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Tag: human rights (page 1 of 4)

How a CRZ violation is leading to a small revolution in Karnataka

Baad, a village near my village of Kagal in coastal Karnataka, hosts a fair every year at the Shri Kanchika Parameshwari temple. As children, the joy of going to this fair was unparalleled. During the fair, the yakshagana, a folk dance, used to take place in a big field near the temple. Instead of paying to watch this dance, my friends and I used to play a game of dappanduppi with mud stones. These memories remain as fond connections to our childhood.

In 2008, while I was completing the final year of my BA studies, I came to hear that this field had been sold and that a big resort would come up there. Many questions about why the owners would want to sell such a prosperous field, where farmers would grow rice and peanuts during the monsoons and vegetables during the summer months, plagued me.

satellite image of Nayak Hospitalities

Satellite image of the Nayak Hospitalities compound

Nayak Hospitalities (“NH”) was the buyer and as a result of the purchase, farmers’ fields, some public wells, and even a cremation yard, was acquired. Public access to a beach was also blocked. The loss of the wells affected the supply of drinking water to three villages – Baad, Jeshtapura, and Gudeangadi. After NH built a wall of about 15 to 20 metres height around the occupied land, fresh breeze from sea stopped blowing into the village. The villagers, who were also worried about the dangers posed by the crumbling of the wall during the rainy season, complained to the panchayat on two occasions and asked for the height of the compound wall to be reduced, but the panchayat did not take any action.

meeting with the people affected

Meeting with the people affected

As an Enviro-Legal Coordinator with the Centre for Policy Research (CPR)-Namati Environmental Justice Program, my job is to inform people about the law, and work with them to solve the various environment-related problems they face. I had helped conduct training programmes on awareness of the Coastal Regulation Zone Notification, 2011 (“CRZ Notification”) in Baad and surrounding areas. This led to discussions about the violations caused by NH and a decision to work together in collecting information, evidence, and pursuing remedies with the local authorities. Collection of information is central to the way we try to resolve problems. That way, if a similar problem arose in the district, a solution based on this case could be used.

Collection of information

The project had obtained clearance from the Ministry of Environment, Forests and Climate Change in December, 2010. Under this letter, permission had been granted to construct the resort on survey numbers 4 to 9, 11 to 13, 17, 19 to 21, 23, and 26 of Baad and survey numbers 14, 16, 18, and 19 of Gudeangadi. It also contained 12 specific conditions and 14 general ones but we observed that many of them had not been complied with.

Nayak Hospitalities compound area

Nayak Hospitalities compound area

  1. Construction on land in excess of permission given: The project had permission to construct on 5.26 ha, but ended up constructing on 9.67 ha. The land includes public property such as government wells, a cremation yard, a temple’s field, and also access to the beach.
  2. Construction in No Development Zone: Under the CRZ Notification, no new construction is allowed in the zone known as CRZ-III. However, the compound wall has been constructed in the 0-200m No Development Zone of CRZ-III.
  3. Access restricted: The lack of access to the three government wells located on NH’s property is leading to shortage of drinking water for the villagers living in the area.
  4. Non-permissible installation: The installation of a pumpset in the NDZ of CRZ-III is not a permissible activity. However, pumpsets have been installed on the NH site. This has reduced ground water in the region.

Advocating with authorities

I discussed strategy with the villagers and identified the relevant authorities. A letter was sent to the Regional Director (“RD”) of the Karnataka Coastal Zone Management Authority (KCZMA) office at Karwar. After a site inspection, the RD noted some violations and sent a report to the KCZMA and a notice to the proprietors of NH.

site inspection by regional director envrionment

Site inspection by Regional Director

Since no relief followed, the villagers and I decided to send letters to all relevant authorities including the District Commissioner (“DC”), Executive Officer (“EO”), and the Panchayat Development Officer (“PDO”). Site inspections were carried out and once again, notices were issued against NH. Upon request by the villagers, the panchayat on five separate occasions, gave notice to NH to reduce the height of the compound wall. This too had no effect. Finally, an order by the DC led to a reduction of the height of the wall from 15-20 meters to 6 feet. This was a small victory after two years of hard work.

Not a small victory

The victory was not absolute since the villagers still did not have access to the common land and the government wells. We used provisions in the Karnataka Land Reform Act, 1961, Panchayati Raj Act, 1993, and the Environmental Protection Act, 1986 and wrote letters to the DC, the EO, and the PDO. If any action had been taken pursuant to these letters perhaps a solution might have had been possible. The letters get transferred from one government department to another and my job then becomes to trace the status of the compliant. This is a waste of time, money, and energy.

The NH project is still inconvenient for the villagers in Baad and Gudeangadi and though their problems are not yet fully resolved, there is still hope. Through these two years, there has been immense support from the villagers of Baad and Gudeangad in working together to resolve the problems that they face. They now also have a pretty good understanding of the law and are in a position to seek remedies to their problems in the legal system. By working to get justice in this case, the villagers have also become more aware about the importance of the environment and common resources. This manner of legal empowerment has also helped them solve other small CRZ violations.

 

vinod photo

Vinod Patgar is an Enviro-Legal Co-ordinator with the Centre for Policy Research – Namati Environmental Justice Program.

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[Video] Mathura: The rape that changed India

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Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

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Supervening circumstances and the commutation of a death sentence: A more definitive law from the Supreme Court

ProceduralLawOfTheDeathPenalty_RahulRamanIf the situation that prevailed at the time a sentence of death was delivered has changed, can the Supreme Court take those changed circumstances into account to commute a sentence of death? Less than two years ago, the Supreme Court in Shatrughan Chauhan v. Union of India, 2014 (3) SCC 1, looked into whether executing a death sentence notwithstanding the existence of such supervening circumstances would violate among other things, Article 21 of the Constitution. After weighing such circumstances in different petitions, it commuted the penalty of fifteen individuals to life imprisonment and laid down a more definitive law on the Court’s power of commutation.

The petitioners had claimed that the executive, while exercising its power under Articles 72 or 161, did not consider any supervening events. In a few previous decisions such as Triveniben (1989) and Jagdish v. State of Madhya Pradesh (2009), the Court had declared that it had a duty to protect a prisoner’s right to life till his last breath. This provided the Supreme Court with the legal basis to take supervening circumstances into consideration and those pleaded in Shatrughan Chauhan included delay, insanity, solitary confinement, and procedural lapses.

Delay in processing mercy petitions

The question of whether the executive’s delay in processing a mercy petition should be considered a supervening circumstance has troubled the Court for a long time. There is no stipulated time limit within which the executive has to dispose a mercy petition and often, there is inordinate delay.

Earlier, a division bench of the Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361, had held that a delay of two years in execution of a sentence after the judgment of the trial court would entitle the prisoner to plead for commutation of his sentence of death to life imprisonment. Soon after however, a three-judge bench in Sher Singh and Others v. Union of India, AIR 1983 SC 465, held that delay alone could not be a good enough ground for commutation of death sentence, and overruled the two-year delay rule. Nevertheless, this decision acknowledged a prisoner’s right to a fair procedure at all stages – trial, sentencing, and incarceration.

To resolve this apparent conflict, a constitution bench took up this issue in Triveniben v. State of Gujrat, 1988 (4) SCC 574. In a landmark verdict, the Court held that while an undue delay would entitle a punished individual to invoke Article 32, Vatheeswaran’s “two-year delay rule” was not correct.

The Court relied on this decision in Shatrughan Chauhan. It held that while considering the rejection of a clemency petition, the Court could not overlook the pain caused to the convict. Therefore, the Court was well within its judicial power under Article 21 read with Article 32 of the Constitution to hear a convict’s grievance and commute a death sentence to life imprisonment if it is found that that there had been undue, unexplained, and inordinate delay in execution due to the pendency of a mercy petition.

The Court decided not to lay down any compulsory period within which the President has to decide a mercy petition. While the Court would make such a determination on the facts and circumstances of individual cases, it suggested that the executive should itself weigh the aspect of delay while disposing of a mercy petition.

The Court also said that the decision of the Court in Devender Pal Singh Bhullar v. State (NCT) of Delhi, 2013 (6) SCC 195, which had disqualified cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 from scrutiny on account of delay, was per incuriam. Any person sentenced to death could avail “delay” as a supervening circumstance regardless of the offence and the statute under which he has been convicted. Later, the Supreme Court recognised this finding in Navneet Kaur v. State of NCT of Delhi, Curative Petition (Criminal) No. 88 of 2013 (Supreme Court) to commute Devender Pal Singh Bhullar’s death sentence to life imprisonment.

Insanity or mental illness

The next ground considered by the Court was that of “insanity” or “mental illness” as a supervening circumstance. The Court after referring to several international conventions like the International Covenant on Civil and Political Rights concluded that this was a valid supervening circumstance. It noted that once mental illness of the convicted individual is medically certified, executing him would be in violation of the international convention to which India was a party, and of Article 21 of the Constitution.

Solitary confinement

Despite underlining its own finding in Sunil Batra v. Delhi Administration and Others, 1978(4) SCC 494, the Supreme Court decided not to interfere on the ground of “solitary confinement” in Shatrughan Chauhan. Later however, the Allahabad High Court in People’s Union for Democratic Rights v. Union of India, 2015(2) ADJ 2015 and the Supreme Court in Ajay Kumar Pal v. Union of India, 2014(13) SCALE 762 held that “solitary confinement”, along with other factors, was a permissible supervening circumstance to commute death sentence to life imprisonment.

Procedural lapses

The final ground raised was that of “procedural lapses” made by the executive while disposing of mercy petitions. The Court held that the procedures prescribed for the Ministry of Home Affairs were a necessary requirement under Article 21 to treat the death row convicts fairly. It noted that the President should be provided with all the relevant material to assist him in disposing the mercy petitions. The concerned departments cannot give or seek piecemeal information regarding the petition to be decided. However, the scrutiny of a procedural anomaly would be done on a case-to-case basis.

The circumstances raised in Shatrughan Chauhan are not exhaustive. The addition (or removal) of supervening circumstances to this list would depend on the judicial attitudes to reconciling convict’s rights with those of the victim or the society. Further, despite the unambiguous decisions in Triveniben and Shatrughan Chauhan, it is entirely up to the Court to see on an individual basis, how to interpret ‘undue and unexplained’ delay and whether to permit it as a supervening circumstance.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

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The marital exception to rape: How to make a crime disappear

SayakDasguptaSir Matthew Hale, one of England’s greatest jurists, was a simple, humble, and fastidiously honest man. In fact, so unimpeachable was his character that, despite being a royalist who defended the opponents of the Commonwealth of England during the English Civil War, he was still appointed a justice of the common pleas by Oliver Cromwell when the Commonwealth came to power. When the Restoration happened, the King appointed him Chief Baron of the Exchequer, even though he had held office in the government of his mortal enemies. Hale, it is said, had no desire to receive the knighthood, so he literally had to be tricked into it (Lord Clarendon invited Hale to his house where the King was waiting to knight him on the spot).

For all his virtues, though, Hale was as much of a fusty old antiquarian when it came to women, as you would expect from a privileged, white, devoutly Puritan Englishman from the 1600s. In a letter to his granddaughters, he wrote longingly of a time when “the education and employment of young gentlewomen was religious, sober, and serious, their carriage modest and creditable was their habit and dress” and “when they came to be disposed of in marriage, they were themselves a portion whether they had little or much, and could provide for and govern a family with prudence and discretion, and were great helps to their husbands, and knew how to build up a family, and accordingly were instruments in it”. He bemoaned how times had changed and “young gentlewomen learn to be bold, talk loud and more than comes to their share, think it disparagement for them to know what belongs to good housewifery, or to practise it, make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest of fashions.” He wrote that he would never allow his granddaughters to be like this, that he would train them to be “good wives and better portions to your husbands than the money you bring, if it were double to what I intend you, for you will be builders up of a house and family, not destroyers of it”. Above all, he wanted them to be “good examples to others, and be thereby a means to take off the reproach that justly enough lies upon the generality of English gentlewomen, that they are the ruin of families”.

Like most men of the time, Hale saw women as some sort of loveable hybrid between a trainable pet and an obedient servant, who should be strictly controlled lest they go out of hand. It is perhaps somewhat revealing that after his wife died, Hale married his housekeeper, Anne Bishop, whom he described in his will as “most dutiful, faithful and loving”, words that can also be used to describe an adoring butler or a loyal dog.

No longer enough to create further exceptions”

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King's Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi's image is from the Press Information Bureau.

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King’s Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi’s image is from the Press Information Bureau.

Perhaps Hale’s most famous work as a legal scholar is the Historia Placitorum Coronæ or The History of the Pleas of the Crown, which was published in 1736 (60 years after his death, despite an instruction in his will clearly stating that none of his manuscripts were to be published posthumously) and is considered a seminal work in the development and evolution of common law. It was in this book that he wrote the now (in)famous line that had been used until relatively recently in most common law countries to defend marital rape:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

The husband, then, by virtue of marriage, gained complete right over his wife’s body. Wedding vows were meant to be a form of permanent consent for sex. It would not be a stretch to say that for most women at the time, the bond of marriage was akin to bonded servitude mixed with sexual slavery.

This would be the norm in England for the next two centuries, but changes in social attitudes towards marriage began to make the marital exemption to rape seem increasingly more ridiculous with every passing year. In 1990, the Law Commission in England released the Working Paper No. 116 on Rape within Marriage in which it recommended unequivocally that the exemption should be abolished. But the final death knell for the spousal exemption came in 1991 with the House of Lords’ landmark decision in R. v R, in which the court held that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The judges observed that “courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes,” but then added the powerful line: “There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.”

On the question of whether the court should step aside to leave the matter to the Parliamentary process, the House of Lords stated: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

RvR_HouseofLords_ChiefJusticeLordLane

With these words, England removed the marital exception to the crime of rape. In the United States, states had begun to remove this exception since the 1970s, and by 1993, all 50 states had done so. By the dawn of the 21st century, marital rape was a crime in most European nations. Our neighbour Bhutan had declared it a crime as far back as 1996, and Nepal followed suit 10 years later. Today, marital rape is a crime in the majority of the countries in the world. India, however, chooses to remain on the list of countries where it isn’t; a list that includes Afghanistan, China, Eritrea, Iran, Iraq, Libya, Pakistan and Saudi Arabia.

In the wake of the horrific events of December 16, 2012, the Justice J.S. Verma Committee reflected long and hard on how our criminal law system deals with various kinds of sexual violence perpetrated on women and children. Nearly six pages of its Report concentrated on the problem of marital rape. It recommended that the exception for marital rape be removed (Exception 2 to Section 375 of the Indian Penal Code, 1860 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”), and that the law ought to specify that a marital relationship between the perpetrator and the victim cannot be used as a defence against rape and that it should not even be regarded as a mitigating factor justifying lower sentencing for rape.

MaritalExceptionToRapeIPC

The ordinance that was drafted on the basis of the Report included many of its recommendations but left out some of the most important ones, perhaps chief among them the recommendation on marital rape. Defending the ordinance, Union Finance Minister P. Chidambaram said that issues like marital rape were difficult and that the government needed more consultations. This was, to put it mildly, perplexing. In modern times, the criminalisation of marital rape seems to be a very simple, logical, rational conclusion. In fact, one needs to perform several extraordinary feats of mental gymnastics to justify and legitimise the opposite. How is it that those who maintain that rape should attract the harshest punishment for the perpetrator suddenly find the act acceptable when a husband does it to a wife, as if a wedding is a Harry Potter-esque invisibility cloak that makes the crime disappear?

As a response to the government’s hedging on the issue, we posted the following comic on Facebook on February 9, 2013:

WSDP - Marital Rape

Now, I confess there are problems with this comic – it’s a little simplistic, and also Einstein might not have been the best choice to deliver this lesson as he was hardly the greatest husband in the world – but, the point was that it does not, or should not, take a genius to understand why the marital exception to rape should be removed.

A family that disrespects individual autonomy together…

And now, it seems the marital exception is one of those things the UPA and NDA governments agree upon. Well actually, while the former claimed that they were at least considering it, the latter seem to have ended the conversation altogether. Maneka Gandhi, the Minister for Women and Child Development has said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.” This is a stunning departure from her position on the marital exception to rape just last year and the most puzzling argument I have ever heard about a legal issue. What does illiteracy or poverty have to do with amending a law that demonstrably causes physical and mental trauma to individuals? Did social customs and religious beliefs of some people stop the legislature from making laws against sati, child marriage, dowry and caste-based discrimination?

MaritalRape_CriminalLawAmenedment2012

The “mindset of the society to treat the marriage as a sacrament” point is an old one. The claim is that marriage is a sacred bond between a man and a woman (only between a man and a woman), and that the state has no business interfering in the domestic affairs of a married couple. This argument is woefully flimsy. Laws on domestic violence and divorce would not exist if the state did not think legal intervention was necessary even in a marriage.

A similar argument was used in a report on the recommendations of the Justice Verma Committee prepared by the Department-Related Parliamentary Standing Committee on Home Affairs and presented in both houses in March, 2013. It stated that while some members had suggested that Section 375 of the Indian Penal Code should allow “some room for wife [sic] to take up the issue of marital rape”, that “no woman takes marriage so simple [sic] that she will just go and complain blindly” and that “consent in marriage cannot be consent forever”, several members “felt that the marital rape [sic] has the potential of destroying the institution of marriage.” The report went on to say that “In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.”

What this suggests is mind-bogglingly terrifying. It seems to assert that the foundation of an Indian family is not based on trust, love, equality, understanding, cooperation, mutual respect and interdependence. It is based on a skewed power structure where one partner gets to inflict violence on the body and mind of the other, where the success of the relationship depends on how much the partner with less power can endure. Imagine being punched in the stomach by your brother and then being told that you should just suck it up because the law says when your sibling hits you, it’s not assault. Now imagine that he beats you up whenever he pleases and you are told that this is not a crime being committed repeatedly on your body because surely, as a family, you can work things out. If you report him to the police, the family system in India will crumble. Surely, the preservation of the “Indian family” is more important than the physical and mental trauma being caused to you.

The Standing Committee consisted of 29 members at the time, none of whom had any specific experience or expertise in women’s issues. Only 3 of the members were women. One of them was Dr. Kakoli Ghosh Dastidar, a Trinamool leader who in December, 2012 had said that the gang rape of Suzette Jordan in Park Street, Kolkata “was not at all a rape case. It was a misunderstanding between the two parties involved between a lady and her client,” thus insinuating that Jordan was a sex worker. When the report was published, a dissenting note was appended to it, and among other things, it condemned the Standing Committee’s position on marital rape as unconstitutional and contrary to the Justice Verma Committee’s recommendations. The note was given by only two members of the Standing Committee: D. Raja and Prasanta Chatterjee, of the Communist Party of India and Communist Party of India (Marxist), respectively. No other member recorded dissent.

India’s relationship with its colonial era laws is simultaneously confounding and tragicomic. On the one hand we puff up our chests with pride when we think of our freedom struggle and victory over our colonial oppressors, and on the other hand we cling stubbornly and blindly to their archaic laws, which have no place in modern times – laws that even they have done away with. But what is truly depressing is that we undervalue women so much that we would rather grasp at half-baked fictions and outdated notions of family than address the real harm being done to real individuals in real time. We are only too happy to declare that our society is too primitive to accept modern ideas and then sacrifice the safety of women on the altar of our own apathy. Yes, laws are often only amended after there has been a change in social attitude towards the issue in question, but in India, we have also had a long history of enacting laws as instruments to bring about such social change. We can either embrace that history and move with the times or throw in our lot with a man who died four centuries ago and a belief that should have died with him.

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

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The High Court as trial court in death penalty confirmation proceedings

ProceduralLawOfTheDeathPenalty_AmrutanshuDashIs a death sentence rendered by a sessions court final? Are there any checks on the powers of a sessions court over such an important decision? Can the High Court call new evidence in a death penalty proceeding? This note is an attempt for more clarity on these questions. The Code of Criminal Procedure, 1973 (“Code”) under Section 28(2), directs that a death sentence can be passed only by a sessions judge or an additional sessions judge. Further, the Code ensures that a sentence of death passed by a court of sessions (comprising either the Sessions or the Additional Sessions Judge) shall be subject to confirmation proceedings before the High Court exercising jurisdiction over it. Therefore, it is safe to conclude that the death sentence rendered by a sessions court is not final and is subject to the automatic supervision of the relevant High Court.

Sections 366 to 371 of the Code outline the confirmation proceedings before the High Court. In Bachan Singh (1980), the Apex Court noted that these provisions ensure that “the entire evidential material bearing on the innocence as[or] guilt of the accused and the question of sentence must be scrutinised with utmost caution and care by a superior court” considering that the outcome of the case would determine the life of an individual. It is interesting to note that similar confirmation provisions were also found in the old criminal procedure code of 1898 from Sections 374 to 380.

The confirmation process

Once the Sessions Court passes the death sentence, it is bound to refer the proceedings of the case to the High Court under Section 366(1) of the Code. Under Section 366(2) of the Code, a sentence of death cannot be executed unless it is confirmed by the High Court. As opposed to the 1898 Criminal Code, the 1973 Code includes a provision that authorises the Sessions Court to commit the convicted person to judicial custody (that is, jail). The Supreme Court has clarified in Sunil Batra (1979) that this custody cannot be considered equivalent to an imprisonment. The logic behind the provision is probably that the incentive to evade the legal process for a convicted person (sentenced to death by a sessions court) is very high and therefore the provisions seeks to address scenarios wherein the convict is not available for execution of the sentence.

It has been held in a catena of cases, including in State of Maharsahtra v. Sindhi and Jumman v. State of Punjab, that the confirmation proceedings are a continuation of the trial at the Sessions Court. Support for such an understanding can be derived from the fact that Section 366(1) states that the “proceedings” shall be submitted to the High Court unlike the appellate provisions where the factum of appeal lies in the conviction or acquittal or the enhancement of the sentence (Section 374 read with Section 386). There is however, a fundamental distinction between the confirmation proceedings at the High Court and a trial at the Sessions Court. While the Code, under Section 273, creates a general rule that all evidences taken in the course of the trial shall be taken in the presence of the accused, Section 367 states that the general rule in case of confirmation proceedings is that, unless the High Court feels otherwise, the presence of the convicted person is not required even when new evidence is taken. The Supreme Court has suggested that the presence or the absence of the accused does not make a difference at the confirmation stage since the High Court are duty bound to give the matters its utmost and undivided attention. Here, it is pertinent to mention that under the appellate jurisdiction, the Code in Section 391(3), grants the right to an accused (or his pleader) to be present when additional evidence is taken.

The Code also specifies that the confirmation proceedings should be conducted at least in front of a division bench of the High Court. Should there be any difference of opinion, the matter will be referred to a third judge whose decision will determine the final outcome of the case.

In death penalty cases, the normal practice is that the Sessions Court refers the matter for confirmation to the High Court and additionally, the convict files an appeal on his conviction under Section 374(2) of the Code. According to Section 368, the order of confirmation is not given until the appeal is disposed off by the high court. It is also clarified that there is no obligation on the convict that he must appeal his conviction to the High Court. Even if he does not, the constitutional court is duty bound to re-assess the death case.

Powers of the High Court

As discussed above, the power of a high court in confirmation proceedings is considered to be a continuation of trial. It is well settled that in a reference under the confirmation provision, the High Court has to consider the evidence afresh and arrive at its own independent findings with regard to the guilt of the accused, independent of the views of the Sessions Judge. At the same time, the Supreme Court has also cautioned that the conclusion arrived at by a sessions court cannot be completely overlooked.

Section 368 delineates the powers of a high court during a confirmation proceeding. The High Court can do the following: confirm the death sentence, pass any other sentence, annul the conviction but convict the accused of any other offence, order a new trial on the same or amended charge, and finally may also acquit the person. These powers look similar to the powers of the appellate court under Section 386. However, there are some essential differences between the confirmation and appellate proceedings.

Confirmation proceedings versus appellate proceedings

There are three major differences between the power of the High Court when it is seized of a confirmation proceeding and an appellate proceeding under the Code.

First, the reference to confirmation is automatic whereas appeal proceedings are only brought before the court if the distressed party files an appeal (and has a right to file one). A corollary of this situation is that in a criminal appeal, the court can dismiss the appeal if it decides that there is no ground for interference without examining the entire record. On the contrary, the High Court is duty bound to consider the entire evidence on record while confirming a death sentence.

Second, the confirmation court has a power to order further inquiry or take evidence (itself or by a lower court) without indicating any reason for doing so (under Section367(1)) whereas under Section 391(1), an appellate court has to provide written reasons to justify its act of taking new evidence (itself or by a lower court). Further, Section 391 does not empower the High Court sitting in the criminal appellate side to order further inquiry.

Finally, the appellate court has a certain leeway in not providing elaborate reasons should it agree with the findings of the trial court which is absent in confirmation cases. In confirmation proceedings, as written earlier, the High Court needs to come to an independent finding regarding the guilt of the accused and the sentence.

Special legislations and confirmation proceedings

Section 4(2) of the Code empowers the legislature to create separate trial proceedings for offences that are not part of the Indian Penal Code, 1860. There is therefore, a possibility that automatic confirmation proceedings available under the Code could be excluded. The (now repealed) Terrorist and Disruptive Activities (Prevention) Act, 1987 explicitly negated the role of the High Court and provided a direct right to appeal on both facts and law (not confirmation) to the Supreme Court under Section 19. Yakub Memon was hanged under this law and therefore, did not get the benefit of the confirmation proceedings at the High Court. Under the Prevention of Terrorism Act, 2002 (also repealed), the Parliament provided a right to appeal to the High Court both “on facts and on law” which was similar to the confirmation proceedings (but not the same). The same model was followed in the Unlawful Activities Prevention Act, 1967 through the National Investigation Agency Act, 2008 under Section 21. In POTA and UAPA, the cases are not automatically referred to the High Court, rather they must be appealed. The major difference lies in the fact that in the special laws, the appellate court only looks at the points raised by the appellant and does not examine the entire record, unlike a confirmation proceedings which operates independently of an appeal. At first glance, this situation is counter intuitive. One expects increased safeguards when special laws provide for prolonged period of police custody and the reversal of the burden of proof but the opposite situation prevails.

(Amrutanshu Dash is a student in his fifth year at the National Law University, Delhi. The views expressed in this article are his alone.)

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Transfer system, mental capacity assessment in juvenile justice bill violate equality rights

ArleneManoharan_SwagataRaha_ShrutiRamakrishnan_CCLDisagreement on vital issues of constitutionality did not stop the passage of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (“the Bill”) in the Lok Sabha. Apart from the floor of the Parliament, these issues were also raised in submissions to the Parliamentary Standing Committee and in the print and visual media.

In a drastic and regressive move, the Bill proposes the introduction of a transfer system so that children aged between 16 and 18 years and alleged to have committed ‘heinous offences’ can now be tried and sentenced as adults.

The right to equality under Article 14 and the special protection for children under Article 15(3)

By treating adolescents as adults, the proposed system will incorrectly treat two distinct categories equally. This strikes at the very core of Article 14. The Supreme Court has repeatedly endorsed as part of the Article 14 mandate (See, M. Nagaraj v. Union of India, AIR 2007 SC 71 and Joginder Nath v. Union of India, AIR 1975 SC 511), the principle that injustice arises not only when equals are treated unequally, but also when unequals are treated equally.

This animation, comprised of MRI scans, show changes in the brain between the ages of 5 and 20. Red indicates more grey matter and blue indicates less.

This animation, comprised of MRI scans, shows changes in the brain between the ages of 5 and 20. Red indicates more grey matter and blue indicates less.

Advances in neuroscience show that adolescents are neurobiologically distinct from adults. Even though persons in this age group may ‘know what they are doing is wrong’, they have been shown incontrovertibly to be unable to act on that knowledge and restrain themselves. This is because they underestimate risk, are susceptible to negative influences, and lack foresight.

They are also more amenable to reform and rehabilitative interventions because of the plasticity of their brains. As stated in an amicus brief for the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers before the Supreme Court of the United States in Miller v. Alabama, juveniles “typically outgrow their antisocial behaviour as the impetuousness and recklessness of youth subside in adulthood”.

The special protection of 16 to 18 year olds, present in the current law and negated by the Bill, is saved by Article 15(3) of the Constitution, which permits special legal provisions for women and children because uniform laws cannot address the particular vulnerability of women and children. The transfer system militates against this goal as well as the overall objective of the Bill to ensure care, protection, and the ultimate rehabilitation of children in conflict with the law.

The constitutional prohibition on procedural arbitrariness under Articles 14 and 21

The Bill requires the Juvenile Justice Board to assess, along with the circumstances in which the heinous offence was allegedly committed, whether the child offender had the physical and mental capability to commit the offence. The latest research indicates that individualised assessments of adolescent mental capacity are not possible. Any suggestion that it can be done would mean “exceeding the limits of science”. (See, Bonnie & Scott, “The Teenage Brain: Adolescent Research and the Law”, Current Directions in Psychological Science, 22(2) 158–161 (2013), p.161.)

The assessment proposed in the Bill is fraught with errors and arbitrariness and will allow inherent biases to determine which child is transferred to an adult court. The assessment also violates the principle of presumption of innocence as it operates on the assumption that the child has committed the offence.

Procedural arbitrariness is inherent in the assessment of reformation by the Children’s Court

When a juvenile sentenced by the Children’s Court attains the age of 21 years, she or he will be subjected to another assessment to determine whether or not the person has reformed and can make contributions to society.

Already, half the children apprehended for offences come from families with an annual income of less than Rs. 25,000 while only 0.55% of the children apprehended come from families with an annual income of more than Rs. 3,00,000 (See, Crime in India, 2013, Compendium, National Crime Records Bureau (2014), pg 4.) Undoubtedly, the provisions of the Bill will result in class, caste and religion-based targeting of children under the garb of assessing their potential contribution to society and extent of reformation.

Protection against disqualification violates the right to life under Article 21 and the right to equality under Article 14

Maneka Gandhi (right), the Union Minister for Women and Child Development introduced the Bill in the Lok Sabha. Shashi Tharoor spoke about the problems with treating 16-18 year olds as adults.

Maneka Gandhi (right), the Union Minister for Women and Child Development introduced the Bill in the Lok Sabha. Shashi Tharoor spoke about the problems with treating 16-18 year olds as adults.

Children between 16 and 18 years found to be in conflict with the law under Clause 20(1)(i) will incur disqualifications. While all children are protected against disqualification attached to conviction, the Bill deprives children convicted of heinous offences of this protection, thus discriminating among children based on the forum for trial, the offence, and the age.

They will therefore have to declare the conviction while applying for jobs or traveling abroad. The record of conviction will stigmatise them and make their rehabilitation and re-integration impossible.

The right to life entails the right to livelihood as well as a life of dignity. This stands compromised through the retention of the record of conviction and the withdrawal of protection from disqualification. This also means that a finding of ‘reformation’ and the ability to make a positive contribution to society based on another arbitrary assessment proposed under Clause 21 will be rendered meaningless, as the conviction will be held against the child for life.

The Department-Related Parliamentary Standing Committee on Human Resource Development also highlighted these constitutional concerns in its Two Hundred Sixty-Fourth Report. In para 3.21, it concluded that, “the existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14 and 15(3) of the Constitution.

Policy consensus based on evidence has to precede law making in a Parliamentary democracy. Examples from western countries that have experimented with the transfer system show that such a policy change will only result in higher costs related to incarceration and the deferred costs of the rage and bitterness that come from life in the adult criminal justice system.

Sending juveniles who allegedly commit ‘serious’ crimes to jail on the pretext of public safety is not in the interest of children, families, or the wider community. Placing adolescents who are at a difficult transitional phase in their lives along with adult criminals will only serve to place these young people at risk of being physically, sexually and emotionally abused and being further criminalised. This regressive outcome is in stark contrast to our constitutional mandate and the rehabilitative aims outlined even in the preamble of this Bill.

Swagata Raha, Arlene Manoharan, and Shruthi Ramakrishnan are from the Centre for Child and the Law, NLSIU Bangalore.

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Locking up adolescents who commit heinous crimes will not help anyone

Kalpana_PurushothamanI am a counsellor working with juveniles in conflict with law. Most of them are boys and some have committed crimes like rape and murder. These are crimes that the Juvenile Justice (Care and Protection of Children) Bill, 2014, which was recently passed by the Lok Sabha, considers ‘heinous’ crimes.

Mohan*, a 17-year-old charged with rape, told me about recurring nightmares of a gang rape he had witnessed. He had been the ‘lookout’ outside the door as four “rowdies” raped a middle-aged woman whose husband owed them money. He had desperately wanted to prove them wrong. Asked to clean up after them, he offered the woman a glass of water. Later, she identified him in the line-up.

Mohan was guilty and he should be punished. But should he be punished with imprisonment that will inevitably expose him to brutal violence and sexual abuse and trigger further anger? Will Mohan reform if he is sent to jail where adult convicts and offenders are most likely to groom him for further crime? Are there alternate and developmentally appropriate correctional methods that actually lead to changes in his behavior and enable solace and a sense of justice to the victim?

Mohan repeatedly told me and demonstrated through his behaviour that he was remorseful and willing to do whatever it took to do this. But we do not have such programs for juveniles in India.

Then there was Joseph*, a 17-year-old with floppy hair and sad eyes. He would sit quietly in a corner and burst into tears when I first met him at an observation home where he was being held. He was charged with the rape of Leena*, a 16-year-old Hindu girl. Medical reports had showed that she was a few weeks pregnant. Joseph had been apprehended while trying to board an inter-state bus with her, two days after she had gone missing from her house. After working with Joseph, a different story emerged.

Joseph had known Leena for the two years and they were in love with each other. A year previously, Leena’s father, who had seen them together on Joseph’s bike, had warned Joseph to stay away from his daughter. A few months later, Leena told Joseph that she was seeing another boy and broke up with him.

They had not met each other since then till three days before his apprehension when Leena turned up at Joseph’s house and told him that she had decided to commit suicide as she was being harassed by her parents. She also told him that she was pregnant by her boyfriend (who was related to her father’s family) and that her parents would kill her if they came to know of it. She asked for his help in aborting the child. Joseph stole money from his elder sister and decided to take her to a nearby city, where he was apprehended by the police. Leena’s parents filed a case of rape and kidnapping against Joseph.

In many of the cases of ‘rape’ against juveniles, there has either been consensual sex between the accused and the ‘victim’, or a false case has been filed against the boy (usually by the girl’s parents), especially where the boy and the girl belong to different castes, religions, or strata of society.

16-year-old Sathish* was charged with killing his father in a fit of rage. A chronic alcoholic, his father used to regularly beat his mother, his younger sister, and him. Sathish, despite being academically bright, dropped out of school to work at a local hotel washing dishes. His father’s bouts of drinking and violence continued unabated. One day, Sathish had enough. When his father attacked him, he hit back and slashed his father’s throat with a razor. He was found guilty of murdering his father. Although she had no role in it, his mother was also sent to jail as an accomplice.

Unlike other juveniles who simply languish in the system without intervention or rehabilitative services, Sathish received intensive counseling from me and psychiatric treatment from the Department of Child and Adolescent Psychiatry at the National Institutte of Mental Health and Neuro Sciences during his time in the juvenile justice system. With help from an NGO willing to take him in and support his education, he went on to write his 10th Standard exams. Later, he enrolled in an evening college and is slowly but surely trying to reclaim his life. His mother and sister are also receiving counselling and support in piecing their lives together.

While these are examples of some juveniles charged with having committed heinous offences and subsequently found guilty by the Juvenile Justice Board, not every juvenile charged with a heinous offence is actually found guilty. If the JJ Bill 2014 were to become law however, the Juvenile Justice Board would have to make a very arbitrary assessment of the child’s ‘mental and ‘physical capacity to commit the crime’ and decide whether they should be tried under the juvenile justice system or the adult criminal justice system. At present, there is simply no way psychologists or psychiatrists or other experts can make a scientifically sound determination of whether the crime was committed in an ‘adult frame of mind’ or a ‘childish frame of mind’.

Crime and the juvenile mind

Juveniles are certainly capable of committing heinous crimes like rape or murder. What they are often incapable of however, is to resist the peer pressure to indulge in risky behaviour that creates or leads to such situations. Research by neuroscientists and psychologists show that adolescents – especially between the ages of 16 and 18, are highly susceptible to peer influences, have poor impulse control, and their decision-making abilities often fail them in high pressure situations. This is because the part of the brain called the pre-frontal cortex, which is responsible for controlling these aspects – namely impulse control, behaviour regulation, and future orientation – is still in the process of developing.

Also, in my experience, juveniles who commit heinous crimes are very often victims of violence, neglect, emotional deprivation, sexual abuse, broken families, poverty, substance abuse and so on. All of these factors are known to influence and impede healthy brain development. While they do not make their actions right or take away the pain and damage caused to the victims and their families, it provides a certain perspective to understand why and how adolescents who should be in school or college end up committing rape or murder.

Almost every juvenile that I have worked with has expressed remorse and sadness for their actions when they feel safe to do so in a therapeutic environment. Many of them have often spoken of a deep desire to make amends to their victims and their families. A 17-year old charged with murder wanted to give his monthly earnings to the family of his victim as he felt he had deprived the family of an earning member.

My experience has been that juveniles who commit these heinous crimes do not get off lightly. They are traumatised and haunted by their actions and the pain of their victims. Depression, post-traumatic stress, nightmares, psycho-somatic disorders and a host of other mental health problems continue to dog them for years. They are cut off from their families, have to give up their schooling, and are removed from all that they hold dear. To a young person, that is often the harshest punishment one can give. Besides, the conditions at the reformatory institutions – whether Observation Homes, Special Homes, or Places of Safety – are not exactly idyllic. There is nothing ‘special’ about special homes and all these are just euphemisms for prison or prison-like conditions. Physical violence, neglect, sexual abuse and substance abuse are usually rampant. The over-worked, ill-trained and poorly rewarded staff at these institutions are not oriented to care giving or working professionally in a correctional setting for children and adolescents.

Transferring adolescents between the ages of 16 and 18 years to the adult criminal justice system and incarcerating them in adult prisons will only lead to a situation where these youngsters will come out of jail a few years later – thoroughly groomed and trained as career criminals. Instead, investing in strengthening the existing juvenile justice system – where they still have a chance to reform themselves and helping them take responsibility for their actions, teaching them to make amends to their victims and to society in appropriate ways – is the way to help prevent further crime and actually bring about some measure of healing and justice for all concerned. Restorative justice has the potential to bring together the juvenile, the victim, and society in a meaningful way. Some countries are already trying it, with varying and encouraging degrees of success.

Juvenile justice is a complex issue and there are no easy answers that will satisfy all. There is a need to balance the rights and interests of the juvenile, the victim and the society. Debate, discussion and engagement with young adolescents at risk and understanding and addressing their concerns before they commit a crime would be a positive step forward. Shutting them away in prisons afterwards will not help anyone.

Kalpana Purushothaman is a senior Counsellor at the Centre for Child and the Law, National Law School of India University.

*Names and some case details have been changed to protect identity

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Four women lawyers help Bastar’s imprisoned adivasis access justice in a broken system

Manish_goodhumanrightslawyeringConflict zones, as this column has pointed out earlier, are particularly difficult places for human rights lawyers to work. In the Bastar region in southern Chhattisgarh, years of the Maoist insurgency and the counter-operation by the Indian state have created a battle zone where even normal life is subject to the oversight of security forces. In Jagdalpur, I was advised not to step out after sunset as I could be picked up by the CRPF.

Paradoxically, for the wide publicity it gets, there is little in-depth information or reportage about Bastar. The legal issues that affect the region have not been understood or documented in detail.

It is in this situation that a group of committed human rights lawyers has been quietly working towards documenting the plight of undertrials in Bastar and providing them with legal aid at the trial courts. The Jagdalpur Legal Aid Group (or “JagLAG” as they call themselves), is an all-women team of lawyers based out of Jagdalpur, the headquarters of Bastar district, where they are fighting state apathy, disempowerment, and patriarchy while helping the predominantly adivasi population secure access to justice.

Earlier this year, I interacted with the group at their office in Jagdalpur and visited the courts and the jail there. JagLAG is unique in that its members are all graduates from major law universities and have chosen to litigate at the trial courts in Bastar over other, more lucrative, options. Shalini Gera, 44, is the oldest member of the group and a graduate from Delhi University, and had previously been working with senior advocate Sudha Bharadwaj in Bilaspur. The others, Guneet Kaur, Isha Khandelwal, and Parijatha Bhardwaj, are recent graduates from Indian and foreign universities. For all of them, JagLAG was the first experience at practising law at the trial courts. In an unfamiliar location, theirs has been a trial by fire of sorts.

Early days of gathering data

Chattisgarh's Bastar district

Chattisgarh’s Bastar district

JagLAG had its genesis in conversations that took place in Mumbai and Delhi among lawyers and activists around the possibility of a systematic legal intervention in Bastar. Major human rights abuses, such as the Soni Sori case, had come to light from the region. The intervention aimed at documenting human rights issues from the ground and providing legal aid to undertrials and adivasis who had been framed as “Naxals”. As a result of these conversations, a few advocates committed themselves to providing funding and mentorship for the group, with the aim of supporting an effort at ensuring access to justice in this region.

The Bastar region, where the group works, is comprised of five districts – Bastar, Dantewara, Kanker, Sukma, and Bijapur. JagLAG, being the first such intervention in the area, has had to learn the ropes from scratch. They spoke to local lawyers to get a sense of the courts and the cases being handled, and used empirical data obtained through the Right to Information Act to substantiate the anecdotes.

The RTI applications about court and prison statistics revealed a complete breakdown of the criminal justice system in Bastar. The jails were severely overcrowded. While  the average occupancy in jails across the country is 112%, the corresponding figures ranged from 255% at the Jagdalpur Central Jail to an astounding 428% at the Kanker District Jail. Most of the prisoners were illiterate adivasi men between the ages of 18 and 30 and an overwhelming majority were undertrials.

Overcrowding-in-Bastar-jails-(2012) (1)

An analysis of the case disposal statistics between 2005 and 2012 revealed that two-thirds of undertrials in Jagdalpur had to spend between two and five years in prison before receiving bail, while on an average, across the country, 75 per cent of undertrials spend less than a year in prison before receiving bail. An astounding 96 per cent of the cases between 2005 and 2012 ended in acquittal, indicating that in most cases, the police had mostly framed innocent adivasis and there was no evidence to indicate any actual links with the Maoists.

ChattisgarhJails_Undertrials_Bail

Trademark Naxalite cases

Following up, JagLAG began to track the cases of those who had been incarcerated the longest, to identify the blocks in the system. As they interacted with more prisoners and went through their files, patterns began to emerge. Most of them had been incarcerated in what Shalini described as “trademark Naxalite cases” – allegations of being involved in Maoist activities or conspiracy – including charges under Sections 302 or 307 and 149 of the Indian Penal Code, along with Sections 25 and 26 of the Arms Act, 1959 and Sections 3 and 4 of the Explosives Act, 1884. In addition, provisions of the Unlawful Activities Prevention Act, 1967 and the Chhattisgarh Special Public Security Act, 2005 are also invoked. Many of the prisoners who had been in jail for a long time had not even applied for bail, due to a combination of circumstances.

Bringing in families to file for bail

Local lawyers are reluctant to file for bail, given that the sections involved are non-bailable and the charges are grave, making it rather difficult to obtain bail from a trial court. In addition, the prisoners are usually residents of remote villages and given the long distances and poor transportation facilities in the region, it is difficult for their families to visit the jail or the lawyers. As families was unable to take an active role in the case, the local lawyers lose interest and the cases – and the undertrials involved –  would languish for years.

The Jagdalpur Legal Aid Group - (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The Jagdalpur Legal Aid Group – (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The group began their legal aid work by filing bail applications on behalf of these undertrials. This intervention, including working with the lawyers currently representing the undertrial prisoners and persuading them to file for bail and bringing the families back on board, was a learning experience. They visited the families in their villages rather than rely on them – mostly poor, illiterate adivasis – to make the long and expensive commute all the way to Jagdalpur. However, local security concerns and the looming threat of police action have forced them to restrict field visits in favour of courtwork. They also provide support to fact-finding investigations into grave human rights violations, such as the PUDR investigation into the Sarkeguda extra-judicial killings of 2012, and represent victims of custodial torture, violence, and death at enquiries before the sub-judicial magistrate. Incidentally, on the day of my visit, Guneet and Shalini had just arrived after a day’s trip to Dantewara, to record the affidavits of villagers in a case of extra-judicial execution.

Problems with data and procedure

From the beginning, JagLAG faced several challenges in their work. The initial set of RTI applications revealed that data was recorded in different ways in different places. For instance, while the jail records were referenced by crime numbers, the court records used case numbers, and matching the two took some effort. Many of the long-pending cases that they took up already had lawyers, and much time was spent in tracking down people and their cases, as well as persuading the current set of lawyers to file applications or hand over the cases.

Local procedural requirements also made simple processes, like the filing of a bail application, extremely onerous. The criminal court rules of practice in Chhattisgarh require that while applying for bail, an affidavit had to be filed by a person other than the accused, who was conversant with the facts of the case. Usually, this was a close relative who resides far away from the court and the lawyer. The bail application cannot be filed until such a person has been located and the affidavit filed. JagLAG therefore had to re-calibrate its strategy and adopt more realistic goals about the number of cases they planned to take up. At present, they have taken two cases to the High Court and have handled several more at the various trial courts.

The group’s successes have also exposed the rot within the system. One of their early achievements was securing bail for two undertrials who had been incarcerated for six years, without their names even appearing on the chargesheet. Shockingly, the bail was only granted on a surety of Rs. 10,000 which resulted in the individuals concerned remaining in jail for another ten months while they contacted relatives and raised the money. An application filed under Section 440 of the Code of Criminal Procedure, to reduce the bond amount, remains pending before the court. In another case, they managed to get bail for three arrested persons at the remand stage itself – something that, despite being permitted under law, was almost impossible to do in Bastar.

Threats to their safety

The Sukma court, deserted on a weekday.

The Sukma court, deserted on a weekday.

The rigidly binary nature of public discourse in conflict areas means that anyone who does not espouse the State’s views is seen as siding with the opposition. In Bastar, this has meant that the members of JagLAG have been branded as “Naxalite supporters” or “sympathisers” by the administration and the police, for trying to higlight human rights abuses by the State. Consequently, they work under a constant cloud of threats to their safety, and hostility from the courts. Working as ‘outsiders’ in Bastar has not been easy: they have also faced hostility from fellow lawyers, who view them suspiciously because of their model of human rights lawyering, where they blend activism with court work, and also see JagLAG as competition because do not charge for their services. Isha says, “People keep attributing ulterior motives to us all the time. It’s difficult to explain the concept to them.” In addition, they began work with no contacts or local networks, and have had to build these up from scratch. However, being outsiders with no familial or other investments in the area has also enabled them to take more aggresive stances against the State which local lawyers would have been reluctant to do. As a group, JagLAG is always conscious about the danger of their advocacy work appropriating the agency of the adivasi communities they are representing as lawyers. Says Guneet, “It’s something that goes on all the time in my head – in our role as civil society here, we shouldn’t make decisions [on behalf of the adivasis] that aren’t ours to make.”

The challenges of patriarchy

Being women in a partiarchal, all-male structure – there are almost no women among court staff and at the Bar in Jagdalpur – means that they are at the receiving end of condecension and a patronising attitude from lawyers and judges alike. Parijatha says, “We have inexperience going against us, but this gets compounded by the fact that we’re women.” Over the last couple of years, they have managed to negotiate an uneasy space for themselves, while in the process breaking stereotypes about how women are expected to work and behave in public spaces. Guneet, Isha, and Parijatha have recently featured in Forbes India‘s “30 under 30” list for their efforts.

Sustainability          

JagLAG is supported, financially and professionally, by a number of lawyers around the country, and they are grateful for the mentorship that has helped them work in a very difficult location with very little experience. All four of them have found the work to be an enriching process. Says Guneet, “There were times we would call [the senior lawyers] up at night with minute legal queries and they were always very encouraging and helpful.”

The group has not fully considered its future, given that their experiences have been different from what they had originally planned. However, they are optimistic that they will be able to sustain themselves and include more local lawyers in the process. Shalini concludes, “The key to replicating and making this sort of initiative sustainable in other places is to involve local people as a core part of the work. That is something that we look forward to doing in the future.”

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

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New Gujarat terror law creates vague crimes, allows confessions to the police, permits secret trials, gives police immunity

Manish_authorOn March 31, the Gujarat Assembly passed the Gujarat Control of Terror and Organised Crime Bill, 2015 (“the Bill”), which is now awaiting the Governor’s assent. It is modelled on the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), a law that was criticised for being draconian, in excessive violation of civil liberties, and with several documented instances of misuse. This bill had previously been passed on two occasions, in 2003 and in 2009. Each time, it was unsuccessfully referred for the President’s assent. Now, the Opposition has abstained from voting on it and has appealed to the Governor to decline assent.

Poor drafting, vague definitions

The Bill is poorly drafted, especially in places where it deviates from MCOCA. Definitions of “continuing unlawful activity”, “organised crime”, and “organised crime syndicate” (Sections 2(1)(d), (e), and (f) respectively) all refer to one another in a circular manner and offer little clarity. The definitions are also vague. “Organised crime” includes “cyber crimes having severe consequences” and “running large scale gambling rackets”. What constitutes “severe consequences” or “large scale” has not been defined. These terms are absent in MCOCA. The Bill also attempts to define “terrorist act” in Section 2(h) through a long-winded, logically inconsistent, and grammatically incorrect sentence that is painfully strung together and offers no useful guidance regarding what exactly constitutes the act in question. A much clearer definition (with the same ingredients) is found in Section 15 of the Unlawful Activities Prevention Act, 1967.

The substantive offences are defined in Sections 3 and 4 and are mostly similar to those defined in the MCOCA except for the addition of “terrorist act” in addition to “organised crime”. Besides these acts themselves, conspiracy, abetment, harbour, membership of an organised crime syndicate, and possessing property derived therefrom are all criminalised, with the possibility of life imprisonment (and the death penalty if the organised crime or terrorist act causes death).

Special courts

Sections 5 through 12 deal with special courts and their functioning. The state government, with the concurrence of the Chief Justice, is empowered to set up one or more special courts and appoint judges for exclusively trying offences under the Bill. The special courts have the powers of sessions courts but can also take cognisance of offences. Of interest is Section 10, reproduced verbatim from MCOCA, which states that trials before a special court shall have precedence over trials before any other courts, and imposes a de facto stay on all other proceedings for the period of the trial.

Evidentiary rules for intercepted communication and confessions

Section 14 provides for the admissibility of evidence collected through the interception of wire, oral, or electronic communication. This is where the Bill makes a significant departure from MCOCA – while the latter actually provides a procedure for the interception of communications, the Bill does not do so, only making existing intercepts admissible. Therefore, the procedure that will have to be followed will be as laid down in Rule 419A of the Telegraph Rules, 1951 and Rule 3 of the IT (Interception, Monitoring and Decryption) Rules, 2009. The unhappiness of the drafting reveals itself in a rather confusing (and possibly unnecessary) non-obstante clause at the beginning of the section, followed by the words “under the provisions of any other law”. Interestingly, the first proviso to the section also requires that the accused be provided with a copy of the order of the authority authorising the interception, ten days prior to the hearing where the intercept is sought to be admitted as evidence. This is partially nullified by the second proviso, which gives the judge the discretion to waive the period of ten days.

Among the most controversial of the Bill’s provisions is Section 16, clause (1) of which makes a confession to a police officer admissible in evidence. This section overrides Section 162 of the Code of Criminal Procedure and Sections 25 and 26 of the Indian Evidence Act, 1872, which specifically prohibit the use of statements made to police officers in evidence, in order to protect the rights of the accused by preventing the extraction of confessions under duress or torture by the police. While investigating agencies ordinarily have the option to record statements before a magistrate under Section 164 of the Criminal Procedure Code, the Gujarat bill destroys this delicate balance between the rights of the accused and the powers of the investigative agencies. It opens the door to egregious violations of human rights while extracting confessions from persons detained under its provisions. By means of an eyewash, the Bill provides some ‘safeguards’ in clauses (2) to (4), which are mostly meaningless given that the authority administering them is not independent, but a part of the investigating process. The shallowness of the provision is revealed by clauses (5) and (6), under which both the statement and the person making it are required to be forwarded to a magistrate within 48 hours. In such a circumstance, the statement could well have been recorded by the magistrate. This section appears to be an elaborate ruse for legitimising confessions to the police, and the inhuman machinations that go behind it: under clause (7), an allegation of torture by the person making the confession does not invalidate the confession, but merely prompts a reference to a civil surgeon for a medical examination.

Witness protection and closed trials

Section 17 contains provisions for the protection of witnesses, and is modelled on Section 19 of MCOCA. It empowers the special courts to hold the trial in-camera and take any measures necessary for concealing the identity and address of the witnesses. As part of this power, Clause 3(d) allows the court to make a decision that “it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner”. This is an extreme provision which is reminiscent of the attempt at holding a “secret trial” in the UK for terrorist offences, which was rejected by the Court of Appeal on the ground that “open justice” was both an integral part of common law and a means of ensuring public confidence in the legal system. The same considerations regarding open trials apply to India as well: Section 327 of the Criminal Procedure Code mandates that trials be held in open court, with limited exceptions on reporting. In a situation where the Supreme Court has already laid down guidelines for court reporting, the blanket media gag proposed by the Bill is extremely troubling and avoidable.

Procedural safeguards diluted, stricter conditions for bail

Section 20 dilutes several procedural safeguards provided to the accused under the Code of Criminal Procedure. On the lines of MCOCA and UAPA, it increases the time for which a person may be detained in police and judicial custody, pending investigation, to 30 and 180 days respectively. Clause (3) removes the option of anticipatory bail and clause (4) provides for extremely restrictive conditions regarding bail, almost mandating the acquiescence of the public prosecutor. Clause (5) is another controversial provision, which denies bail even if the accused had been released on bail in an offence under any other law on the date of the offence. This clause is based on Section 21(5) of MCOCA, which was held to be unconstitutional by the Supreme Court in 2008. The Bill therefore deviates from the well-established jurisprudence of bail being a right and jail being the exception. Thus, even if no charges are made out, people detained under the provisions of the Bill will have to languish in jail.

Burden of proof shifted

Section 21 of the Bill, which is identical to Section 22 of MCOCA, is a reverse-onus clause, which shifts the burden of proof from the prosecution to the accused in certain circumstances. In doing so, it dispenses with the presumption of innocence of the accused and breaks the “golden thread” of criminal jurisprudence, requiring the prosecution to prove the guilt of the accused beyond reasonable doubt, which originated in common law but has become a settled proposition in Indian criminal jurisprudence as well.

Immunity for state functionaries

Image above is from the website of the All India Radio.

Image above is from the website of the All India Radio.

As a matter of abundant caution, Section 24 of the Bill contains another non-obstante clause giving it overriding effect over all other laws for the time being in force. Section 25 caps off the draconian legislation by granting complete immunity to all state functionaries for any action taken under the provisions of the Bill. This effectively provides impunity to police officers for torture and extra-judicial methods employed in criminal investigations, under the garb of “anti-terror operations”. Thus, even in cases of false prosecutions, like the 2002 Akshardham terror attack, the victims will be left empty handed and without any recourse to justice.

“Tough anti-terror laws” have rarely if ever proven useful at combating terrorism, and usually serve to provide a cover for the incompetence of investigating agencies. A case in point is the aforementioned Akshardham terror attack case, where the Supreme Court came down heavily on the investigating agencies for conducting a shoddy investigation, which led to the framing of innocent persons, while the actual masterminds behind the attack were still at large. Gujarat already has a history of draconian legislation in the Gujarat Prevention of Anti-Social Activities Act, 1985 (“PASA”), which authorises preventive detention, and has been heavily criticised for being used to detain activists and protestors. For now, hope rests with the Governor and the President to prevent the new Bill from becoming law. Unfortunately, judicial history shows that the Supreme Court has also been extremely restrained while testing the validity of these laws under the Constitution, with the most draconian provisions being upheld repeatedly. The last of these was MCOCA in 2008, which was upheld (although the challenge was mainly on grounds of legislative competence rather than violation of Article 21). While hope is eternal, the outlook remains bleak if the Bill is assented to.

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

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Legalise or abolish? Debate on sex work back in focus

VeraShrivastavIn 2011, the Supreme Court of India set up a panel to deliberate potential amendments to the law on sex work, suggest measures to rehabilitate sex workers, and ensure their basic citizenship rights. Recently, the chairwoman of the National Commission of Women, Lalitha Kumaramangalam, declared her stance in favour of the legalisation of sex work.

The Immoral Traffic (Prevention) Act, 1956, (“ITPA”), the only Indian law specifically covering prostitution in India, was passed to give effect to India’s international obligations under the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1950 and also to uphold the freedom against exploitation guaranteed under the Constitution of India.

The prohibitions in the ITPA

Under the ITPA, prostitution is defined as the sexual exploitation of women for commercial purposes. It does not criminalise sex work per se. It is not illegal to carry out sex work within the private confines of one’s home but sex work in or near public places and the soliciting of clients for the purpose of prostitution are criminal acts. It also criminalises the facilitation of the acts of kerb crawling, owning and managing brothels (more than one prostitute constitutes a brothel), pimping, procuring, and trafficking. In effect, the criminalising of prostitution has accorded an offender status to sex workers. Civil society has been largely insensitive to their forced sex work, the abusive customers, their poverty and lack of basic amenities, and most regretfully, their fundamental right to live with dignity.

In 2006, an amendment was proposed in the Parliament to decriminalise prostitution and the solicitation of clients under the ITPA. It also purported to strengthen the definition of trafficking but this bill promptly lapsed with the dissolution of the Fourteenth Lok Sabha. If passed, it would have provided sex workers with a large degree of protection from harassment by the police, social ostracism, and the exploitative network of pimps, traffickers, and abusive customers. Further, it would have embraced a victim-centric approach towards sex workers as opposed to the offender status accorded to them under the existing law.

Lalitha Kumaramangalam (left) and Bharati Dey

Lalitha Kumaramangalam (left) and Bharati Dey

Amongst all the facilitating acts, the trafficking of sex workers is easily the most lucrative business for pimps and traffickers. It exploits minors and adults alike, who are often trafficked into the trade against their will and better judgment. Given that the social fabric of India highly stigmatises prostitution and given that sex workers are not legally recognised, the number of sex workers in India who freely choose this means of livelihood, without being driven or trafficked into it by poverty, illiteracy, and the lack of other viable alternatives, are few. While the statistics of the Ministry of Women and Child Development had estimated over 3 million sex workers in India a few years ago, the Human Rights Watch pegs the number at a much higher 20 million sex workers. A 2013 report by Dasra Foundation also estimates the number of sex workers in India at 20 million, of which 80 per cent are victims of trafficking.

Under the ITPA, trafficking was not defined comprehensively and the measures were ineffective in curbing it. To remedy this, the Verma Committee in 2013 recommended the adoption of the definition of ‘trafficking’ from United Nations Palermo Protocol which classifies trafficking as an offence if done for the purpose of exploitation. This definition has been incorporated in Section 370 the Indian Penal Code, 1860 by the Criminal Law (Amendment) Act, 2013.

Abolition versus legalisation

The approach towards trafficking is a contentious point between two opposing viewpoints on sex work. There are the abolitionists who advocate abolishing the sex work industry altogether and who consider trafficking a crime in itself and then there is the pro-legalisation group who recognise the sex work industry and the accompanying trafficking as part of the trade, as long as it is not done for exploitation.

Apne Aap Women Worldwide and a number of other NGOs and activists advocate a third way between abolishing and legalising sex work. They advocate the decriminalisation of the sex worker, penalising and educating the customers, and criminalising the traffickers.

Apne Aap strongly feels that “prostitution is inherently exploitative and unequal and is in reality an absence of choice, not a choice. Women who have been prostituted must have their basic rights recognised and safeguarded but this must not be confused with the issue of legitimising the sex trade and creating a section of ‘sex workers’ as an employment avenue, such that women from poor and socially oppressed backgrounds, or women lacking education and skills fall prey to the pressures of the market economy, to serve the interest of the profiteers such as pimps, traffickers, procurers, running this trade. The prostituted woman is completely controlled by an exploitative network of pimps, recruiters, brothel managers, money lenders, muscle men and organised crime networks who actually take most of the money a prostituted woman makes from sale of her body, leaving her into a vicious debt cycle”.

An opposing viewpoint is provided by Bharati Dey, the President of the All India Network of Sex Workers and the Secretary of the Durbar Mahila Samanwaya Committee, who leads the pro-legalisation campaign. Sex work, she says, should be treated as labour and should be brought under the purview of labour laws and policies of the state so that sex workers can live with dignity and enjoy workers rights. She also believes that once the sex work industry is regulated under labour laws, the ITPA will serve no purpose and ought to be repealed. Ms. Dey’s vision encompasses a scenario where the sex workers are empowered and self–reliant. She proposes a self–regulatory board as well as an anti-trafficking board, which will be constituted of and managed by the sex workers themselves. This way, the sex workers union will be able to closely supervise and segregate the women who join the trade of their own free will and those women including minors who are trafficked into the trade. For the latter and those who wish to opt out of this means of livelihood, she proposes to involve the government for long-term rehabilitation measures.

Some NGOs and activists also believe that legalising sex work will prevent the spread of HIV/AIDS and other sexually transmitted diseases, provide access to health facilities, education opportunities, and financial inclusion in society as well as prevent exploitation but there is no conclusive study to support that legalisation will improve the conditions of sex workers.

Most parts of Asia, Africa, and the United States have criminalised prostitution while most of Latin America and Europe legalise prostitution or regulate it in some way. Germany and Netherlands, the leading examples of countries which have legalised prostitution, are still facing problems of illegal trafficking of women from less prosperous countries, links with organised crime syndicates, and drug abuse. Conditions amongst prostituted women have not improved noticeably. Sweden is a prime example for the decriminalisation model. Sweden has decriminalised the sex worker and offered rehabilitation measures, but has criminalised the traffickers and customers. This Nordic model has been adopted in Norway, Finland, Iceland, Korea, Philippines, and Russia.

Any model that we adopt must provide solutions to the pressing issues of exploitation by the trafficking network, lack of access to health, prevention of diseases, safety measures for women, financial inclusion in society, and the right to live with dignity. Further, the government must ensure strong long-term rehabilitation measures for any sex worker who wishes to opt out of this means of livelihood.

(Vera Shrivastav is an Associate at LegaLogic law firm and is a part time researcher and writer.)

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