Rape victim’s post-crime trauma, state’s apathy ‘shock’ Delhi court

New DelhiThe post-crime trauma suffered by a teenaged rape victim and her family members and the state’s apathy to their plight has shocked a Delhi court, prompting it to order Rs one lakh as interim compensation to her.

Additional Sessions Judge Kamini Lau expressed shock after finding that the victim had tried to commit suicide by consuming acid, leading to replacement of her food pipe with an artificial one while her father suffered two heart attacks and her mother had to work as a maid to sustain the family with no state aid whatsoever.

“I’m shocked to observe that despite this pathetic state of the victim and her family, who, I find, are feeling a sense of physical and psychological isolation, no assistance has been provided to her by the state,” the judge observed, ordering Delhi Government to award her the compensation, noting the vegetative state the victim has reduced to.

“The victim, who was hardly 14 year old at the time of incident, has now been virtually reduced to a vegetable existence after she consumed acid pursuant to the incident.

“Rape of a minor not only affects her but has also a devastative impact on her entire family, which equally suffers in silence as has happened in the present case,” the court said.

The court’s order came after the girl’s mother approached it along with her daughter to narrate their woes in the wake of the girl’s rape and to apprise it of their inability and unwillingness to fight the case and seek justice.

“The indifference of the state to the plight of victims of rape is writ large since despite innumerable directions of the Supreme Court in this regard (compensation to victims) and the effective scheme for Restorative and Compensatory Justice to rape victims is yet to be put in place,” the court noted.

The Delhi High Court too had earlier ordered the state government to implement a scheme for compensation to such victims.

The court ordered compensation, pointing out that the apex court too had held that subordinate courts trying rape cases have the jurisdiction to award interim compensation as the offence of rape is against the victim’s basic human rights and violation of her fundamental right to life and liberty.

The case dates back to 2007, when the 14-year-old victim had been raped by one Vicky Sain of Vikaspuri police station area in West Delhi. The offender’s sister too faced the charge of abetting the crime by her brother.

The victim, now 18, had allegedly tried to commit suicide after her rape by consuming acid. Though she survived her suicide bid, she suffered extensive damage to her internal system and despite replacement of her food pipe, she is not able to swallow food and speak properly even now. She got no state assistance in the last four years, while undergoing treatment at the All India Institute of Medical Sciences.

“It is cases like these which the Ministry of Women and Child development needs to target for restorative justice so that the medical and legal assistance, besides professional and psychological counselling, shelter and other support is provided to the victim, which, in the present, case has not been done,” the judge said.

Financial ssistance rape victim scheme

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Feed the poor and jail the corrupt

RAJEEV DHAWAN IN THE INDIA TODAY

This has been the year of protest. The Middle East and North African (MENA) countries captured an upsurgence of people. The elections in MENA threw up Islamic successes to remind us that democracy is a barometer not a result. In India, the movement against corruption attracted lakhs, forced the government’s hand on the Lokpal Bill, pressurised a pre-emptive resolution from Parliament on August 28, 2011, and survived strong arm tactics against Anna Hazare and Baba Ramdev and smear campaigns against others.

Institutions

The year has ended with Anna giving up another fast. The UPA outsmarted itself by promising reservations to women, SC, ST, OBC and minorities and Lokayuktas in the states. This khichree proved to be its undoing. It produced an awkward majority in the Lok Sabha and a chaotic carry over to the next year in the Rajya Sabha. The Bill produced an unwieldy Lokpal, testing boiling water with the patently unconstitutional provisions on minority representation and forcing Lokayuktas on the states.

The constitutional challenge is whether popular democracy, elite populism or rabble rousing will destabilise institution based parliamentary democracy? The right to strong protest can never be denied. In December 2011, the Bombay High Court was wholly wrong to say that parallel protest could not take place when Parliament was in session. This is 19th century stuff. Equally the maidan fee should be minimal for non-commercial protest by the poor and well-off alike. To lose the right to aggressive protest is to lose democracy. But, blackmailing democratic institutions into submission and denying discourse is to join the chaos of South and South-East Asia. In rigidly ousting alternative discourse, Anna went overboard.

Anti-corruption cases reached the Supreme Court. The Black Money case set up a powerful monitoring committee of Justices Jeevan Reddy and M. B. Shah to oversee the investigation. The government’s attempt to recall the decision led to a divided court. Ambiguity lives on. The 2G case led to dramatic arrests of the high and mighty. Raja lost his ministership. Many, including Kanimozhi, were held in jail for inordinate, unjustified months until the Supreme Court realised that its own norm was “bail not jail”. While the government protested that the so called loss to the exchequer by the scam was to keep ‘teleprices’ low, the case requires examining the Swan Bid, the first-come-first-get system and other machinations. In the Supreme Court cash- for- votes case, Amar Singh was in the soup – but others escaped the net. Foreign companies were upset when India’s tax authorities commenced investigation against the Vodafone-Hutch deal as a scam. The judgment is awaited.

Santosh Hegde, Karnataka’s Lokayukta who nearly tearfully resigned in July 2010, exposed the CM’s mining lobby to show what an ombudsman can do. But the Karnataka High Court ruled out the Lokayukta’s choice of prosecutor to strengthen demands for an independent investigation, inquiry and prosecution wing for the Lokpal. Rahul Gandhi had proposed a constitutional amendment to incorporate the Lokpal which was produced in record time by law minister Salman Khurshid to be inevitably defeated in the Lok Sabha. Supreme Court proceedings resulting in removing P. J. Thomas as CVC exposed selection procedures for important appointments being far from foolproof or immune from political patronage.

Attempts to impeach high court judges failed. P. D. Dinakaran simply resigned – taking the high ground that the procedure was all wrong. Soumitra Sen got an adverse result from the Rajya Sabha but resigned before he had to face the Lok Sabha. Meanwhile, the government’s Judicial Accountability Bill 2010 has transited through the parliamentary standing committee and was re-tabled by Khurshid on December 21. Judicial corruption exists abundantly. So do increasing levels of judicial incompetence – requiring legislation for proper judicial selection. Over 2011-12. Chief Justice Kapadia will be responsible for replacing 10 judges of the Supreme Court. Retiring judges rush through one year long backlogs of judgments, which suffer from lack of memory and bad note- taking. Judges are over-worked. But judicial standards are falling. Institutions with bad renewal of good people sell their future short.

Policies

The Supreme Court’s direct continuing control over forest and environment has gone on for 15 years and must stop. It has helped the green cover and stopped some slaughter mining. But it must give up this magnum control in favour of what Chief Justice Kapadia calls a proper regulatory authority.

Even though the Supreme Court has not been equitable on rehabilitation and resettlement (R& R) in the Omkareshwar dam case (2011), over the years the court has taken a lead on equitable land acquisition. This year it was through Justice Singhvi, in the UP and other cases. The government took a historic decision to draft the Land Acquisition and Relief and Rehabilitation Bill 2011 (LA and RR) which is a step forward, but full of flaws relating to tribal areas, R& R deficiencies, facilitative acquisition for the private sector and too many exclusions. Chairman of the standing committee, Sumitra Mahajan, has rightly taken the view not to rush through the Bill. The new Mines and Minerals Bill, approved by the standing committee in 2008, underwent changes by the Cabinet on September 30, 2011. Compensation to ‘tribals’ etc will be limited, without the proposed 26 per cent share in the mines to make them exploited labour.

A fantastic Planning Commission (PC) affidavit to the Supreme Court in September 2011 on food entitlements fixed the ` 25 per person per day in rural areas which “ensures the adequacy of actual private expenditureâ on food, education and health”. An embarrassed government backtracked on October 3, 2011 – clarifying that the PC’s view will not be the bases of price fixation or distribution. It seems odd that after so many years we do not know how to identify beneficiaries. The Supreme Court heard the challenges to the Right to Education Act; and judgment is awaited on whether unaided private and minority institutions can be forced to admit poor students in the neighbourhood.

Rights

The Act was flawed. Attorney General Vahanvati has promised amendments. Some are being filtered through Parliament. Socio-economic rights are inadequate. With cold wave deaths and people dying in hospitals, India has a lot to think on socio-economic fronts. Meanwhile, Mullaperiyar signifies that our water disputes are not being solved. Water-man Rajendra Singh persuaded ex-Justice Jeevan Reddy to have a meeting to address pollution and conservation of water through social action because legal action failed. The Supreme Court’s Uphaar decision lowering the damages to victims is all wrong – confusing unjust enrichment and principles of ordinary and exemplary damages.

India’s dichotomous approach to poverty, development and growth emerged at the global environment meet in Durban. The “North” countries want to cap India’s growth because the BRIC countries are economic competitors. When will India put forward a convincing case that with more than 50 per cent of a vulnerable population (larger than most nations) she is still in the process of development? Although India was the benign ‘deal breaker’ to send the Kyoto protocol into another phase, negotiating global multilateral treaties has not been India’s strong point.

The Supreme Court declared the State guerilla Salwa Judum (including children) unconstitutional. The right to display cinema has been thwarted by state governments and public reactions as in the case of Dam 999 about Mullaperiyar. Free speech remains threatened by civil society intolerance. On July 19, 2011, metropolitan magistrate Arul Verma gave a remarkable judgment on the rights of refugees not to be deported without adequate due process.

By contrast, Judge Mukesh Kumar of the Rohini Court, responded to a petition by Mufti Qasmi (formerly of Darul-ul-Uloom of Deoband) by issuing notices to websites to clean ‘offensive’ material from their sites. This is in line with Kapil Sibal’s statements and those of the chairman of the Press Council. But what can be considered “offensive”? And can this censorship be done without authority of law? The tumult of 2011 offers uncertainty to 2012.

– The writer is a Supreme Court lawyer

2011- Year of criticism, from the bench and against it

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS

New DelhiJudicial activism was the key in many Supreme Court observations and judgments during 2011.

2011

CVC THOMAS: A three-judge bench led by CJI SH Kapadia declared “non est” — or nonexistent — the majority recommendation of a high-powered committee for P J Thomas as Central Vigilance Commissioner. The court ruled that the Prime Minister and the Home Minister’s recommendation amounted to “official arbitrariness”, coming in spite of the dissent of the third committee member (the Leader of the Opposition) and without considering the relevant material.

LEADERS vs JUDGES: Rajya Sabha members went on TV to criticise the “growing” cases of corruption among judges and raised a pitch for a Judges Accountability Bill. The CJI responded that an honest judge need not worry about such a bill, and shot back at the parliamentarians for putting all judges in the same category of “corrupt” judges. He went on to issue an open challenge to the lawmakers that if “you” want to dismantle the institution of judiciary, first show how to build a better alternative.

JUDICIAL ACTIVISM: Two back-to-back rulings in July by an SC bench led by Justice Sudershan Reddy were widely criticised as instances of judicial overreach and activism. First, it set up a Special Investigation Team to investigate and bring home back black money abroad. The decision was challenged by the government; a second Bench then reached a split decision. In the other judgment, Justice Reddy ordered the Chhattisgarh government to disband vigilante groups (Salwa Judum) fighting against Naxals, criticising the “new mantra from the mandarins of security and high economic policy of the state — tax breaks for the rich and guns for the youngsters amongst the poor”. The order was later modified. When the controversy was raging, a Bench led by Justice G S Singhvi criticised “some lawyers, journalists and men in public life” for accusing the judiciary of over-reach when it entertains public interest litigations espousing the cause of the poor and downtrodden. “So far, the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent,” the bench said.

2G BAIL: In February, the Supreme Court had exhorted the CBI, “You must catch them all.” Then in November, it criticised a tendency shown by lower courts to deny bail to any of the persons arrested. “Right to bail is not to be denied merely because of the sentiments of the community against the accused,” Justice H L Dattu wrote in his judgment. Five executives of Unitech, Swan Telecom and Reliance ADAG later got bail.

BHOPAL GAS LEAK: On May 12, the Supreme Court threw out the CBI’s curative petition against a 1996 judgment that described the tragedy as an act of negligence and not culpable homicide on the part of Union Carbide staffers. The court refused to take the blame for fact the eight accused had “walked away” with a two-year jail term from the Bhopal chief judicial magistrate’s court, after a 26-year trial.

AMAR SINGH: The Supreme Court’s displeasure at the CBI’s “shoddy” probe in the cash-for-vote case led to the former Samajwadi Party leader’s arrest. And when he decided to remove the Congress’s name from the list of those he accused of tapping his calls, the SC suspected his actual motives. The court further lifted a five-year-old ban on publication of the tapes of those conversations.

Post-GODHRA: The Supreme Court pulled out of monitoring the Ehsaan Jafri case in which Gujarat Chief Minister Narendra Modi and 63 other high functionaries were accused of several offences. It ordered the SIT to present its report before the Gujarat magistrate concerned. It was the only case involving the riots that named Modi directly.

AYODHYA: The Supreme Court re-kindled the 60-year-old dispute when it stayed an Allahabad High Court judgment, calling it a “leap of faith”. The Supreme Court said it found it “strange and surprising” that the High Court had taken it upon itself to “partition” the site.

GRAHAM STAINES: The Supreme Court invited criticism when it confirmed the life sentence awarded to Dara Singh, who burnt alive the Australian missionary and his two sons in 1999. The court cited the reason that the intent was only to teach a lesson to the father about religious conversion. The court later suo motu deleted this portion from the judgment.

NITHARI: A bench led by Justice Markandeya Katju made a decisive comment when it observed that Surendra Koli “appears to be a serial killer”. The court went on to confirm the death penalty awarded to Koli.

EUTHANASIA: The SC for the first time allowed passive euthanasia “under exceptional conditions” and set down guidelines for it. The decision came in the case of nurse Aruna Shanbaug.

ENDOSULFAN: The SC banned the production and sale of endosulfan, a cheap but controversial agrochemical used by farmers, noting that the life of one child is more precious than all the financial losses that industry will incur.

BELLARY: The Supreme Court suspended mining in this district, saying miners’ “greed” has overshot the court’s efforts to balance environmental concerns and development.

2012

26/11: The final hearing on Ajmal Kasab’s appeal against the death penalty will start on January 31. The Supreme Court has suspended the death sentence, saying it would like to hear the plea at length as “due process of law” has to be followed.

AFSPA: The CBI has sought a clarification on the extent of immunity enjoyed by Army personnel under this Act and other laws for fake encounter killings. The agency wants the lifting of an SC stay on the trial in a J&K court relating to the killing of seven youths by the Army.

VODAFONE: A judgment is awaited on the Vodafone tax case, in which the company argues it is not liable to pay capital gains tax because the deal to buy Hutchison’s India operations was done overseas.

N-LIABILITY: A PIL on nuclear liability and safety of plants will be heard. The petition wants an independent safety regulator set up.

END OF TERM: CJI S H Kapadia retires in September.

http://www.expressindia.com/latest-news/Yearofcriticismfromthebenchandagainstit/894536/

The saga of the Lokpal Bill

The saga of the Lokpal Bill

The saga of the Lokpal Bill

PRASHANT BHUSHAN IN THE HINDU

The drama in the Rajya Sabha showed that the UPA government was not willing to go even by the will of Parliament. This gives rise to fundamental questions about the functioning of Indian democracy.

The year 2011 will be remembered in India as the year of the campaign against corruption and for the Jan Lokpal Bill. The campaign began in January 2011 in the backdrop of the publicity that accompanied the several mega-scams that surfaced in 2010, notably those relating to the Commonwealth Games and the telecom spectrum allocations. It caught the public imagination with Anna Hazare‘s fast at Jantar Mantar in New Delhi in April 2011. That forced the UPA government to constitute a joint drafting committee for a Lokpal bill. The civil society representatives in the committee proposed a bill called the Jan Lokpal bill, which became the basis for discussions. The basic principles on which the bill was drafted were culled from the United Nations Convention against Corruption, which required all countries to put in place anti-corruption investigative agencies that would be independent of the executive government and would have the jurisdiction to investigate all public servants for corruption.

The Jan Lokpal Bill thus provided for the selection of a 11-member Lokpal by a broad-based selection committee (comprising the Prime Minister, the Leader of the Opposition, two judges selected by all the judges of the Supreme Court, the Comptroller and Auditor General, the Chief Election Commissioner, the Central Vigilance Commissioner and the previous three chairpersons of the Lokpal), through a transparent process.

It sought to bring the anti-corruption wing of the Central Bureau of Investigation (CBI) under the Lokpal’s administrative control. The Lokpal was to be given corruption investigative jurisdiction over all public servants (including Members of Parliament, judges and all sections of the bureaucracy), and those who may have abetted their acts of corruption (including corporations or non-governmental organisations). The Lokpal could recommend the removal of those officials who were charge sheeted for corruption and order the freezing of any assets that seemed to be acquired by corrupt means.

The Bill sought to provide that corruption trials would be put on the fast track and the courts would determine the loss caused to the public exchequer by an act of corruption — which would be recovered from the corrupt public servants and their abettors. It provided for citizens’ charters to be framed by all public authorities, which would provide for time-bound delivery of public services; failure to do so would be actionable at the hands of officers working under the Lokpal. The bill required States to have Lokayuktas (covering State government officials) on the same lines as the Lokpal.

In order to ensure the integrity of the Lokpal institution, several layers of accountability were sought to be built into its working. Its functioning was made totally transparent by means of a requirement to put every detail of its investigations on a public website after the completion of investigations. The CAG was required to do an annual financial and performance audit of the functioning of the entire Lokpal institution. Any citizen could make a complaint against any member of the Lokpal to the Supreme Court, which had the power to order his or her suspension and even removal.

In addition, there were other important, anti-corruption provisions in the Jan Lokpal Bill. It required every public authority to give out contracts, leases and licences with total transparency and by public auction, unless such procedures were stated to be impossible to undertake. Public servants were barred from taking up jobs with those organisations or companies with which they had been dealing in their official capacity. This was meant to prevent an insidious form of corruption whereby public officials would take jobs instead of bribes from the organisations that they had been patronising in their official capacity.

After nine meetings, the government terminated its engagement with the civil society members of the joint drafting committee and went on to draft and table its own Bill in the monsoon session of Parliament. This Bill incorporated some of the provisions of the Jan Lokpal Bill but fell far short of what was required to even set up an independent and comprehensive anti-corruption investigative organisation. It left the selection of the Lokpal to a government-dominated committee. Though powers for the removal of Lokpal members were vested in the Supreme Court, complaints against the Lokpal could only be made by the government, which retained the power to suspend them.

The government’s Bill removed most public servants from the jurisdiction of the Lokpal, including the Prime Minister, MPs (insofar as their corruption pertained to their actions in Parliament), judges, and Class 2, 3 and 4 officers. Instead, it brought lakhs of NGOs (even those which were not funded by the government) within its jurisdiction.

Though the Bill kept the CBI with the government, it allowed the Lokpal to have its own anti-corruption investigative body. It eliminated the need to get prior sanction for investigation from the government. It provided for the confiscation of the assets of corrupt public servants and the recovery of losses caused by their acts of corruption from them. But it created a terribly cumbersome procedure for investigation, by which a preliminary inquiry and hearing of the corrupt public servant were made compulsory before investigation could begin. This ended the possibility of making surprise raids and seizures on the premises of corrupt public servants or their abettors.

Anna Hazare announced his second round of fasting in protest against this Bill, from August 16. This brought lakhs of people on to the streets across the country, and eventually forced the government to convene a special session of Parliament, where Anna’s three minimal demands were accepted by a unanimous Sense of the House resolution. Thus, all government servants and the citizens’ charter were to be brought under the Lokpal’s jurisdiction. The Bill would provide for Lokayuktas in the States on the same model as the Lokpal. The government promised to bring forward and pass such a strengthened bill in the winter session of Parliament.

Thereafter, the Bill was referred to the Standing Committee of Parliament, which after three months gave a fractured report with many dissenting notes. The Bill, which was reintroduced towards the end of the winter session, not only did not accept the one useful suggestion of the Standing Committee (negating the compulsory step of a preliminary enquiry) but went on to eliminate even the investigative body from the Lokpal. Thus, the Lokpal would not only be selected and suspended by the government, it would also have to rely only on government-controlled investigative organisations for its investigation. Class 3 and 4 officers were still kept out of the Lokpal’s ambit.

Those of us who worked on the mission with Anna Hazare had suggested 34 amendments to rectify the government’s Bill, and we pointed out that four of these were critical to making the Lokpal a workable institution. These were that the selection and removal procedure should be made independent of the government; the CBI should be brought under the Lokpal’s administrative control or, alternatively, the Lokpal should have its own investigative body; all government servants should be brought under the Lokpal’s investigative ambit; and the procedure for investigation should be in line with the normal criminal investigation procedure. But the government was adamant in not accepting any of these either, and went on to bulldoze the passage of its Bill. It rejected all the amendments moved by the Opposition. The Opposition moved several of the amendments suggested by us, but the only amendment that the government accepted was one to allow State governments to decide when the Bill would be applied to them.

The Rajya Sabha witnessed a sordid drama. Several parties which had walked out in the Lok Sabha (the Samajwadi Party and the Bahujan Samaj Party) or had not moved any amendments there (the Trinamool Congress) moved amendments in the Rajya Sabha and their representatives delivered fiery speeches opposing the provisions of the Bill. When it became clear that at least three of the amendments (those relating to the selection and removal of Lokpal members, the CBI being brought under the administrative control of the Lokpal, and the deletion of the chapter on Lokayuktas in the States) were likely to be passed, the government engineered disturbances in the House, resorted to filibustering and prevented the amendments from being voted upon. And the House was prorogued with the Bill hanging in the air.

The government was repeatedly telling us that by proceeding with protests while Parliament was considering the Bill, we were showing contempt for parliamentary democracy. We had responded by pointing out that by overlooking the wishes of the people as expressed in numerous polls, surveys and referendums, all of which showed that more than 80 per cent of the people favoured the Jan Lokpal Bill, the government was showing contempt for the people. The drama in the Rajya Sabha showed that the government was not even willing to go by the will of Parliament. This gives rise to fundamental questions about the functioning of Indian democracy. Is this form of representative democracy allowing the will of the people to be reflected in policy and law-making, or is it being held hostage to parties and their leaderships to be determined by their own whims or corrupt considerations? Has the time come for us to rethink and deepen our democracy by putting in place systems where laws and policies would be decided by decisive inputs of the people (through referendums and gaon sabhas, or village councils) rather than only by such “elected representatives”? We hope that this fundamental issue would bring about an even broader public engagement than what has been witnessed during this Lokpal campaign.

(The author, a Senior Advocate, is a member of Team Anna.)

http://www.thehindu.com/opinion/lead/article2766561.ece?homepage=true