#India – Execution of Prof. Bhullar deferred #deathpenalty


 

By 

New Delhi, India (June 19, 2013): It is learnt that citing the “bad physical and mental health” of Sikh political prisoner Prof. Devinderpal Singh Bhullar, the office of the Delhi Lt. Governor of Delhi have deferred his execution.

According to a news reported by Indian Express (IE): “[t]his decision, a source said, was taken after scrutiny of the report submitted by the medical board formed by the Delhi government to ascertain Bhullar’s condition. The file has been forwarded to the office of the Director General (Prisons), Tihar Jail, the source said”.

“An objective, compassionate and humane view of the case has been taken after considering the deteriorating physical and mental health of Devinderpal Singh Bhullar and it has been decided to defer the matter. This decision was taken after scrutinising the report submitted by the medical board. Subsequently, he will be examined by a medical board again and the matter will be re-examined, the source said”, the news reported by IE reads further.

In its report, the medical board is learnt to have stated that Bhullar suffers from severe depression with psychotic symptoms. The jail manual states that a death row convict has to be declared physically and mentally fit before execution.

The file stating the L-G’s views has reportedly been recently forwarded to the office of the DG, Tihar, which will now send it to the home ministry before it is finally sent to the Delhi government.

It is notable that there was strong opposition to the execution of death sentence lashed upon Prof. Bhullar by Indian courts. Prof. Bhullar is sentenced to death in a highly contested manner by the Indian courts, and the Supreme Court of India repeatedly upheld his execution in a surprisingly controversial manner, where the the presiding judge of three judges bench acquitted him but two other judges upheld his death sentence on strange reasoning ignoring the absence of evidence against Prof. Bhullar.

Prof. Bhullar and his family are the victims of state-repression, as seven members of his family suffered severe custodial torture; whereas two from the family – Prof. Bhullar’s father and uncle, were secretly killed by Punjab police during enforced disappearance.

Delhi’s Lt. Governor’s decision is expected to brought a sigh of relief for Prof. Bhullar’s family as the decision has halted the execution of Prof. Bhullar for the time being but it must be remembered that the decision does not remove him from the death row permanently.

Outrage Over Safety Issues at Indian Nuke Plant


By K. S. HarikrishnanReprint |   ips news
Residents of Kudankulam, a village in Tamil Nadu, protest against the Indian Supreme Court verdict approving construction of a nuclear power plant. Credit: K. S. Harikrishnan/IPSResidents of Kudankulam, a village in Tamil Nadu, protest against the Indian Supreme Court verdict approving construction of a nuclear power plant. Credit: K. S. Harikrishnan/IPS

KUDANKULAM, India, Jun 14 2013 (IPS) – The Tirunelveli district in the southern Indian state of Tamil Nadu may seem idyllic, dotted with lush green fields, but upon closer inspection one sees signs of a battle that does not appear to be abating.

Locals here have been waging an incessant campaign against a proposed nuclear power plant that was supposed to be operational in 2012 and which is currently sitting idle 24 kilometres from the tourist town of Kanyakumari, located on the southern tip of the Indian peninsula.

A recent report by a group of prominent Indian researches has now added another issue to a long list of grievances with the Kudankulam Nuclear Power Project (KKNPP) that activists and residents have been compiling since August 2011: evidence of faulty material used in the construction of the plant itself.

Plans for the plant were first drawn up in 1988 under a bilateral agreement between Russia and India, but various political obstacles kept construction on hold for over a decade. It was not until 2001 that a fresh attempt was made to jump-start the 3.1-billion-dollar venture, which has an installed capacity of 1,000 megawatts (MW).

Fishermen and their families protesting against the Kudankulam Nuclear Power Plant. Credit K. S. Harikrishnan/IPS

Fishermen and their families protesting against the Kudankulam Nuclear Power Plant. Credit K. S. Harikrishnan/IPS

Things were moving smoothly until news of the meltdown at the Fukushima Daiichi nuclear reactor in Japan in March 2011 went viral. Fearing a repeat performance of the tragedy, locals here took to the streets, protesting lax safety standards and possible nuclear radiation in the event of an accident.

The government has refused to address protestors’ concerns, instead issuing blanket assurances that the plant has been constructed using state of the art instrumentation and contains a passive cooling system and other mechanisms that will enable it to withstand natural disasters like earthquakes and tsunamis.

Nalinish Nagaich, executive director of the National Power Corporation of India Limited (NPCIL), has repeatedly insisted that the equipment installed in the power station has undergone multi-stage quality checks.

Last month, in a 247-page ruling, a division bench of the Supreme Court of India consisting of Justices K.S. Radhakrishnan and Dipak Misra dismissed protestors’ concerns as “baseless”, adding: “The benefits we reap from KKNPP are enormous since nuclear energy remains an important element in India’s energy mix, which can replace a significant (quantity) of fossil fuels like coal, gas (and) oil.”

But new information brought to light in ‘Scandals in the Nuclear Business’, a report published by Dr. V. T. Padmanabhan, a member of the European Commission on Radiation Risk, exposes cracks in the government’s position and highlights the potential crises arising from the use of faulty parts.

According to the study, the Reactor Pressure Vessel (RPV), considered to be the “heart” of a nuclear station, has been built using an outdated, three-decade old model. In addition, various pieces of equipment supplied by Russia have been found to be faulty.

The report has only deepened a crisis of confidence that surfaced earlier this year when Russian Federal prosecutors booked Sergei Shutov, procurement director of the Russian company ZiO-Podolsk that supplied vital equipment to the KKNPP, on corruption charges.

Shutov was charged with “having sourced cheaper sub-standard steel for manufacturing components that were used in Russian nuclear installations in Bulgaria, Iran, China and India”, according to a joint letter sent by over 60 scientists to the chief ministers of Kerala and Tamil Nadu.

The New Delhi-based Coalition for Nuclear Disarmament and Peace (CNDP) has expressed serious concern over the recent scam, calling it a direct violation of the Atomic Energy Regulatory Board (AERB)’s safety norms.

Back in April, following a series of tests, the AERB itself acknowledged that four valves in the KKNPP were defective and ordered the NPCIL to replace the parts and surrender itself for review by the regulatory authority, before resuming construction.

World Nuclear News reported last month that “technical issues discovered during the commissioning of Unit One have necessitated the replacement of several valves in the passive core cooling system, leading to further delays” in the commissioning of the KKNPP.

Dr. A Gopalakrishnan, former chairman of AERBhas urged the government to put an immediate stop to the project until allegations of corruption and faulty equipment have been adequately addressed, and the safety and quality of the parts used to house the reactor have been determined.

Police crack down on women protesting against the Kudankulam nuclear plant in India. Credit: K. S. Harikrishnan/IPS.

Police crack down on women protesting against the Kudankulam nuclear plant in India. Credit: K. S. Harikrishnan/IPS.

“The fact that a high-cost, high-risk nuclear reactor is (thought to have) defects…in its components and equipment even before it (has started operating) is highly unusual, and indicates gross failures at several levels in the AERB-NPCIL-Atomstroyexport (triumvirate),” he said, referring to Russia’s national nuclear vendor that stands accused of supplying low-quality parts to India.

N. Sahadevan, environmentalist and prominent campaigner against nuclear arsenals, told IPS that the recent scandal necessitated a “thorough re-examination of the safety aspects of the plant.”

Furthermore, according to Supreme Court Lawyer Prashant Bhushan, the NPCIL, which operates the KKNPP, has failed to comply with the 17 post-Fukushima safety recommendations made by a special AERB committee.

Meanwhile, thousands of villagers in and around Kudankulam continue their daily, peaceful demonstrations.

S. P. Udayakumar, leader of the People’s Movement Against Nuclear Energy, told IPS that the Fukushima catastrophe categorically proved that nuclear power projects are not aligned with the welfare of the people, especially those living in the vicinity, and are incapable of providing any kind of “security”, energy or otherwise.

Activists have also exposed discrepancies in the government’s claim that nuclear power is crucial for the Indian economy, pointing out that the country currently has just 4,880 MW of existing capacity, “which contribute to only 2.7 percent of the total electricity generation in the country,” according to Dr. E. A. S. Sarma, former Union Power Secretary of India.

- See more at: http://www.ipsnews.net/2013/06/outrage-over-safety-issues-at-indian-nuke-plant/#sthash.Q7VgTdmC.5cfoiTLx.dpuf

 

#India – Sexual Harassment at Workplace #Vaw #Womenrights #mustread


Workplace Sexual Harassment

The Way Things Are

Vol – XLVIII No. 24, June 15, 2013 | Naina Kapur , EPW
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Sixteen years after the landmark Vishaka case judgment of the Supreme Court, the government introduced in the Lok Sabha in September 2012 a defective Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill. The Act, as it stands, has failed to draw on the extensive research on sexual harassment that has been done in this country and elsewhere. Further, its inaccurate phrasing of workplace sexual harassment and mismatches between subheadings and content of the text eclipses the most common forms of workplace sexual harassment.

Naina Kapur (naina.kapur@gmail.com) is an advocate who pioneered the Vishaka directions on workplace sexual harassment.

Before 1997, “sexual harassment” had never settled into the Indian legal lexicon. We were instead saddled with an archaic Victorian template which criminalised “outraging or insulting” a “woman’s modesty”. It made us pretend that we had it all covered. But we never did. Unwelcome words, gestures, images, language, and all those subtle intangibles which sexually violate a woman, were comfortably woven into the pattern of life rather than the fabric of law. It all became a silent and acceptable part of “the way things are”.

Bhanwari Case

It was not until the 1990s that the sexual torment endured by a rural level change agent in Rajasthan and her subsequent determination to challenge what led to her violation gave rise to a long overdue common-sense approach to what needed to change. It was us. Sexual harassment hit the Indian legal map when Bhanwari, a saathin in Rajasthan, prevented the child marriage within an upper caste community. In doing so she was subjected to unwelcome sexual harassment through words and gestures from men of that community. When she reported the harassment, the local authority did nothing. That omission was at great cost to Bhanwari – she was subsequently gang-raped by those very men.

Surprisingly, nationwide calls for justice hovered around demands for a stringent criminal law response, i e, the filing of a first information report (FIR). With a history of failures by the criminal justice system to stem the pandemic of violence towards women, such demands appeared futile. At the risk of offending purists of criminal law, it has always struck me as somewhat offensive that a breach of criminal law is effectively treated as a crime against the state. Each FIR becomes the pursuit of a culprit by the police for a harm which the “State” has endured. At most the complainant woman is only ever a witness.

Bhanwari’s experience invited us to change that pattern. Rather than perceive sexual harassment in the home, on the street, at work or in accessing justice as individual personal injuries, we needed to experience it as a constitutional concern. The microcosmic commonality of Bhanwari’s experience of sexual harassment mirrored what scores of working Indian women faced in India – everyday, everywhere, all the time. In the absence of any existing legal response to “sexual harassment”, the opportunity was ripe for a comprehensive approach. In 1992, therefore, we approached the Supreme Court of India in a public interest litigation to do precisely that – rethink “the way things are”.

Sexual Harassment at Work

Sexual harassment was a form of discriminatory conduct at the workplace. It hampered women’s constitutional rights to equality and dignity. It sabotaged work performance, affected working environments, impaired women’s progress, resulted in absenteeism and cost both individuals and institutions in terms of qualitative health and growth. The statistics of the International Labour Organisation (ILO) reveal how 55% of women from the ages of 14 to 55 in Italy have been subjected to sexual harassment (2004); sexual harassment in the United States army has cost close to $250 million (1999 survey); 40 to 50% of women in the European Union have faced some form of sexual harassment; and a 2002 survey by Sakshi (a non-governmental organisation) of 2,000 persons across workplaces found 80% acknowledging that workplace sexual harassment existed in India.

Statistics apart, constitutional equality was never the lens through which we viewed women’s experience of sexual harm at work. It took that rare creative courage of a judge, the late Justice J S Verma (then chief justice of India) to rise to the occasion and in 1997 we were given Vishaka vs State of Rajasthan. Unlike anything before it, Vishaka was a visionary decision. Primarily, it filled a legal vacuum. Second, it viewed sexual harassment through an equality lens and thus prioritised prevention. Third, in the absence of legislation, it became legally binding on all workplaces. Unlike the criminal law, it was the State, the employer, and the institution that had to own up for the equality and dignity of women at work.

Finally, it gave us a map for creating accountability. Workplaces, organisations, institutions (including educational establishments) were compelled to raise awareness about sexual harassment, take steps to prevent it and to offer effective redress. We sought and were granted the presence of a third party expert on complaints committees for sexual harassment, a mechanism mandated by Vishaka for all workplaces.

It was an innovative moment in the history of women’s constitutional rights within all workplaces. That is what a visionary approach does for people’s rights. It expands and uplifts them through an inclusive process. Vishaka changed the map of how we could respond to other forms of violence against women. Unfortunately, the moment and momentum was frittered away by a state unable and unwilling to adhere to the bar Vishaka had set. Despite the Government of India’s own ratification of Committee on the Elimination of Discrimination against Women (CEDAW), the women’s convention which promised to uphold the equality rights of women in all aspects of life, its commitment rang hollow. Added to this was increased public immunity to the daily sexual exploitation of women who never took adequate notice of what Vishaka had to offer.

‘To Do Something’

Still, Vishaka made it impossible for us to slip back to the way things are. It gave us language. Women’s experience of unwelcome sexual conduct was no longer a patronising moral transgression of her ”modesty”, it was sexual harassment – a violation of her constitutional equality.

Sixteen years post the landmark judgment, the Government of India introduced a new bill. Such delay might have been justified had excellence and improving on Vishaka been the goal. In reality, the state simply awoke from its lengthy slumber to “do something”. Amidst the din of the coal block allocations scam in the Lok Sabha, a defective Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill was allowed to pass into law without debate in September 2012. Before the Rajya Sabha, a feebler introduction was made by the minister whose “vision” suggested that it was a bill “to make them economically empowered so that they can do their work properly” – a condescending preface to constitutional equality which was the backbone of the Vishaka judgment. Adding insult to injury, nowhere does the debate find mention of constitutional equality.

Apart from the statement of objects, there is little in the language and content of the new Act which has continued to raise the bar, let alone retain the spirit of Vishaka. An itemised definition of what constitutes “workplace” might have been more easily stated as any place where a woman is present by virtue of her work – a suggestion supported by many at a consultation held in the presence of parliamentary standing committee members. Educational institutes have complained that the definition does not go far enough to include students who, while not workers, frequently suffer coercive sexual harassment on campus or otherwise linked to their educational growth, a concern endorsed by the Justice Verma Committee. Such institutes will need to adopt a creative approach to ensure students are covered. Extensive cross-country research carried out for the Vishaka hearings provided contemporary approaches to the definition and a road map for preventing workplace sexual harassment.

Use of such knowledge was scarcely evident in crafting the latest Act. Inaccurate phrasing (a trait which characterises much of the Act) of hostile workplace sexual harassment eclipses the relevance of the most common forms of workplace sexual harassment. Mismatches between subheadings and content compound that perception. A section titled “Prevention of Sexual Harassment”, for instance, fails to deliver on anything related to preventive measures. Instead, the section highlights “circumstances” which may amount to sexual harassment. Such glaring oversight betrays an abysmal lack of homework by the legislative draughtsperson and ignorance about the issue by parliamentary representatives across the political spectrum.

Diluted Version of Vishaka

As for the internal and local complaint committees now mandated under the Act in all workplaces, political understanding of what was intended to be an inclusive and informed redress mechanism simply is not there. Diluting third party presence on these committees to persons committed to “the cause of women” demeans the skill and specialisation required to meet the nuances of workplace sexual harassment. In a recent example, a lawyer committed to the “cause of women” was inducted into a government department complaints committee. Post the proceedings, my office was contacted by the department for a follow-up. Amazingly, the record revealed how the person accused of sexual harassment was allowed to openly question the complainant as part of the committee proceedings – a fundamental violation of the non-intimidation principle designed to protect complainants from just such practices. Third party persons (lawyers or not) must bring knowledge, skill and capacity to the table to ensure processes are professionally informed and unbiased. Vishaka envisaged an inclusive complaints committee to build ownership of the issue, ensure fair treatment and enhance knowledge and experience around workplace sexual harassment.

Of all sections, the most disturbing provision in the Act (Section 14) is one which punishes a “false or malicious complaint”. Such inventions are only ever peculiar to gender-specific legislations which relate to women and violence. In no other area of law do such penalty clauses exist as a matter of practice. Its presence in the new Act has no legal basis.

Investigations (and this is true of any law) are designed to determine whether a harm occurred or not. That is it. To premise an Act on the assumption that women are potential liars about their human rights abuses reeks of stereotyping women and for that reason would be constitutionally untenable. Flawed drafting further amplifies the lack of political seriousness towards socially relevant legislation for women. The “false” charges section provides that “mere” inability to substantiate a complaint or provide adequate proof “need not” attract action against the complainant, but does not enlighten us on what “need not” means. Does it imply that if a complaint does not succeed, it “ought not to but still might” attract action for false charges?

The absence of user-friendly, unambiguous and accessible language throughout the new Act renders it prone to typical gender stereotyping in such cases. In all consultations on the bill, this retrograde provision was rejected outright. To foist it into the legislation can only be perceived as an attempt to discourage women from making complaints of sexual harassment.

In the 16 years since Vishaka, progressive developments have taken place in international guidelines and practices on workplace sexual harassment. Prescribing “duties” under the new Act as a way to compel employers to prevent sexual harassment runs contrary to contemporary human rights emphasis on promoting “responsibilities”. It is the difference between what employers feel obliged to do (and hence resist and scuttle) from what they would responsibly own and do (and hence, be proud of).

Clearly, the absence of urgency and enhanced vision has given us a diluted version of Vishaka. Dilution is what traditionally allows sexually inappropriate conduct to fester, spread and eventually escalate into rape in the first place. That is how it all began in Bhanwari’s case. For that reason, a 16-year wait offers no excuse for not getting a law that mirrored global standards of excellence and understanding in systemically tackling workplace sexual harassment.

At the same time, legislation, flawed or otherwise, cannot excuse us from implementing change, one which calls upon our own willingness to connect the dots. At most, legislation has reignited attention towards the plague of workplace sexual harassment. Owning the constitutional subtext to make it work is our job. Unexpected but welcome initiatives have begun to dot the landscape even pre-legislation. A recent award by the industrial tribunal in West Bengal offers an unusually credible direction in the sexual harassment case of senior journalist Rina Mukherjee against The Statesman.

Rina Mukherjee vs The Statesman

Within six months of joining The Statesman, Rina Mukerhjee lost her job. While the company alleged that her work was “tardy” and “lacking in quality”, it suppressed Rina’s complaint of sexual harassment against the news coordinator, Ishan Joshi. Within her first month of work, Rina had taken her complaint directly to the managing director (MD), Ravinder Kumar. Understandably, she expected him to act professionally and intervene, but time passed and nothing happened. Exploiting her status as a probationer, Rina was fired by The Statesman.

Such patterns are common to organisations who fail to see the importance of promoting a workplace free from sexual harassment. Frequently, a woman on probation will find it impossible to make a complaint, let alone succeed with one. Hence, most women hesitate and tolerate the behaviour. Rina was an exception. Post her termination she filed a formal complaint with the MD, The Statesman’s owner, C R Irani and the West Bengal Women’s Commission with the firm belief that her termination was a result of her sexual harassment complaint.

The matter was eventually heard by the Industrial Tribunal (West Bengal). In a rare display of social context, insight and clarity amongst the judiciary, judge Kundan Kumar Kumai, rejected The Statesman’s claim that Rina only referred to “professional” harassment in her complaint to Ravindra Kumar. In Kumai’s view, Kumar’s failure to dig deeper was clearly suspect. In the judge’s words:

He [Ravindra Kumar] never started any enquiry however discreet it may have been. Fairplay demanded at least an explanation from the senior executives as to why there was an allegation of professional harassment against them. Rather he has gone hammer and tongs over the delay made in making the sexual harassment public, in writing. What else could she have done… she made a verbal complaint of sexual harassment and professional harassment and she was dismissed from her service even without completion of her probation period.

It should also not be forgotten that the lady workman was not only well-educated but had about ten years of journalism, with other well known publications, behind her and not a novice or a rookie journalist, at that relevant time.

Moreover…it becomes clear that there was no Committee on sexual harassment, as per the Honb’le Supreme Court’s direction in Vishaka vs State of Rajasthan, existing in The Statesman, at that relevant time…to expect-the lady workman to file a written complaint and not to believe the same, when it has been filed ‘at a later date’ is sheer bias.

The Statesman was ordered to reinstate Rina and grant her full back wages from the time of her termination to the date of the order. It took 11 years but Rina won an order that dispels assumptions about why women take time to complain about sexual harassment, how those in power try through sheer numbers and gagged employees to dismiss such claims, and how workplaces can no longer take legal compliance on sexual harassment lightly. HadThe Statesman taken her complaint seriously at the outset and complied with Vishaka, the result could have been beneficial for all – for Rina, women workers, the workplace environment and inevitably the company’s reputation.

Conclusions

Repetition creates a life pattern. Enduring workplace conduct which sexually demeans, intimidates, offends, excludes and limits women is not only about the patterns of sexist behaviour, it is also about the repetitive nature of our own complacency. We have become immune to the pervasive harm of sexual harassment and its unconstitutional character.

People like judge Kumai, justice Verma, Bhanwari and Rina remind us that this need not be so. They inspire the rest of us who care, to use our carefully crafted skills, know-how and passion to innovate and transform the most ill-crafted provisions in law to work for us rather than limit us.

Sexual harassment need not be “the way things are”. It is up to us as political leaders, judges, responsible workplaces and individuals to change that pattern of thought. Having found its way onto our constitutional map for all to follow the direction and visibility of workplace sexual harassment will be determined by the men and women who understand the professional and human worth of speaking up. As frightening as that can be, it will enable us to own our constitutional equality not has some elusive right we should continue to aspire for, but as something we can live, experience and embrace everyday. That is not the way things are, that is the way things should be.

 

 

#India – Who Is Qualified To Be A Whistleblower ?



In a recent judgement, the Supreme Court has argued about the basic qualifications required to expose wrongdoings by organisations. Reports Ankit Agrawal
BY  ANKIT AGRAWAL  , Tehelka

Last month a two member bench of the Supreme Court comprising Justice Surinder Singh Nijjar and Justice MY Eqbal of the Supreme Court of India gave it’s verdict on the civilian case of Manoj H Mishra v/s Union of India and Others. The civil suit was filed by Mishra to contest his sacking from the Kakarapar Atomic Power Project (KAPP) at Surat, Gujarat.

Mishra was working as a tradesman at the power-plant when on the night of 15 July 1994 Surat recorded an unprecedented rainfall of 480mm in 10 hours, causing massive flooding inside the complex. More than 25 feet of the turbine, adjacent to the nuclear reactors, was submerged before dawn. In fact, some of the barrels that contained nuclear waste were also washed away by the floodwater. Even though, the emergency was declared on the next day, due procedures, which includes alerting State authorities and deputing assistant health physicist to check contamination and radiation, weren’t implemented. Worried, Mishra wrote a letter to the editor of  Gujrat Samachar  mentioning flooding inside the nuclear facility, improper safety precautions and flouting of Action Plan for Site Emergency. Pointing towards corruption, he demanded an inquiry by a high-level committee. Subsequebntly, he was sacked by the inquiry committee for criticising the project and passing confidential information to the media.

Mishra contented this punishment in lower, high and the Supreme Court and argued that he acted as whistleblower keeping in mind the best interest of people and the nuclear facility. While dismissing his case the SC delved into the concept of whistleblower and referred to the Indirect Tax Practitioners v/s RK Jain, which defines whistleblower as “a person who raises a concern about wrongdoing occurring in an organisation or body of people. Usually this person would be from that same organisation. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption.” Following this reference Justice Nijjar observed in judgement, “In our opinion, the aforesaid observations are of no avail to the appellant. It is a matter of record that the appellant is educated only upto 12th standard. He is neither an engineer, nor an expert on the functioning of the Atomic Energy Plants. Apart from being an insider, the appellant did not fulfill the criteria for being granted the status of a whiste blower. One of the basic requirements of a person being accepted as a whistleblower is that his primary motive for the activity should be in furtherance of public good. In other words, the activity has to be undertaken in public interest, exposing illegal activities of a public organization or authority. The conduct of the appellant, in our opinion, does not fall within the high moral and ethical standard that would be required of a bona fide whistleblower.” The court further says that Mishra breached confidentiality agreement by alleging about widespread corruption in the organisation.

RTI and whistleblowers protection activists are miffed following the judgment. Prashan Bhushan, a senior advocate, who appeared for Mishra in the court, termed this judgment a “fallacy of justice”. He said, “By informing the media about the near-catastrophic accident and poor response by the authorities, Mishra did a public duty therefore he was a whistleblower.” Shekhar Singh, RTI activist, points out two dangerous points in the judgment, expertise of the whistleblower and purity in motive. He says, “What is the sort of expertise one wants to be a whistle blower? The judgement falls flat when compared to the Whistleblowers Protection Bill, 2011 as it doesn’t have any mention about the purity of intention. Important thing is to expose the wrongdoing.”

Press Release- 58 child labourers rescued in the capital on the eve of World Day Against Child Labour


New Delhi, 11th June 2013 Ten year old Nadeem (name changed) was extremely confused when he was rescued from a electric appliance making unit in Badali. The confusion became grimmer when he refused to tell his parent’s name and address. Actually, he did not remember his village’s name, not even his parent’s face. Who brought him here and where he came from – are the questions yet to be answered.

Acting on a complaint filed by Bachpan Bachao Andolan (BBA), on the eve of 12th June, the World Against Child Labour, law enforcement authorities have rescued 58 children from 6 different locations in the capital today. 56 boys have been working in various factories engaged in making plastic coolers, fans, polishing and making electric molding, etc., whereas 2 girls were freed from domestic servitude. Rescue operations have been carried out in 5 different factories and at a placement agency running under the garb of welfare organisation (NGO).

Mr. Kailash Satyarthi, Founder BBA, said, “When the world would be observing the day against child labour tomorrow, over 215 million children would be languishing in various forms of child labour including slavery in its ugliest form, whereas over 200 million adults are without jobs. We strongly demand that child labour must be made a cognizable and non-bailable offense. Special courts should be established to take time bound action. A fine of at least Rs. 1,00,000 be recovered from each erring employer and an effective rehabilitation must be guaranteed under the law.

It is shameful that in 2010 and 2011 only 1592 employers have been convicted for employing child labourers, i.e, approximately one employer per district per year showing clearly a blatant disregard for the guidelines of the Supreme Court of India.”  He also urged the people to boycott all services and goods produced by the children.

It is pertinent to note that in the period of five years (2007-2011) 1255987 inspections were conducted but only 17884 violations have been detected and 4263 people were convicted.

Most of the child labourers rescued today have been trafficked for forced and bonded labour from West Bengal, Bihar and Uttar Pradesh after paying advance to their parents. The rescued girls belonged to Uttar Pradesh. Working from 8 am till late night in small, gloomy, and suffocating room in the heat with little or no medical care and attention has resulted in skin rashes and wound marks on their body especially hands, telling the pathetic conditions in which they were forced to live and work. The children were not allowed to talk to their parents back home without the permission of employer. On an average children were getting Rs. 50-100 per week as wage.

Mr. SC Yadav Deputy Labour Commissioner North-West District said, “We will keep executing such exercise in future also. The fine of Rs. 20,000, as per the direction of Supreme Court of India, will be recovered from each and every erring employer along with all the back-wages.”

The SDM present during the rescue operation refused to declare children as bonded labourers citing logistical compulsions of appearance during trial. Thereby berefting the children of comprehensive rehabilitation package under Bonded Labour System Abolition Act 1976.

For further information contact:

SDM (Alipur): 9555189618

DLC (North West): 9811165128

Rakesh Senger (BBA): 9212023778

 

Indian legal fraternity invites Pakistan’s CJP


PAKISTAN TODAY

ISMAIL DILAWARWednesday, 5 Jun 2013

Pakistan_india_flags

karachi – The judges and lawyers of the Supreme Court of India (SCI) are keen to invite Chief Justice of Pakistan Iftikhar Muhammad Chaudhri to their country before his retirement this year in December.
They also showed their determination to take up with their government in New Delhi the issue of hundreds of Pakistani prisoners in Indian jails. “We are interested to invite the chief justice of Pakistan to India,” said Justice (r) AK Ganguly of the SCI.
Justice Ganguly along with Advocates Colin Gonsalves, Prashant Bhushan, Mukul Sinha and Nijhari Sinha are in Pakistan to attend the two-day India-Pakistan conference on “judicial activism, public interest litigation and human rights” which concluded on Wednesday.
Pakistani lawyer Faisal Siddiqui, Karamat Ali Executive Director of Pakistan Institute of Labour Education and Research (Piler), and others accompanied the Indian delegation.
“He (CJP) has taken many bold steps to show what important role the judiciary can play in a society,” said Justice Ganguly during a visit to the press club.
KPC President Imtiaz Faran, Secretary Aamir Latif, Vice President Saeed Sarbazi, Joint Secretary Shams Keerio, Senior Journalist Habib Khan Ghauri and members of governing body welcomed the guests.
Advocate Colin Gonsalves said they had decided to invite Justice Ch during the two-day moot in Pakistan where events relating to the inspirational lawyers’ movement for the restoration of CJP were brought to his knowledge.
“We have concluded to invite him (CJP) to India before his retirement,” said Advocate Gonsalves. Chief Justice Chaudhri would retire on the 13th of December this year.
The Indian lawyer was all praise for the CJP for the latter’s suo motu actions with regard to the public interest litigation (PIL). “The exchange of views is very important,” remarked Justice Ganguly.
Quite few people in India knew about the lawyers’ movement in Pakistan in the favour of Justice Chaudhri after he was sacked by the then military ruler Pervez Musharraf.
However, a Pakistani lawyer, Advocate Faisal Siddiqui told Pakistan Today that the CJP’s visit to India was just a ‘dream’ now. He, however, believed that such interaction would promote people-to-people contact between the two neighboring nations.
Earlier in a meeting with KPC’s governing body, Justice Ganguly said he had observed that judges in Pakistan were bolder than that of India. This, he said, was because of the lawyers fraternity which had been fighting for the independence of judiciary shoulder-by-shoulder with the judges.
About the two-day moot, Advocate Gonsalves said a weeklong conference would soon be held in India to which 20-25-member delegations would be invited from the South Asian countries.
The lawyer also vowed that his side would take up the issue of around 200 Pakistani fishermen imprisoned in Indian jails with the Indian government.
The Indian delegation viewed that the two countries had common values and culture, so they should live in peace and promote people-to-people contacts. Specially, they said, visa procedures should be simplified. “This is our first step towards building a link between the lawyers and judges” living across the border, said Advocate Gonsalves. The members of Indian delegation were later gifted “Ajrak”, the sign of thousands of years old Sindhi cultural.

 

#India – Crucial lessons from decades of campaigns by women’s groups on Rape Law #Vaw #Sexualharassment


From Mathura to Bhanwari

RAPE

EPW- Vol – XLVIII No. 23, June 08, 2013 | Laxmi Murthy

The recent law on sexual harassment at the workplace rides on the back of decades of campaigns by women’s groups, starting with the rape law in the famous “Mathura case” to the guidelines on sexual harassment arising from the fight by Bhanwari Devi to punish the men who gangraped her for opposing child marriage. Unfortunately, lawmakers have failed to heed some of the crucial lessons that can be drawn from these struggles.

Laxmi Murthy (laxmim@himalmag.com) is consulting editor, Himal Southasian, Kathmandu, and director, Hri Institute for Southasian Research and Exchange.

Mathura, the 16-year-old adivasi girl whose gang-rape in police custody in Chandrapur, Maharashtra, triggered a nation-wide campaign against rape and demands for reform in criminal law, would be 56 years old this year. Bhanwari Devi, whose gang-rape by upper-caste men in Bhateri village of Rajasthan caused immense outrage and provided the impetus for a significant ruling against sexual harassment at the workplace, is also 56 years old.

Both these icons of the women’s movement might not have benefited directly from the campaigns to reform the law dealing with rape. Mathura had faded into obscurity, having got married and was getting on with her life, completely unaware that one of the pillars of Indian democracy – the Supreme Court of India – was being challenged on her behalf. In 1980, she was in her 20s when journalists from the national media descended on her village to interview the young woman whose case had been the driving force behind changes in the rape law. Not much was heard about her after that.

Yet, the “Mathura case”1 has gone down in the annals of feminist history as a watershed in challenging patriarchal notions of the judiciary. Though she had been raped in 1972, the case came into the public domain in 1979 when, for the first time ever, there was a questioning of the judgment of the apex court which overturned the Bombay High Court conviction of the policemen, on grounds that the complainant was “habituated to sex”. Moreover, the acquittal took into consideration the fact that Mathura had not “raised any alarm for help” and the “absence of any injuries or signs of struggle” on her body. Thus began a significant debate about “consent” and “submission”, and the notion that while consent involves submission, the converse is not necessarily true.

Pointing out inadequacies not only in the provisions of the Indian Penal Code, but in the judicial proceedings, four professors of law condemned the attitude of the judges in the Mathura case and questioned the “extraordinary decision sacrificing human rights in the Indian law and the Constitution”. The letter emphasised the social context, “the young victim’s low socio-economic status, lack of knowledge of legal rights and lack of access to legal services, and the fear complex which haunts the poor and the exploited in Indian police stations”. The letter raised fundamental questions: “Must illiterate, labouring, politically mute Mathuras of India be condemned to their pre-constitutional Indian fate?…Nothing short of protection of human rights and constitutionalism is at stake”.2

Placing the crime of rape firmly in the context of power relationships and gender inequality led to major reform in the law relating to rape in 1983, when the concept of “custodial” rape was introduced and the “burden of proof” in these cases was shifted on to the accused, provision for in camera trials was introduced and the law prohibited the disclosure of the identity of the victim, and punishments were made more stringent.

No Real Change

Yet, about 10 years after these amendments, the situation had not changed significantly. In 1992, Bhanwari Devi, asathin (village level worker) in the Women’s Development Programme in Rajasthan, was gang-raped by five upper-caste men for having the temerity to stop them from conducting child marriages. As a women’s rights activist, Bhanwari was aware of the procedural requirements to report a rape, and battled indifferent medical personnel in Jaipur, 55 km away, and biased policemen at every step. It was only 52 hours after the rape that the mandatory medical examination was conducted. The law took its own sluggish course. A charge sheet was filed a year later, and in 1995, a sessions court acquitted the men on the ground that “upper-caste men could not have raped a dalit woman”. The judiciary also could not believe that an uncle and nephew could rape the same woman. The impunity of the family and caste system remained intact.

By 2007, two of the accused had died while the appeal languished in the high court. Like Mathura, Bhanwari’s life goes on. However, she has been transformed into an icon for struggling women all over the country, receiving accolades and recognition as a symbol of resistance. While the rape case has not been won, Bhanwari’s spirit of resistance is a winner through all the tribulations of dealing with the gargantuan legal machinery that has come to represent that elusive concept called “justice”. At public meetings earlier this year in Mangalore and Bangalore to mark International Women’s Day, Bhanwari’s dynamism mesmerised the audience, igniting hope that women need not be victims alone. “Only justice can fill my belly, not awards,” she declared, forefronting what for the women’s movement has been one of the most difficult struggles – to reconcile societal notions of justice and reparation with individual trauma.

While the rape case drags on, Bhanwari’s experience provided the impetus for a radical change in jurisprudence in the law on sexual harassment. This new approach which firmly embedded the concept of sexual harassment in the framework of constitutional guarantees of rights rather than notions of propriety, modesty or honour, emerged from the judicial recognition of the precarious position of women workers, especially those in rural settings. In response to a writ petition filed by women’s groups, the highest court in the land issued the Vishaka Guidelines on Sexual Harassment at the Workplace in 1997. The Supreme Court held,

sexual harassment at the workplace is violative of Article 14 of the Constitution which guarantees the Right to Equality as well as Article 19 which guarantees the Right to Practise any Profession, trade or business. Since the right to work depends on the availability of a safe working environment, and the Right to Life (Article 21) means a life with dignity, the hazards posed by sexual harassment need to be removed for these rights to have any meaning.

Indeed, it is ironic that one of the most radical conceptions of ensuring the right of women workers to a safe working environment emerged out of the experience of a worker in the insecure work arrangement within the Women’s Development Programme of Rajasthan – one that the government has categorically denied is employment at all. This is particularly paradoxical, given that this programme was an outcome of the mobilisation of the late 1970s following the publication in 1975 of “Towards Equality, Report of the Committee on the Status of Women in India (CSWI)”3authored by stalwarts in women’s studies like Phulrenu Guha, Lotika Sarkar and Vina Majumdar. Following on from this realisation, the Sixth Five-Year Plan (1980-85),4 which for the first time included a chapter on Women and Development stated,

A low rate of literacy and low economic status stress the need for greater attention to the economic advancement of women. Improvement in the socio-economic status of women would depend on a large extent on the social change in the value system, attitudes and social structure prevailing in the country.

It was to redress the situation that benefits of development in post-Independence India had not reached the vast majority of women in rural areas that the Mahila Vikas Abhikaran, or the Women’s Development Project (WDP) of Rajasthan was set up in 1984. According to the Policy Document of the Project,5

Most government schemes in which the involvement of the family in the process of development is essential, have grievously suffered due to women’s isolation. This is true not only of programmes of child welfare – in which women’s involvement is well-accepted – but also those of dairy development, social forestry, IRDP, agricultural production, etc. Indeed women’s development is one of the most critical challenges for Rajasthan.

Catalyst for Change

The WDP undoubtedly acted as a catalyst for change in rural Rajasthan, and its close association with the women’s movement in the early days contributed to a radical understanding of women’s empowerment, an understanding that began to have a life of its own. The village women’s meetings (jajams) evolved as unique forums to raise women’s issues, and women began breaking out of the shackles of traditional bondage and raised hitherto taboo subjects. They began to take part in the jati (caste) panchayat, protested against domestic and other forms of violence, demanded property and other rights, etc. The information that was shared about government schemes related to health, education, public distribution, wages and measurements in famine works, minimum wages, land records, property and other legal rights became a tool to challenge social and gender inequities. Women began to be aware of their rights and soon began to spot prevalent corrupt practices and together with the Sathins raised their voices against exploitation.

Initially they had the support of WDP, but with time, women’s power that had been unleashed at the grass roots began to upset prevailing hierarchies. This then led the state to start exercising its authority and control women’s assertions. There was growing discontent and the contradictions that were built into the programme from the very beginning began to effect cleavages that had no internal remedy. As the sathin became increasingly aware of the exploitative nature of her employment and the blatant inequalities in the salary structure within the hierarchy of WDP, the ironies of the situation surfaced.6

With the stated aim of empowering rural women through “communication of information, education and training and to enable them to recognise and improve their social and economic status”, the sathins’ job was to act as a bridge between the government and the masses, essentially, implementing and making any number of government schemes palatable. They worked, and continue to work, in precarious conditions, for a monthly pittance of Rs 1,600, which was raised from Rs 200 in the 1990s, after dogged campaigning by the Mahila Vikas Abhikaran Sathin Karamchari Sangh (the WDP Sathin Union). The poor wages and job insecurity were compounded by the challenges of the work itself.

The task of “consciousness raising” or preventing “social evils” like dowry, sex selection and child marriage can be extremely hazardous, especially at the village level with deeply entrenched feudal, caste and patriarchal structures. Bhanwari was raped while attempting to overturn exactly these sorts of practices, in her own community. It takes immense courage to enter the homes of neighbours, relatives and friends, and demand that they go against prevailing customs and stop child marriage or refuse to take dowry. Needless to say, there is no job security, no benefits, no welfare measures or even basic infrastructure like transport, and no support at all from their employers – the government – while doing this risky work. The unsafe working conditions of the majority of women workers in the unorganised sector is a larger and more complex question, but the legislation that emerged from Bhanwari Devi’s struggle for a safe working environment is one step towards ensuring the rights of women workers.

Sexual Harassment Law

The Sexual Harassment at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, which was signed into law on 22 April, is a significant civil remedy that recognises women’s right to a safe work environment free of sexual harassment. The onus is on the employer, who is responsible for ensuring such an environment and is to be held liable in case of any violations. While the public sector and private sector are covered, the law also includes other work places, including the sphere of paid domestic work. Additionally, the broad definition of “employee” encompasses a range of work situations including the informal/unorganised sector:

employee means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis either directly or through an agent, including a contractor, with, or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

The challenge, of course, is in the implementation. Quite apart from the debatable legality of conferring powers of a civil court on “Internal Complaints Committees”, the proper functioning of these bodies in the organised sector and “Local Complaints Committees” depends largely on their composition. The requirement of women members as well as members “familiar with issues related to sexual harassment” is crucial for a sensitive handling of cases, since sexual harassment at the workplace must be viewed within the framework of unequal power relations within the workplace, where women at lower rungs are more vulnerable.

Indeed, the major flaw of the new law is the provision to penalise women for making “false and malicious complaints”. It is this provision, Section 14, which succeeds in pulling the rug from under the feet of any woman who plucks up the courage to complain about sexual harassment. The Indian Penal Code (Section 211) already contains a provision to protect citizens from false complaints. Therefore, the inclusion of a specific clause such as this in a law primarily meant to ensure women’s rights must be viewed with disquiet. Despite years of complaints and submissions by women’s groups demanding that this provision be dropped, the new law includes it and thereby undercuts itself.

As the Report of the Justice Verma Committee7 observes,

We think that such a provision is a completely abusive provision and is intended to nullify the objective of the law. We think that these ‘red-rag’ provisions ought not to be permitted to be introduced and they show very little thought.

Despite such a strong recommendation, the Act contains this misogynist provision which can only serve to further victimise women. Over-compensating for “misuse”, even before the law can be used, is merely writing the script for its own nemesis.

Notes

Tuka Ram and Anr vs State of Maharashtra on 15 September 1978: 1979 AIR 185, 1979 SCR (1) 810.

2 Baxi U, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar, “An Open Letter to the Chief Justice of India”, SCC Journal, Vol 4, p 17, 1979.

3 Ministry of Education and Social Welfare, 1975.

4 Planning Commission, Government of India 1981.

5 Policy Document, Women’s Development Project, Rajasthan, Department of Rural Development and Panchayati Raj, Government of Rajasthan, May 1984.

6 A Sawhny and Kiran Dubey, “Justice, the State and Sathins’ Struggle”, EPW, 36(16), 21 April 2001.

7 Report of the Committee on Amendments to Criminal Law, chaired by Justice J S Verma, with Justice Leila Seth and Gopal Subramaniam as members. The report was submitted on 23 January 2013.

 

 

Press Release – Unending Spiral of Violence: Darbha


PEOPLE’S UNION FOR DEMOCRATIC RIGHTS

PRESS RELEASE

31st May 2013

Unending Spiral of Violence: Darbha

The People’s Union for Democratic Rights (PUDR) notes with concern the sad loss of 30 lives in the Maoist attack on the “Parivartan Rally” of Congress Party on 25 May 2013. This is the latest in the series of killings, big and small, in the ongoing undeclared war that the Indian government is waging against our own people. Many of the victims of this war are poor adivasis killed in operations by the security forces, that the government assiduously attempts to hide from the public at large. But, as in the present instance, ruling party functionaries, security forces personnel and Maoist cadres have also lost their lives.

Since 2005, the PUDR and a number of civil liberties organizations have been consistently alerting the public to this escalating war against the poorest of our citizens. Between May 2012 and May 2013 there has been a six to eight times increase in the number of security forces operations being carried out in the Bastar division of Chhattisgarh. In every district no less than 10-15 operations were already being carried out each month. These are being conducted away from the prying eye of the media and civil liberties activists and civilian access to these areas is severely curtailed. On 17 May, ten days before the attack on Congress leaders, nine persons including three children were killed by the security forces in the village of Ehadesmeta.

While PUDR sees the killing of two people who were taken into custody in this instance as an act that cannot be justified and against the rules of war, there is a need to speak out about the role of parties such as Congress and BJP in launching Salwa Judum, which was designed to terrorise the adivasis of Bastar. Congress leaders like Mahendra Karma, the BJP led Chhattisgarh government and the UPA government patronized this murderous enterprise until it was declared illegal by the Supreme Court of India. While Salwa Judum may have formally ended, the elements which comprised the SJ including its leaders and handlers in the security establishment were either incorporated in the ongoing operations as regular forces or some of them chose to switch from being ‘hunters’ to ‘running with the hares’ with impending state assembly elections due in November. In any case, every attempt to prosecute those guilty of the heinous crimes had been frustrated by the governments in power. So the carnage that took place on 26 May was something, unfortunately, waiting to happen.

The governments have plainly connected the continuation of the ongoing war with the prospects of growth in national income. None other than Indian Prime Minister Manmohan Singh declared Maoists to be the single biggest internal security threat in 2006. Speaking to IPS probationers on 24th December 2010, he also explained the reason for the war: “Naxalism today afflicts the Central India parts where the bulk of India’s mineral wealth lies and if we don’t control Naxalism we have to say goodbye to our country’s ambitions to sustain growth rate of 10-11 per cent per annum.”

All doubts were laid to rest when government actions confirmed the verbal declarations. In Saranda forest of Jharkhand, once the Maoists were forced to pull back, the Forest Advisory Committee of the Ministry of Environment and Forests began clearing proposals of mining corporations to take over forests for non-forest use. It led Minister for Rural Development, Jairam Ramesh, to complain on 7 February 2013 that “I have been at great pains to counter Maoist propaganda that the Saranda Development Project is a ploy to benefit private mining interests. This Forest Advisory Committee decision is a huge setback and very retrograde” (8 February 2013, Indian Express, Delhi). The Union Tribal Affairs Minister Kishore Chandra Deo complained to Hindustan Times (17 May 2013) that “my permission [is] not required nor my opinion is sought in matters relating to tribals. My voice goes unheard”.

On the other hand, legislations and constitutional provisions meant to safeguard tribals are being thrown to the winds. The fate of the Forest Rights Act (FRA), the showpiece legislation of UPA-I, ostensibly promulgated for empowering forest dwellers, is a case in point. Quite apart from its poor implementation, the core issue of Gram Sabha’s “consent” for non-tribal use of tribal land has been diluted not just in the name of “linear projects”, but in the Congress-ruled Andhra Pradesh the government has concluded that under the FRA, Gram Sabha consent is required only to permit mining of minor minerals whereas major minerals such as bauxite and iron ore etc are outside their jurisdiction. Supreme Court’s latest order on Niyamgiri Hills narrows down the jurisdiction of Gram Sabhas by reducing and restricting the definition of impacted area to a radius of ten kilometers, when it is a known fact that livelihood and lives are affected across a much larger area.

It is this continued attack on lives and livelihood of people, threat of displacement from forest areas, dilution of FRA, PESA and complete indifference to Sixth Schedule compounded by the increasing restrictions on public protests, arbitrary laws to prosecute those who oppose their dispossession and bans on political opinion that is responsible for the civil unrest that pervades our society. It is this government that places the requirements of Foreign Direct Investment above the needs of our own people, and which attempts to ram down this “development model” with the barrel of a gun, that is at fault.

As the war is being scaled up it is also turning ugly. PUDR, therefore, urges all people to bring pressure on the ruling parties at the Centre and the nine state governments currently carrying out this war, to de-escalate the militarisation of this region and show a commitment towards dialogue. We hope that the deaths of 30 persons in the present instance and of hundreds of people in the past eight years are sufficient reason for people to recognize the absurdity of this war.

In the meantime, we ask the Government of India to shed its policy of deniability and accept that it is engaged in an internal war. And we ask both sides to abide by the rules that govern war by declaring its commitment to common article 3 of Geneva Convention and Protocol II, which applies to non-international armed conflict.

Asish Gupta and D. Manjit

(Secretaries)

 

#India – Custodial Torture – Tailor, Farmer, Bootlegger, and many young men #mustread


The Hell Of Living Souls

A tailor. A farmer. A bootlegger. Often just young men going about their day. brutally tortured, then acquitted. G Vishnu captures the impunity with which this happens. And why society needs to react
G Vishnu

G VISHNU , Tehelka

1-06-2013, Issue 22 Volume 10

If the protector becomes (the) predator, civilised society will cease to exist… Policemen who commit criminal acts deserve harsher punishment than other persons who commit such acts, because it is the duty of the policemen to protect the people and not break the law themselves

- Supreme Court of India, 2010

Marked man Harak Chandra Chakma, who was arrested and tortured by the police for taking part in a tribal celebration in Tripura, ended up in hospital for 10 days

Marked man Harak Chandra Chakma, who was arrested and tortured by the police for taking part in a tribal celebration in Tripura, ended up in hospital for 10 days

On 14 May, police rounded up four men in Etah district of Uttar Pradesh, 260 km west of the state capital, Lucknow, in connection with a month-old case of murder. Three days later, one of them, a 33-year-old farmer named Balbir Singh, lay dead in a hospital in Lucknow. “The police gave him electric shocks and injected acid and petrol in his body,” says his brother- in-law, Sunul Kumar. “They forced him to sit on an electric heater that burnt his body horribly.” According to Kumar, Singh told him before dying that the police wanted him to confess his involvement in the murder.

So critical was his condition that Singh was moved to three hospitals in as many cities before he died. He named the policemen who tortured him in a dying declaration before a magistrate. The police were forced to register a case of murder. Five lowly policemen were suspended. No arrests are yet made. A sub-inspector is on the run. Devendra Pandey, who heads the police station of the alleged perpetrators, was merely transferred, though, according to Kumar, it was Pandey who gave Singh the electric shocks. Singh has left behind a one-year-old son and a pregnant wife.

The scourge of torture by police and prison officials is routine, random and vicious across India. On 18 May, Khalid Mujahid, 32, fell dead on his way back to a prison in Lucknow from a court in Faizabad. His death has generated unusual focus and political attention on the issue of police torture and custodial deaths. For the most part though, police torture hardly ever features as a red-button issue for Indians. First, there is a sense that torture only happens to the deserving. Second, there is a common perception that torture is the only — even if illegal — way of extracting crucial information from deadly terror suspects or mafia gangsters. Both these assumptions are false. Torture almost never yields accurate information. In fact, it is a security hazard as victims often confess in utter desperation to crimes they have not committed, while the real perpetrators roam free. Equally, torture is not restricted to rare cases. Often, it is perpetrated on those caught on trivial charges. According to the NHRC, over 14,000 people have died in police custody and in prisons in the decade ending 2010. This translates to a rate of more than four deaths a day. In the past three years, the NHRC has recorded 417 deaths in police custody and 4,285 deaths in judicial custody.

The story of Ratanji Vaghela is symptomatic of the sheer randomness of this brutality. On 27 April, Gujarat Police arrested Vaghela, a patient of depression and amnesia, for crossing the path of an official convoy in Gandhinagar. The family alleges torture, due to which he had to be hospitalised with severe wounds. “There are very few countries in the world where torture is as systematic and endemic as in India,” says New Delhi based campaigner Suhas Chakma. Rights activist Teesta Setalvad of Mumbai agrees: “Torture is not the exception, but the norm in jails as well as prisons across India.”

 Sarfaraz
‘At the station, the inspector forced my penis into my mother’s private parts. He kept shouting ‘rape her’ the whole time’
Sarfaraz A Mumbai domestic worker who was arrested when he went to report his wife’s suicide

Vaghela may still turn out lucky. On a plea from Chakma, the National Human Rights Commission (NHRC), an autonomous statutory watchdog, has ordered the state government to pay him an interim compensation of Rs 3 lakh and probe the allegation that he was tortured. But for the tens of thousands of citizens subjected to brutal torture across police stations and prisons in India, there is virtually no end to the tunnel.

“I have seen people beaten until they collapsed. I heard a prisoner was beaten until he died,” says Binayak Sen, a rights campaigner in Chhattisgarh, who spent two years in prison and was sentenced to life imprisonment in 2010 for sedition. “There is no question of natural justice. It is done with impunity. This is the everyday reality of torture in Indian jails.” Sen, whose incarceration became a global cause and who is on bail having appealed his conviction, says he was called crazy when he protested the torture of fellow prisoners. He says he never saw a victim of torture try to seek justice.

While the rest of the world is no stranger to torture by State agencies, India has the dubious distinction of sticking out as a sore thumb in the comity of nations. Along with half-a-dozen tiny nations such as Comoros and Guinea-Bissau, India is the only big country that has failed to ratify the UN Convention Against Torture, by outlawing torture and legislating punishment, despite signing it. An attempt to legislate to outlaw torture went into deep freeze in 2010 after rights campaigners pointed out howlers in the draft Bill and a parliamentary committee began to sift through it.

As a result, an architecture of torture dominates India’s law enforcement, and the judiciary turns a blind eye. “We have seen the courts demand action against the police, but in most cases, torture invokes only a verbal outrage on the part of the judiciary,” says Supreme Court lawyer Vrinda Grover, a long-time campaigner against torture. “It does not necessarily lead to effective prosecution of the perpetrators of torture.”

If ever a stink stirs judicial and quasi-judicial agencies, compensations are paid out, but any prosecution of the guilty drags forever. Stunningly, data from the National Crime Records Bureau, a government agency, shows there have been no convictions despite numerous cases filed against policemen and prison staff.

Activists reckon that most deaths emanate from torture, though, of course, officials always deny that. Most deaths are written off as suicides; very many are put down to illnesses and diseases. And the number of those who survive is exponentially larger and highly underreported. For most victims, torture begins a never-ending nightmare.

Mukesh Kumar, 21, was arrested on 24 January in Sheikhpura, a district in Bihar 120 km south of state capital, Patna, for bootlegging. According to a complaint he later filed with the State Human Rights Commission, Kumar was taken to the official residence of the city’s Superintendent of Police (SP) Babu Ram and thrashed. A baton was pushed into his rectum. (The police deny the charge.) Doctors at a hospital where he was brought four days later found his intestines had ruptured. He was told they might never heal.

 Naresh
‘When the policemen caned my soles, the pain shot up here (head). Three days later, I confessed that I had planted the bomb’
Naresh Sank Kujuri A tribal who was accused of planting a bomb in Gadchiroli that killed 12 CRPF personnel

Kumar’s relatives admit that, desperate to feed his family of five, he had taken to plugging moonshine. They were forced to bring him to the State-run All India Institute of Medical Sciences (AIIMS) in New Delhi for surgeries that have already cost Rs 2 lakh. “He passes stool through a pipe and can’t walk to the toilet,” says Kumar’s uncle, Dhiraj Singh. “What do you do when the guardians of law commit such a crime?” After newspapers wrote of the torture, Bihar Chief Minister Nitish Kumar ordered the SP transferred out. “All the policemen involved in the case, including the SP, have been transferred,” says Sheikhpura’s new SP, Meenu Kumari. “I cannot comment further.”

With 11 crore people, Maharashtra has just over half the population of Uttar Pradesh. Yet, it tops the country in the number of cases of custodial deaths and torture by police and in prisons, beating even India’s most populous state. Recurrent bombings, supposedly by homegrown Islamic fundamentalists, and a Maoist rebellion in the state’s east have stoked the appetite for torture among the law enforcement agencies.

On 26 March 2012, a bomb exploded in Gadchiroli district, killing 12 members of the paramilitary Central Reserve Police Force. It responded by raiding surrounding villages with the police, who arrested 11 men. “Every morning and evening, we were hung upside down and our feet, ankles and back caned,” Nanaji Chambrupadha Bapra, 28, told this reporter on a visit to his village. “After four days, the police stopped the torture but still won’t release us,” adds Shatrugan Rajnaitham, 18. The men were instead charged with waging war against the State. They were bailed after three months.

“There is no evidence against them but they were picked up because it was convenient,” says their lawyer, Jagdish Mishram. And fruitful. “When they caned the soles, the pain shot up here,” says Naresh Sank Kujuri, 26, pointing at his head. “Three days later, I told them I had planted the bomb.” The families of these men, all poor farmers, have run up debts of lakhs of rupees on legal and health expenses. Of course, the police reject the charge. “None of the men were tortured,” Gadchiroli SP Suvez Haque told TEHELKA. “We arrested them on the basis of evidence.”

Kujuri’s story illustrates how torture is entirely self-defeating. Bandhu Mishram, 46, a tailor in Nagpur district and a veteran of torture, describes how the police set about implementing their regime of torture. He has been arrested thrice in a short life: in 1984, 1996 and 2010. In his early years he was targeted, he says, for his trade unionism and activism to demand a separate state of Vidarbha in the east of Maharashtra. In 2010, the police named him a Maoist rebel and arrested him.

“They break you down scientifically when they want a confession,” he says. “They know how to make you feel hurt and anxious.” Mishram was hung upside down between a tyre and his feet were caned for an hour. They made him believe his wife and mother were being raped in the next room. For hours he heard screams as the policemen laughed. A fellow inmate told him his wife had been raped and killed, and her body chopped and dumped. “I wanted to kill myself. Thankfully, I saw my wife in the court the next day.” Mishram spent three months in jail before being bailed. In 2012, he was acquitted of all charges. He has filed a petition against his tormentors.

Does Indian law allow torture? Actually, no. Activist Arun Ferreira, who spent four years in Nagpur prison until January 2012 and was charged under the Unlawful Activity Prevention Act (UAPA), witnessed many fellow inmates suffer torture. “Even solitary confinement is illegal but every prison in India has cells for solitary confinement,” he says. “The State uses torture as a weapon. It is systemic for a reason.” He points to the hypocrisy of the State in an anti-torture Bill that the government rushed through Lok Sabha in 2008 and that, activists found, actually exempted torture in some cases.

‘At the 2008 UN Human Rights Convention, many countries asked India why it still hadn’t ratified the convention on prevention of torture. Then India had said it would legislate a domestic law. Five years later, there’s no law yet’

Vrinda Grover Human Rights Lawyer

‘Doctors ought to provide relief and recourse but medical services available to prisoners are inadequate. The medical staff treats them with disdain. By and large, doctors reinforce the messages imposed by jail authorities’

Binayak Sen Pediatrician and Public Health Specialist

‘Torture needs to be defined under the IPC. An amendment is pending in Parliament and that needs to be enacted. There is a proper definition of torture that is universally accepted, and it should be brought in as an offence’

Teesta Setalvad Civil rights activist

‘The worst thing is that courts don’t take notice of complaints. When undertrials are presented before them, they invariably complain about custodial torture. Courts brush aside these claims. They don’t pay any heed to such grievances’

SR Darapuri Former IG, Uttar Pradesh

 

Former Indian Police Service officer-turned-activist, SR Darapuri of Lucknow, has a rare insider’s perspective on torture. “The worst thing is that the courts do not take notice of the complaints. When these victims appear before the courts, invariably they make these complaints and the courts just brush them aside. Our whole system is infested.” As for the courts, although they have begun to take greater cognisance of torture by police and prison staff, they are still far from being in an overdrive to end the practice. A public lawsuit against custodial torture filed by lawyers Rebecca Gonsalves and Vijay Hiremath is gathering dust at the Bombay High Court since 2003. Over six years ago, the Supreme Court directed all states to set up a Security Commission as a watchdog for law enforcement to free it of political control. That is yet to happen.

“We must recognise that our criminal justice system has all but collapsed,” says the petitioner in that case, former Uttar Pradesh Director-General of Police Prakash Singh. “Even simple cases take three to five years.” Then, the society expects quick results. “Decent people have asked me why don’t we just take out criminals and terrorists. Torture is easy closure because they know justice won’t be delivered otherwise.”

Singh says reforms alone would make the police democratic and accountable and not dance to political masters. But says Supreme Court lawyer Grover: “More than reforms, we need accountability. The police have an institutional bias against minorities, the Dalits, the poor and the women. And the political class uses the desensitised police to push its agenda.” Mumbai lawyer Yug Mohit Chowdhry, who has represented several victims of custodial torture, says the police are understaffed, under-equipped, underpaid and stretched. “They have to manage everything from law and order to domestic disputes,” he says. “When we make them work like animals, they behave like animals.”

Actually, animals behave better.

When Naushad Sheikh, 45, accused of being a thief, died in custody in Navi Mumbai on 16 March, police said he had banged his head on an iron grill. The autopsy showed wounds across the body. A co-accused told the Maharashtra Police Criminal Investigation Department (CID) that Sheikh was subjected to “bhajirao”, a severe lashing with police uniform belts whose buckles caused deep wounds on his head. The co-accused also said Sheikh was hung upside down and beaten with a cricket bat.

“Custodial death is inhuman. Nobody should be subjected to torture,” Additional Commissioner of Police Qaiser Khalid told TEHELKA. “Let us wait for the CID findings.” But will a probe be impartial? Not in the experience of the family of Rafiq Sheikh, 35, a cosmetic company executive in Mumbai, who was arrested on 28 November 2012 in a fake currency racket. When his brother, Majhal, went to meet him on 2 December, Sheikh was dead. “The deepest wounds were on his legs. The soles of his feet had blackened from the beating,” says Majhal. “I want those cops to pay for what they did.”

In this case, too, a co-accused testified that policemen belted and caned Sheikh for hours. A judge of the Bombay High Court noted that the wounds appeared inflicted by others. When Sheikh’s family filed a criminal case, the police assigned the probe to a CID team that includes an officer who was himself once charged with the killing of an accused named Khwaja Younus in January 2003. Now Assistant Commissioner of Police, Praful Bhosale was known as an “encounter specialist”, who had killed 74 alleged criminals. Bhosale was suspended for four years and reinstated in 2010.

On 15 April 2011, police in the northeastern state of Tripura arrested Harak Chandra Chakma, a 32-year-old tribal, for taking part in a tribal celebration. He claimed the police attacked him with a blunt object. Photographs showed injuries on his thighs, back and below the knees. He was hospitalised for 10 days. Four days after the torture, the Asian Indigenous and Tribal People’s Network, an NGO, moved the NHRC. An inquiry proved Chakma’s torture by the police. What happened then to the guilty? One of the three named in the report was suspended. No action was taken against the others.

A hair-raising account of torture has come from a Bengaluru journalist, Muthi-ur- Rahman Siddique, who was released in February after being in prison for six months allegedly for a terror plot. In all, there were 14 accused in the case. “One was beaten, hung upside down, and had petrol poured into his private parts,” Siddique told TEHELKA. Another accused, Obaid-ur-Rehman of Hyderabad, had his finger broken. “Most were given electric shocks on their genitals.” The police deny the allegations.

Justice typically eludes victims of torture for decades. In 1989, a domestic worker named Sarfaraz went to the police in Navi Mumbai to report that his wife had hanged herself and died. Instead, the police accused him of being responsible for his wife’s death. They allegedly called his mother to the police station, stripped both of them, and forced them into sexual positions. “After some time, a constable took me into a room where my mother was being held,” reads Sarfaraz’ shocking statement to the court. “She was in the nude. I was forced to strip naked even as I begged them to let us go. An inspector took me to my mother and put my hands on her breasts. After making her lie down on a bench, he asked one of the constables to shake my penis. They tied me up and beat me again. I was untied after a point and they pushed me on my mother. The inspector was forcing my chest to her breasts and my penis into her private parts. The inspector kept shouting ‘rape her’ the whole time.” It is a narrative that Sarfaraz reproduces with a kind of clarity as though it happened yesterday. He was then paraded naked in his neighbourhood. After he was acquitted in 1991 of trumped up charges, he filed cases against the three policemen who were instrumental in making him suffer. It was only last year that the case was finally taken up by a fast-track court.

 
‘Every morning And evening, We were hung upside down and our feet, Ankles and back caned. The torture continued for four days’
Shatrugan RajnaithamA tribal from Gadchiroli who was charged with waging war against the State

Policemen long enjoyed impunity from prosecution because the Criminal Procedure Code (CrPC), a set of rules coded in 1973 to administer criminal jurisprudence, stipulates that officials cannot be prosecuted for acts committed in the discharge of their duties. The Indian Penal Code of 1860 had allowed sentences of up to seven years for a range of acts that can be considered as torture. But to prosecute cops under these laws has traditionally been next to impossible. Few victims are forensically examined. A lack of a witness protection mechanism deters the victims from taking on the guilty. Compensation is yet not a fundamental right. The courts have taken a minimalistic view on claims for compensation from acts of torture. As such, awards vary across India.

In 2005, an amendment to the CrPC mandated a judicial probe on the death or disappearance of a person or rape of a woman in custody. But it has hardly lessened the use of torture. Deaths from torture are almost always passed off as suicides. “What led them to the extreme act and how they commit suicide with strange objects like shoe laces, blankets, jeans, etc are (questions) never answered,” says a report by Asian Centre for Human Rights, an NGO that activist Chakma heads. “How the victims had access to the means like poisons, drugs, electric cables, etc in custody remain(s) unknown.” Many victims, who are healthy prior to their arrest, develop medical complications once in custody. “They are subjected to torture and murdered. With the acquiescence of the medical fraternity, the police are able to describe the death as medical complications.”

Internationally, it is becoming hard for India to escape censure. As early as 1997, the UN Human Rights Committee voiced anguish over the extensive use of torture by India’s law enforcement agencies. The Committee on Elimination of Racial Discrimination in 2007 and the Committee on Economic, Social and Cultural Rights in 2008 expressed serious concern over the impunity that India afforded to its men in uniform who tortured citizens in custody. In March, Henri Tiphagne, a leading global activist from the Geneva-based World Organisation Against Torture, joined a public hearing against torture at Madurai city in Tamil Nadu. “Torture is inflicted not only on the accused but also on petitioners and complainants,” he told the gathering. Of course, the government has long turned a deaf ear to domestic and international voices against the culture of torture. And unless it is shaken out of its complacence, tens of thousands more will continue to be brutalised by the men in uniform.

vishnu@tehelka.com

With inputs from Virendra Nath Bhatt, Nupur Sonar, Imran Khan and Ratnadip Choudhury

Supreme Court of India directs registration of over 75,000 cases of missing children




May 21, 2013, New Delhi
: The Hon’ble Supreme Court of India issued landmark directions for the protection of missing children and other child victims of crimes in the country. In a petition filed by Bachpan Bachan Andolan (BBAon the issue of missing children and trafficking, a bench headed by Hon’ble Chief Justice of India Mr. Justice Altamas Kabir and comprising of Hon’ble Mr. Justice Vikramajit Sen and Hon’ble Mr. Justice Sharad Arvind Bobde issued the directions.

Accepting the contentions made by the petitioner BBA, the Hon’ble Supreme Court issued the following directions including:-

  • All cases of missing children in India to be registered as a cognizable offence (as First Information Report) and investigated.
  • In cases where First Information Reports have not been lodged at all and the child is still missing, an F.I.R. should be lodged within a month – this figure is 75,808 for the period 2009 – 2011 alone.
  • In all missing children cases, there will be a presumption of the crime of kidnapping or trafficking unless proven otherwise from investigation – this is a landmark precedent as for the first time of “presumption of crime” for vulnerable sections of society is recognised.
  • All complaints regarding children (for non cognizable offences), to be investigated after referring them to a magistrate.
  • Each police station should have, at least, one Police Officer, especially instructed and trained and designated as a Juvenile Welfare Officer to investigate crimes against children.
  • National Legal Services Authority (NALSA) to appoint para-legal volunteers, so that there is, at least, one para- legal volunteer, in shifts, in the police station to keep a watch over the manner in which the  complaints  regarding  missing  children  and other offences against children, are dealt with.
  • A computerized programme (website), which  would  create  a network between the Central Child Protection Unit as the Head  of  the Organization and all State  Child  Protection  Units,  District Child Protection Units, City  Child  Protection Units,  Block  Level  Child Protection Units,  all  Special  Juvenile  Police  Units,  all  Police stations,  all  Juvenile  Justice  Boards  and   all Child Welfare Committees, etc. to be created as a central data bank.    
  • Photographs of the recovered child to be put up on  the  website and  through the newspapers and even on the T.V. so that the parents of the missing child could locate their  missing child and recover him or her from the  custody  of  the  police. 
  • A  Standard Operating Procedure (SoP) must be developed to handle the cases  of  missing  children and to invoke appropriate provisions of law where trafficking, child labour, abduction,  exploitation and similar issues are disclosed during investigation or after the recovery  of  the  child. 
  • BBA to assist in developing the Standard Operating Procedure (SoP), and also, BBA to be the nodal agency for All India Legal Aid Cell on Child Rights, flagship scheme of NALSA to provide legal aid to any child in need of care and protection in the country.
  • A missing child has been defined as, “a person below eighteen years of age, whose whereabouts are not known to  the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.”

  • Even after recovery of the missing child, the police  shall  carry  out  further investigation  to  see  whether  there  is  an  involvement  of any trafficking in the procedure by which the child went missing. 
  • The State authorities shall arrange for adequate Shelter Homes to be provided for missing children, who are  recovered and do not have any place to go to within 3 months. 

Arguing on the behalf of petitioner Bachpan Bachan AndolanMr. H.S. Phoolka, Senior Advocate said “Every hour 10 children go missing. Out of these only one case is registered and investigated. There is no hope for the poor parents whose children go missing”.

BBA had under taken a pioneering research for three years on the issue of missing children, following which this writ petition (Writ Petition Civil 75/ 2012 – Bachpan Bachao Andolan vs Union of India and Others) has been filed.

As per official government data, in India, during the period from 2009 to 2011 number of children that have gone missing are 2, 36, 014 and out of them 75,808 are still untraced. However, only 34,899 FIRs have been registered in all. These directions from Supreme Court will come as a relief to those hundreds of thousands of parents whose children have been kidnapped and are still untraced without any assistance from law enforcement authorities.

Mr. Kailash Satyarthi, Founder, BBA said “It is a watershed moment not only in our three decade fight in restoring childhood but has also brought a fresh lease of hope for hundreds of thousands of missing children and their hapless parents, whose cries remained unheard due to the absence of legal protection and apathy of enforcement machinery. Our argument that children do not disappear in thin air but go missing because of an organized nexus of traffickers and mafias, has been finally upheld by the highest court of the land today”.

Mr. R. S. Chaurasia, Chairperson, BBA added that, “BBA will rigorously follow the enforcement of this landmark judgment and extends its support to the government in this regard”.

For more information please contact:-

Om Prakash

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