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.
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.
Justice Jagmohan Lal Sinha represented a precious legal culture far removed from that of today.
He pities the plumage, but forgets the dying bird.
– Thomas Paine on Edmund Burke
The Rights of Man, 1791, page 26.
In popular esteem, Justice Jagmohan Lal Sinha, who died on March 20, was an upright and courageous Judge of the Allahabad High Court who held Prime Minister Indira Gandhi guilty of two corrupt practices and declared her election to the Lok Sabha void, on June 12, 1975. But he represented a precious legal culture which was fading away, dying, even as he spoke. The Judge’s courage was applauded. The culture and the values he represented remain neglected as are the magnificent judgment he delivered, the atmosphere in which he functioned and the tragic aftermath of the decline of the Indian judiciary, the end of which is not in sight. It represents today a legal culture far removed from Sinha’s. This neglect is not all. His judgment was belittled. The offences Indira Gandhi committed were characterised as “technical” and “trivial”.
To get a measure of the situation, read his judgment today and compare it with the ones which one comes across all too often. Analysis of the law and the evidence was rigorous; the language was dignified and restrained; the fairness and the balance were conspicuous and there was not a trace of the florid rhetoric that is a prominent feature of very many judgments of now: no quotes from Tagore or Gandhi, no sermons and not a word about the tensions to which he was subjected. No claims to judicial heroism, either.
Recent disclosures provide a glimpse of the times. Shanti Bhushan, counsel for the petitioner Raj Narain, revealed an incident in The Indian Express (March 23, 2008). While the case was being heard, the Chief Justice, D.S. Mathur, visited Justice Sinha. He was related to the Prime Minister’s physician. Mathur told Justice Sinha that “Sinha’s name had been considered for the Supreme Court and as soon as the judgment had been delivered, he would get appointed to the Supreme Court. Of course, Justice Sinha maintained a discreet silence.” He also declined the offer Shanti Bhushan made, as Law Minister in 1977, to transfer him to the Himachal Pradesh High Court “so that he could get elevated as Chief Justice when a vacancy arose”. He did not project himself or preen about, nor did he lap up lucrative arbitrations.
Likewise, Justice V.R. Krishna Iyer, then vacation Judge of the Supreme Court, revealed in The Hindu (March 19) how Law Minister H.R. Gokhale telephoned him seeking an interview. “Why do you want to meet me, Mr. Gokhale?” he asked. The visit was not necessary. The appeal and petition for stay could be presented to the Court’s Registrar. On June 24, 1975, Justice Krishna Iyer granted a conditional stay of the order on the usual terms. Indira Gandhi could not vote or participate in the proceedings as a Member of Parliament but could sign the Register of Attendance to save the seat. She could participate in the proceedings as Prime Minister, but without a vote. “There will be no legal embargo on her holding the office of Prime Minister,” Justice Krishna Iyer pointedly added. The very next day, in the dead of night, Indira Gandhi imposed Emergency, imprisoned leaders of the Opposition and imposed press censorship.
The Election Laws (Amendment) Act was enacted, on August 5-6, to amend the law retrospectively on the very points on which Justice Sinha had ruled against the Prime Minister. Worse, the power to disqualify was vested solely in the President, to the exclusion of the Election Commission. On August 7-8, Parliament enacted the Constitution 39th Amendment Act, 1975. Its effect was to set aside Justice Sinha’s order, exclude the court’s jurisdiction on disputed election to named high offices, including the Prime Minister’s, but without setting up an alternative forum. On November 7, 1975, the Supreme Court upheld the amendments and validated the Prime Minister’s election, while striking down the provision in the constitutional amendment (Clause (4) of Art. 329 (A)) which in effect validated the Prime Minister’s election and put it beyond judicial scrutiny. It violated “the basic structure” of the Constitution. This doctrine has stood the country in good stead. Recently some ambitious schemers have set about belittling it to gain brownie points from the state.
We learn from B.N. Tandon’s memoir PMO Diary-I: Prelude to the Emergency that the Prime Minister’s trusted aide, the formidable P.N. Haksar, bitterly regretted her pressure on him to influence Judges of the Supreme Court. Tandon records his meeting with Haksar on December 9, 1989, when Siddharth Shankar Ray’s wife, Maya, also a lawyer, walked in. “I am mentioning this meeting in the Diary for a totally different result. There is an indication in various places in the Diary that the Judges of the Supreme Court had been approached from Indira Gandhi’s side in her case. Today Haksar himself told Maya Ray this. He said, ‘Maya this was not really necessary. Indira Gandhi had herself disposed of the case against her through amendments to the Constitution, etc. But I was forced to go to every judge.’”
I was surprised that this emerged in print, but was relieved that what Haksar had said to me in private was now on record. He had a couple of years earlier said exactly the same thing to this writer; namely, that he had met all the judges hearing the appeal – except one judge, whom he named. The writer was in a bind. It was said in confidence. I fully reciprocated Haksar’s affection, extended despite my known differences of view. But the disclosure was of historical significance. I had decided to reveal it to two persons, a close associate of Haksar and a trusted colleague at the bar. Now, it was in print.
The games had begun much earlier. Justice P. Jaganmohan Reddy, one of the finest Judges of the Supreme Court ever, records in his memoirs, The Judiciary I Served, that as early as November 1970, Chief Justice M. Hidayatullah told a meeting of the Judges that “there was a likelihood of Justice J.C. Shah next-in-line (as Chief Justice) being superseded because the Government felt that the Supreme Court was not supporting the Government’s actions”. Justice Shah had pronounced the Court’s judgment in the bank nationalisation case. All the Judges except one threatened to resign if he was superseded. Justice Shah was appointed Chief Justice on December 17, 1971. That solidarity was gone when, on April 24, 1973, three Judges were superseded (J.M. Shelat, K.S. Hegde and A.N. Grover) and A.N. Ray was appointed Chief Justice. Recent appointments to the Bench had destroyed the solidarity.
So complete was the government’s penetration into the Court’s deliberations that, as Justice Jaganmohan Reddy disclosed apropos the fundamental rights case (Keshavananda Bharati vs State of Kerala), “not only was the Government aware of what each one of us was going to decide some time before Judgments were pronounced, but the supersession was also decided about that time”. Judges circulate drafts of their judgments to colleagues. He did not receive his copy. The supersessions came the very next day after the judgment. Apparently the drafts reached Law Minister Gokhale.
It was in this clime that Justice Sinha delivered his judgment in the Allahabad High Court on June 12, 1975. He held Indira Gandhi guilty of two corrupt practices under Section 123 (7) of the Representation of the People Act, 1951. The first was her act of obtaining in her constituency, Rae Bareli, the assistance of Gazetted Officers of the Uttar Pradesh government, namely, the District Magistrate, the Superintendent of Police, the Executive Engineer, Public Works, and Engineer, Hydel, for the construction of rostrums and arrangement of supply of power for loudspeakers in the meetings addressed by her.
Second, she obtained the assistance of a Gazetted Officer in the services of the Government of India, Yashpal Kapoor, who held the post of Officer on Special Duty in the Prime Minister’s Secretariat, to further her election prospects.
Justice Sinha declared her election to the Lok Sabha in 1971 void and disqualified her from being a Member of Parliament or of a State legislature for a period of six years from the date of the order.
The Judge rejected five of the seven main charges that Raj Narain had levelled, such as assistance of the armed forces to Indira Gandhi for arranging flights by Air Force planes and helicopters; distribution of clothes and liquor to voters; use of the religious symbol of cow and calf; free conveyance of voters to the polling stations; and incurring expenditure in excess of the limit.
Nor was Raj Narain’s case accepted completely in respect of the remaining two charges. The Judge upheld the Prime Minister’s defence that the arrangement of loudspeakers was done by her party and not by government officers. But he found that they did arrange “for supply of power for the functioning of the loudspeakers” for which bills were sent to the Uttar Pradesh Congress Committee.
He fully upheld the posting of policemen and the erection of barricades at the places of meetings. “Failure in that regard could lead to a law and order situation and no government worth the name can take any risk in that regard.”
Justice Sinha fully accepted that and more besides, while rejecting the petitioner’s plea. “It is the first duty of every government to maintain law and order…. I am accordingly in agreement with the plea put forward by the respondent No. 1 [Indira Gandhi] that the posting of police along the routes and at the place of the meetings as well as the setting up of barricades at the two places was done by the Government in discharge of the Governmental duties. The construction of rostrums and the supply of power by or through the officers of the State Government, however, stand on a different footing.” Is there any other democracy in the world where government officials erect rostrum for candidates who happen to be Ministers? This was neither “trivial” nor “technical”. If allowed, it would facilitate graver abuses.
The construction of rostrums for Ministers on election campaign is no part of an official’s duty, nor is arrangement of power supply for the loudspeakers. The Judge rejected Raj Narain’s charge that Indira Gandhi’s use of an IAF plane was “directly connected” with electioneering.
Justice Sinha’s judicial approach is best reflected in his comments on the evidence of Indira Gandhi, Haksar and Yashpal Kapoor, who had served the Nehru family and particularly Indira Gandhi since 1951. R.K. Dhawan is his nephew. Both rose from stenography to membership of the Rajya Sabha. Kapoor flitted in and out of state service at her convenience when she was Minister for Information and Broadcasting (1964-66), or Prime Minister. He gave up his government job in the Prime Minister’s secretariat to work for her in the Rae Bareli constituency, only to rejoin his post after the polls, all, admittedly, at her instance. It suited her to have him on the government’s payroll and to resign whenever the law came into play. It worked in 1967. In 1971 both messed up the arrangement, with fateful results. The line between the party and the state never mattered to her.
The law is clear. Section 123 lists the “corrupt practices” that vitiate an election. Clause 7 reads thus: “The obtaining or procuring or abetting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election, from any person in the service of the government and belonging to any of the following classes, namely: (a) Gazetted officers; (b) stipendiary judges and magistrates; (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) revenue officers including village accountants, such as patwaris, lekhpals, talatis, karnams and the like but excluding other village officers; and (g) such other class of persons in the service of the Government as may be prescribed.” Surely obtaining the assistance of a government servant to promote an election candidate’s prospects is not a “trivial” or “technical” matter in law or in morality. In the nature of things only the ruling party can do that. Clause 7 sought to establish a level playing field. The state and the party were kept separate.
Section 123 (7) applies to candidates as defined in Section 79(b) of the Act. “‘Candidate’ means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.”
Rightly so. People begin to canvass and incur election expenses well before they file their nomination papers. Everyone knows when a person “began to hold himself out as a prospective candidate”. The Lok Sabha was dissolved on December 27, 1970. On December 29, Indira Gandhi addressed a press conference. A pressman asked whether the Prime Minister was “changing her constituency from Rae Bareli to Gurgaon”. Her reply was emphatic: “No, I am not.” It was taped by All India Radio and the tape was produced in court. It was reported by the entire press. She held out her candidature to the wide world from that moment, specifying her constituency.
Her office wired her tour programme on January 25, 1971, to the Chief Secretary, Uttar Pradesh, stating specifically that she was to file her papers at Rae Bareli on February 1 at noon.
Incredibly, she argued belatedly in an additional written statement on August 27, 1972, a year after the first on August 2, 1971, that she held herself out as a candidate only on February 1, 1971, when she filed her nomination at Rae Bareli. Why? Because she had meanwhile used the services of Yashpal Kapoor.
It was only on February 6 that the Gazette of India published a notification, dated January 25, 1971, announcing the President’s acceptance of the resignation of Yashpal Kapoor, but retrospectively from January 14. He had been working for her well before January 25.
Haksar claimed on oath to have accepted the resignation orally, subject to a written order thereafter, and to have followed this practice throughout his career.
The Judge noted: “Sri Haksar expressed his inability to mention any rule under which it was permissible to appoint people and to remove them by word of mouth…. The statement appears to have been made only to fortify the plea set up by the Respondent No.1 [Indira Gandhi] in the additional written statement regarding oral acceptance of the letter of resignation.” The plea of oral acceptance did not figure in her statement of 1971, only in the one of 1972. Asked whether he had passed any order in writing later accepting the resignation, Haksar could only reply that he did not remember.
Justice Sinha held that Kapoor ceased to be a government servant from January 25 and had worked for Indira Gandhi since January 7. On this mass of evidence alone, breach of Clause 7 was proved enough to vitiate her election. Were he partisan, the Judge would have branded her a liar and listed the lies. He used markedly different language for the trio. “I regret my inability to accept it [her evidence]”, on one point; her plea “has no legs to stand [on]”, on another; and “does not bear any scrutiny” on a third.
Haksar was disbelieved with a sarcastic comment: “interesting”. Contumely was reserved only for the contemptible Yashpal Kapoor. Yet, in restrained language. “He is not a reliable witness.” Conscious of his client’s lapses, Indira Gandhi’s counsel made a desperate plea citing her office. It met with a dignified response: “It should be conceded that when a person appears in Court as a witness and his evidence appears to be natural and probable, the status and respectability attaching to him is also taken into consideration to lend further assurance to his testimony. The status and respectability of the witness alone cannot, however, induce the Court to accept his/her testimony, more so when he or she is himself/herself a party to the proceedings and interested in the result of the case.” That was a crime for which she never forgave him.
On September 10, 1979, in Mumbai, she said that “a petty judge” had disqualified her on flimsy grounds. This shabby behaviour was ignored by the nation.
Significantly, even when the censorship rules were relaxed on September 19, 1975, the ban on “Supreme Court proceedings on Smt. Indira Gandhi’s appeal” remained.
So do her disgraceful amendments to the election law to this day. They are so convenient to those in power. The revised definition of “candidate” survives. He becomes one only when he files his nomination papers (Section 79 b), even if he has spent a fortune earlier on his campaign or committed other abuses. Under a new Explanation 3 in Section 123, resignation of a government official takes effect on its publication in the official gazette. On September 12, 1979, Chief Election Commissioner S.L. Shakhdhar called for their repeal. In June 1977, Parliament passed a Bill restoring to the Supreme Court the power to decide disputes relating to presidential and vice-presidential elections. The Bill was supported by all sections of the House, including the Congress.
Law Minister Shanti Bhushan said that he proposed to bring forth a comprehensive measure on the reform of the election law. His article on Independence Day cited the amendments to the election law and the Constitution, among “the more glaring distortions” of the former regime.
In his address to Parliament on March 28, 1977, acting President B.D. Jatti said that the government would take steps to secure the repeal of the amendments which “defined corrupt practices and afforded protection to electoral offences by certain individuals by placing them beyond the scrutiny of the courts”. Such a measure was promised in the Janata Party’s manifesto as well. The pledges were listed along with others for the repeal of the repressive laws. They were broken.
New legal culture
Already by 1975 a new legal culture was being spawned. Early in the day, the first Chief Justice, H.J. Kania, told Judges in Hyderabad:
“The British have given us a fine system of judiciary on a platter. No doubt, a little mortar is falling here; a little brick is coming out there. But don’t destroy it by trying to interfere with the edifice. You may repair it or add to it or alter it somewhat, without destroying the structure as a whole.” (The Judiciary I Served, page 42.)
In contrast, at an Indo-German (East German) seminar in Delhi in 1983, Justice D.A. Desai of the Supreme Court boasted: “I propose to remain in the system, corrode it and refill it with new elements so that the system can effectively render Justice”, his oath of office notwithstanding. To some Judges, the constitutional system is a foreign plant. They will replace it by their own will. Justice O. Chinnappa Reddy regarded (February 1987) “the basic structure” doctrine as one “propounded by the bourgeoisie”.
On November 26, 1968, Justice P.N. Bhagwati denounced Judges “trained in the old British tradition of adversary justice”. He should read these two excellent books to understand the roots of that culture. (Sir Edward Coke: A Force for Freedom by John Hostettler; pages 213, Rs.225; and Lord Mansfield by Edmund Howard; pages 198, Rs.215. Both published by Universal Law Publishing Co. Ltd., New Delhi.)
Coke, as Chief Justice of the Common Pleas, spoke up to King James I, and his defiance was noted by Justice K.K. Mathew in Indira Gandhi’s case (1975 Supp. SCC; page 133). It all happened on a Sunday morning on November 10, 1607. Coke told the King that he could not try cases. “Then the King said that he thought the Law was founded upon Reason, and that he and others had Reason as well as the Judges. To which it was answered by me, that true it was that God had endowed his Majesty with excellent science and great endowment of Nature. But his Majesty was not learned in the Laws of his Realm of England; and causes which concern the Life, or Inheritance, or Goods or Fortunes of his Subjects are not to be decided by natural Reason but by the artificial Reason and Judgment of Law, which requires long Study and Experience before that a man can attain to the cognisance of it, and that the Law was the golden Merwand and Measure to try causes of the Subjects, which protected his Majesty in safety and peace. With which the King was greatly offended, and said that then he should be under the Law, which was treason to affirm (as he said). To which, I said, that Bracton saith, Quod Rex non debet esse sub homine sed sub deo et Lege – that the King should not be under man, but under God and the Laws.” This puts paid to the Judges’ notion that they can ignore the law and use their own “reason”.
The will to mould the law is not backed by legal equipment. The desire to win popular acclaim and immortality is unworthy in a Judge. It results in arbitrariness and end to the rule of law.
Mansfield held unlawful the state’s declaration of John Wilkes as an outlaw. What he said on Judges seeking popularity or official favour ranks as a classic:
“The constitution does not allow reason of state to influence our judgments. We must not regard political consequences, how formidable ever they might be. If rebellion was the certain consequence, we are bound to say ‘Fiat justitia, ruat coelum’. The constitution trusts the king with reason of state and policy…. I wish popularity, but it is popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas of thousands or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invest, or the credulity of a deluded popular can swallow.” (98 E. R. 327 at 347; 19 State Trials, page 1075).
It was in full keeping with this tradition that on April 1, 1829, the Chief Justice of the Supreme Court of Bombay closed the Court because the Governor did not enforce its orders (Frontline, August 1, 2003, page 76). In contrast, as Chairman of the Press Council, Justice N. Rajagopala Ayyangar assured V.C. Shukla, Minister for Information and Broadcasting, on August 13, 1975, that he had successfully averted discussion of the Emergency (White Paper on Misuse of Mass Media).
Justice and law
Justice Sinha was like Justice Kania, heir to the older tradition – dispensing justice according to the law, not personal whim or political “philosophy”, and dispensing it in judicial language. He retired to lead a quiet life but spoke up once in an interview to The Hindustan Times (June 18, 2000) to censure those who had profited politically by his judgment:
“Posterity will not excuse the perpetrators of the Emergency. But what about succeeding regimes? Violations of fundamental rights to life and liberty continue on large scale. According to one report, 75,000 violations have been reported this year in Uttar Pradesh alone.
“Peaceful demonstrations are still subjected to use of excessive force. Custodial deaths and governments being called upon by courts of law to pay compensation are routine news. But can compensation be a solace to those whose near and dear ones lost their lives merely because they incurred the displeasure of those in authority?
“In 1975, all those atrocities occurred in the name of Emergency. There is no official Emergency today, yet the atrocities persist. It appears we have learnt no lessons. These are dangerous portents, and unless we take serious notice today to rectify these evils, the much-maligned Emergency may recur, albeit in a disguised form.” They do not make men like him any more.
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.
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.
In view of the increasing incidences of rape, sexual offences, sexual abuse of children, particularly street-children, the Indian government and the law ministry were urged to redefine rape and include related sexual offences in its ambit.
While the Supreme Court has asked the government to come out with foolproof measures to curb ‘sex tourism’ in the country and register cases of rape against those pushing children into prostitution rackets or having sex with them, a delegation of representatives from various national women’s organisations has met and submitted a memorandum to the Union law minister Veerappa Moily demanding that the Sexual Offences (Special Courts) Bill be introduced in Parliament and the definition of rape be expanded and punishment be enhanced.
Expressing shock at the fact that 70 per cent of sex workers are children, a two-judge Bench of Justices Dalveer Bhandari and AK Patnaik said: “Obviously, it is a case of rape if the girls are less than 18 years. If you register 376 IPC (rape) cases, they (accused) will learn the lessons of their life. But the problem is that you don’t do it.”
The apex court said this enormous problem cannot be addressed in a mechanical manner. “We need enormous efforts to deal with it. Gigantic problems have to be dealt on a priority basis,” the judges observed. The apex court gave the direction to solicitor general Gopal Subramaniam during the hearing on a PIL after counsel Aparna Bhat, appearing for certain NGOs, submitted that child prostitution amounted to rape and the menace has reached alarming proportions.
“Just taking them out of the brothel and putting them on the streets is not going to solve the problem. The efforts will bear fruits only after they are properly rehabilitated which is their right (children) under Article 21 (right to liberty),” the apex court said.
On August 12, 1990, police officer S.P.S. Rathore molested 14-year-old Ruchika Girhotra. That it has taken all of 19 years to be able to write that sentence without fear of libel tells us something of our criminal justice system. And in those 19 years Ruchika committed suicide, her family went through hell, Rathore rose up the ranks to become Haryana’s top police officer. When a beaming Rathore walked out of a Chandigarh court on Monday, convicted of molestation but sentenced to just six months in jail, the verdict mocked all that our law and justice system stands for.
In the 19 years between Ruchika’s first complaint to Monday’s judgment, the crime of molestation was compounded by many other horrors. First was the long delay in filing an FIR, despite the then Haryana DGP’s recommendation. Then there was the prolonged hounding of the Girhotra family. The many cases filed against Ruchika’s brother were finally halted only after the Punjab and Haryana high court stepped in. Meanwhile, the family went into hiding, and Ruchika killed herself. Even in death, she was besmirched. In court, the defence counsel’s lengthy arguments cast aspersions on her character and that of her father. Though no charges of abetment to suicide or criminal harassment have been successfully proved against Rathore, the travesty of justice that Ruchika and her family faced — over and above her molestation — is in plain sight.
In this context, it is still some consolation that Rathore’s crime has been confirmed by a court of law — even if the sentence seems paltry for such a crime and other accusations remain unresolved. The case shows once again how inept the system can be, by design or otherwise, in speedily processing cases. Prompt registering of an FIR, a speedy trial and swift conviction might have prevented the many horrors that followed Rathore’s original crime. Besides, when there is clear power asymmetry between the perpetrator and the victim, the judicial process must be extra-sensitive to protecting the victim and complainants against retribution. S.P.S. Rathore was even at the time of the crime a powerful officer; in a shocking act of political indifference, he was promoted all the way to eventually become Haryana’s DGP. As the higher judiciary and law ministry ponder ways to speed up justice delivery, the many injustices inflicted on Ruchika Girhotra during the agonisingly long wait for justice provides a salutary, if sobering, lesson.
Children are the most vulnerable group in any population. They can be exploited, ill-treated and directed into undesirable channels by anti-social elements. In Legal Aid committee V. UOI, the Supreme Court observed, “children require the protective umbrella of society for better growth and development as they are not in a position to claim their entitlements.”
The state is the foster father for all those children who are deprived of parental care. It has the duty of giving protection to them.
Ideally, every home should be a ‘Child Care Home’ but the ground realities are different. Materialism has adversely affected familial relationships. Consumerism has taken its toll on social bonding. Homes are breaking and indifference has settled in community behaviour. We are evolving as individuals but degenerating as a social animal. In the prevailing cultural and social milieu, children have been led to the doorsteps of criminal world.
According to the National Crime Record Bureau, 32,681 juveniles are arrested by police every year in India on charges of murder, rape, dacoity, robbery, burglary, theft, hurt and other crimes. Six percent of them are girls. Juvenile delinquency has increased by 1.1 per lakh of population in 1995 to 1.7 per lakh of population in 2008. Poverty and illiteracy were the two main causative factors behind this.
In all, 27 per cent of the arrested juveniles were illiterate, 37 per cent under primary, 72 per cent from the BPL families, 6.8 per cent from the middle income group and 0.2 per cent from the high income group. The ill-effects of juvenile delinquency can be mitigated if the fundamental principles for the administration of juvenile justice are put into practice.
The Beijing Rules and Riyadh Guidelines have declared the fundamental rules which should be applied to deal with the problem. India, being a signatory to all the conventions on the Rights of Child, is under legal and moral obligation to enact laws conforming to international standards. Articles 15(3), 21, 21(A), 22(1), 22(2), 23, 234, 37(e), 37(f), 45, 47 and 51A(k) of the Indian Constitution impose a primary responsibility on the state to ensure that all the needs of children are met and their basic human rights are fully protected.
The Juvenile Justice (Care and Protection) Act 2000 and the Juvenile Justice Rules, 2007 are the laws to deal with juvenile delinquents and juveniles in need of the care and protection. The Fundamental Principles for Administration of Juvenile Justice, as elaborated in Justice Rules, 2007 include presumption of innocence, right to be heard, positive measures, principles of no harm, no maltreatment and principle of best interest. Unfortunately, the apathy of the law enforcement agencies and the law adjudication authorities have rendered these laws as non-existent.
To provide a child-friendly environment, the cases of ‘juveniles in conflict with law’ are to be adjudicated upon by the Juvenile Justice Board, to be constituted by the state government concerned in every district. Almost all Boards are functioning from the regular court premises, contrary to law.
Childhood is the age for play and personality development and not for facing prolonged trial in the court. The rule 13(6) (d), therefore, rightly prescribed that cases of juveniles should be disposed of by the Board within four months. It can be extended by two months in exceptional cases involving transnational criminality, large number of witnesses and inordinate delay in production of witnesses.
Except in serious crimes, delay in trial beyond six months should automatically lead to termination of the proceedings against the juvenile. Despite the clear mandate of law, lakhs of cases are pending in courts beyond six months. This is illegal and gross injustice to the children.
The state machinery is equally negligent in providing infrastructure and facilities for the juveniles. The Child Welfare Committees to be constituted as per the provisions of JJ Act 2000 and JJ Rules 2007 are not in place in all the states. The Children’s Home and Shelter Home with prescribed facilities are non-extent. The selection committee for social workers to be associated with the Juvenile Justice Boards and Child Welfare Committees under the chairmanship of a retired High Court judge has not been constituted in most states.
The state is required to put the apparatus in place to ensure proper adoption, foster care, sponsorship and rehabilitation of juveniles. The objective is to ensure social reintegration of every juvenile as a normal citizen. A juvenile is the responsibility of the state till he or she attains the age of 18 years. The After Care organisations are designed to prepare the juveniles who have attained adulthood, to rise on their feet.
Unfortunately, the After Care organisations and the Social Reintegration mechanism as envisaged in the JJ Act have not been provided adequately in any of the states. To protect the human rights of children, crimes against children have been separately defined under the Act. All these crimes are cognisable offences where police can register FIRs and arrest offenders without warrant. The police is ignorant and hardly any cognisance is taken under these provisions though the children are suffering atrocities including the exploitation of child labour in public view.
Any law is as good or bad as its enforcement. The Juvenile Justice Act 2000 is the best law and a complete code which anyone can imagine for the juveniles’ care and protection. Deplorably, these laws and rules are not implemented in letter and spirit.
The law enforcement agencies should be told that acting in violation of the law is unpardonable. They can be held liable for their negligence. The only saving grace for them till now is that victims of criminal negligence are poor children who have no spokesperson to raise the voice for them at appropriate forum.
The children’s rights need to be protected if the civilisation has to progress in the right direction. There is an imperative need for sensitising those who are given the responsibility of protecting the children’s rights.
The writer, a senior IPS officer, is Inspector-General of Police, Training, Haryana
Children are the most vulnerable group in any population. They can be exploited, ill-treated and directed into undesirable channels by anti-social elements. In Legal Aid committee V. UOI, the Supreme Court observed, “children require the protective umbrella of society for better growth and development as they are not in a position to claim their entitlements.”