A bill to settle a terrible debt

Siddharth Varadarajan IN THE HINDU

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It’s time to end this injustice.

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India’s citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does.

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority’ group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn’t, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India’s religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill’s definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill’s language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011

http://www.hindu.com/2011/06/21/stories/2011062156231000.htm

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Human smuggling : What Punjab must do

Harmandir Sahib (Golden Temple) Amritsar, Punj...

Image by voobie via Flickr

Human smuggling, illegal trafficking and unethical immigration businesses are on the rise in India and other countries. The Punjab Prevention of Human Smuggling Act 2010 is a welcome move. Once it gets the President’s assent, the state government should draft comprehensive rules to enforce the legislation in letter and spirit

Ranjit Malhotra IN THE TRIBUNE

THE Punjab Prevention of Human Smuggling Act, 2010, is awaiting the President of India’s assent. It is an important piece of legislation as it seeks to regulate the profession of travel agents to check their illegal and fraudulent activities and malpractices of those involved in the organised human smuggling in Punjab.

It has several noteworthy features. ‘Human smuggling’ and ‘travel agent’ are well defined. Travel agent is defined as a person in a profession that involves arranging, managing or conducting affairs related to sending people abroad. It includes consultancy for permanent emigration, obtaining education, work, travel for tourism, cultural entertainment or musical shows, medical treatment, spreading or preaching religion and so on.

The key focus of the legislation is on human smuggling as opposed to human trafficking. The distinction is crucial. Human smuggling facilitates illegal entry of people from one country to another. It has a cross border element of voluntary cooperation without any coercion or undue influence. In contrast to human trafficking, there are no victims in human smuggling. Human trafficking entails slavery and possibly has no international element.

It provides for a much-needed licensing regime for agents and requires compulsory bank guarantees. Clearly, this will nail down middlemen of all sorts and fly-by-night street operators. The legislation is not without teeth because it gives the power of search, seizure and arrest. Under the existing Central legislation, travel agents can be booked under Section 420 of the Indian Penal Code, in terms of which it is very difficult to prove the offence of cheating as most transactions take place in cash. But the Punjab legislation gives more powers to the police in terms of offences being cognisable and non-bailable.

A separate mechanism has been carved out as the legislation seeks to create specially designated courts for trials under the new Act. It identifies defined variable punishments for offences. There is a provision for filing complaints by aggrieved persons to judicial magistrates for trial before the special courts. The special court is authorised to decide whether any illegally acquired property is liable to be confiscated. Dishonest misrepresentation to have wrongful gain for inducing, deception, cheating or allurement for the activities carried out by the travel agents are punishable. There is also a caveat for legitimate business promotion. If any travel agent wants to advertise or hold seminars, he must notify the competent authority with details of advertisement of such seminars.

As the rules so framed by the Punjab government after the Presidential assent should be comprehensive and free from ambiguity, the authorities concerned would do well to consider the following issues. The locus standi of aggrieved persons should be given a broad sweep without hinging on technicalities. Quite often, the victims of human smuggling are stranded en route in hostile conditions in foreign countries. Their next of kin in such a situation should be empowered to file criminal complaints or claims for compensation against erring parties. Foreign missions in the consular district of New Delhi should also be brought within the ambit of aggrieved persons so that they can lodge criminal complaints against habitual offenders who deal in bulk fraudulent applications.

In a world without borders, the 2010 Act like the provisions of the Hindu Marriage Act, 1955, should also have extra-territorial application. It is common knowledge that cross border cartels operate from different jurisdictions right from the sending country to the receiving country. No complaint should fail on the ground that monetary consideration was paid outside India and that part of the cause of action took outside the territories of India.

There is need for a strict code for advertising by travel agents and immigration consultancies. There should be an express prohibition on all immigration-related advertisements in the media — print and electronic — for not advertising or canvassing the number of visas allegedly procured by their consultancies. Quite often, such figures of successful applicants are exaggerated and inflated and there is no way by innocent and gullible members of the public to check such projected figures. As for offences, the rules should be applicable to any immigration consultancy, agent, franchisee operating even outside Punjab, if the principal office of the branch of such a concern is situated within Punjab. There should be a clear embargo on canvassing projected time schedules for permanent residency/ settlement in any foreign country.

The provision for a bank guarantee to be furnished by all such licensed immigration operators and travel agencies should be on ad valorem basis and the amount of the bank guarantee should be directly proportional to the number of applications handled by any such consultancy or agency. In terms of compliance requirements, the rules under the said legislation should provide that any licensed immigration consultancy/ travel agency or operator, should file a mandatory quarterly return on the number of applications handled by any such agency or operator with the steering committee constituted under the rules or with the Deputy Commissioner of the respective district, which shall be a pre-condition for the renewal of the annual licence.

To protect students, the rules should prohibit payment of the handsome commission paid to the local agents and franchisees in India by low level foreign universities from the tuition fees paid by the students in India. Over the years, this has promoted a different type of an industry giving fillip to lot of illegal activities on the side to exploit the student avenue. Mass awareness is important. The rules should direct Regional Passport Offices (RPOs) in Punjab to adequately publicise this beneficial piece of legislation, in their respective offices. For the convenience of the public, especially rural youth hailing from the far flung areas of Punjab who are victims of cheating by unscrupulous agents and dubious touts, copies of the legislation translated in Punjabi should be made available at the said RPOs.

One needs to look at the entire gamut of human smuggling. The NRI marriages in Punjab are a very serious problem, especially in terms of abandoned brides. Marriage is also used as a very convenient camouflage for human smuggling. Marriage palace operators provide complete packages to facilitate such commercial marriages. The rules under the legislation in question should bring within its ambit abettors and perpetrators of such sham marriages, or victims of marriages of convenience.

As part of corporate social responsibility obligations, business houses in Punjab should be motivated to take suitable initiatives to publicise the evil effects of human trafficking and the dangers involved in patronising fly-by-night travel agents. The Chief Secretary of Punjab, after constituting a Core Steering and Monitoring Committee, should regularly review the enforcement of the legislation and maintain comprehensive data of complaints and convictions under the said legislation. The Chief Secretary can include in the committee people from different walks of life. This could as well give an opportunity to review the working of the legislation. The core panel could have a dedicated website and email address to create direct access from the public for their viewpoints.

The rules could well stipulate that the Punjab government in close cooperation with the Ministry of External Affairs and Ministry of Overseas Indians Affairs should also interact with all the Embassies and Foreign Missions in the consular district of New Delhi to share their international data of habitual immigration offenders, networks and cartels engaged in the business of human trafficking and human smuggling with the MEA and the MOIA so that they can further share and transmit the available data with the Punjab government. This will prevent illegal migration and ensure greater cross-border cooperation with all member states.

The rules could provide for an Immigration Ombudsman at the regional and district level. This soft option could be organised by complainants who do not have the resources to invoke the due process of law. A savings clause regarding the consumer courts’ jurisdiction for deficiency in service and for refund/ compensation should also be there explicitly in the rules so that the offenders cannot possibly attempt to take refuge of the technicalities of law. We have to wait and see which way the pendulum swings down the road. Hopefully, the letter and spirit of the rules will be at par with the Punjab government’s laudable effort in framing the 2010 legislation.

The writer, a Felix Scholar and associated with Wilton Park, a UK-based think-tank, specialises in areas of immigration and private international law in Chandigarh

Migration :Global perspectives

  1. Over the years, Wilton Park, a leading UK-based think-tank for discussion of key international policy changes, has been debating key issues relating to migration policies, themes, perceptions, perspectives, trends and its future policy options. According to its 2007 report, legal migration is the most sensitive subject for discussion, particularly in terms of the public debate over numbers.
  2. The Interpol estimates that India contributes to the largest illegal population in Europe, and an estimated two million Indians cross international borders illegally every year.
  3. Human trafficking has now become a larger ‘industry’ worldwide than drug trafficking. In India alone, it is a multi-million dollar business.
  4. Globally, remittances are estimated to be equivalent to three times development aid.
  5. Members of the European Union already co-operate on shared mechanisms within borders such as Eurodac, a European Union-wide electronic system for the identification of asylum-seekers and illegal immigrants.
  6. FrontEx is an independent European agency funded by the EU and individual member states. With headquarters in Warsaw, it aims to coordinate the operational co-operation of their external borders.

Patterns of immigration

  1. According to Wilton Park’s 2008 findings, patterns of immigration and emigration are generally shaped by the long-term economic performance of a country.
  2. There is likely to be increased competition amongst the more developed countries for highly skilled migrants. On current demographic projections, China, for example, may change from being a source to a destination country.
  3. Political, religious and ethnic persecution are the key drivers of forced migration, but new displacement scenarios are evolving, including environmental degradation, declining resource, population growth and climate change.
  4. Factors vary regionally. In South Asia, migration is a well-established livelihood option. In the European Union, migration has been facilitated by the right to free movement of labour.
  5. Governments will continue to control illegal migration to facilitate the migration flows which they do want.
  6. Public attitudes to migration are frequently negative.
  7. Policy responses from South Asian countries have been ad hoc; it is one of the few areas where no regional process is in place for strategic management of migration.
  8. There are no real indications of the emergence of a leading international migration agency. The International Organisation for Migration could be a candidate.

Areas of concern & reform

  1. Need to enact a Central legislation to check illegal trafficking, human smuggling and thriving unethical immigration businesses.
  2. Imperative need for a consolidated work permit visa regime in India for inward foreign migration especially for highly skilled foreign workers which could also be a good source of revenue.
  3. Spreading of awareness and education of the pitfalls of illegal immigration.
  4. Need to establish managed migration channels. —Ranjit Malhotra

http://www.tribuneindia.com/2010/20101217/edit.htm#6

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SC orders probe into trafficking of NE kids

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.