheet was filed against several people, including Dwivedi. The trial was transferred to Delhi by the Supreme Court in December, 1979, after the attorney general alleged that Bihar government was interfering with the trial. Charges were framed against the accused in 1981. Dwivedi was granted bail in 1978.
The Union Cabinet today approved the proposal for introduction of the Criminal Law (Amendment ) Bill, 2012 in the Parliament.
The Law Commission of India in its 172nd Report on `Review of Rape Laws` as well the National Commission for Women have recommended for stringent punishment for the offence of rape. The High Powered Committee (HPC) constituted under the Chairmanship of Union Home Secretary examined the recommendations of Law Commission, NCW and suggestions various quarters on the subject submitted its Report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft was further examined in consultation with the Ministry of Women and Child Development and the Ministry of Law & Justice and the draft Criminal Law (Amendment) Bill, 2012 was prepared.
The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code,1860, replacing the word `rape’ wherever it occurs by the words `sexual assault`, to make the offence of sexual assault gender neutral, and also widening the scope of the offence sexual assault.
The punishment for sexual assault will be for a minimum of seven years which may extend to imprisonment for life and also fine for aggravated sexual assault, i.e., by a police officer within his jurisdiction or a public servant / manager or person talking advantage of his position of authority etc. The punishment will be rigorous imprisonment which shall not be less than ten years which may extend to life imprisonment and also fine.
The age of consent has been raised from 16 years to 18 years in sexual assault. However, it is proposed that the sexual intercourse by a man with own wife being under sixteen years of age is not sexual assault. Provision for enhancement of punishment under sections 354 and 509 of IPC and insertion of sections 326A and 326B in the IPC for making acid attack a specific offence have been made.
Ranjit Kumar, the amicus curiae in the interlinking of rivers case, is a senior advocate in the Supreme Court and has been practising for nearly 32 years. He has been the amicus curiae in about 14 matters before the Supreme Court, including the ones on the cleaning of the Yamuna and the sealing of illegal commercial establishments in Delhi. In this interview to Frontline, he tries to clarify many of the concerns voiced by experts about the Supreme Court’s judgment in the interlinking of rivers case.
Critics of the judgment have pointed out that none of the 30 projects being planned has been approved or sanctioned and that none of them is ready for implementation. The delay has been attributed to the divergence of perspectives on the project between the National Democratic Alliance government and the United Progressive Alliance government which succeeded it.
I don’t want to get into the political realm of the matter. What had already been achieved was that the peninsular and the Himalayan links had been identified. There are 14 Himalayan links and 16 peninsular links. That apart, most of the rivers are inter-State rivers. After the drawing up of the pre-feasibility reports, which itself took time, there was a bar chart presented by the government as to how much time it would take. The government had given milestone timetables under which the implementation of the project would be completed by December 31, 2016.
The steps required were first, the feasibility study, then funding proposals, then the concurrence of the Chief Ministers of the States and then the completion of the detailed project reports (DPRs). And even in 2002, while the matter was going on in the court, the government informed that feasibility studies in respect of six river links had already been completed. So, I would not like to say that none of the projects is lying in limbo. The Standing Committee of Parliament for Water Resources, which has been noticed in paragraph 24 of the judgment, had asked why the project was at a nascent stage. The committee had strongly recommended going ahead with the project. That was why I sought the court’s intervention. Undoubtedly, the ILR [interlinking of rivers] programme is a gigantic challenge, and a momentous one before the Union government.
The report of the National Council for Applied Economic Research (NCAER) appears to be the only basis for the judgment. Does this report adequately assess the gains from ILR for drought prevention and flood control?
The Union of India in all its affidavits filed in the Supreme Court always supported the programme and the NWDA [the National Water Development Agency] continued to function under the aegis of the Secretary, Water Resources. Feasibility reports and DPRs were made, or have been made in the cases of some. Therefore, to say that the NCAER 2008 report is the only basis for the judgment is not correct. The court has definitely lifted from the report’s conclusions dealing with the economic aspect and social impact and the benefits arising from the project.
The two basic premises that determined the admission of PIL in this case were that the ILR would lead to drought proofing and flood control and that there was consensus among the States. These two premises have subsequently become vulnerable.
I do not agree that they are vulnerable. Because nobody can deny that there is flooding every year and droughts every year. How much money does the Prime Minister’s Relief Fund have to expend to mitigate the devastation caused by floods and droughts? For the last 60 years, can we say that the premises of flooding and drought are vulnerable?
Critics point out that courts cannot lay down the manner in which the right to water should be ensured.
It is not the right to water which is being ensured. What is being ensured is the beneficial aspects of having 40 million hectares irrigated. And when you can have waterways systems, the yearly misery of droughts and floods can be got rid of. Chapter 2 of the NCAER report amply bears this out. It explains the benefits of river valley projects, namely, the Indira Gandhi Canal project, the Tennessee Valley project, the Colorado River Canal system and the Three Gorges dam.
The relationship between the right to water and the ILR project has been described as tenuous.
The judgment itself doesn’t say that there is a link between the right to water and the project. The court is only saying that the project is in the national interest. In paragraphs 50, 52, and 63, the court says that these are matters of national interest and national problems should be viewed with greater objectivity, rationality and spirit of service to the nation.
Does the ILR project adequately address the concerns on biodiversity and impact on the environment?
That is why environmentalists are in the task force. They have a big say in the matter. I have attended a few meetings of the task force. Most of the objections pertain to rehabilitation programmes for those being displaced. Therefore, the aspect which relates to rehabilitation will be a part of the project itself as we have seen in other places such as Tehri, and Narmada dam. I don’t agree that the project ignores the concerns on the environment and biodiversity. Even if environmentalists say so, they have to give reasons, and the court will look into the reasons. If it is successful all over the world, and specifically in China, Brazil and Pakistan, then surely it cannot be said that it will not be successful here.
Some of the projects may involve international agreements, especially between India and Bangladesh. Has the judgment taken this into account?
There are issues with Nepal and Bangladesh, which will be sorted out. This will be part of the implementation process. Whatever will be required will be done.
Has the court considered the need for clearances under the Environment Protection and Forest Conservation Acts and the National Rehabilitation Policy, and from the Planning Commission and the Cabinet?
These are all in the implementation process. Reports have to be filed. The court will consider the grounds cited by these agencies if they conclude that the project is not feasible and will dwell on it. I can file a contempt, if nothing is happening, for default or for non-compliance of the directions by the Supreme Court as mentioned in Paragraph 64 (XVI) of the judgment.
Did the UPA government make its stand clear to the court on the ILR project despite its reservations?
The government has at no stage expressed any reservation about the project. A few States may have. The Centre has never taken the stand that it is not feasible. It went along, filed status reports about what has been happening and how the matter has progressed. It did not say that it is not feasible or that we should not do it. If the government were to come to such a conclusion that it is not feasible, then it will make a somersault of its earlier position. Nobody can deny the benefits accruing from these projects.
How do you react to the criticism that the ILR can lead to fresh inter-State river disputes and that it may not solve the existing ones?
I have informed the court that in view of the provisions of the River Boards Act, 1956, enacted by Parliament, there is a declaration under Section 2 that the Central government should take under its control the regulation of inter-State rivers and river valleys. Section 13 provides for optimum utilisation of water resources and for promotion and operation of schemes of flood control. Section 15 empowers preparation of schemes to develop inter-State river or river valleys. And this has been noted in Paragraph 58 of the judgment. Therefore, if there is an existence of regulatory framework by the declaration of Parliament, there need not be any inter-State river dispute. The tribunal is not necessary. The Central government can exercise that power. The Central government never applied its mind to this Act when disputes arose and tribunals were set up. When I brought this to the notice of the court, the judges found a way to deal with the matter.
It is pointed out that the Supreme Court has failed to consider the diversity of views on the reasons for India’s water crisis and that the ILR may not be the best possible answer.
This judgment does not deal with water crisis. This judgment deals with the benefits arising from interlinking and the malice or misery that is prevailing on account of droughts and floods. This judgment does not deal with the water crisis to the extent of drinking water. But it deals with an aspect that if interlinking takes place, how many million hectares of land will be irrigated.
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.
Expresses concern at rising number of deaths in road accidents
Expressing serious concern over the rising number of deaths in road accidents, the Supreme Court on Thursday called for revisiting the sentencing policy to ensure harsh punishment for the ‘killers on wheels’.
Upholding the three-year jail sentence awarded by the Bombay High Court to Alister Anthony Pareira for causing the death of seven persons when his car ran into the pavement in Mumbai, a Bench of Justices R.M. Lodha and K.S. Khehar said the punishment must be in proportion to the crime.
Writing the judgment, Justice Lodha said, “The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”
The Bench said: “The World Health Organisation, in the Global Status Report on Road Safety, has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau [NCRB], the total number of deaths due to road accidents in India every year is now over 1,35,000. The NCRB report also states drunken driving as a major factor for road accidents.”
It said the country had the dubious distinction of registering the highest number of deaths in road accidents. “It is high time lawmakers revisit the sentencing policy reflected in Section 304 A IPC [death due to negligence]. It is true that the appellant has paid compensation of Rs. 8,50,000 but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, the High Court had been quite considerate and lenient in awarding to the appellant a sentence of three years for an offence under Section 304 Part II IPC [death caused by driving] where seven persons were killed.”
According to the Bench, “the facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, the sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.”
“Travesty of justice”
On the plea for letting the appellant off with the sentence already undergone i.e. two months in a case like this, the Bench said “in our view, it would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime.”
It said: “We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. The appeals are, accordingly, dismissed. The appellant’s bail bonds are cancelled. He shall forthwith surrender for undergoing the remaining sentence as awarded by the High Court in the judgment dated September 6, 2007.”
THE TRIBUNE / New Delhi, December 21
The landmark law on protection of children from sexual assault and pornography crossed the first big hurdle today as the Parliamentary committee reviewing its provisions cleared the Bill with one major rider. The committee rejected the government’s proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years.
Though the Ministry of Child Development, piloting the law, argued for the age of consent saying sexual awareness of children couldn’t be overlooked, the committee said once the law had defined everyone up to 18 years as children, the element of consent should be treated as irrelevant. The ministry’s contention that not having the element of consent would lead to criminalisation of consensual action by 16 to 18-year olds didn’t go down well with the committee which said in its report to the Parliament today, “By having the element of consent, the focus will be on the victim, leading to his or her re-victimisation. Children can’t be exposed to lengthy cross examinations on issues of consent.”
The committee has further asked the government to cover religious institutions like muths, madrasas and monasteries under the law. It accordingly sought amendment to the clause – “Whoever being on the management or staff of an educational institution commits penetrative sexual assault on a child in that institution…would be punished” – to include religious institutions where young boys go to study. The law also covers households, hospitals, schools and juvenile homes.
The parliamentary panel has, however, sought the word “shared household” defined as “a household where the person charged with the offence lives or has at any stage lived in a domestic relationship with the child”. The existing definition is a bit limiting. This clause will protect children from family and is historic considering the 2007 government study which revealed that 53 per cent children had suffered sexual abuse and half of these were at the hands of persons in the position of trust.
The Protection of Children from Sexual Offences Bill 2011 (introduced in the Rajya Sabha on March 23 and referred to the committee) further allows children and anyone from the public to report the offence and its apprehension to the local police or special juvenile police unit. It covers sexual offences against children at the time of communal violence and provides for special courts to deliver justice in a child-friendly environment.
Its landmark features are – definition of sexual assault for the clarity of victims and law enforcers and the presumption that those who committed the offence are accused unless proved otherwise. Though the law has safeguards to prevent false complaints, it ensures that cases don’t fall through for want of evidence which is difficult to collect.
With this law, India seeks to fulfil its commitment to the UN Convention for Rights of the Child that it ratified in December 1992. The law is path-breaking considering 24 per cent rapes in India involve children (11 per cent of these involve those under 14 years). Government data further shows that conviction in rapes fell from 38.7 per cent in 2001 to 30 per cent in 2009; in matters where minors were procured for prostitution, conviction rate fell sharply from 39.1 per cent to 18.9 per cent over the same period.
A STEP FORWARD
Parliamentary Committee rejects government proposal to treat 16 years as the age of consent and not classify as an offence consensual sexual acts with children aged 16 to 18 years
Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011
We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.
The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.
Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.
Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the
Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.
I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.
The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.
India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”
- The seven deadly sins of judges (indialawyers.wordpress.com)
- Don’t bring judiciary to disrepute for few erring judges: CJI (thehindu.com)
- National Law Day: Two Constitutional Scholars who upheld the values of our Constitution (indialawyers.wordpress.com)
- Judges must be beyond all suspicion (indialawyers.wordpress.com)
- SC’s activism: Is it judicial overreach or government under-reach? (indialawyers.wordpress.com)
- Judicial secret out in open (indialawyers.wordpress.com)
Violence against women in the private realm is relegated to secondary status, whether in India or in the United States. Strong laws and public policies are essential steps toward combating such violence. But the real solution lies in a culture shift, in the world, and in each of our homes
MALLIKA KAUR TRIBUNE CHANDIGARH
Three friends walked home after another tiring rehearsal for the school function. It was barely dusk. When the man leapt out of nowhere to pounce on Bandana (name changed), no one was sure what happened. Then a yell grew out of one belly and found its way down the road, down their backs, and into small eighth-grade fists that pounded on the man. He ran. The girls were proud they had fought. When they got home, they told the story solemnly. “Well, that’s what happens when you go walking around in the evenings, going out like that alone!” Bandana’s father message was clear — Chandigarh, 1997.
Brushed under the carpet
The message young girls begin receiving from our families, friends, and society becomes engrained by the time they reach womanhood: that we must not make the unforgiveable mistake of becoming victims of violence. While violence by strangers at least provides some room for women expressing their agony and demanding redressal, violence within the home remains a taboo topic. And this taboo crosses geographic, ethnic, and racial borders.
Victims of domestic abuse
On 17 August 2011, the Inter-American Commission on Human Rights published its opinion finding the United States on the wrong side of human rights and domestic violence survivors. The Commission had considered the case of Jessica Lenahan (formerly Gonzales) whose three young daughters were abducted by Lenahan’s abusive husband, Simon Gonzales, in Castle Rock, Colorado in 1999. Despite Lenahan’s repeated calls and pleas to the police, reporting that she already had a domestic violence restraining order (a legal remedy the US has made relatively easily accessible to its residents) against Simon, the police failed to act for 10 hours. Eventually, Simon Gonzales drove up to the police department and opened fire. He was shot dead by the police. The three girls were subsequently discovered shot to death inside Simon’s truck. Jessica’s legal battle for this tragic loss yielded no results.
In 2005, the US Supreme Court even found that the police involved had not violated the US Constitution by their inaction. However, the Inter-American Commission found that the US had indeed violated human rights by failing to uphold its laws to protect its nationals from domestic violence.
Laws alone not enough
In India too, domestic violence is a punishable offense under the law, even if only rather recently. The Protection of Women from Domestic Violence Act, 2005, which became effective starting October 26, 2006, clearly recognised domestic violence as a punishable offence. However, the recent shaming of the US—a country that has innumerable times more extensive legal protections and services for domestic violence survivors-provides a moment of pause from comparing the wide (perhaps incomparable) chasm between the two legal systems and rather understanding a sad commonality. Laws alone cannot curb violence in the homes as long as domestic violence continues to be treated ‘special’. When it comes to such crimes, we often hear: “There must be two sides to the story” or “they both have strong personalities” or “he is frustrated since he lost his job.”
But, consider this scenario: if my neighbour loses his job, and proceeds to pick fights with me every day, gets drunk and curses me, breaks a window, wouldn’t you agree with my decision to call the police, whether or not he ever physically touches me? But if my partner does the same, why shouldn’t he conform to the standard of behavior, the law and society demand from my acquaintance-neighbour?
Breaking uneasy silence
Such uncomfortable discussions are thus largely missing in our living rooms. The domestic violence movement in the US has been asking precisely such questions more publically, loudly, and brazenly, than in many other parts of the world. For example, during October, nationally recognised as ‘Domestic Violence Awareness Month’ in the US, several public awareness activities are undertaken country-wide. During ‘Standing Silent Witness’ hours, women and men line up in busy city squares holding placards or wearing T-shirts with slogans acknowledging someone they know (or know of) who has faced domestic violence. During ‘Remembrance Days,’ survivors, allies, advocates, join together to remember those who have died because of domestic violence and also celebrate those who have survived. Purple ribbons, which have become the symbols of solidarity with anti-domestic violence work, are made into pins and passed out at local events; worn on bags and jackets; and hung on doors.
In India, we saw the Bell Bajao campaign, by the non-profit Breakthrough in 2008. TV, radio, online and print media were employed to circulate catchy calls for action by society to take a stand against domestic violence. To break the uneasy silence.
Measuring domestic violence
The anti-violence movement in the US has also promoted the measurement of domestic violence crimes, and the publicising of the statistics, so as to respond to the universal reaction—“We aren’t that kind of a family!”
On an average, according to the US Bureau of Justice Statistics, more than three women and one man are murdered by their intimate partners in the US every day. The Center for Disease Control has found that one in four women and one in nine men in the US report being victims of domestic violence at some points in their lives. Also, more recently, teen dating violence has been studied as a priority: approximately one in five female high school students report being physically, sexually, or emotionally abused by a dating partner.
In India, the National Family Health Survey (NFHS), 2005-06, recorded that 37 per cent women reported being survivors of spousal abuse; that is more than 1 in 3. These statistics show that most of us know someone who is a survivor of such violence, and all of us then are in fact ‘that kind of a family.’
Violence knows no bar
When I began representing domestic violence survivors in Californian courts, one of my mother’s friend’s asked her in all earnest, “So is wife-beating really a problem with Americans too?” (She clarified later that she meant ‘white’ Americans, of course.) My work has borne out the statistics that domestic violence knows no race, class, or religious boundaries. However, socio-economic factors can increase vulnerability for such violence: for example, if someone has no source of income, her abuser knows that her economic situation will prevent her from speaking about the violence or seeking help.
Domestic violence is a human rights problem that exists across borders, as the Inter-American Commission recently reminded the US—It is not a ‘women’s issue’ rather affects boys and men very severely. Indeed, India’s Protection of Women from Domestic Violence Act, 2005, does not cover men, and most commentaries on domestic violence-including this one-refer to the perpetrators of violence as male and the victim as female. This is simply because domestic violence victims are disproportionately female. However, men can be and are victims of violence by their partners in some cases as well, both in homosexual and heterosexual relationships. Moreover, this violence does not take place in a vacuum.
Children, girls as well as boys, are witnesses to such violence. Even if they are themselves never the direct targets of the violence, they bear the emotional costs of growing up in an environment of repeated cycles of fear, escalation of tensions, outbursts of violence, and misleading periods of calm. Studies show that children who grow up in violent homes, either themselves become vulnerable to being abused as adults or have a higher likelihood of becoming abusers in the future. This ‘cycle of power and control,’ which broadly describes domestic violence, has its immediate and collateral victims.
Move beyond campaigns
Campaigns such as ‘bell bajao’ or ‘standing silent witness’ or ‘remembrance days’ focus on cases where there are identifiable victims, in already violent relationships. Some of us might then still participate in these campaigns and still claim, “We aren’t that kind of a family!”
What would truly make us not one of ‘those’ families is if we start to check our everyday responses to gender inequalities and discrimination. Unless we stop calling street harassment ‘eve teasing;’ stop worrying about protecting our girls’ reputations even at the costs of their safety; stop spending more time, money and energy on weddings than on talking about healthy relationships and marriages, we will not stop domestic violence. Only when three friends can walk with safety as well as the security of the knowledge that they will not be judged should they face harm by someone, whether on the street or in the home, can we begin to feel assured that we are progressing towards equal justice for all.
Cycle of Power and Control
Intimate partner violence or domestic violence (DV) is controlling, abusive, and aggressive behavior in an intimate relationship . It includes verbal, emotional, physical, and/or sexual abuse.
DV usually comes to public notice only in extreme cases of physical abuse.
However, behind closed doors, such violence typically follows a regular pattern of three phases that repeat themselves:
One, the ‘tension-building’ phase. The abuser becomes increasingly irritable, moody, impatient, resulting in his partner “walking on eggshells,” not knowing what might make the abuser more angry.
Two, the ‘acute’ phase. There is some sort of explosion and violence that may be verbal, physical, and/or sexual.
Third, the ‘honeymoon’ phase. There is calm again. The abuser may apologise or pretend like nothing happened and may bring flowers and chocolates. The partner starts to feel relief. That is till the ‘tension-building’ phase begins again.
There is thus a clear difference between common, everyday disputes between couples and domestic violence.
Three things to tell someone who is facing such violence: I believe you / You are not alone /You have options
The writer is a lawyer who focuses on gender and minority issues in the United States and South Asia.