Govt must encourage democratic rights, not police power: Jaitley

ARUN JAITELY IN THE PIONEER

The Supreme Court has pronounced a landmark judgement on the incident that took place on the midnight of June 4-5, 2011 at Ramlila Maidan, Delhi where Baba Ramdev and his supporters were carrying on a protest against corruption and prevalence of black money in India.

They were agitating against the reluctance of the Government to take key steps to eliminate the menace of corruption and black money.

Admittedly, the protest was peaceful. The essence of democracy is the right to have an alternative opinion and to agitate for its acceptance. The term Satyagraha, originated in a news-sheet Indian Opinion in South Africa in 1906. It was an adaptation by Gandhiji from one of competition entries in South Africa. Satyagraha went beyond the concept of ‘passive resistance’. The essence of Satyagraha was non-violence but aggression. Its force lay in truth and the ability to struggle for it. The satyagrahi invited to himself the adverse consequences of his action. He was willing to suffer the punishment as consequence of his struggle.

The Supreme Court in its judgement has upheld the right to peaceful protest as a Constitutional right. The Court has rightly observed – “Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance.

The Government has to respect, and in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions”.

The right to peacefully protest subject to just restrictions is now an essential part of free speech and the right to assemble. Additionally, it is an affirmative obligation of the State to make that exercise of this right effective.

Recent experiences have shown that the political establishment encourages the use of police powers to render weak and otiose the exercise of such rights. Team Anna repeatedly had difficulties in being allotted a centrally-located place to organise its protest. Police powers were used to dictate that the size of protest must be miniscule and not large. When large open areas, such as the Ramlila Maidan and other centrally-located sites are available, recent experiences have shown that police discretion has been used to discourage people from using such sites for organising protests. The Supreme Court has taken note of some such practices.

A reading of the judgement of the Supreme Court confirms the fact that the protest by Baba Ramdev and his supporters was absolutely peaceful. The Supreme Court has observed that – “There was no disturbance or altercation whatsoever and the followers of Baba Ramdev were peacefully waiting in queues that stretched for over two kilometres. If the police wanted to limit the number to 5,000, it could have easily stopped the people at the gate itself.

However, no such attempt was made. The conduct of the police goes to indicate that the police action resulted from instructions from the Government and their current stand regarding the number of persons present is nothing but an after thought.”

The court, further referring to the conduct of the protesters, noticed that – “None of the stated conditions, admittedly, had been violated, and as such there was no cause for the police to withdraw the said permission…Even for the sake of arguments, it is assumed that there was a requirement for seeking permission from the police and the police had the authority to refuse such a permission and such authority was exercised in accordance with the law, then also this respondent and the public at large were entitled to a clear and sufficient notice before the police could use force to disperse the persons present at the site. Imposition of an order under Section 144 Cr PC was neither called for nor could have been passed in the facts and circumstances of the present case…

In fact the order was passed in a pre-planned manner and with the only object of not letting Baba Ramdev to continue his fast at the relevant date and time… The documents on record show that some of the police personnel certainly abused their authority and were unduly harsh and violent towards the people present at the Ramlila Maidan, whereas some others were, in fact, talking to the members of the gathering as well as had adopted a helpful attitude.”

What happened on the midnight of 4-5th June, 2011 at Ramlila Maidan becomes increasingly clear from the final directions of the Court. A peaceful protest was being organised by Baba Ramdev and his supporters as a part of their Constitutional guarantees when Section 144 was unlawfully imposed.  The protesters were peaceful. They had followed every condition imposed on them. The entry into the pandal was regulated by the police. Suddenly a decision was taken to evict the gathering.

The Supreme Court in this regard has observed – “The decision to forcibly evict people sleeping at Ramlila Maidan at the midnight of 4-5th June, 2011 whether taken by the police independently or on consultation with the Ministry of Home Affairs, is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the Right to Freedom of Speech and Expression was unsupported by cogent reasons and material facts. It was an invasion of legal protections available to them even under the provisions of the CrPC.

Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution… From the facts and circumstances that emerge from the record before this Court, it is evident that it was not a case of emergency.”

The Court has further held that even if the Government decided to evict the people present, they were entitled to a reasonable notice. On the contrary, disproportionate force was used, water canons, lathi charge and tear gas shell injuring many people and leaving one dead.

These conclusions by the Supreme Court upheld the Constitutional guarantees that citizens are entitled to.  They go a long way in strengthening the Indian democracy and allowing space for peaceful dissent within our political system. The observations of the court and the law so declared will go a long way in safeguarding the right to protest, which makes dissent co-existent with democracy. The Court deserves full credit for this.

However, after this, the judgement takes a curious turn. It imposes an obligation on the protesters to obey every lawful order. Admittedly, neither the imposition of Section 144 in this case nor the withdrawal of permission or the manner of forcible eviction were lawful. Why should the protesters have accepted such an order? How then can the principle of ‘contributory negligence’ be imposed on a protester who was exercising his fundamental right to protest?

The concept of ‘contributory negligence’ is born out of a law of tort. It cannot be used to dilute the width and exercise of a Fundamental Right. ‘Contributory negligence’ is a defence where a person who is wronged could have acted in his own interest and taken due care and caution so that not to contribute to injury. It is a legal plea available as a defence in a Tort action. Its application to restrict the exercise of Fundamental Right is wholly unwarranted and legally untenable.

India attained its Independence through peaceful struggle. Passive resistance, civil disobedience and Satyagraha are well-known instruments of protest. They essentially involve peaceful and non-violent methodologies of protest. Satyagraha is an instrument where truth is used for assertion. A satyagrahi himself bears the punishment for violating the law and for disagreeing with an oppressive regime. To equate the right of a satyagrahi with contributory negligence undoes the advantage of an otherwise landmark law that this judgement has laid down. If a protester is within his Constitutional rights to organise a peaceful protest, he is equally within his rights not to accept an illegal order denying his right to protest. He runs the risk of being punished if the order is held to be lawful. But when a protester violates Section 144, he is always willing to suffer a punishment.

The law declared is understood to mean that every time his fundamental right to protest is intercepted by the State; he must immediately comply with the order or run the risk of being liable for contributory negligence. A citizen cannot be compelled to abdicate his Fundamental Rights merely because the State decides to restrict his right to protest.

The judgement of the Supreme Court lays down a landmark law inasmuch as it upholds the right to protest as a Fundamental Right of Speech and assemble.

However, it shakes the foundation of the Fundamental Right by laying down a highly doubtful proposition that once the right to protest is denied, the protester must meekly accept the denial or run the risk of a contributory negligence to the police oppression. This part of the judgement requires extensively debate and possible reconsideration.

Writer is Leader of Opposition in the Rajya Sabha

http://dailypioneer.com/nation/45862-govt-must-encourage-democratic-rights-not-police-power-jaitley-.html

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Draft Real Estate (Regulation & Development) Bill, 2011, Draft Model Property Rights to Slum Dwellers Act, 2011 and Central Legislation for Street Vendors

Draft Real Estate (Regulation & Development) Bill, 2011, Draft Model Property Rights to Slum Dwellers Act, 2011 and Central Legislation for Street Vendors

Ministry of Housing & Urban Poverty Alleviation notified the `Draft Real Estate (Regulation & Development) Bill, 2011`, The Draft Model Property Rights to Slum Dwellers Act, 2011` and Central Legislation for Street Vendors at a Press Conference in New Delhi.

I.  Draft Real Estate (Regulation & Development) Bill, 2011

 The Draft Real Estate (Regulation & Development) Bill, 2011 seeks to establish a regulatory oversight mechanism to enforce disclosure, fair practice and accountability norms in the real estate sector, and to provide adjudication machinery for speedy dispute redressal. This Act is in pursuance of the powers of Parliament to make laws on matters enumerated in the Concurrent List namely, transfer of property other than agricultural land; registration of deeds and documents, and contracts including partnerships, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.  The Bill aims at restoring confidence of the general public in the real estate sector; by instituting transparency and accountability in real estate and housing transactions.  Currently, the real estate and housing sector is largely unregulated and opaque, with consumers often unable to procure complete information, or enforce accountability against builders and developers in the absence of effective regulation.  The sector, in recent years, has also emerged as a source of black money and corruptions in the economy. The Bill is expected to ensure greater accountability towards consumers, bring transparency and fairness in transactions and reduce frauds and delays significantly. All of these factors would make sizable dent in the corruption in this sector.

 The Bill is also expected to promote regulated and orderly growth through efficiency, professionalism and standardization. It seeks to ensure consumer protection, without adding another stage in the procedure for sanctions.

 The salient features of the Draft Real Estate (Regulation & Development) Bill are:

  1. Establishment of a ‘Real Estate Regulatory Authority’ in each State by the Appropriate Government (Centre for the UTs and State Governments in the case of the States), with specified functions, powers, and responsibilities to facilitate the orderly and planned  growth of the sector;
  2. Mandatory registration of developers / builders, who intend to sell any immovable property, with the Real Estate Regulatory Authority as a system of accreditation;
  3. Mandatory public disclosure norms for all registered developers, including details of developer, project, land status , statutory approvals and contractual obligations;
  4. Obligations of promoters to adhere to approved plans and project specifications, and to refund moneys in cases of default;
  5. Obligation of allottee to make necessary payments and other charges agreed to under the agreement and payment of interest in case of any delay;
  6. Provision to compulsorily deposit a portion of funds received from the allottees in a separate bank account, to be used for that real estate project only;
  7. The Authority to act as the nodal agency to co-ordinate efforts regarding development of the real estate sector and render necessary advice to the appropriate Government to ensure the growth and promotion of a transparent, efficient and competitive real estate sector; as also establish dispute resolution mechanisms for settling disputes between promoters and allottees/ buyers;
  8. Authorities to comprise of one Chairperson and not less than two members having adequate knowledge and experience of the sector;
  9. Establishment of a ‘Real Estate Appellate Tribunal’ by the Central Government to hear appeals from the orders of the Authority and to adjudicate on disputes.  Tribunal  to be headed by a sitting or retired Judge of Supreme Court or Chief Justice of High Court with 4 judicial and at-least 4 administrative/technical members;
  10. Chairperson of the Tribunal to have powers to constitute Benches, for exercising powers of the Tribunal;
  11. Establishment of a Central Advisory Council to advise the Central Government on matters concerning implementation of the Act.
  12. Council to make recommendations on major questions of policy, protection of consumer interest and to foster growth and development of the real estate sector;
  13. Penal provisions to ensure compliance with orders of the Authority and Tribunal;
  14. Jurisdiction of Civil Courts barred on matters which the Authority or the Tribunal is empowered to determine;
  15. Both Centre and States to have  powers to make rules over subjects specified in the Bill, and the Regulatory Authority to have powers to make regulations;
  16. Powers to Central Government to issue directions to States on matters specified in the Act have also been specified.

 II.  Draft Model Property Rights to Slum Dwellers Act, 2011

The Ministry of HUPA proposed the strengthening of its Slum redevelopment strategy by working towards a slum free India, and assigning property rights to Slum Dwellers, under the Rajiv Awas Yojana (RAY). RAY proposes decisive action for inclusive urban development that acknowledges the presence of the poor in cities, recognizes their contribution as essential to the city`s functioning, and redresses the fundamental reasons for inequity that ties them down to poverty.

 The conferment of property title is a new direction for national policy that aligns national approach to the global practice. It sees ownership of property as the best investment in democracy, by creating for the household due space within the formal system, and thereby a vested interest in peace and legal order.

 The Model law is aimed at bringing within the formal system, those who are forced to live in extra-formal spaces and in denial of right to services and amenities available to those with legal title to city spaces, and at correcting the deficiencies of the formal system of urban development and town planning that have failed to create conditions of inclusiveness and equity, so that, henceforth, new urban families, whether by way of migration or natural growth of population, have recourse to housing with civic amenities, and are not forced from lack of options to create encroachments and slums and live extralegal lives in conditions of deprivation of rights and amenities.

 The Model law intends to enable the household to access the formal channels of credit; it draws the entire extralegal economy of slums out of the informal market; it enriches the slum dweller by giving him access to mortgageable rights for housing construction, and the formal economy by enabling a quarter of its population to participate in its growth. The importance that Central Government gives to this measure for inclusion and equity may be gauged from the decision to link central support for slum redevelopment with the empowering of the slum household with property rights.

The salient features of the Draft Model Property Rights to Slum Dwellers Act, 2011 are:

  1. Facilitation of inclusive growth and slum-free cities, to provide assured security of tenure, basic amenities and affordable housing to the slum-dwellers.
  2. Every landless person living in a slum area in any city or urban area on 4th June, 2009 shall be entitled to a dwelling space at an affordable cost.
  3. Every Slum dweller or the Collective of the Slum Dwellers shall be given a legal entitlement, which shall be in the name of the female head of the household or in the joint name of the male head of the household and his wife.
  4. Every slum dweller eligible shall be provided with basic civic services until the site for the dwelling space has been developed.
  5. The dwelling space so provided shall not be transferable but allowed to be mortgageable for raising housing loan, or in need to sell- but only to the Government or the Collective as the case may be.
  6. The dwelling space may be provided in-situ as far as possible, provided in cases on public interest they shall be resettled elsewhere.
  7. Constitution of a Grievance Redressal Committee for the purposes of resolving disputes in relation to matters about identification of slum dwellers.
  8. State Government shall prescribe and notify participative and transparent procedures for identification and periodic survey of slum dwellers for purpose of granting legal entitlement to slum dwellers.
  9. Establishment of City / Urban Area Slum Redevelopment Committee for implementing the provisions of the Act namely- to survey and make a list of slum dwellers, make an inventory of existing position regarding slum areas, formulate schemes for slum redevelopment/up-gradation/resettlement and for rental housing (including dormitories and night shelters) for the urban poor and slum-dwellers in-eligible etc.
  10. Establishment of a State Slum Redevelopment Authority (to be headed by the Chief Minister) to continuously monitor implementation of the Act and to recommend corrective measures wherever necessary.
  11. Emphasis on Community Participation by providing for establishment of Slum Development Committee for each slum area comprising of members for plan preparation, implementation, monitoring & evaluation, and post project maintenance.
  12. Power to acquire land for redevelopment/up-gradation and for resettlement under the Land Acquisition Act, 1894 as amended from time to time.
  13. Responsibility of the Government to prevent encroachment or of construction of illegal structures towards which necessary amendment to the Municipal and other Acts need to be undertaken.
  14. Civil courts not to have jurisdiction on matters for which the City/Urban Area Slum Redevelopment Committee, State Slum Redevelopment Committee, Grievance Redressal Committee, or the Tribunal is empowered.
  15. Power of the State Government to make rules on matters specified in the Act.

  III.  Credit Risk Guarantee Fund

 To address the issue of credit enablement of EWS and LIG households, the Ministry proposes to create a Credit Risk Guarantee Fund Scheme (CGFS) under Rajiv Awas Yojana. The salient features of the proposed fund are as follows:

Under the Credit Guarantee Fund Scheme (CGFS) the Government of India will provide credit guarantee support to collateral-free / third-party-guarantee-free housing loans up to Rs. 5 lakh extended by lending institutions for Low Income Housing. The CGFS will cover the housing loans to EWS/ LIG borrowers for the purposes of repairs, home improvement, construction, acquisition, and purchase of new or second hand dwelling units, involving an amount not exceeding Rs. 5 lakh per loan. The guarantee cover available under the scheme is proposed to be to the extent of 90% of the sanctioned housing loan amount for a loan amount of upto Rs.2 lakh. And 85% for loan amounts above Rs.2 lakh and upto Rs. 5 lakh. To administer and oversee the operations of the Scheme, provision has been made for establishment of a Credit Risk Guarantee Fund Trust for low income housing (CGFT). Rs.1000 crores has been earmarked as an initial Corpus for CGFS.

  IV.  Central Legislation for Street Vendors

The Ministry of Housing & urban Poverty Alleviation had come up with a new National Policy on Urban Street Vendors in 2009 after a comprehensive review of the previous policy. The Policy underscores the need for a legislative framework to enable street vendors to pursue an honest living without harassment from any quarter. We had drafted a Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009 and circulated to all States/UTs, requesting them to take a cue while legislating on the subject. The progress on state legislation has not been encouraging.  We are receiving continuous representations from the individual street vendors and their organisations to bring a central legislation which would be uniformly and mandatorily applicable to all the states and UTs. We are working to evolve and effective and practical central legislation for protection of livelihood rights and social security of street vendors in consultation with all concerned stakeholders including State Government.

 The bill would be based on the following basic principles:

  1. Legitimate street vendors are protected from harassment by police and civic authorities.
  2. Vending zones/spaces are demarcated for the street vendors. While demarcating the concept of traditional natural markets to be kept in mind.
  3. Adequate representation to street vendors and women in particular, is provided in the institutional structures created for ensuring proper implementation of the proposed law.
  4. A robust, effective and quick grievance redressal and dispute resolution mechanism is established.

 

REAL ESTATE BILL 2011   

NewReservationofLand-FAR

Draft-prop-rights

WITNESS EXAMINATION THROUGH VIDEO CONFRENCING

Once the victim is rehabilitated, it is not in her interest to recall her to the court of law for any purpose including evidence, as she is compelled to relive the trauma and indignity. Therefore, it would be better to take into consideration the statement given by her before repatriation and act accordingly. If, however, her recall is necessitated, it should be done in such a way that it causes  least harm to her. Dislocating her from the rehabilitated ambience usually causes serious problems. Therefore, if her statement is to be recorded, or evidence taken, it should be done in commission  or through video conferencing at an appropriate place which would create least disturbance and discomfort to the person concerned. The Supreme Court has held in State of Maharashtra vs Praful Desai (2003 4 SCC 601) that the recording of evidence by way of video conferencing might be done in cases where the attendance of the witness cannot be ensured without delay, expense and inconvenience. It was also held by the apex court that recording of evidence by video conferencing was a ‘procedure established by law’ under Article 21 of the Constitution and did not violate the rights of the accused. The court observed that although the rights of the accused must be safeguarded, they should not be overemphasised to the extent of forgetting that the victim also has rights. Therefore, the ITPA should make it mandatory to provide video conferencing facility at the place where the victim would find it comfortable. The victim’s best interests should be the deciding factor in choosing the place and time of video recording/conferencing.

Another order by the High Court of Delhi has made notable improvement in the field of criminal jurisprudence and victim protection in India. On 27 February 2004, the High Court delivered this order, in Crl. M.1467/04 in Crl. W. 532/1992, in a petition filed by an NGO Prajwala of Hyderabad through its advocate Ms. Aparna Bhat. Thanks to the intervention of the Delhi High Court, girls rescued from the brothels in Delhi were repatriated and rehabilitated in their hometowns in several parts of India including Andhra Pradesh. The rehabilitation work was carried out by the Government of Andhra Pradesh with the involvement and participation of the NGO, Prajwala. Many of these girls who had been rehabilitated to districts like Nellore, were summoned by the trial court in Delhi for providing evidence against the exploiters. Since these girls were repatriated after spending considerable time in the rescue home in Delhi, ideally speaking, their statements should have been recorded by the trial court during that period. However, due to the delays in the trial, this was not done and, therefore, these girls were called to Delhi. The government agencies in Andhra Pradesh tried their best to get in touch with these girls. Since their efforts failed, Prajwala was asked to step in again. The NGO realised that these girls were reluctant and unwilling to go to Delhi mainly because they did not want to relive the trauma and agony which they had undergone. It was decided to move the trial court for facilitating the recording of evidence of these girls to their hometowns. However, the court did not approve of this for want of required infrastructure. The matter was, therefore, taken up with the High Court of Delhi which directed the government counsel to look for alternatives. Since National Informatics Centre did not have the required facilities, the counsels for the government and the NGO took initiative, interacted with the government of Andhra Pradesh and found that video conferencing facility was available in Andhra Bhawan, New Delhi. The A.P. government agreed to provide this facility, which they have in Delhi and the concerned district headquarters in Andhra Pradesh. The High Court confirmed the availability of these facilities at A.P. Bhawan by judicial officers and then gave orders for recording the evidence of the victims through video conferencing. The court also directed that the state of Andhra Pradesh make appropriate arrangements for the same and that the trial court ensure adequate safeguards enumerated in the decision of the Supreme Court in State of Maharashtra vs.Dr. Praful B. Desai, 2003 4 SCC 601. This was a historical decision of the Delhi High Court because, for the first time in India, inter-state video conferencing was being utilised in criminal trials.  Once implemented, this judgment can go a long way in protecting the rights of trafficked victims and, therefore, is a judgment truly honouring the human rights of the victims.

No need for corroboration and conviction can be imposed on the sole statement of the victim – Supreme Court

The Supreme Court has ruled that in rape cases there is no need for corroboration and conviction can be imposed on the sole statement of the victim. A bench of justices P Sathasivam and B S Chauhan said that the victims testimony cannot be looked at with suspicion. Supreme court adeed that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The Prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Hence, the victims evidence need not be tested with the same amount of suspicion as that of an accomplice. The bench dismissed an appeal filed by Mohd Imran Khan and Jamal Ahmed challenging their conviction for rape of a minor girl about 22 years ago. The defence had argued the victim’s statement cannot be relied upon as she had eloped with the accused.

In 2009, the court had ruled the same when awarding rigorous life imprisonment to convict Raju, a resident of east Delhi for raping his five-year-old neighbour. The apex court had ruled that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent, is even more reliable. Evidence Act does not says that victims evidence cannot be accepted unless it is corroborated in material particulars. The court had also ruled that a victim is undoubtedly a competent witness under Section 118. However, courts also say that if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

Errors in Age Verification

The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side.

In Jaya Mala v. Home Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this Court held:

However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550)

Judgement Text:

EVIDENCE OF PROSECUTRIX:

It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as  that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act’), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim.

The rapist degrades the  very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2). This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein this Court observed that the courts must, while  evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.

Similarly, in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9, it has been observed as under:

It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.

Much reliance has been placed by learned counsel for the appellants on the judgment of this Court in Javed Masood & Anr. v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held that in case the prosecution witness makes a statement and is not declared hostile, he is supposed to speak the truth and his statement is to be believed.

It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix.

Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O. (PW.15) particularly in view of the birth certificate available on the record. In view of our finding in respect of the date of birth we are of the view that Puran Singh, I.O. (PW.15) unfortunately made an attempt to help the accused/appellants, though in the examination-in- chief the witness has deposed that the Birth Certificate providing the date of birth as 2.9.1974 was genuine.

Be that as it may, by now Puran Singh (PW.15) might have retired as the incident itself occurred 22 years ago. Therefore, we do not want to say anything further in respect of his conduct.

In State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185, this Court while dealing with a similar issue held:It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently  of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.

The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. Investigating Officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. (Vide: Jamuna Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC 1 1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254)

Shri Amrendra Sharan, learned senior counsel has placed reliance on the judgment of this Court in Baldev Singh & Ors. v. State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang rape had been sentenced to 10 years RI and a fine of Rs.1000/- each had been imposed and served about more than 3 years imprisonment and incident had been very old, this Court in the facts and circumstances of the case reduced the sentence as undergone, directing the appellants therein to pay a sum of Rs.50,000/- of fine to be paid to the victim and prayed for some relief.

The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit   case to reduce the sentence further in a proved case of rape of a minor. The appeals lack merit and are, accordingly, dismissed.

PRIME MINISTERS STATEMENT ON THE LOKPAL CAMPAIGN AND ANNA HAZARE ARREST

Manmohan Singh, current prime minister of India.

Image via Wikipedia

Following is the text of the statement made by the Prime Minister, Dr. Manmohan Singh in the Lok Sabha today:

Hon’ble Speaker,

It is my painful duty to report to this House certain events that took place yesterday in New Delhi.

 Hon’ble Members are aware that after extensive consultations and discussions, including deliberations in a Joint Drafting Committee and a meeting of all political parties represented in Parliament, the Government has introduced a Bill in the Lok Sabha on the setting up of Lok Pal. The Bill has been referred to the Standing Committee concerned.

Notwithstanding the introduction of the Bill, Shri Anna Hazare and his supporters have persisted with their demand that the Jan Lok Pal Bill drafted by Shri Anna Hazare should be introduced in Parliament and that the Jan Lok Pal Bill should be the Bill that must be passed by Parliament. In support of this demand, Shri Anna Hazare had announced some time ago that he would undertake an indefinite fast beginning August 16, 2011.

On August 2, 2011, an application was made to Delhi Police by an organisation called India Against Corruption for permission to hold a month-long fast beginning August 16, 2011 at New Delhi. Delhi Police held discussions with the applicants in order to identify a suitable place and to formulate the conditions under which the permission could be granted for holding a fast at that place. Eventually, on August 13, 2011, Delhi Police informed the applicants that permission would be granted for the protest at Jai Prakash Narayan Park, near Ferozshah Kotla, subject to permission being granted by the land owning agency and subject to certain conditions.

 Delhi Police also informed the applicants that they would have to give an undertaking to abide by the conditions.

However, on August 15, 2011, the organisers refused to accept six of the conditions, including the condition that the protest fast would be limited to three days. Hence, Delhi Police informed the applicants that, since they had declined to accept some of the conditions and refused to give the undertaking to abide by all the conditions, permission would not be granted to hold the protest fast at Jai Prakash Narayan Park. Prohibitory orders under section 144 CrPC were also imposed on August 15, 2011 in and around Jai Prakash Narayan Park and some other areas.

On the evening of August 15, 2011, Shri Anna Hazare, through public statements, made it clear that he and his supporters would converge at Jai Prakash Narayan Park and defy the prohibitory orders under section 144 CrPC. Yesterday morning, Delhi Police reviewed the situation. Delhi Police came to the conclusion that it was clear that Shri Anna Hazare and his supporters would commit a cognizable offence and there was a likelihood of a breach of peace. Hence, Shri Anna Hazare and six others were arrested, as a preventive measure, under section 151/107 CrPC. They were taken to the Delhi Police Officers’ Mess at Alipur Road and, subsequently, produced before a Magistrate. Delhi Police did not seek the police remand of the arrested persons. The Magistrate offered to release the arrested persons on their personal bonds subject to the condition that they would undertake not to violate the prohibitory orders. However, Shri Anna Hazare and others refused to give such an undertaking or furnish personal bonds. Hence, the Magistrate remanded the arrested persons to 7 days’ judicial custody.

Meanwhile, during the course of yesterday, about 2,603 persons were detained in Delhi when they were proceeding to or were in areas where prohibitory orders under section 144 CrPC were in force. All of them were released later in the evening yesterday.

Late yesterday evening, Delhi Police received information that Shri Anna Hazare intended to move the Supreme Court challenging the orders of Delhi Police. Delhi Police also received information that the petition was likely to be mentioned before the Supreme Court on Wednesday, i.e. today, for urgent hearing. Since there were reasonable grounds to believe that Shri Anna Hazare had opted to seek legal remedies, Delhi Police did not apprehend any imminent breach of peace or imminent disturbance to tranquillity if the arrested persons were released. Hence, Delhi Police moved the Magistrate concerned to review his earlier order and the Magistrate was pleased to release Shri Anna Hazare and the other arrested persons at about 7 p.m. yesterday. The jail authorities informed Shri Anna Hazare and others that orders for their release had been received. However, Shri Anna Hazare and others (except one) declined to leave the jail premises unless the Government gave an undertaking that they would be permitted to hold their protest fast at Jai prakash Narayan Park without any condition.

Our Government acknowledges the right of citizens to hold peaceful protests. In fact, Delhi Police have allowed several such protests, but in each case appropriate conditions have always been imposed and the organisers were always required to give an undertaking to abide by all the conditions. Shri Anna Hazare and his supporters would have been allowed to hold their protest fast if they had accepted the conditions under which the permission was granted and had undertaken to abide by the conditions. Since they declined to do so, Delhi Police was obliged to refuse permission to hold the protest fast.

The Government wishes to stress that the issue before the nation is not whether a Lok Pal Bill is necessary or desirable. All of us in this House are agreed that a Lok Pal Bill must be passed as early as possible. The question is, who drafts the law and who makes the law? I submit that the time-honoured practice is that the Executive drafts a Bill and places it before Parliament and that Parliament debates and adopts the Bill with amendments if necessary. In the process of adoption of the Bill, there will be opportunities for Shri Anna Hazare and others to present their views to the Standing Committee to which this Bill has been referred by the Hon’ble Speaker. The Standing Committee as well as Parliament can modify the Bill if they so desire. However, I am not aware of any constitutional philosophy or principle that allows any one to question the sole prerogative of Parliament to make a law. In making a law on Lok Pal, the Government has faithfully adhered to the well-settled principles. As far as I am able to gather, Shri Anna Hazare questions these principles and claims a right to impose his Jan Lok Pal Bill upon Parliament.

I acknowledge that Shri Anna Hazare may be inspired by high ideals in his campaign to set up a strong and effective Lok Pal. However, the path that he has chosen to impose his draft of a Bill upon Parliament is totally misconceived and fraught with grave consequences for our Parliamentary democracy.

Our Government does not seek any confrontation with any section of the society. But when some sections of society deliberately challenge the authority of the Government and the prerogative of Parliament, it is the bounden duty of the Government to maintain peace and tranquillity. Delhi Police, as the authority charged with the responsibility, took the minimum steps necessary to maintain peace and tranquillity in the capital city. Inevitably, though unfortunately, it led to the arrest and subsequent release of Shri Anna Hazare and some of his supporters. I sincerely hope that the incidents of yesterday will not be repeated today or in the future.

I should also make it clear that the issue between the Government and Shri Anna Hazare is not one of different attitudes to fighting corruption. In my independence day address, I spoke at length about the need to deal effectively with corruption. I would like to assure the House that we are determined to provide a Government that is transparent, accountable and responsive at all times and determined to fight corruption. But as I said on 15 August at the Red Fort, there is no magic wand by which, in one stroke, we will get rid of menace the of corruption. We have to work simultaneously on several fronts. In my 15 August address, I have outlined some of the measures we intend to put in place to strengthen our fight against corruption. I invite all sections of this House to join hands with us to deal with the cancer of corruption.

 With respect to the events of yesterday, I will only say that a functional democracy must allow multiple voices to be heard. But differences of opinion must be resolved thorough dialogue and consensus. Those who believe that their voice and their voice alone represents the will of 1.2 billion people should reflect deeply on that position. They must allow the elected representatives of the people in Parliament to do the job that they were elected for.

India is an emerging economy. We are now emerging as one of the important players on the world stage. There are many forces that would not like to see India realize its true place in the Comity of Nations. We must not play into their hands. We must not create an environment in which our economic progress is hijacked by internal dissension. We must keep our mind focused on the need to push ahead with economic progress for the upliftment of the ‘aam aadmi’.

I appeal to all sections of this august House to ensure that the Government and its processes, and the Parliament and its processes function smoothly and effectively. There is no substitute for that. If some people do not agree with our policy, there will be a time when they will have an opportunity to present their points of view to the people of India.

I request all political parties to ensure that Parliament functions smoothly. There are very important legislative measures that are required to be passed. If we do not pass them, we will do great injustice to the people of India and in turn hurt the ‘aam aadmi’. We are willing to debate every issue in Parliament, and we have demonstrated that we are co-operating with the Opposition in every possible way to ensure that Parliament functions smoothly.

We as elected representatives of our people should do nothing to weaken our people’s faith in the capacity of our democracy, our institutions and our social ideals and values to overcome all difficulties. We should have faith that we can build a promising future for ourselves. Let us unite in that faith.”

Email panel constituted by Supreme Court at : panelonsexworkers@gmail.com

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

The directions of the Supreme Court of India on evolving proper schemes for sex workers across the country were highlighted in a report by our Legal Correspondent published in The Hindu of August 3, 2011. In its order of August 2, the Bench of Justices Markandey Katju and Gyan Sudha Misra commended the panel it had constituted, which is headed by senior counsel Pradip Ghosh, for going about the task assigned to it “in right earnest.” Noting that it would take time to rehabilitate sex workers in India, the court observed that “it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.” The court particularly appealed to the youth of the country to “offer their services in a manner which the panel may require so that the sex workers can be uplifted from their present degraded condition.”

The Supreme Court asked people willing to help to contact the panel at the email id: panelonsexworkers@ gmail.com

Sex Workers Judgement

Rehabilitation of Women in Prostitution – A time for Action

Development, justice and the Constitution

Supreme Court of India

KALPANA KANNABIRAN IN THE HINDU

Three judgments by the Supreme Court, in July, demonstrate the significance of social action. They draw important connections between courts, social sciences and social movements; connections that are often forgotten or negated in courts.

Three judgments by the Supreme Court in the month of July mark a sharp departure from pedantic legalism and point to the possibilities of a transformative constitutionalism that sustains and elaborates the idea of constitutional morality developed in the Naz Foundation judgment of the Delhi High Court in 2009. The three cases are also very different pieces that speak to different realities in similar fashion: Ram Jethmalani v Union of India (SIT); Nandini Sundar and Others v State of Chhattisgarh (SJ); and Delhi Jal Board v National Campaign for Dignity and Rights of Sewerage and Allied Workers (DJB). It might be argued, and rightly too, that radical jurisprudence by the Supreme Court is not a recent phenomenon — it has an older history rooted in struggles for civil and political rights. While that is the genealogy of this jurisprudence, we need yet to celebrate each signpost in the development of deliberative jurisprudence that responds not merely to the manifestations of a case, narrowly construed, but sees the larger socio-political context as an inextricable part of the bare facts, so to speak.

The guarantee of public goods — security, infrastructure for governance, law making and enforcement, provision of material and cultural goods especially for classes that lack the power, privilege and status to secure these for themselves — is state obligation. Neither markets (which cater to self-centred activities of individuals and groups) nor purely private social action can be expected to stand in for the state and provide public goods (SIT, 7). Central to the delineation of the problem in these cases is the opening out of the idea of constitutionalism to include a broader idea of justice that enables the mapping of injustice in all its complexity. Tracing the link between the existence of perennial channels for unaccounted monies abroad and the erosion of developmental goals of the state, the Supreme Court contextualises the need to reign in cash flows and ensure total accountability with reference to the structure of a neo-liberal economy. Gunnar Myrdal’s caution about the dangers of a “soft state” that spawns the “unholy nexus between the law maker, the law keeper, and the law breaker” (SIT, 10) is immediately relevant.

“Carried away by the ideology of neo-liberalism, it is entirely possible that the agents of the State entrusted with the task of supervising the economic and social activities may err more on the side of extreme caution, whereby signals of wrongdoing may be ignored even when they are strong. Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large-scale illegal mining have become all too familiar, and may be readily cited (SIT, 15).”

The framework of justice by this token stretches illimitably beyond the narrow confines of constitutional law and decided cases to the letter and spirit of the constitution.

“Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual (SJ, 3).”

In Chhattisgarh

The court locates the heart of the conflict and repression in Chhattisgarh in the amoral political economy endorsed by the state and the departure of state policy from Nehruvian socialism in favour of a free market economy, the natural corollary of which is “muscular and violent statecraft.” The intimate connections between neo-liberal economic policy and a violently authoritarian state have been demonstrated in one country after another. The routine derogation of fundamental rights and human rights, large-scale displacement and dispossession of primarily indigenous tribal communities is an inseparable part of this process.

Courts have more often than not insulated themselves from philosophical and political frameworks of justice, ploughing the over-trodden, unproductive furrow of strictly applied “constitutional law” instead. Drawing on a wide range of writing — from Conrad’s Heart of Darkness to reports prepared at the instance of the Planning Commission — the Salwa Judum judgment puts back into focus the constitutional scheme with socialism and the directive principles of state policy at the centre. It is against this backdrop that the Supreme Court frames the issue of compliance to Articles 14 and 21, and Article 355 with specific reference to the large-scale occupation of schools and hostels by security forces ostensibly to combat maoist forces; the deployment of the “koya commandos” or the salwa judum and the arbitrary use of extreme violence by this militia armed by the state; the arbitrary terms of employment of this tribal workforce that violates constitutional safeguards; and the obstruction of citizen’s peace missions by the state. The adverse impact of this entire scenario is directly on the adivasi communities of Chhattisgarh — both as gun-toting SPOs and subjugated villagers.

Sewerage workers

The case of the Delhi Jal Board points to the predicament of sewerage workers in a globalised economy where essential jobs are outsourced by the state, which then refuses to take responsibility for the health or safety of workers, and challenges claims to reparations. The specific questions placed before the Supreme Court by the state authorities concerned the locus standi of the National Campaign for Dignity and Rights of Sewerage and Allied Workers; the appropriation of legislative powers by the high court; the validity of the high court’s order of interim compensation to families of workers who had died after inhaling noxious fumes while cleaning manholes. That the state needs judicial intervention (which ironically, it challenges) in order to provide the barest of safeguards and entitlements to the most underprivileged category of workers is cause for concern, throwing as it does, the entire range of constitutional guarantees and obligations to the winds.

While upholding the decision of the Delhi High Court, the Supreme Court importantly for us, asserts that social action litigation is an important part of constitutionalism. In a situation where the implementation of the goals set out in the Preamble to the Constitution has been halting and sporadic over six decades, the court observes, arguments against judicial activism and on judicial overreach have the sole object of tiring out those who espouse the cause of the weak and the poor (DJB, 15). Yet, private social action can only force public accountability — remedies are and must be part of state obligation (as the SIT bench reminds us).

Each of the three cases considered here demonstrate the significance of social action — the campaign against state repression and the Salwa Judum in Chhattisgarh, the nationwide campaign against corruption that began in a sense with the movement for the right to information, and the movement for dignity of workers engaged in hazardous and stigmatised forms of labour. The judgments draw important connections between courts, social sciences and social movements, connections that are often forgotten or negated in courts.

These judgments take a radical view of “development,” thereby addressing not just fundamental rights, but importantly, rendering the Directive Principles justiciable in effect — by resisting a disaggregated reading of the Constitution. At the other end, what the constitutionalism approach to the problem of development accomplishes is the framing of development as a bounded endeavour — and hence of justice as spatially and socially hedged in, to be held together by the state, through clear measures of protection against harm, distribution of good and the realisation of capabilities. These are not responsibilities easily or willingly borne by any government, but are undeniably state responsibility and must be used to discipline governments.

(Kalpana Kannabiran is Director, Council for Social Development, Hyderabad.)