Social Issues – Page 3

Is law the problem or the solution?

In classic terms and times Bodin said “Sovereignty is supreme power over citizens and subjects unrestrained by laws”. Only the sovereign can create and execute laws. This was a classic notion of state from Luther to Bodin to Hobbs and Austin. But in current literature and reality, sovereignty seems a failed attempt of independence hijacked by the globalization project. While studying law, we often do not bother to understand sovereignty nor question the sovereignty of law shadowed by the Black Law. We don’t question that what happens to the legal thinking and theories when sovereignty is diminished?

As the corporate project continues to dominate our lives, our dependency on the law has increased drastically. While, we seek legal protections in everything from our employment contract to the home rental – the law enjoys its monopoly over commodified forms of human beings. It seems there is a competition going on between sophisticated forms of crime and changing laws, or maybe the former is a product of the later. Never before we got legal protection for virtual cyber interactions, and never before we had cyber crimes at its peak. While the law and crime continue their marathon, we need to set back and question our assumptions of the law- especially the legal experts and lawyers who have a larger stake in the corporate project of the law.

Commodification of values and beliefs is the first attempt of any legal intervention however, worse is our expectation of justice through litigation. While litigation might be needed for a later stage – we need to overcome the increase ratio of crime in our society which is the product of legal plunder through social means. If any criminal is able to rent out the law and hire a qualified lawyer, he buys justice eventually through the blind woman statue that symbolizes justice in the courts.

If we ask any ordinary person on the streets about the governance issues, the first issue would be lack of law enforcement. We have misinterpreted law enforcement as more laws rather than justice and fairness. More laws, more courts, more lawyers and less and less justice because the needy isn’t able to move beyond the layers of laws and lawyers attached to the notion of justice. By now – we have almost forgotten how would justice look like- a naked justice.

While court-based litigation might be one way of accessing justice, and eliminating an ad hoc crime, we need to create an enabling environment, promoting culture of justice and fairness. Our education system needs to revive such values, and beliefs but at the same time our families and societies have a greater responsibility to educate ourselves and our children on the values for humanity. Values of being fair in transactions and relationships to each other without the fear of being punished. Punishment is only an outcomes but prevention is a process of transforming societies to make them a better place to live.

Public institutions are increasingly becoming sites of harassment and exploitation and the remedy is often said to be the in Civil Servants Policies as a punishment for the perpetrator and most of the time the victim is never able to file a complaint because the perpetrators usually happen to be the boss or a senior officer. We need to create preventive mechanisms and awareness raising on the prevention mechanisms so that those mechanisms can be trusted. Today even our language is production and reproduction of violence and domination, victimizing the victim and perpetuating the perpetrators.

Legal Mirror Politics Social Issues

Are we prepared to deal with another Bhopal Gas Tragedy? With Civil Nuclear Liabilities Bill its hard to imagine

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The victims of the Bhopal Gas Tragedy, one of the world’s worst disasters are still facing the consequences of the unfortunate incident. The legal framework in 1985 was inadequate to conduct a fair trial of Union Carbide and its CEO Warren Anderson. The U.C.C paid a settlement amount of 470 million dollars to the victims, considering it as its moral obligation. No criminal or civil proceedings were initiated against the notorious Multinational Union Carbide. The decision of Bhopal Gas Tragedy still considered a black chapter in the judicial history of India.

Instead of rectifying the flaws that were observed in the Bhopal Disaster Case, the United Progressive Alliance (U.P.A) government was planning to put forth the Civil Nuclear Liability Bill. However due to the mass opposition from all the sectors of the society, the government had to eventually withdraw its scheduled introduction in the Parliament.

The Nuclear Liability bill was highly criticized on its provisions related to compensation including capping of nuclear operator liability, fixing maximum liability amount and the absence of direct liability of supplier. It is also contended that the maximum liability mentioned in the bill is the minimum liability considered in United States.

The government is also planning to be a part of the Convention on Supplementary Compensation (CSC), which is funded by the International Atomic Energy Association. The convention which is yet to be operational is so far ratified by only four countries amongst which U.S.A is the only country with most of the nuclear installations. The parties to the convention contribute to an international fund which is then utilized to provide additional compensation beyond liability to the member states.

The bill clearly states that a three-tier compensation scheme would be instituted on occurrence of any nuclear accident. The maximum liability enumerated is 300 million Special Drawing Rights (i.e. Rs 2,100 crore). However Russia has fixed no maximum liability in such cases.

Unlike in countries like Germany and Finland, the bill fixes the liability of the operator to mere Rs 500 crores or 109 million dollars. When compared to the inadequate compensation granted in Bhopal gas tragedy (470 million dollars) the amount is found extremely low. It is also argued that capping liability is contrary to the judgment passed in the Oleum Gas Leak case. The Supreme Court in the judgment stated that the liability in such cases must be strict and absolute.

Further, the Clause 17-a of the bill has positioned an indirect and remote liability on the supplier. The right to recourse is only provided in cases of gross negligence or wilful act on the part of the supplier. However it does not include supply of defective articles. Any further appeal in a civil court is disallowed, if it is decided by Claims Commissioner or a Nuclear Damage Claims Commission, which deal with potential nuclear damage claims under the Clause 35.

It is unfortunate that the provisions of the bill are detrimental to the interests of its own citizens. The bill not only infringes upon the fundamental rights of the individuals by debarring their right to appeal and limiting right to recourse. It also enforces a heavy burden on the tax payers of the country. Relying on a convention which is yet to be operational, for supplementary compensation is highly flawed policy decision by the government. The consequences of a nuclear accident would be far more adverse than that of Bhopal Gas Tragedy. The government must reconsider its proposals for the betterment of the society at large.

Politics Social Issues World

Dispute Resolution Mechanisms in Afghanistan:

wazhmafrogh 0 Comments human rights afghanistan, insurgency in afghanistan, jirgars, judicial reform in afghanistan, judicial system in afghanistan, land disputes in afghanistan, National Policy on Traditional Dispute Resolution Mechanisms, non state actor laws, rule of law in afghanistan, shura law, taliban commander, taliban leaders, Traditional Dispute Resolution mechanisms, wardak province afghanistan, woloswal afghanistan

An Insight Story

“We had a land problem with another villager and it was the 5th year that due to the dispute we weren’t able to work on the field, this dispute had taken the life of my elder niece as well. We spoke to woloswal (district attorney) many times and he said that take the case to Kabul – and sometimes said talk amongst yourselves and reach to some conclusions, we are busy with the ongoing insurgency don’t have the means to settle your disputes.

One day he sent someone maybe a judge to find out about our dispute and he also asked for so many papers and we said we don’t have any papers for this land, its our ancestors lands and we have lived here our whole lives. He said you couldn’t get use this land because you don’t have any documents. No one has documents for their lands in our village, its our lands from forefathers, we don’t need papers to prove this for us.

This year my brothers and I decided that we will seek the assistance of a Talib commander – so we went towards Ghazni and late in the evening located a well known commander near Qarabagh district and asked him to come and help us. He was such a generous man. He came and listened to our situation and then called the villager with whom we had the dispute and put the gun on his head and asked him to say the truth.

The man scared for his life, said that this piece of land doesn’t belong to him at all but he wanted to take advantage of having his land just next to us and especially that the canal comes directly to our fields. He even called in the witness who had witnessed that his father had sold that piece of land to my grand father many years ago. He asked for forgiveness and we all forgave him and the issue was closed. Since then we started planting back in our fields. The Talib commander solved a 5 yearlong dispute in one day. This is what we need”.

A family from a village in Jalrez, Wardak Province. ( December 2009)

Conflict

Disputes, such as the one described above, are typical in Afghanistan, but the mode of resolving the conflict is unique to Afghanistan. If one goes back historically to Afghanistan’s traditional roots, civil and even criminal matters have been resolved through community based structures, called Jirga’s and Shura’s. This has much to do with the absence of a central responsive government more than any other reasons. The past 30 years or more conflict has paralyzed the formal mechanisms of dispute resolution in Afghanistan. In any case, they were fragile and ineffective structures and were not even fair to the people of Afghanistan.

Judicial Reform Projects Afghanistan

Since 2001, millions of dollars were poured into various judicial reform projects. Although access to formal structures have improved a bit, still the system is not responsive nor effective, therefore communities especially in the rural areas prefer their original, quick and effective dispute resolution mechanisms.

Current Scenario

However, while analyzing the long-standing conflict of Afghanistan, one can see that the power dynamics of the actors in the communities has changed so that warlords hold the power. This power dynamic fueled by community power brokers enjoying a feudal culture, has contaminated these traditional structures with other features of conflict, from drugs to Taliban control. Local Jirga’s and Shuras are mostly dominated and driven by political factions, warlords, guns and money. Therefore, these structures cannot be called people’s structures for resolving disputes, but most of these, are platform for exercise of non-state actors monopoly over rural communities. Although there are a number of studies carried out in various provinces in Afghanistan to prove the effectiveness of these structures, there credibility as people’s consented decision making bodies still remain a valid question.

Understandably, after the national elections and establishment of an elected central government, such parallel structures need to be either abolished or merged into the formal judiciary system of the country. However, unless the insurgency and ongoing armed militancy is stopped it is hard to imagine that rural communities will get access to government judicial structures. In the cases that they do get to court it is unclear whether they will get proper resolutions from these government judicial systems. Since those systems are corrupt, ineffective and time consuming nature.

The government of Afghanistan attempted establishing connecting frameworks between the Traditional Dispute Resolution mechanisms and the formal judicial system since last year, calling for a National Policy on Traditional Dispute Resolution Mechanisms. But the fate of this policy is now unclear since there is a new Minister of Justice who is not in favour of bolstering the informal justice system.

In the past few years, debates around supporting and strengthening the Traditional Dispute Resolution mechanisms have dominated the rhetoric for justice in Afghanistan, especially by the international experts of the subject. Some of them disqualify any efforts to promote formal judiciary while others are advocating for linking both systems and increase the formal system’s efficiency. This discussion isn’t only about solving national or communal disputes but is about legitimacy of an Afghan state; promoting any parallel structures mean creating other state regimes eventually.

To solve the problem, the discussions on Traditional Dispute Resolution Mechanisms should not be categorized as a ‘rights issue’ only but as a structural challenge. While the biggest challenge of these structures that violate basic human rights of every individual remains much of concern. There have been a lot of studies that portray how women and children are sacrificed and oppressed by these structures. Just adding women into the Jirga’s system or providing them with trainings on human rights issues cannot alter such oppression.

Any rapid generalized analysis of Traditional Dispute Resolution mechanisms will reveal the fragility and inconsistence of these structures as well. The members are not the same every time in any village, nor they are trained in any of legal or investigative skills, or hardly a literate member can be found in the Jirga’s that can read and write. There are no set rules but decisions are taken contextual however, they do refer to previous decisions from the same place or other places if that meets the conditions of the context. The decision is usually made by the most powerful individual present in the Jirga and easily accepted by the rest and the victim at times the accused person has no voice in most of the instances but is considered to be embarrassed and silent in order to be forgiven.

What must be done?

Afghanistan needs institutions before any rights are promised to its citizens. Having a progressive constitution does not resolve community disputes and issues when even the parliament isn’t able to interpret the constitution objectively. Rule of law requires enforcing mechanisms that people can trust and only then state judiciary can be trusted by the local population. If the formal judiciary system is responsive enough, no other culture can prevent people from seeking justice, because it is the victim can understand the value and definition of justice.

The efforts should also be directed towards integrating the Traditional mechanisms into the state judiciary system with the paradigm of state being constitutionally precedent on the customary laws. However, no matter how ineffective the state judiciary, it should not be equally juxtaposed with the Traditional Dispute Resolution mechanisms, as the latter will easily replace the former.

Legal Mirror Social Issues

Morality of Legal System in India – a Learning from My Recent Visit to BITS Pilani

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I recently met Hayagriv Sridharan and Kushal Agarwal, two students from BITS, Pilani. They had presented a paper on “Morality of Profits”. One of them said “Do unto others what you would do unto yourself!” while making the presentation. This statement had a long lasting impression on me.

Bentham said that law is the greatest happiness to the greatest number. Thus the utilitarians believed that it is the morals of the society which determine the laws that govern an individual. Laws related to marital rape, abortion, incest and capital punishment often reflect the general will of the society.

Morals are usually regarded as a contextual and subjective notion that depends on the values of respective individuals. However, I think morals are the general notions that prevail in the society. Prohibiting Sati was an immoral act in 1830’s but proscribing sati in 2010 would be absurd and immoral now. Morality depends on the values shared by the society at large. Most of the morals like honesty, fidelity and helpfulness are propagated by all civilizations.

But are we losing these morals in the present scenario? Are we trading off success and morals? In many cases we are. A few months ago I met a lawyer who had successfully defended a case of a rapist who had raped 12 girls (some of them being minors). When I had discussed his approach with a leading doctor (who specialized in criminal investigation), he said morality has no relation with profession. It is a job and it has t be done that way. If that lawyer or doctor would have ever thought that this unfortunate incident could have happened to even to their families probably they would have not supported the perpetrator. Unfortunately these people support their claims by quoting Gita “Karam Kar Par Phal Ki Echa Mat Kar” (do your deeds without being worried about the consequences), but they forget that their deeds are leading to dangerous consequences for others.

I’m glad that if our previous generation feels that morals and success are alien to each other, there are a group of individuals who are determined to prove the contrary.

The legal system is definitely deprived of morals to a large extend, the victim is punished and the perpetrator is protected. Recently a gang rape victim was charged of perjury in the district court of Bhopal. She was threatened by the rapists to change her testimony, when she changed her statements in court. The court started proceedings against her. After the completion of the case probably she would undergo imprisonment for years.

The police, lawyers, judges and legislators have lost their values and compassion towards the victims. The legal system encounters hundreds of victims everyday, but the victim visits the courts once in a hundred days. He is not aware of the obligations of the court. Thus he is manipulated by the system at every stage. Most of times the police lodges the F.I.R on false or inadequate grounds. A substantial harm is done to the credibility of the case in the cross examination that is conducted in the district courts. The witnesses are bribed or threatened and most of them turn hostile. It is observed that the judges are often apathetic towards the rape victims.

Morality is a trait that comes from within and not from an external agency. Every individual is a responsible unit of society. Even an ardent reader of Gita must take into account the consequences of his actions on others. “Always perform your duty efficiently and without any selfish attachment to the results, because by doing work without attachment one attains Supreme.”- Gita

Legal Mirror Social Issues

Do you think you can Legalize your Second Marriage by Islam Conversion? Think Again!

meghna 3 Comments bigamy laws india, Christian Marriage Act 1872, Code of Criminal Procedure 1973, Hindu Marriage Act 1955, hindu marriage act india, IPC Sections 494-495, Lily Thomas v. UOI, muslim country bigamy laws, Muslim Marriages Act, Parsi Marriage and Divorce Act 1936, Sarla Mudgal v. UOI, section 494, Special Marriage Act 1954

Overview on Bigamy Laws and its Manipulations in India

Monogamy is an integral part of Christian Faith. In 1860 when Indian Penal Code was framed, Bigamy was declared an offence under Sections 494 and 495 is punishable with fine and imprisonment of seven years or both. Both man and woman can be punished under these sections.The Sections apply to all communities in the country apart from Muslim males. The tribal man and woman are also exempted from the same if their customary laws do not consider the plural marriages void.

The Hindu Marriage Act 1955 prescribes strict monogamy for Hindus. But the act is deficient in certain respects. The Muslim females can be punished for the said offence. Solmnization of marriage (performance of specific ceremonies) is given a lot of importance, which is contrary to the interests of the victim and helps the offender.

Existence of an existing valid marriage is an essential condition to prove the said offence. The accused must enter into a second marriage which must be valid. The subsequent marriage would be declared void under the section 17 of the Hindu Marriage Act.

Conversion to islam is often used as a shield to protect the conviction under section 494. Under the Muslim law an polygamy is allowed to a muslim male. He can thereby have four wives at a time. In Sarla Mudgal v. UOI , the Supreme Court held that if a marriage is solemnized under a particular personal law it cannot be dissolved by the application of another personal law. The parties have to be governed by the personal laws that governed them before the conversion took place. The courts must decide such cases on basis of equity, good conscience and justice.

In Lily Thomas v. UOI, the Supreme Court re-affirmed its decision. The court held that the the Sarla Mudgal Case did not violate the Article 20(1) and 25 of the Constitution. It does not hinder the right to freedom of conscience, religion or profession of an individual. Moreover the court said that conversion for purposes of commission of an offence of Bigamy has no sacred purpose and it only makes mockery of Islam.

Quran specifies that a Muslim male must treat all his wives equally. He should be able to maintain and satisfy them. If he is unable to do so he must remain a monogamist. Even the dissolution of Muslim Marriages Act,1939 treats unequal treatment between co-wives as a ground for divorce available to the aggrieved wife but no law can prosecute him for bigamy. In muslim countries like Pakistan, Bangladesh, Iraq, Syria, Jordan, Egypt, Yemen and Morocco bigamy has been subjected to administrative or judicial control while Tunisia and Turkey have legally banned bigamy.

“Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law”.

The Law Commission Report suggests:

1. In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriageis dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.

2. A similar provision be inserted at suitable places into the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act 1939.

3. The Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 – saying that this Section would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith – be deleted.

4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing marriage, by whatever law it is governed, becomes inter-religious due to change of religion by either party it will thenceforth be governed by the provisions of the Special Marriage Act including its anti-bigamy provisions.

5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code 1860 be made cognizable by necessary amendment in the Code of Criminal Procedure 1973.

Legal Mirror Social Issues

Wife Swapping : A Blow to Indian Marriages – An Overview on Adultery as Crime

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Sunita was married to Anant Sharma for ten years. She had two children from the blissful relationship. One day she discovered that her husband was involved with his colleague Sameera, who was fully aware of his marriage. Unfortunately the court can prosecute neither Anant nor Sameera for adultery according to the Indian Penal Code.

Section 497 of Indian Penal Code declares adultery as a crime. However to constitute the offence a man should have consensual intercourse with a married woman. Sexual intercourse which is a must take place, is often established by circumstantial evidences. Under the Section 497, only a man can be prosecuted and woman cannot be termed as a abettor. The entire burden of crime rests on the man alone, for seducing the woman and interfering in her marital life.

It is necessary that the woman should be married and sexual intercourse between a widow, prostitute or unmarried woman and a married man would not attract any punishment under the present section.

The consent of the husband is taken as a defence in the cases of adultery. If a husband consents or does nothing to oppose the adulterous behaviour of his wife. The same. Wife’s lover cannot be charged of adultery. If the argument of volenti non fit injuria (what is voluntary cannot injure) is taken as a defence in such cases, then wife swapping cannot be deemed as a crime in the country. In wife swapping couples exchange their spouses for sexual intercourse. In cities like Bangalore, Delhi, Jaipur, Mumbai, Chennai, Chandigarh etc practice of wife swapping is gaining momentum.

Even Though the Section clearly states that the sexual intercourse must be consented and must not amount to rape (Section 365). The consent of woman and not that of husband is important. If the husband consents but the wife does not the accused would be prosecuted for rape under the section 375 of IPC.

The provision treats women as chattels and property of their husbands. Where on one hand it recognizes that woman can transgress their marital boundaries on the other hand it imposes no punishment on their husbands for the same acts. If a man has extra-marital affairs with a unmarried woman, widow or prostitute, the wife has no recourse against her husband or the other woman. Only the husband has the right to charge his partner for adultery, no such right is granted to wife.

In Yusuf Abdul Aziz vs State, Constitutional validity of the provision was challenged but the Supreme Court held otherwise. The Supreme Court observed that woman was a victim and not the seducer in the crime. It further stated that the law allows the spouses to make up and gives them an opportunity to save their marriage.

Social deterrence is required to control offences such as adultery. Adultery is not only a crime against ones partner but its also effects the society at large. It shatters the beliefs and trust of one’s children, relatives and other acquaintances. It is a crime which can never be controlled solely by law. This deviant behaviour of adultery can be avoided by building better understanding between spouses. Morality and mutual trust comes from within and no external agency can impose it entirely. I believe that the victims must still be given some legal recourse in such cases. It would definitely deter such offences to some extend. The punishment (5 years) prescribed must be scaled down but provision of compensation to the victims must be added. The male spouses must maintain their wives in the same manner as before the institution of proceedings.

The law must impose uniform punishments on both the partners of crime. The irrational classification between man and woman, in limiting the class of offenders to men it violates Articles 14, 15 & 21 of the constitution. The same punishment must be imposed on married men and their accomplice. Since wife swapping is becoming a prevalent practice these days, both the legislature and the courts must define “consent of the husband” more vividly. If the law is amended and adultery by both husbands and wives is punished then the word “consent or connivance” must be abrogated. It should be done because sometimes the wives due to numerous reasons are unable to oppose the deviant behaviour of their husbands. In these circumstances the husband must not be granted the defence of “volenti non fit injuria”.

Legal Mirror Politics Social Issues

Another Flawed Law – Communal Violence Bill 2009: Harms the Victims, Protects the Perpetrators

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After the mass opposition by all spectrums of society over the Communal Violence Bill 2005, UPA government has re-introduced the bill with 59 amendments. Unfortunately it hardly makes any structural changes. It has been highly criticized on certain grounds. The bill treats communal violence as a law and order problem but fails to recognise its threat to the socio-economic basis of the society.

The definition of communal violence given under the bill is not comprehensive and includes any scheduled offence under Section 19. Instead of the word communal, ‘sectarian’ must be employed. The ‘Schedule’ only list outs a number of IPC Sections and few Sections of other Acts. The schedule is erroneous in its very nature. The Sections 6(3) and 8(2) of the Explosives Act, 1884 listed in the schedule do not exist at present. Section 6 of the Places of Worship (Special Provision) Act, 1991 and Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 does not define any offence. They only prescribe punishments for contravening the provisions of Section 3(2) and Sections 3 to 6(3) of their respective Acts.

Although the punishment for offences related to communal violence has been enhanced, offences are restricted to penal statutes only. It doesn’t include provisions related to sexual violence, social and economic boycott, segregation, discrimination and communal writing in textbooks. Moreover the fines enumerated in most of these acts are considerably low and even twice the amount may not serve the purpose. It must define these offences and punishments vividly.

Under the bill, the State can declare certain areas as communally disturbed areas. However Section 55 empowers the Central Government to give directions to the States to take immediate measures to curb communal violence. If such directions are not followed the Central Government may declare any area within the State as a ‘communally disturbed area’ by a notification. It may also deploy Armed forces on a request from State Government. But the bill is quiet on what would be done if the State Government does not request the Central Government to deploy the Armed forces or opposes such deployment in the State. No immediate relief is provided in these situations. There would be considerable lapse of time in the issuing of directions by the Central Government to the State which would affect damage control adversely.

Review committees and Special Investigation teams may be constituted by the states. The State governments have wide discretionary powers in these matters. The accountability of such committees has also not been laid down. It does contain provisions related to witness protection by providing punishment for threatening a witness and by concealing their identity.

The bill also states that Women police officers must be provided by state to record any information relating to the commission of a scheduled offence committed against women or children. However it is silent on sexual offences which form a major portion of communal offences. It also contains no provisions related to compulsory inclusion of at least two women members in the state, national and district council.

The Special courts may be established or abolished by the states in any communally disturbed area. The states have wide jurisdiction in this regard. It may prove detrimental to national interest as happened in Gujarat riots and Bhagalpur Case. To avoid such situations these courts must be monitored by National Human Rights Commission (NHRC). Their decision must be time bound and the public prosecutor to be appointed must not belong to the state in which communal violence has taken place.

It does provide compensation to the victims on basis of the nature of the offence, the motive, the economic status of the offender and the claimant but there is no uniform scale of compensation for death, injury, rape and destruction of individual and religious properties during communal riots. The state holds no responsibility or liability in cases of destruction of religious properties. There is no provision granting ex-gratia payments to the victims. The right of reparation must be clearly stated and must not be left on the discretion of state governments. Information must be provided at every stage of proceedings. Right to legal representation of their choice, counselling, rehabilitation etc must be included.

The District Magistrate and competent authority may take preventive measures. They can order to deposit, search, detain and seize of arms & ammunition in communally disturbed areas. They may even prohibit certain acts or even control the conduct of persons in such areas. Punishments may be imposed for loitering near prohibited areas. A person may also be punished for being in possession of arms without license, assisting offenders, giving financial aid for the commission of certain offence or even for threatening witnesses. Even public servants can be punished if they act in a mala fide manner. But the political leaders, administration and police officials neither have any mandatory nor are they accountable for their reckless actions.

The Public Officials must be debarred from their jobs if the offence is proved. If the Special Court observes that the D.M. and S.P. could have prevented such situation by taking an advance action, they should be held responsible. If media is found irresponsible or misreporting a fine must be imposed on the news agency. Public recognition must be given to people who help in the relief measures. The law must protect and not harm the interests of the public.

Social Issues

The Sadhu (Saint) who robbed me while I was Praying !!

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Babri Mazad and Gujarat riots are not the only incidents which establish a nexus between crime and religion.

Have you ever imagined that the Sadhu or saint you always looked up to, might being a criminal? Probably not ! but you are wrong on this, many of our religious protagonists have been caught by law for committing heinous crimes like rapes, child slaughter, murders and frauds. In November 2009 two sadhus Ramcharan Rathod and Balram Patel were arrested in Junagarh for kidnapping fourteen year old boy.

Recently police exposed a multimillion pound prostitution racket in south Delhi. The police suspects a Hindu Swami (Shiv Myra Dwivedi) used his temple to provide as many as 200 prostitutes. The prostitutes also included air hostesses and students. They solicited for clients in five star hotels. He claimed to have more than 100,000 followers including leading politicians. He was arrested by undercover officers. It is suspected that the accused had connections in other states like Uttar Pradesh Charges of MCOCA are levied against him i.e. he will be prosecuted for organised crime of prostitution.

In September 2009, the police had arrested a sadhu in Alandi (near Pune). He owned an ashram in which children come from different parts of Maharashtra to learn music and other skills. The ashram had residential facilities and at the time of his arrest 20 students were enrolled in the same. The police said “He used to lure them to his room in the ashram on the pretext of massaging his arms and legs and then performed unnatural sexual acts with them. The incident came into light when a thirteen year old boy told about the incidents to his parents.” Subsequently five more boys turned up with the same grievances. The Sadhu was charged under Section 377(unnatural offences) and Section 506(criminal intimidation) of the Indian Penal Code.

Sadhu Santosh Madhavan was jailed in Kerela for 16 years for raping and illegally confining two young girls from an orphanage that he ran. Police had also found pornographic material and drugs in his ashram.

Spiritual Guru Asaram Bapu and two of his disciples were charged with attempt to murder. Raju Chandak, the victim suffered three bullet injuries. He had alleged that mysterious deaths of two boys – Dipesh Weghela and Abhishek Waghela who were studying in a residential school which was in the premises of Asaram’s ashram was due to the activities performed in the ashram. It was contended by media that black magic acts were performed in the ashram. These are not the only illegal activities carried out in the premises of the ashram. The police has charged him under sections of the Indian Penal Code (IPC) and Arms Act.

These are not the only cases of fraud, abduction, murders, rapes that have been associated with these god men. The strength of these protagonists lies in the support given by their followers. The people religiously and blindly follow their idols. They believe that the charges are conspired against their spiritual leaders. They not only enjoy the support of the public but also get favours from the political parties. Most of these criminals have close nexus with politicians, elites and senior officials. Thus police operations are hindered at every possible stage by the authorities. They also enjoy the privilege of being extremely rich. With the passage of time they succeed in draining the wealth of their followers. Mostly their abstinence is accompanied by luxuries. They have huge mansions, numerous servants, luxury cars and unlimited money. They often use these things to bribe the system.

It is true that all saints are not monsters, but what about those who are? They not only play with the values of people but they also manipulate their subjects. They use their oratory skills to deceive public at large. The media and police have time and again exposed such cases but the public is still venerable. In spite of various awareness programmes people blindly follow their gurus. This has often increased the crime. At times when a Sadhu is caught the people hinder the working of police through their violent protests.

I’m attaching an Article published in the Hindu along with mail. It exposes some of the magic tricks employed by Sadhu’s to deceive people.

http://www.thehindu.com/2003/07/27/stories/2003072703250500.htm

Social Issues

Eve teasing, Gambling, Robbery and Drugs – Have they replaced the actual colors of Holi Festival?

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Holi is not only the festival of colors and joy but also that of crime. On the occasion of Holi, crimes like eve-teasing, sexual harassment, robbery, gambling and consumption of drugs have grown tremendously in recent times.

The public places like railway stations, parks, gardens etc are often guarded by disguised police officials. Females are often harassed by males on this auspicious occasion. Eve teasing has become a common feature of the festival. Perpetrators usually take the advantage of being concealed by colors. Most of the victims do not realize that they are being harassed.

A report demonstrates that eve-teasing incidents have increased near schools and other educational institutions during Holi. Usually it’s not the students but some unwanted elements that enter these campuses. Police has time and again taken steps to prevent these incidents by only allowing people who possess identity cards of these institutions.

Robbery has become another characteristic feature of the festival. The robbers target drugged individuals, open houses and passengers. This year the Bihar police has enhanced the security of some trains like Jansadharan Express, Sampoorna Kranti Express, Bihar Sampark Kranti, Vikramsheela and Magadh Express. The modus operandi of such criminals is extremely simple. They first drug their victims and then take away their valuables. The passengers are not left with any remedy because till they find out, it is usually too late. Moreover they are strangers to the administration of the place as well. Most of the times they lodge a complaint in railways with very little or no hope at all.

The other infamous incidents related to Holi are that of balloon throwing. People target individuals from moving trains with color filled water balloons. The same can have very dangerous consequences. It may lead to partial or complete blindness if hit in the eye. In cities like Mumbai which is a hub of local trains such unfortunate incidents take place on a wide scale. The Mumbai Railway Police has ensured that sensitive areas like Malad, Goregaon, Jogeshwari, Khar Road, Matuga, Grant Road on WR line, Byculla, Kurla, Ghatkopar Sion, Bhadup, Chembur Wadala, Govandi and Mankhurd would be guarded by 31 teams of police officers this year. It is not only the railway passengers who face the issue of water balloons. They are also thrown children at unknown people from distance. Parents should discourage such practices. The children should be explained its harmful impact both by parents and at schools. They must be warned that this may lead them to end up in juvenile homes for some time. Apart from this some people also throw mud and cow dung at people.

Gambling and playing cards is now being associated with Holi. People after consuming liquor play ‘teen paati’ or flash and try to make some money out of it. Playing pot is another activity in which people indulge into. Gambling is done on both small and high scale. Not only villages and small towns but also in big cities gambling takes place.

Consumption of liquor and drugs is a widely practised on this occasion. In spite of some governments banning sale of liquor on this day, people manage to arrange alcohol and drugs. Bhang is consumed by people in the name of Prasad. Even though consuming bhang is illegal, it is sold openly by shops on the festival. Some people claim that Bhang is the official drink of Holi. It is mixed with vadas, thandai and pakoras almost everywhere in northern India.

Drinking is not itself a crime but it can lead to many crimes. One of the major reasons of date rapes is intoxication. Females are unknowingly administered drugs by their counter-parts. They are then subjected to rapes. The female is unable to protest due to the effects of intoxication. Drunk driving although punishable by law is witnessed on occasions of Diwali, New Year and Holi. People drive unconsciously and not only put their lives in danger but also risk the lives of the others. Traffic Police does its best to control such acts but it may not be able to guard every street and lane.

It is not the Police which have to perform all the duties related to security on the festivals. The citizens also share some responsibility and accountability. Drinking and gambling is permissible but it should be controlled. One should not drive after drinking; your celebration might turn into a funeral for somebody else. Women must be careful while playing holi, they might be harassed or eve teased. Females must not go out alone on this day. One should not consume drugs or alcohol when offered by strangers, they might be robbers. Students and College administration must restrict the entry of strangers on this day. Shops selling water balloons must be heavily penalised. Acts like mud, egg and cow dung throwing must be discouraged by public. One should be a part of celebration and not that of crime. Enjoy the festival with some dignity and grace.

Health Legal Mirror Social Issues

Is It Crime to Be Gay in a Country which Proclaims to be the Governor of All Human Rights

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The recent judgment of Naz Foundation v. Government of NCT and Ors had created havoc all over the nation. The Delhi High Court stated that “Section 377 of the Indian Penal Code is unconstitutional as it criminalises consensual sexual acts of adults in private, violative of Articles 19, 21, 14 and 15 of the Constitution. The provisions of Section 377 I.P.C will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors.” The ruling was prospective in nature and was not binding on cases already decided. The court further clarified that the term ‘adults’ would constitute persons above 18 years of age. However this decision is binding only in the territory of Delhi and has persuasive value elsewhere. Therefore a proper legislation is required in this regard.

Section 377 is based on the Judo-Christian principles of morality. The British believed that such acts were unnatural and unproductive. They were against the order of the nature and against the will of the god. Homosexuality was not an alien concept to the country. There have been evidences of the same in the Rig-Veda, Manusmriti, Tantric rituals and Kama Sutra. For past 150 years Angaar (which is a small village in Gujarat), marriages between two males take place on the auspicious occasion of Holi.

Different religions have different perspective in this regard. Most of the religions condemn homosexuality on grounds of procreation. But procreation should not be a basis of discrimination as infertility exists in heterosexual couples also. Buddhism does not lay more stress on procreation as such. The Buddhist literature is silent on Homosexuality but it is presumed that the lay monks are allowed to practice homosexuality. Traditionally in Christianity homosexuality was condemned on basis of being unnatural. But now a days many Christians believe that it is akin to other unnatural acts like alcoholism. In Hinduism ancient texts like Manusmriti and Bhagwat Gita condemn such acts. In Islam it is considered sinful and publishable.

Countries like U.K., USA (some states like Georgia, Texas etc), Canada, Australia, Fiji and Nepal have decriminalized homosexuality and have recognized the Right to Privacy argument. Countries like Afghanistan, Iran, Mauritania, Pakistan, Saudi Arabia, Sudan and Yemen prescribe death penalty for the homosexual conduct. In nations like Cambodia, China, The Philippines, Thailand, Vietnam and Hong Kong there is no criminal prohibition on Homosexuality.

Section 377 penalizes private non-commercial sex between two consenting adults of the same sex in the same manner as it penalizes bestiality, forced sodomy and paedophiles. The conduct in this provision relates to man with man, man with woman, and man with animal. The present law is often misused police officials. In Jayalakshmi v. The State of Tamil Nadu, a eunuch had committed suicide due to the harassment and torture at the hands of the police officers. He was continuously subjected to forced anal and oral sex. Similar incidents happened in Bangaluru where a transsexual was raped by a group of hooligans. The section interferes in the private life of individuals. Medical evidence has proven that Homosexuality is not a disease and cannot be treated. It is not by choice but by birth. Morality and public opinion cannot be the basis of any law. The rights of the transgenders, transsexuals and homosexuals need to be protected. They have as much right to choose their sexual partners as the heterosexuals. Consensual Sodomy between adults must not be subject to any punishment. Even A.I.D.S can be prevented if sexual deviance is checked.

Due the pressure from the society most of the homosexuals are forced to live the lives of heterosexuals. This affects the lives of both the homosexual and his heterosexual partners. In Moina Khosla vs Amardeep Singh Khosla A decree of nullity of marriage is granted to the wife under section12(1)(a) of the Hindu Marriage Act as the husband was a homosexual who could not consummate the marriage in spite of the repeated efforts of the wife. The present law has also proved a hindrance in the path of social workers. When a group of A.I.D.S activists went to the Tihar jail to distribute condoms amongst the prisoners, they were not allowed to do so (as it was contrary to Section 377). The punishment prescribed under Section 377 for consensual sodomy is ten years or life imprisonment. It is more than the minimum punishment stated for rape i.e. seven years.

A new legislation is required. Even if section 377 is not struck down completely, it must be definitely amended. Section 377 is the only Section in I.P.C. which deals with Child Assault. There must be separate and specific laws for paedophiles and zoophiles in the country. If people are not made aware of the new law then the same would be manipulated easily. Most of our population lives in rural areas and thus implementation of the same must be done effectively and efficiently. It is contended that a proviso (exception) may be added to Section 377 stating that “a non-commercial homosexual act in private provided that the parties consent thereto and have attained the age of eighteen years would not be prosecuted under the act.”