PDF, 1.1MB - Combat Law

Comments

Transcription

PDF, 1.1MB - Combat Law
C O N T E N T S
main theme Pg. 4 - 47
Holding Governments Accountable 25
Rita Vohra
Children’s Rights in Shining India 4
Enakshi Ganguly Thukral
Sexual Exploitation of Children 27
Aparna Bhat
Keeping a Watch on Child Rights in
India 8
Razia Ismail Abbasi
Child Seual Abuse - Time for Action 33
Prathiba Menon
child rights
Globalisation - Will our Children Pay
the Price? 11
Illa. D. Hukku
Convention on the Rights of the ChildAchievements and Challenge 13
Jaap. E. Doek
Bringing Child Rights on the WSF
Agenda 22
Kavitha Krishnamoorthy
The World Social Forum, Mumbai saw child rights
groups form a coalition.
Beyond the Protection of Juvenile
Legislation 35
Maharukh Adenwalla
Child Labour and Cultural
Relativisms 39
Parul Sharma
Crtical Analysis of the
Adoption Law 41
Shibani Ghosh
Corporal Punishment 43
Alok Gupta
Punthamba - A Fight for Justice 48
Shifting the Balance? 67
A fact finding report of the demolition of adivasi huts
and cops in Punthambha, Ahmednagar District,
Maharashtra.
Prashant Bhushan
Has the Philosophy of the Supreme Court on Public
Interest Litigation changed in the era of
Liberalisation?
Larzish - Saying it through Films 50
A round-up of the first International Film Festival of
Sexuality and Gender Plurality.
DNA fingerprinting - a Legal
Perspective 73
Abhijeet Sharma
A Movement for Repeal of POTA 51
Report on the People’s tribunal on POTA and other
security legislations.
Tea Garden Workers - Abandoned to
Death 79
Sunil Scaria
Branding Women 54
A fact finding report reveals the use of witch hunting
as yet another means of oppression of women in the
tribal belts of Nandurbar, Maharashtra.
Sati Judgement - An Appeal 59
Passing the Saffron Buck 60
Hoshedar Havewala
A violation of human rights is used by communal
forces to spark tension in Jhabua, Madhya Pradesh.
Cyber Crime and Indian Society 62
Anuradha Parasar
A pragmatic approach of all concerned is needed to
tackle this crime still in its nascent stage in India.
Rule of Law - A Fugitive 65
K.G.Kannabiran
Increasing corruption and brazen bending of the judiciary by people holding public offices intensifies the
need of a Special law.
Adivasi Tradition as a Crime 82
Stan Swamy
Adivasi tradition of dispute-resolution is made out as a
criminal offence.
WSF in Pictures 84
Accessing Justice 86
Hridey Pal Singh
The right of the accused to a copy of the First Information
Report will go a long way in ensuring justice.
A Model for All? 87
Veena Kumari
A jailbreak at the Model Jain in Chandigarh leads to
suspension of human rights of inmates and harrasment
of their families.
letters
2
edit
3
Cover Photo Credits: The Hindu
Printed and Published by Colin Gonsalves for Combat Law Publications Pvt. Ltd. having its office at IV th Floor, Engineer House, 86 Bombay
Samachar Marg, Fort, Mumbai 400 023 at Interlink, Shah and Nahar Industrial Estate, S.J.Marg,
Lower Parel, Mumbai - 400 013.
Editors:Colin Gonsalves and Mihir Desai
letters to the editor
People's Charter on Housing Rights
Around 115 representatives from the country participated in the workshop organized by National Forum For
Housing Rights, India, a network of independent organizations and Campaign for Housing and Tenurial Rights,
(CHATRI) Hyderabad, in collaboration with Human
Rights Law Network (HRLN), New Delhi on 13th and
14th of March 2004.
Slum dwellers, pavement dwellers, homeless people
constitute 40% of the city population and contribute significantly to the economic, social, political and cultural
character of the city. The unorganized workers that
include slum and pavement dwellers contribute 63% of
Gross Domestic Product (GDP) of our economy. The policy makers, yet, even after 57 years of independence the
right to reside, social security, protection and access to
the resources of the city have denied being citizens of this
country, to them time and again.
The slum dwellers are not problem by themselves but
slums are manifestation of failed policies, bad governance, uncontrolled market, lack of political will, wrong
priority including unjust and inequitable land holdings
in rural and urban areas.
People's Charter condemns forceful large-scale eviction
of slum dwellers in recent times and also condemns some
of the Supreme Court judgments calling slum dwellers as
"encroachers, pickpocketers and anti socials".
Charter of demands:
1. Adequate housing along with compulsory, quality,
equitable education, quality health care, skill up gradation for all, including urban poor, with special focus on
women, children and disabled, should be provided with
in a 5 years time frame by the State. To give right to
housing to the urban poor, appropriate laws, including
land laws such as "Public Land Encroachment and
Regularisation Act" Urban Land Ceiling Act, must be
amended, enacted, repealed and policies must be framed
and implemented. In addition to this, adequate finance
must be provided with quality basic amenities at minimum rate.
2. No developmental scheme that serves only the affluent sections of the city and involves evictions, displacement of urban poor must be carried out. If the land is
needed for public purpose that serves the urban poor
also, then the alternate accommodation, with adequate
infrastructure, to their nearest working place must be
given to the affected urban poor, with their participation,
before them being evicted.
3. Liberalisation, Privatisation and Globalisation
(LPG) have created havoc in the lives of urban poor,
denying them their right to livelihood, leading to displacement, unemployment, bonded labour, indebtedness,
2 combat law
trafficking of women and children, alcoholism and suicide. Hence, India should quit from WTO.
4. Undertake legislative and administrative reforms to
eradicate legal and social barriers for the equitable
access to land for housing and protection of tenure rights
and basic amenities to urban poor inhabitants.
5. Review of all the state laws and Supreme Court judgments that have a bearing on the urban poor and enact
a National Housing Act for the Urban Poor with the consultation of all the stakeholders.
6. The process of decentralization of power to the
Municipal local bodies as envisaged in the 74th
Constitutional Amendment should be expedited and
ward participation must be ensured.
7. Supreme Court's interpretation of Article 21 as including the Right to Livelihood, the Right to Housing and
Right to Dignity must be upheld under all circumstances.
8. Ensure under law that equal rights for women and
men on land and property are protected.
9. 5% of GDP must be allocated for housing. 50% of this
amount must be allotted to the housing for urban poor.
10. According to the proportion of the population of the
urban poor in the city, residential land must be allocated
that include services in the city/town/metropolitan master plan.
11. The urban poor being the unorganised workers, the
central government
must enact a comprehensive
"Unorganised Workers" bill ensuing, regulation of
employment, improving the conditions of work and social
security.
12. All urban poor must be covered under BPL (Below
Poverty line) and provided with ration cards. To participate in the electoral process, they must be provided with
election identity cards
13. Since the urban poor faces brutal oppression and
torture from the police and administration often, the central Government must ratify immediately the UN
Convention Against Torture.
We appeal to political parties, contesting candidates,
civil societies including trade unions, women's organizations, the People's Charter demands should be included
in their election manifesto/agenda to achieve social justice, humane, equitable society. We appeal to all the voters to uphold the People's Charter's demands, to make a
change in their lives.
National Forum for Housing Rights (NFHR)
Dear Readers,
We are keen to know your response.
Editor, Combat Law, 4 th Floor, Engineer House, 86
Bombay Samachar Marg, Mumbai -400 023.
E-mail: [email protected]
 April - May 2004
n
EDITORIAL
owhere is the chasm between the letter
of the law and its implementation so
clear than in the enforcement of the
rights of the child. Despite the decision
of the Supreme Court in M.C.Mehta's
case holding that the state ought to intervene to enforce
the provisions of the Child Labour Act and remove children from hazardous employment, have them sent to
schools and pay compensation for breaches of the Act,
this decision is by and large ignored.
Despite the decision of the Supreme Court in Vishal
Jeet's case and Gaurav Jain's case, trafficking of minor
girls continues unabated.
Although there are thirteen decisions of the Supreme
Court in respect of child sexual abuse, a perusal of the
decisions will show that the judiciary has been unable to
get to the heart of the matter. The practice is widespread and if one were to look inside the family, one
would perhaps find a shockingly high incidence of child
sexual abuse by family members.
We have no law on child sexual abuse. Cases are done
relying on a section here and a section there. The child
suffers such harassment and indignity in the judicial
process that it is far better for the parents to withdraw
the case.
Despite the Immoral Traffic Prevention Act, trafficking
of minors has increased while pimps and brothel owners
are rarely punished.
In Unnikrishnan's case, the Supreme Court held that
free and compulsory education is to be read into Article
21 of the Constitution of India. However, instead of moving in that direction, the privatisation of education is
accelerating and children are going in the opposite direction from the schools to the streets and the factories.
Disabled children are even worse off.
To add to this misery, the union and state budgets in
respect of children are decreasing year after year.
Existing budgets are never fully spent and money is
returned to the treasury.
The central government has enacted The Juvenile
Justice Act, 2000. Yet the statutory bodies and authorities such as the Child Welfare Committees and the
Juvenile Justice Boards, required to be set up in every
state often do not exist.
Putting a juvenile to death is prohibited by law, yet juveniles have been put to death by courts by placing the onus
of proving the age of the accused on the accused himself.
Our population policy does not speak of the two child
norm, yet when the panchayats enacted laws which disqualified persons having more than two children from
standing for elections and the matter went to the
Supreme Court by way of appeal in Javed's case, the
Supreme Court incorporated the two child norm in the
population policy itself with the encouragement of the
central government. Thus the two child norm has
become now a part of our population policy. It was not
pointed out to the Supreme Court that such an incorporation would spur sex selection and determination and
female foeticide, and that the disincentives would
mainly impact poor women.
There was perhaps more interest in curbing the abhorrent practice of child marriages during the preIndependence period when the Child Marriage Restraint
Act, 1928 was enacted. Today child marriages are celebrated with Collectors and policemen and ministers
blessing the 'couple'. Child marriages lead the girl child
directly into bondage and sexual slavery.
Despite the direction given by the Supreme Court in
Lakshmikant Pandey's case aimed at curbing the menace of sending indian babies abroad for monetary consideration, trafficking in little babies is now on the
increase. We were involved in petitions where little
babies were taken from Lambada tribals in Andhra
Pradesh and sold to foreign couples for huge amounts of
money. We found destitute tribal women cheated of their
babies with the lure of sacks of grain.
The Convention on the Rights of the Child guarantees
every child the right to form associations. Yet, when a
petition was taken to the Supreme Court asking for the
registration under the Trade Unions Act of the Bal
Mazdoor Union, an association of children working in
the markets in Delhi who sought to organize to increase
their wage rate per trip carrying groceries, they were
told by the judge that the unions are now trying to mislead the children!
In PUCL v. UOI the Supreme Court intervened actively on the issue of the right to food and directed mid-day
meals be provided to all primary school children. Yet, if
one were to go to Uttar Pradesh and Bihar and many of
the northern states, one would find that this order is
being disobeyed with impunity. Half of the nations children are today malnourished.
This is the second anniversary of Combat Law. It gives
us joy to celebrate, despite the desperate situation, the
extraordinary work done by the Child Rights movement.
Many groups have come together in the Indian Alliance
for Child Rights. The Campaign Against Child Labour
(CACL) has consistently organized on the issue. CRY
has continued support for grassroots groups and the
Domestic Workers Movement has organized relentlessly.
These are only a few of the hundreds of NGO's swimming against the stream, so to speak, bringing Child
Rights to the fore.
Colin Gonsalves
Joint Editor
3 combat law  April - May 2004
child rights
Children’s Rights in
Shining India
E
very time my 16-year old
daughter gets on to stage
to dance, she dusts some
extremely fine shiny
stuff on her face and it
glitters and shines. By the time she
is off the stage, most of the shiny glitter is gone, except for some bits of
sparkle here and there…and by the
next morning, there is no trace of it.
India’s shine is much like that—here
today, gone tomorrow —effervescent
and transient.
Every day we see articles focusing
on the shining and the non-shining
`bits’ of India. But if anything or anyone truly shines in India today-it is
its children, comprising over one
fourth of our population. Resilient
and lively, they continue to smile and
give hope in the not so shining ‘bits’ of
India that most of them inhabit. But
then, they are not voters. What they
think or feel does not count.
As Indians we constitute 16 per
cent of the world’s population,
occupying 2.42 percent of its land
area. It has more working children
than any other nation, as also among
the lowest female-male ratios.
Despite Constitutional guarantees of
civil rights, children face discrimination on the basis of caste, religion,
ethnicity and religion. Even the
basic need for birth registration that
will assure them a nationality and
identity remains unaddressed,
affecting children’s right to basic
services.
India is also home to one of the
largest illiterate citizenries in the
world. In the not so shining India we
see, hear and read of, children are
dying of starvation, while food in our
granaries rots and feeds rats. We
watch while female sex ratio dips.
Little children, barely
able to stand, are married off flouting all
laws. Little ones are
sacrificed, trafficked
and sold; as others are
locked,
abused,
sodomised – the list is
endless. And there are
all those realities that
never make the news.
We know this is only
the tip of the iceberg,
but we choose not to
act. Our silence and
tolerance not only condones such violation of
rights, it also makes
us guilty of complicity.
Therefore,
any
understanding
of
human rights of children cannot be confined to some children‘poor children’, ‘working children’ and ‘marginalised
children’.
Such categories only
help us to remove ourselves from the problem. Let us not delude
ourselves. Violations
of children’s rights are
not limited to the poor
and
downtrodden.
They happen in middle class and elite
homes too, albeit in
different forms, and
the silence around
these is even deeper.
Also, any analysis on
the situation of children must be underCan we promise them an India that truly shines?
stood within the context of the economic and political eralisation, and the gender, caste
changes in the country. Of particular and religious attitudes that prevail
importance are globalisation and lib- today. All these add to children’s vulPHOTO COURTESY: GANPAT LAD
BY ENAKSHI GANGULY THUKRAL
4 combat law
 April - May 2004
child rights
nerability and affect any action that
may be taken for them.
Children are not a homogeneous
category. Like adults, they are divided into different categories based on
social and economic status, physical
and mental ability, geographical
location etc. These differences determine the difference in the degree of
their vulnerability. While gender
discrimination exists almost all over
the world, it is much greater in some
countries - and India is definitely one
of them. Girls in vulnerable situations such as poverty, disability,
homelessness etc. find themselves
doubly disadvantaged, by their gender and the physical, economic, political, social situation that they find
themselves in. It is therefore imperative to take a gender perspective into
account in examining the situation of
children.
The Rights vs. Welfarist
Approach
The Constitution of India provides
a comprehensive understanding of
child rights. A fairly comprehensive
legal regime exists for their implementation. India is also signatory to
several international legal instruments including the Convention of
the Rights of the Child (CRC).
However, the government seems to
be more comfortable with the idea of
well-being rather than rights (with
its political overtones). Child rights
activists are faced with challenges of
promoting and protecting rights as a
positive social value.
Needless to say, ours is not the only
government to do so. The Union
Government’s ideology resonates
with the watering down of the rights
based framework in the recent UN
Special Session on Children which
failed to reaffirm international
pledges made in 1990 to protect the
rights of children.
The
government’s
approach
remains largely welfarist. India is
yet to adopt a single comprehensive
code that addresses the provisions of
the CRC. Clearly the draft National
Policy (Charter) for Children which
has been recently passed in parliament, and is envisaged as being such
a code, is inadequate as it does not
address the full range of rights. It
does not make any reference to the
CRC. In the words of the Joint
Secretary Department of Women
and Child, GOI, it captures the
‘essence of the CRC’ thereby does not
need to refer to it!
Child Rights: From an
Adult’s Perspective
An examination of the laws shows
that although they are meant to protect the interests of children, they
have been formulated from the point
of view of adults and not children.
They are neither child -centred, nor
child friendly, nor do they always
resonate with the CRC.
The problem begins with the very
definition of ‘child’ within the Indian
legal and policy framework. The
CRC defines children as persons
below the age of 18 years, however
different laws stipulate different cut
off ages to define the child. Only the
Juvenile
Justice
(Care
and
Protection) Act 2000 is in consonance
with the Convention. In the absence
of a clear definition of a child, it is left
to various laws and interpretations.
That our laws not child friendly or
child oriented is also evident in the
distinction family laws make
between legitimate and illegitimate
children depending on the status of
their parents’ marriage or relationship. A child born out of wedlock or of
a void or illegal marriage is considered ‘illegitimate’. Children pay for
the decisions taken by the parents
and are denied inheritance rights.
Even worse, a child born of rape is
stigmatised and treated as ‘illegitimate’, both by society and law.
Access to Health:
A Chimera
The health of our children continues to be a matter of grave concern,
5 combat law
 April - May 2004
especially in the wake of growing privatisation of health services, and
their increasing inaccessibility for
the poor. This is a particularly serious situation as environmental
degradation and pollution lead to a
further deterioration in children’s
health. The working conditions that
many children are forced to suffer
worsens matters.
In our shining India, children suffer from malnutrition or die of starvation and preventable diseases.
According to UNAIDS there are
170,000 children infected by
HIV/AIDS in India. Children affected by the virus–whether children of
victims or those who are infected
themselves—- live on the fringes of
society, ostracised by people they call
their own, unloved and uncared for,
even as our government continues to
squabble over numbers of affected
people. Even juvenile diabetes is
reported to be taking on pandemic
proportions.
While the Constitution lays down
the duties of the State with respect
to health care, there is no law
addressing the issue of public health.
Children’s health care needs continue to be in great part dealt under the
Reproductive and Child Health
Programme of the Ministry of Health
and Family Welfare, with a focus on
reproductive health and safe motherhood and child survival. The other
health needs of children are
addressed by the country’s primary
health care system; with very little
attempt to address these needs
specifically or separately.
The population policy with its coercive manifestations in the states has
of course proved most ‘children
unfriendly’. Parents aspiring to political positions are now forced to
choose between children and politics.
Law does not allow persons with
more than two children to hold elected positions in local self governments—and many choose politics as
they disown their children or give
them up for ‘adoption’ in an effort to
child rights
keep to the ‘right’ family size.
The Government has announced
its National Health Policy 2000. One
cannot but note that children do not
find mention as a separate categoryyet another example of the lack of
child focus in our planning and
implementation.
Education for all —- A
promise yet to translate
Education for all is also a promise
held out by the state. An examination of State policies and programmes shows that education is not
going to open the promised gateway
to equality. Indeed if anything, it is a
promise of ‘differential education for
all’ (read ‘some’ even here).
While some children continue to
have access to mainstream schools or
expensive private schools, the rest
must contend with ‘non-formal’ second grade education provided by
untrained and lowly paid ‘parateachers’. As if that was not enough,
the new curriculum framework has
opened up a can of worms on the
kind of biased syllabus, with incorrect or incomplete content, that our
children will be subjected to.
The
passing
of
the
93rd
Amendment Bill (passed as the 86th
Amendment to the Constitution)
making education a fundamental
right, should have been an occasion
to rejoice. Instead it has become an
issue for another long struggle
because it only reinforces the lack of
political will to make education universal and accessible for all. By leaving the critical 0-6 years age group,
putting the onus of creating conditions on parents for sending children
to school and making it their fundamental duty, by reinforcing parallel
streams of education—it has once
again sealed the fate of the poor and
the marginalised children.
Although the rhetoric speaks of free
and compulsory education for all, in
practice, the education system seems
to be designed to keep children out of
it. To implement the 86th Amendment,
the government has drafted ‘The Free
and Compulsory Education Bill,
2003.Concerns and criticisms on this
bill
are
being
expressed
by
educationists and activists.
Beatings, abuse, physical and mental torture faced by the students in
schools is one of the reasons for the
high dropout rate. It is well established that corporal punishment is
detrimental to children’s growth and
development. It is in violation of their
rights. But there is no comprehensive
national law banning it, although several states have even enacted laws
dealing with it.
Moreover the
National Education Policy, 1992
clearly states that corporal punishment should be firmly excluded from
the education system. Despite that,
however, there are several cases that
have been registered against teachers
in schools for use of violence.
At a recent workshop attended by
children from across the country was
a young spastic child named Debu.
“ I have a right to be called by my
name. Why is it that all children are
called by their names and I am called
langda (lame) or even pagal (mad)?”.
This made all the other children sit
up and look at Debu in a new light.
While they had been discussing their
rights, it had not occurred to them
that children with disabilities may
be denied even this basic right.
Children with disability continue
to suffer unequal opportunities for
survival and development. They are
denied personal or economic security, health care, education and all
basic needs necessary for their
growth. Further certain disabilities,
such as, for example mental disability carry even greater stigma. And if
the disabled child is a girl, then the
discrimination is doubled. The rights
of disabled persons has finally been
recognised with the enactment of the
Persons With Disabilities (Equal
Protection of Rights and Full
Participation)
Act,
1995.
6 combat law
 April - May 2004
Children in situations of
Crime and Exploitation
Recognising the flaws of the 1986
Juvenile Justice Act, the government
passed the Juvenile Justice (Care
and Protection) Act, 2000. But the
knee jerk reaction in amending the
law without a wider discussion and
consultation with child rights practitioners, has left many who are concerned with children and work with
them deeply distressed. In 2003 the
government drafted amendments to
the law. But, because of criticisms
and concerns raised by several
organisations and groups, it has
been placed before a Parliamentary
Standing Committee. The Committee
is currently reviewing the law.
The Child Labour (Prohibition and
Regulation Act) was enacted in 1986,
to specifically address the situation of
children in labour. However, this law
distinguishes between hazardous
and non-hazardous forms of labour,
and identifies certain processes and
occupations from which children are
prohibited from working. It leaves
out a large range of activities that
children are engaged in and are
exploited and abused. The largescale exploitation and abuse of children employed in domestic work and
hotels are cases in point.
Child trafficking is one of the most
heinous manifestations of violence
against children. This is taking on
alarming proportions -nationally and
internationally. Although, very little
reliable data or documentation is
available, meetings and consultations across the country have
revealed the gravity and the extent
of this crime. It is high time we
understood and realised that children are trafficked for a number of
reasons and this cannot be treated
synonymously with prostitution. The
absence of this comprehensive
understanding and a comprehensive
law that addresses All forms of trafficking to back it makes this issue
even more critical.
child rights
Adoption: The need for
Greater Checks and
Balances
Adoption is one of the best and
appropriate forms of alternative
family care. Indeed, it is the only
way to break the mindset of institutional care for children, which has
been posed as the only solution for
many years.
However, adoption of children continues to be determined by religion of
the adoptive parents or the child
when religion is known. Only
Hindus, Jains, Buddhists and Sikhs
can adopt children. The personal
laws of other religions - Muslims,
Parsis, and Jews do not allow it.
Even as it exists for Hindus, the law
has serious flaws discriminating
against married women. It allows
only married men to adopt. Further,
it only allows for adoption of children
of opposite genders.
The Juvenile Justice (Care and
Protection of Children) Act, 2000
also provides for adoption making no
exception on the basis of religion. So
more complications may arise.
Besides, the large scale setting up of
baby shops and the selling of babies
from poor families has caused panic
across the country. We need to be
careful not to throw the baby out
with the bath water. Greater checks
and balances are required to ensure
that adoption is legal and proper,
and that it is not being used as a
means of trafficking of children.
Protection from, or by,
Instruments of Violence?
In January 2002, a school going
girl in Jammu, while discussing the
Right to Protection said that even in
the current environment of unrest
she felt protected because she had
armed guards, who accompanied her
to school! She was not alone. There
were others too who felt protected
because
they
had
guards.
Incidentally, one of them was from
the Kaluchak Army School in an
army base, which was attacked by
terrorists a month later. We need to
ask ourselves what environment are
we providing to our children where
they need instruments of violence to
feel protected?
Armed conflicts across the country,
based on religion, ethnicity, and
caste have affected the lives of children everywhere. The recent violence in Gujarat is still fresh in all
our minds. Children continue to suffer from the conflict that Punjab
faced in the last decade. The ongoing
situation in Kashmir and in many of
the North Eastern States has led to
many child casualties. Children are
both victims and perpetrators, brainwashed and incited into following
adults in spreading violence. Even as
they are seen as perpetrators of violence, they are victims of an adult
worldview imposed on young minds.
Children and Disaster
Mitigation
Thousands of children are homeless or living in inadequate living
conditions. Thousand others are displaced in the name of development
and progress. Land is acquired for
‘public purpose’, while the benefits
seldom include those who are evicted
and displaced.
Yet others are de-housed as a result
of natural calamities—the floods,
cyclones, earthquakes that have
come to become almost a regular feature in our country. In all of these,
while whole communities are affected, children are affected even more.
An estimated 3.3 million children
had been affected by the supercyclone
that hit the coastal districts of Orissa
on October 29, 1999. But NGOs
reported that for five days after the
cyclone, no special attention was
focussed on the needs of children.
There was very little information on
where the children were, where they
were going or being taken.
How many children were actually
displaced, how many died in the
earthquake that hit Gujarat on 26
January, 2000? No one has exact
7 combat law
 April - May 2004
numbers. This is true of all such situations of disaster or displacement.
The need is to ensure that along with
immediate relief measures, proper
information is collected so that we
can get a sense of the numbers
affected, and ensure that children
are helped to move back to a semblance of normalcy as soon as possible. This is to ensure that there are
no long-term psychological implications. In the absence of a holistic disaster mitigation policy, which is also
designed to be child friendly, this
will not be possible. The same is true
for rehabilitation policies for development- related displacement.
Child Participation: Many
Miles to go
It is only with the ratifying of the
Child Rights Convention that children’s rights to participation began
gaining formal recognition, although
several NGOs had initiated processes to enlist participation of children
and young adults long before the
CRC. There is, however, no universal
or accepted definition of child participation. Various groups and individuals have defined it according to
their own understanding. However,
there is still a fairly long journey
before this ‘inclusion’ of children’s
participation is internalised and
accepted widely.
Is the situation confronting the
lives of our children bleak, or is there
reason for hope? Can we promise
them an India that truly shines?
What will the forthcoming elections
hold for these non-voters?
Lest we forget, they are the citizens
of today and adults of tomorrow and
they will hold the adults of today,
accountable someday.
Enakshi Ganguly Thukral
works with HAQ: Centre for Child
Rights. HAQ in Urdu means rights.
HAQ is dedicated to the recognition ,
promotion and protection of all
children.
CL
child rights
Keeping a Watch on Child
Rights in India
BY RAZIA ISMAIL ABBASI
“
T
he day will come when
nations will be judged,
not by their military or
economic strength, nor
by the splendour of their
capital cities and public buildings,
but by the well-being of their peoples:
by their levels of health, nutrition
and education; by their opportunities
to earn a fair reward for their
labours; by their ability to participate
in the decisions that affect their lives;
by the respect that is shown for their
civil and political liberties; by the
provision that is made for those who
are vulnerable and disadvantaged;
and by the protection that is afforded
to the growing minds and bodies of
their children.” These words annually prefaced a special report that the
United Nations Children’s Fund
used to publish on ‘The Progress of
Nations.’ Ironically, the day has not
yet come, but UNICEF has ceased
publication of its yearly score-card
report.
Countries like ours should be
grateful the report no longer
appears, since India’s score was
always below the line dividing positive from negative. It is a moot point
whether its publication through the
1990’s actually ever succeeded in
tweaking our national conscience.
We regularly grumble about our
poor ranking in the human development index of the UNDP Human
Development Report, and we feel
good when the World Bank or the
Bretton Woods Institutions pat us on
the back for cutting down on social
sector investments – but children’s
rights? Are we worried? Children
die, suffer abuse, struggle through
childhood without basic health care,
nutrition, protection, learning oppor-
AMITA CHAVAN
8 combat law
 April - May 2004
tunity – mostly without complaint,
because they do not know how to
protest, or where. Who cares? Not
the Indian State. We seem not to
analyse what human development
means.
Was it always so? India’s Tara Ali
Baig – who campaigned long and
hard for the human rights of children – often asked why this country’s
planners
and
decision-makers
always placed children and their
needs at the end of the line. As one of
the architects of the Universal
Declaration on the Rights of the
Child, back in 1959, a long-time
president of the International Union
for Child Welfare, one-time head of
the Indian Council for Child Welfare,
and a tireless champion of the leastserved, least-reached, least-noticed
children in our society and in the
world at large, she had a right to ask.
In 1979, when the UN pushed the
world’s nations to observe the
International Year of the Child, Mrs
Baig could take some pride in the
role India had played in the United
Nations’ dedication of a special year
for children. Mr Krishna Menon, better known for his incisive diplomacy
on other subjects, is on record in the
General Assembly’s annals for his
eloquent speech calling for the year.
This advocacy by Indian NGOs and
government alike, gave India a special place as a pioneering voice for
children’s right to be recognised and
respected. A decade after the
International Year, Mrs Baig died in
the knowledge that the world community was moving towards a landmark international legislation that
would stand as a historic bill of
rights for children: the UN
Convention on the Rights of the
Child. Plans were also under way for
the UN to convene a World Summit
child rights
conference on children, the first ever
such event pledged to a particular
age group. The VP Singh government designated Atal Behari
Vajpayee as its special envoy to the
World Summit preparatory process.
In keeping with its earlier advocacy for world attention for children,
India accepted the decisions of the
1990 World Summit on Children,
and in 1992 also acceded to the Child
Rights Convention (CRC). On paper,
it was making all the right moves.
But in practice, it was doing nothing
much to match the official signatures
it affixed to this and that international instrument.
On the one hand, the Government
of India had always trotted out its
1974 National Policy on Children as
proof positive that national vision
and commitment had preceded anything the UN had thought up. On the
other hand, the Government had seldom if ever trotted out the list of
development defaults that stretched
backwards from 1974 into the
decades past, or forward from that
year into the 1980’s and 1990’s.
Sadly, accession to the CRC did
nothing to correct this bad habit.
Implicit in becoming a State-Party
to the Convention is (a) the treaty
obligation to implement it, with all
the reforms and revisions that this
might entail, and (b) the responsibility to report performance to the UN
Committee on the Rights of the
Child, and also (c) to make the
Convention and country action
“widely known.” India has managed
the feat of carrying out the second of
these duties without paying due
attention to undertaking the first or
the third.
It’s first country report, due in
1995, was submitted in 1997. By that
stage in its evolution, the UN was
encouraging ‘shadow reporting’ by
NGOs, and the Committee on the
Rights of the Child received eight
NGO reports commenting on that
first phase of CRC implementation.
Neither the official report, which
was mostly an expression of good
intentions spliced together with
descriptions of schemes, and a few
unashamed remarks on some problems, nor the NGO reports attracted
much
public
attention.
The
Government took the prudent precaution of printing only 6,000 copies
of its report, 3,000 in English and
3,000 in Hindi. This prudence effectively limited the chances of it being
read. Meanwhile, the status and condition of children continued to be
bad. Investment and social subsidy
cutbacks continued to make their
own negative inroads into children’s
prospects and protections. The contradiction between kowtowing to
Structural Adjustment standards
and meeting basic standards for
child survival and development
seemed not to worry anyone very
much.
The seven countries of SAARC (the
South Asian Association for Regional
Cooperation) had taken the subject
of children on board as a summit
issue in 1986, and few lines in the
SAARC Summit declarations said
something about children. SAARC
leaders also moved to take a collective stand against child trafficking.
After pledging a year to the girl child
in 1990, SAARC dedicated the 1990’s
decade to girl children. India and the
other six nations drew up action
plans. No report of action taken ever
surfaced, beyond cursory updates
provided to a 1996 review conference. Information, if collected, stayed
on file somewhere. The 1997 South
Asia Human Development Report of
Pakistan’s Mahbub ul-Haq Centre
highlighted the shockingly bad situation of the region’s girl children. This
was the only assessment approximating a shadow report.
SAARC had brought together the
combined precautionary prudence of
seven governments into never publicising what it had reported to itself
on the condition of its children. This
may have served some bureaucratic
purpose, but it has not been fair to
9 combat law
 April - May 2004
children. In recent years, some NGO
initiatives have examined the
regional scene. But somehow, a
‘shadow’ process of tracking the fortunes of South Asia’s children did
not develop to any visible degree at
either country or regional level. A
few notable Indians such as Mr Rabi
Ray pressed for SAARC recognition
of the many kinds of trafficking,
including the shameful camel jockey
trade to the Gulf countries. But
SAARC Summits have not been
faced with peoples’ reports on child
rights.
Is there any regional linkage to
child rights efforts across the countries of South Asia? All seven countries are States-Parties to the Child
Rights Convention, India having
been the last to accede. All have
reported their performance to the
UN Committee, not once but twice.
Yet there is no visible evidence of
concerted NGO advocacy or assessment on common regional concerns
being addressed to the UN
Committee, not even on the issues
that SAARC has taken onto its agenda. Certainly, there is no regional
NGO report. The Mahbub ul-Haq
Centre’s human development report
brings regional concerns together,
but do not reflect an ongoing NGO
consultative process. Over the past
two years, NGO think tanks and
research bodies have made common
cause to formulate a ‘Citizens’ Social
Charter’ addressed to SAARC leadership and the SAARC populace, but
only the India charter emerging from
the country level of this process has
a sharp and conscious focus on children. This country charter seeks to
set standards and priorities for
national policy and investment, but
does not specifically link its proposals to the Convention.
One index of what is not happening
was evident in the preparatory negotiations for the UN General
Assembly Special Session on
Children. In the run-up to the
Special Session, only a handful of
child rights
Indian NGOs could get to the New
York preparatory discussions in
2000 and 2001. There they met
another handful of NGOs from the
South Asian neighbourhood. It was
clear that the world’s largest chunk
of children was represented — and
very inadequately — by one of the
world’s smallest delegations of child
rights supporters. The case for better
networking and greater preparation
was obvious and compelling.
The formation of a South
AsianNGO Caucus at the UN was
the first healthy reaction to this
challenge. The next initiative was
conscious feedback consultation back
in India, to highlight both concerns
and possibilities. This resulted in the
launch of the India Alliance for Child
Rights, to act as an open inclusive
process of building a forum across all
rights and developing collective
potential to serve child rights better
– and together. This coalition building process continues, seeking not
only members but partnerships. It is
useful to note that this effort to think
together and work in concert arose
out of the NGO interest in reviewing
what had happened to the 1990
World Summit commitments and
their Year 2000 targets, and getting
into the formulation of a new national plan that might conceivably give
children a fairer deal in the new
decade.
The Government of India has traditionally kept its reporting on World
Summit goals and Convention implementation separate from each other.
The United National overall, and
UNICEF in particular, made the
same mistake throughout the 1990’s
decade. Two design faults helped to
keep the two processes apart:
Convention ratification did not specify adoption or execution of a specific country action plan, even though it
called for dedication of the ‘maximum available resources;’ acceptance of the World Summit commitments and goals did not specify a
reporting responsibility to anyone
but a nation’s own conscience. The
UN Committee enquiring into
Convention implementation was not
empowered to ask directly about
national action plans or national
actions on the 1990s goals.
Who else was to ask? An electorate
that does not know could hardly be a
public conscience motivated to query
inaction or default. Questions arose
on specific concerns from time to
time. The UN apparently tried to
keep up some sort of two-track monitoring; in the Government the same
department produced two sets of
assessments. The Government of
India submitted a country report to
the UN Special Session, and another
report to the UN Committee reviewing CRC action. Both reports were
unhappy examples of lies, damned
lies and statistics, and also with
interesting contradictions in the
data they offered.
It fell to NGOs to knit together the
two official assessments and to pick
out the gaps and the worst of the
damned lies. It was NGOs working
in alliance who found for example,
that India’s registration of births
was 35 per cent in the annual report
of
the
Women
and
Child
Development Department, 40 per
cent (having slid down from the 47
per cent a decade earlier) in the
country report to the UN Special
Session, and ‘around 54 per cent’ in
the country’s second CRC performance report to the UN Committee on
the Rights of the Child. How all
these figures could be true for the
same year was left to the reader to
work out.
A collective NGO planning process
began in the wake of the UN Special
Session decisions, and a linked
process developed around the NGO
assessment of the Government’s
CRC report. The NGO planning
process addressed itself to the
Government’s preparation of a new
national plan of action for children,
while the CRC assessment process
looked back, and sought reasons for
10 combat law
 April - May 2004
the lack of serious implementation
effort. In inviting alternate views on
CRC performance, the Geneva-based
NGO Group on CRC was on the lookout for groups or coalitions of NGOs
working in alliance, so that ‘shadow’
reports could be representative of a
range of NGO opinion and experience. It asked the India Alliance for
Child Rights if it was willing to prepare an alternate report.
To the India Alliance, only two
years old and just beginning to grow,
it was not so much a question of
being willing, as of being able to put
together a really representative
assessment, and producing a report
which could be widely owned. This
meant an active coalition-building
effort, reaching beyond existing
members and contacts. In late 2002,
a dual process of seeking performance information and looking for
partners and allies got under way.
This was already late, since NGO
alternate reports were expected to be
in the UN Committee’s hands by
mid-2003. But the response was positive, bringing together a rich mix of
responses brought NGOs, networks,
academics, lawyers, other experts,
children and youth, senior citizens
with deepening worry-lines, and concerned individuals into a common
effort. A series of consultations were
held, and draft assessments produced, with participation coalescing
around Delhi and Bangalore.
The initial effort was to work
together for a single NGOs’ or citizens’ report. Some NGO groups
working at zonal or state level joined
in this effort to forge a single document. But it emerged that there
were some who would share their
insights and still bring out their own
report. The lesson of the process was
that the emerging collective report
could co-exist with the special issue
reports; the children’s own report
from the National Movement of
Working Children was a valuable
example of a partner report with its
own special character and message.
child rights
Behind schedule, but ‘in time’ in
the best Indian tradition, the
Citizens’ Alternate Report – Every
Right for Every Child – reached the
UN Committee and the NGO Group
on CRC in September 2003. Perhaps
its proudest pages were the two that
listed more than 150 NGOs, networks, institutions and groups and
dozens of individuals who had contributed to the formulation of the
report.
Now it was for the loose-knit but
unified CRC coalition to find its
emissaries to the pre-sessional hearing of the Committee where alternate reports would be discussed. It is
a testament to the consultative
process that confidence was reposed
in the four India Alliance representatives who traveled to Geneva for
the hearing. The importance of pursuing a consultative process and
building the review and reporting
coalition was recognised by the UN
Committee when it gave the Alliance
delegation extra time and pride of
place in the NGO presentations. The
in-camera hearing, closed to government ears, succeeded in conveying
many serious concerns to the
Committee. The upshot was a further Committee request to the
Government to provide additional
information and the communication
of some Committee concerns to the
Government to think about. Another
fruit of the pre-session was the new
connections made between the
Alliance and the other NGO presenters, taking joint consultative links a
step further.
The NGO Group invited the
Alliance to plan for the official India
review session, and encouraged it to
seek resources to get there. This
time, the NGOs would be silent
observers, and it was up to them to
find a way of making any input to
the session. NGOs worked together
to sustain their collective strategising, even though it was not sure any
of them could get to Geneva again to
listen in on the official review.
Preparatory activity saw ongoing
cooperation as NGOs with contacts
made connections for others, and
helped to explore chances of communicating with government counterparts before the session.
It is as well that two NGO delegates got to Geneva to witness what
transpired when the Government of
India faced the UN Committee in its
official review session on 21st
January 2004. They went with all
the concerns of their own review
troubling them. Sad to say, the official presentation and defence was
lies, damned lies and statistics
again, and some smooth dodges.
Sadder still, India will not be
required to report formally again
until 2008. Another set of observations and recommendations has
come from the UN Committee, and
the Government of India is expected
to act upon them. But a government
which does not make the Convention
itself known to the public is hardly
likely to post notices or invite comment on its lapses of implementa-
tion.
Again it falls to the non-governmental community to hold together
in alliance, and in solidarity with
children, to keep tracking what is
not being done to realise child rights
in India. The new National Charter
for Children is already official – blatant denial of CRC obligations. After
the Lok Sabha elections, there will
be official action to adopt a new
national plan of action based on a
year of flawed and myopic closeddoor drafting, and to move the Bill
for what looks like a congenitally
toothless national commission for
children. Who will contest these negative moves? The MPs of the Lok
Sabha just dissolved, failed to even
understand the defects in the national charter, let alone query them.
Who will take stock – at least once a
year – of whether India is going anywhere with its CRC tasks? Who but
NGOs, and they too will determine
their own effectiveness and leverage
by the extent to which they choose to
keep working together. If the CRC
review and reporting experience has
demonstrated anything, it is the possibility and the potential. Children
deserve no less.
Mercifully for the peace of her soul,
Tara Ali Baig did not live to see the
many betrayals of the country’s children that have peppered the years
since she died. It would be good, for
children and for India, if her crusading spirit and her own legacy of
building partnerships in the child’s
CL
cause inspires today’s NGOs and
Globalisation- Will our Children
Pay the Price?
I
n Pipra, Bara Chapri and
Chota Chapri villages of
Barijore block, Godda district of Jharkhand no one
knew
about
primary
schools so they did not send their
By Ila D. Hukku
children to study. Instead the village
children worked as domestic help in
the local money lenders’ houses or
11 combat law
 April - May 2004
helped in the fields. Close by, in the
villages of Balkami and Sinni the
school buildings were incomplete
and teachers rarely present. Of
course here too the children could
not attend school. Finally the Gram
child rights
Sabha of the area had to take matters in its own hands. They got
together and organised a social
audit involving the local government
officials too. Over the 5 days of the
social audit 11 teachers re-joined
work and today 800 children have
started going to school.
Stories of villages without schools,
schools without buildings or teachers, irregular and indifferent teaching and a crumbling government
education system are common place
in India today. In fact, less than
half of India’s children between age
6 and 14 go to school and a little over
one-third of all children who enroll
in grade one reach grade eight. And
it is not just education; about 60 million Indian children under the age of
6 subsist below the poverty line and
every second child in the country is
malnourished in this day, when our
country’s food grains stocks are
enormous.
Child deaths are still very high
and almost 2 million Indian children
die every year before reaching their
first birthday; 1 in 11 dies before
their fifth birthday. Easily preventable diseases like diarrhoea snatch
away 7 to 8 hundred thousand of our
children every year. In 100 million
families across our country children
have to survive without water at
home; 150 million live in households
that have no electricity. These
shocking statistics stand testimony
to the prevailing low access and
quality of education and healthcare
services for children. Privatisation
of basic services and the introduction of commercial motives in providing essentials like water, basic
health and education will further
worsen the access for a large number of India’s poor.
Clearly, the situation is grim and
calls for prioritised and determined
investment in the rights of children.
Unfortunately the response has
been
quite
opposite.
The
Government of India, under the
pressure from the Structural
Adjustment Programme imperatives
defined by the World Bank and IMF,
has taken policy directions that in
the short and long term have endangered the opportunities for wellbeing of children, particularly those
belonging to the socially and economically deprived communities. In
this era of globalisation the declining trend of government investment
in social sectors, which include
health, education and childcare, has
made the already unsatisfactory situation of children even worse.
Experiences from across the world
have shown us repeatedly that children are among the most vulnerable
when local economies are opened up
to global market forces without
making adequate investments and
putting safeguards for the susceptible sections of population.
The experiences have been most
harrowing in countries which
opened their markets in a situation
where its children were in any case
at risk. World Bank reports
analysing the effects in Mexico and
Thailand of the financial crisis due
to exposure to global markets, found
that children were withdrawn from
school, entered hazardous jobs and
prostitution rings and suffered from
development damage due to malnutrition. These effects continued long
after the economies recovered.
The situation is not too different in
India. And India’s children are paying the heaviest price for the economic policies of trade, agriculture
etc. With 60% of the country’s population, children included, dependent
on agriculture for their subsistence,
government investment in agriculture declined from 11.6% of GDP in
the 80’s to 9.1% in the 90s. Higher
input costs of fertilisers, pesticides
and seeds are making it virtually
impossible for small farmers to survive. Under conditions put forth by
the World Bank, the PDS is now
available only to the “poorest of the
poor”, defined so as to leave out
large numbers of poor people.
12 combat law
 April - May 2004
In a study commissioned by the
central government to study tribal
deaths in Maharashtra, it was found
that hunger deaths among 0-6 year
old children in Nandurbar district
had gone up from 0% in 1993 to
46.20% in 2001. On the one hand
large sections of the population are
denied adequate nutrition and on
the other, we have a highly
inequitable health system which
denies quality health care to all
those who cannot afford it. Public
financing of health care declined
from 1.25% of national income in
1993-94 to 0.9% in 1999-2000. It’s no
wonder then that large numbers of
our children continue to live a life
constantly threatened by malnourishment, disease and death.
The last decade has registered the
lowest rural employment growth
rate since Independence and the
overall employment growth in the
1990’s was only two-thirds to half of
what it was in the 1980’s. With more
and more employment becoming
irregular and non-permanent in
nature the likelihood of the poor
unskilled worker finding work for a
sufficient number of days to feed the
family is declining.
Adult unemployment is directly
proportional to employment of children. When there is a lack of productive activity for adults, the children are sent to work for supplementing family income. Also the
trend of contracting and subcontracting has meant that many jobs
have moved from organised shop
floors to small sheds and inside
homes making it easy to engage
child labour away from the public
eye.
Field evidence suggests that many
school going children dropped out
from school to replace adult earning
lost when family farms were combined by large corporations for cash
crop plantations. As an example, in
the state of Andhra Pradesh alone,
as many as 60% of the 247,800 children working in cottonseed produc-
tion had dropped out from school to
work in the fields.
Poverty, lack of health facilities,
abuse, exploitation, handicaps like
those of caste, gender, ethnicity and
disability can be transcended by
good quality education. But India’s
children are being denied even that
chance. The overall public expenditure on education dropped from a
peak of 4.4% of national income in
1989 to 2.75% in 1998-99. Not only
that, towards the latter part of the
90’s the government of India programming on education indicates a
backing off from the commitment to
provide good quality education to all
children.
The unequal access to quality education is worsening as the government system is moving towards
delivering substandard education to
the very children who need quality
education the most.
Through the Sarva Shiksha
Abhiyan, under qualified and underpaid “para teachers” will impart
education to several million first
generation learners. Thus segregated, these children will be handicapped in competing with those educated in formal schools and will find
it impossible to break out of the
poverty cycle in which their families
have been trapped for generations.
The most disadvantaged among children, the girls, those with disabilities, the dalits, the adivasis will be
the ones who end up being provided
with such second-rate education.
Though the picture looks forbidding there are many glimmers of
hope across the country, like in
Jharkhand, showing us that things
can change. This hope lies in the
power of people coming together to
ask for what is rightfully theirs and
their children’s. That is our best
chance for a better today and bright
tomorrows.
Ila D. Hukku is DirectorDevelopment Support, Child Relief
& You.
CL
PHOTO COURTESY: GANPAT LAD
child rights
Convention on Rights
of the ChildAchievements &
Challenges
BY JAAP. E. DOEK
F
or the protection of children’s rights under international law, the United
Nations
(UN)
Convention on the Rights
of the Child (CRC) is the most
important legal instrument. The
CRC, adopted unanimously by the
General Assembly of the United
Nations on November 20, 1989, has
been ratified by 192 of the 194
States that exist in the world; only
two States have yet to ratify it. No
other human rights treaty comes
that close to universal ratification.
The CRC is at the same time the
human rights treaty with widest
coverage.
But paper does not
change the reality. If one reads the
text of the CRC, it is clear that
there is a often wide gap between
13 combat law
 April - May 2004
the text and the realities in the life
of children. Let me give you some
examples which can be complemented with thousands of other similar
cases.
Article 2 CRC: “States Parties shall
respect and ensure the rights set
forth in the present Convention to
each child within its jurisdiction
without discrimination of any
kind….”
Article 28 CRC:“State Parties
recognise the right of the child to
education and with a view to achieving this right progressively and on
the basis of equal opportunity, they
shall….make primary education
compulsory and available free at
all.”
Hula does not go to school in the
Dominican Republic. She has been
told it will make her less attractive
if she is educated. Her parents will
child rights
not even let her look at her brothers ognize the right of every child to a
textbooks. She stays at home with standard of living adequate for the
her mother to cook and clean. Hula child’s physical, mental, spiritual,
is 14 years old. There are another moral
and
social
68 million girls like Hula, who do development…States
Parties
not receive any education at all.
shall…assist parents and other
Article 24 CRC:“States Parties responsible for the child to implerecognise the right of the child to the ment this right and shall in case of
enjoyment of the highest attainable need
provide
material
standard of health.”
assistance…particularly with regard
Article 7 CRC:“The child ….(has) to nutrition, clothing and housing.”
the right to know and
Jule was raped by a
be cared for by his or
neighbor. She takes
her parents.”
care of her infant
Monica is connected
daughter with the scant
to a feeding tube. Her It is fair to say
money she earns from
cheeks are puffy, her that a lot has
making bread. The rest
stomach distended and
of her family died from
weighs only 10 lbs. She been achieved
AIDS. She has never
does not smile, laugh or in the last
been to school in Ghana.
even cry. She lies there
Jule is 13 years old.
with a blank look on 10 to 15 years,
Musa was about 16
her face. She probably a very short
years old when he was
will not make it
held in a detention cenperiod,
through the end of the
tre in Chernokovo, a
month. She is a crack given the
town in Chechyna, from
baby. Her mother left misery
Januray 16. 2000 until
her on the front step of
February 5, 2000, and
an American hospital. hundreds of
he was severely beaten
Again, this is one millions of
and tortured every day.
example of the many
He was left with a fracchildren
Monicas in this world.
tured spine, which may
Many more children die live in.
cause permanent paralbefore they can celeysis. Another boy (17
brate their first birthyears old) was brought
day. In fact, every 24 hours about to prison; his teeth were sawn off
35,000 children die of preventable with a metal file and his lips are
diseases.
shredded, leaving him unable to eat,
Article 33 CRC:“States Parties drink or speak.
shall take all appropriate measUnfortunately, many more examures…to protect children from the ples of torture, and inhumane and
illicit use of narcotic drugs.”
degrading treatment of children can
Micky started using heroin when be given. Organisations, like
he was 10. He uses any needle he Amnesty International, Human
can get his hands on. He’ll even sell Rights
Watch,
and
OMCT
his body. Three of his Canadian (Organisation Mondiale Contre Ia
friends have died from AIDS in the Torture), regularly report on the
last year.
many instances of violence against
Article 19 (1): “States Parties shall children, which happen in many diftake all appropriate….measures to ferent ways and in a wide variety of
protect the child from all forms of settings, such as families, foster
physical or mental violence…includ- care, schools, institutions, and
ing sexual abuse.”
facilities that serve law enforcement
Article 27 CRC:“States Parties rec- purposes.
14
combat law  April - May 2004
These and many other examples of
violations of children’s rights seem
to suggest that the CRC-operational
for more than 10 years has had little
or no impact. It may be true that
the CRC had little, if any, meaning
for many children, particularly the
very poor and the most vulnerable.
But at the same time, it is fair to say
that a lot has been achieved in the
last 10 to 15 years, a very short period, given the misery hundreds of
millions of children live in, is the
result of many decades of structural
neglect of children and their rights.
But, it is also true that a lot still
needs to be done. Let me elaborate
a little bit (more will result in a
book) on these two elements: the
achievements and the challenges,
with particular attention to how
these challenges can be addressed.
A Change of Policy and
Attitude?
The developments in the field of
children’s rights since 1990 (the
CRC had entered into force on Sept.
2, 1990) can be characterised with
words like awareness raising, training, change of laws, efforts to change
attitudes, and the development of
national plans of action. These activities, changes and developments
were and are the result of major and
very visible international events and
of less visible, but ongoing and
rather structural, activities within
the framework of the monitoring of
the CRC implementation by the
CRC Committee. The first, and very
visible, event that should be mentioned is the World Summit for
Children (WSC) organised by
UNICEF in September 1990, where
over 70 Heads of States and a large
number
of
other
State
Representatives adopted a declaration and a plan of action for the survival and development of children.
The WSC was important for various
reasons. For example:
The WSC contributed unmistakably to an unprecedented level of
child rights
ratification. Within 7 years, 191
States Parties had committed
themselves to the implementation of
children’s rights by ratifying the
CRC. The importance of this almost
universal and legally binding
commitment to children’s rights
implementation should not be
underestimated.
In many States, serious and often
successful efforts were made to
develop and implement a national
plan of action in accordance with the
WSC’s plan of action. Sometimes
plan of action were made for specific
areas of concern. These plans were
focused on education, health care,
commercial sexual exploitation,
street children, and/or child labor.
UNICEF became, and currently is,
fully committed to the implementation of the CRC, although the
CRC was only scarcely mentioned in
the document.
The WSC’s plan of action provided
an excellent instrument for the
implementation of the CRC,
although the CRC was only scarcely
mentioned in the document.
The follow-up to the WSC, accompanied by end of the decade reviews
from over 130 governments indicating the achievements and challenges
for the years to come, was the
Special Session of UN’s General
Assembly (UNGASS), which was
held in May (8-10) 2002.
The
Secretary General used the national
end of the decade reviews and other
documents in his report to the
General Assembly, presenting the
achievements over the past decade
and perspectives for the future.
Before giving more examples of the
achievements in more concrete
terms than in the first part of this
paragraph, I have to mention another factor (other than the WSC’s plan
of action) that has been important
for the achievement; the implementation of the CRC.
It is not possible to present very
concrete statistical data of the
impact of this implementation. At
the international level, the impact is ties of NGOs. Furthermore, reportvery noticeable in the area of chil- ing fosters cooperation at the nationdren in armed conflicts. It is fur- al level and provides valuable inforthermore very likely that some mation to UN agencies, which are
major events like the Stockholm not limited to writing alternative
(1996) and Yokohama (2001) confer- and/or supplementary reports. The
ences
on
commercial
sexual examination of a report results in
exploitation, other international and the
so-called
Concluding
regional conferences, and the adop- Observations. In this document, the
tion of ILO Convention No. 182 CRC Committee recommends the
would have not taken place and/or State Party to undertake specific
been less successful without the actions in various areas. It is again a
existence of the CRC.
tool for initiatives by NGOs and UN
But, all States Parties should agencies that not only puts pressure
report the progress they make with on the government-via such avenues
the implementation of the rights of as the media and parliament-to
the child to the CRC Committee. undertake
the
recommended
This may seem to be an exercise in actions, but also provides the govmoving paperwork, but experiences ernment with very concrete help in
have taught us that it is much more terms of service provisions and/ or
than that. The preparation of the technical assistance. In many counreport requires, given the broad con- tries, this reporting and follow-up
tent of the CRC, the involvement of process was more or less linked with
many ministries and other govern- the efforts to implement the WSC’s
mental bodies, such as those respon- plan of action.
sible for health, welfare and educaThe increased and growing attention, justice, public order, defence tion for the CRC also contributed to
and the national budget. In addi- important progress in the following
tion, the NGOs in many countries areas: children in armed conflict,
submit their own reports (shadow, commercial sexual exploitation, and
supplementary, or other types) to child labor.
the CRC Committee. These reports
Children in
are often the work of
Armed Conflict
close
cooperation
At the time of draftbetween the various
ing of the CRC, one of
specialised NGOs in the
the most heavily debatcountry via the estab- This may
ed
provisions
was
lishment of a national seem to be
Article 38. A number of
forum or coalition of
States felt, very strongNGOs. Finally, quite a an
ly-supported by many,
number of specialised exercise in
if not all, NGO’s-that
UN agencies, in particArticle 38’s minimum
ular UNICEF, submit moving
age for recruiting chiltheir reports on the paperwork,
dren to become soldiers
country
to
the
but
at 15 years-old was
Committee.
much too low. Efforts to
In short, reporting to experiences
increase this age failed,
the CRC Committee is a have taught
and the States most
process that very much
concerned about this
contributes to raising us that
matter finally decided
awareness among civil it is much
to accept Article 38 as it
servants
throughout
more
was (and is ) because
the governmental bodthey did not want to
ies regarding the activi- than that.
15
combat law  April - May 2004
child rights
endanger the unanimous approval of
the CRC by the General Assembly.
But they clearly had the intention to
raise this issue again as soon as possible after the CRC was ratified by
the 20 States necessary for the CRC
to enter into force (on September 2,
1990). This explains why the
Committee devoted its first day of
General Discussion in 1992 to
Children in Armed Conflicts. One of
the Recommendations of this
discussion was to undertake an
international study on this matter.
In 1993, the Secretary General
appointed Graca Machel as the
expert to conduct this study with the
support of a secretariat provided to
her by the UN. The report published in 1996 had at least two very
visible consequences:
The appointment of Mr. Otunu of
Nigeria by the Secretary General of
the UN as his special representative
for children in armed conflicts. Mr.
Otunu, who has an office in New
York, has been and is, very active ,
visiting the countries where children are (and have been) recruited
as soldiers or are (and have been)
involved in armed conflicts in any
other way. He also succeded in making children in armed conflicts a
topic for the agenda of the Security
Council that now regularly (at least
once per year) discusses the developments in this area covered by the
CRC and its related Optional
Protocol (see Resolution 1261 (1999),
Resolution
1314
(2000)
and
Resolutions1379 (2001) adopted by
the Security Council).
The drafting and adoption by the
UN General Assembly (on 25 May
2000) of an Optional Protocol (OP)
on Children in Armed Conflicts.
This OP entered into force on
February 10, 2002 and, as of March
2003, has been ratified by 46 States
Parties. In this OP, the minimum
age for non-voluntary recruitment
(conscription) is 18 years; for voluntary recruitment the States Parties
commit themselves to increase that
organised the First World Congress
against
Commercial
Sexual
Exploitation in 1996 in Stockholm.
At this Congress, an Agenda for
Action was adopted by 122 governments. About the same time, a
working
group
of
the
UN
Commission on Human Rights started the drafting of an Optional
Protocol to the CRC on the Sale of
Children, Child Prostitution, and
Child Pornography. This work was
completed in 2000, and the text was
adopted by the UN General
Assembly on May 25, 2000. This OP
entered into force on January 18,
2002 and has been ratified by 45
States. As of March 2003, the OP
requires States Parties, inter alia, to
make all kinds of commercial sexual
exploitation punishable under their
criminal law, to introduce extra-territorial jurisdiction, to provide for
the seizure and confiscation of products and benefits from such
exploitation.
In addition to criminalising CSEC,
Commercial Sexual
the States Parties should develop
Exploitation of Children
and implement programs to support
(CSEC)
the victims of CSEC, not only when
Since the end of the
they are involved in
1980’s the growing
legal (Criminal or civil)
international attention
procedures but also
resulted, inter alia, in
after such procedures
The CRC has
the appointment by the
by providing them with
Commission on Human become a
r e c o v e r y ,
Rights of a Special foundation for, treatment/therapy, and
Rapporteur on the Sale
social reintegration. It
of
Children,
Child and the
is too early to present
Prostitution, and Child driving force
results of this OP
Pornography and in the
because
the
first
behind,
establishment of an
reports
by
States
international
NGO a wide
Parties on its implefocusing on these phementation
are
not
variety of
nomena: ECPAT (End
expected until 2004.”
Child
Prostitution, activities
At the end of 2001, the
Child Pornography and aimed at
Second World Congress
Trafficking of Children
against
Commercial
for Sexual Purposes) improving
Sexual Exploitation of
with branches in quite the world of
Children was held in
a number of countries.
Yokohama, Japan to
and for
This NGO supported by
evaluate results and to
UNICEF, other NGO’s children.
set an agenda for the
and
governments,
next 5 years. In this
age to above the minimum of 15 as
set in Article 38 of the CRC.
Another rule of this OP is that no
child below 18 shall be directly
involved (as a soldier or otherwise)
in armed conflicts. States Parties
also commit themselves to the development and effective implementation of programs for demobilisation,
recovery, and social reintegration of
child soldiers.
The study and its follow-up (via
special representatives/optional protocols and other actions) have
resulted not only in significant
social reintegration, but also in
terms of prevention. Crucial in this
regard have been, and still are, specialised UN agencies, in particular
UNICEF and international NGO’s
(e.g. the Coalition against Child
Soldiers) that provide technical,
financial and other assistance.
Some of the concrete results of all
this will be presented in the next
paragraph.
16 combat law
 April - May 2004
child rights
agenda, the States committed themselves, inter alia, to address the root
causes that place children at risk of
sexual exploitation, such as poverty,
inequality, discrimination, violence,
armed conflicts and dysfunctioning
families. Furthermore, they promoted networking among the key
actors to combat CSEC, ensured
adequate resources for the prevention an elimination of commercial
sexual exploitation of children, and
took adequate measures to address
negative aspects of new technology,
in particular child pornography on
the internet.
Child labor
At the beginning of the1990’s the
efforts to prevent and eliminate
child were given a very strong boost,
not so much because of the CRC’s
entering into force but due to a very
substantive donation from the
German Government to the ILO earmarked for elimination of child labor
(50 million DM for a period of 5 yrs);
This marks the beginning of the well
known integration program for the
elimination of child labor, the
International Labour Organisation
(ILO-IPEC). This program is now
financially supported by about 15
donor countries and different
national programs carried out in
about 75 Countries.
But, it is very likely that the ratification of the CRC by 191 states in
1997 contributed to the remarkable
increase of international attention
for Child labor. The same fact may
have been favourable to the ILO
efforts to draft a new ILO convention focusing on the Elimination of
Worst Forms of Child Labour
around 1997. These efforts were
successful, and in 1999 the ILO
adopted ILO Convention No. 182.
The CRC Committee regularly recommended the States Parties ratify
ILO Convention No. 138, a recommendation, which in 1999 also
included the ratification of ILO
Convention No. 182. In this regard,
it is important to note that the defi- Pakistan, as well as the developnition of the worst forms of child ment of codes of conduct by internalabor in Article 3 of the ILO tional corporations to include the
Convention No. 182 lists various prohibition of child labor in their
forms of exploitation of children production processes.
already covered in the
In light of the above
Articles 32-36 of the
and of many more activCRC.
ities which can be menI agree with the UN The CRC has
tioned, it is fair to conSecretary General that
clude that the CRC has
the CRC helped to become a foun- created a movement
enhance existing ILO dation for, and
with participants from
standards (first ILO
all walks of life, from
the driving
Convention No. 138
children and parents, to
and
later
ILO force behind, a
governments and all
Convention No. 182). wide variety of
kind of organizations,
The relevant provisions
including small, local,
of the CRC have also activities
not-for profit action
helped to promote a aimed at
groups, and large intergrowing recognition of
corporations.
improving the national
the
connections
The CRC has become a
between the protection world of and
foundation for, and the
of children from eco- for children.
driving force behind, a
nomic exploitation and
wide variety of activities
the enjoyment of their
aimed at improving the
rights to education,
world of and for chilhealth care, rest, play, and an ade- dren. These activities have largely
quate standard of living.
been devoted to increasing awareThe awareness of the worst forms ness and understanding the meanof child labor and the need for its ing of the child rights approach of
prevention and elimination was not the CRC in order to ultimately
limited to governments. The tripar- change the traditional attitudes
tite structure of the ILO meant and regarding children. A change which
means that employers’ organisa- I once summarized as “from charity
tions and trade unions are involved to entitlement.”
in the fight against child labor.
Although this can be considered a
At the same time, many national major and fundamental, achieveNGO’s were created in the field of ment, one may wonder, is this all
child labor. These NGO’s UNICEF, there is? Theoretically it sounds
other UN agencies and the ILO part- fine, but what about the children?
ners (governments, employers, Did they not benefit from the CRC
workers), developed and maintained and all the related activities?
a momentum which, interalia,
resulted in a Global March against Improvements for Children
Child Labour and in more aware- Since 1990
For those who expected the CRC to
ness among consumers and internaquickly make the world a better
tional corporations.
Awareness was the drive behind place for children, the results may
actions/programmes
like
the be very disappointing. This kind of
Rugmark initiative and agreements expectation is not very realistic. An
for the elimination of child labor international human rights instrufrom the garment industry in ment like the CRC cannot in and of
Bangladesh and the soccer ball itself improve the world for children.
stitching industry in Sialkot, Even a serious and rigorous imple-
17 combat law
 April - May 2004
child rights
mentation will only produce visible
and measurable results after
some time.
The CRC has been operational
since September 1990, and I think it
is fair to say that the results in just
13 years are quite impressive, not
only in terms of international action
and policies as described in the previous paragraph, but also for the
children themselves. Let me briefly
describe some of the improvements
that can directly or indirectly be
attributed to the implementation of
the CRC.
Legal Protection and Child
Participation
In the first reports on the implementation of the CRC now submitted by 175 States, one can find a
wide variety of changes in laws
enacted to strengthen the rights of
children and their legal protection.
There is growing trend-although
not equally present in all States
Parties to recognise the child as a
bearer of rights who should be given
a fair opportunity to express her
views and to participate in decisions
relevant
to
their
school
environment.
At the community level, youth
councils are actively participating in
the development and implementation of programmes and policies.
Regional and national children and
youth parliaments have been
established allowing for a direct
input in the political decision-making process.
It may be true that some to these
and other forms of participation
have a high degree of decoration,
tokenism, or symbolism, but it is
also clear from recent developments
that authentic child participation is
growing at the local, national, and
international level. This has been
most recently illustrated by strong
child participation to the Special
Session on Children of the UN
General Assembly.
In many States Parties, legal pro-
visions for the protection of especially vulnerable children have been
improved.
This happened by
increasing the minimum age for
child labor through the introduction
of more severe penalties and extraterritorial jurisdiction in cases of
commercial sexual exploitation and
trafficking.
Many legal and other measures
have been taken to prevent and combat abuse of children in the family
and in care institutions, including,
inter alia, rules for child sensitive
interviewing by well-trained professionals of victims of child abuse.
The protection of girls from various
forms
of
discrimination
has
improved via legal and other
measures in quite a number of
States Parties.
Many States Parties have changed
or are in the process of changing
their laws on juvenile justice in
order to better protect juveniles suspected of having committed crimes
throughout the prosecution process,
including at the pre-trial detention
stage, trial itself, and execution of
sanctions stage with a growing preference for non-punitive alternatives
for traditional custodial sentences.
But all these improvements of the
rights of the child and his/her legal
protection are not always implemented and sometimes even violated. The child therefore needs easy
access to effective remedies.
It is encouraging to note that more
and more children are being given a
possibility to file complaints in case
of violation of their rights, either via
specially created procedures (for
example, the limited opportunities
for children in institutions) or more
generally via independent institutions for the monitoring of children’s
rights implementation like child
commissioners
or
children’s
ombudsperson.
There are a growing number of
these institutions, particularly in
Europe, as well as in other parts of
the world.
18 combat law
 April - May 2004
Improvements in Health
Care, Education and
Special Protection
The improvements made during
the first decade of the CRC’s implementation (1990-2000) can also be
presented in concrete figures and
statistics. Keep in mind that factors
other than the CRC, in particular
the International Plan of Action of
the WSC in 1990, have contributed
to these improvements. While these
improvements are perhaps not as
good as one may want, they are
never the less considerable. Here
are a few examples:
 The mortality rate of children
under 5 years of age went down
from 94 (1990) to 81 (2000) per
1000 live births;
 The children suffering from
malnutrition, as measured by
stunting or underweightness
decreased from 177 million in
1990 to 149 million in 2000,
with about two-third of them
living in Asia.
 Polio has been eradicated in
more more than 175 countries.
 Sustained routine immunization (three doses of combined
diptheria/pertussis/tetanus vaccine, DTP3) has reached a coverage of 75%.
 The reported incidences of
measles have declined by nearly
two thirds.
 Deaths due to diarrhoea have
been reduced by 505.
 About 72% of households in
developing countries are using
iodised salt (less than 20% in
1990). As a result 90 million
newborns are protected yearly
from significant loss of learning
ability.
 In more than 40 countries, over
70% of the children receive at
least one high dose vitamin A
supplement a year. UNICEF
estimates that, as a result the
death of one million children
has been prevented in the period between 1998-2000.
child rights
Access to safe drinking water
and access to proper sanitation
facilities has improved for 816
million and 747 million people
respectively.
 Enrolment in primary education has increased and the global goal set in 1990 at the WSC
(80% enrolment) has been
achieved.

 In 2001, 21 countries reported
that school enrolment and
retention of girls increased (in
South Asia the gender gap in
school enrolment was reduced
by 20%).
From these and other figures it is
clear that the implementation of the
right to the highest attainable standard of health and of the right to
free and compulsory primary education
has
made
considerable
progress. But still a lot remains to
be done (see The Challenges);
In the period 2000-2001 more than
1000 working children and almost
30,000 parents have benefited from
the ILO-IPEC programmes.
Thousands of child soldiers have
been demobilised thanks to actions
by UNICEF and those supported by
other UN agencies and NGO’s. For
instance, 2,400 in Angola, 2,600 in
the Democratic Republic of Congo
(Plan of Action 2002), 6821 in Sierra
Leone (since October 1999) and
3,351 in Sudan, since February
2001. Education, psycho-social, and
medical support was provided to the
thousands of child victims of armed
conflicts.
Improvements can also be recorded in the area of special protection
although they are still very moderate given the magnitude of the problems (see The Challenges); they are
clearly less impressive than in the
areas of health and education.

The Challenges: What To
Do?
Despite the achievements mentioned in the previous paragraph,
the world is not yet a place fit for far
too many children. Some facts to
illustrate this;
 600 million children have to
live, that is to be fed, clothed,
housed, and educated with less
than $1 US per day. Even in the
richest countries of the world,
one in every six children (about
47 million) live under the
national poverty line.
 21 million children aged 5-14
are engaged in some form of
economic activity, and 186
million of them are engaged in
the worst forms of child labor
with the same applying for
almost 60 million children age
15-17 years.
 About 110 million of those
working children of primary
education age do not receive
any education at all.
 About 11 million children die
every year of preventable diseases, that is about 20,000 per
day, a fact that goes without
any
media
attention.
 At the end of 2001, there were
2.7 million children under 15
years living with HIV/AIDS. In
that year, 800,000 children
under 15 years were newly
infected with HIV and 580,000
children of that age group died
of AIDS. The number of African
children who had lost their
mother or both parents by the
end of 2000 is estimated at 12.1
million and is forecast to more
than double over the next
decade.
 Polio is still endemic in 20 countries, while less than 50 percent
of children under one year of
age in Sub-Saharan Africa are
immunized against DPT 3. In
more than 15 countries, the
measles vaccination coverage is
less than 50 percent.
 In the past decade two million
children died as a direct result
of armed conflicts and an additional six millions were injured
19 combat law
 April - May 2004
or disabled.
More facts and figures can be presented to show that the world is still
and by far not a place fit for children. Think, for example, of the 11
million refugee children, the many
million child victims of violence and
abuse in their homes, their institutions, their schools, their work
places and the streets. The UN’s
General Assembly – following a recommendation
of
the
CRC
Committee-decided to request that
the Secretary General conduct an in
depth international study with the
support of a secretariat established
by UNICEF, the WHO, and the
OHCHR.
From the above listed and many
other overwhelming problems it
is clear that the international
community faces many challenges in
its attempt to implement the
CRC and make the world fit for
children.
The problems seem to be almost
insurmountable, and it may be difficult to decide where to begin, given
the reality that not all problems can
be tackled at the same time. The
traditional opinion is that governments of States Parties need to
make their own choices and set their
own priorities. This is rightly so,
because the problems in the
Netherlands, for example, are quite
different from those in South Africa,
which in turn are different from the
problems in Brazil or Indonesia.
But, the setting of priorities is not
an arbitrary matter, or a lottery.
The goals that the 191 States
Parties have committed themselves
to, are clear and can be found in the
UN Convention on the Rights of the
Child which they ratified voluntarily and wholeheartedly. These goals
are elaborated upon in detail in the
Declarations and International Plan
of Action, A World Fit For Children,
(WFFC) which was adopted unanimously by all members of the UN in
May 2002, including those which
have not yet ratified the CRC. In
child rights
light of these commitments and taking into account national differences, the motto for the next decade
could: “Say what you do and do what
you say.”
The Governments of all 189 United
Nations Member States did say
what they intended to do, not only in
the WFFC, but also in 2000 by
adopting
the
Millennium
Development Goals. They all
pledged to, inter alia:

reduce by half the proportion of
people living on less than a dollar a day by 2015 and reduce by
half the proportion of people
who suffer from hunger by that
same year;

achieve universal primary education and reduce by two thirds
the mortality rate among children under five by 2015
 In their declaration, A World
Fit for Children, the governments of 189 States said;
“We reaffirm our obligation to take
action to promote and protect the
rights of each child-every human
being below the age of 18 years
including adolescents. We are determined to respect the dignity and to
secure the well being of all children.
We acknowledge that the Convention
on the Rights of the Child, the most
universally embraced human rights
treaty in history, and its Optional
Protocols contain a comprehensive
set of international legal standards
for the protection and well being of
children.
The States call on all members of
society to join them in a global movement that will help to build a world
fit for children via upholding their
commitments to the following principles and objectives”
 Put children first
 Eradicate Poverty; invest in
children
 Leave no child behind
 Care for every child

Educate every child

Protect children from harm and
exploitation
Protect children from war
international NGO’s and members
Combat HIV/AIDS
of society like children and parents,
Listen to children and ensure want to build a world fit for children,
their participation
the first priority, in my opinion,
 Protect the earth for children
should be reduction and eradication
These principles and objective are of poverty.
translated in specific goals and
“Chronic poverty remains the sinmeasures that should be included in gle biggest obstacle to meeting the
the Plan of Action. So, since all needs protecting and promoting the
States have said what they intend to rights of children. It must be tackled
do, let us now turn to the question of on all fronts…Children are hardest
whether they are going to do what hit by poverty”. (In the WFFC
they said, and if so, how? It is too Declaration, the 189 States memearly to give an answer to these bers of the UN reaffirmed their vow
questions. The more cynical observ- to break the cycle of poverty within
er may tell you that he has heard a single generation. They are also
similar commitments and promises united in the conviction that investbefore, and a world fit for children ments in children and the realisawas not built then. For example, tion of their rights are among the
with reference to the
most effective ways to
problems
described
eradicate poverty.)
before, the promise
In its efforts to reduce
was made about 30 Attempts to
and eradicate poverty,
years ago that the well
the GMC should remind
developed
countries answer the
States that they have
should allocate 0.7% of question
committed themselves
their Gross Domestic
in
the
Millennium
“What to do?”
Product (GDP) for
Development Goals to
international develop- will not
create a global partnerment assistance to the produce a
ship for development.
developing countries.
This global partnership
By 2003, only 4 coun- magic
should do what the
tries had met this solution,
States said:
promise, and many
Further, develop an
and we have
well developed counopen trading and finantries remain below to accept
cial system that is comeven 50% of that stan- that progress
mitted to good goverdard. The history so far
nance, development and
may not be encourag- most likely
poverty reduction, both
ing and the picture will be
nationally and internamay be bleak, but not
tionally;
completely back. The slow.
Address the special
a c h i e v e m e n t s
needs of the least develdescribed in the previous paragraph oped countries which includes, inter
show that progress has been and can alia, enhanced debt relief for heavily
be made.
indebted poor countries, cancellaAttempts to answer the question tion of official bilateral debt, and
“What to do?” will not produce a more generous official development
magic solution, and we have to assistance (ODA) for countries comaccept that progress most likely will mitted to poverty reduction.
be slow.
In this regard, by the end of the
If the Global Movements for 90’s the 41 most heavily indebted
Children (GMC), the movement of poor countries (HIPC’s) owed about
all States in the world, UN agencies, 205 billion dollars in external debt,



20 combat law
 April - May 2004
child rights
accounting for about 130 percent of
their combined gross national product (GNP). Due, at least partly, to
heavy debt servicing, most of these
countries under-invested in basic
social services making many of goals
set for 2000 unreachable.
Most likely, poverty will also make
many of the goals set for health care,
education,and child protection in the
plan of Action WFFC for 2005 or
2010 unreachable for most, if not all
HIPC’s. The global annual additional cost, (which is in addition to the
$80-$90 billion spent annually for
education), to achieve education for
all in developing countries by 2015
is approximately $9 billion per year.
This represents less than 0.033% of
the world’s GNP and 0.14% of the
combined GNP of developing countries. Poverty may hamper these
kinds of expenditures, but it also
indicates that reduction of poverty
should go hand in hand with changing priorities at the national and
international level. Poverty reduction is not enough; we should also
invest in the children.
Development of a global partnership for development not only
requires the actions mentioned
above, but it also makes it a priority
that all developed countries do meet
the standard for ODA which they set
about 30 years. This ODA should be
increased as a matter of urgency to
the promised 0.7% of the GDP. In
addition, more serious efforts should
be undertaken to achieve the full
implementation of the 20/20 initiative; the commitment of developing
countries to spend 20% of their
national budget to basic social needs
(health care, education, water and
sanitation) and of the developed
countries to match that with 20% of
their ODA.
This requires a reconsideration of
current expenditures, such as
defense spending.
Spending in
developed countries on defense is
about 10 times the money allocated
to ODA.
Poverty reduction and elimination
should be given the highest priority.
However, this does not mean that
States should not try to make as
much progress as possible in achieving the goals set in the WFFC,
including improving protection of
children against commercial sexual
exploitation, abuse in the family,
institutions, and on the streets.
Many things that contribute to
respect for the rights and dignity of
the child can be achieved with little
money. Poverty cannot be used as
an excuse for doing nothing.
Progressing towards.the goals set by
the State Parties themselves require
structures and resources that may
not be immediately available. But
States are nevertheless under the
obligation to undertake as many of
the technical and financial measures as possible via, inter alia, reprioritisation of their expenditures.
Conclusion
All national governments in this
world have committed themselves to
build a world fit for children. In the
Declaration and Plan of Action
unanimously adopted by their representatives in the UN General
Assembly on May 10, 2002 following
a three day Special Session on
Children, they have set out an ambitious programme with many concrete goals, set to be achieved in
either 2005 or 2010.
The biggest challenge of the first
decade of the 21st century is to turn
these commitments into visible and
considerable progress towards
achievement of the goals set. In my
opinion, the reduction and eradication of poverty should be given the
highest priority. This cannot happen without a serious and, in someways, drastic change of the current
priorities at the national and international level. Children’s rights
implementation is not a matter of
charity, but it requires political
choices-sometimes perhaps difficult
ones. The realisation of children’s
21 combat law
 April - May 2004
rights is a matter of politics because
so much more money should be
invested in children. Poverty reduction can help us to do so. A war that
in itself costs already close to $100
billion is not a very promising beginning, but it also shows that, if the
world really wants something, the
money can be provided. In other
words, the Global Movement for
Children governments individually
and collectively, UN agencies,
NGO’s and individual citizens,
should continue to develop and
implement effective actions to generate the necessary money and take
all other measures to build a world
fit for children.
The CRC
Committee – in close collaboration
with the support of UNICEF, other
UN agencies and NGO’s should
strengthen its monitoring of the
implementation of the CRC.
It should remain important that
an international body can regularly
review and examine the activities of
the States to see to what extent they
meet the commitments they agreed
upon by ratification of the CRC and
adoption of the WFFC documents,
as well as providing them with guidance and well targeted recommendations for further action.
Progress in the next decade may
not be as good as we would want and
like. But there is a saying in the
Netherlands: With a lot of perseverance the snail finally could reach
Noah’s Ark. With that Kind of perseverance and with an unfaltering
belief that we can build a world fit
for children, we will make progress
and achieve our goals.
Jaap. E. Doek is the Chairman of
the CRC.
CL
child rights
Bringing Child Rights on the
WSF Agenda
The World Social Forum, Mumbai saw child rights groups form a coalition.
BY KAVITHA KRISHNAMOORTHY
T
he
beginnings
of
CR4WSF(Child Rights
for World Social Forum)
was in the need being
felt in different child
rights quarters for a co-ordinated,
collective presence to ensure that
issues and concerns of children are
prominently reflected in the Fourth
World Social Forum: led to four networks – Campaign Against Child
Labour, Campaign Against Child
Trafficking, India Alliance for Child
Rights and Habitat International
Coalition-Housing and Land Rights
Network – convening a meeting in
August, 2003 in New Delhi. The
meeting stressed the need for a collective forum to work concertedly on
‘mainstreaming’ the child rights
agenda within the WSF.
The lessons from the Asian Social
Forum held in Hyderabad in
January, 2003 further reinforced
this need. While a number of groups
working on children’s issues and
children themselves had participated at the ASF; children’s concerns
remained largely invisible because of
the lack of co-ordination. The connections of children’s rights with the
overall development debate within
the ASF was missing and became
tokenistic as attempts were made to
add children into the different statements and processes.
29 organisations participated in
the meeting and there was an agreement on defining the terms for collectively working together. It was
felt that the platform should be open
to all groups who are opposed to
imperialist globalisation, patriarchy,
militarism, communalism, casteism
and racism - the five central themes
of the WSF. The groups joining this
platform acknowledge that these
forces negatively impact children’s
rights and that children are pushed
into worse forms of poverty, resulting in their exclusion, exploitation
and marginalisation.
The collective forum – which came
to be named - Group on Children’s
Rights in a Globalising World, would
serve as an umbrella for networks,
organisations and alliances of chil-
Preparing for the WSF
The task of enrolling other groups
was identified as critical. By MidJan, 2004, the CR4WSF had grown
to include 85 groups, from different
countries and regions of the world.
Preparatory activities for the WSF
included, amongst others, enrolling
more groups; collecting material
from different organisations for display at the stalls; mobilising school
children from Mumbai along with
children associated with NGOs;
organising press conferences in different cities and developing material
such as a poster, a badge and a position paper.
At the WSF
dren and those working with children to come together, keeping their
own independence, names and identity. The organisations and networks
would be free to engage in activities
independently, in addition to being
part of this collective process.
Keeping each other informed would
forge coordination, avoiding overlap
or duplication.
It was also decided to bid for a Panel
on Children’s Rights ‘Children’s Rights
in a Globalising World - Holding States
and
International
Institutions
Accountable’.
22 combat law
 April - May 2004
CR4WSF brought 50 children
together from Bangladesh, Pakistan,
Afghanistan, Colombia, and the
Philippines and from Tamil Nadu,
Karnataka, Maharashtra, Orissa,
West Bengal, Delhi, Bihar, Uttar
Pradesh and Jharkhand from India.
A two-day process was taken up with
the children’s group with the objective of selecting 10 child representatives for the Panel. The process went
beyond that of selection and showed
in many ways how democratic, fair
and selfless children can be.
Children first made small presentations on the child rights situation
in their own village, city, state and/
or country. The group then prioritised the agenda that needed to be
represented in the Panel, select a
representative for each theme.
Where there was limited representation – either on the theme – such as
disability or by country – such as the
Phillipines, selection was easy.
Where there were more number of
children who wanted to speak on cer-
child rights
tain issues such as child participation, child labour, education, street
children and gender discrimination,
making a choice was tougher. And it
is here that children showed their
maturity.
On being made aware, for example,
that there were many more boys
than girls in the group that was discussing the representative for child
participation, all the boys withdrew
and helped in selecting one of the
girls to represent them. In another
instance, the group decided to select
a child who had never before made a
public statement, believing that he
too needed to be given an
opportunity.
Children also showed a lot of
curiosity about the situation in others places. The Afghan child, for
instance, asked his Bangladeshi
counterpart,
“I know the war that has been ongoing for almost 23 years has torn our
country but what is the reason for the
situation in Bangladesh being so
bad?”
Having heard of the discrimination
against women and girls in
Afghanistan, a Mumbai based child
asked the Afghan child how girls
manage to go to school.
The Panel
The morning of the 18 th saw Hall
2 brimming with barely suppressed
excitement. Children of the world
took over center-stage at the WSF,
winning the solidarity of the 2004
Forum as they voiced their hopes
and demands at the WSF’s first ever
panel conference dedicated to children’s rights in a globalising world.
As the joint organisers (CR4WSF
and the Global Movement for
Children, Convening Committee) of
a
Panel
discussion
entitled
‘Children’s Rights in a Globalising
World: Making the World Fit for All
Children. Who is responsible? Who is
accountable?’, went about attending
to logistical details; groups of children came in – some dancing, some
singing, some shouting slogans,
some on wheel chairs, clapping at
the rhythm. All asking for children’s
rights to be promoted and fulfilled all
over the world.
Over 4000 people – mostly children, filled the hall and listened
intently to the views of ten child
speakers supported by nine adults.
The biggest impact was made by the
children who spoke. Urvi Patel, a
child with disability, spoke of how
happy she was on knowing that she
would be moved from a special school
to a school that had children with
disabilities along with all other children. Many eyes were wet with tears
when she spoke of how she too wanted to become ‘somebody – a scientist’
and how she draws inspiration from
Stephen Hawking.
Bryan from Columbia, testified
about how abandoned children face
the risks of being kidnapped by drug
dealers. He implored the adults to
put in practice the Convention on the
Rights of the Child.
“Our only hope is the law and most
of the time that’s not enough”, he
complained. Cleonante Capiloyan of
the Philippines roused the gathering
with a call for unified action. The
alternate other world sought by the
WSF can be built only with the participation of children, he stressed.
Amongst the adult speakers,
Rogate Mshana, economist from
Tanzania, noted how globalisation of
the market oriented economy is a
threat to human rights, increasing
the exploitation of children and taking them away from schools. Asma
Jehangir and child delegate Sana
were strong Pakistani voices calling
for peace, respect and dialogue.
Miloon
Kothari,
UN
Special
Rapporteur on the right to adequate
housing, spoke about inadequate
housing as the one reality that
threatens even the most developed
countries in the world. Shantha
Sinha, Magsaysay Awardee of 2003,
for Education and Elimination of
Child Labour spoke of how millions
23 combat law
 April - May 2004
of children are working instead of
attending school and called for quality education for all children.
Vittorio Agneletto, AIDS campaigner, noted how ninety five per
cent of children with HIV do not
have access to any treatment. He
blamed this situation on policy that
prioritises the market above the people. Moema Miranda, Convenor of
the WSF Content Commission,
believes that the internationalisation of the forum allowed for the very
important issue of child rights to be
introduced for the first time in the
WSF and in a very original way.
“Everyone has their own voice to raise
and there is no point in speaking on
behalf of the children”, she said
adding that the WSF will look forward to hearing children’s voices in
the future too. Miguel de Paladella
from the Global Movement for
Children, said that the right strategy
to address all these problems is precisely the one followed in this year’s
forum: to allow the children to be the
main actors, speaking on their own
lives.
Other testimonies of children such
as Zekairya from Afghanistan,
Rabaya Akhter from Bangladesh
and Sharda Suvankar, Rajesh,
Kamal Sharma, Ranjit Kumar and
Shivalik from India drove home the
critical centrality of child rights on
the agenda for development and justice. Now on the WSF agenda, the
issue of children underlines not only
the problem that neo-liberal globalisation causes, but also the urgency of
solving them.
Workshops
Workshops on themes such as
Children in Conflict with Law; Early
Child
Care
and
Education;
Homelessness, Forced Evictions and
Displacement;
Globalisation,
Liberalisation, Privatisation, and
Child Labour; Child Participation;
Reform in Education; Globalisation
and Child Trafficking; issues of
Disabled Children and Child Sexual
child rights
Abuse were held by different member organisations of the CR4WSF.
These smaller workshops and programmes had the participation of
non-child rights people. All of them
were well attended, beyond the numbers anticipated. Being smaller, the
interactions were more intense and
focused on content. Some of the
workshops were designed as children’s spaces and therefore gave a
lot of scope for children to speak,
share and participate.
Child Rights Day at the
WSF
20th January, 2004 was celebrated
as Child Rights Day at the WSF. A
mix of recreational activities for children and cultural programmes for
children and adults performed by
children and adults was held. Stage
performance – skits by school children on child labour; recreational
and artistic corners; demonstration
on the malkhamb pole, Warli painting on clay pots, was organised. The
events helped to take the message of
Child Rights out of seminar rooms,
making it more accessible to the
general public.
The CR4WSF Stall
5 stalls were booked for the
CR4WSF. While four stalls had
information on child rights (covering
issues such as gender discrimination, child labour etc.); one stall
served as the Secretariat. The activities of the CR4WSF spilled into the
space outside the stalls, with meetings, serving lunch to children and
much coordination happening there.
The huge cut-out of the CR4WSF
logo helped in creating a very visible
identity.
Child Rights Day at IYC
100 excited children – some who
were participating in the CR4WSF
events, and others from residential
care institutions in Mumbai – along
with volunteers headed for Matunga
Don Bosco grounds, the venue for the
Intercontinental Youth Camp (IYC)
on 19th January, 2004 to celebrate
Child Rights Day. The children first
rallied around the Youth Camp
venue, carrying placards and shouting slogans on child rights. Several
recreational activities were organised and facilitated by Magic Bus
and Play for Peace. The children participated in 4 special workshops on
themes such as the Young at Risk,
Child Sexual Abuse, Adolescent
Children and Sexuality, Education
and Competence and the Right to
Play. Streetplays, dramas and film
screenings on child issues were also
organised. At the end of the day, the
children expressed their feelings on
the day’s events and learnings
through colourful paintings on a section of the wall, exclusively given to
them.
Children’s publications
Children were involved in bringing
out material, which enabled others
to see the WSF from their viewpoint.
Children from the National Child
Journalist Forum designed a
Walking Newspaper. Children wore
huge placards with WSF news items
listed on them and spoke to people
on how they saw the happenings at
the WSF. On the Child Rights Day,
children from Bhima Sangha,
National Child Journalist Forum
and the Delhi Child Rights Club
brought out a broadsheet in Hindi,
Kannada and English that documented their impressions of different
Panels and workshops, supplemented by their colourful drawings.
Reflections post WSF
Through the processes of the
CR4WSF, for probably the first time,
deep links were made with other
social movements, who began to see
their issues from the child rights
viewpoint. Discussions on homelessness and displacement brought perspectives from the Narmada Bachao
Andolan as well as highlighted the
issue of Bhutanese and Tibetan
24 combat law
 April - May 2004
refugee children. Connections were
made with the civil and political
rights movements with the discussions on the impact of conflict and
State violence on children. Links
were made with the women’s movement over discussion on gender discrimination and the situation of the
girl child.
Even within the child rights movement, the CR4WSF was instrumental in building alliances across
organisations working with children
with differing ideologies and
approaches. The agreement on the
‘minimum common position’ – that of
the opposition to the neo-liberal
forces – made it possible for different
groups to work together.
It is this bringing together of
diverse movements and infusing
fresh perspectives that strengthen
the belief that a platform such as the
World Social Forum is both necessary and critical.
The CR4WSF has been able to
establish children’s rights in the
WSF agenda and give visibility to
children’s issues. There is now a
need to deepen our understanding of
the connections between the issues
of debt, globalisation and children
and exchange learnings on alternatives. There is also a need to build on
the links established with other
coalitions and social movements and
bring the voices of children into their
programmes and processes.
For more information contact:
CR4WSF secretariat
C/o YUVA,
53/52, Nare Park Municipal
School,
Opp. Nare Park grounds,
Parel (East),
Mumbai – 400012
Tel.: 91-22-24116393 / 24116394 /
24153498 / 24155250
Email: [email protected]
CL
child rights
Holding Governments
Accountable
BY RITA VOHRA
W
hy and how to
ensure critical
engagement with
the institutions
of governance on
behalf of the 392 million children of
India, constituting 40% of the population of this country, from the child
rights perspective? Can governmental institutions and elected representatives be held accountable? After all
a child does not have a political face.
Children have no way of directly
articulating their rights and entitlements leave alone questioning the
gaps between rhetoric and reality.
They have no control over the
resources in relation to their different needs. And yet in any democracy,
it is critical to hold governments
accountable for what they have or
have not done for their citizens.
The
state’s
responsibilities
emanate from the rights approach
(e.g.,
Fundamental
Right
of
Elementary Education) as well as
the functional approach (security
from hunger and starvation, equal
opportunity for all, etc.). How is the
state performing its role? How to
hold it accountable? One way would
be to monitor its budget. Budgets are
a reflection of a government’s political commitments. The parliament
deliberates and passes the budget
but how to find out whether there
has been any trade-offs within the
social sector given the pressures of
globalisation and privatisation? Is it
that the child component of the
budget also forms one of the soft
areas that is getting sacrificed?
This is what HAQ: Centre for Child
Rights has been attempting to do the
last four years and it has found some
of its assumptions to be correct and
meaningful. What prompted HAQ to
take action? Why does HAQ believe
that engagement with institutions of
governance is the right step in the
direction of achieving children’s
rights? Indeed HAQ’s attempts have
been to explore methodologies that
will enable child rights activists and
perhaps children themselves to monitor planning and implementation,
and may be also ask some questions
of the government.
As one goes deeper into the need
for giving voice to child rights, one
realises the importance of governmental intervention in ensuring it.
But, it is also well understood by now
that human rights of children are
easily overlooked and violated. This
takes place in every strata of society
though this is not to deny that poverty is a compounding factor even
while the questions of their health,
education, development and protection are being addressed through different governmental schemes.
The budget of any country is not
merely an economic document. It is
an indicator of its priorities and
intent and the state’s role in socioeconomic development. The budget
is an estimate of the resources that
will be available during the financial
year and the object for which the
resources will be spent. It is however, not merely a statement of estimated receipts and expenditure; it is
the annual financial plan, a vital tool
for not only meeting the administrative needs but also for securing public socio-economic goals. Budget for
children is not a separate budget. It
is merely an attempt to disaggregate
from the over all allocations made,
those made specifically for programmes that benefit children. This
enables us to assess how far the policy and programme commitments
25 combat law
 April - May 2004
are translated into financial commitments. This would also indicate
political commitment of the government towards its young citizens.
India had presented its report to
the UN Committee on the Rights of
the Child. This report was submitted on 19 March 1997. Based on the
presentations made by the government and the NGOs, the Committee
made its concluding observations.
Time and again the Committee has
stressed on the need for the state
party to take all necessary measures, including allocation of the
required resources (i.e., human and
financial) and ensure appropriate
distribution of resources at the central, state and local levels, and
where needed, within the framework of international cooperation. It
felt that the state party should
develop ways to establish a systematic assessment of the impact of
budgetary allocations on implementation of child rights and to collect
and disseminate information in
this regard. India presented its second report (First Periodic Report
2001) to the Committee, and it came
up for review on 21 January 2004.
The Committee once again reiterated its concerns regarding budgets
for children in its Concluding
Observations (CRC/C/15/Add.2.28.
30 January 2004)
With the worsening of income distribution due to globalisation and a
greater move towards privatisation
of basic services such as health, education, the shrinking of the public
sector, it has to be emphasised that it
is the primary responsibility of the
state to allocate resources for ensuring protection of child rights. As per
Article 4 of CRC the States Parties
are the duty bearers. The state commands hold over resources, directly
child rights
The Committee recommends that
the State party:
(a) Make every effort to increase the proportion of the budget allocated to the realization
of children’s rights to the “maximum extent … of available resources” and, in this context,
to ensure the provision, including through international cooperation, of appropriate
human resources and to guarantee that the implementation of policies relating to social
services provided to children remain a priority; and
(b) Develop ways to assess the impact of budgetary allocations on the implementation of
children’s rights, and to collect and disseminate information in this regard.
Concluding Observations, India
Committee on The Rights of The Child, Thirty-fifth Session
and indirectly, which by itself puts
responsibility to allocate them for
such purpose.
Initial exercises and studies carried out by HAQ: Centre for Child
Rights on child budget have been
very rewarding. They have proved to
be a significant step for engaging in
process of governance because the
necessary information and data have
been made available to the stakeholders. The state and the activist
groups involved in advocacy for child
rights need this data and analysis to
understand the budgetary trade-offs
and governmental constraints. It is
important not only for the civil society groups for purposes of advocacy
but also for the policy makers, implementers and legislators. Therefore,
it is
significant
that the
Department of Women and Child
Development invited HAQ last year
to several meetings and consultations for making presentations on its
budget work. Initially our presentations fed into government’s preparations for a gender budget analysis
and subsequently, the Department
adopted the concept as well as the
methodology in its work on children’s
budget. For the first time in India’s
history the Department of Women
and Child Development undertook a
child budgeting exercise drawing
upon HAQ’s work. The chapter on
Child Budget in the Annual Report
of the Department for Women and
Child Development, Ministry of
Human Resources Development,
2002-2003 says, “A pioneering effort
was made by HAQ: Centre for Child
Rights, in their publication ‘India’s
Children and the Union Budget’.”
Realising that any meaningful
analysis of child budgets cannot be
confined to the Union Government
only, HAQ is currently engaged in
analysis of state budgets in Andhra
Pradesh, Orissa and Himachal
Pradesh in partnership with M.V.
Foundation (Hyderabad), Open
Learning Systems (Bhubaneswar)
and Himachal Pradesh Voluntary
Health Association (Shimla).
However, having undertaken the
first step of monitoring and
analysing the budget brings us to the
next set of questions. Who would
help identify the reasons for the
gaps and the child service delivery
areas that need strengthening? Is it
a matter of good governance alone?
Can it be left to the parliament and
the state legislatures alone or is
there any role for the civil society
and advocacy groups? Monitoring
and pointing out the gaps are equally important, but perhaps new partnerships are required.
After all, every year, thrice a year
the people’s representatives in
Parliament discuss, debate, deliberate and make decisions on behalf of
over a billion citizens of India. These
are the same people who also represent the children of this country.
Every election, these elected representatives come to us and make lofty
promises—some they fulfil, most
remain simply that—a promise, only
to be reiterated in the next elections,
26 combat law
 April - May 2004
or discarded in favour of a new one.
With a broader understanding of
governance the role and responsibility of civil society groups can be easily discerned. Union budget is discussed, debated and deliberated
upon, before being passed by the parliament, the key institution of governance and the guardian of Indian
parliamentary democracy. Indeed, it
is the Legislature that too needs to
be monitored and addressed and the
legisislators held accountable.
Therefore, HAQ felt it imperative
to look at the actual concerns of the
MPs as far as children are concerned. Do they represent the interests of ALL children of this country?
What are the issues, which have
compelled them to be raised and discussed? Do they have any sustained
interest and requisite commitment
to follow up the issues raised by
them? It not only helps in identifying
the trends and pressing concerns of
the nation but also those childfriendly MPs who could be banked
upon for raising Child Rights’ issues.
For purposes of advocacy it is necessary to find allies in all the relevant
areas of governance. Over the last
one year, apart from Child budget,
HAQ has also been looking at the
parliament questions and debates.
It is one of the findings of HAQ that
the source of the question is mostly
the media, particularly the print
media. There is a two-fold implication of this fact. The media has to be
made conscious of its role of raising
critical issues and reporting responsibly. The parliamentarians also
need to be provided with important
information, since they seem to be
wanting in their ‘home work’.
Therein comes the role of civil society groups like, HAQ, which need to
intervene and provide them with
necessary information and the background material that emerges from
their analysis.
In any case, in the new understanding of governance, in a democratic society it is citizens’ and civil
child rights
society groups’ responsibility to
engage in a wide range of ways be it
political, social or administrative
structure of a society.
Good governance is no longer
equated with “sound development
management” that is, “the manner in
which power is exercised in the management of a country’s economic and
social resources for development”
only. The key aspects of governance
so understood were public sector
management, accountability, a legal
framework and information. In this
understanding ‘politics’ or the many
ways in which democratic citizens
determine the shape of their societies were not taken into account.
The UNDP account of governance
adopted in 2000, defines governance
as “the exercise of political, economic
and administrative authority to
manage a country’s affairs. It comprises of the mechanisms, processes
and institutions through which citizens and groups articulate their
interests, exercise their legal rights,
meet their obligations and mediate
their
differences.”
(Martha
Nussbaum in UNDP, Essays on
Gender and Governance, 2003, p.4)
This definition suggests that a study
of governance must include not only
economic management but also political participation very generally –
and participation in both formal
institutions of the state and the
informal groups, movements and
institutions of civil society.
In a democratic country like India,
civil society groups’ monitoring of
what the government spends on
children would lend a strong and
effective voice to the children who
cannot vote, lobby or speak out for
themselves.
Thus monitoring and scrutinising
all the union and state budgets as
well as the questions asked by our
legislatures could go a long way in
participating in governance and
making reliable data available on
the priorities of the government as
reflected in its actual expenditure
and justifications thereof. It has
tremendous potential as attention
can be drawn to areas that need
emphasis and focus.
Rita Vohra is the Programme Coordinator,
Children
and
Governance, HAQ: Centre for Child
Rights NewDelhi working towards
the recognition, promotion and protection of all children.
CL
Sexual Exploitation Of Children
BY APARNA BHAT
A
study conducted by the
United
Nations
Population Fund says
that there are an estimated 4 million women
and girls who are trafficked. Today,
unfortunately,
trafficking
has
become an international industry,
perhaps even stronger than the narcotics. Traffickers use modern and
innovative methods to change their
pattern and to circumvent the law
while the legal system sticks to its
archaic ways.
The manner in which cases of trafficking are handled, coupled with
simple numbers that indicate the
rise in the number of children being
trafficked, reflects that we are
leagues behind the powerful network
of traffickers. We will continue to lag
behind if the enforcement of the
cases is handled in the current
bureaucratic manner where it takes
days to register a simple case against
the trafficker. The State machinery
incharge of the prosecution rarely co- of the extensions of the commercial
operates and refuses to be proactive sexual exploitation of children in the
about the rights of the victim. globalised world. These forms are a
Invariably, the arrests are made only significant departure from traditionof the brothel owner, while the entire al child prostitution in identified
network of players is ignored. The brothels.
victims are “rescued” and kept in
However, the victims who are
government homes. Thereafter they forced or cheated into prostitution
are “rehabilitated” which means, remain the same. These are largely
quiet simply, that their parents are helpless, illiterate, uneducated,
located and the girls sent back to young, unexposed, persons who come
the parents. The victims then have a from a disadvantaged socio economic
choice between hostile
background, have a
parents and seemingly
deprived personal life,
welcoming
brothel
and have landed up in
owners.
prostitution in their
Prostitution
has Prostitution
search
for
better
departed from the tradi- has
prospects. As depicted
tional ways that it was
by Prerana, a Mumbaionce
understood. departed
baed NGO, “they are
“Friendship clubs”, ear- from the
the victims of criminal
marked bars, escort
conspiracy, cheating,
traditional
services and many more
deception,
and
new
forms
have ways that
coercion.”
emerged. Child pornog- it was
One of the most
raphy, sex tourism,
shocking developments
friendship centers, mas- once
in the recent years is
sage parlours are some understood.
the fact that the mini-
27 combat law
 April - May 2004
child rights
mum age of the girls
“Unlike in the past neiwho are being trafther the trafficking of
ficked today is fast
the victim nor its
decreasing. At any The technology exploitation by the
given point in time a of the
clients needs the sanctisurvey of the victims of
ty of any social custom
flesh trade
the prostitution would
like Devadasi or such
indicate that as many is
other variants of temple
as 60% of them are rapidly
based prostitution any
inducted into the trade
more. Devadasi form a
as children. Many of changing
small segment among
these children are ini- but the
the victims in today’s
tially inducted into
flesh markets.
The
old technology market is highly differ“legitimate” domestic
work and then drawn continues
entiated from the street
into prostitution. Quite
market to the up marside by side.
a few of them are kidket, the client is varied
napped and brought
from the corporate boss
into prostitution, purto the wage labourer.
chased by traffickers from the parThe sites of exploitation show a
ents or sent willingly by parents broad range from the dark and
under the garb of social custom.
deserted public urinals to the glitterA shocking trend has been recorded ing star hotels and luxurious beach
by Prerana, a Mumbai-based NGO resorts including a variety of masin their book “In Search of a New sage parlours. There is a process of
Legislation against Trafficking and procuration, stocking, transiting,
Commercial Sexual Exploitation”. sorting, grading, porting, labelling,
Problems with the Immoral Trafficking (Prevention) Act.

Does not define trafficking;

Departs from the accepted definition of child;o
Criminalises victims;

Has no rationale for the punishments; (Section 8)

Criminalises children of prostitutes; (section 4)

Does not make mandatory provisions for setting up of special institutions. (special courts, special police, special
homes etc.)

The definition of corrective homes need to be changed. If
section 2 (b) is read with 2(g), this home may be construed
to include prisons. The concept of corrective homes is different from incarceration which are primarily penal detention
centers. Corrective homes should focus on rehabilitation to
the victims.

There is no rationale behind section 10-A. It treats the victim
as a criminal without assigning reasons; the aspect of
issuance of licence under sub-section (3) is very vague; it
seeks to regulate the victim's life although it does not provide any rehabilitative assistance;

Section 15 gives large powers to the police. Keeping in mind
the manner in which the Act has been used so far, there is a
need to review police's powers;

Section 17 in the present format must go as it authorizes
police to keep in custody for upto 10 days persons rescued
which can be dangerous and is against the standard practices of the criminal justice system; it also seeks to place a
victim in the hands of strangers who may not be suitable to
take care of the victim and may in all probability be responsible to the victim's current status;
28 combat law
wrapping and advertising of the victims mostly the children and young
women. Reports from the beach
based tourism joints confirm the
growing number of young boys as
victims of commercial sexual
exploitation and trafficking. The
technology of the flesh trade is rapidly changing but the old technology
continues side by side. The age old
creepy pimp wading through crowded lanes in and around the red light
areas whispering his unholy offers
continues to sell girls. He is now
joined by a high tech IT professional
running pornographic websites,
operating telephone lines, chat lines
and internet to reach out to the
prospective client. He is spending
long patient hours on chats lines like
a predator preying on his prospective
victims mostly innocent teenagers.
The sex trade has grown enormously not only in India. It reflects
a global trend. Reports of large scale
trafficking of children and young
women mainly for flesh trade are
SUGGESTIONS.

Must define trafficking;

Re-define child as per the definition of the Juvenile Justice
(care and protection) Act, 2000;

All rescued women and children must be treated as victims
of the crime and must be rehabilitated;

Children of prostitutes must get special protection. There
has to be a proviso to section 4 which will provide for the
same.

The punishments under the Act has to incorporate aspects
from the Indian Penal Code. The offences are as serious as
rape and abetment to multiple rapes. However, the punishments are very mild;

Keeping in mind the new trends in commercial sexual trade,
the Act has to incorporate larger aspects in prostitution itself
instead of confining to the brothels;

The Act provides for constitution of special courts and summary trials. However, it does not prescribe procedures.
Keeping in mind the powerful network of traffickers, it is
important that the Act provides for victim protection and adequate mechanisms of depositions of the victims;

On the whole, the Act seems like a half baked attempt at
prosecution and rehabilitation of the victim but without adequately providing for neither. It has to strengthen its institutions, create proper mechanisms and dedicate some money
for the better rehabilitation of the victims

All offences must be made non-bailable;
 April - May 2004
child rights
S.No
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Union Territories
26
27
28
29
30
31
32
33
Cities
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
States
Incidence of I.T (P) Act, 1956
Arunachal Pradesh
Assam
Bihar
Goa
Gujarat
Haryana
Himachal Pradesh
J&K
0
17
9
28
47
13
1
2
Kerala
Madhya Pradesh
Maharashtra
Manipur
Meghalaya
Mizoram
Nagaland
Orissa
Punjab
Rajasthan
Sikkim
Tamil Nadu
Tripura
Uttar Pradesh
West Bengal
Total States
92
23
160
0
0
2
1
17
26
110
0
6950
0
30
49
9367
A & N Islands
Chandigarh
D & N Haveli
Daman & Diu
Delhi
Lakshadeep
Pondicherry
Total Uts
Total All India
0
6
0
0
94
0
48
148
9515
0
0
0
0
0
0
0
0
Ahmedabad
Bangalore
Bhopal
Chennnai
Coimbatore
Delhi (City)
Hyderabad
Indore
Jaipur
Kanpur
Kochi
Kolkata
Lucknow
Ludhiana
Madurai
Mumbai
Nagpur
Patna
Pune
Surat
Vadodara
Varanasi
Vishakhapatnam
4
332
2
3658
147
94
20
2
10
0
5
43
3
6
198
117
4
3
5
36
0
3
20
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
33
0
0
0
0
0
Source: Crime in India-2000, NCRB, Ministry of Home Affairs
29 combat law
 April - May 2004
Incidence of Importation of
girls
0
0
0
40
0
0
0
0
0
0
0
4
0
0
0
0
0
0
0
0
0
7
0
0
0
64
child rights
Cases of crime against children under sections 366A, 372 and 373, Indian
Penal Code, 1860.
S.No.
States
Incidence of procuration
Incidence of selling girls
Incidence of buying girls
of min or girls
for prostitution
for prostitution
1
Andhra Pradesh
2
3
0
2
Arunachal Pradesh
1
0
0
3
Assam
21
1
1
4
Bihar
27
1
0
5
Goa
1
0
0
6
Gujarat
19
0
0
7
Haryana
1
0
43
8
Himachal Pradesh
0
0
0
9
J&K
0
0
0
10
Karnataka
7
0
0
11
Kerala
9
0
3
12
Madhya Pradesh
24
1
0
13
Maharashtra
24
5
1
14
Manipur
0
0
0
15
Meghalaya
0
0
0
16
Mizoram
0
0
0
17
Nagaland
0
0
0
18
Orissa
4
0
0
19
Punjab
0
0
0
20
Rajasthan
0
0
0
21
Sikkim
1
0
0
22
Tamil Nadu
0
0
0
23
Tripura
0
0
0
24
Uttar Pradesh
0
0
0
25
West Bengal
4
4
5
Total States
145
15
`53
Union Territories
26
A & N Islands
0
0
0
27
Chandigarh
1
0
0
28
D & N Haveli
0
0
0
29
Daman & Diu
0
0
0
30
Delhi
1
0
0
31
Lakshadweep
0
0
0
32
Pondicherry
0
0
0
Total Uts
2
0
0
Total All India
147
15
53
[Source: Crime in India-2000, NCRB, Ministry of Home Affairs, Pg 217-extracts from table 30]
pouring from all continents at an
alarming rate. Nevertheless, there
is a yet another exploitative
trend that reinforces the established
international structure of exploita-
tion i.e. the overwhelming majority
of the victims are from the developing nations.”
The
Immoral
Trafficking
(Prevention) Act (ITPA), 1956 is
30 combat law
 April - May 2004
unable to address the new forms
that prostitution and child prostitution have taken. Besides the fact
that it does not even define trafficking, the Act ignores the victim
child rights
CRIME AGAINST CHILDREN, INDIA 1996-2000
Sl.No.
1.
2.
3
4
5
6
7
8
9
10
Crime Head
Child Rape
Kidnapping & Abduction
Procuration of minor girls
Selling of girls for prostitution
Buying of girls for prostitution
Abetment of Suicide
Exposure and Abandonment
Infanticide
Foeticide
Child Marriage Restraint Act
Total
Years
1996
4083
571
94
6
22
11
554
113
39
89
5582
1997
4414
620
87
9
13
13
582
107
57
78
5980
1998
4153
699
171
11
13
28
575
114
62
56
5882
1999
3153
791
172
13
5
24
593
87
61
58
4957
2000
3132
711
147
15
53
18
660
104
91
92
5023
Percentage Variation
2000 over 1996
-23.3.
24.5.
56.4
150.0
140.9
63.6
19.1
-8.8
133.3
3.4
-10.0
2000 over 1999
-0.7
-10.1
-14.5
-15.3
960
-251
11.2
19.5
49.2
58.6
1.3
[Source: Crime in India-2000, NCRB, Ministry of Home Affairs pg 211- extracts from Table 6.1]
completely and does not give any
benefit to children who are victims.
It distinguishes between child and a
minor even when the definition of a
girl child when the amendment came
into force (1986), was a child upto
the age of 18 years under the
1986 JJ Act.
One of the primary problems with
the Act is that it makes prostitution
as the only form of trafficking. This
is deficient by itself. It also suffers
from not drawing from other penal
statutes like the Indian Penal Code.
This leads to confusion within the
implementing agencies.
Prostitution after having been
made illegal, ought to be categorised
as offences like rape, assault, wrongful confinement, abduction, threat
etc. Unfortunately, this does not
happen and traffickers get away
with simple punishments.
Studies have shown that prosecution is extremely superficial as the
only people perhaps prosecuted
besides the victim are the women
who run the brothels. All other players like the pimps, touts, middleman
and the primary traffickers who are
important elements in this huge illegal network are not touched by the
prosecution.
In almost all the cases the accused
invariably get bail. The Sessions
judge dealing with the case does not
question the nuances and the tricks
used by the traffickers. It is impor-
tant at this stage to understand the
manner in which the law works and
its limitations.
As a matter of practice when a
young girl is rescued from a brothel
or from any form of prostitution, she
has to be treated as a victim of the
crime and if she is a child as defined
under the Juvenile Justice Care and
Protection Act, 2000. She has to be
produced before the Child Welfare
Committee as a child in need of care
and protection. The Committee
thereafter is under a statutory obligation to ensure that the girl gets
properly rehabilitated.
However, it is being heard from
many corners that brothel owners
and the club owners are strongly lobbying to convert this into a crime and
then to treat the girls as children in
conflict with the law. This will mean
that they will be produced before the
Juvenile Justice Board. The format
of the Juvenile Justice Care and
Protection Act, 2000 entitles them to
a bail as a matter of right. This
entails that the girls are back into
the trade in a matter of two days
thereby defeating the whole purpose
of rescue. It is extremely important
that these methods adopted by the
traffickers are looked at and a legislation which is fully comprehensive
be brought in.
This legislation should have real
teeth. It should prosecute the actual
offenders and rehabilitate the victims.
31 combat law
 April - May 2004
Problems with the
Implementation Machinery
Everybody in unison agree that
there is a need to urgently change
the trafficking legislation. However,
not much thought has been put into
the actual implementation of the
law. The best of legislation will be
useless if the implementing machinery is not strengthened and are not
sensitised about the use of the law.
It is not enough to target just the
police for sensitisation. It is important that prosecutors and judges
are also introduced to modern developments in the conduct of trials and
encourage them to use it in trials
relating to rape and commercial sexual exploitation. In order to achieve
this, the format of the criminal justice system has to change. It has to
depart from its present approach of
prosecution of the offenders alone, to
a system where overall justice is rendered to the victim. This will essentially mean that the victim gets a
right to participate in the trial with
the same rights as of the accused. In
the current system, the victim, if she
is lucky, gets a copy of the First
Information Report.
In a case relating to the mass rescue of victims from the red light area
of Delhi, when the victims’ lawyer
made an application to the Sessions
Judge to record the evidence through
video conferencing, her locus standi
to move the application was ques-
child rights
tioned by the Prosecutor. It is a referred to a larger bench.
shocking state of affairs with the
Shakti Vahini v Union of India
prosecutors
treating
victims
This Petition has been filed chaland their lawyers as adversarials lenging
the
actions
of
the
when they are supposed to be repre- Respondents (Union of India and difsenting them.
ferent States) that have resulted in
A third aspect in any trial relating the failure to protect the rights and
to offences under ITPA is the man- interests of victims of trafficking. In
ner in which custody of
1998 the Ministry of
the victims are routineHuman
Resource
ly given to anybody who
Development, following
claim to be the parent of
the direction given by
Methods
the victim. This fact,
the Supreme Court,
though may sound adopted by the
released an Action Plan
sweeping will be sub- traffickers
addressing the issue of
stantiated by the statistrafficking and gave certics on arrests, trials have to be
tain recommendations
and convictions under looked at and
to arrest the problem.
the ITPA.
The failure of the gova legislation
These facts demonernments to implement
strate that the police do which is fully
the same has resulted in
not as a matter of prac- comprehensive
the severe deprivation
tice register cases of
of constitutional rights
ITPA along with the be brought in.
and guarantees of the
cases of the Indian
victims of trafficking.
Penal
Code
which
The Petition also chalwould have attracted a more severe lenges the application of the provisentence and make the offence non- sions of the Juvenile Justice Act
bailable. It also demonstrates that 1986 and the Immoral Traffic
there is no clarity in the implemen- (Prevention) Act 1956 in certain
tation machinery about the scope cases that have only aggravated
and ambit of the Act.
the human rights violations against
It is important that these aspects the victims.
are looked into and a more practical
Prerana v. Union of India
law is brought into force that would
This Petition has been filed to seek
focus on the protection of the victim the intervention of the Court for the
and eradication of the problem of laying down of guidelines and
commercial sexual exploitation.
issuance of certain directions for the
effective rescue and rehabilitation of
Cases Pending before the
victims of trafficking. It highlights
Supreme Court today
the fact that the existing juvenile
Gaurav Jain & Anr. v. Union of homes and protective homes are
India
inadequate and some of them proA petition had been filed subse- vide inexcusably low quality of medquent to the judgment of the Court in ical and psychiatric care. The
1997 in which the Petitioner had Petition suggests guidelines which
asked for the establishment of sepa- may be adopted by the State
rate educational institutions for the Government to ensure that the reschildren of prostitutes and various cued victims of trafficking are not
other reliefs for them. The two forced to undergo any further physijudges who constituted the Bench cal and mental harassment.
had a difference of opinion on the
Prajwala v. Union of India
issuance of directions for eradication
This petition has been filed to seek
of prostitution. The matter has been the incorporation of a ‘victim protec-
32 combat law
 April - May 2004
tion protocol’ in the guidelines for
pre-rescue, rescue and post-rescue
stages of rehabilitation of victims of
trafficking. The Supreme Court in its
earlier judgments relating to trafficking and rehabilitation has not, in
effect, laid down any guidelines with
regard to protection of victims of
trafficking. The Petitioner, Prajwala
an anti-trafficking organization
highlights a number of documents
and case studies to show that in the
absence of proper victim protection
measures, rescue of commercial sex
workers becomes a self-defeating
exercise, as those rescued are subjected to further harassment and
trauma and in many cases return to
the flesh trade. Further, the petition
gives suggestions on pre-rescue, rescue and post-rescue stages of rehabilitation of commercially and sexually exploited women and children.
Savera & Anr. v. State of Goa &
Others.
A Petition has been filed against
the July 2003 judgment of the
Bombay High Court (Goa Bench) in
the Writ Petition filed by Savera.
The Petition has been filed on the
grounds that the High Court in its
judgment ordering eviction of the sex
workers in Baina beach, the red light
area of Goa, has ignored the recommendations made by the Justice
Kamat Committee and has legitimized the police atrocities against
the sex workers by its order. The
petition also challenges the exemption of the Government of Goa by the
High Court from any responsibility
towards rehabilitation of the sex
workers who are presumably not
from Goa and their deportation without a rehabilitation program.
Aparna Bhatt is a lawyer practising in Supreme Court of India who
has filed some important cases on
sexual harassment in the Supreme
Court and High Court of Delhi.
CL
child rights
Child Sexual Abuse - Time for Action
BY PRATHIBA MENON
C
hild Sexual Abuse is
complete violation of a
child’s dignity. It is the
acts or failures by
adults, which results in
physical or emotional harm to the
child, and prevents the child from
developing in a healthy manner.
Children are often abused at the
hands of the state, society and family in most shameful and objectionable ways.
Sexual abuse has many forms. It
can sometimes be so subtle that a
child may not even be aware that the
abuse is taking place, just that
he/she is uncomfortable with it. The
abuse can be verbal, physical or emotional, just like any other kind of
abuse.
Sexual abuse may include
 Sexual touching and fondling
 Exposing a child to pornographic
materials and or adult sexual
activity

having a child pose, undress or
perform in a sexual fashion

 “peeping” into bedrooms or bathrooms

  rape or attempted rape
There are many reasons why children don’t tell others about sexual
abuse. The biggest of these are fear
and guilt. Children often fear that
they will not be believed about the
sexual abuse or they blame themselves for the abuse inflicted on them
by others. They see it as punishment
for deeds that they may have done.
Everyone fears the unknown, especially children.
In most cases children are abused
not by strangers but by people they
know and may even be fond of. This
is yet another reason for them to
keep quiet about the abuse. In some
cases the abused children identify
with their abusers and start seeing
them as their “protectors”. This kind
AMITA CHAVAN
of identification is an extension of
the Stockholm Syndrome, where a
captive identifies with the captor. In
the same manner, a victim of child
sexual abuse is sometimes gratified
by the attention showered on
him/her by the abuser or has strong
feelings towards the abuser. It is
therefore important for a victim of
sexual abuse to understand that
what the abuser has done is not beneficial to the child and will hurt the
child in the long term.
Popular Myths about Child
Sexual Abuse
Child sexual abuse takes place
at the hands of strangers on the
street.
Statistics reflect that a greater
number of children are abused at
home than in other settings.
Generally, children are sexually
abused by adults who are related to
them, or known to them or their families, and the abuse occurs at the
home
of
the
perpetrator.
Child sexual exploiters are monsters or psychopaths or mentally
ill persons.
Child sexual abusers or exploiters
are not monsters. A child sexual
33 combat law
 April - May 2004
abuser could be your ‘nice’ neighbour
with whose children your child plays
every
evening.
Child
sexual
exploiters attempt to justify their
action in different ways; the children
they abuse are not harmed by the
abuse, the abused children were in
any event sexually open and free,
child prostitutes are desperate for
money and therefore benefit from
sexual contact with adults and many
more
such
excuses.
Child abusers have been victims
of child abuse themselves.
Sexual abuse is about corruption,
not all victims go on to become
abusers. The victim, especially those
living on the streets, often have sex
without being informed about the
consequences or make uninformed
decisions based on socio-economic or
peer
pressure.
Child sexual exploiters are distinct from prostitute-users.
Child sexual exploiters are mainly
prostitute-users and do not form a
sub-group. The majority of prostituted children are integrated into the
mainstream sex industry which
serves all those who purchase sex.
‘Seductive children’ entice the
perpetrator and enjoy the abuse.
child rights
This is an adult perpetrator’s perception. Not even the most extreme
seductive behaviour can ever make
the child responsible for an adult
response of sexual abuse. It must be
kept in mind that pre- pubescent
children can never give informed
consent. Sexual activity with children is performed for the satisfaction
of sexual gratification of an adult
and not in response to a child’s
needs. Financially helping starving
children in return for sexual services
is the justification voiced by tourists
who sexually exploit children. The
claim that the child was probably
enjoying the sexual encounter if
he/she did not stop the abuse or
report it at the first instance is an
absurd
notion.
Children do not transmit the
AIDS virus.
The assumption is that children
are not HIV infected and do not
spread AIDS. There is also a belief
that having sex with a virgin child is
a cure for AIDS and other sexually
transmitted
diseases.
Reporting of child sexual abuse
causes more harm than good.
This statement is incorrect and
damaging. It is necessary to report
cases of child abuse as it will act as a
deterrent, and will also create a data
base of vulnerable children and child
abusers. Child sexual abuse is not
reported because it is stigmatising,
and there is apprehension that the
complex legal procedure will further
traumatise the abused child. There
is also fear that the perpetrator of
the offence will seek revenge.
Legal Issues
The Law Commission of India in its
172nd report has recommended the
amendment of rape laws, which shall
include changes in the Indian Penal
Code, 1860. It has been recommended that Section 375 of the Indian
Penal Code should be made gender
neutral and penetration which is a
requisite for rape as per Indian Law
will now include not just penile pen-
etration but penetration by any
other part of the body or by any other
object. The Law Commission has further recommended the deletion of
Section 377 of the Indian Penal Code
which is the section on unnatural
offences.
Naz Foundation, a registered nongovernmental organization filed a
public interest litigation in the Delhi
High Court praying in 2001 for a declaration that Section 377, to the
extent that it is applicable to and
penalizes sexual acts in private
between consenting adults, is violative of Articles, 14, 15, 19 (1) (a-d)
and 21 of the Constitution of India.
This petition particularly deals with
the reading down of Section 377
(unnatural offences), where any kind
of sexual act with a child below the
age of 18 years will be penalised.
Consensual sexual relations between
two men will not be penalised under
this section. Section 377 has been
used as a tool by the police and the
State for harassing adult men who
have consensual sexual relations
with other men.
There are other groups and gay
activists who have been protesting
the reading down of Section 377.
These groups have been asking for
the complete repeal of Section 377
and a separate legislation to be
passed for protecting the rights of
children who have been sexually
assaulted.
Child Rights groups all over India
feel that amendment of rape laws
and reading down of Section 377 is
not going to prevent child sexual
abuse, protect children or punish
child abusers. The only solution that
will satisfy all the abovementioned
groups is a separate law on child sexual abuse. This law should cover a
proper definition of child sexual
abuse that is inclusive of any act of a
sexual nature committed by an adult
towards a child under eighteen years
of age and which also includes acts of
a pornographic nature. The act
should also include procedural
34 combat law
 April - May 2004
changes that are of a child friendly
nature and stricter punishment
towards perpetrators and abettors of
child sexual abuse.
Need for a New Law on
Child Sexual Abuse
India has recognized the fact that
children have special needs and
therefore require special legislation
that will protect the best interest of
the child. The Juvenile Justice [Care
& Protection of Children] Act 2000 is
an act that protects and promotes
the interest of a child in conflict with
the law and a child in need of care
and protection.
A victim of child sexual abuse can
be physically removed from the place
of abuse and kept in the Observation
Home. But the Juvenile Justice Act,
2000, does not ensure that the perpetrator is punished appropriately.
Section 23 of the Juvenile Justice
Act, 2000, talks about punishment
for cruelty to juvenile or child. The
term of punishment is imprisonment
for a term which may extend to six
months, or fine, or both. A victim of
child sexual abuse will undergo the
trauma of abuse for the rest of
his/her life. The perpetrator will
undergo only six months of punishment or a paltry fine.
No Indian legislation has attempted to even define child sexual abuse.
One out of every four children in the
world is a victim of sexual abuse but
India has not seen fit to even recognise the problem.
A perpetrator of child sexual abuse
has only a few sections in the Indian
Penal Code that applies to him
 Section 376- if the child has been
raped.
 Section 324- if simple hurt has
been caused to a child
 Section 326- if grievous hurt
has been caused to a child.
 Section 307- if there has been an
attempt to murder the child
 Section 302- if the child has
been murdered.
 Section 377- if a child has been
child rights
sodomised or if it is a boy child.
Section 354- outraging the modesty of a woman.
There is absolutely no section in
the IPC that covers all the various
kinds of abuse that is done by an
adult to a child. If a child has been
fondled in her genital area but there
is no penile penetration, Section 354
of the IPC is applied. Section 354 is a
bailable section which means if the
perpetrator is arrested, he can get
bail either from the police station
itself or from the Magistrate’s court
on his first remand.
It is therefore imperative that a
new legislation is passed for the protection of victims of child sexual
abuse and for stricter punishment of
child sexual abusers. This law
should cover important aspects like:
a) A complete definition of all the
different kinds of child sexual abuse
which shall include penetration of
any kind whether it is penile or with
an object or a finger. The definition
should also include the various kinds
of pornography a child is subjected to
whether the child is being used in
the proceedings or is being made to
watch acts of a sexual nature.
b) Filing an F.I.R. in the nearest
police station after the abuse is usu
ally a traumatic task for the victim
and her family. Therefore, filing an
F.I.R. should be made simpler for the
victim and the police must be sensitive and not victimise an already
traumatised and shattered victim.
c) Court procedure should be child
friendly. Defence lawyers should not
be allowed to harass the victim and
the judge should ensure that the victim has a social worker or guardian
in court with her. A case of child sexual abuse or rape should be given
priority because if the case comes up
after 5-7 years, it is possible that the
child may have gotten married or her
parents may think that she is too old
to testify as the child would practically be a woman and society would
point their fingers at her.
d) Stricter punishment to child sexual abusers and abettors of child sexual abuse. The punishment should
be according to the gravity of the
offence but should also take into
account not just the physical trauma
caused to a child but also the emotional trauma that is undergone by
the victim. A minimum period of
punishment should also be specified
for child sexual abusers.
Article 34 of the Convention on the
Rights of the Child declares “State
parties undertake to protect the
child from all forms of sexual
exploitation and sexual abuse. For
these purposes, State parties shall in
particular take all appropriate
national, bilateral and multilateral
measures to prevent:
 The inducement or coercion of a
child to engage in any unlawful
sexual activity;
 The exploitative use of children
in prostitution or other unlawful
sexual practises;
 The exploitative use of children
in pornographic performances
and materials.
India has signed and ratified the
above document but has made no
move towards the implementation of
Article 34 in its national legislations.
While child rights groups, women’s
groups and gay rights groups debate
over various laws, the only losers are
young children who are violated on a
daily basis. It is now time to stop
debating and start protecting our
children from the evil of child sexual
abuse.
Prathiba Menon is a childs rights
lawyer and activist.
CL
Beyond the Protection of Juvenile Legislation
BY MAHARUKH ADENWALLA
L
egislation is very clear in
its intention that juveniles are not to be incarcerated in jails pending
inquiry or on conviction.
Such provision has been in the law
books since the Childrens’ Act, but a
visit to the "baba ward" in Mumbai
Central Prison, an undertrial
prison, belies this provision. The
"baba ward" houses offenders many
of whom are visibly under 18 years
of age. The situation must surely be
the same in other parts of the country. Despite the safeguards incorporated in the law and procedure,
ensuring children protection of juvenile legislation, juveniles continue to
form part of the criminal justice system as is applicable to adults.
Juvenile legislation since its inception has emphasized that a child
charged with commission of a crime
should be dealt with differently from
an adult offender. Its focus is on
rehabilitation rather than punitive
action. A separate adjudicating
mechanism and manner of disposition has been envisaged to meet this
objective. The Bombay Children Act
1948, as amended from time to time,
spoke of children being kept in
Approved Centres , Classifying
Centres or Observation Homes, and
35 combat law
 April - May 2004
prohibited the sentencing of a child
to death, transportation or imprisonment. The Juvenile Justice Act
1986, which replaced the Children
Acts prevailing in different States,
had categorically included as one of
its Statement of Objects and
Reasons, "to lay down a uniform
legal framework for juvenile justice
in the country so as to ensure that
no child under any circumstances is
lodged in jail or lock-up". This basic
tenet continues in the Act presently
in force when it states that a
child pending inquiry must be kept
in an Observation Home and that on
guilt being proved, the child must be
dealt with under section 15 (1).
child rights
Section 15 (1) provides for different
modes of disposition, including incarceration, but in a Special Home.
StreamliningLaws
The UN Convention on the Rights
of the Child has also whilst dealing
with juvenile offenders stressed on
treatment commensurate with "the
child's age and the desirability of
promoting the child's reintegration
and the child's assuming a constructive role in society. " Both the 1986
and 2000 Act as one of their objectives speak of bringing the Indian
law in conformity with the United
Nations Standard Minimum Rules
for the Administration of Juvenile
Justice 1985 , and the latter Act also
mentions the United Nations Rules
for the Protection of Juveniles
Deprived of their Liberty 1990 . The
first of these UN Rules underlines
that (i) juvenile offenders must be
treated differently from adults in
respective legal systems, (ii) laws,
rules and provisions must be made
for juvenile offenders and institutions and bodies entrusted with the
administration of juvenile justice,
(iii) the emphasis must be on the
well-being of the juvenile, (iv) the
treatment of juveniles must be
based on their personal circumstances, e.g., family situation, (v)
pending trial juveniles should be
kept away from adults by detaining
them in a separate institution or in
a separate part of an institution
housing adults, (vi) the placement of
juveniles in institutions should
always be a disposition of last resort
and for a minimum necessary period.
The 1990 Rules mainly deal with the
management of juvenile facilities,
more
particularly
classification and placement; physical
environment and accommodation;
education, vocational training and
work; recreation; medical care; personnel.
The Supreme Court in 1986 when
confronted with the issue of children
in jails has held that "it is the duty
of the State to look after the child
with a view to ensuring full development of its personality. That is why
all the statutes dealing with children provide that a child shall not be
kept in jail." The court has also castigated the practice of keeping children in a separate ward in prisons
by observing "It is the atmosphere of
the jail which has a highly injurious
effect on the mind of the child,
estranging him from the society and
breeding in him aversion bordering
on hatred against a system which
keeps him in jail." The Apex Court
has very finely dealt with the oft
repeated excuse of insufficient
accommodation in the Observation
Home, directing that bail be granted
instead of subjecting a child to incarceration in jail. In Gopinath Ghosh's
case , the Supreme Court has cast a
duty upon Magistrates to conduct
age inquiries when it appears that
the person brought before them is
under 21 years of age. The Criminal
Manual calls upon Magistrates and
Judges to conduct age determination
inquiries when the accused appears
to be a child. In Bola Bhagat's case ,
the Supreme Court has laid down
that all courts must ascertain the
age of the accused when claim of
juvenility is made on his behalf.
Sadly, despite legal pronouncements and socially-progressive provisions of law, children are still held
in jails. The Juvenile Justice [Care
and Protection of Children] Act
deals with the child within the juvenile justice system, and obligates
police to produce him before the
Juvenile Justice Board and place
him in an Observation Home. The
police in violation of this provision
have constantly shown juveniles as
adults, kept them in police lock-ups
and
produced
them
before
Magistrates. The reason for doing so
is not difficult to comprehend : the
police want absolute custody of the
accused for as long a period as possible to compel confessions and show
fake recoveries. Whilst in the
36 combat law
 April - May 2004
Observation Home, custodial interrogation is possible only with permission of the Juvenile Justice
Board and in the presence of
trained child-care professionals.
Moreover, the Magistrates in case
after case fail to note that the
accused produced before them are
juveniles. Generally the juvenile
does not have legal representation;
not realising the importance of or
being too frightened to speak-up, the
plea of juvenility is not raised at the
first possible instance. Experience
shows that it is only when the trial
is ready to begin that a legal-aid
lawyer is appointed who then may
raise the plea of juvenility before the
Trial Court, and an age determination inquiry may be conducted and
the case transferred to the competent authority constituted under
juvenile legislation. The only time
the accused is specifically asked his
age by the Magistrate of Judge is at
the time of framing of charges which
is sometimes as long as 3 to 4 years
after arrest when the person may
have ceased to be a juvenile, and due
to non-application of mind, the fact
that the accused was a juvenile on
date of offence is once again missed.
Therefore, due to the failure of the
system and no fault of the juvenile,
he loses the intended legislative protection. The Supreme Court has on
several occasions deprecated this
apathy on the part of the
lower judiciary.
Rajeev's case is one such case
where despite his being declared a
juvenile by the Sessions Court, he
was shifted to the Observation
Home only on the intervention of the
Bombay High Court. Rajeev was
arrested on 25-5-2002, shown to be
an adult and produced before the
Magistrate. On committal of the
case to the Sessions Court, he was
offered the services of a Stateappointed lawyer who filed an application for declaring Rajeev a juvenile. The Sessions court declared
Rajeev a juvenile on the basis of a
child rights
School Transfer Certificate that
reflected his date of birth as 8-11986 and on the basis of medical
examination conducted at the Police
Hospital. In complete disobedience
of the order, Rajeev was not shifted
to the Observation Home. It was
only when a criminal writ petition
was filed and orders passed therein
that Rajeev was transferred to the
Observation Home on 13-6-2004.
Alarmed by the indifferent manner
in which the criminal justice system
treats children and orders of the
courts, the Bombay High Court
awarded Rs.15,000/- as compensation to the boy juvenile. The State of
Maharashtra
approached the
Supreme Court against the Bombay
High Court's order, but the State's
petition was rejected . Rajeev was
only 16 years 4 months when the
offence was committed. The
Sessions Court in its transfer order
has
mentioned
that
Rajeev
"appeared to be much younger" than
his age shown by the police.
Rajeev is just one such case; applications are regularly being filed
before the Magistrates and Sessions
Court, and juveniles are being transferred to the Observation Home , but
at most times after having spent
years in jail. Not only does
incarceration in jail bring the child
in contact with hardened criminals :
stay in prison is also not compatible
with the child's comprehensive
development.
In a special child-centred institution, the child receives care and protection as well as psychological, educational and vocational assistance
commensurate with the needs of
each individual child.
Is Institutionalisation the
Answer?
Insitutionalisation of children,
whether in jail or children centres, is
not advisable for the child's holistic
development as most institutions
are closed institutions segregating
the child from its social environ-
ment. The law in recognising this,
has sought to ensure that a child
does not undergo prolonged incarceration. Bail is mandatory under
juvenile legislation; the only ground
for refusing bail is in the event of the
juvenile coming into contact with
known criminals or the likelihood of
danger to the juvenile's life. In
Mumbai, on any given day there are
about 100 juveniles in conflict with
law in the Observation Home most
of whom have come to the city to
earn a living; their bails have either
been rejected or they have not had
any legal representation. This
makes "mandatory bail" just another child-friendly legal terminology
with no implementation. The legal
system whilst entertaining juvenile
bail applications is swayed by the
same considerations as would be
examined whilst hearing the bail
application of an adult offender, viz.,
gravity of offence, tampering with
witnesses, apprehension of absconding, absence of family, defeating the
ends of justice. Even when bail is
granted, juveniles are unable to
avail of the same as they cannot get
a person to stand surety for them in
the absence of family or social support. The expeditious disposal of
juvenile cases would also ease the
burden of the Observation Home
and ensure that the child's stay in
the institution is curtailed to a short
period. Under the Juvenile Justice
[Care and Protection of Children]
Act 2000, an inquiry is to be completed within a period of 4 months ,
but this is wishful thinking, in the
present scenario juveniles remain in
the Home for more than a year pending inquiry. In Mumbai, this prolonged stay is mainly because the
Juvenile Justice Board has not yet
been
constituted
,
the Juvenile Court sits a mere 3
days a week and also holds charge of
a regular court.
Though the functioning of the
juvenile justice system requires
streamlining, it is necessary that
37 combat law
 April - May 2004
measures be taken to ensure that an
accused child is not denied its protection. It is worrying that persons
not identified as juveniles may continue to be handled by the criminal
justice system, and sentenced to
imprisonment, including life imprisonment. To check and ensure that a
juvenile receives the envisaged protection, it is imperative that lawyers
have access to jails. The Maharshtra
State [Visits to Jails and Homes for
Children] Project Rules 1993 contains a provision for appointment of
Duty Counsel, i.e. a lawyer, to visit
jails. A Duty Counsel is appointed
by the State Legal-Aid Services
Authority to provide or refer for
legal-aid those cases where the
accused are not in a position to pay
legal fees. Lawyers' access to prisons
helps in identifying juveniles in
jails; Rajeev's plight was brought to
the notice of the judiciary by a Duty
Counsel. It is also a vigilant lower
judiciary that would play an important role to curtail this illegal detention of children, and could also compel the police to desist from deliberately portraying children as adults
thereby depriving them of their
rights under juvenile legislation.
The procedure should obligate the
Magistrates to ask the accused his
age, and record the same for
appropriate action.
An effective way to control this
misuse is to create awareness about
juvenile legislation not only
amongst the public and the legal /
judicial fraternity, but also amongst
children ho are vulnerable to being
picked-up by the police so that they
themselves are in a position to voice
their juvenility before the concerned
authority.
Maharukh Adenwalla is a
lawyer in the Bombay High Court
and is involved on issues concerning
Child Rights and Housing Rights.
CL
child rights
WORLD MAP OF CHILD SOLDIERS (2000/2001)
List of Countries with Child Soldiers Fighting in Recent and Ongoing CVonflicts
(G: government armed forces, P: paramilitaries, O: armed opposition groups)
Iran (G,O)
Iraq (G,O)
Israel and Occupied Territories
(G,O)
Lebanon (O)
Colombia
(P,O)
Mexico (P,O)
Peru (O)
AMITA CHAVAN
Russian Federation (O)
Dem.
Turkey (O)
Yugoslavia (former Rep. of) Rep. of the Congo (G,O)
Eritrea (G)
(P,O)
Ethiopia (G)
Rwanda (G,O)
Algeria (P,O)
Sierra Leone (G,P,O)
Angola (G,O)
Somalia (all groups)
Burundi (G,O)
Sudan (G,P,O)
Chad (G)
Uganda (G,O)
Republic of Congo (G,O)
Afghanistan (all groups)
India (P,O)
Indonesia (P,O)
Myanmar (G,O)
Nepal (O)
Pakistan (O)
Philippines (O)
Solomon Islands (O)
Sri Lanka (O)
East Timor (P,O)
Tajikistan (O)
Papua New Guinea (O)
Uzbekistan (O)
Note: This map indicates only situations in which children have actively participated in conflict. It does not show all countries where children are recruited into government armed forces or armed groups. Please refer to individual country
entries in the Child Soldiers Global Report (2001) for further information.
38 combat law
 April - May 2004
child rights
Child Labour and Cultural Relativisms
BY PARUL SHARMA
T
he problem of child
labour is international in
scope. It is a result of
poverty, the lack of political commitment to end
it, and weak legal and monitoring
mechanisms.
In the developing world, factors
such as enormous debt burdens,
bloated military budgets, and structural adjustment programs affect
poor families drastically. Average
incomes have fallen over the past 10
years in many countries, and social
sector spending — which previously
helped support the poor — has been
severely reduced. Compounding the
problem, heightened competition on
the global marketplace has raised
the demand for cheap and
exploitable labour.
Internationally, legal measures
such as trade sanctions against
countries where child labour occurs
can be counter-productive and actually harm the children. This further
impoverishes societies because
wages are pushed lower by child
labour and adults remain underemployed or out of work. Thus, the cycle
of labour and deepening poverty continues through generations.
It is difficult to say how many children are involved in labour worldwide. A recent report released by the
International Labour Organization
(ILO)
titled
“Child
Labour:
Targeting the Intolerable” estimates
that there are some 250 million children between the ages of 5 and 14
working in developing countries.
According to the ILO report, approximately 120 million children are
working full-time and 130 million
works part-time.
The Situation in India
There is hardly any product in
India, which has no child labour
behind it. Be it locks, carpets, bangles, bricks, matchboxes and crackers. It is quite amazing to note that
more than 300 central and state
statutes concerning children have
been enacted to protect and safeguard the interest of the child workers. Yet the truth remains that they
have badly failed to cherish the goal
of child welfare in its true
perspective.
India has the distinction of being
the nation with the largest number
of child labourers in the world. The
official figure of child labourers is 13
million. But the actual number is
much higher. Reports from recent
times indicate the absurd conclusion
of the number being anything
between 14-100 million children.
There is an argument that child
labour represents a stage of development, which all countries pass
through before full-blown capitalism
is reached and child labour becomes
obsolete, either because of technology or loss of cost effectiveness. This is
certainly an argument the Indian
Government has used to explain
away the persistence of child labour.
Looking at it closer, India may
already have reached that full-blown
capitalism (India Shining) as
referred to by the same Government
in other contexts.
Child labour is defined by Article
32 of the Convention on the Rights of
the Child as any economic exploitation or work that is likely to be hazardous or interferes with the child’s
education, or is harmful to the child’s
health or physical, mental, spiritual,
moral, or social development. Article
32 consists of all the components
required to understand a need of a
child inside or outside labour.
However, policy makers have not
taken the pluralist view of the causes of child labour, which would actually amount to laws with stronger
enforceability.
39 combat law
 April - May 2004
Despite strong wordings in legislations, how often do we hear policy
makers referring to children in
labour and their right to health and
mental health and measures guaranteeing the same? How often do we
hear of state making a commitment
to children in labour and their right
to equality and education and measures guaranteeing the same? These
guarantees can only be made if social
chains are understood and studied.
Time utilization data indicate that
out - of - school children work about
4.7 hours a day on average, about 2
hours more than school going childreni.. Deprivation of money for
meals is generally a reason for not
sending children to school.
The Supreme Court of India did set
path for the mid day meal scheme,
however, many states, for instance
Karnataka, find it difficult to implement the same due to the fact of not
being able to mix children from different castes while having the meals.
Furthermore, it is well known that
school participation and educational
levels in India are particularly low
among socially disadvantaged communities, notably the “scheduled
castes”. A combined approach of
education, income-generation, and
advocacy are valuable measures, and
a must to include. Education, in particular, is a key strategy to combat
child labour, and can only succeed in
India if genuine screenings are made
of each geographical spot where a
school is being invested in or set up.
The Supreme Court in Unnikrishnan
J.P. v. State of Andhra Pradesh
(1993) SCC 645 is a landmark judgment which declared that every child
up to 14 years of age has a fundamental right to primary education.
National generalized schemes may
not be able to remove the cultural
hurdles, which have long historical
roots in a particular area of India,
such as the understanding of the
child rights
caste system or how different groups
view women in education. Here, it
could be valuable to draw lessons
from the somewhat misused term of
cultural relativism in human rights.
India being a subcontinent of massive capacity suffers from a number
of cultural relativisms when we discuss rights based issues. In each
national intervention, which concerns children, the question of how it
can combat child labour should be
asked. DPEP and SSA, which are
major governmental primary education interventions in India, have
related or linked themselves to child
labour issues in a very meagre manner, and therefore missed out on
issues directly linked to the problem
of not being able to enrol, or not
being able to create permanency in
primary educationii..
Compulsory education can indeed
help reduce the practice but it is not
enough to neutralize the demand for
child labour where poverty exists,
especially if the education scheme
does not include cultural segments
in specific areas.
Children in labour and its
aftermath; issues of rehabilitation
The physical dangers associated
with child labour often transcend the
moral implications. Hazardous and
exploitative child labour has a profound negative impact on a child’s
physical,
emotional,
mental,
spiritual, moral, and social development. In many cases, children
engaged in labour suffer poor health,
a lower IQ, physical harm and abuse,
low self-esteem, little or no education, and deprivation of adequate
support systems.
There are various issues with
child labour and education. One is
the cultural implication in the various regions of the country, the
other is special education for children who have been through the
aggressions of child labour- linked
to rehabilitation. The measures
taken by the government for the
release of children, from hazardous
occupations are significant through
the formulation of National Child
Labour projects (NCL projects). This
was an attempt towards visualizing
education as one of the basic ingredients of child welfare services, with
also a fact that the policies and
schemes failed to relate to the socioeconomic realities of families of the
affected children. For many households, children work not only to meet
their own basic needs but also for the
survival of their families. In the
absence of proper support from the
State and the society, such hasty
steps have gone against the “Right to
Survival” and the “best interest of
the child”.
One area rarely touched upon is
the mental health aspects and support of the children rescued from
hazardous child labour. Looking at
the mental health aspects would
indeed break the cycle of violence
and aggressions created through
practices such as child labour. Here
the legislator plays an important
role in realizing the need for mental
health professionals while rehabilitating children. This has to be incorporated in the NCL projects as a
primer objective in the rehabilitation
process of children rescued from
child labour.
AMITA CHAVAN
Conclusion
main areas such as:
 Stepping up enforcement of
child labour laws
 Non-formal education
 Income and employment generations
 Special schools
 Sensitising public on child
labour issues
 Survey and evaluation.
This has made it possible for a
large number of children to come out
of their cruel surroundings and deprivation. However, inherent flaws in
the Child Labour Act (Prohibition
and regulation), 1986 has failed to
provide relief to the large number of
children, who are engaged in work
situations outside those listed
industries.
Furthermore, a section of children
engaged in assisting their family
members in craft activities also fall
outside the purview of this Act. It is
40 combat law
 April - May 2004
The Indian policy and lawmakers
are clearly working with contradictory initiatives, half planned policies,
and generic mechanisms when it
comes to fighting child labour.
Unfortunately, there is a lack of
mechanisms, which are capable of
attacking the underlying problem of
poverty – and actual reasons for violations of child rights. The Indian
child rights
scene of child labour is dominated
with various cultural impacts where
education alone cannot work to complete the rights chain. Each state,
and each district have varied cultural impacts and cannot be addressed
through a national scheme alone.
Similarly, issues of rehabilitation
and mental health considerations
cannot be addressed until the size of
the problem is acknowledged.
At a policy level there is a long way
to go. The first step would be to step
out of the denial phase, the second to
realise the country’s cultural diversities towards children, and the third
to understand the needs of a child
who has been rescued from child
labour.
Endnotes:
i.See No.18 of a series of papers on
Economic Development: School participation in Rural India by Jean
Dress and Greta Gandhi Kingdom
ii.
DPEPDistrict
Primary
Education Programmed, and SSA-
Sarva Siksha Abhiyaan (education
for all)
Parul Sharma is currently working with the Human Rights Law
Network in New Delhi as a senior
legal adviser. She has worked for the
Swedish Foreign Ministry, and as a
Human Rights Adviser with the
European Commission in India.
CL
Critical Analysis Of The
Adoption Law
BY SHIBANI GHOSH
T
he Juvenile Justice
(Care and Protection of
Children) Act, 2000 (56
of 2000) considers adoption of a child, who is
abandoned, orphaned, neglected or
abused in their families or in institutions, to be one of the ideal ways of
rehabilitation and social integration
for the child. Certain provisions of
this Act ostensibly remove the anomalies that existed in the law related
to adoption in India. However, the
objective of the Act is in effect defeated due to its conflict with the existing law which has neither been
expressly nor impliedly been
repealed by the Act or any other legislative provision.
Section 1.3 of the Aims and
Objectives, of the Revised Guidelines
To Regulate Matter Relating To
Adoption Of Indian Children (1994)
says that the thrust of National
Policy for the Welfare of Children
formulated by the Government of
India is summed up in the following
words:
“The nation’s children are a
supremely important asset. Their
nurture and solicitude are our
responsibility…Equal opportunities
for development to all children dur- Parsis could only become guardians
ing the period of growth should be of a child under the Guardian and
our aim, for this would serve our Wards Act 1890 (GAWA). While the
larger purpose of reducing inequality HAMA gives the status of a natural
and ensuring social justice.”
born child to an adopted child on the
This Article, in brief, analyses the completion
of
the
adoption
law regarding adoption of children in procedure, the fiduciary relationship
India and demonstrates how the established under the GAWA
same will remain to be discriminato- between the guardian and ward does
ry, unjust and deny equal opportuni- not do so. For instance, unless
ties to children until such statutory expressed in the will, a person taken
instruments are introduced which under guardianship by a family cannot only explain and
not claim property after
enable the provisions of
the death of the parthe Act of 2000 but also
ents. He has no legal
repeal the conflicting
rights incase of intesA new Code
pre-existing law.
tate
succession.
Until the coming into
Further, on attainment
that encourforce of the Juvenile
of majority of the ward,
Justice Act 2000, the ages adoption
the
powers
of
a
only legislation enabling of children
guardian cease.
adoption was the Hindu
Lawyers,
social
Adoption
and having have
activists,
adoptions
Maintenance Act 1956 adequate safeagencies and those
(HAMA). According the
to adopt a child
guards to pre- wanting
provisions of the Act
for various reasons
only Hindus (which as vent any incihave criticized the
per the definition given dent of trafHAMA. Firstly, a marin the Act also includes
ried woman can only
Buddhists Sikhs, and ficking or
consent to an adoption
Jains), can adopt, give exploitation of
by her husband. She
in adoption or be adoptinitiate the
the child is the cannot
ed.
The
Muslims,
process
herself.
Christians, Jews and need.
Secondly, according to
41 combat law
 April - May 2004
child rights
Section 11 of the Act, a child of the
same sex as the one the adopting
parents already have cannot be
adopted. Consequently, in case an
adoption agency has siblings of the
same sex they are forced to separate them and give them in adoption to different homes. From the
guidelines issued by the Central
Adoption Resource Agency (CARA)
it is apparent that in an attempt
not to separate siblings, special
provisions have been made to
encourage inter-country adoption
for them. At the same time the
Supreme Court in its landmark
judgment in LK Pandey v. Union of
India on the CARA guidelines categorically state that all efforts
must be made to place the child in
India itself and resort to intercountry adoption as a last resort.
Thirdly, Section 11 does not allow
the adoption of a son in case the
adopting parent or parents already
have a grandson or great-grandson or
daughter in case they have a grand
daughter. Such a provision only discourages adoption and denies the
opportunity to many children to a
happy future and a loving family.
According to the CARA Guidelines the
adoption procedure cannot be completed without an exhaustive Home Study
Report of the adopting parents, their
background, their family, income etc.
Therefore, as the investigation that
goes into making the Report is quite
sufficient to decide whether the child
would be given the necessary love and
attention and unnecessary precautions
like Section 11 are redundant.
The Juvenile Justice Act 2000 provides that any child can be given for
adoption that is orphaned, abandoned, neglected and abused
through institutional and non-institutional methods. It does not draw
any distinction between the children
of different religion. However, the
Act does not apply to cases where the
biological parents themselves surrender the child to the adopting parents. This would mean that while a
Hindu family who due to severe
poverty cannot take good care of
their child, can find a suitable family
willing to adopt the child, a child
from a non-Hindu family cannot be
adopted in a similar fashion.
Furthermore, the Act does not
repeal the provisions of the HAMA it
contradicts. Since the latter is a
more specific legislative instrument
than the former, it would continue to
govern the Hindus in points where
they are contradictory. For instance,
while the Act of 2000 defines a child
as one who has not attained the age
of eighteen, and therefore can be
given for adoption till then, the
HAMA does not allow the adoption of
a child above the age of 15 years. The
Act of 2000 allows children to be
adopted irrespective the sex of the
biological daughters and sons.
However, the bar on adoption of son
incase of a living grandson or great
grandson and of a daughter in case of
a living granddaughter [(Section
11(i) and (ii)] persists.
The Act of 2000 in Section 41 states
that the adoption procedure must be
in accordance to the guidelines
issued by the State Governments.
This means in the absence of guidelines by the state governments, the
adoption will continue to take place
according to the pre-existing adoption law that is HAMA, applicable to
only the Hindus and inapplicable to
the non-Hindu community. The
Guidelines issued by the CARA are
the regulatory framework so far as
any in/inter country adoption in
India. The Juvenile Justice Act does
not clarify the position of the existing
CARA guidelines in governing the
adoption process under the Act and
in fact proposes to be governed by
new guidelines that have to be set by
the State governments.
What India requires now in a
Uniform Adoption Code that would
prescribe a uniform procedure for
adoption of children irrespective of
their religion and irrespective of the
religion of the adopting parents. A
42 combat law
 April - May 2004
similar step had been proposed in
the Adoption of Children Bill 1976.
Unfortunately the same was not
passed by the Legislature, due to
strong opposition by the Muslim
community, according to whom
adoption was against their religion.
Such an opposition is unnecessary as
the Bill did not impose any obligation or take away any right of the
Muslim community. It only gave an
option to those willing to adopt. The
Children’s Code Bill 2000 also proposes the same changes in the law.
The Juvenile Justice Act though in
principle might remedy the flaws in
the adoption law in India; it does not
lay down the necessary procedural
safeguards and creates parallel
mechanisms to those existing now. A
new Code has to be introduced which
would encourage the adoption of children by reducing the unnecessary
restrictions and at the same time
have adequate safeguards to prevent
any incident of trafficking or
exploitation of the child. The Kerala
High Court in Philips Alfred Malvin
v. Y.J. Gonsalvis and Others, held
that the right of the couple to adopt a
son is a constitutional right guaranteed under Article 21 as the right to
life includes those things which
make life meaningful. India has ratified the Convention on the Rights of
Child and is therefore under an
international obligations to fulfill the
mandate of the Convention which
prohibits discrimination of children
and promotes the development of the
child and his or her best intersts.
The international obligations and
the constitutional mandate laid
down in Article 39(f) along with the
fundamental rights enshrined in
Article 14 and Article 21 of the
Constitution of India have not only
to be read, but also interpreted and
applied effectively into the law
regarding adoption.
Shibani Ghosh is IIIrd year
Student at the National University of
CL
Juridical Sciences, Kolkata.
child rights
Corporal Punishment
BY ALOK GUPTA
C
orporal punishment is
defined as the use of
physical force with the
intention of causing a
child pain, but not
injury, for the purpose of correction
or control of the child’s behaviour. It
is widely believed that corporal punishment in schools, where teachers
are empowered to use physical force
to discipline children, plays a very
effective and instrumental role in
the overall growth of the child.
This practice with its deep roots
and historical evidence, sometimes
invites, rather insidiously, advocacy
on grounds of customary practice.
People believe that they have a right
to hit their children because this is a
practice that has been followed by
their communities and societies over
generations and produced healthy,
smart, efficient and hard working,
men and women, not despite corporal punishment but because of it.
The old adage of ‘spare the rod and
spoil the child’ is the guiding light of
the supporters of corporal punishment. This highly patronizing world
view believes that corporal punishment is essential because:
 physical force is essential in disciplining children who can get
very unruly (especially
b
o
y
s
)
without it
 most grown ups who are
successful and ‘well-disciplined’ are the result of
certain
minimum
degrees of corporal punishment during their
childhood
 Such punishment is felt
to be a necessary part of
the pedagogy and important for a child’s
upbringing.
 It is believed that there
are no other methods that could
be equally effective.
The practice and expectation of corporal punishment for the student to
receive, the teacher to administer
and the parents to condone, is so
deeply internalized that it becomes
impossible to generate a larger voice
against it, unless a brutal incident
like the death of an eight-year-old
Rohit Kumar Sakpal of Sangli,
Maharashtra, (Hindustan Times,
New Delhi, 2nd May 1999) who was
beaten to death by his headmaster,
comes to light.
The Sangli incident could still be
isolated as an exception, but as a
general rule corporal punishment
thrives on the fear of pain, and the
thin line that separates it from torture is the current discourse against
corporal punishment.
Corporal Punishment in
India
Corporal Punishment is widespread in India. A September 2001
UNICEF report on ‘Corporal
Punishment in Schools in South
Asia’ argues that hierarchical set up
of South Asian societies, ‘whether
family, community, caste hierarchies
or religious institutions – gives
power to those in authority, the ‘elders’, the men; and in schools, to the
AMITA CHAVAN
43 combat law
 April - May 2004
teachers. On the assumption that
adults know best and that decisions
about children’s lives must be made
by adults, children are often considered not ‘mature.’’
In schools, the teachers are seen as
figures of authority, transmitting
knowledge to the students who are
expected to submit, obey and learn.
The historical guru-shishya (teacherstudent) divide, where teacher is
above all and close to God, only adds
to the power of the teacher as the
educator. The teacher chooses and
enforces a choice and the students
comply. The teacher is the subject of
the learning process, while the students are the objects.
As the person with authority to
decide the process and content of
learning, the teachers wield greater
powers and are given the authority
to exercise punishment if the students fail to comply and learn.
Corporal punishment is also believed
to have a toughening impact on boys.
So much so that even over three
years after a Delhi High Court ruling
abolishing corporal punishment in
schools the practice continues
unabated and unchallenged.
In terms of statistics there are very
few studies, therefore the data is limited, but still shocking. According to
a nation wide survey conducted by
the
Educational
Research
Centre, between 1990 and 2003
cases of corporal punishment
stand at an alarmingly high 700
to 1,000 per annum.
A 1996 UNICEF study
revealed that children from several schools in India were regularly abused by their teachers in
the name of corporal punishment, by hitting them hard with
hands or a ruler, pinching them
or make them stand or kneel
outside the classroom. Tamil
Nadu had the highest number,
87 percent, students confirming
child rights
that they have been physically illiterate and the teacher or the eduabused by their teachers followed by cator with his licensed badge of eduMaharashtra at 66 per cent.
cation holds power as someone who
In a report in August 1998, The can better the lives of their kids. In
Indian Express, reported that a such subservient circumstances it
seven–year-old girl in India was often becomes impossible for parents
thrashed by her teacher in class and students to question the authorbecause she forgot to paste a picture ity of the teacher.
of a train in her notebook for homework. To teach the girl a lesson, the Legal scenario
No Court in this day and age disteacher beat the child on her hands,
legs and back with a wooden ruler; to agrees with the damaging effect cormake doubly sure that the child poral punishment can have on a
learnt her lesson, he then slapped child. But at the same time we are
her hard on her face and arm. The still far from a world-wide consensus
teacher was arrested but was on an absolute ban on corporal punreleased on bail the next day. The ishment. The legal debates in most
child was admitted to hospital in places rest between allowing, what is
critical condition, her arm bruised called authority for reasonable paddling versus the argument for an
and her liver damaged.
In another report in the Hindustan absolute ban on corporal punishTimes (July 1998) a teacher in India ment. In a recent case called the
quit her job as Head Mistress in a Canadian Foundation for Children,
private school because the school’s Youth and the Law v. Canada
practice was to beat the children. (Attorney General), the Supreme
“The principal’s complaint against Court of Canada in permitting parents and teachers to
me was that I was soft
spank children has
with the children and
imposed new legal limithat I had to be tough.
tations on what constiThe teachers would
The legal
tutes a reasonable padmercilessly bang the
dling versus an unreaheads of these little chil- debates in
sonable one.
dren against the wall most places
Chief Justice Beverley
and beat them with
McLachlin, writing for
canes. They wanted me rest between
the majority, held that
to do the same thing but allowing, what
corporal
punishment
I protested and quit the
is called
may from now on
job.”
involve only “minor corThese stories show authority for
rective force of a transihow easy it is for reasonable
tory and trifling nature’’
corporal punishment to
(i.e., it’s only spanking if
easily translate into paddling verit’s a tap or a cuddle)
torture. There is also, sus the arguand that it’s legally
an argument, although
ment for an
impermissible to spank
not a justification, that
a child younger than 2
teachers
in
rural absolute ban
or older than 13; to use
schools work under limon corporal
belts, rulers, and other
ited resources, with a
objects; or to strike a
very large work load, punishment.
child in the head or face.
and an very low
salaries. Thus the license of corporal Some may think this is a great order
punishment also becomes a source of that considerably limits the applicaventing ones frustrations and feel- tion of corporal punishment in
ing. Most parents is rural areas are schools. On the other hand what
46 combat law
 April - May 2004
would constitute a ‘minor corrective
force’ is still a big question? Dahlia
Lithwick, argues that the real definition of what would constitute a
minor or a major force depends not
on the action of the teacher but the
‘propensity of the child’ to handle the
physical force in question.
The relative requirement of “reasonableness” is too vague, and legally unsatisfactory as still leaves a
large window of arbitrariness.
In more absolute and non-negotiable terms the Delhi High Court, in
response to a petition filed by the
Parents Forum for Meaningful
Education and others (judgement
dated 1st December 2000), held that
rules 37(1)(a) (ii) (that permits corporal punishment as a disciplinary
measure) and 37(4) (that prescribes
the forms and restrains on corporal
punishment) of the Delhi School
Education Rules (1973) were illegal,
arbitrary and violative of Articles
14 and 21 of the Indian Constitution.
Justice Anil Dev Singh, in his
judgement argued that when there is
no corporal punishment for adults
why are children put in a separate
class and subjected to legal forms of
corporal punishment. The Court in
stating that the above mentioned
rules were unconstitutional as they
created an unequal and unjustified
separation between adults and children, stated that:
‘Article 21 in its expanded horizon
confers medley of rights on the person including the following rights :1. A life of dignity.
2. A life which ensures freedom
from arbitrary and despotic control, torture and terror.
3.Life protected against cruelty,
physical or mental violence, injury
or abuse, exploitation including
sexual abuse. All these rights are
available to the child and he cannot
be deprived of the same just
because he is small. Being small
does not make him a less human
being than a grown up. We are
not mentioning other rights flowing
child rights
from Article 21 as they are not ment can make the child adopt the
relevant for the purposes of same tactics when he grows up for
present petition. Article 21 makes getting what he wants.’
no distinction between a grown up
The judgement also heavily relied
person and a child.
Whatever on the principles of the Convention of
rights are available to the former the Right to Child (CRC), which proare also available to the latter. vide for the States to protect the ‘best
It also appears to us that corporal interests of the child’ as paramount
punishment is not keeping with in providing for safe environment,
child’s dignity. Besides, it is cruel to education, health and protection
sub ject the child to physical vio- from any form torture or cruelty.
lence in school in the name of One of the more relevant provisions
discipline or education. Even ani- of CRC, Article 28, states that
mals are protected against cruelty.’
“State parties shall take all approJustice Singh reprimands the use priate measures to ensure that
of ‘pain’, in however limited a man- school discipline is administered in a
ner, as a means of discimanner consistent with
plining the child and
the child’s human digillustrates in most apt
nity”.
terms its adverse conseIndia ratified the CRC
The historical
quences and therefore
in
1992
and
the
the need to abolish cor- guru-shishya
National Policy on eduporal
punishment divide, where
cation was amended
altogether:
thereafter in compliance
‘The fall out of use teacher is
to the CRC. Provision
of physical force on the above all and
5.6 of the policy a generchildren in schools by
al
‘child
centered’
close to God
teachers defeats the
approach to education
very purpose for which adds to the
abolishes corporal punit is applied. Infliction power of the
ishment
stating
of bodily pain as
that:‘Corporal punishpenalty
for teacher as the
ment will be firmly
indiscipline
of
the educator.
excluded from the educhildren at school may
cational system…’
have different effects
Conclusion
on different children. Some chilThere is a huge abyss with the
dren may become submissive
while others may learn that pun- wide practice of corporal punishment
ishment is an accepted mode of at one end and the right policy and
ensuring compliance of one’s wish- judicial decision prohibiting corporal
es by others and that physical punishment at the other. The gulf
violence is an accepted means of clearly is in the enforcement of the
exercising control over them. With rules. For the law to be enforced, it is
the latter class of subjects, violence also practically impossible for the
becomes means to acquire what legal watchdogs to be present in
they wish.Thus violence becomes every classroom or every distant
an integral part of their lives. It is nook and corner of the country. And
difficult to imagine the future of a probably what is more important is
nation whose children believe in just something as simple as awareviolence for subjugating others or ness and knowledge of alternatives.
A two-pronged approach is needed;
being submissive to force. Brutal
treatment of children can never incul the first begins with something as
cate discipline in them. Obedience simple as awareness and other on
exacted by striking fear of punish- the enforcement of rules.
47 combat law
 April - May 2004
Conferences should be conducted with students for planning
acceptable behaviours of punishment, use of school psychologists, detentions and rewarding
positive behaviour in students
are such examples. Alternatives
should teach children to be selfdisciplined
rather
than
cooperate under the fear of pain
or torture.
 Teachers need discipline too.
Stress-release and anger-transforming workshops for teachers
as well as children is a must.
 Every classroom should have
children’s rights clearly displayed and written in a way
that the youngest child can
understand.
 Also the career and success
obsessed Indian society should
rethink its high expectations on
children and remodel them on
realistic expectations of the
developmental ability of the
children.
For the purpose of enforcement of
the law:
Parents forums, like the one that
brought the case in the Delhi High
Court, should play a more active role
in reviewing the activities of school,
which includes the behaviour of the
teaches towards the students
Empower the students to stand up
and speak against any violations
Finally and foremost educating the
students and the parents that their
child shall not under any circumstance suffer physical abuse of any
kind at the hands of a teacher, educator or a trainer, in such capacity.
Endnotes:

i.
Mode (1996). ”Attitudes Study on
Elementary Education in India A
Consolidated Report”, A Study Sponsored
by UNICEF
ii. http://www.slate.com
Alok Gupta is a student of law at
the University of Bombay.
CL
reports
made to the ex-lessors the erstwhile landlords exerted
much pressure on various governments to return all
their land to them. Subsequently the State government
amended the Principle Act in 2001 which came into effect
in 2003 which allowed for the return of land to the exlessors upto the ceiling limit but no limit on the annual
income of the landlord.
Since 1982 the adivasis have been cultivating a small
part of such surplus agricultural land earlier belonging
to joint sugar companies and presently owned by the
Government, which was not being put to cultivation by
the Corporation as well as by the State Government. On
28th November 1991 the Maharashtra State
Government passed a G.R No. LEN-1090/PK 172/J-1 for
the regularization of encroachment made by persons
belonging to Schedule Tribes upon Government land.
These adivasis fall under this category. However, inspite
of repeated applications being made to all concerned officials their application for land titles not processed.
Finally in 2001 BHA filed a petition before the Bombay
High Court, Aurangabad Bench for regularization and
application for land titles. The petition was disposed off
with directions to the government to consider and decide
the applications of adivasis to regularize their possession
as per civil policy by following principles of natural justice.
On June 4, 2002 the Collector passed an order rejecting
the claim of the Adivasis without holding enquiry or following principles of natural justice. The action of the
Collector, is questionable given the fact that BHA have
provided him with the orders of the Supreme Court on
the issue of conducting an inquiry even when the
claimants do not have any documentary evidence in support of their claim. BHA filed a Revision Application
before the Revenue Commissioner, Nasik. The said
application is pending. Despite the pendency of the application and the ongoing High Court Case some 150 adivasis were evicted and their huts and other property were
damaged and thousand acres of standing crops destroyed
during the period from July 21-23, 2003 and subsequently sporadic demolitions in August and September 2003.
The panel visited the site and met with some of the
evicted adivasi families. At the various sites the panel
saw charred remains of the huts, a complete removal of
the standing crop and a deep sense of loss among the people who were evicted.
In each site, it was clear the adivasis have been in possession of the land for a long period of time because the
area is heavily forested with thick growth of vedi babul
– a strong drought resistant tree. Prior to being able to
cultivate the adivasis have uprooted the vedi babul and
clear the land of the deep roots of the vedi babul, a task
that cannot be completed in a couple of year, as shoots of
the tree sprout up from roots left in the earth.
The Tribunal met with some of the families who had
49 combat law
been evicted. Some of them were able to show proof in
form of ration cards that they had been residing there for
over 13 -14 years. Others had lost most of their documents in the demolition. Over and over again the
Tribunal was told the same story – that no notice was
given to the people, the crops were destroyed and people
evicted inspite of having lived and tilled the land for several years. Moreover the demolition was done during the
height of the monsoon.
Official Response
Except for the Collector who was in Ahmednagar the
Panel met with the Police Inspectors, the Tehsildar and
all the other concerned officials including Mr. Warkar,
Estate Manager of MSFC. In the meeting that followed
the Thesildar stated that the rights of the Adivasis had
already been decided upon and they were given orders to
evict. He and Mr. Warkar Estate Manager of MSFL
showed the Panel the copy of the Judgement of the High
Court which directed the State Government to take a
decision on the claim of the adivasis. However, the order
which was shown to the Panel clearly shows as a matter
of fact their rights were not decided.
Public Hearing
About 100 people gathered to meet with the Panel on
September 12, 2003 in Puntamba. This community of
people landless casual labourers who used to previously
migrate for sugarcane cutting as well as to the brick
kilns in the off seasons. The average size of the family
group is six including parents. The educational level is
next to nothing. Due to the seasonal nature of their
employment most of them are heavily in debt. It was out
of sheer necessity that they began to clear the government wasteland it took almost years two years the clear
an acre of land at the cost of Rs. 3,000/- per acre. Most of
the families have occupied about three to four acres of
land. Each year they spend around Rs. 2,000/- per acre
for cultivating the land. If the weather is clement they
can manage to produce their food requirements for the
following year and need not migrate in search of work or
food. Each family also keeps a small amount of livestock
in the form of cows, goats and chickens. This has been
the practice for atleast two decades.
The tribals who deposed before the panel also mentioned that in a certain hamlet where a group of tribals
had voted for a local politician, those tribals were not
evicted inspite of that fact that they were also living on
the MSFC land.
Findings and Recomendations
After going through the background of the events, the
site visits and meetings with the various officials the
Tribunal is of opinion:
 April - May 2004
reports
performance and panel discussion. There was hardly
room to sit, stand or even lie as the small auditorium was
filled up with eager minds and beating hearts!
The festival was formally opened with a spoken word
performance and a video collectively made by Lesbians
And Bisexuals In Action (LABIA, formerly Stree
Sangam), OLAVA and HUMJINSI. It was screened
much to the pleasure of hooting queer junta; even the
straight folks couldn't suppress the urge to clap. For once
a predominantly queer space had been created where
many for the first time were compelled to think of the
privileges that are a given & taken for granted within the
norm of sexual and gender expression.
39 Films of different genre including feature length fiction, shorts, experimental, documentary, animation &
mixed media presentations of varying durations from
across the world were thematically organised into 25
packages and screened over 3 days of the festival. The
festival also included 2 powerful and moving spoken
word performances by Nighah Media Collective and 2
provocative panel discussions on sexuality, gender and
issues of representation.
Most packages were followed by Q&A with either filmmakers in attendance or other people who could address
the issues raised by the films. The questions revealed a
genuine curiosity on part of the audience to know more
and we could clearly see that these encounters are rare.
The quality of these discussions were very high and occasionally we had to deal with naïve questions & statements about people dying after 15 years because they are
homosexuals or that a bisexual woman is one who has
hair around her nipples! Though many of these questions
were exasperating, there was also the realisation that
this film festival was for many, their first brush with sexuality and gender variance.
Following its debut in Mumbai the festival traveled to
other cities as well. OLAVA an autonomous lesbian and
bisexual women's group from Pune and PRISM an
autonomous group working for sexual rights in Delhi
hosted the festival in their cities. Many of the films from
the festival were also screened at the World Social Forum
organised in Mumbai in January 2004.
In a sense LARZISH was able to publicly launch an
alternative viewpoint. The festival as well as the publicity campaign that revolved around it was effectively able
to generate positive visibility for the queer communities
and to connect with the demands of the LGBT movement
for the repeal of Section 377 of the Indian Penal Code.
The ideas released are resistant to the imposition of
silence and although the queer community continues to
exist under threat, its presence has made a visible and
tangible impact.
CL
51 combat law
POTA - A Movement for
its Repeal
Ten-year old Om Prakash from UP, a POTA accused.
O
n 13 and 14 March 2004, a People's
Tribunal was held in New Delhi to focus
on the gross misuse of POTA and other
security legislations in the country. More
than 55 innocent victims deposed before a
panel of eminent jurists, academicians, journalists and
activists. The panel comprised
 Ram Jethmalani (former law minister)
 Arundhati Roy (writer)

Mohini Giri (former head of the Women's
Commission)

Sayeda Hamid (Former member, National
Commission for Women)
 Prafull Bidwai (journalist)
 Justice D.K. Basu (Former Justice of the Calcutta
High Court)
 Justice Suresh (Retired judge, Mumbai High Court)
and
 K. G. Kannabiran, President, People's Union for Civil
Liberties.
The tribunal was jointly organized by human rights
activists, lawyers and rights-based groups from across
the country. The organizing committee included distinguished human rights activists and lawyers such as
 Henri Tiphange of People's Watch, Tamil Nadu
 Mihir Desai of the Mumbai-based India Centre for
Human Rights and Law
 Teesta Setalvad of Communalism Combat
 Prakash Louis of the Indian Social Institute and
 Colin Gonsalves of the Human Rights Law Network.
Teams from 10 states --- Jammu and Kashmir, Uttar
Pradesh, Jharkhand, Delhi, Andhra Pradesh, Gujrat,
Manipur, Tamil Nadu, Maharashtra and Punjab -- April - May 2004
reports
the cases under IPC continue.
Similarly, 16-year old Roopni Khari was arrested
under POTA in the Gumla district in Jharkhand Her
crime? She organized the women of her village against
patriarchal oppression.
Commenting on the depositions, panel member
Arundhati Roy said, "What is clear is that POTA is a law
that has been passed in order for any state to use it in
any way. It is not just the state that is using the Act is a
disruptive way, but people are using it against each
other."
She further stated, "The government has embarked on
the cause of dispossessing the poor. POTA is a law being
used by a fascist government towards fascist ends."
In Gujrat, POTA was invoked for the first time in 2003
immediately after the Godhra incident. In one year 287
people were booked under POTA. All among them were
Muslims.
In his presentation, Mukul Sinha, senior advocate,
stated, "Waging a war against terrorism has become a
lucrative business. But what do you do in a state where
there are no terrorists? So therefore the CM of Gujrat
has used a potent medicine --- POTA to create terrorists.
In Gujrat, the acronym POTA translates into the
Production of Terrorists Act." Sinha works closely with
victims of POTA misuse and their families. He shared
that not one person booked under POTA has been
released on bail.
Zakia Jowher, Coordinator, Community Peace
Building, Action Aid India shared hard facts on the pattern of POTA misuse in Gujarat:
· For every person arrested, there are several others
illegally detained. According to studies of civil society
groups, in September 2003, 350 to 400 persons were in
illegal detention in Ahmedabad. Most among them are
family members of the accused.
· Most of the accused of POTA are employed as electricians, in radio and television repairs, as drivers and
teachers. All the accused are young, below 30 years of
age. Most have been the sole bread earner of the family.
· The accused have been subjected to severe torture
such as electric shock on private parts, moving of wooden roller-like objects on their bodies. Their homes and
shops are repeatedly ransacked.
· Families of the accused have been threatened of
encounter killings if they speak up.
Rashid Machiswala's 32-year-old son Anas is in
Sabarmati jail. "We have been threatened about deposing before this panel. But till we raise our voice outside
Gujarat, we will not get justice," he appealed to the
panel.
As story after story of misuse, violence and torture
rolled out, Sayeda Hamid, panel member and former
member of the National Commission for Women com-
53 combat law
mented, "We have seen so much in the last two days that
one has reached the point that one cannot take anymore.
But we must use the positive energy and courage of this
Tribunal to galvanize a national movement for the total
repeal of POTA."
Ram Jethmalani in his closing remarks stated, "I
regret that I supported POTA. I had reposed faith in the
honesty of the politicians who told me that it would not
be misused. But I have no doubt now that it should go
lock stock and barrel.
He strongly recommended that as soon as a transcript
of the evidence is ready, the members of the jury must
meet, prepare a report influence the course of the elections.
According to Henri Tiphange, Director, People's Watch,
Tamil Nadu, "the Tribunal is the first sign of organized
resistance in the country for the repeal of POTA. The
next step surely is that all human rights movements,
activists and the media come under a common banner
and reiterate what the National Human Rights
Commission had said - that POTO and POTA are not
required in the country. There are enough existing legislations to deal with the problem of terrorism."
Even as the Tribunal kicks off a national campaign for
the repeal of POTA, a fragile 32-year old Manipuri girl
sits on a fast unto death in the security ward of the
Jawaharlal Nehru Hospital in Imphal. Sharmila Irom
will end her fast only after the Armed Forces Special
Powers Act --- a draconian security legislation - is lifted
from Manipur.
In 2004, her 'satyagraha' entered its fourth year. She
remains in police custody and is being force fed. Amnesty
International has recognized Sharmila as a prisoner of
conscious.
In every way, Sharmila Irom is the face and spirit of all
organized resistance against security legislations in the
country. She represents the collective spirit and steel
spines of all those who chose to speak, and loudly, of
their struggle to access justice against POTA.
Participating Organizations of the Tribunal:
Asian Centre for Human Rights, Action Aid (Gujarat),
Amnesty International (India), Communalism Combat,
Janhit, Human Rights Law Network, India Centre for
Human Rights and Law, Indian Social Institute,
Lawyers for Human Rights International (Punjab),
People's Watch-Tamil Nadu, POTA Virodhi Jan Morcha,
PUCL Ranchi Unit, People's Union for Democratic
Rights (PUDR), Thanthai Periyar Dravidar Kazhagam,
UP Agrarian Reform & Labour Rights Campaign
Committee.
CL
 April - May 2004
women
Branding Women
A fact finding report reveals the use of witch hunting as yet another means of oppression
of women in the tribal belts of Nandurbar, Maharashtra.
O
n December 29th, NDTV 24X7, an
English news channel, carried a news
item on cases of witch hunting (where
women have been branded as witches and
subsequently murdered) from the tribal
district of Nandurbar, in the Narmada river belt of
Maharashtra. Alarmed by this report, lawyers at the
Criminal Justice Initiative (CJI) of the India Centre for
Human Rights and Law (ICHRL) decided to conduct a
fact-finding trip.
The fact finding team included Chetna Birje, Alok
Gupta, Vijay Hiremath. The team visited the districts of
Nandurbar on the 10th and 11th of January 2004 to find
out the scale of the violence against women due to the
practice of witch hunting, the cultural beliefs that instigated such violence, the reasons for the recent increase
in the incident of witch hunting and assaults on women.
The team also looked at the real motives behind the
murders of women- Whether women were being killed
due to the belief in witches alone; Whether women were
being killed due to any animosity; Whether the women
were killed due to any property disputes or Whether
women were being killed to acquire their property and
other financial assets. The team also looked at the steps
taken by the local police and the administration to protect the women and the ability or inability of the village
leaders and the village community to prevent this violence against women branded as witches.
Nandurbar is the youngest district in the state of
Maharashtra. It was formed from a division of the
northern part of the district of Dhule on 1st July 1998.
It is a border district nestled between the new Dhule
district in the south, the state of Gujarat to the west, the
state of Madhya Pradesh to the north and east. The population of Nandurbar consists mainly of tribals, mainly
the Bhils, spread over the Satpuda range.
Nandurbar also falls in the belt of the Narmada
Valley, with the river Narmada passing through the
foothills of Satpuda range on its way to Madhya
Pradesh. The tribals of Nandurbar have had their own
fair
share
of
troubles due to the upcoming Sardar Sarovar Dam
Project. Many people displaced by the project are being
settled in Nandurbar.
Branding of Witches
The practice of witch hunting in the tribal communities of the Narmada belt is age old. The tribals believe
54
that certain women are witches because they have
occult/evil powers that need to be controlled and
destroyed. Only the hunt for a witch always begins with
a personal loss. Most commonly it is associated with a
death in the family. Most tribals rely on a ‘Badwa’, a
quasi-ayurvedic doctor also known as a ‘Bhagat’ for
medical treatment. But often if despite the treatment or
with no treatment at all the person dies, the family of
the deceased will gather with the Badwa to opine on
what killed the person that even the herbal medicines
could not save him or her.
Some claim it is the Badwa passing the buck, but its
almost a mandatory custom to expect the Badwa to
locate the reason of death to something more beyond
human control, something supernatural and its often a
witch. The Badwas in an over-rehearsed act will randomly choose a name of a woman from the same village,
he will point the direction of her house and the number
of trees outside in her garden - always someone known
to the family of the deceased. None of this is done for
free and large offerings in terms of food, alcohol and
money are shelled out to solicit these precious details.
Also the search for witch hunting is not inspired only
by something as drastic as death either by illness or
mishap. There are often other more trivial reasons for
example someone falling ill, death of a cattle or even loss
in business. The old superstitious adage of Jado Tona is
the best explanation for almost everything that goes
wrong.
Once the suspected ‘witch’ is identified the process of
revenge sets in. Adivasis traditionally believe in the concept of an eye for an eye. For example the adivasis
believe that revenge in a murder will be complete by
killing any member from the family of the accused.
The women branded as witches are sent for confirmation ceremonies in certain specific shrines, where more
senior Bhagats conduct this confirmation. It often
involves the women being tied up in chain and her ability to liberate herself from it, which is almost impossible, highlight the absurdity of the ritual. The test is really a farce, as it all depends on how much money either
party can provide the Bhagat to get the desired order.
But often with witch hunting the revenge begins with
threats, where women are first warned against stepping
out of their house, or asked to leave the village or face
her death. There are several reported cases of physical
abuse and stoning on women branded as witches. Sexual
violence is also a commonly used tool humiliate the
combat law  April - May 2004
women
Keli Bai – the brutal consequences!
In a tiny hamlet called Runmal pada, located in the Mandvi
Shivarat and Dhadgaon Taluka in Nandurbar, Keli Bai 50
years old and a mother of three, married to an ageing, visually handicapped man, left home one evening of 16th April
2003 to fetch some salt in exchange for some eggs to cook
the evening meal. Little did she or her family know that that
would be the last time they would see her. Keli Bai never
returned and disappeared from the lives of her family.
A few years ago, circa 1995-95, the young son of a
Vansingh Valvi from the same village expired. The family
soon after the child was cremated aproached a badwa who
in this case was actually the brother of father of the deceased
child. The Badwa branded Keli bai a witch and blamed her for
the untimely death of the child. The same evening Keli Bai’s
house was surrounded by five people, mainly the father and
other male relatives of the deceased. They threatened her
stating that: ‘she has given an witch chant against their son,
and that they would kill her.’
Disturbed by this sudden attack and allegations, Keli Bai
called for the Panchayat. The family of the deceased child
refused to show up for it, stating that they believed that Keli
Bai was a witch and were determined to kill her.
In fact one day Vansingh under the influence of alcohol
came with an axe to assault Keli Bai. Nirmula, the 18 yr old
daughter of Keli Bai, remembers that horrific afternoon,
“We brother and sisters were alone at home. He abused my
mother in filthy language and threatened to kill her. My mother lay hidden in the house.” ‘No matter wherever you hide
yourself, but one day you will be eliminated’, was the threat
issued from outside. We brothers and sisters were crying outside. We were pleading with Vansingh. The villagers were
watching. No one came forward for help. No one dares to
help a woman identified as a witch.”
In this way Kelibai struggled for over four to five years.
Sometimes there were abuses, sometimes threats to her life.
Subsequently a land dispute also arose between a relative of
Keli bai and Vansingh’s families. She was regularly harassed
‘she would eat us and our children’ – the people would say if
she stepped out. Another villager lost his mother, who was
women. In the past women branded as witches were
made to parade naked in front of the entire village. In a
reported incident in Makadkund area at Dhadgaon
Taluka a woman branded as a witch had a piece of wood
inserted in her private parts and she had to be admitted
in the hospital for treatment.
Murder is often the final culmination of revenge, but
not necessarily in every case. It is never certain how
long after a woman has been branded a witch, an
attempt for her life will be made, if its made at all. The
death may take place years after the victim has been
55 combat law
old and ailing, this villager was related to the father of the
child who had died earlier. This gave Vansingh Valvi’s family
a fresh excuse to attack/blame Keli Bai. But Kelibai stood
bold hardened by the circumstances.
Finally we return to the horrific evening of 16th April 2003.
The search for Keli Bai after she disappeared for over two
weeks but there was no news, no clues, nothing. At home
Nimla, younger sister and her blind father waited for the
Kelibai. Mother was going to cook food on her return.
However, it was late and mother did not return. Search started in all the villages in the locality and at the relative’s places.
As reported by Ramakant Patil in Sakal dated...
‘Slowly it begin to dark. Kelibai was going to send her
daughter Nimla but however thinking about mountainous
road and dark she decided to go on her own. For fetching salt
she was required to go to Mandvi, crossing one huge mountain. Kelibai chasing the dark reached Mandvi. Rekhabai
Vasave, relative of Vansingh casually invited her to her home.
At home alongwith Vansingh there were 3-4 persons.’
On April 30,2003, Nirmala lodged a complaint with
Dhadgaon Police Station. The police launched a hunt together with the villagers. Keli bai was found in parts, her torso
without her limbs, in a rivulet at a distance of two km at the
north from the precincts of village Mandvi. The tribals believe
that if a witch has to be killed, it cannot be an ordinary murder as the witch could re-surface, so its important to cut her
in parts to make it difficult for the body to come together as
whole again.
Kelibai was brutally murdered in one of the hut in Mandvi
village and her corpse discarded in a rivulet at Mandvi far
away in the jungle. The police tracking the way of bloodstain
traced the hut where the murder took place. By now everybody had came to know that Vansingh had killed her. An
offence of murder was registered under S.302 and 201 of the
Indian Penal Code at Dhadgaon Police Station vide F.I.R. no.
35/03. Bhikha Patle, a relative of Vansingh and a coaccused, was arrested but released in two months on a bail
bond. The rest of the accused include Vansingh continue to
live normal, undisturbed lives.
CL
branded a witch. As was the case with Keli Bai (box)
where she was murdered 8 years after by the same people who branded her a witch.
NDTV reports that ‘in the tribal interiors of
Nandurbar, since June 2003, nine women branded as
witches have either been hung or stoned or burnt to
death.’ There are various reasons for the killing of the
women. Some of the obvious reasons are blind faith and
illiteracy, while it is less known that absence to primary
health care also plays an important role in this practice.
All of this compounded with the apathy of the adminis April - May 2004
women
Chandu Bai
Dhulia a respected village elder
in Mandvi Taluka, Dhadgaon,
had a young son who passed
away one morning through some
water-borne infection. As usual
after the cremation ceremony the
customary quest for the ‘supernatural’ cause of the untimely
death began. Dhulia along with the other men from the family visited
Badwo, a well known Badwa in Mogli Village. Daya (the husband of
Chandu Bai) was an uncle of the deceased child and had gone at the
funeral ceremony to present the customary clean white sheet for the
dead boy’s cremation. Daya went along with the others to the Badwa.
Badwo in his usual practice isolated a pair of grains, in an occult-like
prophecy and squarely and randomly pointed at Daya and blamed his
wife Chandu bai for the murder and branded her a witch. The father of
the deceased child was a highly respected village elder. The whole village was almost obliged to accept his beliefs, when he confirmed that
Chandu was indeed a witch as declared by Badwo and that she
should be sent to her parents home. Daya was asked to go home and
send away his wife, which he bravely refused.
But the matter did not stop there. The family of Dhulia determined to
ensure that Chandu bai leaves the village went to her place and
threatened to kill her if she would not leave her village. To gain support
for herself, at a time when the entire village went against her, she
called on members of her own family, mainly her brothers and
approached the local police station at Dhadgaon to file a complaint.
Tribals do not welcome interference from mainstream law enforcement agencies in their community matters. It is generally preferred
that they be resolved by the arbitration of the Panchayat. The Police
Patil in Chandu Bai’s case went to the police station had got them to
withdrew her complaint against taking full responsibility to arbitrate
the matter through the Panchayat. Chandu Bai and her husband were
only informed at a later stage that their complaint had been withdrawn. The Police Patil did in fact try to bring about conciliation by
calling a Panchayat sitting, but the accused openly refused to accept
any decisions and threatened to kill Chandu Bai if she was not
despatched.
The family of Chandu bai made a second attempt to approach the
Police and file a complaint against Dhulia. This time around again,
soon as the Sarpanch and the Police Patil heard of the second complaint they tried to discourage Chandu bai and her husband to pursue
this matter through the police and to resolve it within the village. In a
shocking repetition the Sarpanch and the Police Patil went to the
police station and got the complaint dismissed for the second time.
But the threats still continue. Chandu bai has now not stepped out of
the house for over six months. One time when she did step out, she was
attacked by stones. She has six children the youngest barely a few
months old. Torn between the decision to look after her family or to leave
and escape the village, she lives under another constant fear – death.
CL
56 combat law
tration and the resistance of the tribal panchayats to let mainstream law govern their internal
disputes has only reduced the hope and
arguably the chances of survival of several
women who have been branded as witches and
await their fate. And all of this just a days journey from Mumbai!
Why are women targetted?
Witches are almost always women, with a few
exceptions of men called ‘daka’ who are often
either related to a female witch or tutored by
one, but never on their own. Women are always
identified as the real culprits. Pratibha Shinde
and Swati Deshmukh, activists working with
the Punarvasan Sangharsh Samiti, through
their interactions with the tribals over ten to fifteen years pin the reasons down to several factors:
Historically the tribals have lived in a matriarchal society. Women have often had at least
equal if not more powers than men. The tribal
women are strong willed, hard working and talented. Women often have more knowledge of the
herbs and of the forests, they farm and control
family affairs. All of which has led to a frustration of the male ego.
The tribals have abundant, almost obsessive,
superstitions about female sexuality and reproductive cycles. The ability of the female body to
mensurate with a precise cycle of four weeks, of
its ability to reproduce another human being
and after a certain stage in their life reach
menopause. For example, Adivasis attribute 30
days of the month to mensuration cycles. And
twelve months of the year are attributed to the
period of pregnancy of 9 months plus 3 months
that it takes for the menstruation cycle to start
again. It is attributed that this confers some hidden, secret, supernatural, occult powers within
certain, if not all, women. There is a very latent
disdain for this female strength.
Eventually it could be argued that the idea
behind female witches is also in some way to
bring down the respect and status of women by
linking their relative superiority to something
evil and dangerous.
Property
Single women who hold property are a special
target of the practice of witch hunting, adding
another non-superstitious but an extremely
insidious motive to the practice. Women are
being branded witches to stealthily acquire their
 April - May 2004
women
Tara Bai Ganga Vadvi
Tarabai had been branded a witch by her husband’s brother over a long standing property dispute.
Tarabai’story was told to us by her daughter Vanti. Vanti’s
family lived in a small village on the foothills of the Satpuda.
Her father owned one of the few pieces of irrigable land in
the area. To secure the future of the family the father sold
some of the family jewellery to buy a water pump with which
they began to farm in their land. Unsettled by the progress
made by the Vanti’s father, her father’s brother began to
demand a stake in the farmland to which he had no entitlement.
But after Vanti’s father died, the uncle became a lot more
aggressive with his demands. He would regularly beat up her
mother and the daughter herself, even when Vanti was pregnant with a child.
To continue the revenge the Uncle branded Tarabai a witch
after his wife died of a long illness in a local hospital. He
brought people who threw stones at Tarabai and her daughter Vanti, threatening Tarabai to leave the village. The pressures and threats for Tarabai to evict the village because she
was branded a witch increased. So much so that the entire
village joined in and pushed Vanti to ask her mother to leave
threatening her that she would in turn become a witch herself
if she does not take any action against her mother.
Tarabai finally gave in and mainly for the safety of her
daughter left the village to go and live with her parents in the
village of Utvada near Taloja. The uncle acquired large parts
of her land illegally and took it under his possessions. CL
property and other assets. Branding a woman, a witch,
is the easiest way of justifying her eviction from the
property or even her death and getting her out of the
way to illegally acquire her property. Mostly widows are
targeted, who have inherited their husband’s property.
The people responsible are close relatives. The example
that best illustrates this is the story of Tarabai (box)
Conflict between the Police/legal system
and tribal affairs
Tribals prefer to solve their internal disputes within
their own system and means. Panchayats are the most
revered institutions, every body wants to solve village
matters within the village mechanisms. Therefore, in
the cases of witch hunting if tribal women, or her family, do dare to approach the police for assistance, she is
shunned by the village and the village elders. On the
other hand, an already lethargic and uninterested police
force is pressurised by the village elders and panchas to
leave the matter to them. This is exactly what happened
in Chandu Bai’s case.
Mr. Padmakar Vavli, a local MLA from the tribal com-
57 combat law
munity for the Taloda Constitutency, openly admitted
that the police in the tribal area were corrupt. ‘Witch
hunting is a social disease’, he proclaimed, but added
that ‘most cases get resolved within the tribal panchayats.’
But not always so. According to Pratibha Shinde there
is an ideological conflict. ‘We have always advocated for
more autonomy for the tribals to govern their affairs,
including resolution of disputes through their own ajudication process. But in the cases of witch hunting, even
we feel that the police should be involved as the panchayats are not always able to resolve the matter.’
Another fear with leaving the village panchayat and the
police patil to arbitrate is the real possibility of bias as
has been the case with Ambi and Vajli (box).
Ramakant Patil, a journalist with the Dainik Sakal in
Nandurbar, and an expert on tribal affairs is less harsh
on the police. He believes that the police needs the support of the bureaucracy to go ahead and arrest the
accused in cases of witch-hunting, or else they fear the
repercussions from the tribal communities. The local
police expressed similar sentiments mixed also with
frustrations. Most of the times when a case is actually
taken up, most witnesses or panchas turn hostile at the
stage of trial, leading to quick acquittals.
In an interview with us the District Collector of
Nandurbar, Mr. Sanjay Khandare admitted that ‘Police
does not take the cases seriously and prefers to leave it
on the Panchayat.’ He admitted this had to change and
was in the process of initiating some sort of an action.
Another important problem with taking the practice of
witch hunting to a criminal task is that there is no specific act or legislation in the state outlawing the practice. When cases of witch hunting lodged, ‘witch-hunting’ as a culture practice that has led to the crime is
never mentioned as a main reason. Cases to the police
only go when an incident takes place, not after she has
been declared a witch. In the period from being declared
a witch to the occurrence of any unfortunate incident,
the women have no access to the support and protection
of the law and enforcement agencies.
The practice of witch hunting has reached a stage
where women are being branded witches for reasons
other than superstition alone. Witch hunting has
become an easy way to avenge a rivalry or most of all
acquire land and property as had happened with Tara
Bai.
Conclusions
The issues here are many and the urgency grave especially in lieu of the fate of Keli Bai, which could be of
many other women. Everyone agrees that education
against the superstition of Witches and witch-hunting is
the need of the hour, especially as the practice and belief
 April - May 2004
women
Ambi and Vajli
This is an incident that was reported by Dr. Shivaji
Dedsingh Pawar via a letter to the Editor of Dainik Sakal
dated 30th December 2003. Dr. Pawar wrote the letter to
solicit some media response to save the lives of two of his
aunts who have been branded witches in the village of
Shrikhed, Tal. Shahada, in Nandurbar.
In November 2003, in Shrikhed, two deaths occurred
almost simultaneously, one due to Chronic Hepatitis and
the other through snakebite. However, the family of the
deceased men held two women Ambi Bandya Pawra and
Vajli Ambalal Pawara responsible for the death and branded them witches. Both of these women are relatives Dr.
Pawar, the author of the letter to Dainik Sakal.
The family of the two women now branded as witches and
fearing their lives, reached the Police Patil to take action
against those responsible for branding them witches and
resolve the matter. The Police Patil who is duty bound to
assist victims in such cases instead of going to the Police
Station and registering a complaint or calling for a sitting of
the Panchayat, only aggravated the situation by joining
family who branded Ambi and Vajli as witches.
Dr. Pawar also alleges in his letter that village-wide contribution of Rs. 50 each has been collected to organize a
visit to ‘wise’ badva who is also a priest at a Vithoba temple
in Madhya Pradesh to ascertain whether or not the two
women are witches. The village community had set aside
29th November 2003 as the date for the visit.
Dr. Pawar concludes his letter with the disgrace, trauma
and fear that has come to occupy the lives of Ambi and Vajli
CL
and their families.
is so widespread that a very ambitious and pro-active
programme is needed. The problem lies at responsibility. People pass the buck. Besides education the lack of
access to basic, primary health facilities are shocking.
Pratibha Shinde of the Punarvasan Sangharsh Samiti says
that throughout the tribal belt it is impossible to find a doctor with an MBBS degree. According to official figures in
Nandurbar district alone around 2053 infants and children
have died mostly due to ill-health, and often curable diseases. Tribal Research Centre, a think-tank run by Arun
Bhatia, through a survey 114 villages in the tribal belt
reports that almost 57 per cent deaths of children are not
recorded.
So along with lack of education and a more progressive
and less superstitious perspective to life, the tribals
have appalling public health facilities and access. This
has been compounded by sheer inaccessibility of most of
the tribal villages where often only less than ten per
cent of the villages can be accessible by any kind of vehicle.
58 combat law
It can be argued that to eradicate the practice of
witch-hunting we need much more than just education,
we need to ensure that tribals have upgraded health
standards so they learn to believe in western medicine,
science and hopefully substitute some of their beliefs on
death from something supernatural to natural ailments
and their cures. Maharashtra Andhashraddha
Nirmulan Samiti together with the government has
decided to create awakening.
A law on Witch Hunting
One of the main demands that came out of the fact
finding were for a specific law both for forbidding the
practice of witch hunting, and providing a mechanism
by which people responsible for branding of women as
witches can be prosecuted. The opposing view states,
compellingly that the Indian Penal Code has sufficient
provisions under criminal intimidation, assault, grievous hurt and murder to book people responsible for
branding women as witches under the purview of Law.
Any action by the police is often taken only at the point
when women actually suffer some tangible consequence,
like assault, or grievous hurt or even death due to their
branding as a witch. There is, despite the Indian Penal
Code, glaring gaps to; take cognizance of branding of a
woman as a witch itself as an offence; providing her
with the much needed protection after that, and; prosecuting the people responsible for branding the woman as
a witch. There is a need for a law on the lines of the
Bihar Anti- Witch hunting Act 1999. The legislation
should be aimed specifically to eradicate the practise of
branding women as witches and killing them. Branding
a women itself should be made illegal and the offenders
should be penalised.
Recommendations
There is a need to institute an enquiry to determine
the need for a proper legislation that allows prosecuting
the Badwas along with the prosecutors. The state has to
provide special protection for women branded as witches and also making investigation a lot easier. The team
also felt that protection for witnesses and panchasshould be provided. There is also a need to gain the trust
and support of village panchas and police patil.
The health and education services in the district of
Nandurbar and the villages therein should be upgraded.
The government needs to work with NGOs to bring
about change through awareness campaigns regarding
the blind faith and educating people about the falsity of
the concept of evil spirit.
It is also pertinent that women’s and tribal rights
groups conduct their own investigation and provide
more nuanced and contextual understanding of the
existing scenario and make their own additional
CL
recommendations.
 April - May 2004
women
Sati Judgement - An Appeal
3rd March 2004
New Delhi
police, the testimony of investigation officer as saying
that as they are sheer policemen they do not have to be
trusted. This is against the basic Indian Law.
Ms. Vasundhara Raje
Chief Minister of Rajasthan
Jaipur
d. the judge goes outside his jurisdiction and gives a
definition of Sati as all those woman who spend their
entire lives with one men and are pure and of character,
clearly shows the judges disregard for his office as the
law has clearly not defined Sati in this manner.
Dear Madam,
16 years after Roop Kanwar's immolation, 22 cases in
the Sati glorification matter of 1987 came up for hearing
in the Special Sati Court in Jaipur in 2003. The judge
acquitted all the accused in the four cases that completed trial on the 31st of January 2004. Some of the accused
that were acquitted are senior leaders of yourparty.
Since then, women's groups in Rajasthan have been
trying without any success to meet with you to urge that
in your capacity as Chief Minister you ensure that the
State appeals against this judgement with urgency. But
with appalling lack of concern, you have failed to respond
to them. Hence, representatives from women's groups
from all over the country are gathering in Jaipur in
protest today.
In solidarity, representatives of women's groups and
concerned individuals in Delhi are simultaneously
attempting to meet the Resident Commissioner of
Rajasthan in Delhi. Because only in challenging a practice as retrogressive as Sati, and a judgement as biased
as this, can the state of Rajasthan demonstrate its concern for women, and its commitment to uphold the laws
of the land that clearly do not allow either the practice of,
or the glorification of Sati.
1) It is evident that the judgement in the Roop Kanwar
case is full of loop holes.
On five grounds we feel that the Government can
appeal in the Rajasthan High Court.
a. the inaccurate interpretation of glorification as a
practice that has to be
connected with the event of Sati, that the Judge Mr.
Shiv Singh Chauhan has made in the judgement, is
against the 1987 Rajasthan Ordinance of Sati Prevention
under which these cases were tried.
b. the judge even completely disregarded the Supreme
Court judgement which had set aside the order of the
Rajasthan High Court with regard to the notification of
the District Magistrate regarding section -
e. the contradictory nature and the predetermined
mind of the judge is clearly highlighted from the fact that
once he had given the above interpretation of glorification as being linked to the incident of Sati, he need not
have appreciated the evidence regarding glorification.
We feel these facts are enough to take the matter for
appeal to the Rajasthan High Court.
2) We also feel that action needs to be taken against all
those official witnesses who turned hostile. Some of them
are Nar Hari Sharma (ADM), Gyan Prakash Shukla
(SDM Amer), Shukam chand (ADM Neem Ka Thana),
Madho Lal (police photographer), Bhoop Singh (ASI),
Nathu Singh (Head Constabel), Noor Mohammed (RAS),
Nathu Ram (ASI), Prabhu Dayal (SI, Behror) Ram
Niwas (RPS, SHO Adarsh Nagar), Satish Kumar
(Bhilwara SHO), Sawar Mal (constable), Chagan lal
(SHO, Nagar Nigam, Jaipur), Prabhu Singh (SI, Patan
Sikar ).
3) We also feel that the 18 other cases that are undergoing trial need to be conducted not with just one Public
Prosecutor but a support group of legal experts.
Thus a committee needs to be constituted to lead the
prosecution with strength.
It is a matter of grave concern that even in the year
2004 we cannot convict people of glorifying the heinous
and barbaric act of Sati.
With regards,
Saheli,
CC: Resident Commissioner, Bikaner Bhawan, New
Delhi
Saheli Women's Resource Centre
New Delhi
c. the judge has rejected the evidence provided by the
59 combat law
CL
 April - May 2004
communalism
Passing the saffron buck
BY HOSHEDAR HAVEWALA
T
he Jhabua rape - a major travesty of human
rights, contorted into a spark of communal
violence. The tragic and gross death of a
girl, used to pursue an anti-minority agenda
using
methods
that
local
human
rights activists compare to events in the neighboring
Gujarat in 2002.
Jhabua is a predominantly tribal district in the state
of Madhya Pradesh, to the eastern border of Gujarat,
adjacent to Godhra, infamous for its recent communal
turmoil. Jhabua's claim to (in)fame is its highest crime
rate in Asia. The diocese of Jhabua only has 30,000 members out of the 1,400,000 population of Jhabua district.
There have been no conversions in the last decade. On
11th January, 2004, a nine-year old girl, daughter of a
fruit vendor, and her brother Suraj were running a stall
on Monday when their father had moved out for a short
while. An unidentified person then arrived at the stall
and asked the girl to deliver fruits to some nuns at the
nearby Catholic Mission School and Church, and collect
the payment for the same from there. After the girl followed the man into the school, she went missing. Her
body was later found in a school toilet.
The subsequent series of events took a horrific communal twist. The VHP and Sangh Parivar declared 13
January a day of protest, apparently accusing the
Christians/Church and headmaster of the school of the
crime. Some groups related to the Sangh Parivar held
processions in different
towns, burned the effigies of the Bishop and priests in
public places, shouted slogans and distributed inflammatoryleaflets against Christianity. The Parish Priest,
Assistant Parish Priest, two Regents of Jhabua Parish
and the Principal of Jhabua Mission School were
detained at the Police Station. On 14 January, a large
crowd forcibly entered the campus, beat up around ten
priests, pelted stones at the
building and destroyed vehicles parked in the campus.
The Superintendent of Police and the police force tried to
control the crowd but were outnumbered. Towards the
evening, a crowd of more than a thousand people gathered around the mission compound and started to throw
stones. By night, the Inspector General from Indore
reached Jhabua with more personnel. On 15 January,
the Madhya Pradesh Home Minister visited the district
and made a statement that seemed to accuse the
Christian missionaries of the crime. The crowds continued to pelt stones at the church.
By evening of January 15th however, the District
60
Magistrate called representatives from the town for a
peace meeting. The Bishop took part in the peace meeting and met the priests in custody. By the end of the day,
the police succeeded in identifying the culprit, who
admitted to the crime. He worked in an office near the
Church and is not a Christian. But even after this, communal turmoil continued. Even articles in newspapers
suggested that the priests were involved in the rape. A
Hindustan Times article dated Jan.17th read thus : "At
least one person was killed and dozens injured as Hindu
and Christian groups clashed in Amkhur village near
Jhabua, where a girl was allegedly raped by a Christian
missionary." - This was all that was printed, and any
reader would deduce from this that it was the priests
who were involved.
The priests and other persons detained as suspects
were released on 16 January. But that was hardly the
end of their woes. That same day a few sadhvis (female
disciples) from Gujarat went to the village of Amkhut,
60km from Jhabua. After a discourse against conversions, they proceeded to the Church of North India (CNI)
mission, where, accompanied by a police officer who
stood outside as they entered the campus, raised slogans
against Christians, distributed inflammatory material,
went into classrooms where examinations were being
conducted and tore down posters of Jesus. This was
downright 'dadagiri' on their part. The entire village
gathered at the mission premises and pelted the sadhvis
with stones, forcing them to flee. When this news
reached Alirajpur, a neighbouring town 29 km away, several armed men led by the local Member of Legislative
Assembly (MLA) of Alirajpur rushed to Amkhut (which
is not even in his constituency). Bhil Christians were
injured and one of the vehicles was ambushed. One of the
people with the MLA was killed in the fight. When news
of this attack reached Alirajpur an unruly mob of VHP
and Bharatiya Janata Party (BJP) men attacked churches and Christian homes in the town. A Catholic Priest,
manager of Don Bosco School at Alirajpur, was brutally
beaten with sticks and iron rods resulting in serious
injuries. They attacked houses of the Christians in the
town and set some on fire. The mob then went to the
property and farm owned by Don Bosco School on the
outskirts of Alirajpur, hacked down trees and vandalized
the fencing, the pump house and the drip irrigation system.
The
violence
and
vandalism against the Christians continued well into the
next week.
Despite the culprit being arrested and admitting to the
crime, VHP and Hindu Jagaran Manch activists are
pressurising Catholic priests to confess that one of them
combat law  April - May 2004
communalism
is the 'real rogue' behind the heinous crime. Church
sources say that there has been a slow, sustained campaign against the Church and its activities over a period
of years.
Although the identity of the criminal at the Mission
compound was clearly established, the protests, misinformation and mass mobilization led by the Hindu
Jagaran Manch, and supported by Vishwa Hindu
Parishad, Bajrangdal and Durga Vahini and other
Sangh Parivar associated groups, continued. It is
believed that their aim was to try to turn tribals against
Christians and missionaries. The methods used were
compared by local human rights activists to events in
Gujarat following the Godhra incident of February 2002.
Church sources fear that the campaign of harassment
is not over. The recent installation of a Chief Minister
who had earlier been known for her extremist views, and
the transfer of top police officials who acted swiftly in
these incidents are giving rise to concern among local
people. MP Chief Minister Uma Bharti is now repeating
the same false allegations after the
Jhabua incident that were levelled against Graham
Staines - that of converting poor tribals by offering them
'allurement'. At a press conference in Bhopal earlier this
month, Bharti, rather than appealing to Hindu Jagaran
Manch and VHP activists to let the police do their job,
stated: "Reports of conversions in Jhabua district have
surfaced repeatedly. This activity should stop." This is in
spite of there not being a single conversion in the area in
the last ten years.
The most shocking aspect to this tragedy though was
brought out by the The National Commission for Women,
which correctly pointed out the selfish marginalisation of
the main issue of the rape of a nine-year-old girl and the
raising of other insignificant issues by some groups. This
exposed the present-day attitude of Indians. The main
issue was the rape of a minor, helpless girl, not who did
it. It would have been an equally demonic act, whether it
was committed by a saffron hardliner or a Christian
priest, but this basic point was overlooked. Instead, the
communal angle was more delved into. This not only
shows us the mindset of the people, but reflects the social
fabric of India which, over the conservative centuries has
become so base. The most tragic aspect was that even the
educated press covered the issue from a purely communal angle, rather than as a humanitarian travesty.
This incident is one in a series of anti-minority attacks
by the saffron wave. With MP now under BJP rule along
with neighbouring Gujarat, minorities like the
Christians can expect tough times ahead. Its not a question of whether the Hindutva brigade continues its activities against the minorities, it's just a question of when.
Hoshedar Havewala is a first year law student at the
National Law School of India University, Bangalore.
CL
rights watch
The Mumbai High Court in March 2004
made a decision concerning the film
Father, son and holy war by the famous documentary film maker Anant Patwardhan. In this
film the Censor Board had granted certificate but
the Government owned Doordarshan was refusing
to telecast the documentary. Part 1 of the film
had been granted "U" certificate and Part 2 had
been granted "A" certificate. This documentary
had received two awards in two different categories i.e. best investigative film and best film on
social issues at the 42nd National Film Festival
conducted by Government of India. The film has
also won international film award. Patwardhan
submitted his film for being telecast to
Doordarshan. Even this film was refused telecast
on the ground that the film had lot of provocative
things which may promote violence.
The film in the words of the Court " The documentary is trying to explore the link between the
indoctrinate mechanism of patriarchal order and
61 combat law
communal aggression, and attempted
to analyse relations between patriarchy
and violence and suppression of women. The documentary, traversing
the paths of atrocities
through monitoring lanes of trouble torn India
brings out connection of violence , fundamentalism and masculinity and forcibly makes a pray
that the victims and loses of all wars and violence,
whether it be in the name of religion or patriotism
are women".
The court after viewing the film came to the conclusion that the film had a serious message to
convey and was relevant in the present context. It
further held that Doordarshan being a State controlled agency funded by public fund could not
have denied access to screening the Petitioner's
documentary except on valid grounds. The court
further granted adults certificates on the T.V.
Consequently the court directed DD to show the
film on T.V.
CL
 April - May 2004
judiciary & polity
Cyber Crime and
Indian Society
A pragmatic approach of all concerned is
needed to tackle this crime still in its
nascent stage in India.
BY ANURADHA PARASAR
A
report written near the start of information
Age warned that computers were at risk
from hackers. It said that computers that
control our power delivery, communications, aviation and financial services and
store vital information, from medical records to business
plans, to criminal records, were vulnerable from many
sources, including deliberate attack. The modem thief
can steal more with a computer than with a gun.
Tomorrow’s terrorist may be able to do more damage
with a keyboard than with a bombi.. It has been predicted that cyber crime is the wave of the future. The computer world and the Internet frontier are perfect for
criminalii. activitiesiii.. Dr. Uday Kumariv. in Chennai
stated in a three days capsule course for officers of the
rank of Dy. Superintendents of Police that Human
beings have not changed mentally. Mentally, they are
still living in jungles. Only their tool of crime has
changed over the ages.
In India cyber crime is no longer an illusion but it has
not received the attention it deserves. This is so because
law and socio-cultural issues regarding cyber world and
naturev. of cyber crime are still taken for granted with
ignorance. The development of cyber socio-cultural
deviance in our country in the last five years appears to
be inversely related with development of cyber law. Dr.
Nirpen .L. Mitra vi. is of the opinion thaat law behaves
like a traditional hindu wife, staying seven steps behind
her husband. Although there is continuous growth in
cyber crime and mis-use of World Wide Web, the law
and society are almost stagnant in this regard. The
increasing rate of cyber crime is now opening the eyes of
society and law enforcing agencies at all levels.
In a seminar titled ‘Cyber Law and Police’ on July 23,
2000 Information Technology Minister Pramod Mahajan
said that India has not woken up to the cyber crime and
that this was the biggest challenge facing the law
enforcement agencies. He further added that cyber crime
is different from physical crime. You need different
methods to combatvii.. Recognizing and anticipating the
fatal result of cyber misuse the Central Bureau of
Investigation (CBI) in August 2000 set up a “Cyber
62
AMITA CHAVAN
Crime Research & Development Unit” (CCRDU) to collect and collate information on cyber crime reported from
different parts of the countryviii.. Also the Cyber Crime
Investigation Cell (CCIC)ix. of the CBI, notified in
September 1999, started functioning w.e.f. 3.3.2000x..
The first cyber crime police station was opened in
Banglore, which is the IT capital of India on August 30,
2001xi.. Not only this, Indian police has also made first
Cyber Crime arrest on 02/09/01 in New Delhixii. and has
also drawn up cyber crime as digitalxiii. signaturexiv..
The internet today provides avenue for a wide range of
cyber crimes including several insider attack xv and outsiders threats. Along with this Hackersxvi., hactivismxvii.,
Virus writersxviii., Criminal Groupsxix., Denial of service
attackxx., Terroristsxxi, Sensitive intrusionsxxii.,
Information warfarexxiii. and Jurisdictional problemxiv.
are the serious cyber threats, affecting society. Although
Cyber crime in India is still in its nascent stage the
importance and consequences of cyber crime and its
implication on socio-cultural deviance in Indian Society
is being noticed. The government drafted the IT Bill of
1999, which was implemented as Indian cyber law i.e.
Information Technology Act 2000 (IT Act 2000) on
October 17, 2000xxv.. IT act also provides compensation
to the victim of cyber cases upto Rupees one crorexxvi..
Adjudicating officersxxvii. judge cyber law cases. India is
among the feww countries in the world that have cyber
Laws. Analyzing the devastating effect, which the
Internet can cause in India, even Insurance companies
are also offering insurance against all kinds of cyber
crime, including loss of airtime, to the extent of $25 millionxxviii.. Even few police individual from the rank of
DCP from different state are being trained by IT
combat law  April - May 2004
judiciary & polity
professional for the cyber crime happening in different
states of India.
The National Crime Records Bureau and the C.B.I.
handle cyber crime in India. As far as statistics is concerned The National Crime Records Bureau does not
have any statistics of cyber crime across the country
whereas the C.B.I. deals only with special cases. In the
year 2000 C.B.I. has handled 7 cases (this is the year
when Cyber Crime Investigation Cell, Delhi was set up).
In 2001, the number of complaints rose to 19 and so far
in 2002 there are 16 complaints registered with them. A
few eye-opening examples of documented cyber law cases
in India are hacking of the Mumbai police Web site, illegal sale of an Indian company’s software by an Indian
employee in the US, sites providing information about
hacking and stealing credit card numbers, theft of
account information from State Bank of India computers
in Raigarh, crashing of Phoenix Global Solutions’ main
server by a disgruntled employee, harassment and stalkingxxix. of women online, obscene messages victimizing
innocent women, hacking of a company’s Web site by a
fired employee, spamming against a UK site by a
Pondicherry teenager, domain name disputes over
Yahooindia.com and rediff.com, hacking of Indian news
and government sites by Pakistani groups, and even sexually improper content posted on a Web site by a schoolboy in Delhi. All these crime differ in nature and scope
from each other. Although the above statistics shows
that cyber crime in India is still at its nascent stage, the
Government, law makers and law enforcing agencies
have to be aware of the harm and dangers, which Indians
society and economy face if not dealt with properly.
Hence, the law enforcement agency should equip itself
well to fight against cyber crime based on the experience
of other countries where one can see full fledged cyber
crime in its youth.
Internet-related crime like any other crime can be
reported and taken care of with all due regards by appropriate law enforcement investigating authorities at the
local, state, federal, or international levels, depending on
the scope of the crime. Some federal law enforcement
agencies across the globe that investigate domestic crime
on Internet include Federal Bureau of Investigation
(FBI), NIPC (National Infrastructure Protection Center),
United States Secret Service, The United State Custom
Service, United State Postal Inspection Service and
Bureau of Alcohol, Tobacco and Firearms (ATF). Other
federal agencies with investigative authority are The
Federal Trade Commission and The U.S. Securities and
Exchange commission.
In India Cyber Crime Research & Development Unit
(CCRDU) and the Cyber Crime Investigation Cell
(CCIC) of the CBI handle crime in cyber space so as to
give a safe and secure cyber society. But government
63 combat law
efforts alone are not sufficient to combat this new crime,
responsibility and awareness in society and educational
Institutions at large is most desirable. Even companies
in India need to come up with comprehensive strategies
to fight cyber crime. Along with this in order to prepare
the future lawyers of India to deal with the cyber Law
related cases, the faculty of all Law colleges need to
develop expertise in cyber Laws. Police should also
accept it as their social responsibility to prevent youngsters from indulging in cyber crimes and also to ensure
that cyber cafes were not made crime hubs. Research
programs should be promoted in the sphere of cyber
crime so that law can also keep pace with technology
with all clarity, promptness and effectiveness. However,
there is an urgent need to have a fresh look at the criminal jurisprudence of the country and also there is the
need to adapt the same to the specific requirements of
the online environment. There is an urgent need to
overcome the initial inhibitions and hesitancy on the
part of the corporates to report the matter relating to
cyber crimes.
Indian Society needs to come up with a detailed comprehensive code on cyber crime and computer-related
crime. Today there is the need to come up with a comprehensive legal strategy to counter the menace of cyber
crime. Brushing the issue below the carpet will not help
in the long run. It’s time to change the mindset of the
Indian corporate fraternity in order to ensure that India
puts up a spirited fight against cyber crime. It will also
be prudent for the Indian government to sign the
International Cyber Crime Treaty so that India does not
lag behind. This will ensure that India continues to be on
the same boat as a majority of forward looking nations,
in terms of fighting and regulating cyber crime. The present scenario requires a pragmatic approach from Indian
corporates as well as from the Indian government, in coming up with a comprehensive approach to fight cyber
crime. Only a well-thought-out assault can ensure effective policing. We should act now to protect our future.
Endnotes:
i.
National Research Council, “computer’s at risk”, 1999
Cyber crime is a criminal activity that requires certain knowledge of computers, allowing criminals to hack (or ‘crack’) into a computer to alter or destroy files or to gain information for personal
benefit, or to use the Internet to conduct illegal activities. This is
distinct from other types of computer and networking criminal
activity, such as computer-related crime, where computers are used
as tools but knowledge of them is not necessary for success.
iii. Director of Anna University, Centre for Professional
Development Education, Chennai.
iv. Cyber crime are relatively easy to commit and difficult to
detect. Most Cyber crimes are committed by insiders and only few
are prosecuted. Potentially serious cyber attack can be conceived
and planned without detectable preparation. They can be invisibly
ii.
 April - May 2004
judiciary & polity
reconnoitered, clandestinely rehearsed, and then mounted in a matter of minutes or even seconds without revealing the identity and
location of the attackers.
v. Vice Chancellor, National Law University, Jodhpur.
vi. www.rediff.com/us/2000/aug/10us1.htm
vii. “http://www.cbi.nic.in/cyber1.htm” www.cbi.nic.in/cyber1.htm
as visited on 4.5.2001
vii. The CCIC functions under the overall guidance of special
Director , Joint Director, Economic offences wing II and the immediate supervision of DIG, special investigation cell-III. The cell is
headed by a Superintendent of Police and has one Deputy Supdt. Of
Police, three Inspectors and One sub- Inspector at present, besides
other supporting staff. The jurisdiction of this cell is all India, and
besides the offences punishable under Chapter XI, IT Act, 2000, it
also has power to look into other high-tech crimes.
ix. CBI sets up Cyber crime Investigation cell, HYPERLINK
“http://www.indiainfo.com/news/sept-24-92/24di49.html” www.indiainfo.com/news/sept-24-92/24di49.html as visited on 3.4.2001.
x. Country’s first Cyber crime Police Station Opens - The Times
OfIndia,www.timesof india.indiatimes.com/articleshow.asp?art_id=69539761
as visited on 21.4.2001
xi.
www.news.sawaal.com/09-Feb-2001/National/58.htm
Whenever a Computer or a Digital Device is used, it generates
“Electronic Documents”. If these are to be produced as evidence,
then Cyber Laws are in play. As per the provisions of the ITA-2000
Digital Signatures affixed will be considered equivalent to written
signatures. The Indian Evidence Act has also been suitably amended by the ITA-2000 to provide for presentation of evidences of
Electronic Documents either in the electronic form itself or as certified print outs.
xiii. www.cyberdemocracy.org as visited on 2.1.2001
xii.
xiv. India is confused with cyber laws, w.ciol.com/content/news/inter-
views/300101101.asp as visited on 2.1.2001
xv.
The disgruntled insider is a principle source of computer
crimes as their knowledge of victim systems often allows them to
gain unrestricted access to cause damage to their system.
xvi. Hackers crack into networks simply for the thrill of the challenge or for bragging rights in the hacker community.
xvii. Hactivism is politically motivated attacks on publicly accessible web pages or e-mail servers. These groups and individuals overload e-mail server and hack into web sites to send a political message
xviii. Virus writers are posing an increasingly serious threat to
networks and systems world wide e.g. The Melissa Macro Virus, the
explore.Zip worm, The CIH (Chemobyl) Virus
xix. Criminal Groups – The increasing use of cyber intrusions by
criminal groups is also a serious threat as they attack systems for
the purpose of monetary gain. For e.g. ‘Phonemaster’s’ were an international group who penetrated the computer systems of very important and confidential government agencies. The phonemaster methods included ‘dumpster diving’ to gather old phone books and technical manuals for systems. They then used this information to trick
employees into giving up their logon and password information. The
group then used this information to break into victim systems.
xx.Denial of Service attacks – In this hackers plant tools such as
64
Trinoo, Tribal Flood Net (TFN), TFN2K or Stachldraht (German for
barbed wire) on a number of unwitting victim systems. Then when
the hacker sends the command, the victim systems in turn begins
sending messages against a target system. The target system is
overwhelmed with the traffic and is unable to function. Users trying to access that system are denied its Services.
xxi. Terrorists are known to use information technology and the
Internet to formulate plans, raise funds, spread propaganda, and to
communicate securely. For example, Convicted terrorist Ramzi
Yousef, the mastermind of the World Trade Centre bombing, stored
detailed plans to destroy United States airlines on encrypted files
on his laptop computer.
xxii. Sensitive Intrusions – A series of Intrusions into numerous
department of defense computer networks as well as networks of
other agencies, Universities and private sector entities. These
intruders successfully accessed Government network and takes
enormous amount of unclassified but sensitive information.
xxiii. Information warfare – One of the greatest potential threats
to our national security is the prospect of ‘information Warfare’ by
foreign militaries against our critical infrastructure.
xxiv. Jurisdictional Problem – A significant challenge amongst
cyber crime specifically in hacking is multiple jurisdictions. A typical hacking investigation involves victim sites in multiple states
and often many countries. This is the case even when the hacker
and victim are in the same country.
xxv. IT Act 2000 targets three existing areas of law: contract,
penal code, and evidence, and expands the provisions of the Indian
Penal Code of 1860, the Indian Evidence Act of 1872, the Banker’s
Book Evidence Act of 1891, the Reserve Bank of India Act of 1934,
and the Companies Act of 1956. See also supra note 13
xxvi. Chapter IX, Section 43 of the IT Act provides for compensation upto one crore of rupees in cases involving unauthorized access
of a computer, unauthorized copying, extracting and downloading of
data, introduction of viruses, worms, Trojans, etc. damaging or disrupting a computer or network, denying access to a computer, committing financial irregularities by manipulating computer, facilitating illegal access to computer.
xxvii. Under section 46 of the of the IT Act state that claims for
compensation lie to an adjudicating officer appointed by the Central
Government. Such adjudicating officers, according to section 46,
have to possess relevant technical and legal experience and have to
be of the rank of a Director to the Government of India or any other
equivalent rank.
xxviii. www.indian-express.com/ie/daily/20010226/ina26039.html
xxix. Cyber-stalking – Cyber Stalking is a growing concern
amongst cyber crime, with the majority of victims being female.
Evidence can be found in Internet chat-rooms and newsgroups, as
well as through e-mail. The Internet provides anonymity, enabling
perpetrators to be more vicious and threatening than might be the
case in person.
Anuradha Parasar is Assistant Lecturer, Department
of Policy Sciences, National Law University, Jodhpur.
combat law  April - May 2004
CL
judiciary & polity
Rule of Law — A Fugitive
Increasing corruption and brazen bending of the judiciary by people holding public
offices intensifies the need of a Special law.
BY K.G. KANNABIRAN
“In a democracy
political opponents
play an important
role both inside
the house and outside the House”
observed
the
Supreme Court
while
dealing
with a transfer
application filed
by
Dravida
Munetra Kazhagam of a case pending before the
Special Court against the reigning Chief Minister of
Tamil Nadu, Jayalalithaa. The Court went on to observe
political opponents do perform a role in a democracy.
They are really interested in the administration of justice and are a party interested in the matters of transfer
of a case from one court to another within the Sate and
to a court in another State under the jurisdiction of the
High Court of that state. In fact the principle of transfer
of cases is a statutory recognition of more than one principle of natural justice.
The Supreme Court in this case found that the Public
Prosecutor and defence counsel were working in tandem
in subverting the judicial processes by recalling around
seventy eight witnesses and for securing permission to
answer interrogatories addressed to her in lieu of
her presence in court to explain incriminating evidence
to the court as an accused under 313 of Criminal
Procedure Code.
I remember in the early stages of my practice in a family dispute before the High Court on its Original Side, a
Minister of the Madras Government filed a petition that
he be examined on commission on the ground he being a
minister he may not find time attend the court to give
evidence. He was a witness not an accused. The court
rejected the petition admonishing the minister quite
sternly by pointing out that it is a very elementary duty
of a citizen to give evidence in a court when called upon
to do so. What rings in my ear still is the prophetic sentence the learned judge used. He pointed out that the lessons of history should not be forgotten that in the
antechambers of democracy dwells despotism. That kind
of inter institutional discipline is slowly giving way to
indulgence leading to the present state of decay.
65
AMITA CHAVAN
Little incursions permitted
indulgently by
the people and
the courts led to
a grotesque caricature of democracy we are living with to day.
If the party or
person at the
helm of affairs is
corrupt, the kind
of massive appro-
priation of which Jayalalithaa is
accused, - 65 to 66 crores of disproportionate wealth- cannot be acquired without wrecking the constitutional
machinery. Corruption has the insidious quality of
destruction of governance of the society as the termite
has. Corrupt governments are a hundred times more
dangerous than terrorist violence and in fact terrorist
violence thrives in corrupt governments. It is not terrorism that is destructive of governance but the massive
corruption we have been reading about and living with.
Once the Supreme Court comes to the view that justice
is not possible in the courts in Tamil Nadu in cases
against the reigning Chief Minister will mere transfer
orders meet the ends of justice? It has been found by the
Court that the Chief Minister has been subverting the
judicial process. It is different from the ordinary run of
cases courts deal with.
The issue of constitutional morality is also involved in
such cases. It would have been a case for impeachment if
that procedure were available. An impeachment doesn’t
foreclose a prosecution under ordinary law. It is a crime
committed by the head of the government calling for the
evolution of a different set of principles to insulate the
community against these depredations. A criminal prosecution deals with an indictment of a crime without reference to and without interfering with the political status a criminal holds. An accused Chief Minister facing
the trial in his/her courts was a situation which was not
contemplated at all and so not provided for. We do not
have separate category of political offences committed by
power wielders and a law to try these political offenders.
This should be in addition to prosecution of crimes under
ordinary law.
Soon after the Emergency of 1975 and in the wake and
combat law  April - May 2004
judiciary & polity
as response to the Report of Shah Commission, our politicians of all hues made some feeble efforts to discipline
their conduct while in office. They however were not willing to legislate on their political status while under trial
and the political consequence on conviction for their foul
deeds while in office. Special Courts Act was passed in
the wake of the findings given by the Shah Commission.
In these fifty years of Independence no honest effort has
been made to contain misgovernance. In the Special
Court Bill debate in the Supreme Court Justice
Chandrachud observed “Parliamentary democracy will
see its halcyon days in India when law will provide for
speedy trial of all offenders who misuse the public office
held by them. Purity in public life is a desired goal at all
times and in all situations, emergency or no emergency”
and Justice Iyer wrote “the impact of ‘summit’crimes in
the Third World setting is more terrible than Watergate
syndrome as perceptive social scientists have unmasked.
Corruption and repression –cousins in such situationshijack developmental process” and goes on to state that
this process leads only to erosion of confidence of the people in the constitutional value system and processes.
Murtuza Fazl Ali J in V C Shukla’s case said that the Act
is a permanent one, This Act however was not to remain
for long in the Statute Book. As soon as Mrs. Gandhi
came to power without even a murmur of protest this Act
was repealed as having become infructuous!
So we are left with the ordinary criminal law to deal
with crimes by political leaders who committed crimes,
which are in abuse of their powers. The essential preconditions for a successful prosecution are an impartial
and independent investigation into the crime. and an
equally independent prosecuting agency. These are the
sine qua non for a functioning criminal justice system.
The chapter on investigation in the Criminal Procedure
Code proceeds on the assumption of an independent and
impartial investigation into crimes reported. The provisions of the Code dealing with the powers and duties of
the Public Prosecutor emphasize the independence of the
Public Prosecutor. There is a catena of cases of the
Supreme Court emphasizing the importance of the role
of these two agencies if the criminal justice is to make
any sense. The major ruling premise is that the government should respect the law, which it expects its citizens
to obey. This respect for law should find expression in its
compliance with the scheme of legislation setting down
norms and the consequence of their breach.The
Constitution is the charter for the existence of the State
and the Union, and any breach of its terms sets apart the
government as a law breaker and it breeds contempt
for law from the law breakers the government sponsors
and encourages.. This occurs when the politics of the
party in power takes precedence over the Constitution
and the laws.
66
A Chief Minister bending the institution of justice
brazenly only with the object of ensuring her continuance
in power and another for legitimizing the theocratic
designs of a political party ignoring the Constitutional
mandate and driving Rule of Law in search of safe
havens to function fearlessly is a tragedy the like of
which was never witnessed even in the worst periods of
authoritarian trends in this country. Should we allow
Rule of Law to take to flight like a fugitive? Or should the
acts of these two chief Ministers be taken, as breakdown
of the Constitutional machinery is the question confronting the country today. We were already up against
the objection raised by the Karnataka State to the transfer of the case for trial in that State The Chief Minister
of Karnataka soon realized the untenability of such an
objection and so did not act upon the objection.
Nonetheless the Chief Minister of Tamilnadu moved the
Supreme Court again for transfer of the case against her,
to some other State on the ground that the relationship
between the two States is soured due to Kaveri River
Water dispute. The inter state river water dispute, which
is about water sharing of the common natural resource
by the people of riparian regions has been converted into
a chauvinistic and senseless fight between people of the
two regions leading to riots between two linguistic
groups. This speaks volumes of our understanding of politics and the constitutional arrangements of the relationship between the states inter se and with the Union. The
concept of enmity between two states, alien to any constitutional scheme, federal or quasi-federal, is promoted
and nursed and kept ready for use by the prevailing vulgar adversarial political practice.
This dimension never invaded the debates and affected
the decision making process in courts. A composite judiciary in a quasi federal set up is now called upon to
bestow thought on the rise of regional politics and parties
and the consequent weakening of the center leading to
breakdown of judicial authority. This attitude exposes
the ignorance of the history of Constitution making and
the absence of a working knowledge of the Constitution.
This ignorance even of an awareness of Constitutional
politics has produced modern Chief Ministers like
Jayalalithaa Narendra Modi and a whole lot of leaders at
the state and the center for whom election means occupation of the power structure and governing without reference to the Constitution and its values. Can this fleeing Rule of Law successfully evade the long arm of corruption and abuse of power? Nor can we expect the Chief
Ministers facing similar accusations help the fugitive
Rule of law to function freely and fearlessly with the constitutional system seeming to be paralyzed.
Fundamental rights of a huge collectivity of citizens in
the country who have been told by the courts that their
right to vote is a fundamental right, that they have a
combat law  April - May 2004
judiciary & polity
right to a corruption free government and that a fearless
and free administration of justice system is a part of the
basic structure of the Constitution and yet courts appear
to be helpless in these situations. Surely the Courts,
which came up with the principles of prospective over
ruling and the basic structure of the Constitution during
periods of crisis, can innovate ways to secure a corruption free government by providing them with a stable,
fearless and free system of administration of justice.
K.G. Kannabiran is an advocate and also President of
the People’s Union for Civil Liberties (PUCL), a leading
civil liberties group in India.
CL
Shifting the Balance?
Has the Philosophy of the Supreme Court on Public Interest Litigation changed in the
era of Liberalisation?
BY PRASHANT BHUSHAN
by the activist courts, continued to be made by all sections of the ruling establishment.
Unfortunately however, these charges appear to have
struck a sympathetic chord among a significant section
of the court, as appears from some of their pronouncements recently.
T
he foundations of public interest litigation
were laid in the late 70s with cases like the
Ratlam Municipalities case. The scope and
breadth of public interest litigation were
expanded in the Eighties from the initial
environmental concerns, to concerns like bonded labour, Changing Philosophies
There is now a large body of cases decided in the last
child labour, the rights of detenues, inmates of various
decade where the court has not only
asylums, the rights of the poor to education,
betrayed a lack of sensitivity towards the
to shelter and other essential amenities
rights of the poor and disadvantaged secwhich would enable them to lead a life of
tions of society, but has also made gratudignity.
Article 21 was expansively interpreted to In a large body itous and unmerited remarks regarding
of public interest litigation. This
include all these rights and the rule of
of cases decid- abuse
decade has also been the decade of “ecoLocus Standi was relaxed to enable any
nomic reforms” as they are called. Several
public spirited citizen to move the courts on ed in the last
public interest cases were filed during this
behalf of a person or persons who may not decade the
period challenging alleged perversions, corhave
the
ruption and other illegalities involved in
social or financial capacity to move the court has
the implementation of the new economic
courts themselves. Subsequently, in the betrayed a
policies. Almost all these cases were disearly Nineties the courts also took up as
lack of
missed. In several of them, the court hintpublic interest litigation, cases involving
ed at and made remarks suggesting an
corruption in high places and the accounta- sensitivity
abuse of public interest litigation. Since I
bility of public servants.
towards the
had myself been involved in many of these
This new activism on the part of the
cases as a lawyer, I thought that it would
courts naturally created serious rumblings rights of the
be interesting to investigate whether one
of discontent in the political and bureau- poor and discould see a change in the philosophy of the
cratic establishments which charged that
Supreme Court with regard to public interthe courts were going beyond their normal advantaged
est litigation during the era of economic
role and were assuming extra constitution- sections of
reforms. This is what I have set out to do
al powers.The political establishment also
society.
briefly, in this presentation. The results are
threatened from time to time to curb the
quite illuminating and indeed, distressing.
powers of the courts with regard to public
In BALCO Employees Union v. Union of India (2002
interest litigation by legislation.
However, since this activist role of the courts gained Vol 2 SCC 343), where the employees union of the govincreasing public support, the political establishment ernment company had challenged its disinvestment on
desisted from such legislative misadventures. However, various grounds including the arbitrary and non transthe charges of usurpation of extra constitutional powers parent fixation of its reserve price, the Supreme Court
67
combat law  April - May 2004
judiciary & polity
while dismissing the petition went on to make the following observations:
“There is, in recent years, a feeling which is not without any foundation that public interest litigation is now
tending to become publicity interest litigation or private
interest litigation and has a tendency to be counter-productive.”
“PIL is not a pill or a panacea for all wrongs. It was
essentially meant to protect basic human rights of the
weak and the disadvantaged and was a procedure which
was evolved where a public spirited person filed a petition in effect on behalf of such persons who on account of
poverty, helplessness or economic and social disabilities
could not approach the court for relief. There have been,
in recent times increasing instances of abuse of PIL.
Therefore there is a need to re-emphasise the parameters within which PIL can be resorted to by a petitioner
and entertained by the court.”
The court in this case refused to consider the petition
of Mr B. L. Wadhera, a lawyer known for having taken
up many serious public interest cases, on the ground
that he was not directly affected by the disinvestment of
Balco. It went on to observe, “it will be seen that whenever the court has interfered and given directions while
entertaining PIL, it has mainly been where there has
been an element of violation of Article 21 or of human
rights or where the litigation has been initiated for the
benefit of the poor and the underprivileged who are
unable to come to court due to some disadvantage. In
those cases also it is the legal rights which were secured
by the courts. We may, however, add that public interest litigation was not meant to be a weapon to challenge
the financial or economic decisions which had been
taken by the government in exercise of their administrative power. No doubt a person personally aggrieved
by such decisions which he regards as illegal, can
impugn the same in the court of law, but, a public interest litigation at the behest of a stranger could not to be
entertained. Such a litigation cannot per se be on behalf
of the poor and the downtrodden, unless the court is satisfied that there has been violation of Article 21 and the
persons adversely affected are unable to approach the
court. The decision to disinvest and the implementation
thereof is purely an administrative decision relating to
the economic policy of the State and challenge to the
same at the instance of a busybody cannot fall within
the parameters of public interest litigation. On this
ground alone, we decline to entertain the writ petition
filed by Shri B. L. Wadhera”.
This effectively meant that a citizen could not challenge by way of PIL, the loot of the public exchequer,
unless he was personally affected. It is significant that
these observations were made in a case involving a chal-
68 combat law
lenge to an element of the so-called “economic reforms”
of the government. It will be seen that the Supreme
Court has almost without exception negated all challenges to any element of the economic reforms package
of the government, even when such challenges were
based on specific violation of law or evidence of corruption.
In Balco itself, the challenge to the selloff of the PSU,
was based inter alia on a completely non transparent
and arbitrary valuation of the company conducted in
less than a week by a valuer of immovable property having no experience in the valuation of companies. It had
been pointed out that the valuation of the captive power
plants of the company alone were worth more than the
price at which it was being sold. The court however
refused to examine this challenge by saying that the valuation was done by one of the known methods of
valuation.
Restricitng Access
In CITU v. State of Maharashtra, where the validity of
the Enron power project had been challenged on the
ground that it was being set up in violation of Section 29
of the Electricity Supply Act, that the project would be
ruinous to the finances of the State Electricity Board,
and that there was adequate circumstantial evidence of
corruption in the sanction of the project, the court
restricted the challenge only to examine the accountability of the public servants involved in the sanction of
the project. It refused to examine the challenge to the
project itself on the ground that they did not think it to
be in public interest to go into the validity of a project
which had been substantially set up and against which
several previous challenges had been rejected by the
courts.This was said despite the fact that the construction of phase 2 of the project (which was more than twice
the size of phase 1) had not even commenced at the time,
and that none of the previous challenges to the project
were based on the grounds and material on which the
CITU challenge was based. One of the grounds, on
which CITU had challenged the project was that under
Section 29 of the Electricity Supply Act, it was only the
Central Electricity Authority which had the power to
examine and grant technical and economic approval to
the project. In this case, when the CEA was finding the
cost of power from this project too high, the Finance
Ministry told the CEA not to examine the financial
aspects of this project and proceed to grant only technical approval. This is how the project came to be
approved which went on to supply power to the State
Electricity Board at a cost of upto Rs 27 per unit, as a
result of which the supply from the project had to be
stopped, leading to claims of thousands of crores by
 April - May 2004
judiciary & polity
Enron in an arbitral tribunal in London.
In State of Karnataka v. Arun Kumar Agrawal, (2000
1 SCC 210) the Karnataka High Court had ordered a
CBI investigation into the circumstances in which a
1000 MW power project had been approved in
Karnataka. The series of highly suspicious circumstances found by the High Court which warranted such
investigation were among others:
That the financial capacity of the company, Cogentrix,
which had been approved to set up this project was such
that no reasonable person could think that it was capable of executing such a project. Its paid-up capital was
only 130,000 US$, as against a project cost of over $1 billion. Its debt equity ratio was 19.2 is to 1 as against the
norm of 2:1.
That Cogentrix had falsely claimed in its techno economic feasibility report that General Electric Co would
be its technical partner in order to ride piggyback on the
technical experience of GE.
That China Light and Power which was subsequently
brought in as a partner by Cogentrix had shown an
amount of 191 million Hong Kong dollars as development costs in India (through its Hong Kong subsidiary,
CLP international) though they did not have any ongoing project in India and had not shown how and on what
these costs had been incurred. This Hong Kong
subsidiary was subsequently shut down and another
subsidiary by the same name was opened in the
British Virgin Islands, a known tax haven for moneylaundering.
That though the requirement for power in Karnataka
would mainly be in the Bangalore area, and that is why
originally the application of Cogentrix was for setting up
a 500 MW plant in Bangalore and another 500 MW
plant in Mangalore. Later however, they were allowed to
set up the entire 1000 MW plant in Mangalore, necessitating expensive transmission of power by the State
authorities from Mangalore to Bangalore.
That though the original permission for setting up the
plant was given on the basis that Cogentrix would sell
this power privately to whoever was willing to purchase
it from them at mutually negotiated rates, thereafter
the State Electricity Board entered into the power purchase agreement with Cogentrix to purchase the entire
power at very high rates.
The Supreme Court however made short shrift of the
elaborate High Court judgment, holding that,”Thus
none of the 13 circumstances noticed by the High Court
can be characterised as giving rise to any suspicion,
much less the basis for investigation by a criminal investigating agency.”
Slippery Deals
AMITA CHAVAN
69 combat law
In Centre for Public Interest Litigation v. Union of
India (2000 8 SCC 606), the Supreme Court dismissed
the plea for an independent investigation into the government’s decision to sell off developed offshore gas and
oilfields from ONGC to a private joint venture. The challenge was based on a large number of facts and circumstances suggesting corruption in the deal such as: the
government’s own estimates of the oil and gas deposits
kept arbitrarily varying at different points of time and
the deal was evaluated at the lowest of such estimates.
An SP of the anticorruption unit of the CBI had filed a
source information report to the effect that the deal
involved a loss of thousands of crores to the public
exchequer and recommending that an FIR be registered
so that a regular investigation could be commenced and
searches and seizures made. However, instead of
registering an FIR, the SP was transferred out of the
CBI soon after he made this report, and the file on
which he made the report was made to disappear. The
CBI went on to file a false affidavit in the High Court,
denying the existence of the file on which the SP’s note
had been made.
The CBI had in another case being investigated by it
recorded the statement of the private secretary of the
Minister of petroleum who had signed the deal, that the
Minister had received four crores from Reliance
Industries, one of the joint venture partners to whom
the oilfields had been sold.
Various high officials of the Ministry of petroleum and
ONGC who were involved in the evaluation of this
deal left their jobs and joined Reliance immediately
thereafter.
The CAG had submitted a report on this deal pointing
out that:
 April - May 2004
judiciary & polity
the government had not studied the comparative eco- exempt post box companies registered in Mauritius as
nomics of running the gas fields and oilfields through “offshore companies”, from taxation in India on the
the ONGC versus giving them to a private joint venture. ground that such a direction violated the IT Act and preThe estimates of gas and oil deposits kept arbitrarily vented the IT authorities from lifting the corporate veil
varying at different points of time.
of these post box companies in order to examine their
Though the deal was evaluated on certain claimed lev- real place of residence. The Supreme Court however
els of operating expenses by the joint venture, the oper- reversed the High Court decision, holding that the
ating expenses were not capped in the contract, leading government could in terms of its economic policies grant
to a situation whereby the operating expenses actually a tax holiday to foreign companies in order to attract
claimed by the joint venture in the first few years of foreign investment. It gave short shrift to the argument
operation were higher than those of the ONGC.
that this would violate the Income Tax Act under
The royalties and cess payable to the government of which non resident companies are taxable on their
India by the joint venture on the extraction of oil and domestic income and that any change in the tax
gas were frozen for the duration of the contract, though regime would have to be done by means of a Finance Act
the JV was allowed to sell the oil and gas at the inter- passed by Parliament and could not be made by the
national market prices prevailing at any point of time.
executive alone.
However, despite the above host of highly suspicious
The Oil companies case (CPIL v. UOI 2003 Supp 1 JT
circumstances surrounding the deal, the report of the 515) is the only case to my knowledge in which the
CAG, and the report of the SP of the CBI, the Court did Supreme Court has allowed a challenge to any purportnot think it fit to even order an investigation in the mat- ed implementation of the new economic policy. It held
ter, though it castigated and passed strictures against here that the government oil companies nationalized by
the CBI for the loss of the file containing
Acts of Parliament which specifically manthe SPs report and their false affidavits
dated the companies to remain government
filed in the High Court.
companies could not be privatized without
In Delhi Science Forum v. Union of India
amending the Acts and thus taking the
(AIR 1996 SC 1356), the petitioners had It is difficult
approval of Parliament.
challenged the award of telecom licences to not to get the
So we see that barring the exception of the
private companies on various grounds,
oil companies’ case, the court dismissed all
including that one of the companies HFCL feeling that
other petitions challenging any executive
which had made by far the highest bids in the courts
act taken under the cover of economic
nine circles had a very small net worth
reforms. While it may be possible to take
which made it ineligible. It however sought decisions were
the view that all these decisions are technito make up its net worth by entering into a influenced by
cally correct, it is difficult not to get the
joint-venture with a foreign company which
feeling that the Courts decisions were influits own
had a minor equity in the joint-venture, but
enced by its own approval of the new poli90% of its net worth. The petitioners also approval of the cies of liberalisation, privatisation and globchallenged the decision of the government new policies of
alisation. Indeed, the court in Balco went
to place a cap of three circles for any single
on to say that, “lastly, no ex parte relief by
company, which effectively allowed HFCL liberalisation,
way of injunction especially with respect to
to vacate its other six circles, where it was privatisation
public projects and schemes or economic
by far the highest bidder, without the
policies or schemes should be granted. It is
and
penalty of 50 Crores per circle which it
only when the court is satisfied for good and
would have otherwise had to pay since it globalisation.
valid reasons, that there will be irreplacecould not have possibly paid the licence fees
able and irretrievable damage that an
of all 9 circles. Again the court dismissed
injunction be issued after hearing all the
the challenge by saying that the matter had been parties. Even then the petitioner should be put on
cleared by the tender Evaluation committee and there appropriate terms such as providing an indemnity or an
were no allegations of malafides against it. All other adequate undertaking to make good the loss or damage
challenges were repelled on the ground that they in the event the PIL filed is dismissed.”
amounted to challenges to the economic policies of the
A similar proposition, virtually restraining the court
government.
from granting any interim orders in PILs challenging
In Union of India v. Azaadi Bachao Andolan, (2003 8 any “ development projects”, was also laid down by the
SCALE 287) the High Court had struck down a govern- court in Raunaq International (1999 1 SCC 492).
ment circular which compelled the IT authorities to Obviously, if a public interest petitioner is asked to give
70
combat law  April - May 2004
judiciary & polity
a bank guarantee or even an undertaking that he will
make good the loss that may occur to the government or
any other person because of an interim order obtained in
his petition, in the event of his petition eventually being
dismissed, no interim order can never be granted in a
PIL. No petitioner, especially one who moves the court
in public interest, can be held responsible for the
vagaries of the court. Different judges have completely
different views on even matters of law. The Narmada
matter for example came to be heard and decided by a
different bench from that which had originally stayed
the construction of the Dam. Even the bench, which
eventually dismissed the petition and allowed the construction to proceed, had continued the stay order in
various hearings. Could or should the NBA have been
saddled with any loss occasioned to the government or
the project authorities or the contractors on account of
the stay order which stopped the construction for four
years? It would completely stultify PILs, if such a pernicious view is allowed to prevail.
Environment vs Development?
The activism of the Supreme Court in the
last decade is most evident is environmental cases, particularly cases involving the
urban environment or deforestation. Thus,
the court has taken sweeping and bold
steps to move polluting industries out of
Delhi, to improve the air quality of Delhi by
forcing commercial vehicles to convert to
CNG, and to stop deforestation across the
country. But it must be noted that in a
number of cases where the cause of the
environment was pitted against “development projects”, such as large dams, or even
hotels and housing colonies, the cause of
the environment gave way to the interest of
such development. It is important to note
that in many of these cases, the legal
soundness of the case was also evident from
the fact that some of the judges gave dissenting judgments or that the court went
against the advice of its own expert committees.
In Narmada Bachao Andolan v. Union of
India (2000 10 SCC 664), despite the strong
dissenting judgment of Justice Bharucha,
pointing out that the Sardar Sarovar project was proceeding without a comprehensive environmental appraisal and without
even the necessary environmental impact
studies having been done, as was evident
from the documents of the government
itself, the majority judges still went on to
71
approve the project and allowed it to go on without any
comprehensive environmental impact assessment which
was necessary even according to the governments own
rules and notifications. The underlying reasons and ideology behind the subordination of the cause of the environment to the cause of “development”, is also evident
from the majority judgment. There are several passages
in the majority judgment, extolling the virtues of the
kind of development brought in by large dams. The judgment even goes on to gratuitously emphasise the myth
that the Bhakra dam was responsible for the green revolution in the country. This, despite the fact that the
court had specifically restrained the Narmada Bachao
Andolan from making any submissions on the pros and
cons of large dams. The court also goes on to make disparaging remarks against the NBA as being an anti
development organization.
The same subordination of environmental interests to
the cause of “development” is evident in the Supreme
Court’s judgment in the Tehri Dam case (N.D. Jayal v.
UOI, 2003 7 SCALE 54), where the governments own
expert committee known as the Hanumantha Rao committee had given an elaborate report pointing out a series of violations of the conditions
on which environmental clearance to the
project had been given by the Ministry of
environment. The committee had pointed
In a number
out that a number of studies, which were
of cases
necessary to evaluate the environmental
impact of the project, had not been conductwhere the
ed and had recommended these be immedicause of the
ately conducted. However, despite this,
environment
though Justice Dharmadhikari held that in
order to ensure compliance with the condiwas
tions of environmental clearance, it was
pitted against necessary to constitute an independent
expert committee which would monitor the
“development
compliance and further construction of the
projects”, such Dam could only proceed on the green signal
as large dams, of this expert committee, the majority
did not even bother to ensure
or even hotels judgement
compliance with the conditions of environand housing
mental clearance of the project. Again, the
judgement makes remarks extolling the
colonies, the
virtues of development projects like such
cause of the
large dams.
In TATA Housing Development Company
environment
v. Goa Foundation (2003 7 SCALE 589), the
gave way to
court went against the report of its own
the interest of expert committee in allowing the construction of a housing colony on land which had
such
been held by the committee to be forest
development.
land. The court held that the committee had
wrongly classified this land as forestland,
combat law  April - May 2004
judiciary & polity
by holding that the committee had deviated from its own government to provide them with alternative land or an
norms. The court also relied on the reports of some other alternative means of livelihood. The challenge to the
private experts filed by the Tata Housing development validity of the Act was made in the circumstances that
Company. Without entering into an elaborate discus- the monetary compensation given under the Act does
sion of the merits of this judgment, it may only be noted, not enable the oustees to recover what they lose by their
that such microscopic examination of a report of the displacement as a result of compulsory acquisition of the
courts own expert committee has never been done at the land, and that they are in effect deprived of their liveliinstance of a poor or weak petitioner.
hood by such compulsory acquisition.
For example, the court did not critically examine or
The recent decision of the Supreme Court (T.N.
interfere with the report and recommendations of the Rangarajan v. State of Tamil Nadu), holding that there
Centrally empowered committee appointed
is neither any fundamental nor legal nor any
by the court, regarding fishing by poor local
moral right to strike on the part of workmen,
fishermen in the Jambudvip islands. The
(which not only goes against the Statute
courts orders based on the committee’s
where this right has been recognized, but
report had effectively deprived hundreds of The ideology of also against several earlier judgments) has
poor fishermen of their livelihood who were the Supreme
further strengthened the perception among
using the Jambudvip islands.
a significant class of poor and disadvanCourt has dur- taged sections of society, that despite its
Decreasing Sensitivity
ing this phase expansive pronouncements on the ambit of
The period of economic reforms also
fundamental rights under Article 21 of the
appears to have coincided with an appar- of “reforms”,
Constitution, the ideology of the Supreme
ently decreased sensitivity of the courts to shifted deciCourt has during this phase of “reforms”,
the rights of the poor. This is evident from
shifted decisively in favour of the rich and
sively in
the attitude that the court has displayed
powerful sections of society.
towards slum dwellers, oustees and work- favour of the
The above cases provide more than anecmen. In Almitra Patel v. Union of India, rich and powdotal evidence for the propositions that, a)
(2000 3 SCC 575) the court while adversely
The Supreme Court as an institution has
commenting upon the governments policy erful sections
frowned upon challenges to any action of
to rehabilitate slum dwellers, remarked of society.
the executive taken in the purported furthat, “ the promise of free land, at the taxtherance of “economic reforms”, even when
payers cost, in place of a jhuggi, is a prosuch challenges were based on violations of
posal which attracts moreland grabbers.
Statute and evidence of corruption, and b)
Rewarding an encroacher on public land with the free The court appears to have diluted its interpretation of
alternative sites is like giving a reward to a pickpocket.” Article 21, in the recent past. At the very least, it has
This, despite that the court was aware of the fact that often not acted to enforce the rights that it had declared
most of the dwellers live in sub human conditions and do earlier in favour of the poor and the weak.
not have access to other houses, and the court had earIn these circumstances, it is indeed tempting to argue
lier repeatedly pronounced that the right to shelter and that the recent drawing back of the court in PIL, and the
housing is a fundamental right of every citizen of the fears expressed by it of the possible abuse of PIL is
country.
because the court has in fact bought the ideology underIn Ekta v. Union of India, the Supreme Court refused lying the economic reforms - an ideology which venerto stop the eviction of slum dwellers in Calcutta who had ates the virtues of the free market and undermines the
been living in those slums for the last more than 30 role of the State in providing education, jobs, and the
years, despite the fact that they had no other access to basic amenities of life to its citizens. Such an ideology
housing nor were they being offered any alternative runs counter to the Court’s earlier expansive interpretaplace to go by the government. This was a case where tion of Article 21. This hypothesis does seem to offer the
the High Court had ordered the eviction on the ground simplest explanation for the above decisions of the
that the slums were a public nuisance. In Azaadi Court.
Bachao Andolan v. Union of India, (2003) the Supreme
Court even refused to examine the question whether the
Prashant Bhushan is a civil liberites lawyer practicLand Acquisition Act in so far as it allowed compulsory ing in the Supreme Court, has been actively associated
acquisition of land from persons who are dependent with NBA, Enron, Jain Hawala cases and is part of the
upon that land for their livelihood is violative of their Committee on Judicial Accountability.
CL
fundamental rights, since the Act does not obligate the
72
combat law  April - May 2004
judiciary & polity
DNA fingerprinting - a legal
perspective
BY ABHIJEET SHARMA
R
ecently
the
Indian
Evidence
(Amendment) Bill, 2003 has been proposed on the recommendation of the
185th Law Commission Report. The bill
provides for DNA tests in paternity disputes. Scientific evidence frequently plays a key part in
both civil and criminal trials and the scientific investigation
of evidence left at the
crime scene can seem
more persuasive to a
court than the testimony of eyewitnesses.
The Scientific and
Technological
proceeds in the process of
identification of an
individual are of paramount
importance
predominantly in a
forensic
setup.
Several techniques
have been developed
for this purpose, simple example of which
is fingerprints of an
individual. One of the newest forms of forensic evidence
is DNA Fingerprinting, which uses material from which
chromosomes are made to identify individuals positively. The use of DNA evidence is anticipated to become
universal in the 21st century. It is considered to be a
major breakthrough in forensic science in this century.
It has been subjected to the most comprehensive, scientific examination as no other twig of forensic science,
and has currently established itself as one of the best
with mounting applications. It is now a well recognized
technique, which is not only used in numerous areas of
research in modern molecular biology and genetics but
also finding prospective applications in our day to day
life. DNA fingerprinting is based on the principle that
the genetic makeup of every individual is different from
the others but is unique and idiosyncratic to an individual. DNA fingerprinting is the only definite, positive and
permanent identification method of a person as one’s
DNA does not changes during one’s lifetime. DNA test-
73
ing takes advantage of the fact that, with the exception
of identical twins, the genetic material -DNA- of each
person is unique. DNA evidence, like fingerprint evidence, offers prosecutors important new tools for the
identification and apprehension of some of the most violent perpetrators. At the same time, DNA aids the
search for truth by exonerating the innocent. DNA fingerprints are useful in several applications of human
health care research,
as well as in the justice system. They are
used to diagnose
inherited disorders in
both prenatal and
newborn babies in
hospitals around the
world. Research programs to establish
inherited disorders on
the
chromosomes
depend on the information contained in
DNA
fingerprints.
They are also used to
link suspects to biological
evidence.
Another use of DNA
in the
AMITA CHAVAN fingerprints
court system is to
establish paternity in custody and child support litigation. Advances in technology are leading to novel uses of
DNA fingerprinting almost every day.
How DNA Fingerprinting is done?
In DNA profiling process firstly, the DNA is isolated
from cells or tissues of the body in which the amounts of
DNA found at the root of one hair is sufficient. After
chemically extracting the intact DNA from the sample
restriction enzymes are used to cut DNA at specific
places. The DNA pieces are then sorted out according to
size by sieving technique called electrophoresis in an
agarose gel. The DNA fragments are blotted from the gel
onto a nylon membrane. This process is known as
Southern Blotting. On addition of radioactive or colored
probe to the nylon sheet a pattern called the DNA fingerprint is produced. The final DNA fingerprint is built
by using several probes (5-15 or more) simultaneously.
Where the samples are inadequate and the quality
combat law  April - May 2004
judiciary & polity
poor, this technique has been found to be less satisfactory. Therefore, a new technology was developed to replicate the inadequate sample, by synthesizing new DNA
from the existing one to obtain sufficient quantities for
analysis. This technique is called Polymerase Chain
Reaction (PCR) and the testing PCR is known as PCRSTR (Short Tandem Repeat). It can produce quick, valuable results with degraded specimens.
In India this technique is in its infancy. Centre for
DNA fingerprinting and Diagnostics (CDFD), Andhra
Pradesh Forensic Science Laboratory (APFSL), Centre
for Cellular and Molecular Biology (CCMB), Rajiv
Gandhi Centre for Biotechnology (RGCB) are the major
institutes where DNA fingerprinting is done.
Historical Developments
In 17th century English Botanist Dr Nehemiah Grew,
fellow of the college of Physicians and of the Royal
Society, was the first person to document his findings
about the ridges on the hands in his paper published in
1684i.. This for 150 years was the primary source for
identification of individuals. But later it was found that
even fingerprints can be altered by surgery. Also the
problem with the fingerprints is that two individuals
can have the same fingerprints although the chances
are very-very low. Karl LandSteinerii, who was given a
Noble prize in 1930 for dividing blood into four distinct
groups, formed the basis for identification of an individual. Today more than 100 different factors in human
blood are known which may vary in different individuals. Thus there had been clearly a need of another marker which is conclusive in exclusion so as to minimize the
high increase in the error rate in wrongful convictions
and acquittals. This need was fulfilled by Alec Jeffreys
by which individual specific polymorphism can be
detected. DNA fingerprinting/profiling was developed in
1985 by Alec Jeffreys and his colleagues at Leicester
University (England) who named the process for isolating and reading DNA markers as “DNA Fingerprinting”.
Forensic use of DNA technology in criminal cases
began in 1986 when police asked Dr. Alec J. Jeffreys to
verify a suspect’s confession that he was responsible for
two rape-murders in the English Midlandsiii.. Tests
proved that the suspect had not committed the crimes.
Police then began obtaining blood samples from several
thousand male inhabitants in the area to identify a new
suspectiv..
In a 1987 case in England, Robert Melias became the
first person convicted of a crime (rape) on the basis of
DNA evidencev.. In one of the first uses of DNA in a
criminal case in the United States, in November 1987,
the Circuit Court in Orange County, Florida, convicted
Tommy Lee Andrews of rape after DNA tests matched
his DNA from a blood sample with that of semen traces
74
found in a rape victimvi..
Two other important early cases involving DNA testing are State v. Woodall vii. and Spencer v.
Commonwealthviii.. In Woodall, the West Virginia
Supreme Court was the first State high court to rule on
the admissibility of DNA evidence. The court accepted
DNA testing by the defendant, but inconclusive results
failed to exculpate Woodall. The court upheld the defendant’s conviction for rape, kidnapping, and robbery of
two women. Subsequent DNA testing determined that
Woodall was innocent, and he was released from prison.
The multiple murder trials in Virginia of Timothy
Wilson Spencer were the first cases in the United States
where the admission of DNA evidence led to guilty verdicts resulting in a death penalty. The Virginia Supreme
Court upheld the murder and rape convictions of
Spencer, who had been convicted on the basis of DNA
testing that, matched his DNA with that of semen found
in several victimsix..
DNA fingerprinting vis-à-vis Indian
Evidence Act, 1872
Applications of DNA testing are now well established
in developed countriesx.. In India, in several cases, judgments have been given either based on the results of
DNA testing alone or along with other corroborative evidence. Although DNA test has been accepted in many
courts in India, it has not yet been included in the
Evidence Act. It is therefore, left to the discretion of the
judge whether the DNA tests under Section 45 of the
Indian Evidence Act is to be accepted or not.
The first paternity dispute in Indiaxi., which was
solved by DNA fingerprinting test, was the case No.
M.C. 17 of 1988 in the court of the Chief Judicial
Magistrate of Telicherry (Thalassery). The Chief
Judicial Magistrate held that: “the Evidence of Expert is
admissible under Section 45 of The Indian Evidence Act,
1872. So also, the grounds on which the opinion is
arrived at are also relevant under Section 51 of The
Indian Evidence Act. PW4 is an expert in the matter of
molecular biology and the evidence tendered by him is
quite convincing and I have no reason why it should not
be accepted. Just like the opinion of a chemical analyst,
or like the opinion of a fingerprint expert, opinion of
PW4, who is also expert in the matter of cellular and
molecular biology, is also acceptable.”
This verdict was challenged in the High Court but the
High Court upheld the verdict of the Telicherry Court
stating that the results of DNA test by itself could
decide paternity.
Questions have been raised before the courts in cases
of DNA fingerprinting, creating a hindrance to the
investigating agencies, and some of them are: whether a
suspect, or for that matter anybody can be forced to give
combat law  April - May 2004
judiciary & polity
a blood sample for testing?, Whether such a testing
would be considered a violation of Article 20(3) of the
Constitution of India, which protects every citizen from
providing self-incriminating evidence? Whether an
order forcing an individual for DNA testing would be
violation of his right to privacy? If the person refuses to
submit himself/herself to such test whether adverse
inference or presumption can be drawn by the court?
Justice Jagganatha Rao, Chief Justice of the Kerala
High Court pointed the lacunae in this regard in 1995 in
a verdict concerning paternity dispute. Justice Rao
pointed out in his judgment xii.:
a) DNA testing is as yet not considered a conclusive
proof under Section 112 of the Evidence Act, and
b) Law has not been passed by the Parliament for such
testing.
Section 112 uses the words, “conclusive proof” and
refers to ‘non-access’ as the sole exceptionxiii.. Therefore,
as the language of the section stands, no other evidence
is permissible except non access, to prove that a person
is not the father. This was held in several decided cases
and also recently by the Supreme Court in Kanti Devi v.
Poshi Ram xiv.. That case concerned DNA evidence but
the Supreme Court refused to permit the evidence on
the ground that except ‘non-access’ no other evidence is
permissible to prove that a person is not the father.
A judgment of the Supreme Court in 1993 also highlighted the fact that there is no provision in Indian laws
to force or compel people to undergo blood tests or any
other type of DNA testing xv..
Bombay High Court in the case of Sadashiv
Malikarjun Kheradkar v. Smt. Nandini Sadashiv
Kheradkar and Another xvi., it was held that the Court
has power to direct blood examination but it should not
be done as a matter of course or to have a roving inquiry.
The Bombay High Court even felt that there should be a
suitable amendment by the Legislature and after noting
that nobody can be compelled to give blood sample, it
was held that the Court can give a direction but cannot
compel giving of blood sample.
In a recent case of Mrs. Kanchan Bedi and Anr. v. Shri
Gurpreet Singh Bedi xvii., where the parentage of the
infant was in question, and the application filed by the
mother for conducting DNA test was vehemently
opposed by the father contending that it would violate
his rights, Vikramjit Sen J of the Delhi High Court held
that: “it appears to me to be difficult to resist that the
law, as it presently stands, does not contemplate any
impediment or violation of rights in directing persons to
submit themselves for DNA test, especially where the
parentage of a child is in controversy for the grant of
75
maintenance.” It was further held that where the
parentage of a child is in controversy for the grant of
maintenance, parties submitting themselves for the
DNA test is not violation of rights. He relied on the decision of the Supreme Court in the case of Geeta Saha v.
NCT of Delhi (DB) xviii., where a Bench of Hon’ble
Supreme Court had ordered that a DNA test be conducted on a foetus of a rape victim. Vikramjit Sen J distinguished this case from the case of Goutam Kundu v.
State of West Bengal & Anr. xix., where it was held that
“wife cannot be forced to give blood sample and no
adverse inference against her can be drawn for this
refusal”. In Ms. X v. Mr.Z & Anr.xx., a single Judge of
Delhi High Court had allowed a similar application and
had directed that at the cost of husband, the Pathology
Department of All India Institute of Medical Sciences
should conduct the DNA test. The DNA test was to be
conducted of a foetus.
In a very important and recent judgment delivered by
the Supreme Court of India in the case of Sharda v.
Dharmpal xxi. the core question was, whether a party to
a divorce proceeding can be compelled to undergo a medical examination. In this case an order for DNA test was
opposed by the Respondent on the ground that such an
order violates his right to privacy. The three Judge
bench of the Hon’ble Supreme Court held that: “If for
arriving at the satisfaction of the court and to protect
the right of a party to the lis who may otherwise be
found to be incapable of protecting his own interest, the
court passes an appropriate order, the question of such
action being violative of Article 21 of the Constitution of
India would not arise. The court having regard to Article
21 of the Constitution of India must also see to it that
the right of a person to defend himself must be adequately protected.” It further held that if respondent
avoids such medical examination on the ground that it
violates his/her right to privacy or for a matter right to
personal liberty as enshrined under Article 21 of the
Constitution of India, then it may in most of such cases
become impossible to arrive at a conclusion. It was also
said that if despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference
would be made out. Section 114 of the Indian Evidence
Act enables a Court to draw an adverse inference if the
party does not produce the relevant evidence in his
power and possession.
DNA Legislations in other countries
Canada has passed DNA Identification Act which
became official on June 30, 2000 xxii.. This legislation
allowed a DNA data bank to be created and amended
the Criminal Code to provide a mechanism for a judge to
order persons convicted of designated offences to provide
combat law  April - May 2004
judiciary & polity
blood, buccal or hair samples from which DNA profiles Drastic changes required in India
For the successful incorporation of this technique in
will be derived. The National DNA Data Bank respects
considerations of genetic privacy and follows strict this country various scientific and legal reforms are
guidelines as specified in the DNA Identification Act. required. Legislature should draft a piece of legislation
The biological samples collected from convicted offend- that would maximize the use of DNA evidence to punish
ers and the resulting DNA profiles can only be used for the guilty and protect the innocent, as has been done in
law enforcement purposes. It assists law enforcement Canada, USA and UK. Steps have been taken under the
agencies
in
solving
crimes
by: proposed Indian Evidence (Amendment) Bill, 2003. In
 Linking crimes together where there are no susSec. 112, i.e. section regarding paternity disputes, apart
pects;
from the sole exception of ‘non-access’, other exceptions
 Helping to identify suspects;
by way of blood-group tests, DNA have been proposed
 Eliminating suspects where there is no match
but subject to very stringent conditions. The bill probetween crime scene DNA and a DNA profile in the vides for DNA tests conducted in the cases of paternity
National DNA Data Bank; and,
disputes by the consent of the man and in the case of the
 Determining whether a serial offender is involved
child by permission of the court. It also provides that in
In Canada taking of a genetic sample without consent case the man refuses to undergo the DNA test then he
is held to be valid when the sample is collected by a shall be deemed to have waived his defense to any claim
health care professionalxxiii..
of paternity made against him. According
Recently “Advancing Justice Through DNA
to this proposed amendment, DNA tests
Technology Act of 2003” has been enacted in
can result in conclusively proving paternithe United States of America to eliminate the
ty. But where the samples match, the conLike all new
substantial backlog of DNA samples collected
troversy remains. If the DNA data is less
from crime scenes and convicted offenders, to methodologies
and does not cover the whole population
improve and expand the DNA testing capaci- DNA typing
of a country, the matching is weak evity of Federal, State, and local crime laboratodence. Where the DNA data is available
ries, to increase research and development of will have to
for a larger population or for the whole
new DNA testing technologies, to develop face legal
country; naturally, the probability about
new training programs regarding the collecthe identity of the person will be far less
challenges
tion and use of DNA evidence, and for other
than in a smaller population. Therefore,
purposesxxiv.. By this Act imperative amend- before the
as in the case of blood-group tests, science
ments have been made in DNA Identification courts will
has progressed to this extent that where
Act of 1994xxv. and DNA Analysis Backlog
the samples of the male and the child do
Elimination Act of 2000xxvi. and Omnibus allow it into
not match, it is certain that the male is
Crime Control and Safe Streets Act of 1968. arena of
not the father. But, where they match, it
This Act also provides for the establishment
leads us to a theory of probability. It has
evidence.
of National Forensic Science Commission
been proposed that as in the case of blood
which shall make specific recommendations
tests, there can be evidence by way of
to the Attorney General, as necessary, to enhance the DNA tests to prove that a person is not the father. But
protections described in subparagraph (G) to ensure—
DNA evidence cannot be used to say that a person is the
fatherxxviii.. I think that ‘match’ must also be given the
(i) the appropriate use and dissemination of DNA same treatment because the probability is same in both
the cases, being it ‘match’ or mismatch’.
information;
Many a times the courts have expressed their inabili(ii) the accuracy, security, and confidentiality of DNA ty in giving any order for DNA examination or even for
blood test because as according to the law in India one
information;
cannot be forced to give his blood sample and a number
(iii) the timely removal and destruction of obsolete, of times objections have been raised to such an order, in
expunged, or inaccurate DNA information; and
many cases it has been contended that such an order
would violate the rights of an individual enshrined
(iv) that any other necessary measures are taken to under Article 21 of the Indian Constitution. Though
protect privacy.
such an objection has been well answered and has been
rightly rejected by the Hon’ble Supreme Court in the
Britain has Criminal Justice and Public Order Act, recent case of Sharda v. Dharampalxxix.. If a person has
committed an offence, then why will he volunteer to give
which provides for forcible testing of blood samples.
76
combat law  April - May 2004
judiciary & polity
a specimen of blood, knowing fully well that it will convict them? Such a law which prohibits taking blood samples forcibly without the wishes of an individual, for
medical examination is rather protecting the offenders
which from no angle of vision can be the purpose of law.
Even in well developed countries like Canada and
Britain forceful blood examination is permitted to serve
the ends of justice. It also cannot be said that proof coming out from DNA cannot be self-incriminatory because
it is naturally present in the body, thus any proof
derived from it cannot be self-incriminatory.
There is a need for the enactment of a legislation providing for DNA examination and establishment of a
National Commission, which will keep abreast of all
new technological developments for scientists and
lawyers alike. The commission will formulate the procedure, standards and quality control, and will provide
official approval to the testing laboratories.
The legislation must provide that:DNA evidence should not be collected from a suspect
unless the information is relevant to a specific crime in
question and it must not be collected from suspects as a
matter of routine.
 There should be reasonable grounds for suspecting
that the person committed the offence before taking the
DNA sample.
As a privacy safeguard, DNA evidence should be collected from a suspect only if a judge authorizes the collection.
The legislation should also provide for the eligibility
of the scientists conducting the DNA tests.
 The legislation should also authorize collection of
DNA samples from persons convicted of specified felony
offenses which, military offenders, and terrorism related offences. Because of their DNA record it would be
much easier to trace the criminal and also it would save
a lot of time of police.
 The legislation should also provide that the police
officers must be properly trained for collecting samples
for DNA test, from the crime scene;
The legislation should also permit storage and maintenance of DNA data of crime scene Specimens, unidentified human remains and relatives of missing persons.
Conclusion
After both sides present their evidence and argue their
cases, judges must weigh what they have heard and
decide whether or not the accused person is guilty as
charged. This can be difficult. The evidence presented is
not always clear-cut, and sometimes judges must decide
based on what a witness says they saw or heard.
Physical evidence can be limited to strands of hair or
pieces of fabric that the prosecution must somehow link
conclusively to the defendant. DNA fingerprinting is a
77
way of tying a person to the scene of a crime beyond a
shadow of a doubt or more importantly it could rule out
suspects and prevent the wrong person from being
locked up in jail. Judges, Lawyers and forensic scientists
need to be much better educated about the inferential
nature of DNA evidence. With well informed judges,
lawyers and investigative people, the probability for
convicting innocent people will be minimized and the
probability of convicting guilty people will be maximized. It was observed by the 185th Law Commission
Report that the law of evidence is likely to undergo radical changes with standardization of new technologies.
The judge will be handicapped if he is unable to appreciate the probative value of new standards and concepts
of evidence. The entire technology of DNA fingerprinting is an accepted method of proof today in contested
parentage and similar disputes. Genetics and reproductive technologies are throwing new light on several
questions of fact in which ordinary inferences are no
more acceptable. It looks as though the 21st century will
herald radical changes in our understanding of human
behavior through inventions in biological sciences
rather than in social sciences. Naturally, law, concerned
with human behavior, has to mend fences with biology
and bio-technology in more significant ways than hitherto beforexxx..
DNA evidence should be lauded nationally as the most
reliable evidence known. Like the fingerprint each person has a unique DNA fingerprint. Although the fingerprints can be altered by surgery, a DNA fingerprint cannot be altered by any known treatment. DNA profiling
can be done from almost every part of the body. So, DNA
fingerprinting is rapidly becoming the primary method
for identifying and distinguishing among individual
human beings. The technique is new but it is much better than other identification techniques like fingerprinting and picture ID which have their own limitations.
Like all new methodologies DNA typing will have to
face legal challenges before the courts will allow it into
arena of evidence. The trier of fact will have to be convinced that the procedure is both reliable and generally
accepted by the forensic science community. There are
many challenges yet to be confronted with before DNA
typing can be classified as a routine forensic laboratory
procedure. A number of questions have been raised
questioning the reliability of DNA evidence in the countries having legislations for DNA fingerprinting but at
the same time the conviction rate has also increased in
those countries. DNA fingerprinting, if properly performed is beyond any doubt which is there on the conduct of Indian police and Prosecutors because of their
history of fabricating and padding evidence. So, effective
legal and administrative measures must be taken to
overcome this practice of investigating officers and to
combat law  April - May 2004
judiciary & polity
ensure that such a stout piece of evidence is above
board. The foundation of forensic science based on the
premise ‘material objects will not lie’ becomes meaningless because material objects are made to lie by certain
men.
CDFD Director Seyed Ehtesham Hasnain said “Local
evidence can be removed or created but DNA can’t lie.
DNA is very very robust. We can get enough DNA even
from the burnt teeth xxxi..” he also said that “the rate of
conviction has gone up significantly wherever DNA fingerprinting has been taken as evidence in the court xxxii.”
The time for denial of admitting DNA evidence is over.
We know that the present system has identifiable flaws.
Law has to grow in order to satisfy the needs of the fast
changing society and keep abreast with the scientific
developments taking place in the country. Law must
walk in tandem with the evolutions science has made
and thus take away evidence from the jugglery and trivial objections of lawyers. As new situations arise the law
has to be evolved in order to meet the challenge of such
new situations. Law cannot afford to remain static.
Endnotes:
i.
http://www.met.police.uk/history/fingerprints.htm (visited on
3rd January, 2004)
ii.http://www.pbs.org/wnet/redgold/innovators/bio_landsteiner.ht
ml (visited on 3rd January, 2004)
iii. The first reported use of DNA identification was in a noncriminal setting to prove a familial relationship. A Ghanaian boy
was refused entry into the United Kingdom (U.K.) for lack of proof
that he was the son of a woman who had the right of settlement in
the U.K. Immigration authorities contended that the boy could be
the nephew of the woman, not her son. DNA testing showed a high
probability of a mother-son relationship. The U.K. Government
accepted the test findings and admitted the boy. See Kelly, K.F,
J.J. Rankin, and R.C. Wink, “Methods and Applications of DNA
Fingerprinting: A Guide for the Non-Scientist,” Criminal Law
Review (1987):105, 108; Note, “Stemming the DNA Tide; A Case
for Quality Control Guidelines,” Hamline Law Review, 16
(1992):211, 213-214.
iv.http://www.ncjrs.org/txtfiles/dnaevid.txt(visited on 4th
January, 2004)
v.Gill, Peter, Alec J. Jeffreys, and David J. Werrett, “Forensic
Application of DNA Fingerprints,” Nature, 318 (1985):577. See also
Seton, Craig, “Life for Sex Killer Who Sent Decoy to Take Genetic
Test,” The Times (London) (January 23, 1988):3. A popular account
of this case, The Blooding, was written by crime novelist Joseph
Wambaugh, New York, N.Y.: William Morrow & Co., Inc., 1989.
http://www.pbs.org/wgbh/pages/frontline/shows/case/revolution/wa
rs.html (visited on 19th December, 2003)
vi.Bureau of Justice Statistics, “Forensic DNA Analysis: Issues,”
Washington, D.C.: U.S. Department of Justice, Bureau of Justice
Statistics,
June
1991,
at
4,
note
8:
See
also
http://web.utk.edu/~jrainey1/Jasmine’s%20Biology%20Web%20Pr
esentation (visited on 15thJuly, 2003)
78
vii.The
admissibility of the DNA evidence was upheld by the
intermediate appeals court, which cited the uncontroverted testimony of the State’s expert witnesses. State v. Andrews, 533 So.2d
841(Dist.
Ct.
App.
1989).
tk.edu/~jrainey1/Jasmine’s%20Biology%20Web%20Presentation(v
isited on 4th January, 2004)
viii. 385 S.E.2d 253 (W. Va. 1989). http://www.mslawyer.com
ix.384 S.E.2d 775 (1989). Additional court appeals by Spencer
were rejected by the Virginia Supreme Court at 384 S.E.2d 785
(1989); 385 S.E.2d 850(1989); and 393 S.E.2d 609 (1990). Ibid.
x.http://www.pbs.org/wgbh/pages/frontline/shows/case/revolution/wars.html.
xi. DNA Identification Act (which allowed a DNA data bank to be
created and amended the Criminal Code to provide a mechanism
for a judge to order persons convicted of designated offences to provide blood, buccal or hair samples from which DNA profiles will be
derived.) has been passed in Canada, and Britain has Criminal
Justice and Public Order Act (which provides for forcible testing of
blood samples)
xii. Pandit, M.W. and Dr. Lalji Singh, “DNA Testing, Evidence
Act and Expert witness”, The Indian Police Journal, OctoberDecember 2000, p. 100.
xiii.Though the Indian Evidence (Amendment) Bill 2003, has
proposed, apart from the sole exception of ‘non-access’, other exceptions by way of blood-group tests, but subject to very stringent conditions.
xiv. AIR 2001 SC 2266.
xv. Ibid.
xvi.1995 Crl. L.J. 4090
xvii.AIR 2003 Delhi 446.
xviii.1999(1) JCC 101.
xix. (1993) 3 SCC 418
xx.96(2002) DLT 354.
xxi.2003 AIR SCW 1950 (B); 2003 (3) JT 399; 2003 (3) Scale
475(2); 2003 (2) Supp. 962.
xxii.http://www.nddb-bndg.org/main_e.htm (visited on 18th
December, 2003)
xxiii.Sharda v. Dharampal AIR 2003 SC
xxiv.http://store.cq.com/cq-store/dnateexbi.html. (visited on 17th
December, 2003)
xxv 42 U.S.C. 14132(b)(2)
xxvi. 42 U.S.C. 14135(d)(3)
xxvii. 42 U.S.C. 3797m
xxviii. 185th Law Commission Report.
xxix. AIR 2003 SC
xxx. http://www.kar.nic.in/fnjpc/report1a.html.
xxxi. http://in.news.yahoo.com
xxxii. Ibid.
Abhijeet Sharma is 3rd year student in LL B from
National Law University, Jodhpur.
combat law  April - May 2004
CL
labour rights
Tea Garden Workers -Abandoned to Death
I
t was 8.45pm on 7th March 2004. Around 250
Raimatang tea estate workers were still waiting for the Tribunal to arrive at their garden.
The tribunal was supposed to be there at
5.00pm. But then every worker in the other 5
gardens the tribunal visited earlier the day had endless
tales of sufferings to tell. We reach their ‘enclave’ at 8.50pm
and there is no electricity. Eversince the garden was closed,
the elctricity has been disconnected. They lit two lanterns in
the darkness and we began recording their voices.
I moved aside to chat with Rakesh, a 17 year old while
the tribunal hearing was in progress. Just a few minutes
before I had heard that many school and college going
children had to quit their education and this included
many youngeters who were just about to complete their
matriculation and degree courses. Rakesh was in his second year degree course at a Siliguri college. I asked him
if he is going to college. His reply echoed what I just
heard. He said that he used to be going to college once in
a month, but since four months that also is discontinued.
Because it costs at least Rs.30 per day in travel to
Siliguri and food for the day and now the family is earning hardly Rs.50 at present he has to work to augment
the family income. As our chat progresses he tells me
about this racket that takes young girls three times a
month to neighbouring states like Sikkim under the
guise of domestic help and women entering prostitution
to support family. A few days after, Avijit Sinha, a correspondent with the Telegraph in Siliguri reports,
Twenty-five-year-old Ratia Oraon (name changed)
stands out against the green tea bushes in her pink printed saree and bright lipstick as she hurries down the ribbon-like walk of Palashbari tea estate towards the dingy
labour lines. That is where her client, a garden labourer
at Palashbari, stays. Ratia will be paid Rs 30 for an hour.
Her main customers come from Chamurchi, Haldibari,
Mahabir tea estates, neighbouring gardens of
Kanthalguri tea estate where she belongs.
With the Kanthalguri tea estate lying closed since July
22, 2002, and starvation deaths becoming a regular feature - 400 have already died - a section of the garden
women have resorted to prostitution as the only way out
of stark poverty. "After lockout was declared in the garden, we plucked the leaves and sold them off. Then we
sold the trees for firewood and some people even sold the
furniture, doors and windowpanes of the manager's bungalow for food. There is nothing left now so we have taken
to this profession. It is better than seeing my little brother die without eating," says Ratia, fidgeting with her
painted nails .
79
PHOTO COURTESY: SUNIL SCARIA
BY SUNIL SCARIA
Shining India? - Dekhlapra Tea Estate.
Education is not the only thing that is affected. The tea
plantations in India are witnessing an unprecedented
human tragedy, a survival crisis. The plantations in
North Bengal have been feeling the heat for a couple of
years now with newspapers writing about the crisis,
especially the plight of the workers almost daily. The
manisfestations of this man-made calamity were manifold. They newspapers reports, various trade unions,
NGOs said that hundreds of tea garden workers are
dying of hunger and starvation in the region.
In view of the persistent reports of starvation and other
human rights abuses in the tea gardens of North Bengal,
Swadhikar, a voluntary society of Jalpaiguri requested
Indian People’s Tribunal (IPT) to visit the area in order
to determine the facts and make recommendations on
that basis. The Tribunal accordingly constituted a
bench under the Chairmanship of Justice (Retired)
Hosbet Suresh which included Harsh Mander, Dr.
Manas Dasgupta, Samar Nath Chatterjee, Gayatri
Singh, Virginius Xaxa and Ranjit Sarkar.
The Terms of Reference
To look into the present living conditions of the nearly
million workers and their dependents who are said to
have died in their hundreds due to starvation, endemic
malnutrition, poor sanitation and water-borne diseases,
aggravated by unattended proper medical care.
To investigate into the genesis, progress and the causes of the crisis in the tea industry that has entailed
slashed wages and bonuses, curtailment or termination
of wages in kind (as required by the Plantation Labour
Act), retrenchments, closures, lockouts and the abandonment of many gardens by the employers.
To review the powers and actions of the Central and
State governments, the Tea Board and other regulatory
bodies in preventing and ameliorating the full force of
the crisis.
combat law  April - May 2004
labour rights
The Tribunal visited 6 gardens - Kathalguri,
Dheklapara, Ramjhora, Mujnai, Kalchini and
Raimatang on the 7th and held public hearing on 8, 9
and 10 March, in Jalpaiguri to record oral and written
statements from all concerned parties. The people who
deposed included the local MLA, several tea employees
and union officials, discharged officials of the tea industry, the advisor to the Supreme Court in writ Petition
196/2001 on the Right to Food and Right to Work, one
member of the Tea Auction Committee at Siliguri and
several important buyers, social activists, and voluntary
associations who are engaged in providing relief to the
distressed in the tea gardens. The Tribunal also met the
Divisional Commissioner and the District Magistrate.
A study done by the West Bengal Right to Food and
Work Netwok and the advisor to the Supreme Court in
Writ Petition 196/2001 has revealed that as many as 22
plantations, 21, 000 permanent workers and about
95,000 people have ben affected in Jalpaiguri district
alone. A door to door survey of 204 households in 2 plantations done by the study team revealed an even more
frightening picture with the average number of deaths
per year increasing by 241% after closure of the plantations. Male deaths showed an increase of 404%, while the
aged showed an increase of 350% after closure!
The death registers show that most of the workers die
due to blood dysentery and cardio respiratory failure.
However the maximum percentage die of causes ‘not
given’ or ‘others’ which is not difficult to be understood as
hunger deaths given the present condition of these gardens. There is an acute drinking water problem in all
these gardens. Once they were shut down the electricity
and water supply was disconnected. People use the river
water for drinking purposes with the same river being
used for cremation purposes. The water is also highly
contaminated with dolomite from the cement manufacturing factories. Even the ground water in the region is
unfit for drinking due to large scale application of fertilizers, pesticides and agrochemicals in the tea gardens.
Why the Problem?
The causes for the exisiting problem are manyfold. The
most common cited cause being the price fall. And the
price fall is attributed to a general over supply situation.
But its beyond comprehension that the tea prices fall
while the demand for tea is ever increasing. Consumers
continue to pay higher prices for tea purchased off the
shelf. It defies the supply - demand equation. The shift
from ‘commodity business’ to ‘branded product’ has
denied the producers due fair price for their product.
Tea gardens are ‘enclaves’, alien and inward looking
and cut off from all links with the surrounding people
and economyi.. During the colonial period, labour was
hired from outside given housing and incorporated into a
80 combat law
new form of society, the pattern of which was dictated by
the management of the plantation and designed solely to
suit the needs of the plantations. The owners of the tea
plantations behaved as the rulers of these principalitiesii.. The tea plantation workers in eastern India, mostly adivasis and lower castes, are fourth generation
descendents of these immigrants brought by the colonial
planters 150 years back from the tribal tracts of Bengal,
Bihar, Jharkhand, Orissa, Madhya Pradesh and Nepal.
Post independence, according to the Plantation Labour
Act, 1951, the planters were to continue provide healthcare facilities, transport and elementary schools. The
Plantation sector still operates under the colonial legacy
characterized by migrant labour, poor condition of work,
low wages and generally perceived exploitative conditions. They are still treated as secondary citizens of the
state and continue to live under sub-human conditions.
The Cha Bagan Majdur Union (associated with CITU)
Secretary Mr. Zia –Ul- Alam had another reason for the
present crisis. He said, “The nature of the present phenomenon of lock out and abandonment of tea gardens in
West Bengal during the last two years is quite different
from the earlier trends. The gardens hat have faced this
problem are either gardens with declining productivity
in terms of land (and not labour) and over-loaned (most
even more than their total asset value). These planters
have sucked the land of all its resources and have failed
to invest anything to the land. Instead, they abandon
the garden when the productivity of the land shows
declining trends”.
The Tribunal found from its interaction with the concerned people that there had been large number of
hunger related deaths, resulting from a combination of
starvation, malnutrition, general debility and disease
the number of deaths being not less than 800 in those six
closed or abndoned gardens gardens it visited.
Interim Report
The Tribunal in its interim report came down heavily
on the violations of human rights, violation of statutory
obligations by the plantation managements, failure/inaction of the Central and State Governments in taking necessary action, and failure of the trade unions in protecting the workers. The Tribunal noted that the workers’
right to food, right to work, right to healthcare and sanitation, right to education and decent living conditions
are severly curtailed due to the closure of the gardens.
The plantation managements have violated their statutory obligations by misappropriating many crores of
rupees from the workers’ earned wages, salaries, bonus,
rations, earned leave, provident funds, gratuity, life
insurance etc. They have also evaded their liabilities to
the government exchequer. Many operational gardens
are also following this trend of not paying the
 April - May 2004
labour rights
wages/salaries in time, not disbursing cereals in due
time, not depositing the PF amount, not paying gratuity,
paying three day’s wages for six days of work and are
pushing the workers and their dependents into starvation and death.
The Tribunal also noted that the inaction and indifference of the Central Government and the Tea Board.
While there is widespread agreement on the starvation
and deaths among all parties including the ruling coalition in West Bengal, the concerned ministers at the
Central and State level have denied that anyone had
died of hunger and starvation. Under the Tea Act 1953,
the Central Government has vast regulatory powers particularly in relation to employers who have defaulted in
the payment of wages and PF dues. Under the Act, the
Central Government and the Tea Board can initiate
stringent measures against the tea undertakings or
units if they are ‘managed in a manner highly detrimental to the tea industry or to public interest.’
It also criticised the State Government for the indifference showed to the workers. Their indifference is illustrated in the fact that the 2002 BPL survey did not include
the workers of the gardens even after their closure for one
and half years. The tribunal goes on to state that,
It is also unfortunate that the State Government in its
affidavit filed in the Supreme Court, states that it is not
their responsibility to provide ration at subsidised rates
to these workers. The State Government should have
realised that it has constitutional obligation to identify
human rights violations and to prevent violation of
human rights and to fulfil human rights both under the
International Covenant on Economic, Social & Cultural
Rights and also under the Directive Principles of State
Policy. The state also has a duty to come to the rescue of
citizens living under forced conditions of severe destitution and forced hunger. It was only after the order of the
Supreme Court dt. 16 January 2004, that the local
administration decided to undertake food relief measures under SGRY and AYY (Antyodaya Annapurna
Yojana). The Tribunal also found that these schemes
were implemented in a fragmented and inadequate manner. The Tribunal received several complaints to the
effect that many did not either receive the amounts due
under the schemes or the full quota of grain supply. Even
the BPL card was not issued by the government to the
people entitled to the same which would have enabled
them to get their dues and food at the minimum price
and also would have helped them in availing government
healthcare facilities. It appears that the local administration issued a card of its own that did not include medical facilities. The Tribunal also found that till this date
the scheme of payment of unemployment allowance of
Rs.500 per month to employees of closed gardens for a
period of one year, which was to be extended to those
81
workers of the 6 closed gardens of Jalpaiguri district
w.e.f. 1.12.2003., is yet to be implemented.
The Tribunal was also critical on the trade unions. While
the trade unions feel the sand being swept away under
their feet, they have achieved little to address the misery
of the workers mostly due their political allegiances and
fight for dominance. It noted that if the trade unions acted
unitedly taking prompt and proper steps, the conditions of
workers could have been different. It was surprising to
hear Mr. Zia –Ul- Alam of Cha Bagan Majdur Union (associated with CITU) tell us that he was not sure if the deaths
in the tea gardens were due to hunger and starvation,
echoeing the stand of the state government when asked
about the hunger deaths in the gardens.
What should be Done
The Tribunal recommended that all out measures
(within the existing framework or special if needed),
medical, food and potable water supply, transportation
etc. needs to be taken to prevent anymore hunger deaths
in the gardens. The tribunal also recommended prosecution of employers in order to recover dues on LIC, PF and
Gratuities and other dues and called for immediate cancellation of leases and setting up of workers cooperatives
to run the gardens as demanded by all trade unions. The
State Government should take back a portion of leased
out land for the settlement and development of nonworkers and/or temporary workers and their families.
The tribunal also recommended amendment of the PLA
to provide for welfare measures under the Act, to be
supervised by the local panchayats and the Block
Development Officers. The Government should take preventive measures against closure of gardens without permission of the government and consultation with workers.
The Tea Act should be suitably amended so as to assign a
proper role to the State administration in the matter of
proper supervision and running of the tea gardens.
Workers’ condition in this land ruled by the workers’
party is indeed sub-human. And the state is yet to wake
up from its slumber and realise that it is their duty to
protect its citizens from hunger and starvation.
Endnotes:
i.
Edgar Graham & Ingrid Floreing. The Modern Plantations in
the Third World (London, Croom Helm, 1984),p.25.
ii. G.E Beckford, Persistent Poverty: Under-development in
Plantations Economies of the Third World. (London:Oxford
University Press, 1972), p. 75.
Sunil Scaria is the Joint Coordinator of the Indian
People’s Tribunal on Environment and Human Rights
(IPT) and visited the area with the Tribunal panel.The
author could be contacted at [email protected]
combat law  April - May 2004
CL
adivasi rights
Adivasi Tradition as Crime
Adivasi tradition of dispute-resolution is made out as a criminal offence.
BY STAN SWAMY
T
he Adivasi Community has had centuries-old
tradition of dispensing justice at village /
area level. The traditional village headman
(Munda in Munda & Ho communities, Pahan
in Oraon community, Manjhi in Santal community, Doklo in Kharia community) has the authority
to settle village - level disputes. He calls village meeting,
summons the disputing parties, discusses the case in
question, obtains a consensus decision on the matter
from all assembled and pronounces the community’s
judgement which both parties are expected to accept.
This may include punishment to the erring party in the
form of fine in cash or kind and in extreme situations
even social ostracism from the village community.
In case the guilty party refuses to accept the verdict of
the village community, then it is referred to the area
headman responsible for 20 to 30 villages (Padharaja in
Munda & Oraon community, Manki in Ho, Pargana in
Santal, Sohor in Kharia community) who together with
the all the village heads in his jurisdiction summons the
concerned parties, examines the case and arrives at a
consensus decision which the parties have to accept. And
in rare cases where even this decision is unacceptable to
either party, three area headmen representing about 90
to 100 villages gather together and issue their final
verdict which has necessarily to be accepted by the disputing parties. Refusal to accept would be dealt with
severely leading to even physical ostracism. The most
significant factor is the consensus-decision making
process so that individual prejudice, lack of competence
of some persons etc. are taken care of and collective wisdom is cherished.
This tradition of the Adivasi People was formally acknowledged by the Indian Parliament when in December 1996 it
passed ‘The Provisions of the Panchayats (Extension to the
Scheduled Areas)Act,1996’ wherein in Section 4 (d) it
affirms “every Gram Sabha shall be competent to safeguard
and preserve the traditions and customs of the people, their
cultural identity, community resources and the customary
mode of dispute resolution”.
Adivasi Tradition made into a crime in
Pakur District
The Jharkhand Government has issued notification
for land acquisition in nine tribal villages of Pachwara
Central Block, within the scheduled area of Pakur District
for captive coal mining to supply coal to the power plants of
82
Punjab State Electricity Board (PSEB). The captive mining
will be done by a private company, PANEM Coal Mines
Limited. Open cast mining will be done in 11 square kilometers of land which includes: Raiyati land - 640 hectares,
Forest - 360 hectare, Homestead - 2 hectares, Waste land 15 hectares, Nala, River - 34 hectares, Road - 28 hectares,
Grazing land - 22 hectares
All the above agreements between Jharkhand
Government, PSEB and PANEM company were made
without any reference to the Tribal People affected by
this mining project. Then the Land Acquisition Dept
issued Notification No 4 on 13-11-2002 in the local newspapers to which the Gram Sabha of Pachwara sent a letter on 9-12-02 to the concerned authorities reminding
them of Panchayat Raj (Extension to Scheduled Areas)
Act, 1996, according to which prior consultation with
Gram Sabha on any project involving land acquisition in
Scheduled Areas is a must. There was no response from
the government. Then again the government issued
Notification No 6 in local newspapers on 14-5-03
announcing the proposed acquisition of plots. The people
again responded on 2-7-03 to the effect that they demand
a dialogue with concerned Gram Sabhas. This communication was sent to concerned officials by Registered Post.
This letter was returned to them on 23-7-03 with a note
“Refused” by the post man. In the meantime, the government has issued Notification No 8 as per which the people have been informed that measurement of those plots
of land proposed to be acquired is to take place. People
have now hand delivered a letter on 25-7-03 to the officials demanding explanation for their Refusal of the previous letter. Response is still awaited.
The action of the government goes against the prescription of Sec. 53 of Santal Parganas Tenancy
(Supplementary Provisions)Act,1949, which enjoins the
Deputy Commissioner “to issue notice to the raiyats and
other persons interested to appear before him and to file
objections, if any…” Let it be noted that the Deputy
Commissioner of Pakur Dt., has not issued any such
notice to the raiyats as of 25-11-03. Nor has he entertained any of their objections.
All that the people are demanding from the Govt is a
dialogue through which they will come to know the purpose, the use of their to be acquired land , terms of rehabilitation / compensation etc. And this the govt refuses to
oblige. This whole process adopted by the government is
unconstitutional and illegal. Hence the village heads of
the area decided they would not allow any outsider, be it
government officials, PANEM company personnel, into
combat law  April - May 2004
adivasi rights
the area by putting up manned barricades.
All the nine villages presently affected and about 35
surrounding villages which will be affected in future
stand united in this action. In the meantime, PANEM
company is trying to weaken this united struggle by buying off some persons by money and promise of jobs.
Hence the Pargana and the Manjhis of the area deemed
it necessary to summon such deviants before their traditional court, established their guilt, levied a fine as punishment and issued a warning to the effect that if they
would not mend their ways more serious action would be
taken against them. Now the local police persuaded one
such person to file an FIR against the tribal chiefs in the
District Sessions Court and arrested all the village heads
of the nine villages including a venerable 71 year-old
Pargana (area-headman). The charge-sheet includes
offences such as (IPC Section 386 implying forcible extortion and Section 34 meaning group culpability of all the
eight Manjhis and one Pargana). The whole group
applied for bail in Pakur District Court. All of them got
bail. But the police retained one person who happens to
be the most outspoken of them all. Other charges have
The Bombay High Court in March 2004 pronounced the judgement in the Ramesh
Pimple produced documentary film Akrosh
on the communal riots that took place in
Gujarat in 2002. As observed by the
Division Bench, “ the documentary makes a
sincere attempt to give expression to the
sufferings and woes of the survivors of the
holocaust. Ramesh Pimple applied for censor certificate and the Examining Committee
came to the conclusion that the certificate
could not be granted. Pimple appealed to
the Revising Committee of the Censor
Board. The Revising Committee also decided not to grant any censor certificate to this
film. Pimple then appealed to the Film
Certification Appellate Tribunal.
This
Tribunal also agreed that no censor certificate could be granted to the film as according to the Tribunal the film was one sided
version of one particular community if shown
to the masses it was bound to provoke the
communal feelings and the desire to retaliate and take revenge. The Tribunal
observed “ These riots are now history and
therefore be forgotten by the public to avoid
such cruel acts”.
The Division Bench consisting of Justice A.P.
Shah and Justice S.C. Dharmadhikari
viewed the film for themselves. They
observed : “ If the narratives are considered
in the context of devastating destruction
caused by riots they will generate sympathy
in the minds of the viewers for the riot affected persons. We are unable to agree with the
view of the tribunal that exhibition of the film
would
lead
to
further
communal
violence.The film creates more compassion
been added against him, including kidnapping and
threat to kill. When he applied for bail it was rejected on
the ground that these are non-bailable offences and he
has been languishing in jail for over 10 months. The
crime is that he and the other tribal chiefs’ dispensed justice as per their tradition of dispensing justice.
This situation calls into question as to where the adivasi people of Jharkhand and their democratic tradition
of dispensing justice stand before the government’s
administration, the law and order forces and the judiciary. The only constitutional instrument which can do
that is the State High Court. Accordingly, Jharkhand
Justice Forum, a state level legal body, has filed a PIL in
the High Court of Jharkhand challenging the government on its land acquisition process and demanding the
recognition of the Adivasi method of justice dispensation
as valid and constitutionally binding. It is to be seen
whether the High Cort will restore the respect and dignity due to the rich traditions of the Adivasi People?
Stan Swamy is an activist from Jharkhand and is
CL
associated with Bagaicha.
rights watch
that hatred and would shame and shock
ordinary people and hopefully spur many of
them to think and act positively”.
They further observed: “ The petitioner’s
documentary film “Aakrosh” brings out the
agony and anguish of victims of communal
riots which took place in Gujarat in early part
of 2002. Gujarat burned and was convulsed
with barbarious violence for over 40 days
from February 2002 when the Sabarmati
express, running from Faizabad to
Ahmedabad, was attacked and torched at
Godhra killing 58 passengers, many of them
women and children.Even as the Godhra
tragedy was roundly condemned, the anticipated backlash took on the dimensions of a
holocaust primarily aimed at the Muslim
community. This soon engulfed central,
north and northeastern Gujarat, including
Ahmedabad, Vadodara and part of the eastern tribal belt. Nearly 800 persons were filled
according to the official count, unofficial estimates are far higher. It was a slaughter of
the innocents. The brutalities were unprecedented, especially against women. The tragic events in Gujarat, starting with the Godhra
incident and continuing with the violence
that rocked the State for over two months,
have greatly saddened the nation. It is no
doubt true that it is essential to heal the
wounds and to look to a future of peace and
harmony. But we are unable to share the
views of the tribunal that the riots are now
history, and therefore, be forgotten by public
83 combat law
 April - May 2004
to avoid repetition of such cruel acts. It is
when the hour of conflict is over it may be
necessary to understand and analyse the
reason for strife. We should not forget that
the present state of things is the consequence of the past; and it is natural to inquire
as to the sources f the good we enjoy or for
the evils we suffer.”
Finally the Court referring to the riots which
took place in Gujarat observed: “ Incidents of
riots occurred in Gujarat are extensively
reported in newspapers and on electronic
media.The national print and electronic
media meticulously documented the holocaust especially targeting of Muslim homes,
mohallas, shops and establishments, factories, hotels and eateries and other economic assets as well as shrines. Sufferings of
victims as an aftermath of the riots are also
meticulously shown on electronic media and
there seems to be nothing new or startling in
the narratives in the documentary. The petitioner to his credit has completely avoided
sensationalism and excitement. He ahs sincerely tried to portray the sufferings of the
riot affected persons. Message of movie is a
message of unity and peace and judged in
its entirety we are unable to hold that the
exhibition of the film would lead to communal violence.”
The court after summarising various decisions of the Supreme court came to the conclusion that the Tribunal was not right in
observing that the movie would incite people and would lead to further violence.
Accordingly the court in its historic decision
directed the Censor Board to grant certificate for exhibition of the film Aakrosh.
prisoners’ rights
Accessing Justice
The right of the accused to a copy of the First Information Report will go a long way in
ensuring justice.
BY HIRDEY PAL SINGH
O
ur Constitution has provisions that
ensure justice is delivered. Ensuring that
access to the first information report is
given to accused is provided for in law and
also judgements of Courts.
Under Section 154 (2) Cr.P.C., a copy of the information
as recorded by a police officer has to be given forthwith,
free of cost, to the informant. However, there is no such
express statutory right available to the person against
whom the criminal investigative machinery of the State
has been set in motion. The scope of the right of the
accused to the copy of the FIR needs to be judged
from the combined effect of the constitutional and the
statutory Law.
Article 22 of the Constitution provides:
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right
to consult, and to be defended by a legal practitioner of
his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate
within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the
place of arrest to the court of the magistrate and no such
person shall be detained in custody beyond the said period without the authority of a magistrate.
The analysis of Clause (1)shows that every arrested
person is entitled (a) to be informed of the grounds of his arrest,
(b) to consult and to be defended by a legal practitioner
of his choice.
Under clause (2)(c) He must be produced before the
nearest magistrate within 24 hours and
(d) must not be detained beyond 24 hours without the
authority of a magistrate.
The conclusion reached above is reinforced by the wordings of the Clause 5 and 6 of Article 22 itself.
(5) When any person is detained in pursuance of an
order made under any law providing for preventive
detention, the authority making the order shall, as soon
as may be, communicate to such person the grounds on
which the order has been made and shall afford him the
earliest opportunity of making a representation against
the order.
(6) Nothing in clause (5) shall require the authority
86
making any such order as is referred to in that clause to
disclose facts which such authority considers to be
against the public interest to disclose.
State has been given an express right in this case to
withhold information from the detenue if the disclosure
is against the public interest. No such authorization has
been given in the case of arrest. Therefore, it implies that
the authorities are bound to disclose the complete facts
forming the grounds of his arrest to the accused "as soon
as may be".
The right of the accused to inspect the FIR or obtain
copies of it can also be derived from Section 74 of the
Indian Evidence Act, 1872 which defines 'public documents' and Section 76 which pertains to certified copies
of public documents. The Calcutta High Court in the
case of Panchanan Mondal v. the State, held that the
FIR is a public document. The Court said:
“The question of prejudice of the accused on account of
denial of the copy of the FIR at the earlier stage therefore
assumes greater importance and on a proper consideration thereof, I hold that it is expedient in the interest of
justice that a certified copy of the first information
report, which is a public document, should be granted to
the accused on his payment of the legal fees therefore at
any stage even earlier than the stage of S. 173(4) of the
Code of Criminal Procedure. At the later stage, the
accused will have the right to have a free copy but the
same would not take away the right he already has in
law to have a certified copy of the first information report
on payment of the legal fees ......."
The above view of the Hon'ble Calcutta High Court was
also accepted by the Gujarat High Court in the case of
Jayantibhai Lalubhai Patel v. The State of Gujarat. The
Hon'ble High Court held that the accused has a right to
inspect the FIR which is a public document. Directing
the trial court to supply certified copy of the FIR at the
earliest on payment of charges by the petitioner, it said:
“When the FIR is forwarded to the Magistrate as contemplated in the Code, then it is certain that a regular
endorsement is made in the public document, viz., general diary regarding the case as contemplated under
Section 154 of the Code. It also makes it clear that after
registration the report has been forwarded under Section
157 of the Code and that would raise a legal presumption
that there is an official act and the same has been duly
performed. Therefore also it becomes a public document,
viz. forwarding a report to the Court under the Code and
therefore when a person against whom the report is
combat law  April - May 2004
prisoners’ rights
made asks for a copy, the same should be supplied to him
without any hesitation on charging legal fees”.
Under Section 173(7) of the Cr.P.C., (7) if the police officer investigating the case finds it convenient to do so, he
may furnish to the accused copies of all or any of the documents referred to in sub-section 173(5). However, the
accused has a right to apply for bail before the completion of investigation against him, even when he is
brought before the magistrate for the first time, which,
according to the Constitution, has to be within 24 hours.
In Hussainara Khatoon it has been laid down that in
order to determine whether the accused has his roots in
the community which would deter him from fleeing, the
Court should take into account the following factors concerning the accused:
“ 7. The nature of the offence charged and the apparent
probability of conviction and the likely sentence in so far
as these factors are relevant to the risk of non-appearance, …”
The legal practitioner appearing on behalf of the
accused can only represent the case fully and assist the
court on the prima facie probability of conviction for the
purpose of bail if the first information report, the basis of
prosecution, is made available to him at the earliest.
Delaying the furnishing of a copy of the FIR till the completion of the investigation does not at all help the
accused in securing liberty through bail.Copy should be
given prior to being produced before a magistrate.
In conclusion, an amendment to the Cr.P.C. providing
for a copy of the FIR to the accused in case of his arrest
would not only benefit the defense, it would also nip corruption in the bud as the accused would no longer have
to bribe to get a copy of the document on the basis of
which his liberty has been curtailed. However, even in
the absence of such a legislative exercise the accused has
a right to get a copy of the FIR which rests on the bedrock
of the fundamental rights enshrined in the Constitution
of India.
Hirdey Pal Singh is a Lawyer practising in the High
court of Punjab & Haryana.
CL
A Model for All?
BY VEENA KUMARI
M
odel Jail, Chandigarh again came into
national news on January 22, 2004
when three of the alleged assassins of
former Chief Minister of Punjab, Beant
Singh allegedly escaped from the jail
through a 94 feet long tunnel inside the jail premises.
Former Chief Minister of Punjab, Beant Singh was
killed in a bomb blast outside Civil Secretariat in
Chandigarh on August 31, 1995. Seventeen others died
in the blast which was allegedly triggered by a human
bomb, Dilawar Singh, a dismissed Punjab police constable. The case was immediately handed over to Central
Bureau of Investigation which arrested nine accused and
brought them to trial in the court of Sessions Judge,
Chandigarh in 1996. The accused were lodged in high
security Model Jail Chandigarh since 1996 and the trial
was conducted inside the jail premises, after the administration invoked Section 268 Cr.P.C. against all the
accused on the ground that these accused were hardcore
terrorists and could not be brought out of the jail for
security reasons. The trial court has so far examined 235
prosecution witnesses out of more than 375 cited witnesses, in the 900 pages challan filed by the Central
Bureau of Investigation. With no bail for even a day during the last eight years to any of the accused, they might
be mentally prepared to face any eventuality arising out
of this high profile political case. Interestingly, two
87 combat law
accused, Balwani Singh Rajoana' and Jagtar Singh
'Tara' have confessed their involvement in the crime in
writing before the trial court and have pleaded guilty
during the pendency of trial.
On January 22 2004, reportedly there was an alarm in
the jail at about 8. a.m. after the jail superintendent during his routine checking found that the three undertrials,
namely Jagtar Singh "Hawara", Jagtar Singh Tara' and
Paramjeet Singh 'Bheora' alongwith one of their helper,
Debi Singh( a murder convict) were missing. Soon the
news spread like a wild fire and media, senior police officials and administrative officers rushed to the jail. While
the members of press and defense counsels were denied
entry into the jail premises, senior police officers were
tight lipped about the whole incident. Suspecting foul
play, the defense counsels alleged that their clients could
have been forcibly taken out of the jail premises by the
police or jail authorities for the purpose of elimination.
The defense counsel for one of the under trial even faxed
a complaint to the National Human Rights Commission
the same day apprehending threat to the life of his client
at the hands of police. Father of one of the under trial,
Paramjeet Singh 'Behora' has also filed a private complaint in the
court of Judicial Magistrate,
Chandigarh fearing elimination of his son by the jail
authorities or police.
In order to cover up their lapses; the administration
swung into action and arrested the Superintendent,
deputy superintendent, assistant superintendent and
 April - May 2004
prisoners’ rights
four other subordinate staff of the Model Jail, who were
held responsible for the escape of the four prisoners,
interestingly, not even a single senior administrative
officer, responsible for the jail administration was questioned or arrested in the incident. Within a short tune,
hundreds of persons from different parts of Punjab and
Chandigarh were rounded up by the police in connection
with this case. Names of several human rights activists
and even defense lawyers were involved in the incident.
After a month of the incident, fifteen persons have been
arrested in the" case including six inmates of the jail and
a woman. Three human rights activists -including a
defense lawyer suffered harassment during the interrogation by the police. All the arrested persons were subjected to sustained third degree torture during their
police remand. Among the arrested persons a young
woman Baljeet Kaur and her husband Lakhwinder
Singh alias Lakha, were brutally tortured and electric
shocks were given on their private parts. Even the
Superintendent and deputy superintendent of the jail
have alleged in their applications before the Magistrate
that they were given electric shocks on their private
parts. Narayan Singh 'Chaura' of village Dera Baba
Nanak in the border district of Gurdaspur, the alleged
mastermind of the incident, was so brutally tortured that
his left arm became motionless. A board of doctors constituted on the court orders for his medical examination
confirmed the infliction of extreme form-of third degree
torture during his twelve day police remand by the
Chandigarh and Punjab police, but the Magistrale failed
to take cognizance of this blatant violation of human
rights of the suspects. Even effective legal aid was denied
to many persons arrested in the case.
After the media rubbished the theories put forward by
the Chandigarh Administration regarding the alleged
escape of the four prisoners by digging a tunnel from the
high security prison in Chandigarh, the Central
government hurriedly constituted a high powered committee headed by Commissioner of Delhi Police comprising of the Senior Superintendent of Police, Chandigarh
and an IAS officer. They were asked to report within two
months with regard to the lapses in the jail security system and make recommendations for taking steps to prevent such incidents in future.
Showing distrust over the shabby investigation conducted by the Chandigarh Police, a Public Interest
Litigation was filed in the Punjab and Haryana High
Court demanding a CBI inquiry into the jail break
incident. The High Court issued notices to the Central
government Chandigarh Administration and District
and Sessions Judge, Chandigarh seeking their response
on the incident. Few human rights organizations also
joined in the issue and demanded a high level judicial
inquiry into the incident.
88
Suspension of human rights of inmates
In order to create terror in the minds of other inmates
lodged in the Model Jail Chandigarh, the new jail administration has deprived all prisoners the enjoyment of
even the minimum basic amenities like proper food, bedding and movement outside the barrack. The relatives of
the prisoners who come for interview in the jail are maltreated and subjected to constant harassment at the
hands of jail staff. Two iron meshes affixed at a distance
of two feet from each other comes as an obstruction
between the visitors and the prisoners, depriving them
and their relatives to talk in privacy. The prisoners have
been locked in their barracks for twenty four hours. All
prisoners lie on the naked floor and their clothes or quilt
provided to them by their relatives have been taken
away on the orders of the jail superintendent. The subordinate jail staff is also facing acute tension and hostile
circumstances inside the jail. Due to the indiscriminate
interrogation of subordinate jail staff by the Chandigarh
police numerous jail officers are suffering from acute
hypertension and depression. Charan Singh, an assistant jail superintendent who was called for interrogation
in the case by the police and was made a witness, died
the same day by suffering cardiac arrest on February 6,
2004, The relatives of many other prisoners apprehend
threat to the lives of their near and dear ones who are
lodged in the jail and a sense of insecurity is also breeding in the minds of jail inmates.
Interestingly, a police officer of the rank of
Superintendent of Police of Chandigarh Police has been
appointed as the Inspector-General of Prisons, U.T.
Chandigarh in place of deputy-commissioner, who was
discharging this duty till recently.
Few questions which haunts every person on the tunnel theory of the police are as under :1. How did the high-tech implements used for digging a 94
-feet long and 14 feet deep tunnel reach the escapees and
the work of digging continue for a considerable long time
without being noticed by even a single jail employee?
2. Why would the under trial Jagtar Singh Tara' escape
from the jail when he had voluntarily confessed of his
involvement in the assassination of the Chief Minister in
the court and had pleaded guilty in the court during the
trial?
3. Did the delay of eight long years in the trial, with
less than half of the prosecution witnesses having being
examined so far, contribute in any way to convince the
under trials to run away and subvert the process of law?
Veena Kumari is a practicing lawyer and co-ordinator
of the Human Rights Law Network, Chandigarh Unit.
combat law  April - May 2004
CL

Similar documents