The draconian LBT: Local Body Tax explained


 

ANANTHRAM RAO | 13/05/2013 , Moneylife.in

LBT is a draconian Act, especially with key words like ‘goods’, ‘dealer’, ‘business’ loosely defined in the legislation, giving enough scope for the administrators to stretch their imagination to fanciful limits to the common man’s harassment and dismay

LBT, local body tax, draconian Act, common man, transport of goods, goods, dealer, business, Octroi, Cess, LPT, Local Panchayat TaxWith the wedding season round the corner, imagine you are going in your car from Navi Mumbai to Mumbai to attend a marriagewith your wife who is wearing gold ornaments and a silk saree; please do not be surprised if a government officer stops you and demands LBT on the car, saree and gold ornaments. Your luck may run out further, if he invokes the provision saying that you have failed to take a registration under LBT (Local Body Tax Act). He may demand, in the name of penalty, a compounding fee, that may exceed the cost of the ornaments or the car or the saree itself. You may, along with your wife, be convicted for the offences you may have deemed to have committed under LBT.
Take another situation. Your dabbawala gets your tiffin box daily to your office in Fort area from your house in Thane. As the financial year comes to an end, one fine day, after December, a LBT officer lands in your office instead of the dabbawala with a warrant to arrest you for having brought into the city limits the goods exceeding the prescribed turnover limits.
These may look too fictitious and simplistic or some may call these situations “beyond the wildest stretch of one’s imagination”. Well, going by the experience of dealing with the department, you might have come across officers trying to levy tax on flats situated in Navi Mumbai, purchased from a builder in Mumbai, arguing that the flat was brought into the city limits from Mumbai where the builder’s office was situated. With this kind of background, the LBT looks like a draconian Act, especially with key words like ‘goods’, ‘dealer’, ‘business’ loosely defined in the legislation, giving enough scope for the administrators to stretch their imagination to fanciful limits to the common man’s harassment and dismay.
LBT stands for Local Body Tax, which has been introduced in most of the municipalities and corporations in Maharashtra,  in lieu of Octroi or Cess. It is a levy under entry 52 in the State list of Schedule VII of the Constitution of India, on the entry of goods into a city limits for the purpose of consumption, use or sale therein. Thus, the recent agitations against LBT, a levy, which is constitutionally valid, have given rise to questions as to the root cause of the agitations.
Octroi is a levy which was prevalent in Roman times. It was extensively used as a tax tool in Europe till World War II. Now, it is almost extinct except in Ethiopia and Maharashstra (a true reflection of comparable development of the economy or the situations of drought). Other states in India have done away with this levy and they share a portion of the Value Added Tax (VAT) or Sales Tax (ST) with the local bodies.
Municipalities, with a share from the state government and other tax collection methods like property tax, entertainment tax, etc, can run the administration with a decent budget.  A power to use (more likely abuse), does not necessarily warrant a situation to use. However, the greed to have extravagant budgets, in the name of development (personal development of bureaucrats and ministers as actual development remains a mirage), is the driver that makes the local bodies and the state government stick to their guns in implementing the LBT despite protests.
Being the representatives of the people, our corporators, MPs and MLAs have forgotten that they have a duty to echo public opinion and ensure that government is run as per the wishes of the public. At the time of introduction of VAT in 2005 the Government of Maharashtra had promised that Octroi would be removed and there will not be any additional tax burden on citizens but now they have introduced  the LBT. Thus, LBT is not a good system of tax collection suited for the 21st century, and when there are many other better options available with the government.
LBT, local body tax, draconian Act, common man, transport of goods, goods, dealer, business, Octroi, Cess, LPT, Local Panchayat TaxAnother reason which goes against LBT is the exorbitant compounding fees. The Bombay Provincial Municipal Corporations Act, 1949,  the Act that gives right to levy LBT, as such does not have a penalty-limit prescribed for any violations relating to LBT, though there is an elaborate Annexure prescribing the various penalties. That shows that penalty cannot be levied legally.

However, the Rule 48  framed under this Act, quantifies the penalty that can be levied in different cases. Thus, the said Rule is ultra vires the Act.

Further, the compounding fees, is payable, only if the dealer is convicted. However, the administration is collecting the compounding fee as tax at the time of assessment itself making it a dubious source of revenue for the Government.
Another point against LBT is the cascading effect of teh Tax. Unlike excise or service tax or VAT, there is no concept of set-off or input credit. In other words, every time the goods cross the city limits they will be liable for LBT and levy of LBT may exceed the value of goods itself. A simple reading of the Act would necessarily warrant a LBT when goods are imported from one city to another (as the goods are purchased from another registered dealer under the Act), the corporations interpret that the LBT is leviable in such cases as each city corporation is a different entity despite the fact that the legislation empowering the levy is same. This shows that legislators have not applied their mind while framing the law; else they have done so with full knowledge that it will fill the Governments and their own coffers through corruption.
Another reason that frightens the businessmen is the LPT or Local Panchayat Tax.  Like the areas near Bhiwandi or Khopoli, which adjoin Mumbai, but are outside the city limits and hence octroi-free zones, are now allowed to levy a similar tax on the entry of goods into the village limits. Thus, now this may be looked as a gold mine for extracting LPT by the Panchayats as many businesses have set their shop in view of enjoying the tax-benefits. In absence of such benefit, which may be a reality, if LPT is introduced, these panchayats may not have any attraction to retain the existing business, leave alone attracting the business. Many of the businessmen have started thinking of shifting to neighbouring states, especially Gujarat.
Another reason against LBT is that there is no time-limit that is specified for completing the assessment of the firms. In such situations, the dealers may be kept in suspense as to their liability to maintain books and records. Further, the appeal process is against the principles of natural justice for the simple reason that in case you decide against the order of the LBT officer or commissioner, you are required to deposit the entire tax demanded before filing the appeal. Draconian and unconstitutional, I would think, isn’t it?
LBT, local body tax, draconian Act, common man, transport of goods, goods, dealer, business, Octroi, Cess, LPT, Local Panchayat TaxThe Act is not a comprehensive Act that is well worded or suited for taxation. With lot of alternative avenues open for collecting enough revenues for the corporations, the political class should respect the difficulties of the businessmen and common men, and help them to reach the sane voices (if there are any!) in the government. They should bring in the changes in legislation to repeal LBT and make suitable changes in VAT so that the local bodies do share  revenues the state government derives from VAT. This will ensure that the administration frees itself from the task of collection of addition tax and other related administrative work. This will also help the dealers of additional hassles of payment of tax, filing of return, surveys, raids, check posts, assessments, appeals etc. and also dealing with one more Government body prone to corruption.
(The author is a partner at Borkar & Shenoy, Chartered Accountants)

 

Maharashtra – Co-operative societies now come under RTI Act #mustshare


 

VINITA DESHMUKH | 10/04/2013 , Moneylife.in

Co-operatives make up for one-sixth of Maharashtra’s economy; they are also abodes of chronic corruption. No wonder, many are yet to digest the fact that co-operatives have now come under the RTI Act and so public disclosures of their functioning is mandatory


Vijay Kumbhar, a leading RTI (Right to Information) activist from Pune, has beenresearching on the aspect of co-operatives coming under the RTI Act after the enactment of the 97th amendment to the Constitution of India in March 2012. Now, “co-operativesocieties” have not only become a part of Article 19 of the Constitution of India making them one of the fundamental rights of a citizen, but have now also been given the status of local self-government in Part IX of the Constitution. This makes them accountable under the RTI Act. However, many a vested interest is trying to hoodwink this fact. A tete-a-tete with Kumbhar.
Why do you say that co-operative societies which were until recently out of the gambit of RTI Act, now come under it?
Vijay Kumbhar: With the enactment of the 97th amendment to the Constitution of India and its inclusion in Article 19 of the Constitution, formation of cooperative societieshas become one of the fundamental rights of an Indian citizen. Besides, they have been given the status of local self-government like rural and urban municipal bodies in Part 9 of the Constitution. Cooperative societies have thus come under the ambit of the Right to Information Act.
So, under what section of the RTI Act do co-operative societies come under?
Kumbhar: As per Section 2 (h) of the RTI Act, “public authority” means any authority or body or institution of self-government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by the State Legislature;
(d) by notification issued or order made by the appropriate government, and now as per Section 2

(h) (a) of RTI Act, any cooperative society has become an ‘authority’ or ‘body’ or “institution of self-government” established or constituted by or under the Constitution and hence it comes  under the ambit of the RTI Act.
Could you elaborate on how co-operative societies came to be included in Article 19 of the 97th Amendment of the Constitution of India?
Kumbhar: Article 19 of the Constitution of India protects certain fundamental rights of the citizens. All citizens have the right to freedom of speech and expression; to assemble peacefully and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practice any profession, or to carry on any occupation, trade or business. Now forming a cooperative society is also a fundamental right. (Moreover, as per Article 43B of Part IV it is now the duty of the states to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies to encourage economic activities of cooperatives which in turn would facilitate progress of rural India.)
Part IX of the Constitution comprise local self-governments; Part IX pertains to Panchayats; Part IX B is about municipalities and now with the insertion of Part IX C, co-operative societies have acquired the status of local self-governments. Correspondingly, cooperative societies have come under the RTI Act.
What are the institutions that come under the co-operative societies?
Kumbhar: Cooperative societies normally include co-operative banks, credit societies, sugar factories, handloom-power loom factories, distilleries, milk producing societies, water supply societies and so on. Henceforth, all such institutions will have to appoint Public Information Officers, Appellate Authorities and comply with all the provisions of the RTI Act. This is the most revolutionary event in the history of our country in the recent past.
So, weren’t co-operative societies accountable to the government and people before the 97th Amendment? What has changed?
Kumbhar: Normally there are three sectors of industries; public, private and cooperative. The first one is wholly owned by a state or the central government and the governments have complete control over its investments and management and it is accountable to the governments as well as to the public. Although the private sector abides by the laws, rules and regulations of the governments it is not answerable or accountable to the governments or the public for the losses/profits or management. It is accountable only to its owners or shareholders as per the law of the land. The cooperative sector was a blend of the public and private sectors. So far, it was enjoying the facilities available to the public sector such as loans, share capital from the state, etc but was not accountable to the state or the public. With the Part IX inclusion in the 97th amendment, the scenario has changed and the cooperative sector is now accountable to the state and the public.
Why is it that so far there was no clarity about the applicability of the RTI Act to cooperative societies?
Kumbhar: Several information commissions and courts had given contradictory verdicts on this matter. Cooperative societies were out of the ambit of the RTI Act because it was not an ‘authority’ or ‘body’ or an ‘institution’ of self-government established or constituted by or under the Constitution. Hence, attempts to bring a cooperative society under the RTI Act, claiming it to be an ‘institute’, a “body owned, controlled or substantially financed by notification issued or order made by the appropriate government” failed. In addition, authorities of these institutes always took the stand that they did not come under the RTI act. Now, they cannot escape as it has become the fundamental right of a citizen.
What about the fact that some experts say that the RTI Act for co-operativesocieties applies only to those that are established after the Constitutionalamendment in Article 19 and Part 9?
Kumbhar: This is just an eye-wash because this is not a new Co-operative Act that has been implemented but an amendment to the Act as per the amendment to the Constitution of India which already exists. Hence, every co-operative society no matter how old or new comes under the RTI Act.
What about the fact that there are some Supreme Court and high court judgments which have ruled that co-operative societies do not come under the RTI Act?
Kumbhar: Constitution of India is over and above any high court or Supreme Court judgment so now with the constitutional amendments, these judgments are irrelevant.
What would be the impact of co-operative societies coming under the RTI Act, particularly in Maharashtra?
Kumbhar: In reality, considerable part of the country’s economy is occupied by the cooperative sector. It is said that about 1/6th of Maharashtra’s economy comprises co-operative societies. A major part of Maharashtra politics is also influenced by the cooperative sector. The scale of illegalities, scams and corruption in this sector is also high. The cooperative sector including co-operative banks and credit co-operative societiesblock substantial government funds running into hundreds of crores. As of 2012, the unaccounted for amount is close to Rs15,000 crore.
The statistics of the department of cooperative societies of Maharashtra in 2009-10 show that there were 2,18,320 cooperative societies in Maharashtra and the total membership of these societies was 5.52 crore. One estimate of the number of societies is at about 2,30,000 with a membership of about 6.5 crore. For the entire country, this number could go up to 6.5 lakh societies with 30 crore members.
A giant sector such as this was uncontrolled and unaccountable till now. One can hope that this sector will move in a positive direction after the 97th amendment to the constitution.
So, has this amendment already been enacted?
Kumbhar:  After the amendment was enacted in 2012, a period of one year was given to the states to amend as well as repeal existing provisions of law to bring in line with the new provisions in the Constitution. Usually, state assemblies approve such amendment. However, as the assembly was not in session, the Government of Maharashtra introduced an ordinance on 15 February 2013 and thus these amendments have now become law.
What are the highlights of Maharashtra Co-operative Societies Act after the amendments?
Kumbhar: The highlights of the Maharashtra Cooperative Societies Act and Rules after amendments are:
(i)                      Incorporation of cooperative societies on the principles of voluntary formation, democratic member control, member economic participation and autonomous functions;
(ii)                    Conduct of election of a cooperative society by an independent electoral authority;
(iii)                  A fixed term of five years for the office bearers of the cooperative society;
(iv)                Supersession of the board of a cooperative society for a period of not exceeding six months;
(v)                    Independent professional audit of the cooperative societies;
(vi)                  Convening of the general body meeting of every cooperative society within a period of six months of the close of the financial year;
(vii)                Access to every member of the society to the books, information and the accounts of the cooperative society;
(viii)              Filing of the returns by every cooperative society within six months of the close of every financial year;
(ix)                  Free, fair, impartial and timely elections of cooperative societies by independent body;
(x)                    Audit of the cooperative societies to be carried by the auditors from the government approved panel of auditors or firms;
(xi)                  Maximum number of 21 directors to be applicable to all cooperative societies irrespective of their size with two seats reserved for women; and
(xii)                Co-opted members not to be eligible to be elected as office-bearers of the board.
Also there are provisions of penalty for consistent defaults, acting against the interest of the institution, deadlock in the board of directors, not ordering elections within specified time, corruption, irregularities in duty, deliberately giving false information, disobeying orders of authorities, etc.
Is Article 19 of the 97th Amendment to the Constitution similar to the 74thAmendment which gave status of local government to Panchayats/municipalities/municipal corporations?
Kumbhar: Before 1992, panchayats and municipalities were also not bodies established by or under the Constitution. However, that did not mean that there were no panchayats or municipalities. However, due to their autonomous status, their functioning was arbitrary. They did not acquire the status and dignity of viable and responsive people’s bodies due to varied reasons including   absence of regular elections, prolonged supersession, insufficient representation of the weaker sections, etc.
Hence, to give certainty, continuity, and strength to Panchayat Raj with 73rd amendment, Part IX was inserted in the Constitution. Later as Urban Local Bodies were not able to perform effectively as vibrant democratic units of self-government, with the 74thAmendment, Part IX B was inserted to give municipalities a status. Now with the 97th Amendment, Part IX B has been inserted to give cooperative societies a status of local self-government.
(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet – The Inspiring Story of A Braveheart – Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)

 

#India – Cyber & Data Security ,Civil Liberties Implications of #Aadhaar , #Biometric Collection #UID


200 px

 

 

 

http://perry4law.org

 

In India there are many projects that are being implemented without any legal framework and parliamentary oversight. In fact, these projects are clear violation of the constitutional protections and fundamental rights conferred by Indian Constitution.Surprisingly, these projects have not only survived constitutional scrutiny by our otherwise active and praiseworthy judiciary but they have actually grown in their impact and application.

 

One such project is Aadhaar project that is implemented in India in clear violation of constitutional norms. This unnecessary expenditure, that also on an unconstitutional project, could have been avoided. Fortunately, the illegality of Aadhaar project is questioned In India courts.In all probability Aadhaar project would be declared to be unconstitutional unless it is supported by an already existing constitutionally sound legal framework. As on date, the parliament of India has not passed any law that can authorise the existence and continued functioning of Aadhaar project in India.

 

At Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) we believe that the Aadhaar project of India must be either suspended or scrapped till it is preceded by a constitutionally sound legal framework. Indian government is committing a big blinder by allowing the Aadhaar project to be continued in an unconstitutional manner.

 

Similar rules apply to projects like central monitoring system (CMS) project of India, national intelligence grid (Natgrid) project of India, national counter terrorism centre (NCTC) of India, etc.In all these projects, including Aadhaar project, we are facing some common problems. The first and foremost has already been discussed, i.e. lack of legal framework and parliamentary oversight. The second on the list is lack of dedicated privacy rights and laws in India.

 

Till date we have no dedicated data protection laws in India, privacy laws and rights in India, data security laws in India, cyber security laws in India, etc.The third problem associated with projects like these is related to violation of civil liberties in India. The civil liberties and national security requirements must be reconciled by India.

 

While national security and cyber security are important, they must not result in blatant and unnecessary violation of civil liberties like speech and expression and privacy rights.The fourth problem with which Aadhaar project is suffering pertains to lack of cyber security infrastructure in India. Not only the biometrics collection in India is unconstitutional but the biometric database is also highly vulnerable to cyber attacks, cracking, data thefts and biometric data manipulations

 

.India is increasingly facing serious cyber attacks. Recently, the computer systems of DRDO and security officials were breached and sensitive files were leaked. Further, it is also well known that Internet is full of unprotected and unsafe devices, SCADA systems and computers.

 

The cyber security infrastructure of India is also not in a good shape. The offensive and defensive cyber security capabilities of India have still to be developed.  In these circumstances managing the cyber security of biometric data collected by the Aadhaar project and UIDAI is next to impossible.

 

Neither UIDAI nor Indian government is ready for a project like Aadhaar that has been given such a long life span against all odds. It would be in larger interest of India if the Aadhaar project is put at rest immediately unless we are inviting some catastrophe to happen.This entry was posted in Uncategorized on April 1, 2013.

 

 

 

Supreme Court of India on Mass Carnage Gujarat 2002 #mustshare


” When the ghastly killings take place in the land of Mahatma Gandhi, it raised a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. When large number(s) of people including innocent and helpless children and women are killed in a diabolic manner, it brings disgrace to the entire society. Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill-feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy.”

From the Supreme Court Judgement in the Best Bakery case. Justices Soraiswamy Raju and Arijit Pasayat 12.4.2004

 Other Direct Quotations from the Judgement

…..”When a large number of witnesses have turned hostile it should have raised a reasonable suspicion that the witnesses were being threatened or coerced.

……”Strangely, the relatives of the accused were examined as witnesses for the prosecution obviously with a view that their evidence could be used to help the accused persons.

…..”If the State’s machinery fails to protect (a) citizen’s life, liberties and property, and the investigation is conducted in a manner to help the accused persons, it is but appropriate that this Court should step in to prevent undue miscarriage of justice that is perpetrated upon the victims and their family members.

…….”Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying (the) existence of courts of justice.

…….”If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial.

…….”Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or  mere farce and pretence.

…….”Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the court and justice triumphs and the trial is not reduced to mockery.

……”Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with.

……”Witness Protection programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses with ulterior motives and purely for personal gain or fear for security. It would be a welcome step if something on those lines is done in our country.

…….”The entire approach of the high court suffers from serious infirmities, its conclusions lopsided, and lacks proper or judicious application of mind. Arbitrariness is found writ large on the approach as well as the conclusions arrived at in the judgement under challenge.

……”When the ghastly killings take place in the land of Mahatma Gandhi, it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him.

……’If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial.

…….”The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy.

……’It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law.

……”The modern day “Neros” were looking elsewhere when Best Bakery and innocent children and women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected.

…….”The high court appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted references to personalities and their legitimate moves before the competent courts – the highest court of the nation, despite knowing fully well that it could not deal with such aspects or matters.

…….”We are satisfied that it is fit and proper case, in the background of the nature of additional evidence sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted investigation, a re-trial is a must and essentially called for in order to save and preserve the justice delivery system unsullied and unscathed by vested interests.”

…..”A-13 to A-18 (all policemen) started fabricating false evidence and causing disappearance of evidence immediately after Bilkis lodged an oral complaint giving the names of the assailants and the details of the incident, with the intention of causing disappearance of evidence to screen the offenders.

….”The two doctors conducting post-mortem did not discharge their duties truthfully, sincerely and strictly in accordance with rules and procedure. By not collecting valuable pieces of evidence such as vaginal swabs, saliva, nail clippings and clothes of the deceased, A-19 and A-20 caused disappearance of evidence with the intention to screen the offenders.

…..”No person, however big he may assume or claim to be, should be allowed, irrespective of the position he may assume or claim to hold in public life, to either act in a manner or make speeches which would destroy secularism recognised by the Constitution of India.

……”Communal harmony should not be made to suffer and be made dependent upon (the) will of an individual or a group of individuals, whatever be their religion, be it of minority or that of the majority.

………”Religion cannot be mixed with secular activities of the State and fundamentalism of any kind cannot be permitted to masquerade as political philosophies to the detriment of a welfare State. Religion sans spiritual values may even be perilous and bring about chaos and anarchy all around.”

#Chhattisgarh- Centre reverses stand on governor’s powers under Fifth Schedule


Author(s): Jitendra, downtoearth

Assistant solicitor general’s affidavit says the constitutional head of state has no discretionary powers over functioning of Tribes Advisory Council, headed by chief minister

The Centre seems to have reversed its stand on the powers of a governor over administering tribal areas in a state. Earlier, the attorney general of India had given an opinion to the home ministry, in response to a reference, that governors do have discretionary powers, but an assistant solicitor general has said exactly the opposite. Fauzia Mirza has said that the governor has no discretionary powers under the Fifth Schedule of the Constitution of India in a submission filed in the Chhattisgarh High Court on behalf of the Centre. The Fifth Schedule is rooted in Article 244 (1) and deals with administration and control of Scheduled Areas and Scheduled Tribes.

Mirza filed the submission in February end in connection with an ongoing case that has virtually challenged the Fifth Schedule and validity of the Tribes Advisory Council (TAC).  “The governor has granted powers to the chairpersons as per the rules of TAC,” the assistant solicitor general stated. “It cannot be said that these rules have been formulated to exercise the governor’s discretionary powers. While framing these rules, the power of governor has been exercised as the Constitutional head of the state acting with the aid and advice of the council of ministers and not in his discretion,” the document says.

The statement contradicts the opinion expressed by attorney general G E Vahanvati on April 21, 2010. Vahanvati, in his opinion on the nature of powers of the governor under the Fifth Schedule, had stated that the governor does have discretionary powers and had based his opinion on nine judgements of the Supreme Court and other references.

The division bench of Chief Justice Yatindra Singh and Justice Pritinkar Diwakar granted two weeks to the advocate general to file a reply. The next hearing is on March 12.

Fifth Schedule and its implementation in practice

The public interest petition filed last year in the Chhattisgarh High Court virtually questions the Fifth Schedule. The petition says it was impractical to implement the Fifth Schedule in its present form because of its flawed nature. While it was the root cause of the tribals’ plight, the functioning of TAC is also questionable, it said. According to the petitioner, if governors exercise their near extra-constitutional powers, they would be in direct confrontation with state executive heads.

According to the petition, paragraph 4(2) of the Fifth Schedule stipulates that TAC should hold deliberations in such a manner that the governor refers to them. “In reality, the chief minister, who is also the chairperson of TAC, decides the agenda and seizes sole control over functioning of the body without taking any reference from the governor,” the petition states.

“Governors never exercise their power entrusted in the Fifth Schedule,” says B K Manish, the petitioner who is a tribal rights activist. He cited two recent incidents—Nagari movement of Jharkhand and illegal detention of thousands of tribals in the name of Maoist movement in Chhattisgarh. In Nagari, adivasis approached the governor to annul a project to establish a centre of the Indian Institute of Management by forcible acquisition of fertile land. The governor ignored their demand. In Chhattisgarh, the governor turned a deaf ear to tribals’ appeals to annul the draconian Chhattisgarh Special Public Security Act.

 

Guidelines to Police Officers Investigating cases under SC/ST (POA) ACT, 1989 & PCR ACT, 1955


Article 17 of the Constitution of India has abolished the practice of untouchability in all forms To give effect to this Article. Parliament enacted the Untouchability (Offences) Act, 1955 and later renamed it as The Protection of Civil Rights’ Act, 1955 and notified the Rules in 1977 to implement the Provisions of the Act Later, the Parliament passed the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 which enable the police authorities for taking specific measures to prevent the atrocities to carry out the provisions of this Act, the Government of India notified the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules in the year 1995. In view of the above, the Police Officers have been entrusted with the noble duty to implement all the provisions of the enactments and in right spirit. In this regard, certain measures which are needed to be taken by the Police Officers, who directly or indirectly deal with the incidents of atrocities or practice of untouchability in their respective jurisdiction are as under
1) To identify the atrocities prone areas / villages in order to enable themselves to take adequate preventing measures well in time.
2) They should visit the identified areas and review the Law and Order situation from time to time.
3) To cancel the Arms licenses of the persons who have misused a licensed firearms for committing atrocities or are likely to commit atrocities.
4) To organize Awareness Campaign in the identified areas to educate the SCs/STs about their rights and protections available to them under different enactments.
5) To deploy pickets in such identified areas, where there is an imminent danger of reprisal against SCs/ STs.
6) In extreme situations Arms licenses may be recommended to be issued to the SCs/ STs to enable them to protect their lives and properties.
7) Any complaint of atrocity on SCs/STs by forcing them to eat any inedible substance, causing insult or annoyance, parading them naked / with painted face, wrongful occupation / dispossession from their land, house etc.. forcing bonded labour, use of force in casting of vote, institution of false cases, intentional insult in public view, outraging modesty of SC/ST women, refusing access to a place of public resort, expelling SCs/STs from their houses / village etc. are covered under section 3 (1) of the SCs / STs (POA) Act Whereas, some of offences like fabricating false evidence, mischief by fire, attempt to cause disappearance of the evidence etc. for which the SC/ST person is likely to be convicted of an offence which is not capital but punishable with imprisonment of (07) years or upwards, would fall u/s 3(2) of the SCs/STs (POA) Act.
8) All the cases of atrocities on SCs/STs by non SCs and STs should be registered under the provisions of the SCs/STs (POA) Act, 1989 only, while the cases of enforcing any disability on account of preaching and practicing untouchability should be booked under the provisions of PCR Act. All the concerned officers should clearly understand the provisions of these two enactments and their applicability.
9) If any offence under sec. 3 of SCs/STs (POA) Act is committed by a public servant, he is liable to be prosecuted u/s 3(2) (VII).
10) On receipt of a representation / compliant pertaining to any offence under the provisions of thee SCs / STs (POA) Act either in writing or orally at the Police Station, the Officers -in-charge shall register a case, as provided under Rule 5(1) of the POA Rules of 1995 r/w 154 Cr.PC and if the Officer — in — charge of the Police Stations fails to do so, it amounts to “willful neglect of duty” which in itself is an offence u/s 4 of the said Act.
11) While registering FIR. it should be ensured that correct Sections and Sub Sections under the appropriate Act are applied Any attempt of burking or minimizing the gravity of the offence shall be treated as “Willful neglect of duty ”.
12) All the cases of bogus caste certificates should be booked u/s 420 IPC.
13) The lOs should refrain from becoming parties to the compromises / out of court settlements in cases of specific accusations as defined under the Acts.
14) All the Cases referred u/s 156 (3) Cr.PC. by the court should be promptly registered and the FIR copies should be sent to court and other concerned officers without any delay If there is any dereliction of duty on the part of the IO, he shall be liable for contempt of court and also for Departmental action
15) FIR copy in every case should be sent to the District Magistrate, to enable him to take decision regarding sanction of relief and rehabilitation measures and a copy of the FIR should also be given to the complainant.
16) FIR copy should also be sent to the CP/ SP promptly with a request to appoint the 10 at the earliest, to enable the 10 to commence investigation without any loss of time.
17) The Investigation Officer i.e.an ACP/ DSP has to be appointed by the C.P / SsP. to expeditiously investigate the case booked under (POA) Act. 1989 as envisaged under Rule 7(1) of SCs/STs (POA) Rules of 1995. Non-compliance of the above legal requirement would vitiate the entire investigation.
18) Rule 7(2) stipulates that the investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis within thirty days.
19) In case the appointed IO is transferred out, any another Dy SP is to be appointed as IO and it has to be done by issuing a fresh Appointment Order by S P/C P. U/Rule 7(1) of SC/ST (POA) Rules, 1995.
20) On receipt of the appointment order from the SP/C.P the appointed IO should take up investigation from the stage of FIR. If the initial investigation has been done by an incompetent officer, it is an irregular investigation and mere verification of such investigation by the Dy SP is void and irregular under the Law.
21) In case, the incompetent officer has filed the charge sheet after his investigation, it is null and void and hence the specially appointed Dy.SP should seek permission of the court by filling petition u/s 173(8)Cr.PC and proceed with further investigation from the initial stage i.e from the FIR stage after obtaining the permission of the Court.
22) Since, the investigation in cases under POA Act need to be completed within 30 days, the IO must ensure that the witnesses to be examined u/s 164 Cr.PC are examined within the stipulated period. Tendency to get 164 Cr.Pc statement done after months together should be put to an end. as such practice is found to be against the interest of the victim / complainant.
23) The lOs should refrain from getting the statements of witnesses recorded u/s 164 Cr.PC if it is likely to weaken the case of prosecution. As per established Law. such statements only should be got recorded u/s 164 Cr PC which are likely to strengthen the case.
24) In cases of bogus caste certificates, the IO should also invariably investigate into the conduct and character of the certificate issuing / inquiring authorities for heir prosecution if so required and write to the concerned department for initiating
departmental action against the accused officers, while furnishing the relevant material required to be relied upon by the appropriate authority.
25) The IO after recording the statements of witnesses u/s 161 Cr.PC must hand over a copy of the same to the concerned witnesses under acknowledgement on the original copy as it would help in ensuring the truthfulness of the statements and the witness may refer to the same prior to his examination in the court. It would also stop the IOs from doing table investigation and that too at his convenient time.
26) The lOs should not hesitate to arrest the accused promptly when they are likely to tamper with the evidence by way of threatening or winning over the witness or terrorise the complainant or they are likely to abscond etc. It should also be ensured that the non-arrest of the accused does not result into commission of series of offences against the victims. Hence, the timely arrest goes a long way in preventing the offence and to enthuse confidence in the victims and the community.
27) On knowing that Anticipatory Bail petition has been filed in the Sessions Court or High Court by the accused, the ID should immediately meet the concerned APP/SpI PP/ PP and apprise him of the facts of the case, to enable him to oppose the bail However, if the court entertains such petition, the lO/SpI PP/PP/ APP should rely upon Section 18 of SCs/STs (POA) Act.
28) The Investigation Officer should examine the important and relevant witnesses only, as that would help him to unearth the truth and complete the investigation within a period of 30 days.
29) It is noticed that some of the accused are getting counter cases registered against the SC/ST complainants. In this regard, the lOs must ensure that the investigation in both the cases is completed within 30 days and that the false case is closed Undue delays in this regard are viewed with suspicion by the public and victim in particular.
30) Adequate care should be taken by the IO to complete the investigation within the stipulated period i.e. 30 days and submit the report, lest on this ground the entire investigation may be held as null and void by the court being violation of Rule 7(2) of SCs/STs(POA) Rules.
31) In the cases booked against public servants, the concerned lOs should obtain permission of the Govt, to prosecute the accused u/s 197 Cr.PC before laying the charge sheet.
32) It is a well-established principle that the evidence of the complainant alone shall be sufficient for laying the charge sheet in the Court if it is capable of inspiring the confidence of the court The tendency to close the cases as False/MF, on the basis of the evidence of unimportant witnesses while ignoring the evidence of the complainant needs to be put to an end.
33) The IO must furnish the required number of copies of the relevant material to the accused and promptly produce the accused in the court to get the charges framed early in the designated Sessions Court.
34) In these cases, the IO must make an attempt to gather evidence to the effect that the accused were aware of the victim’s caste at the time of committing the offence,
35) After completion of investigation, the IO should file the charge sheet in the concerned ACJM Court for committal sake and not at all in the Special Court.
36) The lOs should send Memo of Evidence incorporating List of Documents, List of Material Objects and also List of Witnesses along with Charge Sheet and obtain acknowledgement for the same.
37) The IO should enclose injury reports, FSL Report, Medical opinion etc. along with the Charge Sheet while filing in the Court.
38) Any attempt on the part of the accused to threaten the witnesses or to tamper with the evidence etc. the IO should bring it to the notice of the Court and seek denial or cancellation of the bail as the case may be.
39) The IO should proceed u/s 82 & 83 Cr.PC against the sureties, where the accused are absconding and NBWs issued against them.
40) The IO should take prompt and effective steps in consultation with the PP to get the stays vacated by approaching the Superior Courts.
41) The Investigating Officer should produce the witnesses before the APPs for refreshing their memory before they are produced before the court The witnesses or whose 164 statements are already recorded must be warned of action u/s 193 IPC if they turn hostile in the court.
42) It the witnesses in attendance in courts are to be sent back without examination by the Court on the request or due to absence of the accused, the Prosecuting
Officers should insist on the examination of such witnesses or insist on payment of cost to the witnesses by the accused, as provided u/ Rule 11 of SCs/STs (POA) Rules. 1995.
43) The SsP must ensure that the District Magistrate do prepare a panel of Senior Advocates for conducting cases in the Special Courts as Spl PP and send the same to the Government to notification in the official gazette. The District Magistrate may also be requested to review the performance of the Special PP at least twice in a year and in case he has not conducted the cases with due care and caution, his name may be sent for de-notification.
44) The Commissioner of Police / Superintendents of Police Unit Officers may also recommend to the District Magistrate, if so desired by the victims, to engage an eminent Senior Advocate for conducting the cases in Special Court.
45) Summons on the Police Officers to give their evidence should be served promptly and it should be ensured by the supervisory officers that they do attend the Court to give their evidence.
46) Police should assist the Courts in bringing forward the witnesses / accused promptly to ensure smooth and expeditious trial of the case.
47) The dilatory tactics adopted by the accused should be effectively and honestly countered by way of formally opposing the applications for adjournments u/s 309 Cr.PC and also request the Court to go ahead with the trial as provided u/s 317 (1) Cr.PC.
48) The Commissioners of Police / Superintendents of Police should ensure that Special PPs are appointed in every Special Court meant for handling such cases.
49) The cases are getting abnormally delayed mainly due to non-attendance by the accused, non-attendance by the witnesses, lack of commitment on the part of the lOs / APP/Spl.PP/PP etc. It can be countered by formally opposing the exemption from attendance petitions and obtaining NBWs against such accused The lOs should also sincerely execute the NBWs / BWs against the accused and witnesses to ensure speedy trial and also to proceed u/s 82 and 83 Cr.PC against them if situation so warrants.
50) In cases where some of the accused are not attending the court for a long time, the IO/APP/Spl.PP/PP should get the case split up against the absconding accused, who are not likely to be arrested in near future. a$ provided u/s 317 (2) Cr PC.
51) Where there is no likelihood to secure the presence of the accused in near future after framing of the charges, the IO/APP/Spl.PP/PP should request the court to examine the witnesses u/s 299 Cr.PC.
52) The Commissioners of Police / Superintendents of Police must initiate appropriate disciplinary action against the lOs for the lapses pointed out in the Judgment and in cases of lapses on the part of Special PPs the same may be addressed to the District Magistrate / Director of Prosecutions / Ld Legal Remembrancer, Government of West Bengal.
53) The Commissioners of Police / Superintendents of Police West Bengal must actively liaise with the District Magistrate for effective functioning of District Vigilance & Monitoring Committee by way of causing critical review of cases for their expeditious disposal, organizing Awareness Campaigns, seeking involvement of NGOs review of relief and rehabilitation measures, formulation of Model Contingency Plans for preventing disputes and caste related social disturbances, etc.
54) The stringent provisions of the Act including neglect of duty by public servant, forfeiture of property, internment of persons from Scheduled and Tribal areas, imposition of collective fines, if judiciously implemented would create deterrent climate.
55) In all the acquittal cases, the judgment copies should be obtained from the court at the earliest to send the same to the concerned SP or Inspector General of Police-1, CID, West Bengal along with the opinion of APP/ Spl.PP/PP within (20) days for scrutiny and to enable them to take decision regarding filing an appeal or otherwise.
56) The Commissioners of Police / Superintendents of Police should personally review the Final Reports and take appropriate decision at their level keeping the following points in view among other things.
a) Whether the IO has explained the delay in lodging the complaint, if any
b) Whether the IO has examined all the eye witnesses specially those who have been cited in the complaint.
c) Whether the IO has collected the Caste Certificate of the complainant and accused
d) Whether valid appointment orders are placed in the CD file.
e) Whether opinion of the concerned A.P.P /Spl. PP/ PP has been obtained
f) Whether the Investigation Officer so appointed under Rule 7 (1) of SC/ST (POA) Rules, 1995 had completed the investigation on top priority within 30 days as required under Rule 7(2) of SC/ST (POA) Rules, 1995.
57) The District Superintendents of Police/ Commissioners of Police are requested to take action against any Police Officer u/s 4 of SCs/STs (POA) Act, 1989 who willfully neglects his duties required to be performed by him under this Act.
58) The copies of Judgments in all acquitted / convicted cases also should be sent to Inspector General of Police – I, CID, West Bengal.
The above instructions should be communicated to all the Officers — in — charge of Police Stations (including l/C’s) and Investigating Officers.
This issues with the approval of DGP, CID, West Bengal.

Addl. Director General of Police – ll,
CID, Bhawni Bhaban, Alipore
Kolkata- 700 027

Copy forwarded for information and necessary action to

1) All Superintendents of Police including SRPs. West Bengal
2) Commissioners of Police. Howrah and Assansole & Durgapore
3) DIG, Midnapur Range/Malda Range/Murshidabad Range/Railways.
4) Special IG and DIG. Presidency Range/Burdwan Range/Darjeeling Range/ Jalpaiguri Range
5) IGP, Western Zone / North Bengal / South Bengal / Railways

Addl. Director General of Police – ll,
CID, Bhawni Bhaban, Alipore
Kolkata- 700 027

Copy forwarded to DG & IGP, West Bengal, for Kind information.

Addl. Director General of Police-ll,
CID, Bhawni Bhaban, Alipore
Kolkata- 700 027

Source: http://anagrasarkalyan.gov.in/

 

#India – has Yo Yo Honey Singh already won ? #Rap #Vaw


Garga Chatterjee | Agency: DNA

A song that celebrates rape and sung allegedly by Honey Singh has been ‘discovered’. The tragedy in Delhi created the ground for this. If the discovery was supposed to raise awareness against the contents of the songs, that scheme has failed miserably. The number of online views of the said song has shot up steeply ever since the free publicity. Honey has denied singing the ‘Balatkari’ song.

Many people and groups, who, till yesterday had hardly heard of Honey Singh or this song, have assembled his paper and cloth idols to consign them to flames in public amidst much supportive sloganeering. This speedy move from relative ignorance to active denunciation, however heartfelt, is all too familiar. This has also given a good cover to misogynists to peddle high-decibel righteousness. If morality-fired censorship riding high on the back of a human tragedy is not immoral and cynical, I do not know what is. Even more cynical is how some such groups stand side-by-side folks who have devoted decades working at the grassroots – Honey has provided a strange equalizing opportunity, a short-cut.

Many patriotic songs are full of exhortation of death and killing of name-less ‘enemies’. ‘Religious songs’ have elements of killing demons (considered by many as euphemism for Dalits) and infidels. Most of the folks who want to stop watching Anurag Kashyap’s movies for his association with Honey, will not stop using products that are advertised using advertisements that ‘objectify’ women or boycott filmstars who publicly endorse such products. Walking the talk requires a different culture than consumer culture. We are like this only.

Honey Singh has put to tune fantasies that are known and liked widely — what many draw on bathroom walls. Some argue that the free distribution of such material creates an ambience that facilitates viewing women in a certain way – rape is a part of that way of viewing. The individual, in such a milieu, has a greater propensity to rape. The problem with such conjectures is that they do not have a clear causal relationship with criminal action. In the absence of that crucial strict causal link between action and crime, to criminalise human behaviour, however reprehensible it may be to some, leads all of us down an extremely slippery path. Theories of broad propensity are good enough. Consider the implications of this for the ‘single, migrant, underclass, male’ theory.

We should strive towards a fuller understanding of the popularity of songs such as these. The sad use of ‘impressionable children’ to grind their own axe has to stop. There is no evidence that grandfathers from ‘purer’ times are any less likely to grope. And why should everything be ‘family friendly’ anyways? Media ‘explicitness’ as a cause for sexual violence also tacitly legitimizes the ‘titilation’ theory. The less said about that, the better. We have more to lose by sacrificing free expression than the supposed gains of censoring Honey Singh.

There is an anxiety that unless there are curbs, Honeys will take all. There is a tacit acknowledgement that there is no robust alternative on offer. And there is the rub. There is a secret fear that there is no cultural repertoire that is up-to-date and ‘presentable’ as alternative to ‘the youth’. Beyond religion and sex, the relationship of the market with non-sexual elements of ‘Lok-sanskriti’ is faint. Real ‘Lok’ is important in production, consumption and propagation. When profiteers limit ‘Lok’ only to consumption, we have a problem. Organised industry has a certain idiom it is comfortable with. Socially rooted cultural produce without corporate intermediaries, say, the Baul-shahajiya minstrels, thrive in a supportive ecology. One cannot take away the ecology and then expect that it will continue its own evolution, as if nothing changed.

No number of ‘folk-music’ festivals in Delhi can provide alternatives in the backdropwhere ‘folk’ are systematically displaced and brutalized on a daily basis. Music and art, in their many shades, spring forth from life. Without it, it is simply a plant without roots — destined to die sooner or later. The new world selectively cuts roots. Hence Honey lives. After the destruction of rooted cultural idioms and ways of life, from where does one expect songs of life to spring? What will the songs be about – since sadness and pain are ‘unfit’ for modern consumption? Even the idea of songs from struggles of the displaced is met with the some kind of mental cringe, if not a mental block. Consumption is the basic framework in the new world. And there are no holy hills, groves, cultures, homelands, people. Honey Singh has sung the allegorical anthem of the new world. He may have sung it a bit too loudly, at an inopportune time.

Garga Chatterjee is a postdoctoral scholar, Massachusetts Institute of Technology.

 

MC Manmeet lambasts YO YO Honey Singh and his #Rap #Vaw #1billionrising #protest #Foe


Manmeet Kaur the bubbly , lively ,  woman rapper , a  Japaite ,   set the stage on fire  at the program  ON 26TH jAN 2013, at Ambedkar bhavan  bhavan in Mumbai. The program on freedom of expression ‘ bOl ke lab azaad hain tere”.  T he program in support of freedom of speech and expression in Indian Constitution, A crusade for creativity – speak, your lips are free, had a plethora creative and artistic presentations in form of skits, songs, and dance .

No Indian can keep quiet, when the freedom of his country is for sale.

While the most lethal epidemic is spreading in the world, only a few humans stand resolute against the enemy of humanity and are determined to remain altruistic. At any given point of time, such people are only a small handful. Dictators consider them as a major threat, hence they first try to woo them to join the thieves’ guild and be one of them. If all fails, they are offered a high post in the governmental machinery, a position of power or even monetary funds, in order to silence their noble quest for ever. If these measures fail, they construct new prisons for these humane persons and try to crucify them.

What is going on today? There is a constitution in this country, albeit without a soul. All pillars of democracy are dilapidated. Only those who have financial capital, rule the media and can brag and pontificate on anything. The supporters of Brahmanism and under-belly of capitalism keep blabbering nonsense incessantly. Those who are misleading the society by screaming utter lies have been given freedom of expression; and those, who write and speak the truth are forcefully silenced either by means of the police power or by the side-kick fascist organisations. But these moves are no more a secret.

In video below Manmeet gives a very apt reply to Yo Yo Honey Singh and his rap music .

JOIN US FOR MUSICAL ACTIVISM HERE  JUSTICE AND PEACE FOR ALL

BLOCK FEB 14TH, FOR  ONE BILLION RISING MUMBAI, Manmeet and more  performnces hip hop, rap, belly dancing, flash dance

Here  is manmeeet singh, rapping on Yo Yo Honey Singh

 

#India- Alchemizing anger to hope #justiceverma #delhigangrape #Vaw #justice #Law #AFSPA


JANUARY 25, 2013
by , Kafila.org

Arvind Narrain has an op ed in today’s Hindu about the Justice Verma Committee. This is a longer version of the article

 

The public discourse post the brutal rape of Nirbhaya has witnessed a persistent degrading of the public discourse.  Having been subjected to crudely offensive remarks by members of the political establishment, right from belittling a serious movement for equality as led by  ‘painted and dented ladies’ to ostensibly sympathetic responses which belittle women who have suffered a serious violation of their bodily integrity as nothing  more than ‘zinda laash’, we finally have a document authored by a Committee set up by the state which honours Nirbhaya.

The Verma Committee Report most fundamentally alters the public discourse on crimes against women by placing these crimes within the framework of the Indian Constitution and treating these offences as nothing less than an egregious violation of the right to live with dignity of all women. What is particularly moving and inspiring about the Report is that it does so by placing the autonomy and indeed the sexual autonomy of women at the very centre of its discourse.

 

It also offers us a rethinking of what is meant by the offence of rape. In the Committee’s thinking rape is a form of sexual assault like any other crime against the human body in the IPC. According to the Committee it is  ‘the duty of the state as well as civil society to deconstruct the paradigm of shame-honour in connection with a rape victim.’

 

According to the Committee, it is very important that Indian society and the state move away from thinking of rape as a crime against honour and instead look at it as a serious violation of bodily integrity. In language which is seen perhaps for the first time in an official report, the Committee quotes a rape survivor. ‘Rape is horrible. But it is not horrible for all the reasons that have been drilled into the heads of Indian women………I reject the notion that my virtue is located in my vagina, just as I reject the notion that men’s  brains are in their genitals’.

 

The discussion on rape is located in an understanding of women as full and equal citizens  and it is intrinsic to the argument of the Report that it is only by guaranteeing women full and equal rights that sexual violence can even be tackled. It is in this context that the  Committee discusses the phenomenon of honour killing and concludes that it is the responsibility of the state to ensure that ‘choices made by men and women in respect of marriage’ will not be interfered with by institutions such as khap panchayats.

 

Where the uncompromising respect for autonomy and personhood is perhaps best exemplified is in the Committee’s discussion on marital rape. Breaching the sacred inner precinct of patriarchy which is the marital relationship, the Committee for the first time in the history of Indian law, recognizes that the married woman is an autonomous individual with full power to refuse sexual intercourse with her ‘lawfully wedded husband’. There is nothing in the nature of the relationship, which entitles the husband to sexual access to his wife at his whim and fancy. The Committee, based on an understanding of equality in the Indian Constitution comprehensively rebuts  Sir Matthew Hale’s outdated  declaration in 1736 that the ‘husband cannot be guilty of rape committed by himself upon his lawful wife’.

 

While the Committee breaches the inner wall of patriarchy, it is also  equally successful in breaching the public patriarchy of the state as a raping machine. For far too long, the Indian Armed Forces have enjoyed complete impunity for crimes of sexual violence committed against women in situations of armed conflict. The women in Chattisgarh, Kashmir as well as the North East have borne mute witness with their bodies to unspeakable acts of sexual violence. For the first time in history, the Committee has recognized that sexual violence against women committed by members of the armed forces must come within the purview of ordinary criminal law. It recommends a ‘review of AFSPA and AFSPA like legal protocols as soon as possible’.  The requirement of sanction for prosecuting these offences committed by uniformed personal has been done away with.

 

The Committee also introduces the notion of ‘command responsibility’ whereby a public servant in command, control  or supervision of the armed forces or police would be held responsible for failure to exercise control over the actions of his subordinates resulting in rape or sexual assault. Here again the Committee breaches the code of impunity of the Indian state for sexual offences committed by its personnel.

 

The Committee has shown a sense of occasion by  recognizing  that a historic  moment such as this must be transformative for all. As such, it expressly suggests that the definition of those who could be affected by sexual assault should include both men as well as homosexual and transgender persons. It thus recommends that the law expressly protect  all  persons from  rape and sexual assault.

 

The jet of anger which emerged through the brutal rape of Nirbhaya has through the work of the Committee been transmuted into an ever widening circle of empathy which includes children in juvenile facilities, trafficked women and children,  Lesbian, Gay, Bisexual and Transgender persons, domestic workers, women in situations of armed conflict as well as women in violent marital relationships. The Committee through making recommendations for all these vulnerable groups has seized the moment and articulated the patriarchal  ills of the  Indian state and society.

 

The fact that the Report is based upon a historic articulation of hurt and harm suffered by Indian women emerges most poignantly through the articulation of the offence of rape which results in a persistent vegetative state for which the punishment is rigorous imprisonment of a minimum of twenty years going up to life. This recognition of an aggravated form of sexual assault is a tribute to Aruna Shanbaug who was brutally raped and choked with a dog chain and is living since the  last thirty six years in a persistent vegetative state.

 

The Committee has performed a fine balancing act of  being sensitive to public opinion without allowing mere public sentiment to emerge as  the arbiter of policy and law. In doing so, it resists the tendency of basing its recommendations on shifting notions of right and wrong and instead derives its recommendations from constitutional values.

 

It is keeping in mind constitutional morality,  that the Committee has refused to yield to the public clamor for the death penalty for those accused of the brutal rape. It has also firmly reiterated that both chemical and surgical castration are ‘cruel and unusual’ punishments which are not in conformity with the Indian Constitution and hence to be rejected.  The growing clamour for the lowering of the age of the juvenile from eighteen to sixteen has also been rejected by the Committee citing the fact that as far as the juvenile is concerned, it is the responsibility of the state to invest in processes which can aid the reformation of the juvenile.

 

The Committee has done an incredible job of transmuting pain and anger into an inspirational roadmap for the future. It is now up to civil society to ensure that the radical recommendations of the Committee are converted into  reality.

 

 

#India- People are being denied entry to their land for cultivation by BSF #Humanrights #livelihood


 

14 January 2013

 

 

To

The Chairman

National Human Rights Commission

Faridkot House

Copernicus Marg

New Delhi-110001

 

Respected Sir,

 

We have come across the diabolical recurrence of torture perpetrated by Border Security Force in the bordering areas of Char Majhardiar Mouza under Police Station- Raninagar, District- Murshidabad resulted in a terrible scare in the minds of the villagers residing there. The villagers had to abide by the various silly norms and rules of Border Security Force and slightest violation resulted into brutal physical assault and harassment of the villagers. It does not seem that this country at all belongs to these people rather it is the atrocious rule of BSF officials with nauseating indulgence from the civil administration. Our attached fact finding report gives details of the situation.

 

The poor marginalized villagers of Char Majhardiar Mouza mostly bear the brunt of BSF torture in the bordering areas whether they are involved with crime or not. The right to life and the right to livelihood of the villagers as enshrined in the Art.21 of the Constitution of India have been grossly violated due to the atrocities and torturous activities carried out by BSF in the name of safeguarding the country though there is widespread smuggling in the porous Indo-Bangladesh border with the blessing of a section of BSF.

 

Hence we seek your urgent intervention in this matter in the following manner:-

  • Secure the life and livelihood of the poor villagers of Char Majhardiar Mouza, District-Murshidabad from the gruesome atrocities inflicted upon them by the Border Security Force.
  • The whimsical and outrageous dictums of BSF must be overruled. 
  • The guilty Border Security Force personnel must be booked under the law for their alleged act of atrocities and torture upon the poor villagers.
  • The victims must be provided adequate compensation and protection.

 

 

Thanking You

Yours truly

 

 

 

 

Kirity Roy

Secretary, MASUM

 

 

 

 

 

 

Name of the victims:- The villagers of villages namely – Char Harudanga, Char Durgapur, Uttar Char Majhardiar, Mahadebpur, Char Banshgara under Char Majhardiar Mouza, Police Station-Raninagar, District-Murshidabad.

 

Name of the Perpetrators: – The involved Border Security Force personnel Harudanga Mini Camp under Kaharpara BSF Camp of Battalion no. 130, Police Station-Raninagar District-Murshidabad & concerned BDO, police and panchayet officials

 

It is revealed through the fact finding that the victims were all farmers under villages namely – Char Harudanga, Char Durgapur, Uttar Char Majhardiar, Mahadebpur, Char Banshgara under Char Majhardiar Mouza, Police Station-Raninagar, District-Murshidabad.

 

It is also revealed during the fact finding that Char Majhardiar Mouza is adjacent to Indo-Bangladesh border. The villagers stated that fencing has been done by the Border Security Force touching the border road through the said Char Majhardiar Mouza leaving 300 acres of cultivation land beyond the fencing towards Indo-Bangladesh border and adjacent to the actual border line of Indo-Bangladesh border. The BSF personnel are posted inside the fencing, but villagers residing under Char Majhardiar Mouza have their respective cultivation lands beyond the fencing. The villagers of Char Majhardiar Mouza stated that crops grown in such cultivation lands remain unguarded and consequently the miscreants from Bangladesh frequently trespass into their cultivation lands and take away the produce of the cultivation lands. The Border Security Force does not provide any protection to them to save the produce of the cultivation lands. Moreover everyday thousands of cattle are being smuggled to Bangladesh in illegal way by the smugglers in connivance with a section of Border Security Force personnel and smugglers have been using the corn-fields of the villagers as their way for transporting the cattle. As a result, the victims could neither harvest nor cultivate crops in the farming lands. The farmers of the area were to bear the loss of field crops daily at the time of illegal activities of the cattle smugglers. The villagers pointed out that Border Security Force should be posted at the actual Indo-Bangladesh border in order to ensure protection to their life and livelihood.  

 

It was also informed that the victims were frequently tortured by the Boarder Security Force personnel if the victims would dare to protest against such atrocious and whimsical activities. Surprisingly enough, the Boarder Security Force authority, the local police stations and other administrative personnel were involved in such illegal activities. The victims were aware of all such activities but they were helpless as there is always a threat from Border Security Force personnel and local police of roping them in false and concocted criminal cases. The victims had to endure all these in fears of perpetrator BSF personnel.  

 

The villagers of Char Majhardiar Mouza since long several times submitted mass petitions against the ongoing atrocities and tortures perpetrated by the BSF personnel upon the innocent villagers before the  District Magistrate, Murshidabad, the DIG-BSF, Murshidabad, higher administrations concerned but no fruitful result yielded till this day. We collected few names and their land details , who are deprived of their right to life and livelihood.

 

Sl No.

Name of the Petitioner

Mouja

Dag No.

1

Najrul Islam Char Majhardiar

1112, 311

2

Jabiruddin Sheikh Char Majhardiar

314

3

Bahdul Islam Char Majhardiar

1112

4

Iear Char Majhardiar

1112

5

Sahaban Ali Char Majhardiar

712

6

Annatfar Gaji Char Majhardiar

324

7

Khorshed Char Majhardiar

314

8

Sultan Char Majhardiar

314

9

Farid Sheikh Char Majhardiar

 ?

10

Anamul Sheikh Char Majhardiar

1112

11

Rajjak Sheikh Char Majhardiar

1112

12

Ajit Sheikh Char Majhardiar

1112

13

Samirul Sheikh Char Majhardiar

1112

14

Mondal Khalil Char Majhardiar

314

15

Asraful Shekh Char Majhardiar

314

16

Khalilur Rahaman Char Majhardiar

1112

17

Hasan Sheikh Char Majhardiar

1112

18

Mintu Sheikh Char Majhardiar

314

19

Sariful Islam Char Majhardiar

314

20

Aatahar Rahaman Char Majhardiar

314

21

Mojahar Sheikh Char Majhardiar

1112

22

Abubakkar Sheikh Char Majhardiar

1112

23

Badesh Char Majhardiar

314

24

Jahiruddin Sarkar Char Majhardiar

314

25

Najimuddin Sheikh Char Majhardiar

1112

26

Jakir Hussain Char Majhardiar

1112

27

Saidul Sarkar Char Majhardiar

 ?

28

Abdul Bari Char Majhardiar

1112

29

Oaji Sarkar Char Majhardiar

1112

30

Rahul Sarkar Char Majhardiar

314

31

Rabban Sheikh Char Majhardiar

 ?

32

Rahimuddin Sarkar Char Majhardiar

33

Jillar Rahaman Char Majhardiar

314

34

Baidyanath Ghosh Char Majhardiar

1112

35

Nimai Chandra Mondal Char Majhardiar

1107

36

Bablu Kumar Mondal Char Majhardiar

 ?

37

Dilip Kumar Mondal Char Majhardiar

 ?

38

Ajay Kumar Mondal Char Majhardiar

 ?

39

Panchanan Mondal Char Majhardiar

 ?

40

Nantu Shekh Char Majhardiar

 ?

41

Anup Kumar Mondal Char Majhardiar

 ?

42

Biresh Chandra Sarkar Char Majhardiar

1107

43

Boro Mondal Borderpara

 ?

44

Pradip Mondal Borderpara

1907

45

Sadhan Kumar Mondal Borderpara

1108

46

Biswanath Monadal Borderpara

1107

47

Sahadeb Mondal Borderpara

1112

48

Sherjel Islam Borderpara

1107

49

Subhash Chandra Mondal Borderpara

1108

50

Upendranath Mondal Borderpara

51

Uday Mondal Borderpara

1112

52

Mafejul Sheikh Borderpara

1112

53

Babulal Mondal Borderpara

314

54

sanjoy Mondal Borderpara

314

55

Sheikh Majid Borderpara

225

56

Sudershan  Mondal Majhdiar

57

Raycharan Mondal Char Banshgara

225

58

Suren Mondal Char Banshgara

225

59

Hira Mondal Char Banshgara

225

60

Ajahar Sheikh Char Banshgara

314

61

Mithen Mondal Char Banshgara

 ?

62

Paresh Chandra Mondal Majhardiar

 ?

63

Pitambur Mondal Char Borderpara

 ?

64

Eyamulsk Mondal Banshgara

 ?

65

Kuilana Mondal Banshgara

 ?

66

Sujoy Kabiraj Char Banshgara

 ?

67

Mafikul Islam Char Banshgara

 ?

68

Gulam Nabi Azad Uttar Char Majhardiar

 ?

69

Satrughan Mondal Char Majhardiar

 ?

70

Najrul Islam Char Majhardiar

314

71

Nilkanta Mondal Char Majhardiar

314

72

Rahimuddin Sarkar Char Majhardiar

314

73

Krishna Mondal Char Majhardiar

314

74

Abubakkar Sheikh Char Majhardiar

597

75

Mojaffar Sheikh Char Majhardiar

597

76

Rabban Sheikh Char Majhardiar

82/83/79/314/1112

77

Inamul Sheikh Char Majhardiar

314

78

Ramjan Sheikh Char Majhardiar

314

79

Amir Sheikh Char Majhardiar

223

80

Jamshed Char Majhardiar

314

81

Khalek Sheikh Char Majhardiar

228

82

Mojid Sheikh Char Majhardiar

223

83

Mojid Molla Char Majhardiar

83/312

84

Jiten Mondal Char Majhardiar

314

85

Abul Kalam Char Majhardiar

206, 207

86

Jan Mohammad Char Majhardiar

314

87

Anuar Uddin Sheikh Char Majhardiar

314

88

Abul Sheikh Char Majhardiar

314

89

Iear Mohammad Char Majhardiar

112/314

90

Hemanta Mondal Char Majhardiar

314/01

91

Sahaban Ali Char Majhardiar

1112/314

92

Khalilur Rahaman Char Majhardiar

314

93

Khalil Mondal Char Majhardiar

224

94

Sheikh Majid Char Majhardiar

2,283,141,112

95

Jalaluddin Sheikh Char Majhardiar

1112

96

Khalek Sefatulla Char Majhardiar

83


Kirity Roy
Secretary
Banglar Manabadhikar Suraksha Mancha
(MASUM)
&
National Convenor (PACTI)
Programme Against Custodial Torture & Impunity
40A, Barabagan Lane (4th Floor)
Balaji Place
Shibtala
Srirampur
Hooghly
PIN- 712203
Tele-Fax – +91-33-26220843
Phone- +91-33-26220844 / 0845
e. mail : kirityroy@gmail.com
Web: www.masum.org.in

 

 

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