SUPREME COURT ORDERS DELHI GOVERNMENT TO PROVIDE SHELTER TO HOMELESS WITHIN 24 HOURS

New Delhi — As the Indian capital continues to reel under its worst winter in many years, the Indian Supreme Court ordered the National Territory of Delhi government to provide night shelters by Wednesday evening local time to an estimated 150,000 homeless in New Delhi.

The apex court taking note of the plight of the homeless during the extreme old conditions in the Indian capital in its order issued Wednesday said: “The authorities must also ensure that the night shelters have basic amenities such as blankets, electricity and toilets, the apex court ruled.Justices Dalveer Bhandari and K.S. Radhakrishnan told the government representative to immediately advertise the locations of all the night shelters in the capital through television and print media.

Homeless

HOMELESS

The apex court passed the directions on a Public Interest Litigation (PIL) filed by the People’s Union for Civil Liberties (PUCL), complaining that the Delhi administration had failed to provide adequate shelter and food to the homeless and destitute.The court’s ruling applies only to the Indian capital, though it is the poor and homeless across India who are most affected by the intensity of the cold. Each winter, several deaths are reported.In general, central heating in India is unknown.

It is a common sight to see poor people, warming themselves over bonfires, made from scrap paper and broken branches of trees.The poor and the homeless are usually huddled by the authorities into night shelters, which are far from adequate both in numbers and facilities.

The apex court’s order sent top officials in a tizzy. In the past fortnight they drew flak from courts for callously demolishing a couple of temporary night shelters in the name of beautification ahead of the upcoming Commonwealth Games to be held in the Indian capital in October.There are currently 54 night shelters in Delhi. Their combined capacity cannot house even a small fraction of the capital’s estimated 150,000 homeless people.

READ THE ORDER DATED 20.01.2010

SUPREME COURT ORDERS DELHI GOVERNMENT TO PROVIDE SHELTER TO HOMELESS

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Minor offence?

KIRTI SINGH IN FRONTLINE ,  JANUARY  , 16-29 2010

THE molestation case of a minor girl by the former Director General of Police of Haryana, S.P.S. Rathore, reflects in a microcosm many of the ills that plague the criminal justice system in our country. The case highlights the lacunae in both the procedural laws and the substantive laws relating to sexual assault, particularly of minors. It shows how an influential accused can manipulate the legal system. Rathore used his position as a police officer to subvert the law and file false cases against the girl’s brother and reportedly managed to delay the case for several years. Finally, even though he was convicted, Rathore managed to get away with a light sentence, not only because of a judicial mindset but also because the offence of molestation is punishable with only up to two years’ imprisonment.

In fact, amendments to laws relating to sexual offences have not been a priority for successive governments. In spite of repeated suggestions and demands by the All India Democratic Women’s Association (AIDWA) and other women’s groups, governments, including the previous United Progressive Alliance (UPA) government, have refused to amend the century-and-a-half old laws relating to sexual assaults in the Indian Penal Code (IPC).

Women’s organisations and groups have pointed out how the definitions relating to rape, molestation and ‘eve-teasing’ are flawed and not reflective of women’s experience of these crimes. They have also emphasised the urgent need to differentiate between sexual crimes committed against adult women and those committed against minors. The National Women’s Commission has reiterated these demands. The Law Commission has also, in its 172nd report, suggested an overhaul of the substantive and procedural laws dealing with rape, molestation and sexual harassment (popularly known as eve-teasing) against women and children.

The Rathore case highlights how sexual assault is viewed as a trivial crime not only by the law but by many others, including those in positions of authority. Rathore was given two promotions and made Inspector General of Police in 1990 and DGP of Haryana in 1999. The minor girl was molested about 19 years ago, on August 12, 1990, by Rathore, the then Deputy Inspector General (DIG) of Police, in the office of the Haryana Lawn Tennis Association, of which he was the president.

It has been reported that the initial trauma, accompanied by the persistent harassment, led to the girl’s suicide three years after the crime. It is an acknowledged fact that normally the trauma suffered by a minor victim of sexual assault is greater than that suffered by a major. Suggestions have been made in the past that police stations must be associated with doctors and psychologists, who should counsel these victims as soon as possible.

The case involving Rathore was registered 10 years after the incident, after a writ petition was filed in the High Court on the victim’s behalf by her friend’s mother and after an appeal in the Supreme Court. The AIDWA and other women’s organisations and groups have, time and again, complained about the difficulty in registering a first information report (FIR) owing to gender bias and corruption among large sections of the police force. They have demanded that non-registration of an FIR be made an offence.

The Law Commission, in its 83rd report on “Rape and Allied Offences”, suggested that a new section, 166 A, should be added to the IPC to make the police accountable for deliberate inaction and disobedience of law. Therefore, while the Union Home Minister’s reported suggestion to the police to register FIRs immediately is a welcome first step, the criminal law will also have to be amended to make the police culpable.

The case against Rathore was filed under Sections 354 (molestation) and 509 (harassment) of the IPC. No case was filed against him and the other police personnel and others for threatening the victim and her friend and their families. No action was taken against those who filed false cases against the victim’s brother at Rathore’s instance. These illegal acts were completely disregarded by the police machinery and the Haryana government, and no cases were filed against Rathore and those who acted on his behalf for criminal intimidation, conspiracy and filing of false charges under Section 211.

While some FIRs have now been filed against Rathore, and the Central government has made known its intention to fast-track these and other cases of molestation/sexual assault and amend certain other procedural sections, these measures by themselves are not enough to ensure justice to victims of sexual crimes.

It has been argued that for a case of abetment to suicide an intention to abet the suicide is necessary. The abetment should also be proximate in time to the suicide. In Gurbachan Singh vs Satpal Singh, in 1990, the Supreme Court held that persistent ill-treatment of a woman for dowry amounted to abetment to suicide.

In a case in 1989, the Andhra Pradesh High Court held that “the cumulative effect of the incidents of harassment spread over the period after the marriage had to be considered”. Section 107 of the IPC, Explanation 2, states: “[W]hoever… does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

Under Section 354 of the IPC, molestation is defined as “assault or criminal force” by a man with an intention to “outrage the modesty of a woman” or “knowing it to be likely that he will thereby outrage her modesty”. The crime is cognisable and bailable. The section is problematic not only because it is couched in archaic and meaningless language, but also because all forms of sexual assault other than rape have been included in it.

To ensure that the law relating to child sexual abuse is reflective of the exact nature and seriousness of the abuse, AIDWA and others have suggested a number of changes to it. They have suggested that the provision relating to molestation in Section 354 should be amended to redefine molestation as unlawful sexual contact and any man who touches/assaults a woman with a sexual purpose should be liable for imprisonment up to three years and with fine.

They have also suggested that if a child is molested or forced or incited to touch the body of any other person, the imprisonment should extend up to five years along with fine. If the molester is a person who is in a position of trust or authority towards the minor or is a person on whom the minor is dependent, the imprisonment should extend up to seven years. This suggestion should also apply to custodial molestation.

Definition of rape

It has further been recommended that the definition of rape should be enlarged to ensure that some of the forms of child sexual abuse are also considered rape. Such a definition would be in accordance with international legal standards, including the definition of rape by the International Criminal Tribunal for the former Yugoslavia (ICTY). The International Criminal Tribunal for Rwanda (ICTR) has defined rape in even broader terms, as being “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.

Apart from these changes, certain procedural amendments are necessary to ensure justice in cases of child abuse. In Sakshi vs Union of India, the Supreme Court held that a child’s statement should be recorded in court without the child having to face the abuser.

Thus, the court held that a videotaped interview of the child’s statement or the child’s testification behind a screen or via closed-circuit television should be permitted. It further held that the cross examination of a minor should only be carried out by a judge based on written questions from the defence, and that the minor should be given sufficient breaks as and when required.

The Code of Criminal Procedure (Amendment) Act, 2008, which has still not been notified, stipulates that a rape victim’s statement to the police should be recorded by a woman police officer at the victim’s residence or at a place chosen by her, in the presence of her parents or guardians or near-relatives or a social worker of the locality. It further states that the investigation of a child-rape shall be completed within three months and that the trial and inquiry should be completed within a period of two months from the date of commencement of the examination of witnesses. These provisions should extend to all cases of child sexual abuse. In most cases of child abuse, the child is not able to express the exact nature of abuse. It is, therefore, necessary to allow experts such as child psychologists and paediatricians to depose on behalf of the child.

It has been said that the seriousness with which a judge views a crime is reflected in the sentence he awards. Rathore was awarded only a six-month imprisonment, ostensibly because he was old and had been subjected to a prolonged trial. It is ironic that though the accused was reported to be mainly responsible for the delay, the court overlooked this and also the fact that he was not so old that sending him to prison would serve no purpose. In fact, several previous judgments show that rapists and those who have sexually abused children have often got away with fairly light sentences. Apart from a higher maximum, minimum sentences must be prescribed for these offences.

Finally, even though several laws now stipulate time limits within which a case should be tried and the judgment given, these laws are not followed by large sections of the judiciary. The High Courts and the Supreme Court will have to ensure that the time limits are adhered to by censuring errant judges.

Kirti Singh is Legal Convener, All India Democratic Women’s Association.

Source:  http://www.frontlineonnet.com/stories/20100129270201600.htm

The rot within

V. VENKATESAN IN THE FRONTLINE,  JANUARY 16-29 2010

The inordinate delay in the conviction and sentencing of S.P.S. Rathore raises uncomfortable questions about India’s criminal justice system.

THE belated conviction and sentencing of S.P.S. Rathore, former Director General of Police, Haryana, for molesting a minor girl two decades ago has certain lessons for India’s criminal jurisprudence. There was outrage after the trial court’s ruling on December 21 for more than one reason, which included the inordinate delay in the filing of the first information report (FIR) after the incident and the sentence – six months’ imprisonment and a fine of Rs.1,000 – that is lighter than what is warranted under the Indian Penal Code (IPC). Above all was the shocking discovery by civil society that Rathore had evaded all these years charges of harassment of the victim and abetment to her suicide, destruction of evidence and tampering with her post-mortem reports, illegal confinement of her brother and attempt to murder him, criminal conspiracy and misuse of power.

Although the victim made the complaint regarding the offence on August 16, 1990, the FIR was registered only on December 29, 1999. That too only after the intervention of the Punjab and Haryana High Court. This was upheld by the Supreme Court.

An FIR refers to information given by anyone to the officer-in-charge of a police station in relation to the commission of a cognisable offence, and which is first in point of time, and on the strength of which the police begin investigation into that offence. Section 354 (assault or use of criminal force on a woman with intent to outrage her modesty) of the IPC, under which Rathore has been convicted, deals with a cognisable offence. The non-registration of an FIR for nearly a decade after the commission of the crime meant that Rathore could evade arrest and interrogation during that period. Had the FIR been promptly registered before the girl committed suicide in 1993, it is believed, the evidence against Rathore could have been stronger than what the court could rely on after her suicide. Rathore even challenged the authenticity of the victim’s signature on the original complaint submitted to the authorities in 1990. The trial court, however, relied on the evidentiary value of signatures of others on the complaint for basing its conviction.

In order to minimise the chances of the police not filing an FIR against a police officer, Union Home Minister P. Chidambaram, on December 28, urged them to register all complaints as FIRs. The heads of police stations, he pointed out, could be asked to give specific reasons for registration or non-registration of a case after receiving a complaint. Even if a complaint is false, the police have to register an FIR and investigate it before closing it, he advised the States, which have the exclusive responsibility for the police. Chidambaram, however, ruled out any formal advisory to the States on the issue.

Observers suggest that an amendment of the Code of Criminal Procedure (Cr.P.C) to make FIRs mandatory on receipt of a complaint might help. But that would require a huge increase in the number of police personnel, for which the States and the Centre are not ready financially.

It appears, therefore, that the Home Ministry is proposing superficial reforms, which are neither practical nor relevant to address the root cause of cases like that of Rathore who allegedly manipulated the system in his favour. Unfortunately, much of the anger against Rathore has not manifested in terms of a campaign for reforms in the police force.

Most State governments are reluctant to comply with the Supreme Court directives issued in September 2006 in the Prakash Singh case. These directives aim to insulate the police force in the States from political pressure and make it truly professional, besides making legislative changes. Even the Centre has not shown any enthusiasm to carry out police reforms. The court has now set up a monitoring committee with a two-year mandate to report on compliance with its directives.

The six months’ imprisonment and the Rs.1,000 fine for Rathore comes when the maximum punishment under Section 354 of the IPC is two years. The trial court’s justification of the lesser sentence citing the prolonged trial and Rathore’s age (68 years) was least convincing to any observer.

Following the trial court’s judgment, and the uproar in the media and civil society, the Haryana government set up a special investigation team (SIT) to investigate the three fresh FIRs registered on the basis of complaints filed by the victim’s brother and father, and after obtaining legal advice. These FIRs pertain to the non-bailable charge, under Section 306 of the IPC (abetment to suicide), of attempt to murder and harassment of the victim’s brother, doctoring of the post-mortem report of the victim after her suicide.

Rathore has questioned the legality of these FIRs, while seeking anticipatory bail. The Punjab and Haryana High Court and the Supreme Court have reviewed two of these charges and have given relief to Rathore. In the first case, Justice R.C. Kathuria of the Punjab and Haryana High Court quashed an order of the Special Judicial Magistrate, CBI, Ambala, dated October 23, 2001, concluding that a prima facie case for the addition of offence under Section 306 of the IPC was made out against Rathore and, accordingly, directing the committal of the case to the Court of Sessions. Justice Kathuria, while giving relief to Rathore, relied on the fact that at no stage had the victim made any statement to the police during the investigation of the case and that until her death in 1993 she had never come in contact with Rathore directly.

The Judge seems to have overlooked the fact that the police did not investigate the molestation case until 1999 when the FIR was filed and that there was no occasion for the victim to make a statement to the police.

The Special Judicial Magistrate, Central Bureau of Investigation (CBI), Ambala, added the offence under Section 306 IPC in the CBI’s charge sheet on the basis of an application made by Madhu Prakash, the mother of Aradhana, the victim’s friend and an eyewitness to the molestation. In her application, Madhu Prakash stated that the CBI, during the investigation, had recorded the statement of key witnesses, including herself, that Rathore had made life hell for the victim, which led her to commit suicide in 1993. Additionally, it was also submitted that the victim’s brother was falsely implicated in six criminal cases at the behest of Rathore. Of these, the court discharged him in four cases. In the remaining two, the police found that the allegations were not substantiated and dropped the proceedings against him.

More important, it was also brought to the notice of the SJM that the CBI had not examined the victim’s brother and had not taken into account the post-mortem report and the inquest report of the victim. Before the SJM, the CBI contested Madhu Prakash’s application for inclusion of Section 306 of the IPC in its charge sheet because it did not find the applicability of Sections 306 and 509 (word, gesture or act intended to insult the modesty of a woman) against Rathore.

However, the CBI took a different stand before Justice Kathuria. It said the witnesses had said during the investigation that Rathore had indeed harassed the victim, her friend Aradhana and their family members after the molestation incident. The witnesses had also apparently said that the victim could not even visit the nearby market and that it was Aradhana who used to make minor purchases for her. The CBI also said that the fact of the false implication of the victim’s brother in criminal cases and his being beaten up by personnel of the Haryana Police at the behest of Rathore were reported to it.

The Investigating Officer of the CBI verified these statements of witnesses and summed up his findings. First, he said, the victim’s name was struck off from the Sacred Heart School, Chandigarh, in September 1990 because of non-payment of fees from April 1990 onwards. Second, he cited the statements of the victim’s grandfather and two maternal uncles that the victim’s death was from taking weight-reduction medicines, and that they did not suspect the involvement of anyone in her death.

Third, he said that the victim’s brother did not make himself available and hence could not be examined. Fourth, contradicting the statements of the victim’s grandfather and the uncles, he suggested that the cause of the victim’s death, as per chemical examination, was poisoning. Based on the I.O.’s findings, Justice Kathuria concluded that Section 306 did not apply to Rathore.

Did the CBI refuse to include Section 306 in its charge sheet against Rathore under pressure? Former CBI joint director R.M. Singh said his attempts to charge Rathore with abetment to suicide were thwarted. When asked why the CBI, during his term, did not charge Rathore with abetment to suicide of the victim, the CBI’s then Director, R.K. Raghavan, said: “The insinuation that the CBI acted under pressure from the accused is without basis. Whatever decisions were taken were on the basis of facts collected by the Investigating Officer and later subjected to strict legal scrutiny. These decisions have since been upheld by the court.”

On April 12, 2002, the Supreme Court rejected Madhu Prakash’s appeal against Justice Kathuria’s judgment without stating any reasons. Observers point out that both the High Court and the Supreme Court only discharged (and not acquitted after a proper trial) Rathore from Section 306. Therefore, a fresh FIR making the charge of abetment to suicide is valid, they say.

Rathore got relief again from the Supreme Court in 2005, when it set aside the order of the Punjab and Haryana High Court directing the District Judge to conduct an inquiry to ascertain the truth of the averments made by the victim’s brother in his affidavit on December 3, 2001, that he was implicated in false criminal cases and harassed by the police at the instance of Rathore. The High Court had sought to know from Rathore and the Haryana government why they should not be burdened with the compensation awarded to the victim’s brother for the harassment caused to him by falsely implicating him in car theft cases. The Supreme Court gave relief to Rathore on technical grounds by holding that neither the news report (on the basis of which the High Court took suo motu action) nor the judgment discharging the victim’s brother in the car theft cases mentioned Rathore’s involvement. The High Court had deemed it proper to direct an inquiry since the matter was of serious nature involving the violation of the fundamental rights of the victim’s brother.

On January 3, the Central Police Awards Committee of the Ministry of Home Affairs decided to strip Rathore of his Police Medal, awarded in 1985 for meritorious service.

It also took a generic decision to authorise the Ministry to recommend the withdrawal of police medals from all persons who are convicted for moral turpitude and for an act that brings disrespect to the police forces. Union Law Minister M. Veerappa Moily has proposed a new law, Sexual Offences (Special Courts) Bill, 2010, to make character evidence illegal and sexual offences cognisable.

These steps, though important, are inadequate to address the concerns in the aftermath of the Rathore case. In an open letter to Moily on January 5, the representatives of 14 women’s groups and 44 leading women’s activists pointed out that Section 354 of the IPC did not redress sexual harassment of women in public or private spaces. It assumes that only some women and children have modesty and are seen as deserving the protection of law, they said.

They have suggested a gradation of sexual assault which squarely name sexual harassment, molestation, stalking, parading and stripping as sexual violence (not amounting to rape). Hopefully, various civil society groups will seek to influence the government and Parliament to reform suitably the current laws concerning violence against women.

Read the Article at: http://www.frontlineonnet.com/stories/20100129270200900.htm

‘Common people are afraid to approach us’

TOI Crest, 16 January 2010, 11:33am IST

Those who claim to see ghosts will always fear the dark. Babloo – not his real name – has seen the devil and will remain terrorised of it till his last day. A resident of Indira Nagar in Lucknow, the very sight of the colour khaki sends chills down his battered body. He has been seeing psychiatrists and undergoing therapy ever since he spent a harrowing seven days with the police some years ago. But things like a car battery, electricity cables, a cooking heater and pliers still scare the life out of him. When the police let him off – they wanted Babloo to confess to a murder he never committed – his ear lobes were charred, his palms were so swollen that they looked like pillows, and two of his toes had been sliced open after nails were hammered into them. But there are countless others who don’t have to be tortured to fear the police in India. It’s common for Indians to make way for cops when they are behind you, and walk at a safe distance when they are in front of you. Truant children are often threatened with a call to the policeman, as if they were some evil spirit. There is a dread, and it is all pervasive, all encompassing.

“This is because the police have no fear of punishment and there is total lack of accountability ,” says former IPS officer-turned lawyer Y P Singh. “And they are sure that the senior officers will always bail them out.”

Giving a more nuanced view, political scientist Imtiaz Ahmed says, “The explanation for the kind of police we have lies in the fact that we have a colonial police. Neither the structure nor the orientation of the police has changed. The colonial attitude – in which the only interest was to establish their rule at any cost – still persists. The police responds to the government, not to the people.”

He adds, “The police behaves the way it does partly because the recruitment of personnel comes mostly from the dominant castes in each area. For example, the Jats predominate in the Delhi and Haryana units, especially in the constabulary and above. The feudal attitude is there for all to see. They continue to be oppressive, carrying forward the characteristic in their interaction with the public. And the Indian state has become more khaki… The attitudes of dominance and coercion are reflected in various aspects of the state.”

Vikas Narayan Rai, DGP, Haryana Police Academy, feels the police can improve only if society is empowered. “By ’empowered’ I mean they should have the means to assert their legal right. In our country a person feels totally helpless whether he goes to a police station, a court, or a hospital. They should have rights that can be enforced. We have inherited our police from our colonial masters. The same system persists and now that I am associated with police training I realize what kind of training we are giving. They are being trained to deal with criminals and not with common people though 90 per cent of the time they are dealing with citizens . The mindset has to change and the police has to be sensitized, they have to be conditioned to the values of democracy, to the rights of the common citizen. That change of mindset is difficult to achieve after 200 years of colonial rule. But it is possible and it is being done.”

Former police and security supremo Julio Rebeiro has a solution. “It is very simple ,” he said. “The police force should be free from all political interference. Until this is done the force cannot be improved. The crux of the problem is the interference of the politician in the police department. Leave it to the commissioner of police to take all decisions , including transfers and postings from inspectors to deputy commissioners and above. The political godfathers decide the postings for better known reasons and the officers are not interested in serving society . It is time the government wakes up before the situation becomes worse.”

WITH INPUTS FROM REMA NAGARAJAN, S AHMED ALI, RAHUL TRIPATHI, PEVEZ IQBAL SIDDIQUI

http://timesofindia.indiatimes.com/india/Common-people-are-afraid-to-approach-us-/articleshow/5451859.cms

Police State: Terror in Uniform

Anand Soondas , TIMES OF INDIA  Crest,  16 January 2010, 11:33am IST

The youngest of Meera Yadav’s three daughters , Parul, just 4, was still crying, unhappy with the frugal dinner of some rough rice and boiled potatoes, when she heard a soft knock on the rickety tin fence that served as a door for her shapeless little shack. A burly man stood outside, somewhat unsteady on his legs due to what smelled like freshly consumed alcohol. There were two others behind him, laughing at a crude joke one of them had just cracked. “Is that your husband,” asked the first policeman. Before she could answer, they had dragged him out in the open. By now, all the three kids were screaming with fear. The blows kept raining. It stopped long after the villagers in one of Chandigarh’s slums had collected in numbers and gathered enough courage to demand from the assaulters a reason for the battering. It was only the next day that Meera would know what their crime was – her husband had taken off the Shiromani Akali Dal flag someone had planted on the roof of their hut and replaced it with the one belonging to a party he would vote for in the Assembly elections. “But when I rushed to the cops to complain, they pushed me out of the thana. One of them threatened to file a case against me instead,” Meera would later say, shuddering more at the menace in the policemen’s voice than at the incident. “They said the next time I came with a complaint against the goons, they would beat me and the children.” Meera was lucky she didn’t go back to the cops – a mistake Sarita made. The desperate 22-year-old had gone to the Rohtak police station for the umpteenth time, pleading with the officers to let her husband, who was framed in a cooked-up motorcycle theft case, go. It was then that the constables on duty thought they had tolerated her enough. They gang-raped her. Sarita committed suicide at the Haryana police headquarters on June 9, 2008. When her distraught husband and small child sat on a dharna to ask for justice, the police promptly picked them up and had them locked up.

A 45-year-old mother and her 24-year-old son would kill themselves a year later in Jind, Haryana again, unable to take the harassment and torture of the police. “They were just petitioning for action on the murder of my elder son,” Ramdiya said, recounting the death of his wife Dayawanti and son Sandeep in October last year. “Both were forcibly thrown into Ambala jail on August 11, 2009, like hardened criminals. They couldn’t take it anymore. I had such a happy family. I have no one left now. Everybody’s dead.” In neighbouring Punjab, on a cold January day in 2001, Avtar Singh, the only son of his parents, asked three men blocking a narrow Ludhiana street with their car – they were drinking and eating to let him pass. That was an affront police inspector Gurmit Singh Pinky could not digest. He pumped a fistful of bullets into the young man’s chest. Equally heinous was the case of Swaran Singh Hundal, who killed promising folk singer Dilshad Akhtar with an AK-47 after the artist declined to sing a song the cop wanted him to. Hundal was dismissed from service and was jailed for a while, but the police top brass later reinstated him and the killer retired as DSP in 2002. It’s a different matter that Hundal, who was charged in other cases as well, committed suicide in 2008.

SWAGGER OF THE DEPRAVED

But if what Pinky and Hundal did was dastardly, Ajit Singh Bains, a retired judge of the Punjab and Haryana high court, recounts a horrifying incident which was depraved. “In October 1991, some policemen killed a one-and-a-half-year-old baby and seven other members of the family, including three women,” he said.”Their method of murder was atrocious and they actually peeled off the victims’ skin and poured hot tar and diesel on their wounds. No action was taken against these cops.”

There’s an unmistakable swagger in modern day cops as they increasingly turn into a brutal and brutalising force. Armed with the knowledge that a mostly corrupt lot of MPs, MLAs and ministers, with skeletons in their own cupboards, will not be able to wield the moral lathi to rein them in, the conduct of officers and even lower-ranked men in the police has only become more brazen, more bizarre. It is perhaps this that allows men like SPS Rathore to believe they can first molest a young girl and then browbeat her family into submission. And the way the former Haryana DGP turned the entire system into accomplices – ministers, local netas, school authorities, his minions in the department – as he hounded Ruchika Girhotra into committing suicide is a case study of how top cops have the power to do what they want with the lives of the truly disenfranchised, which in India is anyone who doesn’t have a real “connection” to make his voice heard.

The Rathore shame – his cronies during a torture session went to the extent of offering Ruchika’s brother urine when he asked for water – played out even as a Rajasthani tribal woman, who was allegedly raped by a police officer 13 years ago, cried again for justice. The case involved a former DIG of Rajasthan police, Madhukar Tandon, who took advantage of his influence and managed to evade the law for 13 years. After the ongoing hue and cry over the Ruchika case, and subsequent protests by the Alwar-based victim, the state government appointed teams to nab the culprit. Not surprisingly, Tandon has managed to evade arrest. It is also this cocky belligerence that allows a DGP like B B Mohanty to indefinitely shield his son, Bitti, accused of raping a German tourist in Rajasthan. And though the government of Naveen Patnaik suspended Mohanty, who was heading the home guards then, the punishment was revoked later. Bitti, granted a 14-day parole on November 20, 2006, jumped it and has been on the loose since.

Or take the case of the string of officers who played host to fake stamps kingpin Abdul Karim Telgi, even offering him chicken biryani once while he was in their custody. Something which was never reported, but widely heard by crime reporters doing the rounds of the Crawford Market police headquarters in Mumbai, was that the wife of a police commissioner in the ’90s would book a room in a city hotel once every month for officers under her husband to come with their “collections” of the last 30 days. So confident are cops that they can get away with anything, they don’t seem to care a whit about normal ethics or morality- like the Mumbai policemen who were caught having fun at a Christmas-eve party sponsored by the Chhota Rajan gang. An embarrassed Ashok Chavan government in Maharashtra quickly suspended five errant men, among them DCP V N Salve and ACP Prakash Wani.

NOXIOUS NEXUS

In all this, what is most disconcerting is the parallel business policemen, across ranks and departments, run in the name of dispensing justice or tackling crime. A textile businessman’s vehicle was recently stopped in Mumbai by cops who wanted him to pay them hafta (protection money). The police had already gathered information on him from his rivals and demanded Rs 2.5 lakh every month. The deal did not work out and soon the businessman was booked for “carrying arms”.

“I know of several instances where our own personnel pursue business interests with people of questionable background,” a senior officer admitted wryly. IPS officerturned-lawyer Y P Singh said, “They do this because they have no fear of punishment and there is total lack of accountability. Plus, they are sure that seniors will support them.”

The arrest of encounter specialist Pradeep Sharma, with whom the law finally caught up for staging fake encounters, is a case in point. “He had a free run till some years ago,’’ a colleague said. “Senior police officers gave him the go-ahead for encounters without ascertaining the real reason. He was running a parallel force. Sharma, in return, helped his friends get plum postings through his political connections.”

Then there was a builder who got his rival booked through IPS officer Bipin Bihari for attempted murder. “We took action by suspending the team involved. But I agree that they believed they could manage the criminal justice system. It is alarming that officers are being used to settle scores,” a senior police officer said.

COWERING POOR

But it is the poor across India who are most at risk from a rampaging force. It is they who cower, almost at all times, from the unpredictable, brute violence the men in uniform are capable of unleashing. K Guruviah, a farmer, and his wife Angammal, of M Kallupatti near Usilampatti in Tamil Nadu, were picked up by the police in July 1998 on the suspicion that they had received some stolen goods from a gang of thieves. Both were tortured for seven days, and at Oomachikulam police station they were undressed and made to simulate sex in the presence of police officials. Some of them later physically abused Angammal. Guruviah died moments after he was admitted to hospital.

Far from Chennai, Rajendra Yadav, a resident of Telari in Jharkhand, was taken into custody by the Chhatarpur police on December 30 last year. There was no arrest warrant. Barely 24 hours after he was taken to IPS officer Jatin Narwal’s residence in Palamau — where he complained of severe stomach pain — he was dead. A postmortem revealed severe assault had led to his death.

In the infamous and widely-publicised Rizwanur Rahman case, Justice Dipankar Dutta of Calcutta high court said, “It is an inescapable conclusion that there are two police stations. Lalbazar (police headquarters) is for the influential ones. And local police stations are for the aam aadmi. It is disgraceful that people have to knock on the high court’s door to lodge an FIR.”

Rahman, who was in love with Priyanka, the daughter of industrialist Ashok Todi, was found dead on the railway tracks on the outskirts of Kolkata on September 21, 2007. The CBI named seven accused in its chargesheet — Ashok Todi, his brothers Pradip and Anil Saraogi, IPS officer Ajoy Kumar, police officers Sukanti Chakraborti and Krishnendu Das, and S K Moinuddin alias Pappu, a social worker. In an equally shocking incident, Kaimur district police, in Bihar, procured arrest warrants against six-year-old Chaniya Khatun and her five-year-old sister Soni after they found them “guilty of killing” their 18-year-old sister-in-law for dowry last July.

It’s probably worse in the northeast, where the mainstream media doesn’t really reach, and people remain cut off from “mainland India” due to culture, infrastructure and distance. A startling 150 people were allegedly killed in fake encounters by Manipur Police Commandos last year alone. Police excesses in the state known for its rampant extra-judicial killings grabbed national attention when Chungkham Sanjit Singh, a reformed militant, was shot dead in Imphal on July 23, 2009 in broad daylight. A photographer captured the murder on camera and the photos found their way to magazines and newspapers across the country. Though the police claimed Sanjit had a gun, the images clearly showed an unarmed Sanjit talking politely to police commandos minutes before he was dragged inside a pharmacy. Besides Singh, a pregnant Rabina Devi was also killed.

The national capital Delhi is no better. Recently, a head constable beat up a 17-yearold boy, accused of stealing a mobile phone, so badly that he succumbed to his injuries. American journalist Jose Elliott had a taste of the Indian police’s barbarity when he was allegedly beaten up by men at the Hazrat Nizamuddin police station on October 8 last year. Elliott claimed cops thrashed him for “intervening” when someone was being kicked around.

Amazingly, Delhi Police officers told TOICrest there is “minimum cruelty and highhandedness” that can actually be attributed to their personnel. “We keep sanitizing our force. They are always being trained in manners and courtesy,’’ a senior officer said. “There is hardly any case in which a wrong person has been framed or jailed.” Tell that to Meera Yadav, Chungkham Sanjit’s bereaved family, Ruchika’s distraught brother, Sarita’s orphaned child and the countless others who are kicked and shoved around.

WITH INPUTS FROM RAHUL TRIPATHI, S AHMED ALI, K PRAVEEN KUMAR, RAJ KUMAR, SANJAY SHARMA, OINAM SUNIL, IP SINGH, JAIDEEP DEOGHARIA, ARNAB GANGULY, AKHILESH SINGH, SOUMITTRA S BOSE

http://timesofindia.indiatimes.com/india/Police-State-Terror-in-Uniform/articleshow/5451782.cms

Minimum wage for all workers, all jobs in unorganised sector

INDIAN EXPRESS

In a fresh attempt to ensure minimum wage for all 34 crore workers in the unorganised sector, the labour ministry has proposed changes in the Minimum Wage Act to allow each job — besides those listed by the Centre and the states — to be covered by the Act.The amendment, to be introduced in the forthcoming Budget Session, proposes that every worker be paid the higher of the two — lowest wage fixed for an unskilled worker or the National Floor Level Minimum Wage — for “any employment other than that covered in the Schedule”.

At present, the Centre and states are empowered to notify any job in the Schedule only when the number of employees is 1,000 or more. There are 45 jobs identified in the Centre’s agricultural and non-agricultural lists while states have as high as 1,596.“With the proposed inclusion of ‘any other employment’ in the Schedule, the provision in Section 3 (1A) restricting addition of employment in the Schedule to 1,000 workers or more becomes infructuous. Hence, it is proposed to be deleted,” says the Cabinet proposal which has the consent of the law ministry.In September 2007, the UPA government dropped a proposal for a national minimum wage for all jobs and retained only social security provisions while introducing the Unorganised Sector Workers’ Social Security Bill.On an average, unorganised sector workers do not earn more than Rs 50 per day while the national floor of minimum wage, last revised in November, is Rs 100. There are over 34 crore workers in this sector of which around 22 crore are in the agricultural sector.

These include home-based workers, employees in household enterprises or small units, agricultural workers, labour on construction sites, domestic work, and other forms of casual or temporary employees, including teachers. While pushing for a minimum wage, the ministry has proposed uniform wage for adult, adolescent, children and apprentices as a differential wage rate provide a cover to the employer to short-change temporary workers.The wages would have to be revised every two years if a state does not provide a dearness allowance that is reviewed every six months. States which give special allowances fully linked to the consumer price index would have the freedom to fix the floor wage every five years.The proposed changes would levy heavy penalty on cheating employers. The fine is proposed to be raised to Rs 5,000 from current Rs 500 with the possibility of a six-month jail. For the second offence, fine would be up to Rs 10,000 or one year imprisonment or both. Those who violate the provisions of the Act — that is do not maintain employment register, do not provide employment card or salary slips — would be fined Rs 5,000 for the first offence and up to Rs 10,000 for subsequent contraventions.

The case of soiled hands

M J Antony / New Delhi January 13, 2010, 0:09 IST

The growing tribe of litigants who pollute the fountain of justice worries the Supreme Court

We are told to disclose the full truth to doctors and lawyers, and never tell lies or suggest falsehood to them. But the courts are left out. That is perhaps why the Supreme Court lamented recently that the tribe of litigants who have no respect for truth has increased over the last four decades. No prize for guessing who advises these litigants. The problem must be quite serious because the judgment delivered last month in the Dalip Singh vs State of UP case is prefaced with long passages on the fall in standards from the Gandhian precepts. It says in part: “For many centuries, Indian society cherished two basic values of life, that is satya (truth) and ahimsa (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice delivery system which was in vogue in pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, the post-Independence period has seen drastic changes in our value system. Those involved in litigation do not hesitate to take shelter in falsehood, misrepresentation and suppression of facts in the court proceedings.”

Perceiving this trend, the courts have evolved new rules, and it is now well established that a “litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.” However, the problem has not gone away.

It has deep roots in the judicial system.

Every year, a few cases in which unscrupulous litigants are found abusing the process of the courts reach the apex court. The situation in the courts below must be worse. In 2008, the court stated that if the litigant has not approached it “with clean hands”, not candidly disclosed all the facts he is aware of and intends to delay the proceedings, he would be kept out of the system (Sunil Poddar vs Union Bank of India). This was reiterated in several other cases.

In the present case, a landowner who was told to surrender surplus land under the UP Imposition of Ceiling on Land Holdings Act could delay the proceedings since 1975 till his death, when his legal representatives took over the litigation. It ended last month in the Supreme Court, but not before depriving hundreds of landless persons of the benefit of the law. The failure of land reforms may be attributed to several other causes, but litigation is one sure bet for delaying the surrender and enjoying the land for three generations, as in this case. The grandson’s main argument was that his ancestor did not get notice of the proceedings under the law and, in any case, he was too ill to present himself before the authorities.

Disbelieving all these, the Supreme Court remarked: “We are amazed at the audacity with which the grandson could make a patently false statement on oath… The efforts to mislead the authorities and the courts have transmitted through three generations and the conduct is reprehensible.” They belong to the category of persons who not only attempt but succeed in “polluting the course of justice”.

The cases above are hard cases, but there are grey and white lies too. How deep must be the stain on the hands of the litigant to disentitle him to enter the portals of the court? Two years ago, the court asked itself, “Even if the dirt is removed and the hands become clean, would the relief sought for be still denied?”

In the Arunima Baruah vs Union of India case, an employee hid the fact that she had moved the district court when she tried a gamble in the Delhi High Court at the same time. The high court dismissed her writ petition as she was found “forum shopping”. However, on appeal, the Supreme Court was lenient towards her. It said that the right to move a court was a human right and if she was shut out from its doors, there might be grave injustice in individual cases. According to it, the suppression of “material facts” alone would disentitle a person from moving the court. But material facts depend upon individual cases.

The English courts seem to have confronted this dilemma a hundred years ago. Discussing the judgments there, one of the jurists said: “The absence of clean hands is of no account unless the depravity, the dirt on the hand in question, has an immediate and necessary relation to the equity sought for.” The clean-hand rule cannot be either precise or capable of satisfactory operation.