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‘Persons’ not ‘possession’, ‘children’ not ‘commodities’, ‘girls’ not ‘goods’

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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.”

-Unknown

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.

ORGAN HARVESTING

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

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.

LABOUR EXPLOITATION

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

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

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.

SLAVERY

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.

FORCED CRIMINALITY

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.

CONCLUSION

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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Policy & Politics

Draconian provisions of NDPS Act misused: Calcutta HC orders mandatory videography of recovery procedure

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It is really good to note that in a remarkable, refreshing, robust and rational judgment titled Kalu Sk. @ Kuran v. State in C.R.M. (NDPS) 492 of 2022 with C.R.M. (NDPS) 493 of 2022 and cited in 2022 LiveLaw (Cal) 255 that was pronounced finally on June 22, 2022, the Calcutta High Court has directed that in all cases involving recovery of narcotic substances, seizing officers shall make a video recording of the entire procedure and that reasons for failing to videograph the recovery must be specifically stated in the investigation records. It must be specifically mentioned here that a Bench comprising of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay opined that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph such a recovery procedure. It was further observed that reliance on such technology must be placed to instill fairness, impartiality and confidence in the investigative process. The Court conceded that the draconian provisions of the NDPS Act have been misused. This further necessitates mandatory videography of recording procedure as conceded by the Court.

At the outset, the Bench comprising of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay sets the ball rolling by first and foremost putting forth candidly in the introductory para that, “Disturbing features were noticed in a number of cases including the present one involving recovery of narcotic substance under N.D.P.S. Act. Firstly, the seizure list did not contain signatures of all the accused persons who were alleged to have been arrested from the spot where the recovery was made. Secondly, presence of independent witnesses at the time of seizure appeared to be doubtful, as the said witnesses in their statements before the Magistrate under Section 164 of the Code of Criminal Procedure did not support the seizure. Noticing such discrepancies in the present and other cases, this Court was constrained to issue directions upon the Superintendent of Police of Murshidabad Police District to take steps in the matter including initiation of disciplinary proceedings/suspension of police officers connected with the investigation of the case.”

To put things in perspective, the Bench then envisages in the next para that, “Superintendent of Police is present before us. He has submitted report wherefrom it appears an administrative order has been issued directing all seizing officers to record signatures of accused persons who are apprehended at the time of recovery of narcotic substance in the seizure list. It also appears from the said report, seizing officer, investigating officer of the present case as well as Officer-in-charge of the Police Station concerned has been placed under suspension and departmental proceedings have been initiated against them.”

Without mincing any words, the Bench then concedes in the next para that, “N.D.P.S. Act vests plenary powers of search, seizure and arrest on investigating officers. The power of the court to grant bail is circumscribed by strict restrictions under Section 37 particularly in cases involving commercial quantity. While a strict law is necessary to control organized crime like drug trafficking and protect the youth from the menace of drug abuse, its draconian provisions are sometimes misused by investigating agency leading to false implication and prolonged unjustified detention of individuals. Most of the cases registered under the N.D.P.S. Act revolve around recovery of narcotic substance from the accused. Heart and soul of the prosecution is the legitimacy of such recovery. Prosecution in such cases primarily relies on the evidence of official witnesses particularly seizing officers to prove lawful recovery of contraband. In most cases as in the present case, independent witnesses are either not examined or turn hostile. There may be myriad reasons for that ranging from false implication to winning over of such witnesses by resourceful accuseds.”

Quite forthrightly, the Bench then observes that, “In order to remedy the situation and ensure unvarnished truth is placed before the court during adjudication, it is imperative that the investigating agencies resort to modern technology and videograph the recovery of narcotics.”

While underscoring the need for use of technology by the police, the Bench then points out that, “This Court takes judicial notice of the fact that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph recovery. When technology is available at the lay level we see no reason why it shall not be utilized to instill fairness, impartiality and confidence in the investigative process. Videography as a modern tool of investigation has been well recognised in law. In fact, the Field Officers’ Handbook issued by Narcotics Control Bureau, inter alia, directs the search team to carry video camera amongst other equipments for the purpose of search. (See Chapter 3 – Operation: Preparation, Co-ordination and Planning). In chapter 6 relating to “Recovery and Seizure” video recording of seizure of narcotics has been mandated as under:-

“Video:- A lot of times the witnesses and suspect allege foul play by the search team during the trial proceedings alleging that they were not present at the time of recovery. To avoid such a situation, all recovery and concealment methods should be videographed simultaneously if possible, recording the presence of the owner/occupant of the premises and the witnesses. This acts as a deterrent later during trial proceedings.””

Lamentably, the Bench then also points out the most worrying part as stated in the next para that, “Unfortunately, even in cases conducted by NCB, such directives are mostly observed in the breach.”

Be it noted, the Bench then points out that, “It may also be apposite to note use of videography in investigation was examined by a Committee constituted by the Ministry of Home Affairs in 2017. The Committee observed videography of crime scene as “desirable and acceptable best practice”. The Committee issued various directives for the purpose of preparation, capacity building and implementation of such procedure on a mandatory basis.”

While continuing in the same vein, the Bench then enunciates that, “The Committee also suggested a group of experts to be set up at the level of Government of India to issue guidelines and advisories. State Police and the Central investigating agencies were also advised to set up steering committees to spearhead the drive. State and Central agencies were also suggestive to designate a Senior Officer in the rank of IG/ADG as Nodal Officer for the preparation, capacity building and implementation of videograph in investigation.”

While citing the relevant case law, the Bench then deems it apposite to state that, “In Shafhi Mohammad Vs. State of Himachal Pradesh (2018) 5 SCC 311, the Apex Court noted the aforesaid report and observed as follows;

“9. We are in agreement with the Report of the Committee of Experts that videography of crime scene during investigation is of immense value in improving administration of criminal justice. A Constitution Bench of this Court in Karnail Singh v. State of Haryana (2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887, SCC para 34 noted that technology is an important part in the system of police administration. It has also been noted in the decisions quoted in the earlier part of this order that new techniques and devices have evidentiary advantages, subject to the safeguards to be adopted. Such techniques and devices are the order of the day. Technology is a great tool in investigation [Ram Singh v. Ram Singh, 1985 Supp SCC 611; R. v. Maqsud Ali, (1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA); R. v. Robson, (1972) 1 WLR 651 : (1972) 2 All ER 699 (CCC); Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329 : (2010) 2 SCC (Civ) 112 : (2010) 2 SCC (Cri) 826; Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54; Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 : (2012) 3 SCC (Cri) 481; State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715]. By the videography, crucial evidence can be captured and presented in a credible manner.””

Most forthrightly, the Bench then minced no words to hold that, “The Court further held time was ripe to introduce videography in investigation particularly for crime scene as a desirable and acceptable “best practice” as suggested by the Committee to strengthen the rule of law. It approved the Centrally Driven Plan of Action prepared by the Committee and the timelines mentioned therein.”

Most remarkably, the Bench then also hastens to add in the next para that, “The observations made in Shafhi Mohammad (supra) as well as the guidelines in the Field Officers’ Handbook issued by the Narcotics Control Bureau reinforce our view regarding mandatory videography of recovery proceedings under NDPS Act. Technology has advanced considerably and equipments like smartphones and other electronic devices enabling videography are ordinarily available with seizing officers. Hence, lack of availability of technology or awareness is a non-issue.”

Most significantly, the Bench then holds in the next para what forms the cornerstone of this notable judgment that, “Accordingly, we direct as follows:-

(i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;

(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;

(iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;

(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its noncompliance would attract departmental proceeding so far as the seizing officer is concerned;

(v) Director General of Police shall issue necessary directions for due compliance with the aforesaid directives;

(vi) Superintendent of Police/Commissioner of Police in each district/commissionerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under NDPS Act and compliance of the aforesaid directives relating to videograph of recovery including collection, preservation and production of such electronic evidence in Court.”

It is also worth noting that the Bench then made it quite clear that, “We are also of the considered view all Central agencies empowered under the NDPS Act to search and seize narcotic substance ought to comply with the aforesaid requirement of videography of recovery proceedings.”

As it turned out, the Bench then observed that, “Accordingly, it is proposed directive Nos. (i), (ii) and (iv) shall apply to all seizing officers of the Central agencies empowered to search and seize narcotics under NDPS Act. Directive Nos. (v) and (vi) shall apply to the head of the department of the Central agency concerned while Directive Nos. (iii) and (iv) shall apply to all superior officers of the said agency not below the rank as prescribed by the head of the department.”

Of course, the Bench then directs that, “Union of India including NCB shall submit response in this regard on the adjourned date.”

Furthermore, the Bench then specifies in the next para of this learned judgment that, “Director General of Police, West Bengal shall submit report with regard to the compliance of the aforesaid directions on the adjourned day.”

As we see, the Bench then directs that, “Let these matters appear two weeks hence.”

Furthermore, the Bench then also mandates in the next para that, “Registrar General shall communicate a copy of this order to the Union of India including NCB as well as on the Assistant Solicitor Generals of this Court and Director General of Police, West Bengal for necessary compliance.”

Finally, the Bench then aptly concludes by holding in the final para of this extremely laudable judgment that, “Presence of the Superintendent of Police, Murshidabad is noted and dispensed with at present.”

In a nutshell, this brief, brilliant, bold and balanced judgment is certainly worth emulating by all the Courts in India. No doubt, the Courts must always regularly ensure that the draconian provisions of NDPS Act are not misused which can put to trouble an innocent person which cannot be ever justified.

We thus see that the Calcutta High Court very rightly orders mandatory videography of recovery procedure in strict compliance with the rules as stated above. It definitely merits no reiteration that all the courts must definitely pay heed to what the Calcutta High Court has held in this leading case so very commendably, cogently and convincingly!

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Policy & Politics

THE EFFECT OF THE SOCIOLOGICAL SCHOOL ON THE CURRENT LEGAL SYSTEM

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Law has consistently been taken a gander at as one of the significant instruments that could achieve social change. Numerous academicians have upheld the view that law appreciates and utilizes binding together capacity to contribute towards better social union, as a device for achieving homogeneity in the heterogeneous populace having socio-social assorted varieties. Despite the fact that there are a few gadgets to achieve a change and renewal in the public arena, however reconstruction through law is maybe one of the best and most secure strategies to accomplish this end. Indian society has transformed over the period of time from a society governed by Smrithi, Sruti, Dharma and other customary law, to western conceptions of law and authority during the colonial period. Further with the rights-based Constitution and dynamic law-production which incorporates the codification of strict laws and governmental policy regarding minorities in society during the post-pioneer period, the Indian culture has gone through change. The commitment of sociological statute to the social change in India, could be all around surveyed as perceived by seeing the law as a device of social designing. Significance allocated to sociological school of law, is because of the way that by glancing through the focal point of this specific way of thinking, the reaction of human conduct in a general public to law and how law has made and shaped itself to suit the manner in which the general public reacts to it could be perceived .There additionally could be cases we could watch, by which we could see even the general public now and again requests for laws. this interaction of law and society contributes and prompts advancement of one another. Looking from the sociological school of statute during the hour of pilgrim organization in India, social change had clearly occurred, yet the circumstance that existed in which the laws were forced by the provincial organization, gives an impression of a circumstance for the positivist law to exist. English organization can’t be said to have seen law as social building device for the Indian culture. Further, to a great extent there was no reference to the need of the individuals in the law-production during pilgrim times. The provincial arrangement of law-production can’t be outlined into agreement or strife model, as the individuals’ investment, keen or need was not of much worry for the law-production around then. Be that as it may, precluding all the law made during pilgrim organization out of ambit of sociological statute is likewise impractical. English organization was more keen on shaping laws that will help in framing a dish India level system for the administration of the nation. In any case, because of the general assessment likewise certain laws were established matters such as sati and child marriage abolishment legislations. This indicates that the need of people, reflected in the public opinion also had an impact on the legislations even during the colonial period . Post-Colonial Period Post-frontier period saw critical measure of law-production that affected quite a bit of social change in India. This began with the confining of Indian Constitution, a report which could be alluded to as socio-political and right-situated in approach. The Constitution has really planted the seeds of a moderate social upheaval that had set off numerous dynamic and purposive law-production. The Constitution by joining arrangements that gets governmental policy regarding minorities in society, advances multiculturalism and proportions of a commitment upon the States prompting a government assistance instrument is an exemplification of a law made inside the system of sociological statute. Despite the fact that the Constituent Assembly was not a chosen body, the perspectives and issues that were examined and further got reflected in the Constitution, had unquestionably the goals of the individuals and thought about the different parts of enthusiasm of the Indian culture. Further, we could infer that the Constitution of India that purposive law-production for driving India into a moderate social insurgency, and over the timeframe Constitution has formed its shape with the changing need of the country.

PIONEERS OF THE SOCIOLOGICAL SCHOOL

There are various pioneers of the this school namely Auguste Comte, Herbet Spencer, Dugit , Eugen Ehrlich , Ihering , Haurio and one the important pioneer is Roscue Pound . It is to be stated that howsoever divergent the views of various sociological jurists may appear, they have one common point that the law must be studied in relation to society This view has a great impact on modern legal thought.

THEORIES OF VARIOUS PIONEERS OF SOCIOLOGICAL SCHOOL AND THEIR IMPACT/CONTRIBUTION ON THE PRESENT LEGAL SYSTEM

1 . Duguit

Durkheim’s main point, on which Duguit built upon, was that he made a distinction between two kinds of needs of in society. Firstly, there are common needs of individuals which are satisfied by mutual assistance and secondly , there are diverse needs of individuals which are satisfied by exchange of services. Therefore , the division of labour is the most important fact of social cohesion. He named it ‘social solidarity’ . With development of free individual activities the ‘social solidarity’ develops . The ‘social solidarity’ is a fact and it is necessary for social life. His theory impacted in way which causes minimisation of state functions . The social solidarity is the touchstone of judging the activities of individuals and all organisations . State is also a human organisation and it is in no way different from other organisations. It is simply the expression of the will of the individuals to govern . They too are under a duty to ensure ‘social solidarity’ . Therefore , the state stands in no special position of privilege and it can be justified only so long as it fulfils its duty . Duguit has a no faith in an all powerful illimitable authority ‘sovereign’ . He strongly pleads for the check on the state power . Thus in the present legal system three organs keep the check on eachother as there is no bias decision and nothing goes wrong and the work goes on smoothly thus a system of check and balances is established .According to him legislator does not create law but merely gives expression to judicial norm formed by the consciousness of the social group .

2. Ihering

According to him, the development of law like its origin is neither spontaneous nor peaceful. “It is the result of constant struggle or conflict with a view to attain peace and order.” Ihering says, “Law is the guarantee of the conditions of life of society, assured by the state’s power of constraint. LAW IS TO SERVE SOCIAL PURPOSE- He takes law as a mean to an end. The end of the law is to serve purpose. This purpose is not individual but social purpose. When individual purpose comes in conflict with social purpose, the duty of the state is to protect and further social purposes and to suppress those individual purposes which clash with it. This end may be served either by regard or by coercion and it is the latter which is used by the state. Therefore, “law is coercion organised in a set form by the state’. As to its impact on the present legal system, he says that law is the only means to control the social mechanism, or it alone can protect and further all the social purposes. Law is the only one factor among many others. There are some conditions of social life, such as climate, etc. for which only part-intervention is made by law. Lastly, there are some conditions of social life which are secured exclusively by the law, such as raising of revenue. In short, according to Ihering, the purpose of law in the present legal system is to secure the conditions of social life by the state through coercion. Law always has a purpose. the purpose is to further and social interests.

3. Eugen

Ehrlich Law is to be found in social facts- the central point in Ehrlich’s thesis is that the law of a community is to be found in social facts and not in formal sources of law. He says: “At present as well as at any other time, the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.” ‘Living law’ is the fact that governs social life- the norms which, in fact, govern social life are only partly reflected in the formal law (i.e., statute of judge-made law) of that society. the essential body of legal rules is always based upon the social facts of law. The ‘fact of law’ which underlie all law are usage, domination, possession and declaration of will. These facts regulate the social relations and make the ‘living law of the people’, state-made law (statutes and decisions) is only a part of this great body of law. Generally, these legal norms lag behind the ‘living law’. In the present legal system, his point is used as the law is made according to the requirements of the society. His use of the term ‘sociological jurisprudence’ means that the law in

society should be made and administered with the utmost regard to its requirements. To achieve this end, a very close study of social conditions of the society, in which the law is to function is, indispensible. Also, as we see today, law is made considering the needs of the society and their interest is protected. Thus, what he wants in the legal system is social justice. by ‘justice’ he does not mean some absolute principle, but a relative justice changing with time and place. 4. Roscoe Pound For Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste. According to him, the end of law should be to satisfy a maximum of wants with a minimum of friction. The task of law is ‘social engineering’- Pound’s main thesis is that the task of the law is ‘ social engineering. He says- “For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants, the claims and the demands involved in the existence of civilised society- by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect to by an ordering of human conduct through politically organized society. For the present purpose I am content to see in legal history the record of a continually wider recognising and satisfying of human wants or claims or desires through social control; a more embracing and more complete and effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence- in short, a continually more efficacious social engineering”. The present legal system consists of the concept of social engineering laid down by Pound as social engineering consists of study of actual social effects of legal institutions and legal doctrines, study the means of making the legal rules effective, sociological study in preparation of law making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases. As social engineering consists of three heads under it: private, public and social interests, the present legal system safeguards the three interests as follows: The private interests to be protected by the law are: a) the individual’s interests of personality: These include his physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by the criminal law, law of tort, law of contracts and by limitation upon the power of government to interfere in the matter of belief and opinion, b) Individual’s interests in domestic relations: these include marriage, relations of husband and wife, parents and children, and claims to maintenance, c) Interests of substance: these include proprietary rights, inheritance and testamentary succession, and occupational freedom. the principal public interests are: a) interests in the preservation of the state as such, and b) interests of the state as the guardian of social interests. The social interests deserving legal protection are: a) interests in the preservation of peace and order and maintaining general security, b) interest in preserving social institutions like marriage and religious institutions, c) interest in preserving general morals by counteracting corruption, discouraging gambling and invalidating transactions repugnant to current morality, d) interests in conserving social resources, e) interest in general progress which is to be achieved by freedom of education, freedom of speech and expression, freedom of property, trade, and of commerce, and f) interest in the promotion of human personality.

THE RELEVANCE OF THE THEORIES OF THE SOCIOLOGICAL SCHOOL IN PRESENT LEGAL SYSTEM:

EFFECT OF LAW AND SOCIETY ON EACH OTHER

The above all else effect of the sociological school on present lawful framework is that law is made considering the requirements of the general public as all the pioneers of the school in their hypotheses have one or in the other manner said something very similar that there is no law without society as though the law is made without considering the general public or it doesn’t satisfy the necessities of the general public and can’t keep up the enthusiasm of the general public then it can’t be viewed as law . so both law and society are identified with one another.

RELATIONS BETWEEN INDIVIDUAL, STATE AND SOCIETY HAVE BEEN CHANGING

Relations between individual, state and society have been continually changing and different hypotheses with respect to it have been given every now and then. In the first place, society was administered by customs which had just social authorization. At that point there came the matchless quality of ministers. A short time later the mainstream state developed groundbreaking and it ruled all foundations. As a response the significance of individual was stated by scholars and logicians. There were unrests and political changes. Presently, the need of adjusting the government assistance of the general public and the individual was figured it out. At that point there came an inclination of socialization and an engineered approach was given. The significance of individual for the general public and of the last for the previous was underlined.

IN THE MODERN TIMES TENDENCY OF SOCIALIZATION

At that point came the view that one ought to be considered in the light of the other. The methodologies produced using this perspective are called sociological methodologies. The reasons which achieved this sort of approach are many. The chronicled school, the philosophical development and the relative investigation of legitimate framework all in various manners contributed in achieving this new technique.

BACKGROUND OF THE NEW THOUGHT

The changed political way of thinking, new hypotheses of science, Industrial upset, new monetary idea and ground-breaking thoughts in other sociology in the nineteenth century had their impact on the legitimate idea. The French and German masterminds established the frameworks of the thoughts of socialism and communism which gave a new understanding on the reason for law. The hypothesis of natural advancement gave the possibility of natural improvement which was applied on law too. Along these lines, there occurred a progressive change in the idea of law . In the advanced occasions, social relations are developing increasingly mind boggling. The idea of state and its connection with people have gone through an extraordinary change. New understandings are being given to these progressions yet remembering the fundamental effect of sociological school that is connection among law and society.

CONCLUSION

On the basis of the development of social values and common rules of behavior we may distinguish three types in the sociological approach to law:

1) the classical sociological approach, which is characteristic of traditional society;

2) the modern sociological approach, which is characteristic of industrial society;

3) the post-modern sociological methodology, which depends on expanding singular government assistance. The sociological methodology is basically reasonable and communicates the connection between society a well as its people and gatherings with law. The traditional sociological way to deal with law rises as the legitimate request of the state is slowly supplanted by the lawful request dependent on customs.

The development of the modern sociological approach to law can be divided into two stages:

1) The phase of building up a majority rules system, where request is set up by methods for laws and progressive enactment. Citizenry are relied upon to willfully comply with the lawful request of the state. Along these lines enactment depends on expanding information about the truth of law. Information on “lawful authenticity” is a boost for the humanism of statute and the improvement of the social science of law.

2) The phase of utilizing present day law as an instrument of making the cutting-edge state. During the time spent advantageous interaction among popular government and present-day political idea law has made the thought of law as an instrument of social change. This idea has assembled two factors – the developing intensity of the cutting-edge state and social change. Current law is viewed as just an instrument of the state’s political force and its effectiveness is controlled by the grouping of political powers, autonomously from the help of different frameworks of social guideline. Investigating the sociological way to deal with law has lost its pertinence. This explains the negative consequences of society’s legal culture:

1) the unconditional endorsing of the instrumental approach to law;

2) the weakening of the link between society and law. The weakening of the link between society and law is particularly hazardous because individuals’ voluntary obedience to the rule of law gives basis for the existence of society as such.

It is to be expressed that howsoever unique the perspectives on different sociological legal scholars may show up, they have one basic point that the law must be concentrated according to society. This view greatly affects present day legitimate idea but it ought not be interpreted as meaning that different strategies have totally stopped to exist.

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Policy & Politics

THOSE WHO ANNOUNCE BOUNTY MUST BE AWARDED STRICTEST PUNISHMENT

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It is hitting the headlines all over that the Delhi Police Special Cell has arrested Bhim Sena chief Nawab Satpal Tanwar for allegedly announcing a bounty of Rs 1 crore on Nupur Sharma in a Facebook video and also made threatening remarks. The Delhi Police said that Tanwar had allegedly issued death threats and announced bounties earlier too. Within no time he gets bail as we see in similar other such cases!

It must be asked: How can Centre take all this just lying down so quietly? Why is it becoming so common to issue death threats and announcement of bounty on the head or throat of some one? Why is bail given so quickly and so easily to those who issue such dastardly threats?

Needless to say, our penal laws merit prompt correction in this regard and law makers who are reviewing penal laws must immediately deliberate, discuss and debate on this also so that the growing reprehensible tendency of issuing death threats or threats to maim some person is promptly reigned in!

Of course, we are not living in a Talibani India! We are a secular country and no one has the unfettered right to issue such death threats or threat to cut tongue or hands or legs! Why can’t Centre make such strict laws which mandates at least 14 years imprisonment to all those who dare to issue such death threats or threats to maim someone?

Who is Nupur Sharma? She is just about 37 years old who is a graduate in economics from Delhi University’s Hindu College and LLB from the Delhi University’s Faculty of Law. She also has a Master’s degree in law from the London School of Economics. She started her stint in politics as a student leader and, in 2008, went on to win the post of Delhi University Students’ Union president. It was a time when the Congress’s student wing, the National Students’ Union of India (NSUI), had a strong presence on campuses. So while Nupur managed to get the president’s post, all other posts were won by the NSUI. The most high-profile of her electoral contests, however, remains the 2015 Delhi Assembly election, when she decided to pick up the gauntlet and take on none other than the Aam Aadmi Party (AAP) convenor Arvind Kejriwal from the New Delhi seat. She however lost by 31,583 votes but gave tense moments to Kejriwal.

Many of us know very well that Nupur Sharma who has been a very familiar and prominent face of the party’s youth wing, the Bharatiya Janata Yuva Morcha, has also held several positions in the party such as national executive committee member of the youth wing and member of the Delhi state executive committee. In 2017, she was appointed Delhi BJP’s spokesperson when the then Delhi state unit chief Manoj Tiwari formed his team. In September 2020, when JP Nadda set up his team, Nupur Sharma was then picked as a national spokesperson.

It is said that Nupur Sharma made some controversial comments about Prophet Mohammad who is the founder of Islam. It merits no reiteration that no sane person can ever endorse anything wrong said about such a prominent personality whom Muslims hold in the highest esteem. She spoke about Prophet Mohammad marrying with a very small girl.

We don’t even get to read as to what exactly she said. She later apologized also humbly for the remarks which she made while speaking in a discussion in a news channel. Then why so much of brouhaha is made not just in India but all across the globe! We see so many times even Hindu Gods and Goddesses are not spared! But everything normally ends with an apology! This is what in this case I find most reprehensible and I am glad to see that many Muslim prominent faces too are condemning the issuing of death threats to Nupur Sharma and have voiced the controversy to be laid to rest as she has apologized.

It cannot be glossed over that a very eminent Muslim scholar named Maulana Salafi Engineer Mohammad Ali Mirza of Pakistan has fully, firmly and finally supported Nupur Sharma. He said that the Muslim panelist had first provoked Nupur Sharma by commenting and it was in response to this that she commented about the Prophet. Maulana Mirza said forthrightly that, “We have to see the whole atmosphere in this entire controversy. The real culprit is the Muslim guy who first mocked Hindu religion in the live TV show. BJP leader [Nupur Sharma] made remarks about the Prophet in rebuttal. Islam does not allow us to mock other religions.” He said that from the style and tone of Nupur Sharma’s statement, it will be known that she is retaliating. He said that the first criminal is a Muslim who talked about one’s religion in a live TV program but about whom none is speaking in India. This is what even I find really atrocious!

Maulana Ali further said that in the Nupur Sharma controversy, people of the Arab countries are provoking the atmosphere by sitting in ACs while in India people are protesting in the scorching heat and the policemen are answering them. He further puts across his point saying that, “This is basically an international politics. Arab countries are the slaves of those nations who are not the allies of Russia. These countries instigated Arab countries against India. Before this, there have been many big cases on which Arab countries did not react. Now Arab countries were instigated to put pressure on India regarding Russia.” No doubt, the reference is to countries like Canada, US, UK and other European countries!

We are a democratic country where every person has a right to put across his/her viewpoint. If Nupur Sharma has said something wrong the law is there to take her to task but what about the person named Tasleem Ahmed Rehmani who provoked first Nupur Sharma? Why no one is talking about him? Why he commented adversely about Lord Shiv and the Shivalinga found in the Gyanvapi Masjid well which is just not being discussed anywhere but which even a Maulana based in Pakistan is pointing out as I have just mentioned above! Nupur Sharma who herself is a lawyer has a legitimate point when she claims that her comments were a reaction to continuous insult and disrespect towards our Mahadev (Lord Shiva) by the other panelist named Tasleem Ahmed Rehmani who was also speaking on the TV debate and who happens to be a Muslim. Why no one is talking about him also? Why only Nupur Sharma is alone being selectively made a scapegoat? Why we don’t see anyone mentioning about that person also? This makes it indubitably clear that we practice discrimination in such a terrible manner which cannot be ever justified under any circumstances!

The million dollar question is: Why are we seeing growing intolerance in India? Why those who give death threats are very rarely punished and why at least for 14 years they are not thrown behind bars who issue death threats for any reason whatsoever? Why is Centre not making law on this at the earliest? Centre must act on this also so that no one ever dares to ever issue such bounty awards and death threats. If Centre fails to act on this at the earliest then that day is not far when we will openly see beheading and what not which will only signal the end of democracy in India!

It really pleases me to the hilt to see for myself that none other than the Jamaat Ulama-e-Hind president Suhaib Qasmi on Sunday himself is on record saying that the former Bharatiya Janata Party (BJP) leader Nupur Sharma, who allegedly made controversial remarks on Prophet Muhammad, should be forgiven as per Islam. He added that the organisation of Muslim scholars disagreed with the nationwide protests in wake of her remarks. He also pointed out that the matter should have been laid to rest after she publicly apologized for the remarks which she made. Qasmi said, “Islam says Nupur Sharma should be forgiven. We disagree with the protest that started across the country after Friday prayers against Nupur Sharma and her derogatory remarks.”

Apart from this, Jamaat Ulama-e-Hind also welcomed the decision of the Bharatiya Janata Party (BJP) to suspend Sharma. Qasmi said at the press conference that, “We are welcoming the decision of the law because India is the law of the land and we are not going to take the law into our hands. The law does not allow to come on the road and break the rule.” Jamaat Ulama-e-Hind has decided to issue a ‘fatwa’ through which it will urge people not to support any kind of violence in connection with Nupur Sharma and her remarks. “The fatwa will come against Asaduddin Owaisi and Mohammad Madani,” the Jamaat said. It is good to see that we have such Muslims who have downright condemned the use of physical force and violence against a woman named Nupur Sharma and no civilized country can ever support such death threats or any other kind of threat of causing any kind of harm and that too to a woman!

As if this was not enough, we see Mamata Banerjee passing resolution in West Bengal State Assembly condemning Nupur Sharma but not saying a word on Tasleem Ahmed Rehmani who first provoked Nupur by what he said! Not just this when we see Hindu Sadhus being burnt and beaten to death then no one condemns so strongly! This dubious double standard smacks of sheer hypocrisy which cannot be justified under any circumstances!

This alone explains why even Dutch lawmaker Geert Wilders said on Twitter that, “Don’t listen to the hypocrites. Islamic nations have no democracy, no rule of law, no freedom. They persecute minorities and disrespect human rights like no one else. They should be criticized whose ideology is offensive and abusive, not the heroic Nupur Sharma! Democracies like India and Netherlands have a rule of law. Courts will decide if one oversteps the mark and not mobs who threatens to kill anybody.”

Why these very Islamic countries who are reacting now so angrily on Nupur Sharma and protesting to Indian embassies maintain a shocking and deafening silence to Chinese ghastly assault on Islam by confiscating Qurans, not allowing Muslims to pray even in mosques unlike India where they pray even on roads and mercilessly persecute Uighur Muslims in Xinjiang province? Why these Islamic countries don’t utter a word when ancient Hindu temples are burnt down in Pakistan and Bangladesh and idols of Hindu Gods and Goddesses are also similarly mercilessly broken to pieces? Similarly, why when terrorists trained in Pakistan mercilessly kill Indians which includes even Muslims like a Sub-Inspector Farooq Ahmad Mir in Pulwama do we see no such protest by anyone?

This alone explains why my best friend Sageer Khan said way back in 1993 that, “Muslims enjoy maximum liberty in India all over the world. Muslims must accept that Hindus quietly accepted monogamy in 1955 even though earlier both Hindu men and women could marry as many as they wanted but no one dare abolish polygamy among Muslims because Muslims don’t accept quietly unlike Hindus who accept everything so quietly. If Ram temple and Shiv temple will not be built in Ayodhya or Kashi will it be built in Mecca or Medina? Not a single mosque should ever be built in Ayodhya, Kashi and Mathura! Hindus are so tolerant that inspite of nation getting partitioned on basis of religion still Hindus didn’t favour a theocratic state unlike Pakistan which became a theocratic and yet itself got partitioned in 1971 whereas India is still united and will always stay united because Hindus are so tolerant that they never prefer to fight! So all credit definitely goes to Hindus that India is still a secular country!”

It must be underscored that those who resort to stone pelting or burning of trains or burning of buses or any other kind of violence in a democratic country like India must be punished with the strictest punishment and should never be allowed to go scot free. We saw how in Kanpur among other cities, many protesters who were protesting against the statement of Nupur Sharma pelted stones and damaged vehicles and ransacked shops etc! Violence by anyone whether he/she is a Hindu or Muslim or Sikh or anyone else cannot be justified under any circumstances! If anyone tries to justify this then it will definitely become a most dangerous trend which will be justified on one pretext or the other which can never be in the long term national interest and cannot be ever justified under any circumstances!

It is really most shocking to see that in a democratic country like India which believes in pluralism and tolerance and harmony, we see just one argument in a TV channel assuming such gargantuan proportions which cannot be justified. It is so shocking to see that some leaders and fundamentalists organizations are openly calling for action to be taken against Nupur Sharma and hanging her publicly which I find most reprehensible because we are a democratic country and not some hard core Islamic country like Afghanistan! This has only compelled many Hindu organizations like VHP, Bajrang Dal among others to come out openly in full support of Nupur Sharma and they have a legitimate point too that so much of brouhaha is being made over a debate discussion in a news channel in which the other panelist Tasleem Ahmed Rehmani also was seen making some sarcastic remarks about Lord Shiv which provoked Nupur Sharma also to reply in anger as was pointed out even by a very eminent Maulana of Pakistan as stated above.

All said and done, it is high time and now Centre must definitely step forward and take the much needed bold initiative in this regard of stipulating the strict punishment of at least 14 years if not 20 years in jail to all those who dare to ever announce bounty rewards to kill someone or maim someone or cut the throat of someone which is nowadays becoming a fashion in India and yet such rogues are rarely punished. Why should their property also not be seized? Why should they be let off so gently after just 2 or 3 years only as we see under our present laws?

Why should such criminals who announce bounty on head of someone get bail so easily? Why should such offence not be non-bailable and cognizable? Why should such criminals not be promptly arrested and put behind bars which is their right place also? It certainly merits no reiteration that this burning issue must be addressed by Centre now itself without any more further delay by promptly amending the law in this regard as it brooks no more delay now! It certainly merits no reiteration that this burning issue must be addressed by Centre now without any more further delay as it brooks no more delay now!

Sanjeev Sirohi, Advocate.

The million dollar question is: Why are we seeing growing intolerance in India? Why those who give death threats are very rarely punished and why at least for 14 years they are not thrown behind bars who issue death threats for any reason whatsoever? Why is the Centre not making law on this at the earliest? The Centre must act on this also so that no one ever dares to ever issue such bounty awards and death threats. If the Centre fails to act on this at the earliest, then that day is not far when we will openly see beheading and what not which will only signal the end of democracy in India!

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Policy & Politics

Take everyone into confidence before taking any decision

Damaging government property while protesting against the Agnipath scheme should not be tolerated under any circumstances; clarity is necessary before announcing any scheme.

Vijay Darda

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There is a storm-like situation in several parts of the country following violent protests against the proposed Agnipath scheme which promises to recruit youths between 17.5 years and 21 years of age in the Indian Army for a period of four years. The angry protestors have set several trains afire and damaged a large amount of government property. The storm isn’t over yet, though the age limit has been increased to 23 years now.

However, I wonder why such violent protests are taking place? Sadly, it is being opposed by those who have the passion to join the Army! How can such violent protests be expected from the youths who dream to serve the country through Army? The Army is known for its discipline and the whole nation looks up to it with respect. Whenever I meet any soldier during my journey, I bow down in respect for his service to the country, his dedication and his passion. There can be no scope for indiscipline in such an organisation.

The youths who consider Army as a medium of employment are fundamentally wrong. India’s first Chief of Defence Staff General Bipin Rawat had said very clearly that the Army is not an avenue for employment. I am quoting him here in a nutshell: “It has often been seen that people consider Indian Army as a means of employment. I would like to tell you that please remove this misconception from your mind. If you want to join the Indian Army, your spirit should be high. You should have the ability to find the way where there is no way out. Often many young people come to me saying, ‘Sir, I want a job in the Indian Army.’ I tell them clearly that Indian Army is not a means of employment. If you want to get a job, go to railways or somewhere else. There are many other ways of earning a livelihood like starting your own small business.”

I completely agree with General Bipin Rawat that the Army is a medium of service to the country. That’s why the Army gets so much respect. Many accidents happen in the country and people are killed but none of them get the respect that a martyred soldier gets. His body is brought by aircraft. The whole village comes together to pay the last respect and the Armed Forces offer ceremonial salute.

Everyone has the right to protest in a democracy, but who has given this right to resort to arson and violence. How can the protestors beat up the passengers on board the trains, burn buses and pelt stones! After all, with whose money was the train built? These services come into existence from the tax we pay to the government. Therefore, government property means the property of the common man whose money and skill have built it. History bears eloquent testimony to the fact that nothing can be achieved using violence. We are citizens of the country where Lord Mahavir and Gautam Buddha were born. They gave the message of peace and non-violence. Mahatma Gandhi exhibited to the world the power of non-violence. The twin weapons of non-violence and peaceful protest forced the mighty British Empire, over which the Sun never set, to leave India. The Mahatma not only liberated India by following the path of non-violence, but also helped liberate more than 40 countries in Africa and elsewhere. Barack Obama had said in the Central Hall of the Indian Parliament that if Gandhiji had not taken birth, he might never have become the President of America. Considering the Mahatma’s legacy of peace and non-violence, is there any need for using violence at all?

Only time will tell us how relevant the Agnipath scheme will prove to be or how the Army will benefit from Agniveers. Some experts are calling it a revolutionary plan. In Israel, Singapore and Britain, after the 12th standard, every boy or girl has to serve in the army for some time. In Britain, even the son of the King or Queen has to spend the prescribed time in the army. However, some experts are expressing apprehensions over the Agnipath scheme too. But one thing is quite clear that before announcing the scheme, the government should have prepared the ground well. A public opinion should have been created. Some people may ask: when the maximum age for this scheme was 21 years, why was it increased to 23 years after the protests? Why did the government offer an insurance cover of Rs 1 crore and all facilities like regular servicemen? In fact, lack of preparation creates problems. The scheme to make filing of Income Tax returns faceless is an example. Many cases are still unresolved and the controversy continues. It is natural that if people are convinced that any scheme is beneficial, there will be no opposition. Our Prime Minister Narendra Modi, home minister Amit Shah or defence minister Rajnath Singh must have taken such a major decision only with some positive thinking. Therefore, it is the responsibility of the officials concerned to properly convey to the people the government’s plan for the future. However, officials make mistakes and a wrong message is sent about the people’s representatives. I would also like to say that whenever the government takes such important decisions, it should also take the Opposition into confidence. In fact, this has been the convention in our country.

The most important thing is that no political party should either spark a violent protest about any scheme or take advantage of the fluid situation by fuelling unrest. I am aware that unemployment is the most pressing problem in the country and it is very easy to instigate or mislead the youths on this issue. Efforts should be made to generate so many means of livelihood that the youths do not see any government scheme as a loss of opportunity for themselves.

The government alone cannot provide jobs. Only industry can do this work with more efficiency. If the government promotes industries, the scenario can change. The Prime Minister has announced to provide 10 lakh job opportunities in the next one and a half years. If the officials concerned really succeed in realising this plan, it will instill a great amount of confidence among the youths. The officials though did not fulfil several earlier announcements, let’s hope for the better this time!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Everyone has the right to protest in a democracy, but who has given this right to resort to arson and violence? How can the protesters beat up passengers on board the trains, burn buses and pelt stones! After all, with whose money was the train built? These services come into existence from the tax we pay to the government. Therefore, government property means the property of the common man whose money and skill have built it. History bears eloquent testimony to the fact that nothing can be achieved using violence. We are citizens of the country where Lord Mahavir and Gautam Buddha were born. They gave the message of peace and non-violence. Mahatma Gandhi exhibited to the world the power of non-violence.

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Policy & Politics

No more a civil servant

Anil Swarup

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I superannuated as a civil servant on 30 June 2018. I had enjoyed every moment of my life as a Civil Servant (I wrote in Not Just a Civil Servant that if I were to be reborn, I would like to be an IAS officer) but what happened thereafter was even better. I am now a master of my own time. I was outspoken while in service. However, the Code of Conduct prevented me from expressing my views in public. Many outsiders who don’t have any idea about the civil services or the Code of Conduct wonder why some civil servants start expressing their views after retirement. They are also perhaps unaware that a number of civil servants do express their opinions freely and frankly on files and during discussions though these don’t get to be known in public for good reason. Thankfully, there are no such restrictions now. I love this freedom. Even during my stint as a civil servant, I did not encourage hangers on, but now, in any case, only true friends are around to engage with. Fortunately, there is not much of a change in the number. However, the biggest revelation was discovering my true worth, financially and otherwise. I was soon to discover that the government was shortchanging me big time.

The best part of post-retirement life is spending time with my family. Due to my professional engagements, my family members often felt ignored, though they never expressed it. I had a genuine desire to make up. However, as both my daughter, Aditi, and son, Apurv, had grown up and settled into their respective professions, I could not still spend as much time with them as I would have wanted to. It was a pity that when they wanted my time from me, I did not have it, and now, when I had all the time, they perhaps did not need me as much. There was a huge lesson here. However, I am making it up now with my twin granddaughters, Dviti and Srisha and my grandson, Avyay. They are bundles of joy as I see them grow. I love behaving just like them. I am a kid all over again. I did for them what I had never done for my own children. Sang them lullabies to put them to sleep. This is indeed the best time of my life. I would have probably missed out even on this one had I taken up a government assignment post-retirement.

I was clear in my mind that I would not apply for any official assignment because I considered it below the dignity of a Secretary, Government of India to ‘apply’. However, I did agree to work in the state of Jharkhand at the behest of the Chief Minister of the State, but it lasted for only a few months as there was a lot to be done in Delhi. Some Ministries kept approaching me for a few tasks, and I did not mind assisting them so long as it was purely honorary in nature and did not impact the newly-acquired freedom that I was enjoying. I accordingly chaired the Committee to reform the National Cadet Corps (NCC) at the behest of the Ministry of Defence. I also agreed to be on the Committee for Corporate Social Responsibility (CSR) constituted by the Ministry of Corporate Affairs. I even headed a committee constituted by the same Ministry to provide suggestions for the portal set up for CSR. The Ministry of Minority Affairs sought my guidance on mainstreaming children studying in minority schools. I duly provide that. Such assignments keep coming and I don’t mind contributing whatever little I can. Will continue to do so but without any obligation from the government.

My initial pre-occupation post-retirement was centred around the publication of my first book, Not Just a Civil Servant. I had been working on the book for quite some time. It could not have been published while I was in service because I was critical of certain aspects of governance. The book was launched on February 23, 2019, within a year of my superannuation. It became an instant bestseller. I did not have to spend a single penny promoting the book in various parts of the country. It was gratifying to see that organisations like the Indian Chamber of Commerce, Federation of Indian Exporters Organization (FIEO), organised events where I had to go and speak. Immediately after that, I started working on my second book, Ethical Dilemmas of a Civil Servant. When it was time to launch the book in 2020, COVID hit the country. Hence, a virtual launch was organised on July 5 2020. This book, too, was received very well by the readers.

I thoroughly enjoyed all the reading and writing that was not merely restricted to books. Soon I was penning down regular columns for three publications: The Daily Guardian, CNBC TV18 and The Millennium Post. The articles in ‘The Guardian’ centred around officers who made it happen despite an adverse set of circumstances. Some of these articles appear in the third segment of my recently released book, “No More a Civil Servant”. The Millennium Post articles highlighted the incredible work done by Civil Society Organisations. Some such articles find a place in the second segment of this book. Large part of this book comprises articles that were published in The Daily Guardian and The Millenium Post. Articles in CNBC TV18 were around current topics. These were apart from the columns that I wrote for other publications intermittently.

My primary pre-occupation post-retirement, however, was with Nexus of Good. To begin with, a Twitter handle @nexusofgood was created wherein positive stories were tweeted. This was followed by organising seminars where good and replicable work could be road-showed. A web portal, www.nexusofgood.org.in was set up and evolved over a while to house hundreds of stories. Soon, Nexus of Good Foundation was brought into existence by setting up a Trust that manages the entire movement. Due to the COVID pandemic, physical seminars could not be held, so webinars substituted them. Thousands of people got associated with this movement. A poet wrote: “Bliss was it in that dawn to be alive,

But to be young was very heaven!”

I am not young now, but I still feel the excitement of youth at the promise of the future! Superannuated life has been highly fulfilling.

(With excerpts from “No More a Civil Servant”)

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

Bail: Procedural fight for restoration of liberty

Sections 440-448 state the conditions of bail bonds. Section 440(1) of the Code of Criminal Procedure states that the amount of the bail bond shall be fixed with due regard to the circumstances of the case and shall not be unreasonable. However, if the amount so levied is heavy, then an application under Section 440(2) has to be filed before the High Court or the Sessions Court for reduction of the levied amount. Now, even after the proper legal representation, the application process may take two to three days without the guarantee of an affirmative order.

Shivanshu Goswami Animesh Upadhyay

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When a person is arrested, his liberty is curtailed by the State as a form of punishment in accordance with law; for restoration of liberty, the said person has to apply for bail in the court of law. Pendency of bail applications has been a major issue from a long time. The issue of pendency of bail applications before various High Courts for example – the cognizance of the pendency of bail applications before the Allahabad High Court was raised in many cases by the Supreme Court. Supreme Court in the judgment of Saudan Singh vs. State of UP has directed to release the persons under prison for 10 or more than 10 years to be enlarged on bail. Therefore, now various High Courts in the light of Saudan Singh v. State of UP are releasing the prisoners who undergone the imprisonment for 10 years.

However, even when the person is released there are many procedural delays which he becomes victim of and hence, there is rampant increase in the number of cases where even after the person is released on bail, he has to wait owing to the procedural delays. In this article the authors will elaborate on the several factors that lead to the delay in release of the person enlarged on the bail by the court.

CAUSES OF DELAY

There is no data on record to show the number of prisoners whose release from jail, after the acceptance of bail application, is delayed. However, there are many noteworthy instances which made it evident that in India it’s the procedure which makes a person suffer the most. Last year, Aryan Khan, son of actor Shahrukh Khan was arrested and got bail however, he could not be released on bail owing to certain regulations in the Mumbai Central Prison at Arthur Road, therefore, he spent one more night in prison. Now, this issue was highlighted the most at that time since, the victim of this delayed process was celebrity’s son. Although there is absence of data on how many people face the same problem yet the authors being the practicing advocates encounter these issues on a regular basis. The other day we had to file the bail bonds of a person who got bail in criminal appeal pending before the Allahabad High Court, Lucknow Bench now the person was convicted by the sessions court in 2009 and the particular division which convicted the appellant was demolished due to some structural changes in 2017 now in the absence of notice that where the matters of that particular court were transferred we were unable to find the in charge court before which the bail bonds were to be filed this whole procedure took one day. This incident is a clear example that there is a dire need to bring reforms in criminal justice system. This incident might happen once in hundred cases.

Sections 440-448 state about the conditions of bail bonds. Section 440(1) of the Code of Criminal Procedure states that the amount of the bail bond shall be fixed with due regard to the circumstances of the case and shall not be unreasonable. However, if the amount so levied is heavy then an application under section 440(2) has to be filed before the High Court or the Sessions Court for reduction of the levied amount. Now even after the proper legal representation the application process may take two to three days without the guarantee of the affirmative order.

However, there are other causes as well, when a bail order is passed the counsel of the bail applicant has to first apply for the certified copy of the bail order passed by the court of law. Sometimes, it also happens that the bail order does not get uploaded on time which also causes the unnecessary delay in the release of the person. Then the person has to apply for the certified copy of the bail order, now this may take one day. After this the bail order is verified and if no amount is fixed for filing the bail bonds, then the counsel has to draft application for amount fixing before the court concerned along with a short-affidavit then the concerned Judge fixes the amount and then the particulars of the sureties are sent for verification by the court.

The court concerned before which the bail bonds are filed sometimes fixes the hefty amount upon the person enlarged on bail because of which it sometimes becomes difficult for the person so released to arrange the sureties. The problem does not end only here, the courts while granting bail, impose a condition of furnishing a bail bond. The prisoner through a local surety, relative or a friend, has to arrange the amount either in the form of property documents, RC of vehicle or through a fixed deposit receipt. This is a challenging process for prisoners who belong to indigent backgrounds or are migrants from different states, having no local contact or money in the state where they are lodged, not only this but the other challenge arises when the bail bonds are sent for verification to the tehsil or police station where the sureties reside this process sometimes takes one month depending on the locality of the residence of the sureties arranged by the person released on bail.

CONCLUDING REMARKS

Last year the issue of delayed communication of the bail orders to the jail authorities was addressed by Supreme Court bench comprising of L. Nageswara Rao, J.; B.R. Gavai, J.; S. Ravindra Bhat, J. “In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials” Mr. Sidharth Luthra who was Amicus Curiae in the matter told the bench that “When bail orders are passed, it becomes a peculiar situation because the orders don’t reach the jail, the jail authorities don’t know if the person is granted bail or not. The intimation only goes when the bail order goes to the court and then the court looks at the personal bond and based on that the person is released…The man is in custody when the lawyer is arguing in court. Also, it may be an amicus or the legal aid lawyer arguing. Families often do not reach the court. This frustrates the rights of a lot of people. I understand the problem in incorporating it as a rule but it may also come as a direction in the final order. It may come as a part of your lordships’ order because once the order is passed, it only needs a communication from the court concerned to the jail authorities”

In the light of the facts stated above the authors are of the view that a strict timeline should be set by courts for the address verification, because in this whole process sometimes we witness that the court officials or the police officers get the opportunity to get the unjust enrichment from the prisoners’ family for expeditiously releasing the person from jail. Although the bail bonds are the written promises between a criminal defendant to appear for trial or pay a sum of money set by the court, but when a person is arrested, he/she loses the liberty and for restoration of that liberty the person gets enlarged on bail by the court of law. Therefore, it is of utmost importance that the liberty gets restored expeditiously by releasing the person as soon as possible by curtailing the unnecessary procedural formalities or setting a strict timeline for the whole procedure.

There is no data on record to show the number of prisoners whose release from jail, after the acceptance of bail application, is delayed. However, there are many noteworthy instances which made it evident that in India, it’s the procedure which makes a person suffer the most. Last year, Aryan Khan, son of actor Shahrukh Khan, was arrested and got bail; however, he could not be released on bail owing to certain regulations in the Mumbai Central Prison at Arthur Road. Therefore, he spent one more night in prison. Now, this issue was highlighted the most at that time since the victim of this delayed process was a celebrity’s son. Although there is absence of data on how many people face the same problem, the authors being practicing advocates, encounter these issues on a regular basis. The other day, we had to file the bail bonds of a person who got bail in criminal appeal pending before the Allahabad High Court, Lucknow Bench. The person was convicted by the sessions court in 2009 and the particular division which convicted the appellant was demolished due to some structural changes in 2017. Now in the absence of notice that where the matters of that particular court were transferred, we were unable to find the in-charge court before which the bail bonds were to be filed; this whole procedure took one day. This incident is a clear example that there is a dire need to bring reforms in the criminal justice system. This incident might happen once in hundred cases.

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