LAW RESOURCE INDIA

Juvenile officer at every police station must: court

Posted in ACCESS TO JUSTICE, CHILD RIGHTS, CRIMINAL JUSTICE SYSTEM, JUVENILE JUSTICE by NNLRJ INDIA on October 23, 2011

J VENKATESAN IN THE HINDU

“He shall take care of safety, food and basic amenities of the child”

The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”

According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.

He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.

Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.

Monitoring to continue

The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.

http://www.thehindu.com/news/national/article2562888.ece

Police/SJPU – how they can choose to be an adversary or a friend of Children in Need of Care & Protection and Juvenile in Conflict with Law

Delhi Police Juvenile Unit

Delhi Police Juvenile Unit

SUMAN NALWA , ADDL DCP / SPUWC -DELHI POLICE

For any social and reformative legislation to be successful, it requires not just the good law but dedicated and motivated functionaries of the criminal justice system as well as the administrative wings of the govt in addition to responsive and responsible society. In the absence of these prerequisite, the law is but just a piece of paper and can never hope to make the impact it was intended to make.

The same stands true for our Juvenile Justice system as well. the object of juvenile justice system is prevention (ensuring that children do not come in conflict with the law), diversion (that children are kept away from formal criminal justice system and into community based and restorative processes to prevent repeat delinquency), protection ( of CICL from human rights violations and the children from exploitation and abuse). the mission being to not to simply punish the violators but to help the young violators of law to get back in the society on the right path. The focus being to look into the complexity of the life situation of the child and thus offering commensurate rehab program in the best interest of the child. Further, in case of CNCP, to reach out to them and ensure their proper care and rehabilitation. Thus ensuring aftercare and reintegration of all the children who have been left out, back into the society.

Considering these objectives, it was felt that the existing machinery was not in sync with the need of the children and that it requires a separate juvenile justice system which will cater to the specific needs of the children through a sensitive police, informal and flexible judiciary ready to intervene in the best interest of the child and institutions who are well equipped to design and implement the individual rehab and reintegration programs.

At the police level, a separate system of Juvenile Welfare Officers at the Police Station level, Special Juvenile Police Units at the District levels and State Nodal Unit at the state level were set up to upgrade the treatment meted out to the children at the hands of police to a more humane and sensitive approach. The Child Welfare Committees and Juvenile Justice Boards were also set up to look into the best interest of the child. However it has to be understood that the Juvenile Justice Act is a social legislation, aimed at changing the way our children get treated in the society and the system, and just putting the administrative structure alone is not enough to reach the goals set up by the JJ Legislation, it requires corresponding change in behavior as well as mindset at all levels to make a real impact in the life of a child.

From the police perspective, the JJ act lays down the groundwork of what police is expected to do or work in a given set of  circumstance relating to children who are in need of care and protection as well as those in conflict of law, that they are specially instructed and trained and have an aptitude to handle the children. The rules go further and extols the police agency to be proactive. the rules bring out the proactive approach by making SJPUs the watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile and to take serious cognizance of adult perpetrators of crimes against children in addition to other duties mentioned thereof.

 Role of police under the JJ Act

Police plays a substantial role in the juvenile justice system be it vis a vis the child in need of care and protection (CNCP) or the child in conflict with law (CICL). How it plays this role i.e., by taking the child along , in his best interest or considering him as any regular criminal or a victim depends on their level of sensitivity and commitment. In almost all the cases of CNCP as well as CICL, the police are usually the first point of contact with the child. This is indeed an important role as it means that the police officer, invariably the first contact point, now determines whether the child becomes the part of the juvenile justice system to begin with or not. And what kind of intervention the officer is going to make in the situation vis a vis the child often determines the future of this child.

The jj act and the modal rules lays specific duties for the police especially SJPUs vis a vis children such as to upgrade the police treatment of all juveniles and the children (Section 63), to coordinate and function as a watch dog for providing legal protection against all kinds of cruelty, abuse and exploitation of child or juvenile (rule 84(5)), to take serious cognizance of adult perpetrators of crimes against children and to see to it that they are without delay apprehended and booked under the appropriate provisions of the law (rule 84(6)), identifying CICL and CNCP in association with civil society(rule 84(7)) to name the few.

Child in Need of Care and Prptection: The specific role of police in how to address the situation when a child victim comes within their jurisdiction, is laid down in CrPC as well as JJ Act. This is more the procedural part which at best is but a skeletal and has to be augmented by the right attitude and inclination to do whatever is required in the best interest of the child. The police however, has historically and from the nature if its work profile is more inclined towards law and order and has more of crime criminal orientation. The change from crime and criminal orientation to victim orientation needs loads of efforts, interest and dedication in addition to a sensitized and dedicated police force. Whether it’s a case of physical, emotional or sexual abuse of the child, whether the child has been exploited for his work, whether the child is a street child with nowhere to go, a beggar, whether this child who is in need of care and protection of the law comes within the purview of law requires a sensitive citizen who is ready to intervene as well as a sensitive police force which is duty bound to take such children within its cudgels so that the JJ system becomes operational . These children invariably cannot stand up for themselves and need all the support possible to access to the services available to them under the law. The children being children are afraid of the formal system be it the police which goes to rescue them or the judicial system and the children homes where they are taken. At that point a soft and sensitive approach wherein the child can trust and find a friend and a guide in police will definitely mean a new life for the child and give him courage to break out of the shackles and rise towards a better destiny in addition to helping the police to nail the culprits.

There have been instances where in the children were so afraid of police with stories as well as image of police brutality that it often took lot of time to allay their fears and establish a congenial rapport with them, remove that hostility and build a confidence that police is acting in their best interest.

Child in Conflict with Law

First of all it has to be realized that any interaction with a juvenile delinquent is an opportunity to prevent him from committing the crime again. This missed opportunity often leads to juveniles downslide into involvement in repeated, serious and often violent crimes.

The jj act gives lot of discretion to police while dealing with children. The very concept of giving the discretion is so that the police person can act responsibly in the best interest of the child. As stated earlier, the police at the first point of contact with CICL and decides whether the child will be a part of criminal justice system at all or not. Thus the most important decisions in law enforcement are made by the police officers. At this point of contact is required the most balanced and appropriate response.

Under the JJ Act there are three categories of juvenile offenders, firstly those involved in petty offences where in the police officer has been given the discretion to sort the matter at the PS itself without resorting to any procedural requirements. The second category is of juveniles involved in non serious offences i.e. those entailing punishment of less than 7 years under the IPC. In this category the police officer can apprehend the juvenile only when it is in his best interest and then also can state that the child be treated as CNCP rather than the one in conflict with law. In serious offences wherein the punishment is more than 7 years, the police officer again has discretion on how he wants to treat the child.  Thus the discretion comes with a responsibility to see to it that the police child encounter results in a positive intervention.

What is required to fulfill the objectives of JJ Act is sensitive, proactive and dedicated policing wherein the theory can be converted into practice because on the police interaction lies the outcome of a situation as well as the future of the child. Now the question that arises is how to make the force proactive? what are the kind of officers who are becoming JWOs? what is there orientation and interest? what are the perks and resources available with the commensurate challenges in handling  juveniles?

Till these questions are dealt with, we have to make do with getting the job done through administrative directions and strict supervision. Thus we need to develop code of conduct for police personal in the lines of SOPs while dealing with children in different situations. Next step is involving the society at large. We need to rope in NGOs, other public spirited individuals, RWAs and other institutions like state legal service authorities which not only help the police agencies but also act as checks through their feedback mechanisms.

In Delhi Police, the SJPUs were created in each and every district. To bring about attitudinal and behavioral changes, training and sensitization programs were conducted for police officers at two level i.e., the police station level for all the functionaries at all level who are working in the field and at State level for all the JWOs of the Police stations. The idea was to have a sensitized police force at all levels including the field staff that invariably were the first point of contact with the child. The unique part of the police station sensitization programs is that it is being done by the NGOs working in the field of child rights. The NGOs resource persons visit the police stations regularly and interact with the police staff at all levels thus bringing in an outsiders perspective on how Delhi police is responding to children issues.

In addition to this we have an excellent networking with governmental as well as nongovernmental organizations working on child rights. It is a kind of symbiotic relationship wherein both are working for a common goal in an atmosphere of trust, support and mutual respect.  The end result is that NGOs and other organizations now work hand in hand with police in the best interest of the child.

 

PROBLEMS FACED BY POLICE in performing their duties vis a vis children

One of the major problem faced is that there is still no separate exclusive JWO or SJPU in the distt. Role conflict and lack of time as well as lack of logistic support affect the expectations from the police as the time and patience required to deal with the child is seldom there. Some of the other problems faced are

  1. the need for specialized training for appropriate handling of children
  2. the role conflict experienced by the police officer in solving a crime and helping the child.
  3. low community participation in addressing juvenile delinquency.
  4. poor police image and perception makes it difficult to establish a rapport with the child and to work within the community with mutual trust and goals.
  5. police has very little intervention or say when it comes to the orders for release or incarcerations  given by the JJBs. police rarely has any role in the after release processes that too when rules state that juvenile delinquency prevention is also one of the role of the JWO. Infect some of the orders of JJB have criticized the police officer from visiting the juvenile offender.
  6. the important point is that the positive efforts of the police do not get reflected in their output as it is measured more on crime and law and order data thus the stakes or value additions for taking on this additional work is not there in our tangible goal oriented organization as well as society.

Need of the hour is to deal with juvenile delinquency and cncp in a holistic manner, addressing at risk families so that preventive strategy can be put in place. At present there are not enough institutions and programs to help the delinquents to re-integrate in society and lead the life without crime. At times the trust that they can indeed successfully do so is also missing. Recently prayas has taken up this initiative and have started a program “yuva connect” in this regard.

Police actions have to be accompanied by actions from other institutions. Police has a limited role and cannot make any promises vis a vis resources, professional counseling and reintegration and on its own has nothing much to offer. What is required is a holistic interdepartmental approach in dealing with the delinquent and preventing them in future. In the absence of any concrete and effective rehab program and liberal courts and the fact that the repeat offenders are ever increasing, forming gangs, becoming hardened and getting involved in heinous crimes, there is chronic frustration in the police and thus the whole JJ system appears to be more symbolic than actually addressing the issue of juvenile delinquency.

Also we need to inculcate responsibility in the juvenile for his acts and omissions, the intervention of JWO should be encouraged to ensure that juveniles do not return to crime. The community service should be encouraged for reparation of their wrongs and last but not the least there is a need to develop competencies to develop the delinquents as productive citizens.

http://dpjju.com/index.php?option=com_content&view=article&id=374:p&catid=25:the-project

Paper delivered by Ms. Suman Nalwa, Addl.DCP/SPUW&C, Nanak Pura, New Delhi to National Seminar on Access to Justice-What it means to a child on 9th & 10th July, 2011 at Hall No. 6, Vigyan Bhawan, New Delhi

Integrated Child Protection Scheme (ICPS)

Devi and Arul, two street children. Thiruvanmi...

Image via Wikipedia

Evaluation of the child protection schemes of the Ministry of Women & Child Development, including the scheme ‘An Integrated Programme for Street Children’, in 2007 revealed shortcomings and gaps in these schemes and their implementation.To bridge these gaps and to provide safe and secure environment for overall development of children in difficult circumstances, the Government of India in the Ministry of Women and Child Development, has introduced a new comprehensive Centrally Sponsored Scheme, namely, Integrated Child Protection Scheme (ICPS) w.e.f. 2009-10 by merging three erstwhile schemes, including the scheme ‘An Integrated Programme for Street Children’ with additional components. This Scheme is being implemented through State Governments/ UT Administrations.

Under this Scheme, there is provision for setting up of ‘Open Shelters’ for children in need of care and protection, including the street children, in urban and semi-urban areas. The programmes and activities of these Open Shelters inter alia include age-appropriate education, access to vocational training, recreation, bridge education, linkages to the National Open School Programme (NOSP), health care, counseling etc.

There is no proposal in the Ministry of Women and Child Development to conduct a specific study to ascertain the number of street children in the country; However, ICPS provides for setting up of District Child Protection Societies by the State Governments/ UT Administrations in every district of the State. The role and responsibility of the District Child Protection Society includes identifying families and children at risk to prevent destitution of children and carrying out a situational analysis of children in difficult circumstances, including street children.

Section 62 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that every State Government/Union Territory Administration shall constitute Child Protection Units for every district. To facilitate the States/UTs in setting up such Units, financial assistance is being provided to them on a cost sharing basis (90 per cent for North Eastern States and State of Jammu & Kashmir and 75 per cent for other States) through a Centrally Sponsored Scheme, namely Integrated Child Protection Scheme (ICPS).

As ICPS has been introduced very recently, i.e. in 2009-10, and the States have just commenced the implementation the Units are being progressively established by them. During the current year, 18 States have submitted the financial proposals for release of grants under this Scheme. Funds have already been released to 7 States. State -wise number of Units established, and funds released to them are at Annex.

ICPS provides for establishment of institutional mechanisms for monitoring the implementation of ICPS, including performance of the DCPS. Such mechanisms include District Child Protection Committees (DCPCs) at District level and State Child Protection Committee (SCPC) at State level and Central Project Support Unit (CPSU) under the Government of India in the Ministry of Women and Child Development. As the Scheme is at the initial stage of implementation, it is early to undertake the annual appraisal.

This information was given by Smt. Krishna Tirath, Minister of State for Women and Child Development in a written reply to a question in the Lok Sabha today.

YSK:PM
(Release ID :67659)

SC orders probe into trafficking of NE kids

Posted in CHILD ABUSE, CHILD RIGHTS, SUPREME COURT, TRAFFICKING, VICTIMS by NNLRJ INDIA on April 1, 2010

NEW DELHI: Following reports of 76 children from Assam and Manipur, most of them minor girls, being rescued from “homes” run by missionaries in Tamil Nadu, the Supreme Court on Wednesday ordered a probe into a possible trafficking racket involving tribal children. The Tamil Nadu police, in its affidavit before the SC, said, “Pastor Shaji was arrested at Somanur in Coimbatore district on February 12 and remanded to judicial custody. Effective steps are being taken to nab the absconding accused Rev Paul.”  A Bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan accepted amicus curiae Aparna Bhat’s suggestion for a probe into the matter. The National Commission for Protection of Children’s Rights will carry out the probe.  Additional solicitor-general Indira Jaising said the TN police had not detailed the facts of the case to the court. “How could these children be taken more than 1,000km away without anyone noticing anything,” Jaising asked.

http://timesofindia.indiatimes.com/india/SC-orders-probe-into-trafficking-of-NE-kids/articleshow/5748702.cms

In this regard Shakti Vahini and Vikalpadhara had approached the National Commission for Protection of Child Rights (NCPCR ) and Ministry of Home Affairs on January 10 , 2010  to investigate and order a CBI enquiry of large scale trafficking of children from North East.

Protecting children

Posted in CHILD ABUSE, CHILD RIGHTS, CONSTITUTION, SEXUAL OFFENCES, VICTIMS by NNLRJ INDIA on March 24, 2010

R.K. RAGHAVAN IN THE FRONTLINE

A national consensus should be built on the method to combat child abuse.

We are supposed to be living in times of “transparency”, whatever that hackneyed expression may mean. There are now very few icons. Fewer are the sacred cows. There are no holds barred at all when it comes to probing the lives of public figures and the functioning of hallowed institutions. The Vatican and the Catholic Church of Ireland have in the past few weeks come under separate clinical scrutinies.

During a campaign in Hyderabad on World Day for Prevention of Child Abuse. A November 19, 2007

During a campaign in Hyderabad on World Day for Prevention of Child Abuse. A November 19, 2007

Allegations are flying in the media about Pope Benedict XVI and his older brother Georg Ratzinger (85). First is the charge that the Holy Father, as an Archbishop at the Munich diocese, had approved housing for a priest who had sexually abused an 11-year-old boy. Years later, the priest was said to have been given a suspended sentence for child abuse offences. He is possibly still functioning in Bavaria, although he has not come to adverse notice again. As for the Pope’s brother, for 30 years he was associated with a choir near Berlin that had reported many instances of abuse of choir boys.

Although Ratzinger claims the allegation goes back to a period prior to his time at the choir, one Thomas Mayer surfaced suddenly to complain that he had, in fact, been sexually assaulted by older boys in the choir when Ratzinger was in charge. (This is typical of many instances of sexual attacks on children. The victims remain reticent and come up suddenly with charges after a lapse of decades. This raises credibility problems even if a reported assault did happen.)

Close on the heels of the controversy surrounding the Vatican comes a report from Ireland where the Catholic church is embarrassed by revelations that Cardinal Sean Brady had, way back in 1975, forced at least two child victims to take a vow of secrecy about their experience with Father Brendan Smyth. Brady had been directed by his Bishop to probe the happening reported from counties Louth and Cavan. When interviewed, two abused boys confirmed the physical violation but were asked not to share their stories with anyone else.

The findings were passed up the hierarchy, following which Father Smyth’s right to practise as a priest was withdrawn and he was advised to seek psychiatric help. The matter was not taken to the police nor was anything done to monitor the offender’s activities thereafter.

Shockingly, Father Smyth went on to abuse more children. Ironically, the revelations come 35 years after the abominable happening. While the abuse is still actionable by the police, there is a view that administering the oath of secrecy to the victims by Father Brady itself constitutes an offence. The priest, now a Cardinal, has taken the position that his action of 1975 should not be judged by present-day standards of juvenile safety, and that he was satisfied with what he did in deactivating the offending priest.

There are indications that we have not heard the last of what seems to be a ballooning controversy on the role of the clergy in putting an end to juvenile abuses within the church premises.

It is too early to believe or discard these charges before they are investigated in depth. They can, however, cause immense damage to the Vatican and the Irish Catholic church because child abuse is, rightly, now an explosive subject as it involves conduct that cuts at the roots of civilised behaviour. Even a hint of suspicion that an individual had indulged in it or that an institution had connived at a cover-up could lead to acute embarrassment.

Indian experience

The point is that sexual abuse of children is a reality wherever children are taught or made to live in a group under even a semblance of authority. Residential schools and orphanages are especially vulnerable. In India – not exactly known for transparency until the arrival in recent years of the visual media in full strength – there have been far too many such unsavoury episodes for comfort. Institutional abuse of children is rampant, but it seldom comes out in the open.

Recall the recent charge-sheeting of Dutch national William Heum (56), who has been facing trial since 2002 for child molestation. Recently, he was indicted for possession of child pornography. He is accused of having posted prurient material on the Internet in 2005 and is also said to have made a confession to the police, which he now denies. Heum has been in India for three decades and claims that he is a social worker associated with an orphanage in Mahabalipuram.

India is a favourite destination for foreign tourists looking for child sex, and there are several studies that highlight the laxity in procedures that facilitates access to potential victims. Take, for example, the case of Australian businessman Paul Henry Dean, who made India his home in the late 1970s when he disappeared from his native country to begin a new life as a holy man and healer.

After spending the initial years in an ashram in South India, he migrated to Andhra Pradesh and Orissa where he was living among leprosy patients. He also took to paramedical training of the local youth, aided by the slender knowledge that he acquired watching local doctors in action. It was in Titsagarh (Orissa) that he came to adverse notice for sexual contact with young boys, for which he was reported to the police.

In 2001, cases were initiated against him for engaging in unnatural sex and for violations of the Passport Act. It is also known that statements against him were recorded by the police in 2008. Dean has strongly denied all the charges. One does not know the fate of the investigation. The Australian government has also not shown any great enthusiasm to bring him to book because it is more than 30 years since he fled Australia. This case alone would indicate how easy it is to enter our country on specious grounds and remain here to indulge in objectionable activities.

Despite the fact that our child population is more than 400 million, and several studies – including the one conducted by the Government of India in 2007 – point to sexual exploitation of more than 50 per cent of our children, for the police in India, combating sexual assaults against children is of a low priority. Some senior officers have shown significant interest. They cannot, however, make any difference until officers in the lower rungs, such as deputy superintendents and station house officers, are also sensitised sufficiently so that they look out for prowlers like Dean. But then they need strong legislative support. The law is barely adequate to neutralise those who target hapless children, especially those in the lower economic strata who suffer from parental neglect and a poor school ambience.

Unlike countries such as the United Kingdom, we do not have a specific legislation that deals with sexual offences. The proposed expansion of the definition of “rape” in the Indian Penal Code may not address the growing problem of sexual exploitation of children.

It is gratifying that Union Law Minister M. Veerappa Moily has shown commendable interest in drafting a special law to meet the situation. The Law Commission’s 172nd Report and the National Women’s Commission’s draft recommendations are a good guide to drafting the contemplated law. The Supreme Court in its Sakshi ruling of 2004 suggested that major amendments be made to the existing criminal law or a new Act be enacted to deal with sexual violence against children.

Bringing in a new law goes only half the way in tackling the menace that greatly affects the younger generation. It goes without saying that all of us who have a stake in the welfare of our children need to spread the message against predators looking to satiate their reprehensible appetite for children.

We must remember that child victims of sexual assault experience the same level of trauma as rape victims. Unchecked, this evil poses a grave threat to the health of future generations. This is why there is a need to build a national consensus on how to combat it by strengthening the law and the enforcement machinery such as the police. The media can also play a positive role here.

http://www.frontlineonnet.com/stories/20100409270710500.htm

CJI advocates ‘due regard’ for victim’s wish to marry her rapist : WHATS HAPPENING TO THE CHIEF JUSTICE OF INDIA

This news appeared in the Indian Express. This is a very important Indicator of the levels of sensitization our Judiciary has on issues related to women and children. If this is the statement of the Chief Justice of India just imagine what might be the situation in the lower Judiciary.

CJI AND MOILY AT WOMENS MEET

CJI AND MOILY AT WOMENS MEET

CJI advocates ‘due regard’ for victim’s wish to marry her rapist : INDIAN EXPRESS

Chief Justice of India (CJI) K G Balakrishnan today said that “due regard” should be given to the wishes of a rape victim if she chooses to marry the rapist or have the baby conceived as a result of the crime.“Due regard must be given to their personal autonomy since in some cases the victim may choose to marry the perpetrator or choose to give birth to a child conceived through forced intercourse,” Balakrishnan said. The CJI was addressing the national consultation on access to justice, relief and rehabilitation of rape victims, organised to mark International Women’s Day, which is being observed tomorrow. Several high court judges and judicial officers were present in the audience.

Women’s rights activists were not amused by the CJI’s stand.“His statement is extremely unfortunate,” asked Brinda Karat, general secretary, All India Democratic Women’s Association. “We expect the CJI to be concerned about extremely low conviction rate in rape cases, delay in deciding the case and the fact that victims are more often than not also blamed for the occurrence of the crime. Instead, the CJI chooses to take this line. Is he suggesting that this could be a viable alternative for the victim?”

National Commission for Women (NCW) chairperson Girija Vyas also took exception to the CJI’s statement.

“I don’t agree with his contention,” Vyas said. “If what he has suggested were to happen, it would be an easy way out for the rapists, who would first commit rape and then, if caught, make an offer to marry the victim. For the victim, such a marriage would be like dying every moment. Rapists deserve the strongest possible punishment,” she said.

Union Minister for Women & Child Development, Krishna Tirath, whose Ministry organised the event, reacted cautiously, saying the CJI’s suggestion would have to be read on a case-by-case basis. In his address, Balakrishnan also said that judges, lawyers and social activists should not take an “overtly paternalistic approach” while making decisions for the welfare of rape victims.At the same time, he refused to accept the argument that “high mobility” of women in modern times was one of the reasons for the sharp rise in the number of rapes. “I do not agree with this proposition. Because it is the task of the criminal justice system to prevent and punish the culprits,” he said.

Women’s rights activists pointed out that the CJI’s view flew in the face of a ruling by the Supreme Court, which said that neither a proposal of marriage nor any other settlement between the rapist and his victim could condone the crime.In 2006, the apex court had observed that rape was “a crime against basic human rights” and violative of the victim’s Right to Life.

(With Agency inputs)

http://www.indianexpress.com/news/cji-advocates-due-regard-for-victims-wish-to-marry-her-rapist/588136/0

Respect personal autonomy of rape victims, says K.G. Balakrishnan

Chief Justice of India K.G. Balakrishnan has said “due regard” must be given to the “personal autonomy” of rape victims to decide on whether they should marry the perpetrator or choose to give birth to a child conceived through forced crime. Speaking at a national consultation on “Access to Justice, Relief and Rehabilitation of Rape Victims” here on Sunday, Justice Balakrishnan said judges, lawyers and social activists should also ensure that they do not take an overtly paternalistic approach when they have to make decisions for the welfare of rape victims.

“It is not possible for policy makers and judges to prescribe a ‘one-size-fits-all approach’ and we must make honest efforts to build the institutional capacity needed for the proper rehabilitation of rape victims.” Calling for a robust discussion on the proposed comprehensive “Scheme for Relief and Rehabilitation of Victims of Rape” mooted by the Women and Child Development Ministry, the Chief Justice also said that the Centre’s proposed bill which contemplates the creation of fast-track courts to try sex-related offences, must also keep in mind the interests of the victim, and not merely punish the offenders.

“Adequate attention should also be drawn to suggestions for provision of shelter, counselling services, medical and legal aid. It must be kept in mind that an act of rape or molestation can have long-lasting consequences such as mental trauma, physical disability and frustration of prospects for marriage and employment.” He also referred to the ‘secondary victimisation,’ which a rape victim often has to suffer during the trial of the accused due to inconvenient, probing and often indecent questions by defence counsel.

“There is a very real phenomenon described as ‘secondary victimisation’ wherein the victim of a crime faces additional harassment and humiliation in the course of investigation and trial. Especially when the perpetrators are in a position of power over the victims, there is a strong distrust of the credibility of the investigation itself,” Justice Balakrishnan pointed out. “Some recent cases highlighted in the press have shown how the investigative machinery can often be manipulated to protect influential persons, howsoever reprehensible their crimes may be,” he said. “The investigators, prosecutors and defence counsels must exhibit an appropriate degree of sensitivity to the victims,” he said.

The CJI also highlighted recent changes in law, which provide that the past sexual history of victims must be ignored.

http://beta.thehindu.com/news/national/article202464.ece

Wanted: A fairer law

BY MANOJ MITTA IN TIMES OF INDIA CREST EDITION

How could a woman of easy virtue claim to have been raped? The policemen accused of raping a tribal woman were let off on that reasoning. It took such a miscarriage of justice by the Supreme Court in the 1978 Mathura rape case to trigger a nationwide campaign against anti-woman laws. Many changes have since been made in the statute book, including the provisions relating to rape. Manoj Mitta looks at some of the more important gender law reforms that are overdue… 

RESERVATION FOR WOMEN IN ASSEMBLIES AND PARLIAMENT

Despite misgivings of tokenism, the 1993 measure of reserving one third of the seats for women in the third tier of the Indian democracy – Panchayati Raj and Nagar Palika – has proved successful in empowering the targeted group. But all attempts to extend the same principle to state legislative assemblies and Parliament have come to naught because of resistance, overt or covert, from various political parties. However, the latest attempt made in 2008 seems promising, not the least because the Bill was introduced for the first time in the Rajya Sabha and, therefore, did not lapse when there were elections to the Lok Sabha the following year. One sticky issue that has remained is that the proposed rotation of reserved constituencies in every election may reduce the incentive for an MP to work for his constituency as he may be ineligible to seek re-election from there.

COMPULSORY REGISTRATION OF MARRIAGES

In a bid to prevent child marriages, polygamy and desertions, the Supreme Court declared in 2006 that it was compulsory for all marriages to be registered. But when it reviewed the implementation of its verdict the following year, the apex court found that only some of the states had framed the necessary rules for compulsory registration of marriages. It was also noticed that those fresh rules were made only in respect of Hindus. None of the states dared touch the Muslim law, partly because it apparently permits polygamy and partly because the Supreme Court judgment was liable to be misconstrued by minorities as an attempt to force a uniform civil code through the backdoor. The Hindu law was perceived to be more amenable to this reform as it already provides registration of marriage as an option.

ACCEPT IRRETRIEVABLE BREAKDOWN OF MARRIAGE

While divorce by mutual consent or no-fault divorce was introduced way back in 1976, no government has so far mustered the will to enact the next logical reform. Namely, to empower the courts to grant divorce even when one of the two parties is opposed to it and none of the prescribed grounds for divorce could be established. The Supreme Court has repeatedly called for the introduction of “irretrievable breakdown of marriage” so that the judiciary in India, as its counterparts in advanced countries, is empowered to grant divorce on coming to the conclusion that the marriage was beyond repair.

RESTRICT THE FREEDOM TO BEQUEATH ONE’S PROPERTY

The unfettered freedom among Hindus to bequeath their self-acquired properties to any person(s) of their choice has often worked against the interests of their female legal heirs, especially daughters. Experts have suggested that a Hindu should have the discretion to bequeath by a will only up to two-thirds of his properties. The remaining one-third of his estate should be governed by the succession law, which has been reformed in recent years to include daughters among legal heirs.

CHECKING ABUSE OF DOWRY LAW

The abuse of Section 498A IPC is as patent as the need to confer such protection on the wife from the cruelty of the husband or his relatives for dowry or otherwise. There is clearly a need to amend this law, if nothing else because women too (mothers-in-law or sisters-in-law )are often casualties of its abuse. In a bid to save this well intentioned provision from the odium of being a cover for blackmail, the courts have repeatedly directed that the police should not resort to arrests till they complete their investigation and file a charge sheet.

ALLOWING WOMEN TO COMPLAIN AGAINST ADULTEROUS HUSBAND

In one of its most anti-feminist provisions, the Indian Penal Code 1860 defines adultery as an offence that is actionable only between the adulterer and the aggrieved husband. But if the husband commits adultery, the wife cannot seek action against him and his sexual partner. The husband can get into trouble only if his sexual partner happens to be married and, then too, only from her husband. Surprisingly, the Supreme Court upheld this iniquitous provision in 1985 on the ground that it was dealing with “a wrong against the sanctity of the matrimonial home”. But the Law Commission and the Malimath Committee on criminal justice reforms proposed that the adultery provision be made gender-neutral.

WIDENING THE SCOPE OF RAPE

For all the possible ways in which this extremely violent offence is committed, the definition of rape, provided in Section 375 of the Indian Penal Code 1860, hangs by a narrow thread. While “sexual intercourse” is a necessary condition, “penetration” is stipulated as a sufficient condition. This means that, however much he might have sexually assaulted the victim, the offence of rape is not made out unless the crime involved “penile-vaginal penetration”. The Law Commission, therefore, suggested a fresh definition, which makes it clear that penetration could be of vagina, anus or urethra, with any part of the body of another person or object manipulated by another person. It also seeks to include oral sex and manipulation of any part of the body with sexual intent.

CRIMINALISING MARITAL RAPE

One leftover of the old notion that the wife is the husband’s property is the absence of any recognition of the fact that she could be raped even within the institution of marriage. Mercifully, the one circumstance in which marital rape is acknowledged by law is when the wife is less than 15 years old. Even so, she will have to lodge the complaint within a year and then the husband, upon conviction, would get a maximum sentence of two years. This is a far cry from the minimum stipulated sentence of seven years for rape. Though child wives do need greater protection, there is no justification for the presumption that, unlike their counterparts in western countries, Indian wives above the age of 15 can never be raped by their husbands. The closest the law has come to recognising this crime is in the context of the 2005 Domestic Violence Act, which created a civil remedy for such victims even as it refrained from criminalising marital rape.

ENACT A LAW ON SEXUAL HARASSMENT

The Victorian vintage provisions dealing with “outraging the modesty” of a woman (Section 354 IPC) and “insulting the modesty” of a woman (Section 509) are clearly out of date. The notion of regarding a woman in terms of her “modesty” does not fit in with a world where she competes with men on equal terms. The Supreme Court sought to redress this anomaly in its landmark Vishakha verdict in 1997, when it laid down guidelines for dealing with sexual harassment at work place. This temporary measure, meant to be replaced by legislation, has proved ineffective as it depends on the responsibility of employers to create a remedial mechanism. So, one option before Parliament is to enact a special law on the lines of the court guidelines. Another option is to amend the Indian Penal Code as suggested by the Law Commission in 2000. The panel recommended replacing the ‘outraging the modesty’ clause with one dealing with “unlawful sexual contact”, which would cover touching the body of any person other than one’s spouse “with sexual intent and without the consent” of such person.

HIGHER PENALTY FOR MOLESTATION OF CHILDREN

The Ruchika Girhotra case of last year has served to highlight a lacuna in the Indian law which, contrary to a progressive global trend, does not contain any special provision for child victims of sexual molestation. While there are special provisions in Section 376 IPC for child victims of rape, where the minimum punishment is 10 years jail as against the norm of seven years, Section 354 IPC, covering all forms of non-consensual contact other than rape, makes no such distinction between adult and child victims. Hence, the “unlawful sexual contact” provision suggested by the Law Commission is designed to enhance the penalty for child abusers to seven years from the present level of two years for any molester.

PENALISE CLIENTS OF PROSTITUTES

The strict restrictions imposed by the Immoral Traffic (Prevention) Act on where and how prostitution could be practiced resulted in action being taken most of the time against the victims themselves. An amendment Bill introduced by the Manmohan Singh government in the earlier Lok Sabha in 2006 seemed to be a step in the right direction. But after it lapsed in 2009, with the dissolution of that Lok Sabha, UPA II has not so far revived the proposal of reforming the trafficking law. The reforms included deletion of the provisions that penalised prostitutes for soliciting clients. Instead, the 2006 Bill for the first time sought to punish any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. The provision to penalise clients of prostitutes has, however, raised apprehensions that it could drive the flesh trade underground and thereby block legal channels of support to victims of trafficking.

http://timesofindia.indiatimes.com/india/Wanted-A-fairer-law-/articleshow/5649420.cms

SC snubs govt, media on child labour and prostitution

Posted in CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, JUVENILE JUSTICE, LIBERTY AND JUSTICE, PIL by NNLRJ INDIA on February 11, 2010

FROM THE INDIAN EXPRESS

Even as the Centre suggested banning use of children in TV reality shows, the Supreme Court on Monday criticised the authorities for failing to enforce the existing laws to prevent exploitation of children for prostitution and labour.The apex court also minced no words in expressing displeasure at the conduct of the media which it said was more focussed on the GDP growth, big business houses and Ambanis’ instead of focussing on issues relating to exploitation of children.

A bench of Justices Dalveer Bhandari and A K Patnaik, while dealing with a PIL on exploitation of children for labour and commercial sex, said even though there are enough laws to combat such offences, the necessary will was awfully lacking in the government.”Our system is in such a way that it is only the most powerful who are able to have their way. It is only the powerful who are in a position to influence.

“Unless people at the top act, nothing will happen.What is the point in passing directions when they are not implemented? We have passed so many directions in Narmada Bachao Andolan case,” the bench said. The apex court made the remarks after Solicitor General Gopal Subramaniam came out with a suggestion that the apex court should pass directions to ensure children are not exploited for labour, including their use for TV reality shows.

http://www.indianexpress.com/news/sc-snubs-govt-media-on-child-labour-and-prostitution/577151/

Our crimes against our children

Praveen Swami IN THE HINDU JANUARY 21, 2001

By the grim standards of the dystopia India’s children inhabit, S.P.S. Rathore’s crime was utterly ordinary.

In December last, Indians watched in outrage as S.P.S. Rathore, former Haryana Director-General of Police, smirked at the end of court proceedings which saw him receive a six-month prison sentence for sexually abusing a teenager 19 years ago.

Not far from the Chandigarh courtroom where Rathore was convicted, a panchayat in Rohtak gathered to discuss the fate of a seven-year-old girl who had been sexually abused by a retired schoolteacher. The panchayat ordered that the hair of the perpetrator, Sushil Kumar, be shaved off — but asked the victim’s family not to inform the police. It was only three weeks later, after Kumar’s sons threatened the family, that the matter was reported to the police. The child’s story was buried in inside pages of local newspapers; the police say evidentiary issues render it unlikely the perpetrator will ever be punished.

Kumar is not the only paedophile who has not received national attention. Few know the story of a two-year-old raped by a construction contractor in Bangalore, a 10-year-old girl from Valsad raped by her uncle or the Latur teenager raped by three young men in her village and hanged from a jamun tree. Part of the reason Rathore’s appalling crime drew attention was that it fitted neatly with tropes of villainy familiar from pop-culture: among them, uniformed criminals immune from the law and powerful politicians who guarantee them impunity.

But the truth India has shied away from these past weeks is this: Rathore’s crime was, by the standards of our society, utterly ordinary. For the most part, India’s children live in a nightmare; a dystopia founded on our collective complicity and silence. By the Government of India’s account, more than two-thirds of Indian children experience beatings in their homes, schools, workplace and government institutions — beatings which, if conducted in prison cells, would count as torture. Every second child in India, the government says, also faces one or more forms of sexual abuse.

Yet, no government has found the time or energy to enact a law against the abuse of children — leaving the authorities, when they can bestir themselves to deliver justice, to respond using legalisation intended to prevent prostitution, beggary, trafficking and rape. There is no institutional machinery to investigate schools, homes and children’s workplace for sexual and physical abuse. There are no police officers trained in the special skills needed to deal with child abuse. Barring a handful of organisations and individuals working to address the needs of abused children, there is no resource which victims and their families can turn to for help.

Terrifying facts

In 2007, the Union Ministry of Women and Child Development released the thoughtful —and terrifying — Study on Child Abuse in India. More than 12,000 children were polled to arrive at an empirical picture of the scale of beatings and sexual crimes that Indian children endure. Fifty-three per cent of the children said they had encountered “one or more forms of sexual abuse;” 68.99 per cent said they had suffered physical abuse, including beatings. More than a fifth reported severe sexual abuse, including assault, having been compelled to fondle adults’ private parts, exhibit themselves or be photographed nude. Well over half of those reporting severe sexual abuse were boys, the study found.

Popular wisdom holds that sexual abuse takes place when children are in environments outside the supposedly safe confines of their homes and schools. That, the study found, was simply not true. Fifty-three per cent of children not going to school said they had been sexually abused in their family environment. Just under half said they had encountered sexual abuse at their schools. These figures, interestingly, were about the same as children in institutional care who said they had been sexually abused — 47.08 per cent. Most vulnerable were children in workplaces, 61.31 per cent of whom had been sexually abused.

Boys in all but four of 13 States — Gujarat, Madhya Pradesh, Maharashtra and Goa — were found to be more at risk of sexual abuse than girls. In Delhi, a staggering 65.6 per cent of the boys reported that they had been sexually abused.

Most at risk of serious sexual abuse, the study found, were children between 11 and 18 — although the group between six and 10 also reported significant levels of assault. Analysed by age group, the study states, sexual abuse was reported by “63.64 per cent child respondents in the age group of 15-18 years, 52.43 per cent in the age group of 13-14 years and 42.06 per cent in the age group of 5-12 years.” Assam, Delhi and Andhra Pradesh were found to have the highest levels of sexual abuse, with Uttar Pradesh, Gujarat and Goa recording the lowest.

We know, from separate studies, that the use of children in prostitution is also widespread. In their 2005 study, Trafficking in Women and Children in India, S. Sen and P.M. Nair estimated that there are up to half-a-million girl children from across the South Asian region working as prostitutes in India.

Elsewhere in the world, the existence of well-functioning justice mechanisms — and an open public debate on child sexual abuse — seems to have helped contain the problem to at least some extent. In the United Kingdom, a 2000 study by the National Study for the Prevention of Cruelty to Children found that about 16 per cent of children experienced sexual abuse before the age of 16. In the United States, one in four girls and one in six boys reported similar experiences. Horrific as these figures are, they are still well below the levels the Government of India’s study suggests are prevalent in our country.

Victims of violence

Depressingly, sexual abuse is only part of a wider gamut of violence. Sixty-nine per cent of the children polled reported having been physically abused — a term the authors of the Study defined as behaviour manifesting itself in kicking, slapping or corporal punishment at homes, schools, institutions and workplaces. In all the 13 States covered by the study, the incidence of physical abuse directed at children was above 50 per cent — a sign of just how widespread and legitimate the use of force is considered across the country. More than 80 per cent of children in Assam, Mizoram, Delhi and Uttar Pradesh reported physical abuse.

Most of the victims of physical abuse, the Study found, were very young children. Forty-eight per cent of the respondents who reported physical abuse were between five and 12 years old, while 26.29 per cent were 13 or 14. Older children, aged between 15 and 18, seemed to be targeted less for violence; just over a quarter reported encountering abuse. Boys reported encountering violence more often than girls in all States except Gujarat and Kerala. “In all age groups, an overwhelming majority of children (65.01%) reported being beaten at school, which means that two out of three children are victims of corporal punishment.”

The findings of the Study, its authors noted, were broadly corroborated by several other independent studies. Maulana Azad Medical College researcher Deepti Pagare found that over three-fourths of children in Delhi’s Child Observation Home had reported being subjected to physical abuse. Signs of abuse were found on the bodies of about half the children studied by Dr. Pagare. Fathers made up over half the reported perpetrators, and Dr. Pagare found a significant association between physical abuse of children and domestic violence in homes as well as substance abuse. Save the Children and Tulir, in a 2006 study conducted in West Bengal, found that almost three-quarters of child domestic workers had been physically abused. In 41.5 per cent of cases, the perpetrator was a member of the employers’ family.

What needs to be done? For one, India’s criminal justice system simply doesn’t have either the legal instruments or police infrastructure to deal with crimes against children. Despite calls from campaigners and child-rights groups, India is yet to pass a specific law on child sexual abuse — a legislative failure that makes prosecution in many situations almost impossible. Early this year, Punjab and Haryana High Court judges Mukul Mudgal and Jasbir Singh announced that they intended considering guidelines for the prosecution of child abuse cases. However, thoroughgoing criminal justice reforms will be needed for such efforts to yield results. Just 0.034 per cent of the Plan expenditure in 2006-2007 — an appalling figure — was committed to child protection.

In 1974, the National Policy for Children declared children a “supreme national asset.” No country in which two-thirds of children report beatings, and half experience sexual abuse, can make that claim with honesty. We must rip away the shrouds of silence that conceal the sheer pervasiveness of child abuse in our society. Our silence and inaction against the paedophiles in our homes, schools and neighbourhoods make us complicit in the horrific crimes being perpetrated against our children.

Source:  http://www.hindu.com/2010/01/21/stories/2010012155080800.htm

The rot within

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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