Law Resoursce India New Delhi 04/11/2014
In view of the order dated 26 July 2012 in Criminal Appeal 135/2010 – Budhadev Karmaskar vs State of West Bengal & Ors the present debate and controversy stirred up by the NCW Chairperson Lalita Kumarmanglam on Legalization of sex trade is a contempt of Supreme Court Orders. The National Commission of Women has been a party to the case and are aware of the Bench clarification dated 26 July 2012.
Speaking to the Times Of India she said that “I will only speak about the issue after the national consultation on November 8,” . “It is my personal and professional view that sex work should be legalized but the commission must make an informed decision and I am open to listening to all views. I will be using a lot of time next week to hold informal consultations on the issue, talking to all advocacy groups and others to understand what their apprehensions are.”
On October 28, Kumaramangalam told a daily that legalization will bring down trafficking of women and lower the incidence of HIV and other sexually-transmitted diseases. She also said she intends to put forth the proposal at the November 8 meet of the SC appointed Panel.
Bharti Dey of Durbar Mahila which supports the Legalisation Debate has stated “Police very often get paid to let off traffickers. Regulation will decriminalize the trade,” says Dey, whose organization currently runs self-regulation units and has sent at least eight traffickers to jail. She also points out that many of those entering the profession are extremely poor, have few options and know what they are getting into. “But they make it to our communities through traffickers and middlemen. Legalizing will remove these middlemen,” she says.
Supreme Court Lawyer and President of Shakti Vahini Ravi Kant while opposing the statement of the NCW Chairperson statement stated “Prostitution is Organised Crime and Violation of Fundamental Rights. Trafficking and sexual slavery is worst form of Human Rights Violation. No women joins this inhuman trade out of choice. More then 95% of the women have been trafficked and forced into the sex trade”.
He further elaborated that ” Immoral Traffic Prevention Act 1956 criminalises the organised crime of Prostitution. Organised Prostitution creates a demand for young girls for the brothels which is met by trafficking of minor girls from across the Country.Giving Prostituion a legal status will be giving boost to demand of young minor girls who will be trafficked. In countries where such legalization has happened it has led to exploitation of women and girls and also commodification of women bodies.
He added that there here is no doubt that women who have been caught in the sex trade need access to all Government facilities and schemes and efforts must be made to see that they join the mainstream and are properly rehabilitated. Also those who indulge in this organised crime of human trafficking which leads to kidnapping of young girls from across the country need to be properly punished.
On the role of the Governmental agencies he lamented “The sad part is that inspite of various recommendations from the Supreme Court in various cases no geniune efforts have been made by any Government to see that this social malice which results from Organised Crime be eradicated”.
Kant further stated “The statement of the National Commission for Women Chairperson for legalising prostitution is deplorable. It is time that the Government of India ammends the Immoral Traffic Prevention Act and brings in harsher punishments to the people who are involved in this organised crime”.
The Supreme Court in its order dated 26 July 2012 has clarified that its endeavor to provide right to life and access to governmental schemes should not be construed as an encouragement to prostitution. The clarification had come from a bench of Justices Altamas Kabir and Gyan Sudha Mishra after additional solicitor general P P Malhotra had drawn the court’s attention to its July 19 order in which it had sought suggestions from the SC-constituted panel on creating “conditions conducive for sex workers who wish to continue working as sex workers with dignity”.
Malhotra had said there was a danger of the order being construed as an incentive to indulge in an activity that had been termed as an offence under the Immoral Traffic Prevention Act, 1956.
The Judges on the bench passed had passed separate orders, but both meant to clarify that the panel would recommend steps to create “conditions conducive for sex workers to live with dignity as per provisions of the Constitution Article 21”.
Justice Kabir added a precautionary clarification — “The above modification should not be construed to mean any attempt made to encourage prostitution.”
Hearing the Petition Justice Mishra had clarified, “I prefer to add…sex workers have a right to live with dignity but the collective endeavour must be on part of the sex workers to give up the trade in case they are given alternate platform.”
The Detailed Order of the Bench Dated 26 /07/2012 is as follows :
1. CRLMP.NO.12415 of 2012, has been filed on behalf of the Union of India, for modification of the order passed by this Court on 19th July, 2011, referring certain issues to the Committee which had been constituted by the said order itself.
2. The first modification sought by the Union of India is for deletion of the Durbar Mahila Samanwaya Samiti, from the panel. The second modification sought is with regard to the third term of reference, which reads as follows:-
(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
3. Appearing in support of the application, the learned ASG, Mr. P.P. Malhotra, submitted that the Samiti in question had been actively advocating the revocation of the Immoral Traffic(Prevention) Act, 1956, and had also been advocating the recognition of sex trade being continued by sex workers. The learned ASG submitted that the continuance of such Samiti in the panel is giving a wrong impression to the public that the Union of India was also inclined to think on similar lines. The learned ASG submitted that this wrong impression should be removed by excluding the Samiti from the panel.
4. As far as the second issue is concerned, the learned ASG submitted that wording of such reference could be suitably modified so as not to give an impression that the Union of India was in favour of encouraging the sex workers, in contravention of the provisions of the aforesaid Act.
5. We have heard Mr. Pradip Ghosh, learned senior advocate and Chairman of the Committee, as also learned senior advocate, Mr. Jayant Bhushan, who is also a member of the Committee and its co- Chairman and Mr. Grover, learned senior advocate, on the issue.
6. It has been submitted by Mr. Ghosh that at the meetings of the Committee, the members of the Samiti had contributed a great deal towards the understanding of the problems of the sex workers and it was not as if the said Samiti was encouraging sex trade, but were providing valuable inputs into the problems being faced by people engaged in the trade. Mr. Ghosh, Mr. Grover, and Mr. Bhushan, in one voice urged that the presence of the Samiti in the Committee was necessary even to function as a sounding board in respect of the problems that are faced by this marginalised and unfortunate section of society.
7. We agree with the submissions made by Mr. Ghosh, Mr. Grover and Mr. Bhushan, learned senior counsel, and are not, therefore, inclined to delete the Samiti from the Committee, as prayed for by the Union of India, and such prayer is rejected.
8. As to the second issue, it will not in any way make any difference to the terms of reference, if the wording of the third term of reference, is modified to the following effect:-
“Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”
9. The above modification, should not, however, be construed to mean that by this order, any attempt is being made to encourage prostitution in any way.
10. CRLMP.NO.12415 of 2012, is, therefore, disposed of in term of the aforesaid order.
11. Let this matter now be listed for consideration of the Sixth and Seventh Interim Reports, filed by the Committee, on 22nd August, 2012, at 3.00 p.m.
12. Let this Bench be reconstituted on the said date and time for the aforesaid purpose.
.………………J. (ALTAMAS KABIR) NEW DELHI; JULY 26, 2012.
1. While concurring with the views of my learned brother Justice Altamas Kabir, I prefer to add in regard to the second issue that this Court should not be misunderstood to encourage the practice of flesh trade or advocate the recognition of sex trade merely because it has raised the issue to emphasize the rehabilitation aspect of the sex workers, for which this Court had taken the initiative right at the threshold. I consider this essential in order to allay any apprehension which prompted the Union of India to move this application for modification, by highlighting that the sex workers although have a right to live with dignity as the society is aware that they are forced to continue with this trade under compulsions since they have no alternative source of livelihood, collective endeavour should be there on the part of the Court and all concerned who have joined this cause as also the sex workers themselves to give up this heinous profession of flesh trade by providing the destitute and physically abused women an alternative forum for employment and resettlement in order to be able to rehabilitate themselves. I, therefore, wish to reiterate by way of abundant caution that this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner even when it had stated earlier in its terms of reference regarding conditions conducive for sex workers who wish to continue working as sex workers with dignity.
2. Thus, when we modify the earlier term of reference and state regarding conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution, the same may not be interpreted or construed so as to create an impression or draw inference that this Court in any way is encouraging the sex workers to continue with their profession of flesh trade by providing facilities to them when it is merely making an effort to advocate the cause of offering an alternative source of employment to those sex workers who are keen for rehabilitation. When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State Authorities to provide facilities to those sex workers who wish to promote their profession of sex trade for earning their livelihood, except of course the basic amenities for a dignified life, as this was certainly not the intention of this Court even when the term of reference was framed earlier.
3. We, therefore, wish to be understood that we confine ourselves to the efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above.
J (GYAN SUDHA MISRA) New Delhi, July 26, 2012
A Colloquium on human trafficking was organised on Sunday by the state legal services authorities of Punjab, Haryana and UT Chandigarh, in collaboration with the governments of Punjab and Haryana. The event was held at the Chandigarh Judicial Academy and was sponsored by the Union Ministry of Home Affairs.
Eminent speakers and chief guest, Jasbir Singh, Acting Chief Justice of the Punjab and Haryana High Court, discussed concerns related to human trafficking and the possible ways to curb it. Speaking on the occasion, P M Nair, special Director General of CRPF, explained the dimensions, challenges and existing responses on human trafficking. He presented a documentary made by the United Nations, with him as the project head, featuring real life cases of children who were traded for money and appeals made by Bollywood actors like Amitabh Bachchan, John Abraham and Preity Zinta to stop human trafficking.
Shanta Sinha, Chairperson of the National Commission for Protection of Child Rights (NCPCR) and Ravi Kant, President of Sakti Vahini, a Non Governmental Organisation, emphasized that the present legal framework against human trafficking has loopholes and more stringent laws need to be developed. Sinha said that about 80 percent of the present child labour force is employed in the agricultural sector as only 65 procedures are prohibited by the Child Labour Act in India. This leads to more trafficking of children for agricultural sector and work at home based units. Ravi Kant applauded the recent order passed by the Punjab and Haryana High Court to register FIRs for all missing children.
U Sarathchandran, member, Secretary of National Legal Services Authority, New Delhi, elucidated the role of the judiciary along with cases of human trafficking from Bihar and Madhya Pradesh, which were caught and duly handled by the judicial authorities. Justice Roshan Dalvi of Mumbai High Court and Swati Chauhan, Judge at the Family Court, Mumbai, threw light on the legal provisions against trafficking and protection of victims alongwith the prosecution of traffickers.
In his address, Acting Chief Justice of the Punjab and Haryana High court, Jasbir Singh, said, “It is shameful that human beings are treated as commodities today. It’s a gross disruption in moral values and righteousness”. He added that in this regard there is a need to follow the principle of four Ps- prohibition, prevention, prosecution and partnership.
The colloquium was attended by a gathering of more than 500 jurists and other members of the judicial fraternity.
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.”
The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children.
Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.
The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court.
An offence is treated as “aggravated” when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc.
Punishments for Offences covered in the Act are:
- Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
- Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
- Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine (Section 8 )
- Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)
- Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)
- Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))
The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:
- Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector
- No child to be detained in the police station in the night for any reason.
- Police officer to not be in uniform while recording the statement of the child
- The statement of the child to be recorded as spoken by the child
- Assistance of an interpreter or translator or an expert as per the need of the child
- Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled
- Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
- In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
- Frequent breaks for the child during trial
- Child not to be called repeatedly to testify
- No aggressive questioning or character assassination of the child
- In-camera trial of cases
The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).
The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.
For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.
To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.
The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.
The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.
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.
A.G. NOORANI IN THE FRONTLINE
The appointment of Justice Markandey Katju, a former judge of the Supreme Court, as Chairman of the Press Council of India is about the best thing that has happened to that body in a long while. It is no exaggeration to say that the PCI commands little prestige today and less relevance. It is not representative of the press at all. What Justice Katju has done, in a few days after his appointment, is to infuse life into it and involve the press in its work. This is a good step towards making the media feel that it is their institution.
It is a liberal approach, which he expounded in a get-together with mediapersons at his residence on October 10. “There are two ways to remove these defects in the media. One is the democratic way, that is, through discussions, consultations and persuasion – which is the method I prefer. The other way is by using harsh measures against the media, for example, by imposing heavy fines on defaulters, stopping government advertisements to them, suspending their licences, and so on.
“In a democracy we should first try the first method to rectify the defects through the democratic method. For this purpose, I have decided to have regular get-togethers with the media, including the electronic media, so that we can all introspect and ourselves find out ways and means to rectify the defect in the media, rather than this being done by some government authority or external agency. I propose to have such get-togethers once every two or three months, at which we will discuss issues relating to the media and try to think of how we can improve the performance of the media so that it may win the respect and confidence of the people.
“If the media prove incorrigible, harsh measures may be required. But in my opinion, that should be done only as a last resort and in extreme situations. Ordinarily, we should first try to resolve issues through discussion, consultation and self-regulation. That is the approach which should be first tried in a democracy. I, therefore, request the Union government to defer the implementation of its recent decision regarding news channel licences, so that we can ourselves discuss the issue thoroughly, and ourselves take corrective measures. “Till now the function of the Press Council was only adjudication. I intend to make the Press Council an instrument of mediation in addition, which is in my opinion the democratic approach” ( The Hindu, October 22, 2011).But the archaic Press Council Act, 1978, is most unsuited to serve as a platform for such an imaginative enterprise. It was atrophied at its very birth by imposing (Section 5 (3)) a strange composition of the Press Council, which ensures its own irrelevance and cynicism by the press.
Justice Katju rightly holds that the electronic media should also be brought within the remit of the Press Council. Indeed, failure to do so would violate the constitutional guarantee of equality (Article 14). Equals must be treated alike. Cinematograph films are different in that, unlike the print and electronic media, they are subject to pre-censorship. A ramshackle system of supposedly quasi-judicial institutions is set up by the Cinematograph Act, 1952. Meanwhile, the electronic media roams at large like a rogue elephant.
However, if television is to be brought within the purview of the Act of 1978, as it must be, the statute will have to undergo a drastic overhaul beginning with its title. The composition of the PCI must be changed fundamentally. This would provide an excellent opportunity for reform, in which Justice Katju’s PCI can perform the role he promises as an instrument of mediation. But 2011 is not 1978. The media are more assertive. No reform will be acceptable or will work unless it is based on the largest measure of consensus in the print as well as the electronic media.
To begin with, the PCI’s composition must change. Names need not be mentioned, but it is well known that over the years it has had members whose presence on the Council was nothing short of scandalous. Members of the print and electronic media should put their heads together to ensure that the PCI truly represents the media.
Justice Katju might propose a radical change. The PCI should no longer be headed by a former judge of the Supreme Court but by a person elected by the media itself. Appointment of a judge by the government adds an “outside” element to what is a “Court of Honour” comprising the media, mandated to discipline its own erring members. The task will be more effectively performed if the PCI represents both the wings of the media, print and electronic, and is headed by one of their own.
Bar a few honourable exceptions, the former Supreme Court judges who served as Chairmen did poor service to the PCI and brought little credit to themselves. What is it that inspired a former judge of the Supreme Court presiding over the Press Council, Justice N. Rajagopala Iyengar, to write to V.C. Shukla, easily the most despicable Minister for Information and Broadcasting we have ever had, on August 13, 1975, during the Emergency, confidentially in this conspiratorial vein: “You remember I spoke to you about the desire of some members to have a meeting convened for the purpose of discussing the Emergency and the Censorship. I had an informal meeting of the Delhi-based members and I was able to convince them that this is not necessary or desirable. So this will not figure in [sic] the agenda of my meeting that is being called” ( White Paper on Misuse of Mass Media during the Internal Emergency; Government of India; August 1977; page 40). The context brings out the betrayal by the PCI Chairman. Kuldip Nayar had proposed a resolution condemning restrictions on the press. The judge, a custodian of press freedom as the PCI’s head, not only sabotaged the move but wrote to the Minister about his brilliant piece of work to earn brownie points.
Justice R.S. Sarkaria was another favourite. He was appointed on a Commission of Inquiry in 1976 against the Chief Minister of Tamil Nadu, M. Karunanidhi; as head of the Commission on Centre-State Relations in 1983, along with two former bureaucrats, to deliver the desired report; and later as Chairman of the PCI, in recognition of his high services to the state. In 1990, participants at a seminar were shocked to hear him argue that it took the United States 200 years to acquire a law on the freedom of information. Fortunately, we did not wait for those 200 years. But his worst abdication of duty lay in entertaining an oral complaint by the Army on press reportage on Kashmir. It included reports of alleged rapes of 31 women by army personnel during the night of February 23-24, 1991. A probe into the veracity of such a report is one for a Commission of Inquiry to undertake; surely not for the Press Council of India. Besides, Regulation 4 of the Press Council (Procedure for Inquiry) Regulations, 1979, binds the PCI to reject any complaint that is not in writing and does not contain the details required under Regulation 3. The upshot was a report by B.G. Verghese, which lies discredited today.
The State Human Rights Commission of Kashmir announced on October 19, 2011, that it would probe afresh the Kunan Poshpora rapes. The press reported more than once intercession by the village elders to get the victims married. So much for Verghese’s denial of the charges (vide the writer’s “Exceeding the Brief”, Frontline, October 12, 1991). The Secretary of the PCI was instructed to invoke, in the teeth of Regulations 3 and 4, Regulation 15, which enables inquiries “to regulate their own procedure in respect of any matter for which no provisions or inadequate provision is made”, Regulation 4 notwithstanding. Verghese’s report was widely distributed by the Government of India. All this under Sarkaria’s watch.
Abdication of duty
Justice P.B. Sawant had his own demons to slaughter. The nadir was reached in the case of the brave human rights activist Ravi Nair, whose patriotism was impugned by a newspaper. “The committee (of inquiry) considered the records carefully. It noted that the impugned report was based on the information given to the newspaper by the governmental agencies, the names of which the respondent-newspaper had disclosed in his written statement. The committee further noted that the newspaper had offered to publish the retraction if the complainant could get a declaration from the governmental agencies. It further noted the apparent contradiction between the statements made by the complainant in his complaint and the letter written by him to the editor in regard to the correspondent’s effort to verify the facts from the complainant. In the circumstances, the committee felt that the impugned report was based on the information received by the respondent-newspaper from authentic sources and, therefore, there was no substance in the complaint. The committee decided to recommend to the Council, to dismiss the complaint.” The PCI accepted this. Its Chairman was Justice (retd) P.B. Sawant.
This was a gross abdication of duty. The PCI is enjoined to probe for itself and require the paper to justify its smear. The effect is obvious. If the agencies plant a story – as they do every now and then – the complainant will need an exoneration “from the governmental agencies” themselves. A person who has such an outlook is unfit to be Chairman of the PCI.
Justice Katju’s immediate predecessor did not cover himself with glory either. He was privy to the suppression of the 71-page report on paid news prepared by dedicated and able senior journalists Paranjoy Guha Thakurta and K. Sreenivas Reddy. Through a vote on July 30, 2010, the PCI shamefully refused to reveal the findings and, instead, submitted a 13-page report to the government. The full report is now public and should be published in full in the PCI’s Journal. Not Everyone has access to the Internet. Yet Chairman after Chairman has demanded punitive powers – P.B. Sawant, K. Jayachandra Reddy and G.N. Ray. It is such men who reduced the PCI to pathetic irrelevance.
Chairmen there have been, like Justice A.N. Sen, who manfully stood up for press freedom. The Thakkar-Natarajan Commission on Fairfax, comprising sitting judges of the Supreme Court, was out to pillory V.P. Singh. They responded to press criticism of their conduct by asking for powers of contempt for commissions of inquiry. The Government of India asked the PCI’s Chairman, Justice A.N. Sen, to prescribe a code of conduct. Since we hear a lot about a code of conduct for journalists, the text of the PCI’s decision deserves to be set out in full:
“The Council considered the letter of Shri. G.K. Arora, Secretary to the Government of India, Ministry of Information and Broadcasting, New Delhi, dated 31-5-1988 addressed to the Chairman, Press Council of India, and also the observations made in Chapter VI of the Report of Justices Thakkar-Natarajan Commission. Out of deference to the members of the Commission, who happen to be sitting Judges of the Supreme Court, the Council refrains from making any comments on the observations made and views expressed therein.
“The Second Press Commission had recommended that it would not be proper to lay down any code of conduct for the press. The Council has consistently taken the stand that it is not desirable to formulate a code of conduct for the press as the Council is of the opinion that any such formulation can only be in broad and general terms and such formulation will serve no useful purpose and may have the effect of impinging on the freedom of the press. Guidelines are indeed indicated in Article 19(2) of the Constitution itself. Mahatma Gandhi, the Father of the Nation and an eminent journalist himself, suggested that imposition of any restrictions should come from within the press and not from without. Section 13(2)(b) of the Press Council Act, 1978, lays down that the Council should build up a code of conduct, and this the Council is doing through the various decisions rendered by it. The British Press Council also observes the same practice. The Council decided to reiterate its stand and expressed the opinion that there was no reason to depart from the same.” But, of course, a code of conduct can help; provided it is drawn up by both wings of the media and their code is annexed, as a schedule, to the new PCI Act, for the reformed PCI to enforce.
The British Press Complaints Commission has come under a cloud after the News of the World scandal. But the precedent is a useful one; not for imitiation but for adaptation. The PCC is charged with enforcing a “Code of Practice” drawn up by the press itself (see box). It is not a statutory body but an exercise in self-regulation which grew out of public outrage over repeated violations of privacy. There were the reports of the Committee on Privacy headed by Kenneth Younger (1972); of the Committee on Privacy and Related Matters headed by David Calcutt, Q.C. (1990); and by Calcutt himself (1993) entitled “Review of Press Self-Regulation” (Vide the writer’s article “Privacy and public wrongs”, Frontline, October 17, 1997). The PCI and the Indian Law Institute published two useful compilations of rulings. One was on Violation of Freedom of Press (1986) and the other on Violation of Journalistic Ethics and Public taste (1984).
Justice Katju will doubtless hasten slowly. Leading figures in the media, print and electronic, owe a clear duty to help him in this task, besides exploring other areas superficially dealt with in the past. One neglected area is media coverage of terrorist outrage. In the wake of 26/11, some TV reportage imperilled lives and security by reckless behaviour. The BBC has extensive internal guidelines for reporting on hijacking, kidnapping, hostage taking and sieges. They are available on http://www.bbc.co.uk/guidelines/editorialguidelines/edguide.
Justice Katju lost little time in dissipating the credit he had initially acquired. The penchant for sweeping remarks for which he was known in the “outbursts” on the Supreme Court Bench asserted itself soon after he became Chairman of the PCI.
He deservedly received reprimands from the Editor’s Guild and the Broadcast Editors Association on November 1 and 2. All of which only fortifies the case for revamping the PCI by eliminating Supreme Court judges from the chairmanship and including the electronic media within the ambit of a reconstituted Media Council as suggested in this article. Katju ought to know that judges of the Supreme Court exhibit appalling ignorance of literature when they demand that avowed works of historical fiction should be historically accurate. You cannot denounce and persuade at the same time. It is not for him to speak as he did anymore than it is open to a Chief Justice to denounce the Bar or the Army chief to denounce the jawans. His plea for teeth should be rejected. His comments lack restraint even when what he says is true.
But not all his comments on the media should be brushed aside. Some are fair. For instance, TV anchors assiduously whip up chauvinism in their contest for Television Rating Points – their current target is China. Four leading anchors behave like licensed louts every evening. They promote sensationalism and revel in aggressive demeanour. Print media journalists have to undergo a long grind before they reach editorial positions. Only a TV anchor will loftily proclaim while in Ladakh, “the McMahon Line is behind me”. He did not know that the line is our boundary in the north-east. It does not extend westward. In Ladakh the Sino-Indian boundary was never defined. Only a Line of Actual Control exists. Another TV channel has broken all norms of professional integrity by reducing itself to a platform for Omar Abdullah whenever he has been in trouble ever since he was pitchforked into the office of the Chief Minister of Jammu and Kashmir nearly three years ago. To everyone’s surprise, he on his part grants it and its correspondent preferential treatment.
Still and all, Justice Katju should be given a fair chance for he has some good ideas and intends to infuse life into the PCI.
- Press Council has failed: Justice Verma (indialawyers.wordpress.com)
- JUSTICE KATJU – MEDIA DEBATE : Bring electronic media under Press Council (indialawyers.wordpress.com)
- JUSTICE KATJU – MEDIA DEBATE : Press freedom must be examined (indialawyers.wordpress.com)
- JUSTICE KATJU – MEDIA DEBATE : Justice Markandey Katju on the role of media in India (indialawyers.wordpress.com)
- Justice Katju (chairman, PCI), Suggests PM to “Monitor” Electronic Media (richardrego.wordpress.com)
- Media and issues of responsibility (indialawyers.wordpress.com)
- Media won’t bite the Katju bullet (richardrego.wordpress.com)
- Does the Media deliberately divide People? (ktrmurali.wordpress.com)
- SC judges: Most sign off with grace, others remain Lordships (indialawyers.wordpress.com)
- ‘Judges must know their limits…they must not try to run the government’ (indialawyers.wordpress.com)
This case was initially a criminal appeal, but later was converted into a Public Interest Litigation suo motu by our order dated 14th February, 2011. By that order we dismissed the criminal appeal of the appellant and upheld his conviction. However, we were of the opinion that the problems of sex workers required urgent attention by this Court. Hence, we proceeded thereafter to continue with the case as a Public Interest Litigation and passed several orders thereon, including an order dated 19.07.2011 setting up a Panel with Mr. Pradip Ghosh, Senior Advocate, as its Chairman.
Today, the case has been listed again before us and a Third Interim Report dated 12.09.2011 of the Panel appointed by our order dated 19.07.2011 has been filed before us by the Chairman of the Panel Mr. Pradip Ghosh, learned senior counsel.
From a perusal of the report submitted by the Panel report it appears that the Panel has been doing very good and sincere work in connection with the task which we have entrusted to it. The Panel has taken great pains and has held regular meetings to discuss the problem of sex workers. We have earlier pointed out in one of our orders that the problem of sex workers cannot be resolved in a very short time and will require long, patient effort.
Our initial aim was to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty. No girl would ordinarily enjoy this kind of work, but she is compelled to do it for sheer survival. Most sex workers come from poor families, they are subjected to ill treatment by the owners of the brothels, they are often beaten, not givenproper food or medical treatment, and made to do this degrading work. Probably much of the money paid by their customers is taken away by others.
We are happy to note that the Panel has set about its task in right earnest, and is considering ways and means to implement our ideas so that the sex workers can get some technical training through which they can earn their livelihood and thus lead a life of dignity which is guaranteed by Article 21 of the Constitution of India.
In the Third Interim Report the Panel has prayed for the following :-
(a) An appropriate order directing the State Governments and the Local Authorities to issue Ration Cards to the sex workers treating them as persons in special category and relaxing the rigours of the Rules/requirements regarding the verification of their address and without mentioning their profession in the Card;
(b) An appropriate order be made directing the Central Government and the Election Commission to issue Voter’s Identity Cards to the sex workers in relaxation of the rules/requirements in that behalf and without insisting on strict proof of their address/profession and without specifying their profession on the face of the Card;
(c.) An order be made directing the Central Government and the State Governments to ensure that the admission of the children of sex workers in appropriate classes in the Government schools and Government sponsored schools and the schools run by the Municipal and District level authorities is not hampered in any way, because of their impaired social status.
(d) An appropriate order be made directing the Central Government to suitably alter and widen the UJWALA Scheme within a period of six months as directed by order dated 24.08.2011 (vide paragraph 26 of the said order) made in this matter.
(e) An order or direction be made to the effect hat the amount paid or to be paid by the Central Government, State Governments and the Union Territories to the Secretary General of this Hon’ble Court as directed by order dated 24.08.2011, be deposited in the Bank Account of the Panel in the UCO Bank Supreme Court Compound Branch, in the name of “Panel Appointed by Supreme Court in Criminal Appeal No. 135/2011” to be operated jointly by the Chairman of the Panel Mr. Pradip Ghosh and Mr. Jayant Bhusan, a member of the Panel, in terms of the order dated 24.08.2011.
(f) Such appropriate orders as may be deemed fit and proper be made, for compliance by the Central Government of the earlier order made by the Hon’ble Court on 24.08.2011 with regard to office accommodation, secretarial staff assistance and furnishing the office with necessary infrastructure and to furnish report of compliance in this Hon’ble Court within a period to be fixed by the Hon’ble Court.”
We are of the opinion that the suggestions of the Panel are good suggestions. Sex workers face great difficulty in getting ration cards, voter’s identity cards or in opening bank accounts, etc. We are of the opinion that the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others.
We, therefore, recommend that the suggestions made by the Panel in its Third Interim Report (which has been quoted above) shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. If there is any difficulty in implementing them, then on the next date we should be told about such difficulty.
Needless to say, without a proper office and infrastructure the Panel will not be able to discharge its duties properly. We, therefore, again request the Central Government and the State Government of Delhi to do the needful in this connection expeditiously.
We are informed that in pursuance of our order dated 24.08.2011 the Central Government has deposited a sum of Rs. 10 Lakh with the Secretary General of this Court. Some of the States/Union Territories have made payment as directed by us. However, some of the States/Union Territories are yet to make payment. We direct that those States or Union Territories which have not yet made payment shall make payment within three weeks from today (except those which have no sex workers).
We further direct that the amount deposited with the Secretary General of this Court shall be transferred to the account of the Panel in the UCO Bank, Supreme Court Compound Branch in Savings A/C No. 02070210000939.
List this case on 15.11.2011 by which time another report shall be submitted by the Panel. We hope and trust that the recommendations made by the Panel will be implemented by then by the concerned authorities.
J (MARKANDEY KATJU)
J (GYAN SUDHA MISRA)
- Email panel constituted by Supreme Court at : email@example.com (indialawyers.wordpress.com)
- Govt for rehab of sex workers (shaktivahini.wordpress.com)
- She dreams of a better life, and it is the dingy room at the brothel that can give her that (shaktivahini.wordpress.com)
- Censorship and the State (indialawyers.wordpress.com)
- Compulsory Registration of Marriages (indialawyers.wordpress.com)
- Rehabilitation of Sex Workers (equalityindia.wordpress.com)
The Supreme Court has issued notice to all States and Union of India on the issue of Rehabilitation. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.
Ravi Kant , Advocate Supreme Court of India & President, Shakti Vahini
Recently the Supreme Court had issued notice to all states while noting down the concern on the pathetic conditions of Sex Workers:
“ Although we have dismissed this Appeal, we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. As already observed by us, a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed herself.
We propose to have the response of the Centre and the States in this regard and hence the case shall be listed before us again on 04.05.2011 to be taken up as first case on which date the first compliance report indicating therein the first steps taken by the Central and the State Governments in this regard shall be submitted. Issue notice to the Central Government and all the State Governments which will also file responses by the date fixed for hearing.”
The court was expressing anguish and concern about failure of the Union of India and the States to effectively implement the National Plan of Action 1998 to combat trafficking and Rehabilitation has caused irreparable damage to lakhs of victims who have been caught in this illegal trade. The applicants states that this Honourable Court in Gaurav Jain Vs Union of India keeping in view of the legislative inertia and the consequent failure of the government directed that a high level committee be constituted to make an indepth study of these problems and to evolve such guidelines to protect the rights and interest of victims of sexual exploitation. It also laid down certain guidelines and further directed that a high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines.
The central government pursuant to the directions issued by this Honurable Court in Gaurav Jain case constituted a “Committee on the Prostitution , Child Prostitutes & Plan of Action to combat trafficking and commercial and Sexual Exploitation of Women and Children”. In 1998 a Report containing an Action Plan was prepared by the Department of Women and Child Government of India . Apart from the highlighting the problems faced in addressing issues of commercial sexual exploitation which are set out hereinafter detailed recommendations were made with a view to arrest the systematic problem , including issues relating to law enforcement and legal reforms.
The above recommendations have not been implemented. In fact there has never been any serious attempt by Respondents to address the issues /recommendations made by the committee. Further the Action Plan does not have any budgetary or non budgetary support from the Government. The petitioner believes that there has been no study relating to the economic cost of implementing the recommendation and the sources through which such costs could be met. In the years from 2001- 2010 the Government of India has focused its initiatives on the issue to combat trafficking. It has formulated the Swadhar and Ujjwala initiatives which are primarily aimed at rehabilitation of trafficked victims. The Government of India in 2010 has formed special Anti Human Trafficking Units across the country under the Ministry of Home Affairs . Apart from the above mentioned initiatives the respondents have failed miserably to formulate special schemes for rehabilitation of women who are in prostitution and also failed to implement the guidelines which were formulated in the National Plan of Action 1998 for rehabilitation of women in the red light area.
The Govt of India , UNIFEM and National Human Rights Commission undertook a study on the issue of Human Trafficking and to propose recommendations to combat this crime. The NHRC report came out with a set of recommendations which have till date not been complied with. The failure to implement the measures set out in 1998 Plan of Action and also the recommendations of the NHRC report has caused severe injury and prejudice to the victims of prostitution . The legislative deficit, coupled by callousness displayed by the respondents continues to ruin the lives of lakhs of women who are caught up in the Illegal Sex Trade being openly run from the red light areas. The respondents have failed and neglected to accept responsibility and discharge their duty as mandated by law.
Due to the callous attitude of the Union of India and the various state governments the trade in the red light area has been thriving. Combined with lax law enforcement and insufficient support structures the trafficking in Human Beings is on the increase. It is due to the problem of trafficking the victims are forcefully pushed into this illegal and viscous trade. The victims are mostly minors when they are brought and are sold to the organized crime thriving in the red light areas. From there these victims are tortured and forced into prostitution. The victims are kept in bonded conditions and are forced to live a life of bondage , sexual slavery , repeated and forced rape , deprivation of basic human rights and hidden away from law enforcement agencies. The victims after repeated human rights violation , continued torture and bodily harm are forced to do and act as there captors desire. These victims are then forced to cater to ten to fifteen men each day . This bonded conditions continue for at least seven to ten years or until the victim can be rescued. The seven to ten years of bonded and sexual slavery is serious violation of Article 23 (3) and Article 21 of the Constitution of India. During this period the victims is forced to suffer repeated rape ten to fifteen times and also during this process of forced and sexual slavery the victim also gets exposed to Sexually Transmitted diseases and HIV/AIDS. The economics of the illegal trade of human misery and also the the exploitation has been vividly explained in the NHRC / UNIFEM
The victim after immense suffering and years of exploitation and sexual slavery multiplied with lax law enforcement is left with no choice but to continue in the illegal trade. The victims cannot return to their homes for the fear of stigma and shame. They are left to their pathetic situations. Some of them are forced to continue in the trade and many with no choice left become part and parcel of the illegal trade. The Victims continue to suffer and with no rehabilitation or support from the government are left to beg and die in utter neglect. They don’t even venture out as they will be further exploited. Thus the suffering and violation of basic human rights and fundamental rights continue .
The Honourable Court in VishalJeet Vs Union of India explained the pathetic situation of the victims:
“No denying the fact that prostitution always remains as a running sore in the body of civilisation and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making its way onwards leaving a track marked with broken hopes. Therefore, the necessity for appropriate and drastic action to eradicate this evil has become apparent but its successful consummation ultimately rests with the public at large.
It is highly deplorable and heart-rending to note that many poverty stricken children and girls in the prime of youth are taken to ’flesh market’ and forcibly pushed into the ’flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions–indeed there is none–that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”
The Honurable Supreme Court in Vishaljeet Vs Union of India laid down certain guidelines for eradication of the malady :
This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers. The Courts in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences. Apart from legal action, both the Central and the State Government who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction.Bhagwati, J. (as he then was) in Lakshmi Kant Pandey v.Union of India,  2 SCC 244 while emphasizing the importance of children has expressed his view thus: “It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ’supremely important national asset’ and the future wellbeing of the nation depends on how its children grow and develop.”
We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard. Accordingly, we make the following directions:
1. All the State Governments and the Governments of Union Territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.
2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women’s organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and associations etc., the main objects of the Advisory Committee being to make suggestions of:
(a) the measures to be taken in eradicating the child prostitution, and
(b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution.
3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatarists and doctors.
4. The Union Government should set up a committee of its own in the line, we have suggested under direction No.(2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children.
5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
6. The Advisory Committee can also go deep into devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.
7. The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commissioner of Police, Delhi for necessary action. We may add that we are not giving an exhaustive list of the members for the constitution of the committee. Therefore, it is open to the concerned Government to include any member or members in the committee as it deems necessary.
We hope and trust that he directions given by us will go a long way towards eradicating the malady of child prostitution, Devadasi system and Jogin tradition and will also at the same time protect and safeguard the interests of the children by preventing of the sexual abuse and exploitation.
The Honourable Supreme Court in Gaurav Jain vs Union of India had keeping in view the legislative inertia and the consequent failure of the Government to protect the rights and interest of the victims ,laid down certain guidelines and further directed high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines. The Supreme Court realizing the enormity of the problem and the need to urgently mend the systematic and symbolic failures proceeded to give further directions in the manner as follows:
“The Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women the Child Development as the chairperson and three or four Secretaries from the concerned State Governments, to be nominated by the Minister of Welfare. They would make an in-depth study into these problems and evolve such suitable schemes as are appropriate and consistent with the directions given above. The Committee should be constituted within one month from the date of the receipt of this judgment. The Committee should finalise the report within three months thereafter. As soon as the report is submitted. the same may be communicated to all the State Governments and the concerned Ministries for their examination. Within two month from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decision. The Committee should finalise the report with further suggestions or amendments, if suggested in the conference. Thereafter, the report should be finalised and then direction would be given to the State Governments for effective implementation of the schemes. The nodal Department would enforce and regularly be supervised by the Ministry of Welfare, Government of India. A permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis, and to take such other steps as may be expedient in the effective implementation of the schemes. Periodical progress as to funding and enforcement of the scheme should be submitted to the Registry of this Court. If further directions would be needed, liberty is given to the parties to approach this Court. In that view of the matter, it is believed and hoped that the above law and directions would relieve the human problem by rehabilitation of the unfortunate fallen women cought in the trap of prostitution ; their children would be brought into the mainstream of the social order ; these directions would enable them to avail the equality of opportunity and of status, with dignity of person which are the arch of the Constitution.”
The Advisory committee formed pursuant to the judgement of this Honourable Court in Vishal Jeet vs Union of India have remained defunct and many states have not even convened meetings of the committee. The Central Advisory Committee formed by the Government of India , Ministry of Women and Child has been meeting regularly since 2005 and has been addressing the problems of trafficking. Though the committee has not focused on the issue of rehabilitation of women in prostitution. These committees were formed with the intention to promote inter department cooperation and approach the problem in a unified manner.
When Shakti Vahini (Writ Petition 190 0f 2002) had petitioned to the Supreme Court that such committees were not functional and pursuant to the Supreme Court notice many governments had formed the committees just to file affidavits in the Supreme Court. After that again these committees became non functional. The National Plan of Action 1998 formed pursuant to the Honourable Supreme Court order has remained a dead document as nothing much has been done for the emancipation of women victims.
The National Human Rights Commission in 2006 has also framed a Plan of Action to combat Trafficking but the same has also remained as a dead document. The Government of India has initiated several initiatives in collaboration with NGOs to combat trafficking and has also formed a special cell in the Ministry of home Affairs , Government of India as the Nodal Agency for the Anti Human trafficking Units. The law enforcement agencies are also being sensitized on the issue of Trafficking and several modules for police trainings have been formulated by United Nations office on Drugs and Crimes ( UNODC) , Bureau of Police Research and Development (BPRD) and Ministry of Home Affairs. The Union of India in collaboration with NGOs has launched Ujjwala and Swadhar Schemes which are more focused towards trafficked children and as short stay homes.
The Government of India unfortunately has till date not devised any proper scheme for rehabilitation for women in prostitution so that they can become part of the mainstream.
Ratification of the UN Protocol on Human Trafficking
The Government of India has recently ratified the UN Protocol . This also implies that Government of India formally adopting definition of Human Trafficking which is :“Trafficking in persons” which shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
The UN Protocol makes Human Trafficking and Smuggling a organised crime and call upon states to provide victim support , victim repatriation , witness support and protection , Joint Investigations between member nations etc. It specially calls upon nations to ensure implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. It mandates nations to ensure that take into account the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. It also provides for nations to provide for the physical safety of victims of trafficking in persons while they are within its territory and ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered. It takes a commitment from nations that they shall establish comprehensive policies, programmes and other measures inter alia to prevent and combat trafficking in persons; and (b) to protect victims of trafficking in persons, especially women and children, from revictimization. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.
It mandates that nations shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: (a) whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons; the types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and the means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them.
It ensures that nations shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with nongovernmental organizations, other relevant organizations and other elements of civil society.
The Government of India and the various states have failed in their duty as the problem of prostitution is a serious violation of Fundamental Rights as enshrined in Article 21 and Article 23 of the Constitution of India. India is also a signatory to international conventions such as the Convention on Rights of the Child (1989), Convention on Elimination of all forms of Discrimination Against Women (1979), UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000) and the latest South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002). The Constitutional , International, Statutory obligations and orders of the Honourable Supreme Court makes it mandatory for the Government of India and the different state Government to combat this heinous organised crime and also to provide support to the victims of Prostitution.
Rehabilitation / Compensation approach
The Supreme Court in Bandhua Mukti Morcha 1984 (3) SCC 161 has elucidated the rehabilitation of Bonded Labour and directed the Government to award compensation to Bonded labour under the provisions of Bonded Labour System (Abolition) Act 1976 after taking note of serious violation of Fundamental & Human Rights :
“The other question arising out of the implementation of the Bonded Labour System (Abolition) Act 1976 is that of rehabilitation of the released bonded labourers and that is also a question of the greatest importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion.
The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and (illusory) security’ as against a world of freedom and starvation. The State Governments must therefore concentrate on rehabilitation of bonded labour and evolve effective programmes for this purpose. Indeed they are under an obligation to do so under the provisions of the Bonded Labour System (Abolition) Act 1976. It may be pointed out that the concept of rehabilitation has the following four main features as admirably set out in the letter dated 2nd September 1982 addressed by the Secretary. Ministry of Labour, Government of India to the various States Governments:
(i) Psychological rehabilitation must go side by side with physical and economic rehabilitation;
(ii) The physical and economic rehabilitation has 15 major components namely allotment of house-sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, horticulture, animal husbandry, training for acquiring 134 new skills and developing existing skills, promoting traditional arts and crafts, provision of wage employment and enforcement of minimum wages, collection and processing of minor forest produce, health medical care and sanitation supply of essential commodities, education of children of bonded labourers and protection civil rights;
(iii) There is scope for bringing about an integration among the various central and centrally sponsored schemes and the on-going schemes of the State Governments for a more qualitative rehabilitation. The essence of such integration is to avoid duplication i.e. pooling resources from different sources for the same purpose. It should be ensured that while funds are not drawn from different sources for the same purpose drawn from different sectors for different components of the rehabilitation scheme are integrated skillfully;and
(iv) While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would need the total requirements of the families of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.
We would therefore direct the Government of Haryana to draw up a scheme on programme for “a better and more meaningful rehabilitation of the freed bonded labourers” in the light of the above guidelines set out by the Secretary to the Government of India, Ministry of Labour in his letter dated 2nd September 1982. The other State Governments are not parties before us and hence we cannot give any direction to them, but we hope and trust that they will also take suitable steps for the purpose of securing identification, release and rehabilitation of bonded labourers on the lines indicated by us in this Judgment.”
The compensation since 1978 has undergone a change and presently the compensation is Rs20,000 and access to Government schemes of poverty alleviation and also housing under Indira Awas Yojana .
Supreme Court in MC Mehta vs State of Tamil Nadu and Others – Writ Petition (Civil) No.465/1986 seeing the severe violation of fundamental rights in cases of child labour laid down guidelines for compensation and rehabilitation :
“ It may be that the problem would be taken care of to some extent by insisting on compulsory education. Indeed, Neera thinks that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. therefore, unless the family is assured of income allude, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are, however, of the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain a will-o’-the wisp. Now, if employment of child below that age of 14 is a constitutional indication insofar as work in any factory or mine or engagement in other hazardous work, and if it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfillment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs.20,000/-; and the Inspectors, whose appointment is visualised by section 17 to secure compliance with the provisions of the Act, should do this job. The inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs.20,000/- which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the concerned child. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high yielding scheme of any nationalised bank or other public body.
As the aforesaid income could not be enough to dissuade the parent/guardian to seek employment of the child, the State owes a duty to come forward to discharge its obligation in this regard. After all, the aforementioned constitutional provisions have to be implemented by the appropriate Government, which expression has been defined in section 2(i) of the Act to mean, in relation to establishment under the control of the Central Government or a railway administration or a major port of a mine or oil field, the Central Government, and in all other cases, the State Government.
Now, strictly speaking a strong case exists to invoke the and of an Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39(e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child. This would also see the fulfillment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unni Krishnan. We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”. The very large number of child-labour in the aforesaid occupations would require giving of job to very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector establishment or, for that matter, in a public sector organisation., we are not issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as above-mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5,000/- for each child employed in a factory or mine or in any other hazardous employment.
The aforesaid would either see an adult (whose name would be suggested by the parent/guardian of the concerned child) getting a job in lieu of the child, or deposit of a sum of Rs.25,000/- in the Child Labour Rehabilitation-cum- Welfare Fund. In case of getting employment for an adult, the parent/guardian shall have to see that his child is spared from the requirement to do the job, as an alternative source of income would have become available to him.”
The Supreme Court in Delhi Domestic Working Women’s Forum Vs. Union India and others writ petition (CRL) No.362/93 in recognition of severe violation of Fundamental rights of Rape Victims had directed the National Commission Women to evolve a “scheme so as to wipe out the tears of unfortunate victims of rape’’. The Supreme Court observed that having regard to the Directive Principles contained in Article of the Constitution, it was necessary to set up a Criminal Injuries Compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial and in some cases are too traumatized to continue in employment.
“ In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well- acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
(3)The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
(5)The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.
(6)In all rape trials anonymity of the victim must be maintained, as far as necessary.
(7)It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.
(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.
16. On this aspect of the matter we can usefully refer to the following passage from The Oxford Handbook of Criminology (1994 Edn.) at pages 1237-38 as to the position in England:
”Compensation payable by the offender was introduced in the Criminal Justice Act, 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where ‘injury, loss, or damage’ had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penological thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1988 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, impose a duty on the court to give reasons for not doing so. it also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review ….
The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.”
17.Section 10 of the Act states that the National Commission for men shall perform all or any of the following functions, namely:, (a) Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws. (b) Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal.
18. Having regard to the above provisions, the third respondent will have to evolve such scheme as to wipe out the tears of such unfortunate victims. such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall necessary steps for the implementation of the scheme at the earliest.
The National Commission for Women pursuant to the orders of the Honourable Supreme Court has drafted a scheme for Compensation. Some states have already started the implementation of the scheme. The scheme The scheme has proposed a compensation of Rs2 to Rs3 Lakhs for Rape victims.
The Government of India has recently amended the The Code of Criminal Procedure 1973 as amended by The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation.
“357A. Victim compensation scheme. — (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section
(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”.
Article 23of the Constitution of India prohibits ,”Traffic in Human Beings” this Honourable Court has held that the expression “Traffic in Person” in Article 23(1) of the Constitution of India is evidently a very wide expression which includes the prohibition of traffic in women for immoral and other purposes . In the case of women in prostitution the failure to implement the National Plan of Action drafted pursuant to the Judgement in Gaurav Jain vs Union of India has resulted in serious deprivation of fundamental rights.
The trafficked victims and women in prostitution go through serious fundamental rights violation which includes bondage and sexual slavery and repeated rape and gang rape. The crimes are very serious in nature which results in deprivation of Fundamental Rights and therefore the state is liable. As mentioned above this Honourable Court has already ordered compensation in Bonded Labour and for victims of Rape , the victims of Human Trafficking and women in Prostitution also are eligible for compensation from the State.
The failiure of the Union of India and the State Governments to draft a suitable rehabilitation scheme for women in prostitution is a serious violation of orders of this Honourable Court and also violation and deprivation of Article 21 and Article 23(1) of the Constitution of India. Article 23 read with Article 39, 41 and 42 together constitute inalienable rights and the failure to grant such right would constitute deprivation of basic fundamental rights. The problem of trafficking and prostitution is also serious violation of Article 14 , Article 19 of the Constitution of India.
A way forward – Suggested Recommendations
Shakti Vahini after held several meetings with women victims of the red light area of GB Road on the issue of Rehabilitation after the Honourable Supreme Court issued notice to the Union of India and all states in the present case. The victims have provided suggestions as to how the State can formulate schemes which can help them to reintegrate back to the society. The victims have also come out with suggestions so that they can be reintegrated in the society and also be rehabilitated which are as follows:
1. Compensation to be paid for serious violation and deprivation of Fundamental rights.
2. The women in prostitution are in bondage condition for several years . As a result there is a serious loss of identity and the organised crime changes their names frequently. This ultimately leads to having no identity and hence access to government schemes and government facilities are completely not available to the Victims. The Government of India and the State Government should at once issue identity cards , Ration Cards , UID Cards so that domicile can be proved. Without these documents the women have no approach to the government facilities.
3) The Women victims of prostitution and Human Trafficking undergo serious violation of Fundamental rights and are forced to live a life of sexual slavery and bondage. They have no source of income and they should be treated as Below Poverty Line. This will enable them to access the schemes for Poverty Alleviation.
4) Most of the victims of Human Trafficking and Women in Prostitution belong to the lower strata of the society and are tribals and belong to the SC and ST communities. The schemes for alleviation of these communities should be open to all those victims who belong to such communities
5) The Government should provide schemes for training and Income generation programme and also link these schemes with Nationalised Banks and agencies like Rashtriya Mahila Kosh . The training provided should encourage entrepreneurship and this needs to be supported by easy and low interest credit. Services of NGOs can be asked to provide mentor support.
6) The victims of trafficking and prostitution who want to leave the place should be provided residential facilities and rehabilitation scheme as soon as possible.
7) All schemes of social security and Health facilities should be accessible to victims of trafficking.
Legal aid and legal support should be provided to the victims .
9) States in destination area should also accept responsibility of victims as they are liable because their fundamental rights violation has taken in the destination areas. This is because many a times states pass on the responsibility of the victims on the home state and the home states accepts no responsibility.
10) The present schemes of swadhar and Ujjwala are completely irrelevant compared to the magnanimity of the crime.
11) Any scheme devised by the Government of India should have strong budgetary support.
12) The victims of trafficking and women in prostitution categorically state they are victims of organised crime and have landed in this situation due to they were forced in this situation. They all agree that in no case prostitution should be allowed or regulated.
13) Government should frame stringent laws to convict traffickers who indulge in trafficking of women and children. The Law enforcement agencies should take action against such criminals.
14) The whole illegal business of prostitution is run by organised crime who have links across the country. The honourable court should direct the law enforcement agencies to launch investigation against these perpetrators
When the Supreme Court said that the victims of Commercial Sexual Exploitation should be provided “ a life of dignity” it should not be meant that the court is talking about legalization. Organizations and individuals with vested interest who have to gain from such illegal trade start speaking about the legalization issue.
It is a reality that Govt of India has never had a serious view on the issue of rehabilitation. It may be thing of past as the Government of India with the liberalization of the economy has now no dearth of the funds to do it. The Government is already spending huge amounts in National Rural Health Mission, Sarva Shiksha Abhjiyan , National Rural Employment Gurantee Scheme, Integrated Child Protection Scheme (ICPS) & etc.
Recently the Government of India has launched Anti Human Trafficking Units across the country. This is a specialised force which will work exclusively to combat Human Trafficking. The results are already being felt with more such gangs being busted. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.
The writer is practising advocate in the Supreme Court of India and is President of Shakti Vahini a leading non governmental organization working on anti trafficking. He can be reached at : firstname.lastname@example.org
THE HINDU / NEW DELHI
Three pronouncements made on three consecutive days this month by the Supreme Court of India have brought relief to different groups of economically and socially deprived people. The beneficiaries include children sold out by poor parents to work in circuses as child labour; young men and women determined to get married crossing caste barriers and harassed for that very reason by ‘khap panchayats’; and the hungry poor across the country denied their right to food, even as thousands of tonnes of food grains rot in government godowns.
Interestingly, the media, by and large, have been playing a proactive role in bringing the issues on to the public agenda. Daily newspapers and magazines have published several articles about hundreds of children, mostly girls, who were brought to India from neighbouring countries, especially Nepal and Bangladesh, to work in circus companies that have proliferated across the country. The living conditions were inhuman, resembling slavery. Thanks to some dedicated NGOs working in India and Nepal, the Indian media have exposed the trafficking in girls, who end up being exploited and sexually abused by circus owners and their men. This is the pathetic life of girls bought for paltry sums of money from poor parents not only from adjacent countries but also from Indian States such as Uttar Pradesh and Bihar. This is the price these hapless children and their families pay to keep our children laughing. BBC News and international news agencies have also reported on the girls’ sufferings, while performing high-risk high-wire programmes.
Two decades ago, the hundreds of circus companies were in deep trouble owing to a gradual decline in public patronage. They sought State help to keep them going and save their performers and the emaciated animals that trek with them from camp to camp. The emergence of a large middle class with real purchasing power restored the economic health of the circuses, which have become one of the favourite entertainers for middle class children.
A rights-based judgment
In a rights-based judgment delivered on April 18, the Supreme Court banned the employment of children in circus companies. The court directed the Central government to take immediate steps to rescue the suffering circus workers and arrange for their rehabilitation. Passing orders on a petition filed by the Bachpan Bachao Andolan, an organisation working for children, a Division Bench comprising Justice Dalveer Bhandari and Justice A.K. Patnaik directed the central government to issue suitable notifications prohibiting employment of children in circuses within two months, in order to implement the fundamental right of children under Article 21-A of the Constitution, which guarantees the right to “free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” The Bench asked the government to raid all circuses and liberate children and check violation of their fundamental rights.
Another Supreme Court judgment delivered on April 19 was highly critical of the caste system and declared ‘khap panchayats” illegal. They were instrumental, the court observed, in encouraging honour killings and indulged in other atrocities against boys and girls married or tried to marry from outside their castes. The Bench, comprising Justice Markandey Katju and Justice Gyan Sudha Misra, wanted the government to ruthlessly stamp out the barbaric practice. A significant aspect of the judgment was that it directed the administrative and police officials to take strong steps to prevent such atrocious acts as honour killing. The court also asked for departmental action against officials who failed on this score.
It may be recalled that when States such as Haryana and Rajasthan reported a series of honour killings a few months ago, the media went all out against the spread of the crimes and the failure of the State police and administration to arrest it. When the Central government floated the idea of a ban on khaps, even Chief Ministers and ex-Minister sought to scuttle the move.
No less important is the serious concern expressed by Justices Dalveer Bhandari and Deepak Verma over the increasing number of starvation deaths in the country. They were hearing petitions relating to the streamlining of the public distribution system (PDS). The Supreme Court has once again questioned the approach of the Central government to the eradication of malnutrition and its failure to arrest starvation deaths in some areas. Justice Bhandari also questioned the Planning Commission‘s estimate that 36 per cent of the population was below the poverty line, which was inconsistent with the claim of several States, including Congress-ruled States, that the percentage was much larger. The judge wondered how the Planning Commission could fix a per capita daily income of Rs. 20 for urban areas and a per capita daily income of Rs. 11 for rural areas to determine BPL status. He also wanted the Deputy Chairman of the Planning Commission to file a detailed affidavit within a week “because the entire case rests on your figures.”
Progressive voices, including economists, scientists, and social activists, have been articulating in the media the demand for a universal PDS. When the National Advisory Committee was about to endorse it, the government ruled it out once again. At a time the Supreme Court has stepped up the pressure for a pro-people solution, a well-informed and decisive media push will certainly help.
- Halt honour killings, rules SC (shaktivahini.wordpress.com)
- India bans child circus workers (bbc.co.uk)
- India court orders circuses to stop employing kids (sfgate.com)
- India court orders circuses to stop employing kids (seattletimes.nwsource.com)
- Stamp out khap panchayats: court (indialawyers.wordpress.com)
Two British men were sentenced to six years in jail in India on Friday for sodomising young boys living at a children’s shelter.Supreme Court justices P. Sathasivam and B. S. Chauhan said the men were “evil influences” on the children who had sought safety at the Anchorage Shelter Home in Mumbai in a ruling upholding a 2006 lower court verdict. Duncan Grant and John Allan Waters were accused of sodomy and sexual assault by a 15-year-old boy who lived at the Anchorage Shelter Home in Mumbai. Other boys had made similar complaints.The shelter had been set up by Grant, a London charity worker, with money raised in Britain. Retired Royal Navy Lieutenant Commander Grant and Waters “had sex with children on multiple occasions”, the judges said.
The two men were not in India when the charges were filed in 2001.Grant, who also ran children’s charities in Tanzania, was extradited from the African nation in 2004. Waters was extradited from the United States in the same year after Interpol alerts were issued against the men. According to a 2007 national study in India, half of the 15,000 children and young adults surveyed said they had suffered some form of sexual abuse. A fifth of the child respondents said they had experienced severe sexual abuse, according to the study, conducted by Ministry of Women and Child, Government of India and backed by the United Nations.
In the year 1986, a petition was brought before the High Court of Bombay complaining about the plight of children at various children homes in Maharashtra. In the same petition, the High Court appointed a Committee, namely, the Maharashtra State Monitoring Committee on Juvenile Justice (in short “the Committee”) headed by Justice Hosbet Suresh, a retired Judge of the High Court of Bombay. This Committee received some complaints from the Child Rights Organizations like Saathi Online, Childline and CRY about the mismanagement of Anchorage Shelters, and on that basis, the Committee sought permission of the High Court to visit various Anchorage Shelters.
After visiting various Anchorage Shelters including the one at Colaba and Cuffe Parade, a report was submitted before the High Court.2(b) On the basis of the said report, specifically expressing unconfirmed report of sexual exploitation of children, on 17.10.2001, one Ms. Meher Pestonji telephoned Advocate Ms.Maharukh Adenwala and informed her that some children residing in Shelter Homes were sexually exploited by those who were running these Homes.
On receiving this information, Ms. Maharukh Adenwala met those boys, who were allegedly sexually assaulted, at the residence of Ms.Meher Pestonji to ascertain the truth. After confirming the said fact, Ms. Maharukh Adenwala thought it proper to inform it to the Members of the Committee. After consulting the Committee, Ms. Maharukh Adenwala moved a suo motu Criminal Writ Petition No 585 of 1985 before the High Court.On 19.10.2001, the High Court passed an order for the protection of the children at Anchorage Shelter Homes. On 21.10.2001, one Shridhar Naik telephonically contacted Ms Maharukh Adenwala and informed her that the order of the
High Court giving protection to the children was being misinterpreted by the police and, therefore, certain3 clarifications were sought from the High Court and by order dated 22.10.2001, the High Court clarified the same.
With regard to the sexual and physical abuse at the Anchorage Shelters, on 24.10.2001, Childline India Foundation filed a complaint with the Cuffe Parade Police Station and while lodging the said complaint, Ms. Maharukh Adenwala was also present there. In spite of the fact that a complaint had been lodged, the police did not take cognizance of the offence under the pretext that the matter was sub judice and was pending before the High Court. Since the matter was not being looked into by the police, Ms. Maharukh Adenwala recorded statements of some of the victims and informed the said fact to the Members of the Committee. On 28.10.2001,Dr. (Mrs.) Kalindi Muzumdar and Dr. (Mrs.) Asha Bajpai met those victims at the office of India Centre for Human Rights and Law and endorsed that the statements previously recorded by Ms. Maharukh Adenwala were correctly recorded. After ascertaining the correctness of the statements by the Members of the Committee, the said facts were placed before the High Court and it was also submitted that the police4 authorities at Cuffe Parade Police Station were not seriously pursuing the complaint. The High Court, by order dated 07.11.2001, directed the police authorities of the State of Maharashtra to take action on the basis of the complaint lodged by the Childline India Foundation.
Based on this specific direction, Sr. Inspector of Police,Colaba Police Station was directed to investigate in detail the complaint lodged by Childline and to take such action as is required to be taken in law. On 12.11.2001, Colaba Police Station recorded the statement of one Sonu Raju Thakur and the statement of one Sunil Kadam (PW-1) was recorded by Murud police station on 13.11.2001. On 15.11.2001, police ultimately registered an offence at Colaba police station by treating the statement of Sonu Raju Thakur as formal First Information Report (in short ‘the FIR’) being C.R. No. 312/2001 and started investigation.
Though the offence was mainly registered against three accused barring William D’Souza, the remaining two accused, namely, Allan John Waters and Duncan Alexander Grant had already left the country and 5 therefore, on 05.04.2002, an Interpol Red Corner Notice was issued against Allan and Duncan. In pursuance of Red Corner Notice,Allan was arrested in USA and sometimes thereafter Duncan also surrendered before the Court in India. The Metropolitan Magistrate committed the case to the Court of Session and after committal, it was initially assigned to the First Track Court at Sewree. All the three accused pleaded not guilty and,therefore, claimed to be tried.
The Sessions Judge, by judgment dated 18.03.2006, convicted William D’Souza for the offence punishable under Section 377 read with Section 109 IPC, Sections 120B and 323 IPC and under Section 23 of the JJ Act. Allan John Waters was convicted under Section 377 IPC, Section 120B read with Section 377 IPC and Section 373 IPC. Duncan Aleander Grant was convicted under Section 377 IPC,Section 373 read with 109 IPC, Section 372 IPC and Section 23 of JJ Act.
Aggrieved by the said order, William filed Criminal Appeal No.681 of 2006, Duncan and Grant filed Criminal Appeal No. 476 of 2006 before the High Court of Bombay. State Government also preferred Criminal Appeal No. 603 of 2006 before the High Court for enhancement of the sentence of the accused persons. The High Court, vide its common judgment dated 23.07.2008, set aside the order of conviction passed by the Sessions Judge and allowed the criminal appeals filed by the accused and acquitted all of them from the charges levelled against them and dismissed the appeal filed by the State Government.
Aggrieved by the order of the High Court, Childline India Foundation and Ms. Maharukh Adenwala filed Criminal Appeal Nos. 1208-1210 of 2008 and State of Maharashtra has filed Criminal Appeal No. 1205-1207 of 2008 before this Court by way of special leave petitions.
Constitutional provisions relating to children
Children are the greatest gift to humanity. The sexual abuse of children is one of the most heinous crimes. It is an appalling violation of their trust, an ugly breach of our commitment to protect the innocent. There are special safeguards in the Constitution that apply specifically to children. The Constitution has envisaged a happy and healthy 34childhood for children which is free from abuse and exploitation. Article 15(3) of the Constitution has provided the State with the power to make special provisions for women and children. Article 21A of the Constitution mandates that every child in India shall be entitled to free and compulsory education upto the age of 14 years. The word “life” in the context of article 21 of the Constitution has been found to include “education” and accordingly this Court has implied that “right to education” is in fact a fundamental right.
Article 23 of the Constitution prohibits traffic in human beings, beggars and other similar forms of forced labour and exploitation. Although this article does not specifically speak of children, yet it is applied to them and is more relevant in their context because children are the most vulnerable section of the society. It is a known fact that many children are exploited because of their poverty. They are deprived of education, made to do all sorts of work injurious to their health and personality.
Article 24 expressly provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any hazardous employment.This Court has issued elaborate guidelines on this issue. The Directive Principles of State Policy embodied in them Constitution of India provides policy of protection of children with a self- imposing direction towards securing the health and strength of workers, particularly, to see that the children of tender age is not abused, nor they are forced by economic necessity to enter into avocations unsuited to their strength.
Article 45 has provided that the State shall endeavor to provide early childhood care and education for all the children until they complete the age of fourteen years. This Directive Principle signifies that it is not only confined to primary education, but extends to free education whatever it may be upto the age of 14 years. Article 45 is supplementary to Article 24 on the ground that when the child is not to be employed before the age of 14 years, he is to be kept occupied in some educational institutions. It is suggested that Article 24 in turn supplements the clause (e) and (f) of Article 39, thus ensuring distributive justice to children in the matter of education. Virtually, Article 45 recognizes the importance of dignity and ersonality of the child and directs the State to provide free and compulsory education for the children upto the age of 14 years.
The Juvenile Justice Act was enacted to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of such matters relating to disposition of delinquent juveniles.This is being ensured by establishing observation homes,juvenile houses, juvenile homes or neglected juveniles and special homes for delinquent or neglected juveniles.
Even in the case of Vishal Jeet vs. Union of India,(1990) 3 SCC 318 this Court issued several directions to the State and Central Government for eradicating the child prostitution and for providing adequate and rehabilitative homes well manned by well qualified trained senior workers, psychiatrists and doctors.
The above analysis shows our Constitution provides several measures to protect our children. It obligates both Central, State & Union territories to protect them from the evils, provide free and good education and make them good citizens of this country. Several legislations and directions of this Court are there to safeguard their intent. But these are to be properly implemented and monitored. We hope and trust that all the authorities concerned through various responsible NGOs implement the same for better future of these children.
Under these circumstances, the impugned judgment of the High Court acquitting all the accused in respect of charges leveled against them is set aside and we restore the conviction and sentence passed by the trial Judge.