Supreme Court has already Clarified that it will not Encourage Prostitution

SUPREME COURT OF INDIA
SUPREME COURT OF INDIA

Law Resoursce India New Delhi 04/11/2014

In view of the order dated 26 July 2012 in Criminal Appeal 135/2010Budhadev 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”.

rtr26efdHe 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.

POLICE BUSTING AN INTERNATIONAL RACKET
POLICE BUSTING AN INTERNATIONAL TRAFFICKING RACKET

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.

ORDER

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
———————–

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Experts discuss ways to curb human trafficking- Judicial Colloquium held in Chandigarh

JUDICIAL COLLOQUIUM HELD AT CHANDIGARH – SEEN HERE ARE SHRI JASBIR SINGH AA HIGCTING CHIEF JUSTICE PUNJAB AND HARYANA COURT, JUSTICE MITTAL – JUDGE , PUNJAB AND HARYANA HIGH COURT , MS BHAMATI ADDL SECRETARY – MINISTRY OF HOME AFFAIRS , MS SHANTA SINHA – CHAIRPERSON NCPCR , SHRI SHARATCHANDRA MEMBER SECRETARY NALSA, MR RAVI KANT PRESIDENT SHAKTI VAHIN

PUBLISHED IN INDIAN EXPRESS

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.

We are not encouraging sex workers, SC clarifies

JUSTICE REVIEW
JUSTICE REVIEW

NATIONAL LEGAL RESEARCH DESK

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 passed – Children in India get a new Law

The Protection of Children from Sexual Offences Act, 2012, has been passed by the Lok Sabha today, 22nd May, 2012. The Bill was earlier passed by the Rajya Sabha on 10th May, 2012.

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:

  1. Penetrative Sexual Assault (Section 3) –  Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
  2.  Aggravated Penetrative Sexual Assault (Section 5) –­ Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
  3. Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine  (Section 8 )
  4. Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)
  5. Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)
  6. 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:

  1. 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
  2. No child to be detained in the police station in the night for any reason.
  3. Police officer to not be in uniform while recording the statement of the child
  4. The statement of the child to be recorded as spoken by the child
  5. Assistance of an interpreter or translator or an expert as per the need of the child
  6. Assistance of special educator or any person familiar with the manner of communication  of the child in case child is disabled
  7. 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.
  8. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
  9. Frequent breaks for the child during trial
  10. Child not to be called repeatedly to testify
  11. No aggressive questioning or character assassination of the child
  12. 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.

  1.  SCR summary-Protection of Children from Sexual Offences Bill
  2. SCR Protection of Children from Sexual Offences Bill 2011
  3. Children  sexual offences
  4. Bill Summary – The Protection of children from sexual harassment Bill, 2011

National Legal Research Desk on Violence Against Women and Children

Supreme Court of India

NATIONAL LEGAL RESEARCH DESK

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.

NATIONAL LEGAL RESEARCH DESK

Reforming the Press Council

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT
JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

A.G. NOORANI IN THE FRONTLINE   

The new Chairman of the Press Council of India, Markandey Katju, wants to make it an instrument of mediation in addition to adjudication

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.

SOURCE   http://www.frontline.in/stories/20111202282408800.htm

 


 

Sex Workers Rehabilitation Case latest orders of the Honourable Supreme Court of India

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)