The present research paper aims at touching one of the most sensitized issues in the human society, that is, human trafficking. What is human trafficking? How is it done? Why humans are made victim to such a menace? What are the different forms of human trafficking? What are the causes and the impact of human trafficking on individuals and society? All the questions will be answered in this research paper. In addition to this, we will also talk about the international conventions and protocols such as – Palermo Protocols; UN Convention against Transnational Organized Crimes, 2000; Council of Europe Convention and EU Directives along with the role of UN High Commissioner for Refugees and International Labor Organization. We will also take a brief look at the Indian national legal framework relating to human trafficking like – Indian Penal Code, 1860; Immoral Traffic Prevention Act, 1956; Constitution of India; Information and Technology Act, 2000. After all this, we will go through the Anti – Trafficking Bill, 2018 which is currently in the Parliamentary Standing Committee for re-consideration. We will talk about the loopholes in the bill by closely critiquing it and answer the question, that is, what are the Victim Compensation and Witness Protection Schemes or are there even any, at subsequent stage. Besides, we will take a glance at some of the important and landmark cases and judgments which are adding to the development of human trafficking laws. At last, we will sum up our discussion by giving up some of the suggestions and recommendations that are needed to be taken into consideration in the upcoming Anti – Trafficking Legislations and also to eliminate this despicable evil from the lives of the individuals to make this world a better place for living.
KEYWORDS – Human Trafficking, international legal framework, cases, judgments, Anti – Trafficking Bill 2018, Palermo Protocols.
“People were created to be loved. Things were created to be used. The reason why the world is in chaos is because things are being loved and people are being used.”
These two lines are very well depicting the current situation of our human society. The people are not loved but used. They are being sold in the same manner as the commodities are sold. And, this is the reason why the world is in so much chaos. All the humans are born with certain rights. In the general parlance, we call those rights as human rights. Each and every person enjoys these rights by virtue of being human. And, it is the obligation of the people to respect each other’s rights. Here, the question arises is that are we really fulfilling our duty? Do we really respect the rights of other humans? Is this the kind of humanity that we are talking about these days? Why do we call ourselves as humans even? To answer all such questions, it is expedient to have an understanding about one of the organized crimes that leads to the grave violation of human rights, that is, human trafficking.
Before starting with the concept of human trafficking, let us first start quoting some facts and figures relating to the same to have an idea about the terrible situation across the globe. According to International Labor Organisation,
At any given time in 2016, an estimated 40.3 million people are in modern slavery, including 24.9 million in forced labor and 15.4 million in forced marriage.
It means there are 5.4 victims of modern slavery for every 1000 people in the world.
1 in 4 victims of modern slavery are children.
Out of the 24.9 million people trapped in forced labor, 16 million people are exploited in the private sector such as domestic work, construction or agriculture; 4.8 million persons in forced sexual exploitation, and 4 million persons in forced labor imposed by state authorities.
Women and girls are disproportionately affected by forced labor, accounting for 99% of victims in the commercial sex industry, and 58% in other sectors.
These figures are horrible and insane. But this is what it is! And, the dangerous thing is that these figures are increasing tremendously. This is high time that we should have stricter laws and legislations to combat this global issue of human trafficking.
WHAT IS HUMAN TRAFFICKING?
Merriam Webster Dictionary defines the word “human trafficking” as “an organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labor).” This definition gives us a very narrow understanding as it mainly talks about only two aspects of human trafficking – “prostitution” and “forced labor”. There are many more aspects which are related to human trafficking. All these aspects are defined by an international protocol, that is, Palermo Protocols.
Article 3(a) of Palermo Protocols defines, “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.”
We can conclude the above definition by answering three major questions:
What is done?
The recruitment, transportation, transfer, harbor, or receipt of persons.
How is it done?
It is done by creating threat, use of force, coercion, abduction, deception, inducement of alluring payments.
Why is it done?
It is done for exploitative purposes like sexual activities, slavery, bonded labor, organ removal, forced marriage, child soldiers, and what not.
Human Trafficking refers to the trading of persons or quid pro quo of persons for illegal purposes. It is recognized as an organized crime and also known as modern-day slavery.
FORMS OF HUMAN TRAFFICKING
There are numerous ways by which people are trafficked and exploited to execute the heinous crime of human trafficking. Let us have a brief discussion about the same.
The trafficking in organs involves removing a part of the body, commonly kidneys and liver, for the purposes of illicit trading. The trading of organs is increasing day-by-day at international levels. In this techno-savvy world, as the technology for transplantation of organs is increasing, the organ trafficking is also rising up. A victim, either forcefully or freely, gives the consent for the organ removal because they are in the need of money, but are then cheated, or are paid less than the promised price.
Forced Marriage is when one person or both the persons are put under pressure to marry someone or to marry each other respectively against their will. The consent in such cases is obtained fraudulently or by undue influence or by coercion. Generally, the objective of forced marriage is either to take individual outside the country or to gain access in a country for some illegal purposes.
SENDING CHILDREN IN WARS
The one of the most vulnerable groups of human trafficking are children because it is easier to manipulate them. They do not have developed sense of danger and they can be easily recruited to the armed conflicts as soldiers. They may be used either for frontline combat by engaging them directly in the acts of violence or within auxiliary roles of informants. This type of practice is most prevalent in parts of Africa and Asia.
This refers to the situation where people are coerced to work, either voluntary or involuntary, in hazardous conditions. Due to lack of employment opportunities in their region, they tend to migrate from their inhabitant areas to the place of work. And, they are generally engaged in factories, mines, industries where they are not paid even minimum wages for their work. Moreover, they are not allowed to leave their workplace. This is one of the main reasons why illegal immigration is heading up. Debt Bondage and Child Labor form the parts of forced labor.
Drug Trafficking refers to the cultivation, manufacturing, distribution and sale of the substances which are restricted by the Drug Prohibition Laws. Children are made soft targets to smuggle illegal drugs from one place to another.
Sex Trafficking is when an individual engages in a commercial sex act as a result of force, fraud or coercion. Sexual exploitation occurs in various settings including brothels for prostitution purposes, pimping, strip clubs, massage parlors, private homes, sex tourism, pornography, mail order brides or bride trafficking and many more. Women and Children are the most common victims of sex trafficking. LGBT identifying individuals, especially transgender, are increasingly found to be victim of sex trafficking.
The word ‘slavery’ refers to the conditions where people are treated as the property of another person, household, company, corporation or government. This is the status of a person over whom ownership rights are exercised. Slaves are held against their will from the time of their capture, purchase, or birth, and are deprived of the right to leave, to refuse to work, or to receive compensation in return for their labor. Forced domestic servitude also forms the part of slavery where people are forced to work for long hours for little pay. They may also suffer physical and sexual abuse.
This is when somebody is forced to carry out criminal activity through coercion or deception. It includes begging, pick-pocketing, bag snatching, ATM theft, selling of counterfeit goods and all. Mostly, children are exposed to the vulnerability of forced criminality.
These crimes are happening in every corner of the world and can include any person regardless of age, socio-economic background or location. Women, children and transgender are the most vulnerable groups exposed to human trafficking. As a result, each form can look very different. The statistics of these crimes are rising at an alarming level despite of having so many legislations, both at national and international levels, to combat this global issue.
HUMAN TRAFFICKING: CAUSES AND EFFECTS
To effectively understand the concept of human trafficking or modern slavery, we must first understand what causes it and how it affects those involved. The root cause of human trafficking is traffickers. But what attracts traffickers to do such type of crimes? The answer is simple. It is the vulnerability that creates opportunity for traffickers. Now, the major question arises that what are vulnerable conditions and actually who falls prey to such crimes?
The conditions are – poverty; unemployment; displacement due to wars, political instability, and natural disasters; lack of education and knowledge; poor and broken family conditions; social and cultural practices; inadequacy of proper legislations and law enforcement agencies. The vulnerable groups include women, children, and LGBTQ communities, undocumented migrant persons, poverty-stricken and downtrodden. It is easy to manipulate these people and traffickers are trained to identify vulnerability. That’s why; these people become the soft-targets of these heart-core traffickers.
The effects of human trafficking are too harsh to handle for the victims. It has the power to impact someone’s life forever. The consequences are not only limited to the extent of physical trauma but also comprise mental, psychological and sociological harms. The physical trauma includes sexually transmitted diseases, diabetes, cancer, injuries, infections, and other illnesses. A lack of proper medical care allows these conditions to spread and worsen often affecting an individual’s health permanently. It also has a severe impact on the mental health and social life of the victim, including, depression, stress, memory loss, anxiety, fear, guilt, shame, difficulty in relationships, isolation from the society and many more.
Not only victims, but the traffickers are too affected by the outcomes of human trafficking. The traffickers also experience trauma because of what they see and do to others, and many traffickers have been victimized themselves at some point in their lives.
INTERNATIONAL LEGAL FRAMEWORK
There are a number of laws and legislations that are adopted by international forums in order to combat the menace of human trafficking. Let us have a brief look about the major international legislations.
The United Nations Convention against Transnational Organized Crime (UNTOC), Adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. The Convention is further supplemented by three Protocols, which target specific areas and manifestations of organized crime. Countries must become parties to the Convention itself before they can become parties to any of the Protocols. The three Protocols are as follows:
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003), is the first global legally binding instrument with an agreed definition on trafficking in persons. Article 3(a) talks about the definition of trafficking in persons and Article 3(b) states that ‘consent’ becomes irrelevant when the child is below 18 years of age. Also, Article 5 tells us about the criminalization.
The Protocol against the Smuggling of Migrants by Land, Sea and Air (2004), deals with the growing problem of organized criminal groups to smuggle migrants, often at high risk to the migrants and at great profit for the offenders.
The Protocol against Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (2005), is the first legally binding instrument on small arms and its purpose is to promote, facilitate and strengthen cooperation among State Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition.
The Universal Declaration of Human Rights of 1948, which declares in Article 4 that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”
The International Covenant on Civil and Political Rights of 1966, in Article 8 states that “(1) No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. (2) No one shall be held in servitude. (3) No one shall be required to perform forced or compulsory labour.”
The Convention to Suppress the Slave Trade and Slavery of 1926, which states in Article 2 that the parties agreed “to prevent and suppress the slave trade and to progressively bring about the complete elimination of slavery in all its forms.”
The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956, which states in Article 3(1) that “the act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto shall be a criminal offense under the laws of the States Parties to this Convention and persons convicted thereto shall be liable to very severe penalties.”
The Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others of 1949. The Preamble to this Convention provided that “Whereas prostitution and the accompanying evil of traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Article 17 thereof provides that States parties are required to “undertake, in connection with immigration and emigration, to adopt or maintain such measures ASE are required, in terms of their obligations under the present Convention, to check the traffic in persons of either sex for the purpose of prostitution.”
The Convention on the Elimination of All Forms of Discrimination against Women of 1979, which, in Article 6, calls upon States parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”
The Declaration on the Elimination of Violence against Women of 1993, which defines “violence against women” to include “rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.”
The Convention on the Rights of the Child of 1989, which states that States parties must “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”
The Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution, Child Pornography of 2000.
The Optional Protocol Stipulates, in Article 10, that States parties must “take all necessary steps to strengthen international cooperation by multinational, regional and bilateral agreements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.”
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000. The Optional Protocol requires States parties to ensure that “persons who have not attained the age of 18 years are not compulsory recruited into their armed forces.”
The ILO Convention No 182 on the Elimination of the Worst Forms of Child Labour of 1999, which provides in Article 3 “all forms of slavery or practices similar to slavery such as the sale and trafficking of children.”
The Convention on the Rights of All Migrant Workers and Members of their Families of 1990, which in Article 11 provides that “No migrant worker or member of his or her family shall be held in slavery or servitude or required to perform forced or compulsory labor.”
Despite of having numerous legislations at international level, the basic rights rather human rights are at abysmal. This should be the first priority, or we should say, this is the need of the hour to tackle the crisis of human trafficking.
HUMAN TRAFFICKING: INDIAN LEGAL FRAMEWORK
After having a discussion about international legal framework relating to human trafficking, it becomes important to talk about the Indian laws and legislations as well. India has recognized human trafficking as one of the major issues and to control the same, it has enacted various laws. Let us take a glance at these laws.
Constitution of India guarantees certain fundamental rights to its citizens and it is the duty of the State to protect these rights. According to Article 23(1), “trafficking of human beings and beggar and other similar practices are punishable offence under the law.” In the similar manner, Article 24 “prohibits employment of children below 14 years of age in factories, mines, or other hazardous employment.” “Right to Life and Personal Liberty” guaranteed by Article 21 is also infringed because of human trafficking.
Indian Penal Code, 1860 has around 25 provisions which talk about trafficking and made it a punishable offence. The significant provisions Section 370 and Section 370A provide for comprehensive measures to combat the organized crime. It also includes trafficking of children for exploitation in any form – physical, sexual, slavery, servitude, or the forced removal of organs.
The Immoral Traffic (Prevention) Act, 1956 is the primary legislation related to the commercial sexual exploitation of children, women and girls, but it does not define trafficking. Keeping a brothel or allowing premises to be used as a brothel or prostitution in the vicinity of the public places are some of the offences specified in ITPA, 1956. Also, Section 372 and Section 373 deals with the selling and buying of girls for the purpose of prostitution.
Information Technology Act, 2000 penalizes the publication or transmission of inappropriate or lascivious material in electronic form which depicts children in sexual explicit act or pornography. Section 67A and Section 68B are the relevant sections to discuss when we talk about human trafficking.
As per Section 2(14) (ii) and (ix) of Juvenile Justice (Care and Protection of Children) Act, 2015 talks about children who are found working in contravention of labour laws for the time being in force or is found begging, or living on the street and who is found vulnerable and is likely to be induced into drug abuse or trafficking is included as a “child in need of care and protection”, among others.
Protection of Children from Sexual Offences (POCSO) Act, 2012 is a special law to protect children from sexual abuse and exploitation. It also provides various precise definitions of sexual abuse, penetrative and non-penetrative sexual assault, sexual harassment and all.
Child Labour (Prohibition and Regulation) Act, 1986 defines a child as a person who has not completed the age of 14 years. The Act provides the provisions to regulate the working hours and working conditions of the child workers and also protects them from being employed in hazardous industries.
The other important legislations related to trafficking in persons are – Prohibition of Child Marriage Act, 2006; Bonded Labour System (Abolition) Act, 1976; Transplantation of Human Organs Act, 1994.
Apart from all these legislations, different State Governments have also enacted the laws in order to deal with this issue. The Punjab Prevention of Human Smuggling Act, 2012; Karnataka Devadasi (Prohibition of Dedication) Act, 1982; Goa Children’s Act, 2003; Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989 are some of the major State legislations.
From time-to-time, India has enacted various legislations to handle the rising rates of human trafficking and also to obligate with the international instruments. But are these laws enough? Yes, these laws are sufficient from the perspective of working independently. Then, why these laws are not capable of tackling the rising number of human trafficking in India? If we talk about the figures, then, according to National Crime Records Bureau, 8132 human trafficking cases were reported in India in 2016 under the Indian Penal Code, 1860. In the same year, 23117 trafficking victims were rescued. Of these, the highest number of persons were trafficked for forced labour (45.5%), followed by prostitution (21.5%). Thus, there is a need to have a comprehensive legislation that can constitute all forms of human trafficking. Consequently, after identifying gaps in the existing legislations, the Anti-Trafficking Bill was introduced in Lok Sabha by the Minister of Women and Child Development, Ms. Maneka Gandhi in July, 2018. Currently, the Bill is in the Parliamentary Standing Committee for revision. Let us take a look at the critical analysis of the bill.
THE ANTI-TRAFFICKING BILL: A CRITICAL APPRAISAL
The Anti-Trafficking Bill, 2018 or Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 is a well-organized bill which provides for the investigation of trafficking cases, and prevention, rescue and rehabilitation of trafficked victims.
Key highlights of the Anti-Trafficking Bill
The Bill clearly sets out the definition of “trafficking in persons” and specifies all the offences as “cognizable and non-bailable.” Also, the Bill states that its provisions must be read in consonance with other laws and its provisions will only apply in the case of any inconsistency. The main highlights of the Bill are as follows:
The Bill includes trafficking for various purposes – sexual exploitation, slavery, forced removal of organs. In addition, the Bill considers trafficking for certain purposes such as begging, inducing early sexual maturity, forced labour, bearing children as an “aggravated” form of trafficking, which attracts a higher punishment.
In order to punish the traffickers, the Bill provides for the establishment of “investigation authorities or Anti-Trafficking Units and rehabilitation authorities” at “district, state and national levels.” Further, may be, “protection homes and rehabilitation homes” establishes for the long-term care and rehabilitation to the victims of trafficking.
The Bill provides for the “preventive measures” to be taken by “district and state anti-trafficking committees” to protect and prevent vulnerable persons from being trafficked. These measures include – facilitating implementation of livelihood and educational programmes for vulnerable communities, various government programmes and schemes, and developing law and order framework to ensure prevention of trafficking.
The Bill also provides for the setting up “designated courts” in each district for the complete trial of trafficking cases within a year.
While the victims of the offence are provided with “immunity” this immunity extends to only those crimes that are punishable with imprisonment of 10 years or more and not for lesser offences.
The Bill “penalizes an owner or lessor of a premise” as if he is presumed to have knowledge about the trafficking carried out on the premise, along with the traffickers.
The Bill also “punishes a person who distribute or publish material” which may be used for the purpose of trafficking.
The Bill sets out the “higher penalties” for the various offences related to trafficking as compared to the punishments given in the prevailing laws.
Besides all these provisions, the Bill is not perfect and still having certain lacunae which needs to be fulfilled. Let us have a glance at the criticisms of the Bill to understand it more effectively.
Criticisms of the Anti-Trafficking Bill
The Anti-Trafficking Bill, 2018 is a good initiative by the government to condemn the offence of human trafficking. But like every other law, it is also having some gaps. These gaps must be removed to bring this Bill effectively into existence. The criticisms of the Bill are as follows:
Firstly, the Bill gives “no clarity” as to what will happen to the existing laws. This Bill states that it is not a replacement to the existing laws but it adds to the wide range of existing legal framework which deals with various aspects of trafficking in their own way. This will lead to the overlapping in the laws regarding their enforcement and rehabilitation procedures.
Secondly, the “assumption” that owner must be having the prior knowledge regarding the use of his/her premise for illicit purposes is a departure from the standard principle in criminal law where the guilt of the accused has to be proved and not presumed.
Thirdly, the Bill does not specify the criteria of differentiation between “aggravated and non-aggravated” forms of trafficking. It does not tell why other forms of trafficking will not fall in the aggravated category.
Fourthly, what about the “transgender” being vulnerable community. The preamble of the Bill recognizes women and children as vulnerable but it does not even talk about transgender. It is a great lacuna.
Fifthly, the Bill does not mention the word “sex-buyers.” Why the Bill does not set the liability for the sex-buyers? Everyone in the chain of trafficking must be liable.
Sixthly, the “budgets” are not earmarked for the purposes of establishing rehabilitation centers and shelter homes.
Seventhly, the process of “rehabilitation” is very limited. No heed is paid to the fact that there should be individualized exit strategies for the victims to recover from the trauma of trafficking.
Lastly, the “victim immunity and witness protection schemes” are absent. No assurance is given to the victims and witnesses that no actions will be taken against them if they will speak up. Further, the immunity will be given only to those persons who will be trafficked for serious crimes. But the trafficked victims who commit petty offences under coercion will not be able to claim immunity.
These are some of the major lacunae which must be taken into consideration by the law enforcing agencies before the Bill comes into effect.
LANDMARK CASES AND JUDGMENTS
The Supreme Court and various other High Courts stepped in and taking up the cases for proper functioning and monitoring of the institutional machinery, statutory agencies and victims rehabilitation schemes. The Court while exercising its jurisdiction for enforcement of fundamental rights has given various landmark judgments for the strengthening government response in combating trafficking. Some of the various proactive landmark judgments are as follows:
Vishal Jeet v. Union of India
FACTS – A writ petition under Article 32 of the Indian Constitution was filed by way of Public Interest Litigation before the Supreme Court. It seeks issuance of certain directions – (i) to look into issues of Red Light areas and forced prostitution from a law enforcement perspective; (ii) to rescue victims of commercial sexual exploitation and provide them with proper rehabilitation facilities so as to enable them to choose a more dignified way of life; (iii) to look into issues pertaining to dedication of young girls as Devadasi and Jogin.
JUDGMENT – The Supreme Court held that this matter is of great importance and stated that this malady is not only social but also a socio-economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive. Considering all aspects of matter before it, the SC issued the following directions to Central and State Governments – (i) direct concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution; (ii) take steps in providing adequate and rehabilitative homes; (iii) set up Advisory Committee consisting of relevant government officials and voluntary organizations to make suggestions for eradicating child prostitution and the Devadasi and Jogin tradition and measures for rehabilitation of victims.
Gaurav Jain v. Union of India
FACTS – The petitioner filed writ petition under Article 32 of Indian Constitution by way of Public Interest Litigation before the Supreme Court of India, based on an article “A Red Light Trap: Society gives no chance to prostitutes’ offspring” published in the magazine ‘India Today’. In the petition, the petitioner has asked for the establishment of separate educational institutions for the children of prostitutes and, seeking a declaration that prostitutes in India have – (i) the right to be free citizens, (ii) the right not to be trapped again, (iii) the right of readjustment by economic empowerment, social justice, self-sustenance, equality of status, dignity of person in truth and reality and social integration.
JUDGMENT – Considering all the facts regarding the matter, the Supreme Court did not accept the plea for separate educational institutions for children of prostitutes as it would not be in the interest of the children and society at large. Further, the Supreme Court quoted the Fundamental Rights of Women and Children from the Constitution of India (namely, Articles 14, 15, 16, 21, 23, 24, 38, 39, 45, and 46) and relevant International Instruments. Also, the SC constituted a Committee directing it to frame a National Plan of Action and to implement it in mission mode. This is to be noted that SC in its whole judgment used the term fallen women for prostitutes.
In Kamaljit v. State of NCT of Delhi 2006, the court in its order stated that sexual exploitation of women and children had not delivered the desired results and more stringent measures were the crying need of the day. Thus, the court emphasized on the point that trafficking is an organized crime and more serious measures are required to condemn it.
The Bombay High Court, in its recent judgment, held that there is no provision under the law which makes prostitution per se a criminal offence. It orders the release of three women sex workers detained at a State corrective institution in Mumbai. It observes that an adult woman had the right to choose her vocation. However, seducing any person for the purpose of prostitution or running a brothel is illegal.
These are only some of the landmark Indian cases which prepared a roadmap for the development of laws regarding human trafficking. There are a plethora of landmark cases relating to human trafficking. The Supreme Court and various other High Courts of India have time-to-time decided many cases and are still trying to develop some rigid measures to stop this brutal practice.
Let us also quote one recent judgment relating to human trafficking by the UK Supreme Court.
MS (Pakistan) v. Secretary of State for the Home Department
FACTS – The Appellant, MS, is a Pakistani national who entered the UK in 2011 at the age of 16 years on a visitor’s visa. During the four preceding years, while still in Pakistan, he had been subjected to forced labour and physical abuse by relatives. One of them, his step-grandmother, brought him to the UK by deceiving him into thinking this was for the purpose of his education. On arrival, he was forced to work for no pay, as arranged by his step-grandmother for her own financial gain. He then moved from job to job for the next 15 months, under the control and compulsion of adults, as both the First-tier Tribunal (FTT) and the Upper Tribunal (UT) later found.
In September 2012, the Appellant came to the attention of the police, who referred him to a local authority Social Services Department. They, in turn, referred him to the National Referral Mechanism (NRM), due to concerns as to his vulnerability and the possibility that he had been trafficked. However, in February 2013, the NRM decided that there was no reason to believe that he was a victim of trafficking. The Appellant sought judicial review of this decision in April 2013.
In September 2012, the Appellant had also claimed asylum, but that application was rejected in August 2013. The Secretary of State, therefore, decided to remove the Appellant from the UK. The Appellant appealed this decision on asylum and human rights grounds to the FTT who dismissed his appeal. The UT granted permission to appeal and re-made the decision in view of errors of law by the FTT, finding in favour of the Appellant. In addressing NRM’s decision, the UT observed it to be contrary to the Article 4 of European Convention on Human Rights.
The Respondent appealed to the Court of Appeal, which allowed the appeal for the AS (Afghanistan) v. Secretary of State for the Home Department, the UT could only go behind the NRM’s decision and re-determine the factual issues as to trafficking if the decision was perverse or irrational or one which was not open to the NRM.
The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had now been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission (EHRC), which had applied to intervene in the proceedings, could take over the appeal.
JUDGMENT – The Supreme Court on unanimously allows the appeal. Lady Hale gives the only judgment, with which Lord Kerr, Lady Black, Lord Lloyd-Jones and Lord Briggs agree. The Supreme Court held that the immigration tribunals can make their own findings of facts and they are not bound by the Home Office. Therefore, the appeal is allowed and the UT’s decision is restored.
This was the instance of the UK Supreme Court in the judgment dated March 18, 2020 regarding human trafficking.
WHAT IS THE WAY FORWARD?
For tackling this major problem, we have to contribute at individual, societal, national and international level to make a great change. Therefore, few suggestions and recommendations to prevent and protect the vulnerable groups and to improve the conditions of trafficked victims are as follows:
First things first, the “implementation of laws” must be strictly done. The enforcement agencies and personnel should be trained to deal with the issue of human trafficking.
The “individualized rehabilitation strategies” for the victims of trafficking must properly planned. The government must ensure a good and healthy environment for the victims in the rehab centers and shelter homes, so that, victims can cope up with the situation and can start their life from a new perspective.
The “awareness campaigns” regarding human trafficking must be initiated at a massive level. The people must be made aware to protect themselves from being trapped in the circles of trafficking.
The people must be provided with “job opportunities” to reduce the trafficking of migrant workers. If they will be given better economic opportunities in their areas, then the chances are high that we can combat trafficking of migrant persons.
“Good governance and transparency” must be a prior commitment to prevent human trafficking.
Apart from these suggestions, the major requirement is to cut down the source or the roots of human trafficking at the ground level, i.e., rural areas. The people must be given reasonable social, economic and educational opportunities to prevent themselves from the clutches of traffickers. The government should take immediate and strict actions regarding this huge problem. This should be the need of the hour.
After having a very lengthy discussion on the issue that should be the priority to be tackled, we have come to an end of the same. As we have seen what human trafficking is and who are the vulnerable groups that are most likely to fall prey to the traffickers, it varies from country to country. People in precarious situations are looking out for their needs and in the desperation of the same; they end up falling in the hands of traffickers. We see this exploitation happening in various different forms – forced labour, slavery, servitude, prostitution, engaging children in wars, and many more. This leads to the severe physical, mental and emotional health conditions of the victims of human trafficking. It is evident from the discussion that we have a robust legal framework both at national and international levels. But, because of negligent, corruptive and non-serious nature of our law enforcement agencies, human trafficking has become a hidden crime. Due to the lack of victim-centric justice and witness incentivizing schemes, the victims are afraid of coming out. The safety of the public and victims is a paramount need. Not only the government and law implementing bodies, but also the society at large must have to take drastic steps to condemn this global issue. Despite of the fact that “Right to Life and Personal Liberty” are fundamental human rights, the status of “human” has fallen no more to that of a “commodity.” These human rights are inalienable and natural rights that call for a duty to be preserved and not infringed.
STOLEN PEOPLE, STOLEN DREAMS! END THE MISERY, STOP TRAFFICKING!
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Pakistan: Failing economy, polarised politics
Friendly relations with India and Afghanistan, abandoning the policy of exporting terrorism are only recipes available for Pakistan to realise its economic potential.
At the Heart of Asia Conference at Amritsar in December 2016, Pakistan’s Advisor on Foreign Affairs Sartaj Aziz had to eat crow after he offered a $500 million grant to Afghanistan. The conference had taken place just a month after Prime Minister Modi decided to boycott the 19th SAARC summit which was scheduled in Islamabad. Amid cheers, Afghanistan President Ashraf Gani told Aziz to keep the 500 million dollars and use it to contain extremism in their own country. I don’t know what happened to this grant thereafter. But the economic potential of all South Asian nation has indeed taken a break, due to the obstinacy of Pakistan supporting terrorism and violence in its neighbouring countries. It has also harmed the country domestically.
Recently Pakistan government presented the country’s deficit budget of Rs. 8,400 billion in the National Assembly. This is the third budget presented by Prime Minister Imran Khan government, since he assumed office in August 2018.
According to the Economic Survey, the performance of the agricultural sector this year was 2.7 per cent as against 3.3% last year. The decline in the agricultural sector has led to a record decline in cotton production, the country’s main crop, which will fall by 22% to 7 million bales in the current fiscal year. Its production in the last financial year was more than 9 million bales. Cotton is the country’s main textile export major raw material. According to the Economic Survey, the area under cotton cultivation has also declined in the financial year under review.
The foreign investment in Pakistan has also declined due to global conditions caused by the coronavirus. Most of the foreign investment came from China which was for CPEC projects in Pakistan which is about 47% of the total investment. The volume of investment in Pakistan from other parts of the World has been very low this year.
The survey, which provides foreign trade data for the first ten months of this financial year, shows that the country’s trade deficit has increased by more than 21% in those ten months. During the period under review, the country’s exports increased by 6.5 per cent, but the sharp rise in imports wiped out the benefits of the increase in exports. It may be recalled that Pakistan had set a total import target of 42 billion this year, but in ten months, the country’s imports exceeded this target, leading to a widening trade deficit.
According to Uzair Younus a senior fellow at The Atlantic Council, Pakistan’s economy used to be in good shape at the turn of the century, when compared with India, Bangladesh, and Vietnam. Twenty years later, it is at the bottom of the group. Political upheaval, supporting terrorism in Afghanistan and India, and the inability of successive governments to carry out reforms are to blame for this decline. The polarized political environment and elite intrigue among civilian, judicial, and military institutions have made sustainable economic growth and reforms that much more unlikely.
IMRAN KHAN REVERSING HIS EARLIER STAND
When Pakistani Prime Minister Imran Khan entered office in August 2018, Pakistan’s economy was facing twin deficits—the country’s foreign exchange reserve was running low and its fiscal deficit had reached the breaking point. A return to the International Monetary Fund (IMF), along with bilateral support from countries like China and Saudi Arabia, was necessary to stabilize the economy.
Within a few months of coming to power, Khan, a charismatic populist who had derided Pakistan’s addiction to debt, famously saying that he would rather commit suicide than beg for money, had to reverse course and seek international help.
The economic upheaval in those early months of Khan’s government led to declining economic growth, devaluation of the currency, double-digit inflation, and sky-high interest rates. The government’s initial attempts to fend off an IMF bailout did not help. Asad Umar resigned from the job of finance minister in April 2019 after losing Khan’s trust. His replacement, the technocrat Abdul Hafeez Sheikh, who also served as finance minister in the Pakistan People’s Party (PPP)-led government from 2010 to 2013, was brought in to negotiate and execute the IMF bailout.
Less than a year later, the COVID-19 pandemic dealt a body blow to Pakistan’s economy. Lockdowns in response to the health crisis turned economic growth negative, a first in decades. The Khan government sought debt relief and secured an additional $1.3 billion from the IMF. The government rolled out an Rs. 1.2 trillion stimulus package. Cash transfer programs were expanded to protect the most vulnerable segments of society. While a significant portion of the total stimulus included already-budgeted spending and more than Rs. 500 billion remained unutilized, the government’s prompt response eased the pain, particularly for the most vulnerable. Additionally, the State Bank of Pakistan sharply cut interest rates and provided monetary stimulus to businesses.
Inflation is still the biggest issue facing the government today. Headline inflation climbed to 9 per cent in September 2020 and double-digit food inflation continues to erode citizens’ purchasing power. This has worsened the situation for millions of households who have seen a decline in their purchasing power since 2016, according to data from the Pakistan Bureau of Statistics. In its most recent monetary policy statement, the State Bank of Pakistan raised its concerns as well, warning that while “core inflation has been relatively stable,” food inflation remains a risk, “especially in the wake of recent flood-related damages and potential locust attacks.” With households spending a larger share of their incomes on food—an emerging wheat crisis is compounding problems—consumption spending on other items will remain subdued, leading to a lack of economic growth in a country where consumer spending drives more than 80 per cent of the economy.
NO STRANGER TO THE BALANCE OF PAYMENT CRISES
While external sector stability is critical for a country like Pakistan, which is no stranger to balance of payments crises, the fact remains that sustainable growth requires more than a stable current account balance. The State Bank of Pakistan is also warning that “the economic recovery remains uneven” and that “growth will recover to slightly over 2 per cent” in the current fiscal year. For a country that needs to generate more than 1.3 million jobs a year, an economy that grows at 2 per cent a year is no cause for celebration.
Another major issue that continues to plague Pakistan is its yawning fiscal deficit. Despite an uptick in economic activity, tax collection in the first two months of this fiscal year has shown a meagre growth of 1.8 per cent.
Due to increasing polarization, Pakistan’s economy has remained hamstrung by the same issues that led to the crisis Khan inherited in 2018. There is broad consensus among economic experts that these reforms need to be pushed through with urgency. However, both civilian and military rulers have failed to usher them in. Successive governments in Pakistan have spent the majority of their term trying to consolidate power, which means that they do not have the will to shake things up. Leaders fear that if they try to change the status quo, then the beneficiaries of the existing rent-seeking economy, both within and outside the government, will weaken their hold on power.
As Mosharraf Zaidi argued in a recent article, political leaders in Pakistan “do not have the will or capability to change even the little things to solve the little problems.”
In 2017, China poured billions of dollars into energy and infrastructure investments into Pakistan and the World Bank praised Islamabad for accelerating gross domestic product growth, which exceeded 5 per cent that fiscal year — the highest in nearly a decade. But after the country’s top court sacked the business-savvy Prime Minister Nawaz Sharif in July of that same year, Pakistan’s military publicly criticized his administration, led by his Pakistan Muslim League Nawaz (PML-N) party, for its handling of the economy.
Government and international statistics show poverty among Pakistan’s rapidly expanding estimated 220 million population is on the rise. International lenders expect poverty to rise to more than 40 per cent from 24 per cent in 2015, and the country could be home to as many as 80 million poor compared to some 55 million in 2015. Ali Malik, a financial adviser and writer in the eastern city of Lahore, says that while the current government’s initial indecision contributed to “stagflation” marked by no growth and rising inflation, his country’s economic troubles are much deeper and need to be analyzed without partisan bias.
Pakistan’s high defence spending, which goes well over the global average of 2 per cent of GDP, comprises some 20 per cent of overall government expenditure and constantly overshadows the economy. Despite the onset of the COVID pandemic last year, Islamabad increased its defence budget 11 per cent to $7.85 billion compared to a paltry $151 million for health care.
LIMITED SPACE FOR GOVERNMENT
This leaves limited space for the government to use fiscal resources on the development. In March, Bangladesh celebrated 50 years of independence from Pakistan. Dhaka was once Islamabad’s impoverished eastern half. But today it is well ahead of Pakistan in key economic indicators. Its $1,855 GDP per capita in 2019 was a third more than Pakistan’s $1,284 as the two countries follow vastly different trajectories of growth and human development.
Pakistani leaders need to take some time out to think about how even Bangladesh and Sri Lanka have stolen a march and performed on the economic front, while their country has gone into the abyss. Friendly relation with India and Afghanistan, abandoning the policy of exporting terrorism are perfect recipes to make Pakistan once again an economic hub in the region, keeping in view its connectivity and potential.
Inflation is still the biggest issue facing the government today. Headline inflation climbed to 9 per cent in September 2020 and double-digit food inflation continues to erode citizens’ purchasing power. This has worsened the situation for millions of households who have seen a decline in their purchasing power since 2016, according to data from the Pakistan Bureau of Statistics. In its most recent monetary policy statement, the State Bank of Pakistan raised its concerns as well, warning that while “core inflation has been relatively stable,” food inflation remains a risk,
MAKING IT HAPPEN: RESTORATION OF WASTELAND
Aishwarya Raj joined the Indian Forest Service in 2017, and Parvati Division was his second posting after Kullu in the state of Himachal Pradesh. Having taken charge in January, 2021, the first task was to assess the ground situation in different areas of his jurisdiction. On one such field visit close to the confluence of the mighty Beas and Parvati rivers, he came across a tract of forest land dumped with garbage and infested with heavy weed overgrowth. This was also a cause of riverside pollution. His staff informed him that the space was being misused by anti-social elements both during day and night to bide their time. These elements were involved in substance abuse as well. There was a threat of encroachment in the near future. Wanting to do something about these challenges, Aishwarya wondered how the forest land could be reclaimed into something safe and how some funds could be sourced to carry out the execution of a plan that he had on his mind. In his previous posting too, he had worked on a 15 hectare wasteland project in Manali that was being developed into an ecotourism project which gave him the confidence to think in terms of a possible revamp here as well.
Interestingly, the Government of Himachal Pradesh, around the same time, declared its intention to set up ‘Swarnim Vatikas’ across the state as part of Himachal’s 50 years statehood celebration. Using this as an opportunity, it was decided to transform this 1 hectare of wasteland into an eco-friendly sprawling, green urban space for town dwellers and nature seekers alike. The green zone was christened as ‘Sangam Swarnim Vatika’ for it stood at the confluence of two mighty rivers. If someone visits the place today, the view is serene, with no evidence of a shabby dump yard that once held ground here. Instead, it has been replaced with a beautifully landscaped garden, with a variety of tree species, creepers, shrubs, herbs along the area, frequented by a variety of beautiful birds.
The first step was to clear the area of its waste pile, cactus and weeds. The enthusiastic forest guards organized the clean-up quite efficiently. The garbage of around 25 tippers was collected and disposed. The organic waste was turned into processing vermicompost in nearby nurseries. The quality of soil was checked by deep digging and it was found to be in fairly good condition for plant growth. After mixing with some fertile mountain soil and humus, the soil was readied.
Before planting, the second step was to ensure the protection of the 2.5 acre area from both grazing/biotic pressures and movement of anti-social elements. In part RCC fencing and inter-link chain fencing was carried out for the entire space. Additionally, CCTV cameras were also installed nearby for monitoring purpose.
Technology cam handy. Aishwarya’s I-pad (which he deployed at workplace to minimize paper use) was a huge help in designing the entire lay-out of the Swarnim Vatika. After spending sometime exploring and reading on the local ecology and plant suitability of the ecotone area (Riverine), species of trees, shrubs and ornamental ones were identified. These could be considered for plantation in the park.
In phase I, over 400 species of native varieties such as deodar, silver oak, horse-chestnut, jacaranda, golden shower, bougainvillea, rose, thuja, cycas, ribbon plant, gladiola, peach, apricot, plum and pomegranate, among others have been planted. More than 200 additional species will be planted by the coming monsoon season. Groves of some of these species have been created so that can be enjoyed by visitors in future.
For landscaping, it was decided to go the up-cycling way in three aspects. One, the discarded or used slates, a stone with which houses are made in the hills, from the neighboring settlement were up-cycled to create the walking trails. The local ‘Dhrub’ grass sprouting in between those slates within 2 months is a sight to behold. Two, only riverside stones were used to landscape and beautify the Vatika. In addition to being eco-friendly, they enhanced the natural riverside view. Three, signages regarding nature awareness and seating are being installed. For this purpose, driftwood, obtained during last monsoon, are being put to use.
Parvati Valley is a hugely popular tourist hotspot with a number of breathtaking destinations. The Vatika, however, was primarily created for the local people who actually didn’t have enough urban walking or recreational avenues. Interestingly, there have been a number of avian visitors at the park – including yellow-billed blue magpie, parakeets, Eurasian hoopoe, barn swallow and doves. There is a likelihood of further increase in the number of such visitors.
The local panchayats, Mahila Mandals as well as youth groups have been engaged in this effort to instill a sense of ownership amongst them. This will help sustain the effort of keeping this area clean and green.
Next up, an attempt is being made to identify more such degraded areas in Parvati jurisdiction that can be converted into green zones. With funds and local support in place, this initiative will help revamp such areas and enrich the environment. The Vatika is an example where the Forest Department under the visionary leadership of a young forest officer, Aishwarya Raj and his committed team demonstrated a win-win scenario of nature conservation and development. Such initiatives, though small and in remote locations, can inspire others to do the same as they attempt to restore the beauty of Mother Earth. It is also an effort to demonstrate that a combination of concern for nature and capability to take the stake holders along can help transform the landscape in many regions. There are indeed many parts of the country that require such interventions
WHEN WILL YOU CHANGE, WHEN WILL THE COUNTRY TRANSFORM?
Milkha Singh wished to see an Indian win Olympic gold medal in athletics.
I salute and bow down to the legendary sprinter Milkha Singh who got the sobriquet of Flying Sikh. On his departure, two thoughts come to my mind. First, will we ever see a runner like him again? And the second, when will Milkha Singh’s unfulfilled dream be fulfilled? He had a dream, that one day an Indian will win an Olympic gold medal! I wonder whether true tribute can be paid with an unfulfilled dream!0
When Milkha Singh ran in the Commonwealth Games and set a record that remained unbroken for 40 years, he did not have the resources. He faced immense hardship. He didn’t have a good pair of shoes. The concept of nutritious food was totally unfamiliar then. He used to run barefoot during practice. Yet he excelled, all these difficulties notwithstanding. His wife Nirmal Kaur was the captain of the national volleyball team and son Jeev Milkha Singh is a professional golfer. Milkha Singh always regretted why no Indian could win a gold medal in the athletics section in the Olympics. This regret became his dream. He would always express it. Unfortunately, this dream could not be fulfilled during his lifetime. After his death, the country is invariably remembering his dream and his contribution to sports. The entire country including the President, Vice President and Prime Minister has paid tribute to him. I think the real way of paying tribute to him will be to fulfil the dream he saw all his life. The nation should remember the blisters on his feet when he ran barefoot so as to groom an entire generation of sportsmen. Like Milkha Singh, it was Dhyanchand’s dream too that India should become the world champion in hockey again.
Actually, to fulfil the dreams of Milkha Singh and Dhyanchand, we have to work together on many fronts. First of all, we have to understand that sports is not just a means of enhancing physical ability. Sports are directly related to our patriotism, our self-respect, our progress and our nation’s pride. Remember that when the tricolour flies high in the celebration of victory and when the tune of Jana Gana Mana is played, we are thrilled to the bone. Tears of joy flow from the eyes of the winner. It was the dream of Milkha Singh to celebrate victory in the Olympic arena and hold the tricolour high to the tune of Jana Gana Mana.
Of course, the atmosphere is changing now. Kiren Rijiju is a very competent minister. He wants that an environment of sports should be created in the country. Children who have abilities should get opportunities. It can be said that the government seems to be becoming conscious about sports; the government has started to think that it should spend on sports, but the atmosphere is still not so positive that we can produce another Milkha Singh again. If we really want to create and train a generation of players, we have to learn how children are spotted and groomed by China, Russia or Croatia. Today the players of these countries dominate the playground, and the commitment of the government there is the biggest reason. I remember, I was watching a World Cup match. When the Croatian football team won, their President Colinda Graber walked into the dressing room and hugged the sweaty players and kissed them. When will our players experience such a moment?
We are all witness to the state of affairs about sports in our country. From the schooldays itself, we should keep in mind and identify which child has the potential for which sport. They should be selected there and their training should start. But today, our children are away from the playgrounds and remain obsessed with mobile phones. Neither the parents care much nor our government. Children’s playgrounds are also shrinking. Concrete jungles are encroaching upon them. If Saina Nehwal has risen from amidst us and made a name for herself today, the government has no contribution in it. This is the result of the determination of a mother who trained Saina from the age of five with a pledge to make her a world champion.
Saina Nehwal’s mother Usha Rani Nehwal was seven months pregnant and still played a local match. This shows her passion. Be it Saina Nehwal, Sania Mirza or Mary Kom or other players like them, all of them have been able to excel on their own strength and determination. Many people have potential but they do not get opportunities due to various reasons. Politics has to be kept away from sports, only then will success be achieved. Sometime back, I had heard that Maharashtra’s shooter Anjali Bhagwat, who earned a name in the world, faced a lot of harassment. Many such incidents keep coming to light. If incidents like these happen, why would anyone make sports his or her career?
Spotting and grooming children with potential is not an impossible task. It just needs perspective. You spot the children and give the responsibility to the industrial houses to mould them. Yes, it will be very important to keep in mind that the government does not interfere and the industrial houses should get full freedom for this purpose. And of course, also ensure that the craze for cricket should not destroy other games. We have to understand that cricket is not a national or international game. It’s neither in the Olympics nor in the Commonwealth Games. This is a club game. But cricket has become a religion in India. Given the amount of money cricket has, it has its share of controversies and scandals too. I would not like to discuss any of them. All I have to say is that to fulfil the dream of Milkha Singh and hold the tricolour aloft in the world of sports, we need to create enthusiasm, passion and love for sports among the children.
And finally, the only question to the system is when will you change, when will the country change, and when will this dream come true?
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
Though Milkha Singh is no longer among us. He has left a dream for all of us to fulfil, that some Indian athlete should win a gold medal in the Olympics. We will pay him a true tribute only when we are able to mould our youngsters into sporting stalwarts who will be able to win gold medals and make us all feel the thrill of the tricolour held high to the tune of ‘Jana Gana Mana…’ in the Olympics.
Significance of attaining the age of majority: Decoding the landmark judgements in the light of Article 21
The 242nd Law Commission Report titled ‘Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework’ demonstrates how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights, “As far as India is concerned, ‘honour killings’ are mostly reported from the states of Haryana, Punjab, Rajasthan and UP. Bhagalpur in Bihar is also one of the known places for ‘honour killings’.”
If you are a major, you can even solemnize marriage with a criminal and no fetters can be placed on your choice; indeed, it may appear somewhat paradoxical to the ordinary mind but not to a legal mind. I am not pronouncing this verdict on unqualified grounds rather this phenomenon of the right to make a choice is the result of the peculiar stupendous judicial pronouncements. Recently, the right to choose a partner of one choice, the right to renounce one religion and accept another religion are such constructive, progressive, and liberal concepts that have garnered the substantive attention of large public discourse. But with the attention on the topic of choice of partner and religion, few people have paid attention to the subject matter of “Age of the Majority”.
According to Sec 3(1) of the Indian Majority Act 1875, an individual is said to attain the age of majority when he/she completes his/her 18 years. Article 21, does mandate that no person shall be deprived of his/her liberty but there is no such expression, expressly enumerated under this Article that we are having the liberty to marry a person, involved in criminal activities. Interestingly, it is worth mentioning that there are many rights guaranteed implicitly under Article 21 of the Indian Constitution as it is the mother in recognizing the “Unrecognised liberties”. It is desirable to note that one of such recognitions, was recognizing the significance of an individual who attains the age of majority.
The Hon’ble Supreme Court, while recently hearing the contention advanced by the petitioner in the case of Soni Gerry v. Gerry Douglas (2018) 2 SCC 197 that the daughter is under illegal custody/detention and the Court must free her from illegal restraint. The Hon’ble Court considered this particular fact that the daughter had completed 18 years of age on 19.9.2016, thus she had attained the age of majority. In this regard, the landmark observation that was made by the Court that – ‘when an individual attains the age of majority, it has its own significance. It was also observed that he/she is entitled to make his/her choice. The Hon’ble Supreme Court rejected the contention to pass the writ of habeas corpus and held that she was not under illegal detention.
AGE OF MAJORITY: A DETERMINATE FACTOR IN UPHOLDING THE TWO MAJOR RIGHTS
Recognising the two major rights- the right to marry a person of one’s choice and the right to renounce one religion and accept another religion are appositely valued and also its esteemed status is conferred under Article 21 of the Constitution of India.
Article 16 of the Universal Declaration of Human Rights also lays down the importance of age of majority that – “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
“India is a free and democratic country and once a person becomes a major he/she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relation with son or daughter,….”- This was the erudite observation made in the much-celebrated case of Lata Singh v. State of U.P and Another, (2006) 5 SCC 475 that reverberates in the Constitutional guarantee of freedom from the patriarchal tyranny and autocracy.
The notion of liberty was also examined and evaluated in the case of Gian Devi v. Superintendent, Nari Niketan, Delhi (1976) 3 SCC 234, that the girl has attained the age of majority and no restraints can be placed on her choices of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she could stay. Even the Court does not possess the right to determine.
The landmark case of Shafin Jahan v. K.M Ashokan & Ors. AIR 2018 SC 357 cannot be ignored as the same is an important development for the right to choose a partner of one’s choice. It is worth stepping into the facts of the case where a girl namely Hadiya aged 26 years converted herself to Islam and married a Muslim boy namely Shafin Jahan. In this case, the father Ashokan moved a habeas corpus petition before the Hon’ble Kerala High Court alleged that her girl Hadiya was the victim of systematic psychological manipulation and forcefully converted to Islam and in the furtherance of same, her daughter was likely to transport out of the country. The High Court accepted the contentions and allowed him to sustain the writ petition of habeas corpus and annulled the marriage of her with Shafin Jahan. The High Court of Kerala was in the view that even though she has attained the age of majority, she is weak and vulnerable and capable of being exploited in many ways in the circumstances noticed in this instant case. An investigation was also ordered to National Investigation Agency to investigate the ‘education, family background, antecedents and other relevant details of Shafin Jahan and it is fascinating to note that the principal finding of the report was that Shafin Jahan is accused in a criminal case and his Facebook posts show a radical inclination.
When this matter came before the Hon’ble Supreme Court, it was observed that Kerala High Court has failed to recognize the undisputed fact that the girl Hadiya is major, and when an individual attains the age of majority, he/she becomes capable to take her own decision. It was also observed that the annulment order passed by the Kerala High Court is the non-acceptance of her choice that simply transgresses her fundamental rights guaranteed under our Constitution. The Kerala High Court, being a Constitutional Court was not supposed to interfere in this matter as the very interference amounts to a miscarriage of justice and the liberty and dignity of two consenting adults who have been subjected to judicial affront. The Hon’ble Supreme Court also clarified that if there is any criminality in any sphere then NIA may continue its investigation however the validity shall not form the subject matter of the investigation and NIA cannot interfere with the marital status of the two major couples. The appeal was allowed and judgment of the High Court was set aside.
There are other landmark judgments as well but in this overall context, the importance of emphasizing the concept of age of majority and right to make a free choice that the basic elements of a dignified life are also the realization of the significance of the right to choose within the legitimate parameters of the law. The individual’s authority is supreme and no one possesses the right to dictate or limit a person’s choice. Our choices are cherished because they are ours. Indeed, it is not a privilege rather a right of a major and more importantly it is further protected by the Constitution of India which ensures that every person can make the determinations on the matters which is central to the pursuit of happiness and is the intrinsic part of liberty and dignity guaranteed by the Indian Constitution.
Grave Social Symptoms: The Unwarranted Interference and Distressful Silence
It is disheartening to see all the survey carried or report submitted have become veritable documents of the fact that consent of family or the society or the clan is still required to enter into a wedlock. Despite of the fact, no shackles can be placed on the choice of a major, still there is an unwarranted interference of the family or the society or the clan that guillotines the freedom and liberty guaranteed under the Constitution of India and the distressful silence of the protectors of this right succumbs the objective of our Constitutional guarantee of freedom of choice which is the quintessence of the 21st Century.
The 242nd Law Commission Report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” demonstrates that how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights that- “As far as India is concerned, “honour killings” are mostly reported from the States of Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is also one of the known places for ‘honour killings”. Even some incidents are reported from Delhi and Tamil Nadu. Marriages with members of other castes or the couple leaving the parental home to live together and marry provoke the harmful acts against the couple and immediate family members.”
The Report also underlines the pernicious interference of caste/community assemblies in the guise of ‘Khap Panchayats’ that underscores the liberty and instil the terror by inhuman treatment and inflicting the excessively harsh punishments on those individuals who tried to do exogamous marriage. Unfortunately, these merciless hands haunt the dignity of the individuals in the name of ‘moral vigilantism’ and distressful silence of the society waters them to continue this evil practise.
In 2018, Lok Foundation-Oxford University Survey run by the Centre for Monitoring India Economy (CMIE) reported that just 3 percent of marriages are love marriages. According to the 2011-12 India Human Development Survey, only 13 percent of married women in metro cities knew their husbands prior to marriage. Arranged marriages do not imply forced marriages necessarily however, this fact cannot be ignored that most of the Indian families and communities try to maintain endogamous marriage.
REASON BEHIND SUCH GRAVE SOCIAL SYMPTOMS
It is apt to refer to the case of Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396 where the Hon’ble Supreme Court stated that many people feel that they are disgraced or dishonoured by the conduct of the young individuals who is related to them or belongs to their caste simply because they marry against their will or wishes or having an affair with someone, and as a result, they take the law into their hands and mentally, physically assault them and inflict the other atrocities which is not lawful in the eyes of law. The 242nd Law Commission Report mentions that the crimes against the young individuals take place as the result of doing exogamous marriage without receiving the family consent. Even the marriages between the young couples outside the gotra often called the violent reaction from the family or clan or society.
Ostensibly, it is clear that that the couples must be freed from the unlawful fetters or hindrances placed by the so-called social guardians who are doing nothing for the benefit for the society rather killing the soul of our Constitution. Hence, it is important to break down the same.
Undoubtedly, the Courts are playing the active and important role in asserting the choices of majors. For this reason, this particular subject matter becomes of utmost importance. The case of Sakti Vahini v. Union of India (2018) 7 SCC 192 is the evident and glaring example where the Hon’ble Supreme Court directed the police departments and State governments to adopt a robust mechanism to eradicate the crime of ‘Honour Killing’. The Hon’ble Court laid down certain guidelines which was preventive and punitive in nature. Also, the remedial measures were issued. However, if the governments and administrations at the different tiers will not work properly and become silent spectator then the importance of same will languish which is fortunately not in our case.
In order to boost and encourage the inter-caste marriages, the NDA government is providing Rs. 2.5 lakh for every inter-caste marriage with Dalit under the ‘Dr. Ambedkar scheme for social integration through inter-caste marriage’. This financial motivation was started in 2013 but there was a bar that total income must be less than Rs. 5 lakhs so that one can be eligible to receive the one-time monetary incentives of Rs. 2.5 lakhs. Recently, in order to infuse the teachings of BR Ambedkar in the society and to promote the social equity, the Ministry of Social Justice and Empowerment took this bold step and scrapped this bar. This will definitely help in the effective implementation and the administration of this scheme. Many states also have the similar schemes and protective, pre-emptive and corrective measures to curb the menace of crimes against the individuals and to assert their choices. For instance, Bihar government provides the National Saving Certificate amounting to Rs 25,000/- as monetary incentive to women performing inter-caste marriage. The Madhya Pradesh Government has a dedicated cell better known as ‘Crime Against Women Cell” that ensures the safety of couples.
Indeed, The notion of ‘Significance of Age of Majority’ has achieved the landmark growth. Still, in the long growth, the directions issued by the Courts and policy, measures adopted by the Central and State governments has to reach at the grassroot levels and more importantly the society itself has to come forward to stamp out the acts of barbarism against the individuals “WHO HAVE ATTAINED THE AGE OF MAJORITY”.
Second coronavirus wave, administration and Fundamental Rights
The pandemic saw the infringement of various Fundamental Rights guaranteed by our Constitution. The fundamental human rights that are most affected are ‘Right to Health’ and ‘Right to Life’ which also includes ‘Right to die with dignity’. In many well-known judgements, the Supreme Court and several High Courts agreed that the dead corpse should be treated with proper dignity and treated fairly. The Supreme Court recognised that right to life extends not only to living persons but also to their bodies after death.
In the words of William Shakespeare which says “All that lives must die, passing through nature to eternity.”While death is regarded as a natural occurrence, the basic decent treatment that is anticipated and should be provided to the deceased does not always germinate and materialize naturally. We recently had to witness such tragic cases which have not only shocked the entire country but have also witnessed and drawn intervention towards this grave issue from all over the world.
Sightings of dead bodies floating on the bank of the holy river Ganga were reported in the country’s top newspapers. Villagers in Bihar and Uttar Pradesh discovered bodies in the Ganga and Yamuna rivers on May 11, 2021. Ganga, a holy river where people undertake various rituals in relation to ceremonies that are therein mentioned in their holy book, they not only perform ceremonies but also venerate river Ganga for its purity. On May 11, seven bodies wrapped in plastic bags were discovered floating in Uttar Pradesh’s Ghazipur and Hamirpur districts. Similar incidents have also been reported in the Baksar district of Bihar. The greatest concern among residents was that stray dogs and birds would devour the carcasses which would then result in spreading the coronavirus. However, instead of taking action against those responsible for the malafide attacks, the state authorities are now playing a blame game with one another. The world is in danger and the situation has been seen severely detrimental among masses. The heart-rending incidents from these states remind us of the last Mughal emperor and his poetic lament. Unable to find a final resting place in his beloved homeland (India), the last Mughal emperor quite rightly put forth the plight of the dead – Kitna hai badnaseeb Zafar dafn ke liye/Do gazz amen bhi na milikoo-e-yaar mein (How unlucky is Zafar! For burial, even two yards of land were not to be had in the land of his beloved). In the recent past, a ‘novel’ difficulty, similar to the ‘novel’ Corona Virus, has arisen for our contemplation, which would be guided eventually from the foundations of this present article. The article shall examine three major contentions vis-à-vis the issue of dead bodies which were found floating on the banks of river Ganga. Firstly, whether the actions of state authorities being negligent towards the horrendous issue i.e the floating of dead bodies, be condemned? Secondly, the fundamental right of a dead person, enumerated under the constitution of India violated or do we not owe a duty to cremate the deceased respectfully? Third, is there a need to amend the guidelines issued by the Ministry of Health and Family Welfare on management of corpses?
NEGLIGENCE ON PART OF STATE AUTHORITIES
The term other authorities that are enumerated under Article 12 of the constitution of India has given interpretation to the term ‘AUTHORITIES’ by the means of landmark precedents. It is settled law that the State under Article 12 is the custodian of the welfare and wellbeing of its citizens. However, looking at the present scenario the situation seems to be such where the actions on part of state authorities are not at all seems to be custodian but seems to become a warrior against the interest of masses.
Legislation derives its power from the constitutions of India, 1950 which grant the liberal interpretation of Articles 21, 48 and 51(g) by the Hon’ble Judges of Apex court and other courts across the country. In the famous case of Narmada Bachao Andolan v. union of India 2010 SCC 664, The Supreme Court has held that the right to clean water is a fundamental right under article 21 of the Indian constitution. Water prevention and control of pollution act of 1974 is the key specific legislation for preventing water pollution and for taking care and maintaining water bodies. It also aims for promoting for restoration of water bodies. For better implementation of the act, the Central pollution control board and the state pollution control board have been established by the Central and the state government. Under the aforesaid act, the board has the requisite power to encourage and conduct research and investigation with the view of promoting, the prevention of contamination of water in a significant manner and also to add the central government for the matters relating to environmental issues and for the prevention and control of water pollution. In the present issue, the duties and obligations that have been imparted to such boards and the ones enumerated in the aforesaid act have been brazenly ignored by state authorities. They have failed to impart their duties in such remorse condition because of which the lives of masses are now at stake. Hence, because of the aforesaid reason the actions of state authorities should be condemned.
DEAD PERSON TOO HOLDS A FUNDAMENTAL RIGHT
The flagrants acts during the pandemic has resulted in the infringement of various Fundamental Rights guaranteed by our Constitution.The fundamental human rights that are most affected are “Right to Health” and “Right to Life which also includes Right to die with dignity.” In many well-known judgements, the Supreme Court of India and many High Courts agreed that the dead corpse should be treated with proper dignity and treated fairly. The Supreme Court of India recognized that right to life, to fair treatment and dignity, extends not only to a living person but also to their bodies after death. In a landmark judgment (Common Cause, A Regd. Society V. Union of India & Anr.) delivered on 9th March, 2018, the Supreme Court of India held that the right to die with dignity is an intrinsic facet of the right to life under Article 21 of the Constitution of India. In fact, in the year 2007, the Madras high court in the case of S.Sethu Raja vs The Chief Secretary (2007) 5 MLJ 404 had held in Para 18 of the Judgment that the same human dignity (if not more) with which a living being is suppose to be treated by our tradition and our culture should also apply to the dead person and he too holds a right of dignified burial or cremation of a dead body. The right to decent burial is upholding in Indian context, but who is authorized for burial is not explained in any Indian Law. There is a strong societal interest in the proper disposition of the bodies of deceased person. It is universally accepted that a duty is owed to both society and the deceased that the body be buried without any unnecessary delay.
AMENDEDMENT IN THE GUIDELINES AMID COVID-19 IS ‘THE NEED OF THE HOUR’
A document containing ‘Dead Body Guidelines (COVID-19)’ – [hereinafter, ‘Document’], was released by the Directorate General of Health Services (EMR División), Minister of Health and Family Welfare of India on March 15, 2020. To date, it remains unamended and builds on the epidemiological understanding of COVID-19 of the Ministry at present. The aforesaid document lacks some crucial quintessential.
Thereby, the authors would like to propose some takeaways from the other jurisdiction of the nations across the globe, which can be included in the aforesaid guidelines for the benefit of the masses across the country.
The guidelines should be inclusive or seeks to impose a compulsory cremation of the covid-19 victims, which is foremost aimed to prevent local bodies from being able to cremate the body of the deceased overriding his/her religious belief.
In the midst of the global pandemic of covid-19 where graveyards and crematoriums crammed, the locals people of various states are of the view that there emerged shortage of woods for pyre, thereby resulted in the hike in the cost of cremation, whereby this becomes the sole reason why the bodies were buried or seen floating. Hence, the guidelines should impose a reasonable amount or capped a certain amount that crematoriums can charge from families at the time of cremation of a dead body.
Prices should be regulated for hearse or ambulance services so that people are not used and are not exposed to difficulty transporting dead bodies.
The guideline should impose sanction on those people committing horrendous acts such as throwing bodies in rivers, not cremating bodies as per rules enumerated therein.
In order to avoid health risks from smoke emission from burning pyres in large numbers, the use of electric crematoria can be encouraged.
The burial or cremation of masses should not occur because it infringes the right to dignity of the dead.
India has been overwhelmed by a devastating second wave of the pandemic in recent weeks. It has recorded more than 25 million cases and 2,75,000 deaths. But the experts say the real death toll is several times higher. The bodies dumped on the river banks and the funeral pyres burning round the clock and cremation grounds running out of space are the proof that the official tally of deaths represent a substantial undercount of the true burdens. In recent times, various eye opening incidents surfaced through media wherein humans were seen to be treated worse than animals. There were interminable news reports which reported incidents like dumping of corpses in a pit at a burial ground without performing their last rites. Many photographs and videos of the half burnt and decomposed dead bodies have gone viral on social media. In order to stop this menace that is bulging the entire nation, all those aforesaid measure as stated hereinabove should be adopted and the the adminstration should pay heed and curb against all those activities that are disturbing not only the rights of dead person but all the right of a living person.
Freedom of speech & sedition law in India : An analysis in the light of recent controversy
The definition of sedition must be narrowed down to encompass only the problems pertaining to the territorial integrity of India, in addition to the sovereignty of the country. The word ‘sedition’ is extraordinarily nuanced and needs to be implemented with caution. It should rarely be used but kept by and large as a deterrent.
It is an irony for the mostdemocratic nation, ie, India, where freedom of speech and expression has been granted under the Indian Constitu- tion, and while exercising their power enshrined un- der the Constitution of India. they are being booked for the offence of sedition. Accord ing to the report of Rights and Risks Analysis Group, as many as 55 journalists were targeted by the government during 25 March and 31 May for covering facts about the government handling of the Covid-19 pandemic.
Recently, the Supreme Court of India has quashed the sedition case registered against senior journalist Vinod Dua in Himachal Pradesh. The verdict was pronounced by a single judge bench led by Hon’ble Justice UU. Lalit.
Vinod Dua was booked for sedition for criticising the Narendra Modi government’s handling of the Covid-19 lock down and had uploaded the same on Youtube last year, While granting the relief the court relied on the principles laid down in the Judgment of Kedar Nath. The judg ment was delivered in the year 1962, where the consti- tutional validity of sedition law in India was validated. However, it was observed that free speech, discussions on matters of government functioning and their criti cism, and freedom of press are “essential for the proper functioning of the processes of popular government Currently, in the Vinod Dua case, the Hon’ble Court has also observed that the jour nalist will be entitled to pro tection under the judgment”.
It was further observed that “It must, however, beclarified that every Journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124 and 505 of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh”. The Court Held that
BACKGROUND OF SEDITION LAW
Sedition laws were enacted during 17th century England, when the lawmakers believed that only good opinions of the government should survive as the criticism of a Govern- ment may result in detri- mental to the government and monarchy. The law was originally drafted in 1837 by the father of the Indian Penal Code, Thomas Macaulay, but it was omitted when the In- dian Penal Code (IPC) was enacted in the year 1860.
Many freedom fighters were charged under this provision which includes the case of Joggendra Chandra Bose, who was the editor of the newspaper, Bangbosi, who wrote an article criticis ing the age of consent Bill for posing a threat to the religion and for its coercive relation ship with Indians.
Great freedom fighters like Bal Gangadhar Tilak and Mahatma Gandhi were also booked under this offense.
SEDITION LAW IN INDIA: CURRENT SCENARIO
Sedition is an offense under Sectio 124A of the Indian Penal Code (Hereinafter re- ferred to as IPC), 1860. See tion 124A IPC, defines the offense sedition when “any person by words, either spo- kenorwritten, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or con- tempt, or excites or attempts toexcite disaffection towards the government established by law in India”. Disaffection also includes disloyalty and all feelings of enmity. How ever, it is here notable that comments without exciting or attempting to excite ha tred, contempt or disaffee tion, will not constitute an offense under this section.
PUNISHMENT FOR SEDITION
Sedition is a non-bailable offense. Punishment un der Section 124A ranges from imprisonment up to three years to a life term. to which fine may be added. It is also notable that if a person is charged under this law, he will be barred from a govern ment Job. They have to live without their passport and must produce themselves in
constitutional. Furthermore, it was also held that the dis turbing the public order will mean nothing less than en dangering the foundations of the Stateor threatening its overthrow: These Judgments prompted the First Constitu tion Amendment, where Ar ticle 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”. In the year 1962, in the historic judgment of Kedar Nath Singh vs State of Bihar. the supreme court decided on the constitutionality of See tion 124A. The Hon’ble court upheld the constitutionality of sedition, but had limited its application to “acts involving intention or tendency tore ate disorder,ordisturbance of law and order, or incitement to violence”. Itdistinguished these from “very strong speech” or the use of “vigor ous words” strongly critical of the government.
In the year 1965, the Su preme Court, in the judgment of Balwant Singh vs State of Punjab, held that mere slo ganeering which evoked no public response did not amount to sedition.
ARGUMENTS FOR SECTION 124A
The Provision of Sedition law has its application in fighting anti-national, secessionist and terrorist elements. It is argued withinside the fa- vour of this law that, it pro tects the elected government from tries to overthrow the authorities with violence and unlawful means. The continued existence of the government set up through regulation is an important circumstance of the stability of the State. Furthermore, it is also believed that if Contempt of court results in the penal action, the contempt of Gov ernment should also attract
ARGUMENTS AGAINST SECTION 124A
The Provision of Sedition Law isarelic of colonial lega cyand it is not fit for democra- ey This is a restriction on the legal exercise of the freedom of speech guaranteed by the Constitution. Government disagreements and criti cisms are an important part of healthy public debate in dynamie democracy. They should not be constructed as sedition. It is notable that The British who resisted the suppression of the Indians overturned their countrys laws. India has no reason not to abolish this part and
the time has come to amend this portion. It is also argued against this law that the terms usedunder Section 124A like disaffection are vague and subject to different interpre- tations to the whims and fan- cies of the investigating offi- cers. The sedition law isbeing misused as a tool to persecute political dissent. A wide and concentrated executive dis- cretion is inbuilt into it which permits the blatant abuse.
CONCLUSION AND WAY FORWARD
Dr Justice (Retd.) Balbir Singh Chouhan has observed that “The sedition law needs reconsideration”. Since the creation of this British Sedition Law, its application has always been inconsistent. In all cases, its application is vague and self-contradictory. Considering that it is used to suppress the masses, when it serves the masses, its application was initially vague. It is used as a tool to strengthen political motivations by preventing speeches that threaten the authority of the country. A clear and unam- biguous explanation of the crime. In recent years, the ap- plication of the sedition law has been too arbitrary and has become a controversial topic. Although our sedition position was established in 1960, it still exists. Over the past 50 years, Indian society has developed rapidly, and people have shown “toler ance” towards summons and violence. The nature of the government has also changed, and people’s under- standing of the government is different from that of its representatives.
India is the largest de- mocracy of the world and the right to free speech and expression is a vital aspect of democracy. The expres- sion or thought that isn’t in consonance with the policy
Freedom of speech & sedition kew in India: An analysis in the light of recent controversy
of the government of the day must now no longer be taken into consideration as sedition. Section 124A mus now no longer be misused as a device to scale down loose speech. The SC caveat, giver in Kedar Nath case, on pros ecution beneathneath the regulation can test its misuse It needs to be tested under the modified facts and situation: 1 additionally at the anvi of ever-evolving tests of ne cessity, proportionality and arbitrariness. The higher judiciary must use its super visory powers to sensitize the magistracy and police to the constitutional provision: protective free speech. The definition of sedition mus be narrowed down, to en compass only the problem: pertaining to the territoria integrity of India in addi tion to the sovereignty of the country. The word ‘sedition is extraordinarily nuancec and needs to be implement ed with caution. It is sort of a cannon that ought now no longer for use to shoot a mouse; however the arsena additionally needs posses sion of cannons, by and larg as a deterrent, and sometimes for shooting.
India is the largest democracy of the world and the right to free speech and expression
is a vital aspect of democracy. The expression or thought that isn’t in consonance
with the policy of the government of the day must now no longer be taken into
consideration as sedition. Section 124A must now no longer be misused as a device
to scale down loose speech. The SC caveat, given in the Kedarnath case, can test its
misuse. It needs to be tested under the modified facts and situations and additionally
at the anvil of ever-evolving tests of necessity, proportionality and arbitrariness.
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