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BY ENAKSHI GANGULY THUKRALEvery time my 16-year olddaughter gets on to stageto dance, she dusts someextremely fine shinystuff on her face and itglitters and shines. By the time sheis off the stage, most of the shiny glitteris gone, except for some bits ofsparkle here and there…and by thenext morning, there is no trace of it.India’s shine is much like that—heretoday, gone tomorrow —effervescentand transient.Every day we see articles focusingon the shining and the non-shining`bits’ of India. But if anything or anyonetruly shines in India today-it isits children, comprising over onefourth of our population. Resilientand lively, they continue to smile andgive hope in the not so shining ‘bits’ ofIndia that most of them inhabit. Butthen, they are not voters. What theythink or feel does not count.As Indians we constitute 16 percent of the world’s population,occupying 2.42 percent of its landarea. It has more working childrenthan any other nation, as also amongthe lowest female-male ratios.Despite Constitutional guarantees ofcivil rights, children face discriminationon the basis of caste, religion,ethnicity and religion. Even thebasic need for birth registration thatwill assure them a nationality andidentity remains unaddressed,affecting children’s right to basicservices.India is also home to one of thelargest illiterate citizenries in theworld. In the not so shining India wesee, hear and read of, children aredying of starvation, while food in ourgranaries rots and feeds rats. Wewatch while female sex ratio dips.child rightsChildren’s Rights inShining IndiaLittle children, barelyable to stand, are marriedoff flouting alllaws. Little ones aresacrificed, traffickedand sold; as others arelocked, abused,sodomised – the list isendless. And there areall those realities thatnever make the news.We know this is onlythe tip of the iceberg,but we choose not toact. Our silence andtolerance not only condonessuch violation ofrights, it also makesus guilty of complicity.Therefore, anyunderstanding ofhuman rights of childrencannot be confinedto some children-‘poor children’, ‘workingchildren’ and ‘marginalisedchildren’.Such categories onlyhelp us to remove ourselvesfrom the problem.Let us not deludeourselves. Violationsof children’s rights arenot limited to the poorand downtrodden.They happen in middleclass and elitehomes too, albeit indifferent forms, andthe silence aroundthese is even deeper.Also, any analysis onthe situation of childrenmust be understoodwithin the contextof the economic and politicalchanges in the country. Of particularimportance are globalisation and lib-PHOTO COURTESY: GANPAT LAD4 combat law • April - May 2004Can we promise them an India that truly shines?eralisation, and the gender, casteand religious attitudes that prevailtoday. All these add to children’s vul-

child rightsnerability and affect any action thatmay be taken for them.Children are not a homogeneouscategory. Like adults, they are dividedinto different categories based onsocial and economic status, physicaland mental ability, geographicallocation etc. These differences determinethe difference in the degree oftheir vulnerability. While genderdiscrimination exists almost all overthe world, it is much greater in somecountries - and India is definitely oneof them. Girls in vulnerable situationssuch as poverty, disability,homelessness etc. find themselvesdoubly disadvantaged, by their genderand the physical, economic, political,social situation that they findthemselves in. It is therefore imperativeto take a gender perspective intoaccount in examining the situation ofchildren.The Rights vs. WelfaristApproachThe Constitution of India providesa comprehensive understanding ofchild rights. A fairly comprehensivelegal regime exists for their implementation.India is also signatory toseveral international legal instrumentsincluding the Convention ofthe Rights of the Child (CRC).However, the government seems tobe more comfortable with the idea ofwell-being rather than rights (withits political overtones). Child rightsactivists are faced with challenges ofpromoting and protecting rights as apositive social value.Needless to say, ours is not the onlygovernment to do so. The UnionGovernment’s ideology resonateswith the watering down of the rightsbased framework in the recent UNSpecial Session on Children whichfailed to reaffirm internationalpledges made in 1990 to protect therights of children.The government’s approachremains largely welfarist. India isyet to adopt a single comprehensivecode that addresses the provisions ofthe CRC. Clearly the draft NationalPolicy (Charter) for Children whichhas been recently passed in parliament,and is envisaged as being sucha code, is inadequate as it does notaddress the full range of rights. Itdoes not make any reference to theCRC. In the words of the JointSecretary Department of Womenand Child, GOI, it captures the‘essence of the CRC’ thereby does notneed to refer to it!Child Rights: From anAdult’s PerspectiveAn examination of the laws showsthat although they are meant to protectthe interests of children, theyhave been formulated from the pointof view of adults and not children.They are neither child -centred, norchild friendly, nor do they alwaysresonate with the CRC.The problem begins with the verydefinition of ‘child’ within the Indianlegal and policy framework. TheCRC defines children as personsbelow the age of 18 years, howeverdifferent laws stipulate different cutoff ages to define the child. Only theJuvenile Justice (Care andProtection) Act 2000 is in consonancewith the Convention. In the absenceof a clear definition of a child, it is leftto various laws and interpretations.That our laws not child friendly orchild oriented is also evident in thedistinction family laws makebetween legitimate and illegitimatechildren depending on the status oftheir parents’ marriage or relationship.A child born out of wedlock or ofa void or illegal marriage is considered‘illegitimate’. Children pay forthe decisions taken by the parentsand are denied inheritance rights.Even worse, a child born of rape isstigmatised and treated as ‘illegitimate’,both by society and law.Access to Health:A ChimeraThe health of our children continuesto be a matter of grave concern,5 combat law • April - May 2004especially in the wake of growing privatisationof health services, andtheir increasing inaccessibility forthe poor. This is a particularly serioussituation as environmentaldegradation and pollution lead to afurther deterioration in children’shealth. The working conditions thatmany children are forced to sufferworsens matters.In our shining India, children sufferfrom malnutrition or die of starvationand preventable diseases.According to UNAIDS there are170,000 children infected byHIV/AIDS in India. Children affectedby the virus–whether children ofvictims or those who are infectedthemselves—- live on the fringes ofsociety, ostracised by people they calltheir own, unloved and uncared for,even as our government continues tosquabble over numbers of affectedpeople. Even juvenile diabetes isreported to be taking on pandemicproportions.While the Constitution lays downthe duties of the State with respectto health care, there is no lawaddressing the issue of public health.Children’s health care needs continueto be in great part dealt under theReproductive and Child HealthProgramme of the Ministry of Healthand Family Welfare, with a focus onreproductive health and safe motherhoodand child survival. The otherhealth needs of children areaddressed by the country’s primaryhealth care system; with very littleattempt to address these needsspecifically or separately.The population policy with its coercivemanifestations in the states hasof course proved most ‘childrenunfriendly’. Parents aspiring to politicalpositions are now forced tochoose between children and politics.Law does not allow persons withmore than two children to hold electedpositions in local self governments—andmany choose politics asthey disown their children or givethem up for ‘adoption’ in an effort to

child rightskeep to the ‘right’ family size.The Government has announcedits National Health Policy 2000. Onecannot but note that children do notfind mention as a separate categoryyetanother example of the lack ofchild focus in our planning andimplementation.Education for all —- Apromise yet to translateEducation for all is also a promiseheld out by the state. An examinationof State policies and programmesshows that education is notgoing to open the promised gatewayto equality. Indeed if anything, it is apromise of ‘differential education forall’ (read ‘some’ even here).While some children continue tohave access to mainstream schools orexpensive private schools, the restmust contend with ‘non-formal’ secondgrade education provided byuntrained and lowly paid ‘parateachers’.As if that was not enough,the new curriculum framework hasopened up a can of worms on thekind of biased syllabus, with incorrector incomplete content, that ourchildren will be subjected to.The passing of the 93rdAmendment Bill (passed as the 86thAmendment to the Constitution)making education a fundamentalright, should have been an occasionto rejoice. Instead it has become anissue for another long strugglebecause it only reinforces the lack ofpolitical will to make education universaland accessible for all. By leavingthe critical 0-6 years age group,putting the onus of creating conditionson parents for sending childrento school and making it their fundamentalduty, by reinforcing parallelstreams of education—it has onceagain sealed the fate of the poor andthe marginalised children.Although the rhetoric speaks of freeand compulsory education for all, inpractice, the education system seemsto be designed to keep children out ofit. To implement the 86th Amendment,the government has drafted ‘The Freeand Compulsory Education Bill,2003.Concerns and criticisms on thisbill are being expressed byeducationists and activists.Beatings, abuse, physical and mentaltorture faced by the students inschools is one of the reasons for thehigh dropout rate. It is well establishedthat corporal punishment isdetrimental to children’s growth anddevelopment. It is in violation of theirrights. But there is no comprehensivenational law banning it, although severalstates have even enacted lawsdealing with it. Moreover theNational Education Policy, 1992clearly states that corporal punishmentshould be firmly excluded fromthe education system. Despite that,however, there are several cases thathave been registered against teachersin schools for use of violence.At a recent workshop attended bychildren from across the country wasa young spastic child named Debu.“ I have a right to be called by myname. Why is it that all children arecalled by their names and I am calledlangda (lame) or even pagal (mad)?”.This made all the other children situp and look at Debu in a new light.While they had been discussing theirrights, it had not occurred to themthat children with disabilities maybe denied even this basic right.Children with disability continueto suffer unequal opportunities forsurvival and development. They aredenied personal or economic security,health care, education and allbasic needs necessary for theirgrowth. Further certain disabilities,such as, for example mental disabilitycarry even greater stigma. And ifthe disabled child is a girl, then thediscrimination is doubled. The rightsof disabled persons has finally beenrecognised with the enactment of thePersons With Disabilities (EqualProtection of Rights and FullParticipation) Act, 1995.6 combat law • April - May 2004Children in situations ofCrime and ExploitationRecognising the flaws of the 1986Juvenile Justice Act, the governmentpassed the Juvenile Justice (Careand Protection) Act, 2000. But theknee jerk reaction in amending thelaw without a wider discussion andconsultation with child rights practitioners,has left many who are concernedwith children and work withthem deeply distressed. In 2003 thegovernment drafted amendments tothe law. But, because of criticismsand concerns raised by severalorganisations and groups, it hasbeen placed before a ParliamentaryStanding Committee. The Committeeis currently reviewing the law.The Child Labour (Prohibition andRegulation Act) was enacted in 1986,to specifically address the situation ofchildren in labour. However, this lawdistinguishes between hazardousand non-hazardous forms of labour,and identifies certain processes andoccupations from which children areprohibited from working. It leavesout a large range of activities thatchildren are engaged in and areexploited and abused. The largescaleexploitation and abuse of childrenemployed in domestic work andhotels are cases in point.Child trafficking is one of the mostheinous manifestations of violenceagainst children. This is taking onalarming proportions -nationally andinternationally. Although, very littlereliable data or documentation isavailable, meetings and consultationsacross the country haverevealed the gravity and the extentof this crime. It is high time weunderstood and realised that childrenare trafficked for a number ofreasons and this cannot be treatedsynonymously with prostitution. Theabsence of this comprehensiveunderstanding and a comprehensivelaw that addresses All forms of traffickingto back it makes this issueeven more critical.

child rightsAdoption: The need forGreater Checks andBalancesAdoption is one of the best andappropriate forms of alternativefamily care. Indeed, it is the onlyway to break the mindset of institutionalcare for children, which hasbeen posed as the only solution formany years.However, adoption of children continuesto be determined by religion ofthe adoptive parents or the childwhen religion is known. OnlyHindus, Jains, Buddhists and Sikhscan adopt children. The personallaws of other religions - Muslims,Parsis, and Jews do not allow it.Even as it exists for Hindus, the lawhas serious flaws discriminatingagainst married women. It allowsonly married men to adopt. Further,it only allows for adoption of childrenof opposite genders.The Juvenile Justice (Care andProtection of Children) Act, 2000also provides for adoption making noexception on the basis of religion. Somore complications may arise.Besides, the large scale setting up ofbaby shops and the selling of babiesfrom poor families has caused panicacross the country. We need to becareful not to throw the baby outwith the bath water. Greater checksand balances are required to ensurethat adoption is legal and proper,and that it is not being used as ameans of trafficking of children.Protection from, or by,Instruments of Violence?In January 2002, a school goinggirl in Jammu, while discussing theRight to Protection said that even inthe current environment of unrestshe felt protected because she hadarmed guards, who accompanied herto school! She was not alone. Therewere others too who felt protectedbecause they had guards.Incidentally, one of them was fromthe Kaluchak Army School in anarmy base, which was attacked byterrorists a month later. We need toask ourselves what environment arewe providing to our children wherethey need instruments of violence tofeel protected?Armed conflicts across the country,based on religion, ethnicity, andcaste have affected the lives of childreneverywhere. The recent violencein Gujarat is still fresh in allour minds. Children continue to sufferfrom the conflict that Punjabfaced in the last decade. The ongoingsituation in Kashmir and in many ofthe North Eastern States has led tomany child casualties. Children areboth victims and perpetrators, brainwashedand incited into followingadults in spreading violence. Even asthey are seen as perpetrators of violence,they are victims of an adultworldview imposed on young minds.Children and DisasterMitigationThousands of children are homelessor living in inadequate livingconditions. Thousand others are displacedin the name of developmentand progress. Land is acquired for‘public purpose’, while the benefitsseldom include those who are evictedand displaced.Yet others are de-housed as a resultof natural calamities—the floods,cyclones, earthquakes that havecome to become almost a regular featurein our country. In all of these,while whole communities are affected,children are affected even more.An estimated 3.3 million childrenhad been affected by the supercyclonethat hit the coastal districts of Orissaon October 29, 1999. But NGOsreported that for five days after thecyclone, no special attention wasfocussed on the needs of children.There was very little information onwhere the children were, where theywere going or being taken.How many children were actuallydisplaced, how many died in theearthquake that hit Gujarat on 26January, 2000? No one has exact7 combat law • April - May 2004numbers. This is true of all such situationsof disaster or displacement.The need is to ensure that along withimmediate relief measures, properinformation is collected so that wecan get a sense of the numbersaffected, and ensure that childrenare helped to move back to a semblanceof normalcy as soon as possible.This is to ensure that there areno long-term psychological implications.In the absence of a holistic disastermitigation policy, which is alsodesigned to be child friendly, thiswill not be possible. The same is truefor rehabilitation policies for development-related displacement.Child Participation: ManyMiles to goIt is only with the ratifying of theChild Rights Convention that children’srights to participation begangaining formal recognition, althoughseveral NGOs had initiated processesto enlist participation of childrenand young adults long before theCRC. There is, however, no universalor accepted definition of child participation.Various groups and individualshave defined it according totheir own understanding. However,there is still a fairly long journeybefore this ‘inclusion’ of children’sparticipation is internalised andaccepted widely.Is the situation confronting thelives of our children bleak, or is therereason for hope? Can we promisethem an India that truly shines?What will the forthcoming electionshold for these non-voters?Lest we forget, they are the citizensof today and adults of tomorrow andthey will hold the adults of today,accountable someday.Enakshi Ganguly Thukralworks with HAQ: Centre for ChildRights. HAQ in Urdu means rights.HAQ is dedicated to the recognition ,promotion and protection of allchildren.CL

“ The day will come whennations will be judged,not by their military oreconomic strength, norby the splendour of theircapital cities and public buildings,but by the well-being of their peoples:by their levels of health, nutritionand education; by their opportunitiesto earn a fair reward for theirlabours; by their ability to participatein the decisions that affect their lives;by the respect that is shown for theircivil and political liberties; by theprovision that is made for those whoare vulnerable and disadvantaged;and by the protection that is affordedto the growing minds and bodies oftheir children.” These words annuallyprefaced a special report that theUnited Nations Children’s Fundused to publish on ‘The Progress ofchild rightsKeeping a Watch on ChildRights in IndiaBY RAZIA ISMAIL ABBASIAMITA CHAVAN8 combat law • April - May 2004Nations.’ Ironically, the day has notyet come, but UNICEF has ceasedpublication of its yearly score-cardreport.Countries like ours should begrateful the report no longerappears, since India’s score wasalways below the line dividing positivefrom negative. It is a moot pointwhether its publication through the1990’s actually ever succeeded intweaking our national conscience.We regularly grumble about ourpoor ranking in the human developmentindex of the UNDP HumanDevelopment Report, and we feelgood when the World Bank or theBretton Woods Institutions pat us onthe back for cutting down on socialsector investments – but children’srights? Are we worried? Childrendie, suffer abuse, struggle throughchildhood without basic health care,nutrition, protection, learning opportunity– mostly without complaint,because they do not know how toprotest, or where. Who cares? Notthe Indian State. We seem not toanalyse what human developmentmeans.Was it always so? India’s Tara AliBaig – who campaigned long andhard for the human rights of children– often asked why this country’splanners and decision-makersalways placed children and theirneeds at the end of the line. As one ofthe architects of the UniversalDeclaration on the Rights of theChild, back in 1959, a long-timepresident of the International Unionfor Child Welfare, one-time head ofthe Indian Council for Child Welfare,and a tireless champion of the leastserved,least-reached, least-noticedchildren in our society and in theworld at large, she had a right to ask.In 1979, when the UN pushed theworld’s nations to observe theInternational Year of the Child, MrsBaig could take some pride in therole India had played in the UnitedNations’ dedication of a special yearfor children. Mr Krishna Menon, betterknown for his incisive diplomacyon other subjects, is on record in theGeneral Assembly’s annals for hiseloquent speech calling for the year.This advocacy by Indian NGOs andgovernment alike, gave India a specialplace as a pioneering voice forchildren’s right to be recognised andrespected. A decade after theInternational Year, Mrs Baig died inthe knowledge that the world communitywas moving towards a landmarkinternational legislation thatwould stand as a historic bill ofrights for children: the UNConvention on the Rights of theChild. Plans were also under way forthe UN to convene a World Summit

child rightsconference on children, the first eversuch event pledged to a particularage group. The VP Singh governmentdesignated Atal BehariVajpayee as its special envoy to theWorld Summit preparatory process.In keeping with its earlier advocacyfor world attention for children,India accepted the decisions of the1990 World Summit on Children,and in 1992 also acceded to the ChildRights Convention (CRC). On paper,it was making all the right moves.But in practice, it was doing nothingmuch to match the official signaturesit affixed to this and that internationalinstrument.On the one hand, the Governmentof India had always trotted out its1974 National Policy on Children asproof positive that national visionand commitment had preceded anythingthe UN had thought up. On theother hand, the Government had seldomif ever trotted out the list ofdevelopment defaults that stretchedbackwards from 1974 into thedecades past, or forward from thatyear into the 1980’s and 1990’s.Sadly, accession to the CRC didnothing to correct this bad habit.Implicit in becoming a State-Partyto the Convention is (a) the treatyobligation to implement it, with allthe reforms and revisions that thismight entail, and (b) the responsibilityto report performance to the UNCommittee on the Rights of theChild, and also (c) to make theConvention and country action“widely known.” India has managedthe feat of carrying out the second ofthese duties without paying dueattention to undertaking the first orthe third.It’s first country report, due in1995, was submitted in 1997. By thatstage in its evolution, the UN wasencouraging ‘shadow reporting’ byNGOs, and the Committee on theRights of the Child received eightNGO reports commenting on thatfirst phase of CRC implementation.Neither the official report, whichwas mostly an expression of goodintentions spliced together withdescriptions of schemes, and a fewunashamed remarks on some problems,nor the NGO reports attractedmuch public attention. TheGovernment took the prudent precautionof printing only 6,000 copiesof its report, 3,000 in English and3,000 in Hindi. This prudence effectivelylimited the chances of it beingread. Meanwhile, the status and conditionof children continued to bebad. Investment and social subsidycutbacks continued to make theirown negative inroads into children’sprospects and protections. The contradictionbetween kowtowing toStructural Adjustment standardsand meeting basic standards forchild survival and developmentseemed not to worry anyone verymuch.The seven countries of SAARC (theSouth Asian Association for RegionalCooperation) had taken the subjectof children on board as a summitissue in 1986, and few lines in theSAARC Summit declarations saidsomething about children. SAARCleaders also moved to take a collectivestand against child trafficking.After pledging a year to the girl childin 1990, SAARC dedicated the 1990’sdecade to girl children. India and theother six nations drew up actionplans. No report of action taken eversurfaced, beyond cursory updatesprovided to a 1996 review conference.Information, if collected, stayedon file somewhere. The 1997 SouthAsia Human Development Report ofPakistan’s Mahbub ul-Haq Centrehighlighted the shockingly bad situationof the region’s girl children. Thiswas the only assessment approximatinga shadow report.SAARC had brought together thecombined precautionary prudence ofseven governments into never publicisingwhat it had reported to itselfon the condition of its children. Thismay have served some bureaucraticpurpose, but it has not been fair to9 combat law • April - May 2004children. In recent years, some NGOinitiatives have examined theregional scene. But somehow, a‘shadow’ process of tracking the fortunesof South Asia’s children didnot develop to any visible degree ateither country or regional level. Afew notable Indians such as Mr RabiRay pressed for SAARC recognitionof the many kinds of trafficking,including the shameful camel jockeytrade to the Gulf countries. ButSAARC Summits have not beenfaced with peoples’ reports on childrights.Is there any regional linkage tochild rights efforts across the countriesof South Asia? All seven countriesare States-Parties to the ChildRights Convention, India havingbeen the last to accede. All havereported their performance to theUN Committee, not once but twice.Yet there is no visible evidence ofconcerted NGO advocacy or assessmenton common regional concernsbeing addressed to the UNCommittee, not even on the issuesthat SAARC has taken onto its agenda.Certainly, there is no regionalNGO report. The Mahbub ul-HaqCentre’s human development reportbrings regional concerns together,but do not reflect an ongoing NGOconsultative process. Over the pasttwo years, NGO think tanks andresearch bodies have made commoncause to formulate a ‘Citizens’ SocialCharter’ addressed to SAARC leadershipand the SAARC populace, butonly the India charter emerging fromthe country level of this process hasa sharp and conscious focus on children.This country charter seeks toset standards and priorities fornational policy and investment, butdoes not specifically link its proposalsto the Convention.One index of what is not happeningwas evident in the preparatory negotiationsfor the UN GeneralAssembly Special Session onChildren. In the run-up to theSpecial Session, only a handful of

child rightsIndian NGOs could get to the NewYork preparatory discussions in2000 and 2001. There they metanother handful of NGOs from theSouth Asian neighbourhood. It wasclear that the world’s largest chunkof children was represented — andvery inadequately — by one of theworld’s smallest delegations of childrights supporters. The case for betternetworking and greater preparationwas obvious and compelling.The formation of a SouthAsianNGO Caucus at the UN wasthe first healthy reaction to thischallenge. The next initiative wasconscious feedback consultation backin India, to highlight both concernsand possibilities. This resulted in thelaunch of the India Alliance for ChildRights, to act as an open inclusiveprocess of building a forum across allrights and developing collectivepotential to serve child rights better– and together. This coalition buildingprocess continues, seeking notonly members but partnerships. It isuseful to note that this effort to thinktogether and work in concert aroseout of the NGO interest in reviewingwhat had happened to the 1990World Summit commitments andtheir Year 2000 targets, and gettinginto the formulation of a new nationalplan that might conceivably givechildren a fairer deal in the newdecade.The Government of India has traditionallykept its reporting on WorldSummit goals and Convention implementationseparate from each other.The United National overall, andUNICEF in particular, made thesame mistake throughout the 1990’sdecade. Two design faults helped tokeep the two processes apart:Convention ratification did not specifyadoption or execution of a specificcountry action plan, even though itcalled for dedication of the ‘maximumavailable resources;’ acceptanceof the World Summit commitmentsand goals did not specify areporting responsibility to anyonebut a nation’s own conscience. TheUN Committee enquiring intoConvention implementation was notempowered to ask directly aboutnational action plans or nationalactions on the 1990s goals.Who else was to ask? An electoratethat does not know could hardly be apublic conscience motivated to queryinaction or default. Questions aroseon specific concerns from time totime. The UN apparently tried tokeep up some sort of two-track monitoring;in the Government the samedepartment produced two sets ofassessments. The Government ofIndia submitted a country report tothe UN Special Session, and anotherreport to the UN Committee reviewingCRC action. Both reports wereunhappy examples of lies, damnedlies and statistics, and also withinteresting contradictions in thedata they offered.It fell to NGOs to knit together thetwo official assessments and to pickout the gaps and the worst of thedamned lies. It was NGOs workingin alliance who found for example,that India’s registration of birthswas 35 per cent in the annual reportof the Women and ChildDevelopment Department, 40 percent (having slid down from the 47per cent a decade earlier) in thecountry report to the UN SpecialSession, and ‘around 54 per cent’ inthe country’s second CRC performancereport to the UN Committee onthe Rights of the Child. How allthese figures could be true for thesame year was left to the reader towork out.A collective NGO planning processbegan in the wake of the UN SpecialSession decisions, and a linkedprocess developed around the NGOassessment of the Government’sCRC report. The NGO planningprocess addressed itself to theGovernment’s preparation of a newnational plan of action for children,while the CRC assessment processlooked back, and sought reasons for10 combat law • April - May 2004the lack of serious implementationeffort. In inviting alternate views onCRC performance, the Geneva-basedNGO Group on CRC was on the lookoutfor groups or coalitions of NGOsworking in alliance, so that ‘shadow’reports could be representative of arange of NGO opinion and experience.It asked the India Alliance forChild Rights if it was willing to preparean alternate report.To the India Alliance, only twoyears old and just beginning to grow,it was not so much a question ofbeing willing, as of being able to puttogether a really representativeassessment, and producing a reportwhich could be widely owned. Thismeant an active coalition-buildingeffort, reaching beyond existingmembers and contacts. In late 2002,a dual process of seeking performanceinformation and looking forpartners and allies got under way.This was already late, since NGOalternate reports were expected to bein the UN Committee’s hands bymid-2003. But the response was positive,bringing together a rich mix ofresponses brought NGOs, networks,academics, lawyers, other experts,children and youth, senior citizenswith deepening worry-lines, and concernedindividuals into a commoneffort. A series of consultations wereheld, and draft assessments produced,with participation coalescingaround Delhi and Bangalore.The initial effort was to worktogether for a single NGOs’ or citizens’report. Some NGO groupsworking at zonal or state level joinedin this effort to forge a single document.But it emerged that therewere some who would share theirinsights and still bring out their ownreport. The lesson of the process wasthat the emerging collective reportcould co-exist with the special issuereports; the children’s own reportfrom the National Movement ofWorking Children was a valuableexample of a partner report with itsown special character and message.

child rightsBehind schedule, but ‘in time’ inthe best Indian tradition, theCitizens’ Alternate Report – EveryRight for Every Child – reached theUN Committee and the NGO Groupon CRC in September 2003. Perhapsits proudest pages were the two thatlisted more than 150 NGOs, networks,institutions and groups anddozens of individuals who had contributedto the formulation of thereport.Now it was for the loose-knit butunified CRC coalition to find itsemissaries to the pre-sessional hearingof the Committee where alternatereports would be discussed. It isa testament to the consultativeprocess that confidence was reposedin the four India Alliance representativeswho traveled to Geneva forthe hearing. The importance of pursuinga consultative process andbuilding the review and reportingcoalition was recognised by the UNCommittee when it gave the Alliancedelegation extra time and pride ofplace in the NGO presentations. Thein-camera hearing, closed to governmentears, succeeded in conveyingmany serious concerns to theCommittee. The upshot was a furtherCommittee request to theGovernment to provide additionalinformation and the communicationof some Committee concerns to theGovernment to think about. Anotherfruit of the pre-session was the newconnections made between theAlliance and the other NGO presenters,taking joint consultative links a11 combat law • April - May 2004step further.The NGO Group invited theAlliance to plan for the official Indiareview session, and encouraged it toseek resources to get there. Thistime, the NGOs would be silentobservers, and it was up to them tofind a way of making any input tothe session. NGOs worked togetherto sustain their collective strategising,even though it was not sure anyof them could get to Geneva again tolisten in on the official review.Preparatory activity saw ongoingcooperation as NGOs with contactsmade connections for others, andhelped to explore chances of communicatingwith government counterpartsbefore the session.It is as well that two NGO delegatesgot to Geneva to witness whattranspired when the Government ofIndia faced the UN Committee in itsofficial review session on 21stJanuary 2004. They went with allthe concerns of their own reviewtroubling them. Sad to say, the officialpresentation and defence waslies, damned lies and statisticsagain, and some smooth dodges.Sadder still, India will not berequired to report formally againuntil 2008. Another set of observationsand recommendations hascome from the UN Committee, andthe Government of India is expectedto act upon them. But a governmentwhich does not make the Conventionitself known to the public is hardlylikely to post notices or invite commenton its lapses of implementation.Again it falls to the non-governmentalcommunity to hold togetherin alliance, and in solidarity withchildren, to keep tracking what isnot being done to realise child rightsin India. The new National Charterfor Children is already official – blatantdenial of CRC obligations. Afterthe Lok Sabha elections, there willbe official action to adopt a newnational plan of action based on ayear of flawed and myopic closeddoordrafting, and to move the Billfor what looks like a congenitallytoothless national commission forchildren. Who will contest these negativemoves? The MPs of the LokSabha just dissolved, failed to evenunderstand the defects in the nationalcharter, let alone query them.Who will take stock – at least once ayear – of whether India is going anywherewith its CRC tasks? Who butNGOs, and they too will determinetheir own effectiveness and leverageby the extent to which they choose tokeep working together. If the CRCreview and reporting experience hasdemonstrated anything, it is the possibilityand the potential. Childrendeserve no less.Mercifully for the peace of her soul,Tara Ali Baig did not live to see themany betrayals of the country’s childrenthat have peppered the yearssince she died. It would be good, forchildren and for India, if her crusadingspirit and her own legacy ofbuilding partnerships in the child’scause inspires today’s NGOs and CLGlobalisation- Will our ChildrenPay the Price?In Pipra, Bara Chapri andChota Chapri villages ofBarijore block, Godda districtof Jharkhand no oneknew about primaryschools so they did not send theirBy Ila D. Hukkuchildren to study. Instead the villagechildren worked as domestic help inthe local money lenders’ houses orhelped in the fields. Close by, in thevillages of Balkami and Sinni theschool buildings were incompleteand teachers rarely present. Ofcourse here too the children couldnot attend school. Finally the Gram

child rightsSabha of the area had to take mattersin its own hands. They gottogether and organised a socialaudit involving the local governmentofficials too. Over the 5 days of thesocial audit 11 teachers re-joinedwork and today 800 children havestarted going to school.Stories of villages without schools,schools without buildings or teachers,irregular and indifferent teachingand a crumbling governmenteducation system are common placein India today. In fact, less thanhalf of India’s children between age6 and 14 go to school and a little overone-third of all children who enrollin grade one reach grade eight. Andit is not just education; about 60 millionIndian children under the age of6 subsist below the poverty line andevery second child in the country ismalnourished in this day, when ourcountry’s food grains stocks areenormous.Child deaths are still very highand almost 2 million Indian childrendie every year before reaching theirfirst birthday; 1 in 11 dies beforetheir fifth birthday. Easily preventablediseases like diarrhoea snatchaway 7 to 8 hundred thousand of ourchildren every year. In 100 millionfamilies across our country childrenhave to survive without water athome; 150 million live in householdsthat have no electricity. Theseshocking statistics stand testimonyto the prevailing low access andquality of education and healthcareservices for children. Privatisationof basic services and the introductionof commercial motives in providingessentials like water, basichealth and education will furtherworsen the access for a large numberof India’s poor.Clearly, the situation is grim andcalls for prioritised and determinedinvestment in the rights of children.Unfortunately the response hasbeen quite opposite. TheGovernment of India, under thepressure from the StructuralAdjustment Programme imperativesdefined by the World Bank and IMF,has taken policy directions that inthe short and long term have endangeredthe opportunities for wellbeingof children, particularly thosebelonging to the socially and economicallydeprived communities. Inthis era of globalisation the decliningtrend of government investmentin social sectors, which includehealth, education and childcare, hasmade the already unsatisfactory situationof children even worse.Experiences from across the worldhave shown us repeatedly that childrenare among the most vulnerablewhen local economies are opened upto global market forces withoutmaking adequate investments andputting safeguards for the susceptiblesections of population.The experiences have been mostharrowing in countries whichopened their markets in a situationwhere its children were in any caseat risk. World Bank reportsanalysing the effects in Mexico andThailand of the financial crisis dueto exposure to global markets, foundthat children were withdrawn fromschool, entered hazardous jobs andprostitution rings and suffered fromdevelopment damage due to malnutrition.These effects continued longafter the economies recovered.The situation is not too different inIndia. And India’s children are payingthe heaviest price for the economicpolicies of trade, agricultureetc. With 60% of the country’s population,children included, dependenton agriculture for their subsistence,government investment in agriculturedeclined from 11.6% of GDP inthe 80’s to 9.1% in the 90s. Higherinput costs of fertilisers, pesticidesand seeds are making it virtuallyimpossible for small farmers to survive.Under conditions put forth bythe World Bank, the PDS is nowavailable only to the “poorest of thepoor”, defined so as to leave outlarge numbers of poor people.12 combat law • April - May 2004In a study commissioned by thecentral government to study tribaldeaths in Maharashtra, it was foundthat hunger deaths among 0-6 yearold children in Nandurbar districthad gone up from 0% in 1993 to46.20% in 2001. On the one handlarge sections of the population aredenied adequate nutrition and onthe other, we have a highlyinequitable health system whichdenies quality health care to allthose who cannot afford it. Publicfinancing of health care declinedfrom 1.25% of national income in1993-94 to 0.9% in 1999-2000. It’s nowonder then that large numbers ofour children continue to live a lifeconstantly threatened by malnourishment,disease and death.The last decade has registered thelowest rural employment growthrate since Independence and theoverall employment growth in the1990’s was only two-thirds to half ofwhat it was in the 1980’s. With moreand more employment becomingirregular and non-permanent innature the likelihood of the poorunskilled worker finding work for asufficient number of days to feed thefamily is declining.Adult unemployment is directlyproportional to employment of children.When there is a lack of productiveactivity for adults, the childrenare sent to work for supplementingfamily income. Also thetrend of contracting and subcontractinghas meant that many jobshave moved from organised shopfloors to small sheds and insidehomes making it easy to engagechild labour away from the publiceye.Field evidence suggests that manyschool going children dropped outfrom school to replace adult earninglost when family farms were combinedby large corporations for cashcrop plantations. As an example, inthe state of Andhra Pradesh alone,as many as 60% of the 247,800 childrenworking in cottonseed produc-

child rightstion had dropped out from school towork in the fields.Poverty, lack of health facilities,abuse, exploitation, handicaps likethose of caste, gender, ethnicity anddisability can be transcended bygood quality education. But India’schildren are being denied even thatchance. The overall public expenditureon education dropped from apeak of 4.4% of national income in1989 to 2.75% in 1998-99. Not onlythat, towards the latter part of the90’s the government of India programmingon education indicates abacking off from the commitment toprovide good quality education to allchildren.The unequal access to quality educationis worsening as the governmentsystem is moving towardsdelivering substandard education tothe very children who need qualityeducation the most.Through the Sarva ShikshaAbhiyan, under qualified and underpaid“para teachers” will imparteducation to several million firstgeneration learners. Thus segregated,these children will be handicappedin competing with those educatedin formal schools and will findit impossible to break out of thepoverty cycle in which their familieshave been trapped for generations.The most disadvantaged among children,the girls, those with disabilities,the dalits, the adivasis will bethe ones who end up being providedwith such second-rate education.Though the picture looks forbiddingthere are many glimmers ofhope across the country, like inJharkhand, showing us that thingscan change. This hope lies in thepower of people coming together toask for what is rightfully theirs andtheir children’s. That is our bestchance for a better today and brighttomorrows.Ila D. Hukku is Director-Development Support, Child Relief& You.CLPHOTO COURTESY: GANPAT LADConvention on Rightsof the Child-Achievements &ChallengesBY JAAP. E. DOEKFor the protection of children’srights under internationallaw, the UnitedNations(UN)Convention on the Rightsof the Child (CRC) is the mostimportant legal instrument. TheCRC, adopted unanimously by theGeneral Assembly of the UnitedNations on November 20, 1989, hasbeen ratified by 192 of the 194States that exist in the world; onlytwo States have yet to ratify it. Noother human rights treaty comesthat close to universal ratification.The CRC is at the same time thehuman rights treaty with widestcoverage. But paper does notchange the reality. If one reads thetext of the CRC, it is clear thatthere is a often wide gap between13 combat law • April - May 2004the text and the realities in the lifeof children. Let me give you someexamples which can be complementedwith thousands of other similarcases.Article 2 CRC: “States Parties shallrespect and ensure the rights setforth in the present Convention toeach child within its jurisdictionwithout discrimination of anykind….”Article 28 CRC:“State Partiesrecognise the right of the child toeducation and with a view to achievingthis right progressively and onthe basis of equal opportunity, theyshall….make primary educationcompulsory and available free atall.”Hula does not go to school in theDominican Republic. She has beentold it will make her less attractiveif she is educated. Her parents will

child rightsnot even let her look at her brotherstextbooks. She stays at home withher mother to cook and clean. Hulais 14 years old. There are another68 million girls like Hula, who donot receive any education at all.Article 24 CRC:“States Partiesrecognise the right of the child to theenjoyment of the highest attainablestandard of health.”Article 7 CRC:“The child ….(has)the right to know andbe cared for by his orher parents.”It is fair to saythat a lot hasbeen achievedin the last10 to 15 years,a very shortperiod,given themiseryhundreds ofmillions ofchildrenlive in.Monica is connectedto a feeding tube. Hercheeks are puffy, herstomach distended andweighs only 10 lbs. Shedoes not smile, laugh oreven cry. She lies therewith a blank look onher face. She probablywill not make itthrough the end of themonth. She is a crackbaby. Her mother lefther on the front step ofan American hospital.Again, this is oneexample of the manyMonicas in this world.Many more children diebefore they can celebratetheir first birthday.In fact, every 24 hours about35,000 children die of preventablediseases.Article 33 CRC:“States Partiesshall take all appropriate measures…toprotect children from theillicit use of narcotic drugs.”Micky started using heroin whenhe was 10. He uses any needle hecan get his hands on. He’ll even sellhis body. Three of his Canadianfriends have died from AIDS in thelast year.Article 19 (1): “States Parties shalltake all appropriate….measures toprotect the child from all forms ofphysical or mental violence…includingsexual abuse.”Article 27 CRC:“States Parties recognizethe right of every child to astandard of living adequate for thechild’s physical, mental, spiritual,moral and socialdevelopment…States Partiesshall…assist parents and otherresponsible for the child to implementthis right and shall in case ofneed provide materialassistance…particularly with regardto nutrition, clothing and housing.”Jule was raped by aneighbor. She takescare of her infantdaughter with the scantmoney she earns frommaking bread. The restof her family died fromAIDS. She has neverbeen to school in Ghana.Jule is 13 years old.Musa was about 16years old when he washeld in a detention centrein Chernokovo, atown in Chechyna, fromJanuray 16. 2000 untilFebruary 5, 2000, andhe was severely beatenand tortured every day.He was left with a fracturedspine, which maycause permanent paralysis.Another boy (17years old) was broughtto prison; his teeth were sawn offwith a metal file and his lips areshredded, leaving him unable to eat,drink or speak.Unfortunately, many more examplesof torture, and inhumane anddegrading treatment of children canbe given. Organisations, likeAmnesty International, HumanRights Watch, and OMCT(Organisation Mondiale Contre IaTorture), regularly report on themany instances of violence againstchildren, which happen in many differentways and in a wide variety ofsettings, such as families, fostercare, schools, institutions, andfacilities that serve law enforcementpurposes.These and many other examples ofviolations of children’s rights seemto suggest that the CRC-operationalfor more than 10 years has had littleor no impact. It may be true thatthe CRC had little, if any, meaningfor many children, particularly thevery poor and the most vulnerable.But at the same time, it is fair to saythat a lot has been achieved in thelast 10 to 15 years, a very short period,given the misery hundreds ofmillions of children live in, is theresult of many decades of structuralneglect of children and their rights.But, it is also true that a lot stillneeds to be done. Let me elaboratea little bit (more will result in abook) on these two elements: theachievements and the challenges,with particular attention to howthese challenges can be addressed.A Change of Policy andAttitude?The developments in the field ofchildren’s rights since 1990 (theCRC had entered into force on Sept.2, 1990) can be characterised withwords like awareness raising, training,change of laws, efforts to changeattitudes, and the development ofnational plans of action. These activities,changes and developmentswere and are the result of major andvery visible international events andof less visible, but ongoing andrather structural, activities withinthe framework of the monitoring ofthe CRC implementation by theCRC Committee. The first, and veryvisible, event that should be mentionedis the World Summit forChildren (WSC) organised byUNICEF in September 1990, whereover 70 Heads of States and a largenumber of other StateRepresentatives adopted a declarationand a plan of action for the survivaland development of children.The WSC was important for variousreasons. For example:The WSC contributed unmistakablyto an unprecedented level of14 combat law • April - May 2004

child rightsratification. Within 7 years, 191States Parties had committedthemselves to the implementation ofchildren’s rights by ratifying theCRC. The importance of this almostuniversal and legally bindingcommitment to children’s rightsimplementation should not beunderestimated.In many States, serious and oftensuccessful efforts were made todevelop and implement a nationalplan of action in accordance with theWSC’s plan of action. Sometimesplan of action were made for specificareas of concern. These plans werefocused on education, health care,commercial sexual exploitation,street children, and/or child labor.UNICEF became, and currently is,fully committed to the implementationof the CRC, although theCRC was only scarcely mentioned inthe document.The WSC’s plan of action providedan excellent instrument for theimplementation of the CRC,although the CRC was only scarcelymentioned in the document.The follow-up to the WSC, accompaniedby end of the decade reviewsfrom over 130 governments indicatingthe achievements and challengesfor the years to come, was theSpecial Session of UN’s GeneralAssembly (UNGASS), which washeld in May (8-10) 2002. TheSecretary General used the nationalend of the decade reviews and otherdocuments in his report to theGeneral Assembly, presenting theachievements over the past decadeand perspectives for the future.Before giving more examples of theachievements in more concreteterms than in the first part of thisparagraph, I have to mention anotherfactor (other than the WSC’s planof action) that has been importantfor the achievement; the implementationof the CRC.It is not possible to present veryconcrete statistical data of theimpact of this implementation. Atthe international level, the impact isvery noticeable in the area of childrenin armed conflicts. It is furthermorevery likely that somemajor events like the Stockholm(1996) and Yokohama (2001) conferenceson commercial sexualexploitation, other international andregional conferences, and the adoptionof ILO Convention No. 182would have not taken place and/orbeen less successful without theexistence of the CRC.But, all States Parties shouldreport the progress they make withthe implementation of the rights ofthe child to the CRC Committee.This may seem to be an exercise inmoving paperwork, but experienceshave taught us that it is much morethan that. The preparation of thereport requires, given the broad contentof the CRC, the involvement ofmany ministries and other governmentalbodies, such as those responsiblefor health, welfare and education,justice, public order, defenceand the national budget. In addition,the NGOs in many countriessubmit their own reports (shadow,supplementary, or other types) tothe CRC Committee. These reportsare often the work ofclose cooperationThis mayseem to beanexercise inmovingpaperwork,butexperienceshave taughtus thatit is muchmorethan that.between the variousspecialised NGOs in thecountry via the establishmentof a nationalforum or coalition ofNGOs. Finally, quite anumber of specialisedUN agencies, in particularUNICEF, submittheir reports on thecountry to theCommittee.In short, reporting tothe CRC Committee is aprocess that very muchcontributes to raisingawareness among civilservants throughoutthe governmental bodiesregarding the activitiesof NGOs. Furthermore, reportingfosters cooperation at the nationallevel and provides valuable informationto UN agencies, which arenot limited to writing alternativeand/or supplementary reports. Theexamination of a report results inthe so-called ConcludingObservations. In this document, theCRC Committee recommends theState Party to undertake specificactions in various areas. It is again atool for initiatives by NGOs and UNagencies that not only puts pressureon the government-via such avenuesas the media and parliament-toundertake the recommendedactions, but also provides the governmentwith very concrete help interms of service provisions and/ ortechnical assistance. In many countries,this reporting and follow-upprocess was more or less linked withthe efforts to implement the WSC’splan of action.The increased and growing attentionfor the CRC also contributed toimportant progress in the followingareas: children in armed conflict,commercial sexual exploitation, andchild labor.Children inArmed ConflictAt the time of draftingof the CRC, one ofthe most heavily debatedprovisions wasArticle 38. A number ofStates felt, very strongly-supportedby many,if not all, NGO’s-thatArticle 38’s minimumage for recruiting childrento become soldiersat 15 years-old wasmuch too low. Efforts toincrease this age failed,and the States mostconcerned about thismatter finally decidedto accept Article 38 as itwas (and is ) becausethey did not want to15 combat law • April - May 2004

child rightsagenda, the States committed themselves,inter alia, to address the rootcauses that place children at risk ofsexual exploitation, such as poverty,inequality, discrimination, violence,armed conflicts and dysfunctioningfamilies. Furthermore, they promotednetworking among the keyactors to combat CSEC, ensuredadequate resources for the preventionan elimination of commercialsexual exploitation of children, andtook adequate measures to addressnegative aspects of new technology,in particular child pornography onthe internet.Child laborAt the beginning of the1990’s theefforts to prevent and eliminatechild were given a very strong boost,not so much because of the CRC’sentering into force but due to a verysubstantive donation from theGerman Government to the ILO earmarkedfor elimination of child labor(50 million DM for a period of 5 yrs);This marks the beginning of the wellknown integration program for theelimination of child labor, theInternational Labour Organisation(ILO-IPEC). This program is nowfinancially supported by about 15donor countries and differentnational programs carried out inabout 75 Countries.But, it is very likely that the ratificationof the CRC by 191 states in1997 contributed to the remarkableincrease of international attentionfor Child labor. The same fact mayhave been favourable to the ILOefforts to draft a new ILO conventionfocusing on the Elimination ofWorst Forms of Child Labouraround 1997. These efforts weresuccessful, and in 1999 the ILOadopted ILO Convention No. 182.The CRC Committee regularly recommendedthe States Parties ratifyILO Convention No. 138, a recommendation,which in 1999 alsoincluded the ratification of ILOConvention No. 182. In this regard,it is important to note that the definitionof the worst forms of childlabor in Article 3 of the ILOConvention No. 182 lists variousforms of exploitation of childrenalready covered in theArticles 32-36 of theCRC.I agree with the UNSecretary General thatthe CRC helped toenhance existing ILOstandards (first ILOConvention No. 138and later ILOConvention No. 182).The relevant provisionsof the CRC have alsohelped to promote agrowing recognition ofthe connectionsbetween the protectionof children from economicexploitation andthe enjoyment of theirrights to education,health care, rest, play, and an adequatestandard of living.The awareness of the worst formsof child labor and the need for itsprevention and elimination was notlimited to governments. The tripartitestructure of the ILO meant andmeans that employers’ organisationsand trade unions are involvedin the fight against child labor.At the same time, many nationalNGO’s were created in the field ofchild labor. These NGO’s UNICEF,other UN agencies and the ILO partners(governments, employers,workers), developed and maintaineda momentum which, interalia,resulted in a Global March againstChild Labour and in more awarenessamong consumers and internationalcorporations.Awareness was the drive behindactions/programmes like theRugmark initiative and agreementsfor the elimination of child laborfrom the garment industry inBangladesh and the soccer ballstitching industry in Sialkot,The CRC hasbecome a foundationfor, andthe drivingforce behind, awide variety ofactivitiesaimed atimproving theworld of andfor children.Pakistan, as well as the developmentof codes of conduct by internationalcorporations to include theprohibition of child labor in theirproduction processes.In light of the aboveand of many more activitieswhich can be mentioned,it is fair to concludethat the CRC hascreated a movementwith participants fromall walks of life, fromchildren and parents, togovernments and allkind of organizations,including small, local,not-for profit actiongroups, and large internationalcorporations.The CRC has become afoundation for, and thedriving force behind, awide variety of activitiesaimed at improving theworld of and for children.These activities have largelybeen devoted to increasing awarenessand understanding the meaningof the child rights approach ofthe CRC in order to ultimatelychange the traditional attitudesregarding children. A change whichI once summarized as “from charityto entitlement.”Although this can be considered amajor and fundamental, achievement,one may wonder, is this allthere is? Theoretically it soundsfine, but what about the children?Did they not benefit from the CRCand all the related activities?Improvements for ChildrenSince 1990For those who expected the CRC toquickly make the world a betterplace for children, the results maybe very disappointing. This kind ofexpectation is not very realistic. Aninternational human rights instrumentlike the CRC cannot in and ofitself improve the world for children.Even a serious and rigorous imple-17 combat law • April - May 2004

child rightsmentation will only produce visibleand measurable results aftersome time.The CRC has been operationalsince September 1990, and I think itis fair to say that the results in just13 years are quite impressive, notonly in terms of international actionand policies as described in the previousparagraph, but also for thechildren themselves. Let me brieflydescribe some of the improvementsthat can directly or indirectly beattributed to the implementation ofthe CRC.Legal Protection and ChildParticipationIn the first reports on the implementationof the CRC now submittedby 175 States, one can find awide variety of changes in lawsenacted to strengthen the rights ofchildren and their legal protection.There is growing trend-althoughnot equally present in all StatesParties to recognise the child as abearer of rights who should be givena fair opportunity to express herviews and to participate in decisionsrelevant to their schoolenvironment.At the community level, youthcouncils are actively participating inthe development and implementationof programmes and policies.Regional and national children andyouth parliaments have beenestablished allowing for a directinput in the political decision-makingprocess.It may be true that some to theseand other forms of participationhave a high degree of decoration,tokenism, or symbolism, but it isalso clear from recent developmentsthat authentic child participation isgrowing at the local, national, andinternational level. This has beenmost recently illustrated by strongchild participation to the SpecialSession on Children of the UNGeneral Assembly.In many States Parties, legal provisionsfor the protection of especiallyvulnerable children have beenimproved. This happened byincreasing the minimum age forchild labor through the introductionof more severe penalties and extraterritorialjurisdiction in cases ofcommercial sexual exploitation andtrafficking.Many legal and other measureshave been taken to prevent and combatabuse of children in the familyand in care institutions, including,inter alia, rules for child sensitiveinterviewing by well-trained professionalsof victims of child abuse.The protection of girls from variousforms of discrimination hasimproved via legal and othermeasures in quite a number ofStates Parties.Many States Parties have changedor are in the process of changingtheir laws on juvenile justice inorder to better protect juveniles suspectedof having committed crimesthroughout the prosecution process,including at the pre-trial detentionstage, trial itself, and execution ofsanctions stage with a growing preferencefor non-punitive alternativesfor traditional custodial sentences.But all these improvements of therights of the child and his/her legalprotection are not always implementedand sometimes even violated.The child therefore needs easyaccess to effective remedies.It is encouraging to note that moreand more children are being given apossibility to file complaints in caseof violation of their rights, either viaspecially created procedures (forexample, the limited opportunitiesfor children in institutions) or moregenerally via independent institutionsfor the monitoring of children’srights implementation like childcommissioners or children’sombudsperson.There are a growing number ofthese institutions, particularly inEurope, as well as in other parts ofthe world.18 combat law • April - May 2004Improvements in HealthCare, Education andSpecial ProtectionThe improvements made duringthe first decade of the CRC’s implementation(1990-2000) can also bepresented in concrete figures andstatistics. Keep in mind that factorsother than the CRC, in particularthe International Plan of Action ofthe WSC in 1990, have contributedto these improvements. While theseimprovements are perhaps not asgood as one may want, they arenever the less considerable. Hereare a few examples: The mortality rate of childrenunder 5 years of age went downfrom 94 (1990) to 81 (2000) per1000 live births; The children suffering frommalnutrition, as measured bystunting or underweightnessdecreased from 177 million in1990 to 149 million in 2000,with about two-third of themliving in Asia. Polio has been eradicated inmore more than 175 countries. Sustained routine immunization(three doses of combineddiptheria/pertussis/tetanus vaccine,DTP3) has reached a coverageof 75%. The reported incidences ofmeasles have declined by nearlytwo thirds. Deaths due to diarrhoea havebeen reduced by 505. About 72% of households indeveloping countries are usingiodised salt (less than 20% in1990). As a result 90 millionnewborns are protected yearlyfrom significant loss of learningability. In more than 40 countries, over70% of the children receive atleast one high dose vitamin Asupplement a year. UNICEFestimates that, as a result thedeath of one million childrenhas been prevented in the periodbetween 1998-2000.

child rights Access to safe drinking waterand access to proper sanitationfacilities has improved for 816million and 747 million peoplerespectively. Enrolment in primary educationhas increased and the globalgoal set in 1990 at the WSC(80% enrolment) has beenachieved. In 2001, 21 countries reportedthat school enrolment andretention of girls increased (inSouth Asia the gender gap inschool enrolment was reducedby 20%).From these and other figures it isclear that the implementation of theright to the highest attainable standardof health and of the right tofree and compulsory primary educationhas made considerableprogress. But still a lot remains tobe done (see The Challenges);In the period 2000-2001 more than1000 working children and almost30,000 parents have benefited fromthe ILO-IPEC programmes.Thousands of child soldiers havebeen demobilised thanks to actionsby UNICEF and those supported byother UN agencies and NGO’s. Forinstance, 2,400 in Angola, 2,600 inthe Democratic Republic of Congo(Plan of Action 2002), 6821 in SierraLeone (since October 1999) and3,351 in Sudan, since February2001. Education, psycho-social, andmedical support was provided to thethousands of child victims of armedconflicts.Improvements can also be recordedin the area of special protectionalthough they are still very moderategiven the magnitude of the problems(see The Challenges); they areclearly less impressive than in theareas of health and education.The Challenges: What ToDo?Despite the achievements mentionedin the previous paragraph,the world is not yet a place fit for fartoo many children. Some facts toillustrate this; 600 million children have tolive, that is to be fed, clothed,housed, and educated with lessthan $1 US per day. Even in therichest countries of the world,one in every six children (about47 million) live under thenational poverty line. 21 million children aged 5-14are engaged in some form ofeconomic activity, and 186million of them are engaged inthe worst forms of child laborwith the same applying foralmost 60 million children age15-17 years. About 110 million of thoseworking children of primaryeducation age do not receiveany education at all. About 11 million children dieevery year of preventable diseases,that is about 20,000 perday, a fact that goes withoutanymediaattention. At the end of 2001, there were2.7 million children under 15years living with HIV/AIDS. Inthat year, 800,000 childrenunder 15 years were newlyinfected with HIV and 580,000children of that age group diedof AIDS. The number of Africanchildren who had lost theirmother or both parents by theend of 2000 is estimated at 12.1million and is forecast to morethan double over the nextdecade. Polio is still endemic in 20 countries,while less than 50 percentof children under one year ofage in Sub-Saharan Africa areimmunized against DPT 3. Inmore than 15 countries, themeasles vaccination coverage isless than 50 percent. In the past decade two millionchildren died as a direct resultof armed conflicts and an additionalsix millions were injured19 combat law • April - May 2004or disabled.More facts and figures can be presentedto show that the world is stilland by far not a place fit for children.Think, for example, of the 11million refugee children, the manymillion child victims of violence andabuse in their homes, their institutions,their schools, their workplaces and the streets. The UN’sGeneral Assembly – following a recommendationof the CRCCommittee-decided to request thatthe Secretary General conduct an indepth international study with thesupport of a secretariat establishedby UNICEF, the WHO, and theOHCHR.From the above listed and manyother overwhelming problems itis clear that the internationalcommunity faces many challenges inits attempt to implement theCRC and make the world fit forchildren.The problems seem to be almostinsurmountable, and it may be difficultto decide where to begin, giventhe reality that not all problems canbe tackled at the same time. Thetraditional opinion is that governmentsof States Parties need tomake their own choices and set theirown priorities. This is rightly so,because the problems in theNetherlands, for example, are quitedifferent from those in South Africa,which in turn are different from theproblems in Brazil or Indonesia.But, the setting of priorities is notan arbitrary matter, or a lottery.The goals that the 191 StatesParties have committed themselvesto, are clear and can be found in theUN Convention on the Rights of theChild which they ratified voluntarilyand wholeheartedly. These goalsare elaborated upon in detail in theDeclarations and International Planof Action, A World Fit For Children,(WFFC) which was adopted unanimouslyby all members of the UN inMay 2002, including those whichhave not yet ratified the CRC. In

child rightslight of these commitments and takinginto account national differences,the motto for the next decadecould: “Say what you do and do whatyou say.”The Governments of all 189 UnitedNations Member States did saywhat they intended to do, not only inthe WFFC, but also in 2000 byadopting the MillenniumDevelopment Goals. They allpledged to, inter alia: reduce by half the proportion ofpeople living on less than a dollara day by 2015 and reduce byhalf the proportion of peoplewho suffer from hunger by thatsame year; achieve universal primary educationand reduce by two thirdsthe mortality rate among childrenunder five by 2015 In their declaration, A WorldFit for Children, the governmentsof 189 States said;“We reaffirm our obligation to takeaction to promote and protect therights of each child-every humanbeing below the age of 18 yearsincluding adolescents. We are determinedto respect the dignity and tosecure the well being of all children.We acknowledge that the Conventionon the Rights of the Child, the mostuniversally embraced human rightstreaty in history, and its OptionalProtocols contain a comprehensiveset of international legal standardsfor the protection and well being ofchildren.The States call on all members ofsociety to join them in a global movementthat will help to build a worldfit for children via upholding theircommitments to the following principlesand objectives” Put children first Eradicate Poverty; invest inchildren Leave no child behind Care for every child Educate every child Protect children from harm andexploitation Protect children from war Combat HIV/AIDS Listen to children and ensuretheir participation Protect the earth for childrenThese principles and objective aretranslated in specific goals andmeasures that should be included inthe Plan of Action. So, since allStates have said what they intend todo, let us now turn to the question ofwhether they are going to do whatthey said, and if so, how? It is tooearly to give an answer to thesequestions. The more cynical observermay tell you that he has heardsimilar commitments and promisesbefore, and a world fit for childrenwas not built then. For example,with reference to theproblems describedbefore, the promisewas made about 30years ago that the welldeveloped countriesshould allocate 0.7% oftheir Gross DomesticProduct (GDP) forinternational developmentassistance to thedeveloping countries.By 2003, only 4 countrieshad met thispromise, and manywell developed countriesremain beloweven 50% of that standard.The history so farmay not be encouragingand the picturemay be bleak, but notcompletely back. TheachievementsAttempts toanswer thequestion“What to do?”will notproduce amagicsolution,and we haveto acceptthat progressmost likelywill beslow.described in the previous paragraphshow that progress has been and canbe made.Attempts to answer the question“What to do?” will not produce amagic solution, and we have toaccept that progress most likely willbe slow.If the Global Movements forChildren (GMC), the movement ofall States in the world, UN agencies,international NGO’s and membersof society like children and parents,want to build a world fit for children,the first priority, in my opinion,should be reduction and eradicationof poverty.“Chronic poverty remains the singlebiggest obstacle to meeting theneeds protecting and promoting therights of children. It must be tackledon all fronts…Children are hardesthit by poverty”. (In the WFFCDeclaration, the 189 States membersof the UN reaffirmed their vowto break the cycle of poverty withina single generation. They are alsounited in the conviction that investmentsin children and the realisationof their rights are among themost effective ways toeradicate poverty.)In its efforts to reduceand eradicate poverty,the GMC should remindStates that they havecommitted themselvesin the MillenniumDevelopment Goals tocreate a global partnershipfor development.This global partnershipshould do what theStates said:Further, develop anopen trading and financialsystem that is committedto good governance,development andpoverty reduction, bothnationally and internationally;Address the specialneeds of the least developedcountries which includes, interalia, enhanced debt relief for heavilyindebted poor countries, cancellationof official bilateral debt, andmore generous official developmentassistance (ODA) for countries committedto poverty reduction.In this regard, by the end of the90’s the 41 most heavily indebtedpoor countries (HIPC’s) owed about205 billion dollars in external debt,20 combat law • April - May 2004

child rightsaccounting for about 130 percent oftheir combined gross national product(GNP). Due, at least partly, toheavy debt servicing, most of thesecountries under-invested in basicsocial services making many of goalsset for 2000 unreachable.Most likely, poverty will also makemany of the goals set for health care,education,and child protection in theplan of Action WFFC for 2005 or2010 unreachable for most, if not allHIPC’s. The global annual additionalcost, (which is in addition to the$80-$90 billion spent annually foreducation), to achieve education forall in developing countries by 2015is approximately $9 billion per year.This represents less than 0.033% ofthe world’s GNP and 0.14% of thecombined GNP of developing countries.Poverty may hamper thesekinds of expenditures, but it alsoindicates that reduction of povertyshould go hand in hand with changingpriorities at the national andinternational level. Poverty reductionis not enough; we should alsoinvest in the children.Development of a global partnershipfor development not onlyrequires the actions mentionedabove, but it also makes it a prioritythat all developed countries do meetthe standard for ODA which they setabout 30 years. This ODA should beincreased as a matter of urgency tothe promised 0.7% of the GDP. Inaddition, more serious efforts shouldbe undertaken to achieve the fullimplementation of the 20/20 initiative;the commitment of developingcountries to spend 20% of theirnational budget to basic social needs(health care, education, water andsanitation) and of the developedcountries to match that with 20% oftheir ODA.This requires a reconsideration ofcurrent expenditures, such asdefense spending. Spending indeveloped countries on defense isabout 10 times the money allocatedto ODA.Poverty reduction and eliminationshould be given the highest priority.However, this does not mean thatStates should not try to make asmuch progress as possible in achievingthe goals set in the WFFC,including improving protection ofchildren against commercial sexualexploitation, abuse in the family,institutions, and on the streets.Many things that contribute torespect for the rights and dignity ofthe child can be achieved with littlemoney. Poverty cannot be used asan excuse for doing nothing.Progressing towards.the goals set bythe State Parties themselves requirestructures and resources that maynot be immediately available. ButStates are nevertheless under theobligation to undertake as many ofthe technical and financial measuresas possible via, inter alia, reprioritisationof their expenditures.ConclusionAll national governments in thisworld have committed themselves tobuild a world fit for children. In theDeclaration and Plan of Actionunanimously adopted by their representativesin the UN GeneralAssembly on May 10, 2002 followinga three day Special Session onChildren, they have set out an ambitiousprogramme with many concretegoals, set to be achieved ineither 2005 or 2010.The biggest challenge of the firstdecade of the 21st century is to turnthese commitments into visible andconsiderable progress towardsachievement of the goals set. In myopinion, the reduction and eradicationof poverty should be given thehighest priority. This cannot happenwithout a serious and, in someways,drastic change of the currentpriorities at the national and internationallevel. Children’s rightsimplementation is not a matter ofcharity, but it requires politicalchoices-sometimes perhaps difficultones. The realisation of children’s21 combat law • April - May 2004rights is a matter of politics becauseso much more money should beinvested in children. Poverty reductioncan help us to do so. A war thatin itself costs already close to $100billion is not a very promising beginning,but it also shows that, if theworld really wants something, themoney can be provided. In otherwords, the Global Movement forChildren governments individuallyand collectively, UN agencies,NGO’s and individual citizens,should continue to develop andimplement effective actions to generatethe necessary money and takeall other measures to build a worldfit for children. The CRCCommittee – in close collaborationwith the support of UNICEF, otherUN agencies and NGO’s shouldstrengthen its monitoring of theimplementation of the CRC.It should remain important thatan international body can regularlyreview and examine the activities ofthe States to see to what extent theymeet the commitments they agreedupon by ratification of the CRC andadoption of the WFFC documents,as well as providing them with guidanceand well targeted recommendationsfor further action.Progress in the next decade maynot be as good as we would want andlike. But there is a saying in theNetherlands: With a lot of perseverancethe snail finally could reachNoah’s Ark. With that Kind of perseveranceand with an unfalteringbelief that we can build a world fitfor children, we will make progressand achieve our goals.Jaap. E. Doek is the Chairman ofthe CRC.CL

The beginnings ofCR4WSF(Child Rightsfor World Social Forum)was in the need beingfelt in different childrights quarters for a co-ordinated,collective presence to ensure thatissues and concerns of children areprominently reflected in the FourthWorld Social Forum: led to four networks– Campaign Against ChildLabour, Campaign Against ChildTrafficking, India Alliance for ChildRights and Habitat InternationalCoalition-Housing and Land RightsNetwork – convening a meeting inAugust, 2003 in New Delhi. Themeeting stressed the need for a collectiveforum to work concertedly on‘mainstreaming’ the child rightsagenda within the WSF.The lessons from the Asian SocialForum held in Hyderabad inJanuary, 2003 further reinforcedthis need. While a number of groupsworking on children’s issues andchildren themselves had participatedat the ASF; children’s concernsremained largely invisible because ofthe lack of co-ordination. The connectionsof children’s rights with theoverall development debate withinthe ASF was missing and becametokenistic as attempts were made toadd children into the different statementsand processes.29 organisations participated inthe meeting and there was an agreementon defining the terms for collectivelyworking together. It wasfelt that the platform should be opento all groups who are opposed toimperialist globalisation, patriarchy,militarism, communalism, casteismchild rightsBringing Child Rights on theWSF AgendaThe World Social Forum, Mumbai saw child rights groups form a coalition.BY KAVITHA KRISHNAMOORTHYand racism - the five central themesof the WSF. The groups joining thisplatform acknowledge that theseforces negatively impact children’srights and that children are pushedinto worse forms of poverty, resultingin their exclusion, exploitationand marginalisation.The collective forum – which cameto be named - Group on Children’sRights in a Globalising World, wouldserve as an umbrella for networks,organisations and alliances of childrenand those working with childrento come together, keeping theirown independence, names and identity.The organisations and networkswould be free to engage in activitiesindependently, in addition to beingpart of this collective process.Keeping each other informed wouldforge coordination, avoiding overlapor duplication.It was also decided to bid for a Panelon Children’s Rights ‘Children’s Rightsin a Globalising World - Holding Statesand International InstitutionsAccountable’.22 combat law • April - May 2004Preparing for the WSFThe task of enrolling other groupswas identified as critical. By Mid-Jan, 2004, the CR4WSF had grownto include 85 groups, from differentcountries and regions of the world.Preparatory activities for the WSFincluded, amongst others, enrollingmore groups; collecting materialfrom different organisations for displayat the stalls; mobilising schoolchildren from Mumbai along withchildren associated with NGOs;organising press conferences in differentcities and developing materialsuch as a poster, a badge and a positionpaper.At the WSFCR4WSF brought 50 childrentogether from Bangladesh, Pakistan,Afghanistan, Colombia, and thePhilippines and from Tamil Nadu,Karnataka, Maharashtra, Orissa,West Bengal, Delhi, Bihar, UttarPradesh and Jharkhand from India.A two-day process was taken up withthe children’s group with the objectiveof selecting 10 child representativesfor the Panel. The process wentbeyond that of selection and showedin many ways how democratic, fairand selfless children can be.Children first made small presentationson the child rights situationin their own village, city, state and/or country. The group then prioritisedthe agenda that needed to berepresented in the Panel, select arepresentative for each theme.Where there was limited representation– either on the theme – such asdisability or by country – such as thePhillipines, selection was easy.Where there were more number ofchildren who wanted to speak on cer-

child rightstain issues such as child participation,child labour, education, streetchildren and gender discrimination,making a choice was tougher. And itis here that children showed theirmaturity.On being made aware, for example,that there were many more boysthan girls in the group that was discussingthe representative for childparticipation, all the boys withdrewand helped in selecting one of thegirls to represent them. In anotherinstance, the group decided to selecta child who had never before made apublic statement, believing that hetoo needed to be given anopportunity.Children also showed a lot ofcuriosity about the situation in othersplaces. The Afghan child, forinstance, asked his Bangladeshicounterpart,“I know the war that has been ongoingfor almost 23 years has torn ourcountry but what is the reason for thesituation in Bangladesh being sobad?”Having heard of the discriminationagainst women and girls inAfghanistan, a Mumbai based childasked the Afghan child how girlsmanage to go to school.The PanelThe morning of the 18 th saw Hall2 brimming with barely suppressedexcitement. Children of the worldtook over center-stage at the WSF,winning the solidarity of the 2004Forum as they voiced their hopesand demands at the WSF’s first everpanel conference dedicated to children’srights in a globalising world.As the joint organisers (CR4WSFand the Global Movement forChildren, Convening Committee) ofa Panel discussion entitled‘Children’s Rights in a GlobalisingWorld: Making the World Fit for AllChildren. Who is responsible? Who isaccountable?’, went about attendingto logistical details; groups of childrencame in – some dancing, somesinging, some shouting slogans,some on wheel chairs, clapping atthe rhythm. All asking for children’srights to be promoted and fulfilled allover the world.Over 4000 people – mostly children,filled the hall and listenedintently to the views of ten childspeakers supported by nine adults.The biggest impact was made by thechildren who spoke. Urvi Patel, achild with disability, spoke of howhappy she was on knowing that shewould be moved from a special schoolto a school that had children withdisabilities along with all other children.Many eyes were wet with tearswhen she spoke of how she too wantedto become ‘somebody – a scientist’and how she draws inspiration fromStephen Hawking.Bryan from Columbia, testifiedabout how abandoned children facethe risks of being kidnapped by drugdealers. He implored the adults toput in practice the Convention on theRights of the Child.“Our only hope is the law and mostof the time that’s not enough”, hecomplained. Cleonante Capiloyan ofthe Philippines roused the gatheringwith a call for unified action. Thealternate other world sought by theWSF can be built only with the participationof children, he stressed.Amongst the adult speakers,Rogate Mshana, economist fromTanzania, noted how globalisation ofthe market oriented economy is athreat to human rights, increasingthe exploitation of children and takingthem away from schools. AsmaJehangir and child delegate Sanawere strong Pakistani voices callingfor peace, respect and dialogue.Miloon Kothari, UN SpecialRapporteur on the right to adequatehousing, spoke about inadequatehousing as the one reality thatthreatens even the most developedcountries in the world. ShanthaSinha, Magsaysay Awardee of 2003,for Education and Elimination ofChild Labour spoke of how millions23 combat law • April - May 2004of children are working instead ofattending school and called for qualityeducation for all children.Vittorio Agneletto, AIDS campaigner,noted how ninety five percent of children with HIV do nothave access to any treatment. Heblamed this situation on policy thatprioritises the market above the people.Moema Miranda, Convenor ofthe WSF Content Commission,believes that the internationalisationof the forum allowed for the veryimportant issue of child rights to beintroduced for the first time in theWSF and in a very original way.“Everyone has their own voice to raiseand there is no point in speaking onbehalf of the children”, she saidadding that the WSF will look forwardto hearing children’s voices inthe future too. Miguel de Paladellafrom the Global Movement forChildren, said that the right strategyto address all these problems is preciselythe one followed in this year’sforum: to allow the children to be themain actors, speaking on their ownlives.Other testimonies of children suchas Zekairya from Afghanistan,Rabaya Akhter from Bangladeshand Sharda Suvankar, Rajesh,Kamal Sharma, Ranjit Kumar andShivalik from India drove home thecritical centrality of child rights onthe agenda for development and justice.Now on the WSF agenda, theissue of children underlines not onlythe problem that neo-liberal globalisationcauses, but also the urgency ofsolving them.WorkshopsWorkshops on themes such asChildren in Conflict with Law; EarlyChild Care and Education;Homelessness, Forced Evictions andDisplacement; Globalisation,Liberalisation, Privatisation, andChild Labour; Child Participation;Reform in Education; Globalisationand Child Trafficking; issues ofDisabled Children and Child Sexual

child rightsAbuse were held by different memberorganisations of the CR4WSF.These smaller workshops and programmeshad the participation ofnon-child rights people. All of themwere well attended, beyond the numbersanticipated. Being smaller, theinteractions were more intense andfocused on content. Some of theworkshops were designed as children’sspaces and therefore gave alot of scope for children to speak,share and participate.Child Rights Day at theWSF20th January, 2004 was celebratedas Child Rights Day at the WSF. Amix of recreational activities for childrenand cultural programmes forchildren and adults performed bychildren and adults was held. Stageperformance – skits by school childrenon child labour; recreationaland artistic corners; demonstrationon the malkhamb pole, Warli paintingon clay pots, was organised. Theevents helped to take the message ofChild Rights out of seminar rooms,making it more accessible to thegeneral public.The CR4WSF Stall5 stalls were booked for theCR4WSF. While four stalls hadinformation on child rights (coveringissues such as gender discrimination,child labour etc.); one stallserved as the Secretariat. The activitiesof the CR4WSF spilled into thespace outside the stalls, with meetings,serving lunch to children andmuch coordination happening there.The huge cut-out of the CR4WSFlogo helped in creating a very visibleidentity.Child Rights Day at IYC100 excited children – some whowere participating in the CR4WSFevents, and others from residentialcare institutions in Mumbai – alongwith volunteers headed for MatungaDon Bosco grounds, the venue for theIntercontinental Youth Camp (IYC)on 19th January, 2004 to celebrateChild Rights Day. The children firstrallied around the Youth Campvenue, carrying placards and shoutingslogans on child rights. Severalrecreational activities were organisedand facilitated by Magic Busand Play for Peace. The children participatedin 4 special workshops onthemes such as the Young at Risk,Child Sexual Abuse, AdolescentChildren and Sexuality, Educationand Competence and the Right toPlay. Streetplays, dramas and filmscreenings on child issues were alsoorganised. At the end of the day, thechildren expressed their feelings onthe day’s events and learningsthrough colourful paintings on a sectionof the wall, exclusively given tothem.Children’s publicationsChildren were involved in bringingout material, which enabled othersto see the WSF from their viewpoint.Children from the National ChildJournalist Forum designed aWalking Newspaper. Children worehuge placards with WSF news itemslisted on them and spoke to peopleon how they saw the happenings atthe WSF. On the Child Rights Day,children from Bhima Sangha,National Child Journalist Forumand the Delhi Child Rights Clubbrought out a broadsheet in Hindi,Kannada and English that documentedtheir impressions of differentPanels and workshops, supplementedby their colourful drawings.Reflections post WSFThrough the processes of theCR4WSF, for probably the first time,deep links were made with othersocial movements, who began to seetheir issues from the child rightsviewpoint. Discussions on homelessnessand displacement brought perspectivesfrom the Narmada BachaoAndolan as well as highlighted theissue of Bhutanese and Tibetan24 combat law • April - May 2004refugee children. Connections weremade with the civil and politicalrights movements with the discussionson the impact of conflict andState violence on children. Linkswere made with the women’s movementover discussion on gender discriminationand the situation of thegirl child.Even within the child rights movement,the CR4WSF was instrumentalin building alliances acrossorganisations working with childrenwith differing ideologies andapproaches. The agreement on the‘minimum common position’ – that ofthe opposition to the neo-liberalforces – made it possible for differentgroups to work together.It is this bringing together ofdiverse movements and infusingfresh perspectives that strengthenthe belief that a platform such as theWorld Social Forum is both necessaryand critical.The CR4WSF has been able toestablish children’s rights in theWSF agenda and give visibility tochildren’s issues. There is now aneed to deepen our understanding ofthe connections between the issuesof debt, globalisation and childrenand exchange learnings on alternatives.There is also a need to build onthe links established with othercoalitions and social movements andbring the voices of children into theirprogrammes and processes.For more information contact:CR4WSF secretariatC/o YUVA,53/52, Nare Park MunicipalSchool,Opp. Nare Park grounds,Parel (East),Mumbai – 400012Tel.: 91-22-24116393 / 24116394 /24153498 / 24155250Email: group@cr4wsf.orgCL

BY RITA VOHRAWhy and how toensure criticalengagement withthe institutionsof governance onbehalf of the 392 million children ofIndia, constituting 40% of the populationof this country, from the childrights perspective? Can governmentalinstitutions and elected representativesbe held accountable? After alla child does not have a political face.Children have no way of directlyarticulating their rights and entitlementsleave alone questioning thegaps between rhetoric and reality.They have no control over theresources in relation to their differentneeds. And yet in any democracy,it is critical to hold governmentsaccountable for what they have orhave not done for their citizens.The state’s responsibilitiesemanate from the rights approach(e.g., Fundamental Right ofElementary Education) as well asthe functional approach (securityfrom hunger and starvation, equalopportunity for all, etc.). How is thestate performing its role? How tohold it accountable? One way wouldbe to monitor its budget. Budgets area reflection of a government’s politicalcommitments. The parliamentdeliberates and passes the budgetbut how to find out whether therehas been any trade-offs within thesocial sector given the pressures ofglobalisation and privatisation? Is itthat the child component of thebudget also forms one of the softareas that is getting sacrificed?This is what HAQ: Centre for ChildRights has been attempting to do thelast four years and it has found someof its assumptions to be correct andchild rightsHolding GovernmentsAccountablemeaningful. What prompted HAQ totake action? Why does HAQ believethat engagement with institutions ofgovernance is the right step in thedirection of achieving children’srights? Indeed HAQ’s attempts havebeen to explore methodologies thatwill enable child rights activists andperhaps children themselves to monitorplanning and implementation,and may be also ask some questionsof the government.As one goes deeper into the needfor giving voice to child rights, onerealises the importance of governmentalintervention in ensuring it.But, it is also well understood by nowthat human rights of children areeasily overlooked and violated. Thistakes place in every strata of societythough this is not to deny that povertyis a compounding factor evenwhile the questions of their health,education, development and protectionare being addressed through differentgovernmental schemes.The budget of any country is notmerely an economic document. It isan indicator of its priorities andintent and the state’s role in socioeconomicdevelopment. The budgetis an estimate of the resources thatwill be available during the financialyear and the object for which theresources will be spent. It is however,not merely a statement of estimatedreceipts and expenditure; it isthe annual financial plan, a vital toolfor not only meeting the administrativeneeds but also for securing publicsocio-economic goals. Budget forchildren is not a separate budget. Itis merely an attempt to disaggregatefrom the over all allocations made,those made specifically for programmesthat benefit children. Thisenables us to assess how far the policyand programme commitments25 combat law • April - May 2004are translated into financial commitments.This would also indicatepolitical commitment of the governmenttowards its young citizens.India had presented its report tothe UN Committee on the Rights ofthe Child. This report was submittedon 19 March 1997. Based on thepresentations made by the governmentand the NGOs, the Committeemade its concluding observations.Time and again the Committee hasstressed on the need for the stateparty to take all necessary measures,including allocation of therequired resources (i.e., human andfinancial) and ensure appropriatedistribution of resources at the central,state and local levels, andwhere needed, within the frameworkof international cooperation. Itfelt that the state party shoulddevelop ways to establish a systematicassessment of the impact ofbudgetary allocations on implementationof child rights and to collectand disseminate information inthis regard. India presented its secondreport (First Periodic Report2001) to the Committee, and it cameup for review on 21 January 2004.The Committee once again reiteratedits concerns regarding budgetsfor children in its ConcludingObservations (CRC/C/15/Add.2.28.30 January 2004)With the worsening of income distributiondue to globalisation and agreater move towards privatisationof basic services such as health, education,the shrinking of the publicsector, it has to be emphasised that itis the primary responsibility of thestate to allocate resources for ensuringprotection of child rights. As perArticle 4 of CRC the States Partiesare the duty bearers. The state commandshold over resources, directly

child rightsThe Committee recommends thatthe State party:(a) Make every effort to increase the proportion of the budget allocated to the realizationof children’s rights to the “maximum extent … of available resources” and, in this context,to ensure the provision, including through international cooperation, of appropriatehuman resources and to guarantee that the implementation of policies relating to socialservices provided to children remain a priority; and(b) Develop ways to assess the impact of budgetary allocations on the implementation ofchildren’s rights, and to collect and disseminate information in this regard.Concluding Observations, IndiaCommittee on The Rights of The Child, Thirty-fifth Sessionand indirectly, which by itself putsresponsibility to allocate them forsuch purpose.Initial exercises and studies carriedout by HAQ: Centre for ChildRights on child budget have beenvery rewarding. They have proved tobe a significant step for engaging inprocess of governance because thenecessary information and data havebeen made available to the stakeholders.The state and the activistgroups involved in advocacy for childrights need this data and analysis tounderstand the budgetary trade-offsand governmental constraints. It isimportant not only for the civil societygroups for purposes of advocacybut also for the policy makers, implementersand legislators. Therefore,it is significant that theDepartment of Women and ChildDevelopment invited HAQ last yearto several meetings and consultationsfor making presentations on itsbudget work. Initially our presentationsfed into government’s preparationsfor a gender budget analysisand subsequently, the Departmentadopted the concept as well as themethodology in its work on children’sbudget. For the first time in India’shistory the Department of Womenand Child Development undertook achild budgeting exercise drawingupon HAQ’s work. The chapter onChild Budget in the Annual Reportof the Department for Women andChild Development, Ministry ofHuman Resources Development,2002-2003 says, “A pioneering effortwas made by HAQ: Centre for ChildRights, in their publication ‘India’sChildren and the Union Budget’.”Realising that any meaningfulanalysis of child budgets cannot beconfined to the Union Governmentonly, HAQ is currently engaged inanalysis of state budgets in AndhraPradesh, Orissa and HimachalPradesh in partnership with M.V.Foundation (Hyderabad), OpenLearning Systems (Bhubaneswar)and Himachal Pradesh VoluntaryHealth Association (Shimla).However, having undertaken thefirst step of monitoring andanalysing the budget brings us to thenext set of questions. Who wouldhelp identify the reasons for thegaps and the child service deliveryareas that need strengthening? Is ita matter of good governance alone?Can it be left to the parliament andthe state legislatures alone or isthere any role for the civil societyand advocacy groups? Monitoringand pointing out the gaps are equallyimportant, but perhaps new partnershipsare required.After all, every year, thrice a yearthe people’s representatives inParliament discuss, debate, deliberateand make decisions on behalf ofover a billion citizens of India. Theseare the same people who also representthe children of this country.Every election, these elected representativescome to us and make loftypromises—some they fulfil, mostremain simply that—a promise, onlyto be reiterated in the next elections,or discarded in favour of a new one.With a broader understanding ofgovernance the role and responsibilityof civil society groups can be easilydiscerned. Union budget is discussed,debated and deliberatedupon, before being passed by the parliament,the key institution of governanceand the guardian of Indianparliamentary democracy. Indeed, itis the Legislature that too needs tobe monitored and addressed and thelegisislators held accountable.Therefore, HAQ felt it imperativeto look at the actual concerns of theMPs as far as children are concerned.Do they represent the interestsof ALL children of this country?What are the issues, which havecompelled them to be raised and discussed?Do they have any sustainedinterest and requisite commitmentto follow up the issues raised bythem? It not only helps in identifyingthe trends and pressing concerns ofthe nation but also those childfriendlyMPs who could be bankedupon for raising Child Rights’ issues.For purposes of advocacy it is necessaryto find allies in all the relevantareas of governance. Over the lastone year, apart from Child budget,HAQ has also been looking at theparliament questions and debates.It is one of the findings of HAQ thatthe source of the question is mostlythe media, particularly the printmedia. There is a two-fold implicationof this fact. The media has to bemade conscious of its role of raisingcritical issues and reporting responsibly.The parliamentarians alsoneed to be provided with importantinformation, since they seem to bewanting in their ‘home work’.Therein comes the role of civil societygroups like, HAQ, which need tointervene and provide them withnecessary information and the backgroundmaterial that emerges fromtheir analysis.In any case, in the new understandingof governance, in a democraticsociety it is citizens’ and civil26 combat law • April - May 2004

child rightssociety groups’ responsibility toengage in a wide range of ways be itpolitical, social or administrativestructure of a society.Good governance is no longerequated with “sound developmentmanagement” that is, “the manner inwhich power is exercised in the managementof a country’s economic andsocial resources for development”only. The key aspects of governanceso understood were public sectormanagement, accountability, a legalframework and information. In thisunderstanding ‘politics’ or the manyways in which democratic citizensdetermine the shape of their societieswere not taken into account.The UNDP account of governanceadopted in 2000, defines governanceas “the exercise of political, economicand administrative authority toAstudy conducted by theUnited NationsPopulation Fund saysthat there are an estimated4 million womenand girls who are trafficked. Today,unfortunately, trafficking hasbecome an international industry,perhaps even stronger than the narcotics.Traffickers use modern andinnovative methods to change theirpattern and to circumvent the lawwhile the legal system sticks to itsarchaic ways.The manner in which cases of traffickingare handled, coupled withsimple numbers that indicate therise in the number of children beingtrafficked, reflects that we areleagues behind the powerful networkof traffickers. We will continue to lagbehind if the enforcement of thecases is handled in the currentbureaucratic manner where it takesdays to register a simple case againstthe trafficker. The State machinerymanage a country’s affairs. It comprisesof the mechanisms, processesand institutions through which citizensand groups articulate theirinterests, exercise their legal rights,meet their obligations and mediatetheir differences.” (MarthaNussbaum in UNDP, Essays onGender and Governance, 2003, p.4)This definition suggests that a studyof governance must include not onlyeconomic management but also politicalparticipation very generally –and participation in both formalinstitutions of the state and theinformal groups, movements andinstitutions of civil society.In a democratic country like India,civil society groups’ monitoring ofwhat the government spends onchildren would lend a strong andeffective voice to the children whoincharge of the prosecution rarely cooperatesand refuses to be proactiveabout the rights of the victim.Invariably, the arrests are made onlyof the brothel owner, while the entirenetwork of players is ignored. Thevictims are “rescued” and kept ingovernment homes. Thereafter theyare “rehabilitated” which means,quiet simply, that their parents arelocated and the girls sent back tothe parents. The victims then have achoice between hostileparents and seeminglywelcoming brothelowners.Prostitution hasdeparted from the traditionalways that it wasonce understood.“Friendship clubs”, earmarkedbars, escortservices and many morenew forms haveemerged. Child pornography,sex tourism,friendship centers, massageparlours are somecannot vote, lobby or speak out forthemselves.Thus monitoring and scrutinisingall the union and state budgets aswell as the questions asked by ourlegislatures could go a long way inparticipating in governance andmaking reliable data available onthe priorities of the government asreflected in its actual expenditureand justifications thereof. It hastremendous potential as attentioncan be drawn to areas that needemphasis and focus.Rita Vohra is the Programme Coordinator,Children andGovernance, HAQ: Centre for ChildRights NewDelhi working towardsthe recognition, promotion and protectionof all children.CLSexual Exploitation Of ChildrenBY APARNA BHAT27 combat law • April - May 2004Prostitutionhasdepartedfrom thetraditionalways thatit wasonceunderstood.of the extensions of the commercialsexual exploitation of children in theglobalised world. These forms are asignificant departure from traditionalchild prostitution in identifiedbrothels.However, the victims who areforced or cheated into prostitutionremain the same. These are largelyhelpless, illiterate, uneducated,young, unexposed, persons who comefrom a disadvantaged socio economicbackground, have adeprived personal life,and have landed up inprostitution in theirsearch for betterprospects. As depictedby Prerana, a MumbaibaedNGO, “they arethe victims of criminalconspiracy, cheating,deception, andcoercion.”One of the mostshocking developmentsin the recent years isthe fact that the mini-

child rightsmum age of the girlswho are being traffickedtoday is fastdecreasing. At anygiven point in time asurvey of the victims ofthe prostitution wouldindicate that as manyas 60% of them areinducted into the tradeas children. Many ofthese children are initiallyinducted into“legitimate” domesticwork and then drawninto prostitution. Quitea few of them are kidnappedand broughtinto prostitution, purchasedby traffickers from the parentsor sent willingly by parentsunder the garb of social custom.A shocking trend has been recordedby Prerana, a Mumbai-based NGOin their book “In Search of a NewLegislation against Trafficking andCommercial Sexual Exploitation”.The technologyof theflesh tradeisrapidlychangingbut theold technologycontinuesside by side.“Unlike in the past neitherthe trafficking ofthe victim nor itsexploitation by theclients needs the sanctityof any social customlike Devadasi or suchother variants of templebased prostitution anymore. Devadasi form asmall segment amongthe victims in today’sflesh markets. Themarket is highly differentiatedfrom the streetmarket to the up market,the client is variedfrom the corporate bossto the wage labourer.The sites of exploitation show abroad range from the dark anddeserted public urinals to the glitteringstar hotels and luxurious beachresorts including a variety of massageparlours. There is a process ofprocuration, stocking, transiting,sorting, grading, porting, labelling,wrapping and advertising of the victimsmostly the children and youngwomen. Reports from the beachbased tourism joints confirm thegrowing number of young boys asvictims of commercial sexualexploitation and trafficking. Thetechnology of the flesh trade is rapidlychanging but the old technologycontinues side by side. The age oldcreepy pimp wading through crowdedlanes in and around the red lightareas whispering his unholy offerscontinues to sell girls. He is nowjoined by a high tech IT professionalrunning pornographic websites,operating telephone lines, chat linesand internet to reach out to theprospective client. He is spendinglong patient hours on chats lines likea predator preying on his prospectivevictims mostly innocent teenagers.The sex trade has grown enormouslynot only in India. It reflectsa global trend. Reports of large scaletrafficking of children and youngwomen mainly for flesh trade areProblems with the Immoral Trafficking (Prevention) Act.• Does not define trafficking;• Departs from the accepted definition of child;oCriminalises victims;• Has no rationale for the punishments; (Section 8)• Criminalises children of prostitutes; (section 4)• Does not make mandatory provisions for setting up of specialinstitutions. (special courts, special police, specialhomes etc.)• The definition of corrective homes need to be changed. Ifsection 2 (b) is read with 2(g), this home may be construedto include prisons. The concept of corrective homes is differentfrom incarceration which are primarily penal detentioncenters. Corrective homes should focus on rehabilitation tothe victims.• There is no rationale behind section 10-A. It treats the victimas a criminal without assigning reasons; the aspect ofissuance of licence under sub-section (3) is very vague; itseeks to regulate the victim's life although it does not provideany rehabilitative assistance;• Section 15 gives large powers to the police. Keeping in mindthe manner in which the Act has been used so far, there is aneed to review police's powers;• Section 17 in the present format must go as it authorizespolice to keep in custody for upto 10 days persons rescuedwhich can be dangerous and is against the standard practicesof the criminal justice system; it also seeks to place avictim in the hands of strangers who may not be suitable totake care of the victim and may in all probability be responsibleto the victim's current status;SUGGESTIONS.• Must define trafficking;• Re-define child as per the definition of the Juvenile Justice(care and protection) Act, 2000;• All rescued women and children must be treated as victimsof the crime and must be rehabilitated;• Children of prostitutes must get special protection. Therehas to be a proviso to section 4 which will provide for thesame.• The punishments under the Act has to incorporate aspectsfrom the Indian Penal Code. The offences are as serious asrape and abetment to multiple rapes. However, the punishmentsare very mild;• Keeping in mind the new trends in commercial sexual trade,the Act has to incorporate larger aspects in prostitution itselfinstead of confining to the brothels;• The Act provides for constitution of special courts and summarytrials. However, it does not prescribe procedures.Keeping in mind the powerful network of traffickers, it isimportant that the Act provides for victim protection and adequatemechanisms of depositions of the victims;• On the whole, the Act seems like a half baked attempt atprosecution and rehabilitation of the victim but without adequatelyproviding for neither. It has to strengthen its institutions,create proper mechanisms and dedicate some moneyfor the better rehabilitation of the victims• All offences must be made non-bailable;28 combat law • April - May 2004

child rightsS.No12345678910111213141516171819202122232425Union Territories2627282930313233Cities3334353637383940414243444546474849505152535455StatesArunachal PradeshAssamBiharGoaGujaratHaryanaHimachal PradeshJ & KKeralaMadhya PradeshMaharashtraManipurMeghalayaMizoramNagalandOrissaPunjabRajasthanSikkimTamil NaduTripuraUttar PradeshWest BengalTotal StatesA & N IslandsChandigarhD & N HaveliDaman & DiuDelhiLakshadeepPondicherryTotal UtsTotal All IndiaAhmedabadBangaloreBhopalChennnaiCoimbatoreDelhi (City)HyderabadIndoreJaipurKanpurKochiKolkataLucknowLudhianaMaduraiMumbaiNagpurPatnaPuneSuratVadodaraVaranasiVishakhapatnamIncidence of I.T (P) Act, 19560179284713129223160002117261100695003049936706009404814895154332236581479420210054336198117435360320Incidence of Importation ofgirls000400000000400000000070006400000000000000000000000003300000Source: Crime in India-2000, NCRB, Ministry of Home Affairs29 combat law • April - May 2004

child rightsCases of crime against children under sections 366A, 372 and 373, IndianPenal Code, 1860.S.No. States Incidence of procuration Incidence of selling girls Incidence of buying girlsof min or girls for prostitution for prostitution1 Andhra Pradesh 2 3 02 Arunachal Pradesh 1 0 03 Assam 21 1 14 Bihar 27 1 05 Goa 1 0 06 Gujarat 19 0 07 Haryana 1 0 438 Himachal Pradesh 0 0 09 J & K 0 0 010 Karnataka 7 0 011 Kerala 9 0 312 Madhya Pradesh 24 1 013 Maharashtra 24 5 114 Manipur 0 0 015 Meghalaya 0 0 016 Mizoram 0 0 017 Nagaland 0 0 018 Orissa 4 0 019 Punjab 0 0 020 Rajasthan 0 0 021 Sikkim 1 0 022 Tamil Nadu 0 0 023 Tripura 0 0 024 Uttar Pradesh 0 0 025 West Bengal 4 4 5Total States 145 15 `53Union Territories26 A & N Islands 0 0 027 Chandigarh 1 0 028 D & N Haveli 0 0 029 Daman & Diu 0 0 030 Delhi 1 0 031 Lakshadweep 0 0 032 Pondicherry 0 0 0Total Uts 2 0 0Total All India 147 15 53[Source: Crime in India-2000, NCRB, Ministry of Home Affairs, Pg 217-extracts from table 30]pouring from all continents at analarming rate. Nevertheless, thereis a yet another exploitativetrend that reinforces the establishedinternational structure of exploitationi.e. the overwhelming majorityof the victims are from the developingnations.”The Immoral Trafficking(Prevention) Act (ITPA), 1956 is30 combat law • April - May 2004unable to address the new formsthat prostitution and child prostitutionhave taken. Besides the factthat it does not even define trafficking,the Act ignores the victim

child rightsCRIME AGAINST CHILDREN, INDIA 1996-2000Sl.No. Crime Head Years Percentage Variation1996 1997 1998 1999 2000 2000 over 1996 2000 over 19991. Child Rape 4083 4414 4153 3153 3132 -23.3. -0.72. Kidnapping & Abduction 571 620 699 791 711 24.5. -10.13 Procuration of minor girls 94 87 171 172 147 56.4 -14.54 Selling of girls for prostitution 6 9 11 13 15 150.0 -15.35 Buying of girls for prostitution 22 13 13 5 53 140.9 9606 Abetment of Suicide 11 13 28 24 18 63.6 -2517 Exposure and Abandonment 554 582 575 593 660 19.1 11.28 Infanticide 113 107 114 87 104 -8.8 19.59 Foeticide 39 57 62 61 91 133.3 49.210 Child Marriage Restraint Act 89 78 56 58 92 3.4 58.6Total 5582 5980 5882 4957 5023 -10.0 1.3[Source: Crime in India-2000, NCRB, Ministry of Home Affairs pg 211- extracts from Table 6.1]completely and does not give anybenefit to children who are victims.It distinguishes between child and aminor even when the definition of agirl child when the amendment cameinto force (1986), was a child uptothe age of 18 years under the1986 JJ Act.One of the primary problems withthe Act is that it makes prostitutionas the only form of trafficking. Thisis deficient by itself. It also suffersfrom not drawing from other penalstatutes like the Indian Penal Code.This leads to confusion within theimplementing agencies.Prostitution after having beenmade illegal, ought to be categorisedas offences like rape, assault, wrongfulconfinement, abduction, threatetc. Unfortunately, this does nothappen and traffickers get awaywith simple punishments.Studies have shown that prosecutionis extremely superficial as theonly people perhaps prosecutedbesides the victim are the womenwho run the brothels. All other playerslike the pimps, touts, middlemanand the primary traffickers who areimportant elements in this huge illegalnetwork are not touched by theprosecution.In almost all the cases the accusedinvariably get bail. The Sessionsjudge dealing with the case does notquestion the nuances and the tricksused by the traffickers. It is importantat this stage to understand themanner in which the law works andits limitations.As a matter of practice when ayoung girl is rescued from a brothelor from any form of prostitution, shehas to be treated as a victim of thecrime and if she is a child as definedunder the Juvenile Justice Care andProtection Act, 2000. She has to beproduced before the Child WelfareCommittee as a child in need of careand protection. The Committeethereafter is under a statutory obligationto ensure that the girl getsproperly rehabilitated.However, it is being heard frommany corners that brothel ownersand the club owners are strongly lobbyingto convert this into a crime andthen to treat the girls as children inconflict with the law. This will meanthat they will be produced before theJuvenile Justice Board. The formatof the Juvenile Justice Care andProtection Act, 2000 entitles them toa bail as a matter of right. Thisentails that the girls are back intothe trade in a matter of two daysthereby defeating the whole purposeof rescue. It is extremely importantthat these methods adopted by thetraffickers are looked at and a legislationwhich is fully comprehensivebe brought in.This legislation should have realteeth. It should prosecute the actualoffenders and rehabilitate the victims.31 combat law • April - May 2004Problems with theImplementation MachineryEverybody in unison agree thatthere is a need to urgently changethe trafficking legislation. However,not much thought has been put intothe actual implementation of thelaw. The best of legislation will beuseless if the implementing machineryis not strengthened and are notsensitised about the use of the law.It is not enough to target just thepolice for sensitisation. It is importantthat prosecutors and judgesare also introduced to modern developmentsin the conduct of trials andencourage them to use it in trialsrelating to rape and commercial sexualexploitation. In order to achievethis, the format of the criminal justicesystem has to change. It has todepart from its present approach ofprosecution of the offenders alone, toa system where overall justice is renderedto the victim. This will essentiallymean that the victim gets aright to participate in the trial withthe same rights as of the accused. Inthe current system, the victim, if sheis lucky, gets a copy of the FirstInformation Report.In a case relating to the mass rescueof victims from the red light areaof Delhi, when the victims’ lawyermade an application to the SessionsJudge to record the evidence throughvideo conferencing, her locus standito move the application was ques-

child rightstioned by the Prosecutor. It is ashocking state of affairs with theprosecutors treating victimsand their lawyers as adversarialswhen they are supposed to be representingthem.A third aspect in any trial relatingto offences under ITPA is the mannerin which custody ofthe victims are routinelygiven to anybody whoclaim to be the parent ofthe victim. This fact,though may soundsweeping will be substantiatedby the statisticson arrests, trialsand convictions underthe ITPA.These facts demonstratethat the police donot as a matter of practiceregister cases ofITPA along with thecases of the IndianPenal Code whichwould have attracted a more severesentence and make the offence nonbailable.It also demonstrates thatthere is no clarity in the implementationmachinery about the scopeand ambit of the Act.It is important that these aspectsare looked into and a more practicallaw is brought into force that wouldfocus on the protection of the victimand eradication of the problem ofcommercial sexual exploitation.Cases Pending before theSupreme Court todayGaurav Jain & Anr. v. Union ofIndiaA petition had been filed subsequentto the judgment of the Court in1997 in which the Petitioner hadasked for the establishment of separateeducational institutions for thechildren of prostitutes and variousother reliefs for them. The twojudges who constituted the Benchhad a difference of opinion on theissuance of directions for eradicationof prostitution. The matter has beenMethodsadopted by thetraffickershave to belooked at anda legislationwhich is fullycomprehensivebe brought in.referred to a larger bench.Shakti Vahini v Union of IndiaThis Petition has been filed challengingthe actions of theRespondents (Union of India and differentStates) that have resulted inthe failure to protect the rights andinterests of victims of trafficking. In1998 the Ministry ofHuman ResourceDevelopment, followingthe direction given bythe Supreme Court,released an Action Planaddressing the issue oftrafficking and gave certainrecommendationsto arrest the problem.The failure of the governmentsto implementthe same has resulted inthe severe deprivationof constitutional rightsand guarantees of thevictims of trafficking.The Petition also challengesthe application of the provisionsof the Juvenile Justice Act1986 and the Immoral Traffic(Prevention) Act 1956 in certaincases that have only aggravatedthe human rights violations againstthe victims.Prerana v. Union of IndiaThis Petition has been filed to seekthe intervention of the Court for thelaying down of guidelines andissuance of certain directions for theeffective rescue and rehabilitation ofvictims of trafficking. It highlightsthe fact that the existing juvenilehomes and protective homes areinadequate and some of them provideinexcusably low quality of medicaland psychiatric care. ThePetition suggests guidelines whichmay be adopted by the StateGovernment to ensure that the rescuedvictims of trafficking are notforced to undergo any further physicaland mental harassment.Prajwala v. Union of IndiaThis petition has been filed to seekthe incorporation of a ‘victim protectionprotocol’ in the guidelines forpre-rescue, rescue and post-rescuestages of rehabilitation of victims oftrafficking. The Supreme Court in itsearlier judgments relating to traffickingand rehabilitation has not, ineffect, laid down any guidelines withregard to protection of victims oftrafficking. The Petitioner, Prajwalaan anti-trafficking organizationhighlights a number of documentsand case studies to show that in theabsence of proper victim protectionmeasures, rescue of commercial sexworkers becomes a self-defeatingexercise, as those rescued are subjectedto further harassment andtrauma and in many cases return tothe flesh trade. Further, the petitiongives suggestions on pre-rescue, rescueand post-rescue stages of rehabilitationof commercially and sexuallyexploited women and children.Savera & Anr. v. State of Goa &Others.A Petition has been filed againstthe July 2003 judgment of theBombay High Court (Goa Bench) inthe Writ Petition filed by Savera.The Petition has been filed on thegrounds that the High Court in itsjudgment ordering eviction of the sexworkers in Baina beach, the red lightarea of Goa, has ignored the recommendationsmade by the JusticeKamat Committee and has legitimizedthe police atrocities againstthe sex workers by its order. Thepetition also challenges the exemptionof the Government of Goa by theHigh Court from any responsibilitytowards rehabilitation of the sexworkers who are presumably notfrom Goa and their deportation withouta rehabilitation program.Aparna Bhatt is a lawyer practisingin Supreme Court of India whohas filed some important cases onsexual harassment in the SupremeCourt and High Court of Delhi.CL32 combat law • April - May 2004

child rightsChild Sexual Abuse - Time for ActionBY PRATHIBA MENONChild Sexual Abuse iscomplete violation of achild’s dignity. It is theacts or failures byadults, which results inphysical or emotional harm to thechild, and prevents the child fromdeveloping in a healthy manner.Children are often abused at thehands of the state, society and familyin most shameful and objectionableways.Sexual abuse has many forms. Itcan sometimes be so subtle that achild may not even be aware that theabuse is taking place, just thathe/she is uncomfortable with it. Theabuse can be verbal, physical or emotional,just like any other kind ofabuse.Sexual abuse may include Sexual touching and fondling Exposing a child to pornographicmaterials and or adult sexualactivity having a child pose, undress orperform in a sexual fashion “peeping” into bedrooms or bathroomsrape or attempted rapeThere are many reasons why childrendon’t tell others about sexualabuse. The biggest of these are fearand guilt. Children often fear thatthey will not be believed about thesexual abuse or they blame themselvesfor the abuse inflicted on themby others. They see it as punishmentfor deeds that they may have done.Everyone fears the unknown, especiallychildren.In most cases children are abusednot by strangers but by people theyknow and may even be fond of. Thisis yet another reason for them tokeep quiet about the abuse. In somecases the abused children identifywith their abusers and start seeingthem as their “protectors”. This kindof identification is an extension ofthe Stockholm Syndrome, where acaptive identifies with the captor. Inthe same manner, a victim of childsexual abuse is sometimes gratifiedby the attention showered onhim/her by the abuser or has strongfeelings towards the abuser. It istherefore important for a victim ofsexual abuse to understand thatwhat the abuser has done is not beneficialto the child and will hurt thechild in the long term.Popular Myths about ChildSexual AbuseChild sexual abuse takes placeat the hands of strangers on thestreet.Statistics reflect that a greaternumber of children are abused athome than in other settings.Generally, children are sexuallyabused by adults who are related tothem, or known to them or their families,and the abuse occurs at thehome of the perpetrator.Child sexual exploiters are monstersor psychopaths or mentallyill persons.Child sexual abusers or exploitersare not monsters. A child sexual33 combat law • April - May 2004AMITA CHAVANabuser could be your ‘nice’ neighbourwith whose children your child playsevery evening. Child sexualexploiters attempt to justify theiraction in different ways; the childrenthey abuse are not harmed by theabuse, the abused children were inany event sexually open and free,child prostitutes are desperate formoney and therefore benefit fromsexual contact with adults and manymore such excuses.Child abusers have been victimsof child abuse themselves.Sexual abuse is about corruption,not all victims go on to becomeabusers. The victim, especially thoseliving on the streets, often have sexwithout being informed about theconsequences or make uninformeddecisions based on socio-economic orpeerpressure.Child sexual exploiters are distinctfrom prostitute-users.Child sexual exploiters are mainlyprostitute-users and do not form asub-group. The majority of prostitutedchildren are integrated into themainstream sex industry whichserves all those who purchase sex.‘Seductive children’ entice theperpetrator and enjoy the abuse.

child rightsThis is an adult perpetrator’s perception.Not even the most extremeseductive behaviour can ever makethe child responsible for an adultresponse of sexual abuse. It must bekept in mind that pre- pubescentchildren can never give informedconsent. Sexual activity with childrenis performed for the satisfactionof sexual gratification of an adultand not in response to a child’sneeds. Financially helping starvingchildren in return for sexual servicesis the justification voiced by touristswho sexually exploit children. Theclaim that the child was probablyenjoying the sexual encounter ifhe/she did not stop the abuse orreport it at the first instance is anabsurdnotion.Children do not transmit theAIDS virus.The assumption is that childrenare not HIV infected and do notspread AIDS. There is also a beliefthat having sex with a virgin child isa cure for AIDS and other sexuallytransmitteddiseases.Reporting of child sexual abusecauses more harm than good.This statement is incorrect anddamaging. It is necessary to reportcases of child abuse as it will act as adeterrent, and will also create a database of vulnerable children and childabusers. Child sexual abuse is notreported because it is stigmatising,and there is apprehension that thecomplex legal procedure will furthertraumatise the abused child. Thereis also fear that the perpetrator ofthe offence will seek revenge.Legal IssuesThe Law Commission of India in its172nd report has recommended theamendment of rape laws, which shallinclude changes in the Indian PenalCode, 1860. It has been recommendedthat Section 375 of the IndianPenal Code should be made genderneutral and penetration which is arequisite for rape as per Indian Lawwill now include not just penile penetrationbut penetration by anyother part of the body or by any otherobject. The Law Commission has furtherrecommended the deletion ofSection 377 of the Indian Penal Codewhich is the section on unnaturaloffences.Naz Foundation, a registered nongovernmentalorganization filed apublic interest litigation in the DelhiHigh Court praying in 2001 for a declarationthat Section 377, to theextent that it is applicable to andpenalizes sexual acts in privatebetween consenting adults, is violativeof Articles, 14, 15, 19 (1) (a-d)and 21 of the Constitution of India.This petition particularly deals withthe reading down of Section 377(unnatural offences), where any kindof sexual act with a child below theage of 18 years will be penalised.Consensual sexual relations betweentwo men will not be penalised underthis section. Section 377 has beenused as a tool by the police and theState for harassing adult men whohave consensual sexual relationswith other men.There are other groups and gayactivists who have been protestingthe reading down of Section 377.These groups have been asking forthe complete repeal of Section 377and a separate legislation to bepassed for protecting the rights ofchildren who have been sexuallyassaulted.Child Rights groups all over Indiafeel that amendment of rape lawsand reading down of Section 377 isnot going to prevent child sexualabuse, protect children or punishchild abusers. The only solution thatwill satisfy all the abovementionedgroups is a separate law on child sexualabuse. This law should cover aproper definition of child sexualabuse that is inclusive of any act of asexual nature committed by an adulttowards a child under eighteen yearsof age and which also includes acts ofa pornographic nature. The actshould also include procedural34 combat law • April - May 2004changes that are of a child friendlynature and stricter punishmenttowards perpetrators and abettors ofchild sexual abuse.Need for a New Law onChild Sexual AbuseIndia has recognized the fact thatchildren have special needs andtherefore require special legislationthat will protect the best interest ofthe child. The Juvenile Justice [Care& Protection of Children] Act 2000 isan act that protects and promotesthe interest of a child in conflict withthe law and a child in need of careand protection.A victim of child sexual abuse canbe physically removed from the placeof abuse and kept in the ObservationHome. But the Juvenile Justice Act,2000, does not ensure that the perpetratoris punished appropriately.Section 23 of the Juvenile JusticeAct, 2000, talks about punishmentfor cruelty to juvenile or child. Theterm of punishment is imprisonmentfor a term which may extend to sixmonths, or fine, or both. A victim ofchild sexual abuse will undergo thetrauma of abuse for the rest ofhis/her life. The perpetrator willundergo only six months of punishmentor a paltry fine.No Indian legislation has attemptedto even define child sexual abuse.One out of every four children in theworld is a victim of sexual abuse butIndia has not seen fit to even recognisethe problem.A perpetrator of child sexual abusehas only a few sections in the IndianPenal Code that applies to him Section 376- if the child has beenraped. Section 324- if simple hurt hasbeen caused to a child Section 326- if grievous hurthas been caused to a child. Section 307- if there has been anattempt to murder the child Section 302- if the child hasbeen murdered. Section 377- if a child has been

child rightssodomised or if it is a boy child. Section 354- outraging the modestyof a woman.There is absolutely no section inthe IPC that covers all the variouskinds of abuse that is done by anadult to a child. If a child has beenfondled in her genital area but thereis no penile penetration, Section 354of the IPC is applied. Section 354 is abailable section which means if theperpetrator is arrested, he can getbail either from the police stationitself or from the Magistrate’s courton his first remand.It is therefore imperative that anew legislation is passed for the protectionof victims of child sexualabuse and for stricter punishment ofchild sexual abusers. This lawshould cover important aspects like:a) A complete definition of all thedifferent kinds of child sexual abusewhich shall include penetration ofany kind whether it is penile or withan object or a finger. The definitionshould also include the various kindsof pornography a child is subjected towhether the child is being used inthe proceedings or is being made towatch acts of a sexual nature.b) Filing an F.I.R. in the nearestpolice station after the abuse is usuallya traumatic task for the victimand her family. Therefore, filing anF.I.R. should be made simpler for thevictim and the police must be sensitiveand not victimise an alreadytraumatised and shattered victim.c) Court procedure should be childfriendly. Defence lawyers should notbe allowed to harass the victim andthe judge should ensure that the victimhas a social worker or guardianin court with her. A case of child sexualabuse or rape should be givenpriority because if the case comes upafter 5-7 years, it is possible that thechild may have gotten married or herparents may think that she is too oldto testify as the child would practicallybe a woman and society wouldpoint their fingers at her.d) Stricter punishment to child sexualabusers and abettors of child sexualabuse. The punishment shouldbe according to the gravity of theoffence but should also take intoaccount not just the physical traumacaused to a child but also the emotionaltrauma that is undergone bythe victim. A minimum period ofpunishment should also be specifiedfor child sexual abusers.Article 34 of the Convention on theRights of the Child declares “State35 combat law • April - May 2004parties undertake to protect thechild from all forms of sexualexploitation and sexual abuse. Forthese purposes, State parties shall inparticular take all appropriatenational, bilateral and multilateralmeasures to prevent: The inducement or coercion of achild to engage in any unlawfulsexual activity; The exploitative use of childrenin prostitution or other unlawfulsexual practises; The exploitative use of childrenin pornographic performancesand materials.India has signed and ratified theabove document but has made nomove towards the implementation ofArticle 34 in its national legislations.While child rights groups, women’sgroups and gay rights groups debateover various laws, the only losers areyoung children who are violated on adaily basis. It is now time to stopdebating and start protecting ourchildren from the evil of child sexualabuse.Prathiba Menon is a childs rightslawyer and activist.Beyond the Protection of Juvenile LegislationBY MAHARUKH ADENWALLALegislation is very clear inits intention that juvenilesare not to be incarceratedin jails pendinginquiry or on conviction.Such provision has been in the lawbooks since the Childrens’ Act, but avisit to the "baba ward" in MumbaiCentral Prison, an undertrialprison, belies this provision. The"baba ward" houses offenders manyof whom are visibly under 18 yearsof age. The situation must surely bethe same in other parts of the country.Despite the safeguards incorporatedin the law and procedure,ensuring children protection of juvenilelegislation, juveniles continue toform part of the criminal justice systemas is applicable to adults.Juvenile legislation since its inceptionhas emphasized that a childcharged with commission of a crimeshould be dealt with differently froman adult offender. Its focus is onrehabilitation rather than punitiveaction. A separate adjudicatingmechanism and manner of dispositionhas been envisaged to meet thisobjective. The Bombay Children Act1948, as amended from time to time,spoke of children being kept inApproved Centres , ClassifyingCentres or Observation Homes, andCLprohibited the sentencing of a childto death, transportation or imprisonment.The Juvenile Justice Act1986, which replaced the ChildrenActs prevailing in different States,had categorically included as one ofits Statement of Objects andReasons, "to lay down a uniformlegal framework for juvenile justicein the country so as to ensure thatno child under any circumstances islodged in jail or lock-up". This basictenet continues in the Act presentlyin force when it states that achild pending inquiry must be keptin an Observation Home and that onguilt being proved, the child must bedealt with under section 15 (1).

child rightsSection 15 (1) provides for differentmodes of disposition, including incarceration,but in a Special Home.StreamliningLawsThe UN Convention on the Rightsof the Child has also whilst dealingwith juvenile offenders stressed ontreatment commensurate with "thechild's age and the desirability ofpromoting the child's reintegrationand the child's assuming a constructiverole in society. " Both the 1986and 2000 Act as one of their objectivesspeak of bringing the Indianlaw in conformity with the UnitedNations Standard Minimum Rulesfor the Administration of JuvenileJustice 1985 , and the latter Act alsomentions the United Nations Rulesfor the Protection of JuvenilesDeprived of their Liberty 1990 . Thefirst of these UN Rules underlinesthat (i) juvenile offenders must betreated differently from adults inrespective legal systems, (ii) laws,rules and provisions must be madefor juvenile offenders and institutionsand bodies entrusted with theadministration of juvenile justice,(iii) the emphasis must be on thewell-being of the juvenile, (iv) thetreatment of juveniles must bebased on their personal circumstances,e.g., family situation, (v)pending trial juveniles should bekept away from adults by detainingthem in a separate institution or ina separate part of an institutionhousing adults, (vi) the placement ofjuveniles in institutions shouldalways be a disposition of last resortand for a minimum necessary period.The 1990 Rules mainly deal with themanagement of juvenile facilities,moreparticularlyclassification and placement; physicalenvironment and accommodation;education, vocational training andwork; recreation; medical care; personnel.The Supreme Court in 1986 whenconfronted with the issue of childrenin jails has held that "it is the dutyof the State to look after the childwith a view to ensuring full developmentof its personality. That is whyall the statutes dealing with childrenprovide that a child shall not bekept in jail." The court has also castigatedthe practice of keeping childrenin a separate ward in prisonsby observing "It is the atmosphere ofthe jail which has a highly injuriouseffect on the mind of the child,estranging him from the society andbreeding in him aversion borderingon hatred against a system whichkeeps him in jail." The Apex Courthas very finely dealt with the oftrepeated excuse of insufficientaccommodation in the ObservationHome, directing that bail be grantedinstead of subjecting a child to incarcerationin jail. In Gopinath Ghosh'scase , the Supreme Court has cast aduty upon Magistrates to conductage inquiries when it appears thatthe person brought before them isunder 21 years of age. The CriminalManual calls upon Magistrates andJudges to conduct age determinationinquiries when the accused appearsto be a child. In Bola Bhagat's case ,the Supreme Court has laid downthat all courts must ascertain theage of the accused when claim ofjuvenility is made on his behalf.Sadly, despite legal pronouncementsand socially-progressive provisionsof law, children are still heldin jails. The Juvenile Justice [Careand Protection of Children] Actdeals with the child within the juvenilejustice system, and obligatespolice to produce him before theJuvenile Justice Board and placehim in an Observation Home. Thepolice in violation of this provisionhave constantly shown juveniles asadults, kept them in police lock-upsand produced them beforeMagistrates. The reason for doing sois not difficult to comprehend : thepolice want absolute custody of theaccused for as long a period as possibleto compel confessions and showfake recoveries. Whilst in the36 combat law • April - May 2004Observation Home, custodial interrogationis possible only with permissionof the Juvenile JusticeBoard and in the presence oftrained child-care professionals.Moreover, the Magistrates in caseafter case fail to note that theaccused produced before them arejuveniles. Generally the juveniledoes not have legal representation;not realising the importance of orbeing too frightened to speak-up, theplea of juvenility is not raised at thefirst possible instance. Experienceshows that it is only when the trialis ready to begin that a legal-aidlawyer is appointed who then mayraise the plea of juvenility before theTrial Court, and an age determinationinquiry may be conducted andthe case transferred to the competentauthority constituted underjuvenile legislation. The only timethe accused is specifically asked hisage by the Magistrate of Judge is atthe time of framing of charges whichis sometimes as long as 3 to 4 yearsafter arrest when the person mayhave ceased to be a juvenile, and dueto non-application of mind, the factthat the accused was a juvenile ondate of offence is once again missed.Therefore, due to the failure of thesystem and no fault of the juvenile,he loses the intended legislative protection.The Supreme Court has onseveral occasions deprecated thisapathy on the part of thelower judiciary.Rajeev's case is one such casewhere despite his being declared ajuvenile by the Sessions Court, hewas shifted to the ObservationHome only on the intervention of theBombay High Court. Rajeev wasarrested on 25-5-2002, shown to bean adult and produced before theMagistrate. On committal of thecase to the Sessions Court, he wasoffered the services of a Stateappointedlawyer who filed an applicationfor declaring Rajeev a juvenile.The Sessions court declaredRajeev a juvenile on the basis of a

child rightsSchool Transfer Certificate thatreflected his date of birth as 8-1-1986 and on the basis of medicalexamination conducted at the PoliceHospital. In complete disobedienceof the order, Rajeev was not shiftedto the Observation Home. It wasonly when a criminal writ petitionwas filed and orders passed thereinthat Rajeev was transferred to theObservation Home on 13-6-2004.Alarmed by the indifferent mannerin which the criminal justice systemtreats children and orders of thecourts, the Bombay High Courtawarded Rs.15,000/- as compensationto the boy juvenile. The State ofMaharashtra approached theSupreme Court against the BombayHigh Court's order, but the State'spetition was rejected . Rajeev wasonly 16 years 4 months when theoffence was committed. TheSessions Court in its transfer orderhas mentioned that Rajeev"appeared to be much younger" thanhis age shown by the police.Rajeev is just one such case; applicationsare regularly being filedbefore the Magistrates and SessionsCourt, and juveniles are being transferredto the Observation Home , butat most times after having spentyears in jail. Not only doesincarceration in jail bring the childin contact with hardened criminals :stay in prison is also not compatiblewith the child's comprehensivedevelopment.In a special child-centred institution,the child receives care and protectionas well as psychological, educationaland vocational assistancecommensurate with the needs ofeach individual child.Is Institutionalisation theAnswer?Insitutionalisation of children,whether in jail or children centres, isnot advisable for the child's holisticdevelopment as most institutionsare closed institutions segregatingthe child from its social environment.The law in recognising this,has sought to ensure that a childdoes not undergo prolonged incarceration.Bail is mandatory underjuvenile legislation; the only groundfor refusing bail is in the event of thejuvenile coming into contact withknown criminals or the likelihood ofdanger to the juvenile's life. InMumbai, on any given day there areabout 100 juveniles in conflict withlaw in the Observation Home mostof whom have come to the city toearn a living; their bails have eitherbeen rejected or they have not hadany legal representation. Thismakes "mandatory bail" just anotherchild-friendly legal terminologywith no implementation. The legalsystem whilst entertaining juvenilebail applications is swayed by thesame considerations as would beexamined whilst hearing the bailapplication of an adult offender, viz.,gravity of offence, tampering withwitnesses, apprehension of absconding,absence of family, defeating theends of justice. Even when bail isgranted, juveniles are unable toavail of the same as they cannot geta person to stand surety for them inthe absence of family or social support.The expeditious disposal ofjuvenile cases would also ease theburden of the Observation Homeand ensure that the child's stay inthe institution is curtailed to a shortperiod. Under the Juvenile Justice[Care and Protection of Children]Act 2000, an inquiry is to be completedwithin a period of 4 months ,but this is wishful thinking, in thepresent scenario juveniles remain inthe Home for more than a year pendinginquiry. In Mumbai, this prolongedstay is mainly because theJuvenile Justice Board has not yetbeen constituted ,the Juvenile Court sits a mere 3days a week and also holds charge ofa regular court.Though the functioning of thejuvenile justice system requiresstreamlining, it is necessary that37 combat law • April - May 2004measures be taken to ensure that anaccused child is not denied its protection.It is worrying that personsnot identified as juveniles may continueto be handled by the criminaljustice system, and sentenced toimprisonment, including life imprisonment.To check and ensure that ajuvenile receives the envisaged protection,it is imperative that lawyershave access to jails. The MaharshtraState [Visits to Jails and Homes forChildren] Project Rules 1993 containsa provision for appointment ofDuty Counsel, i.e. a lawyer, to visitjails. A Duty Counsel is appointedby the State Legal-Aid ServicesAuthority to provide or refer forlegal-aid those cases where theaccused are not in a position to paylegal fees. Lawyers' access to prisonshelps in identifying juveniles injails; Rajeev's plight was brought tothe notice of the judiciary by a DutyCounsel. It is also a vigilant lowerjudiciary that would play an importantrole to curtail this illegal detentionof children, and could also compelthe police to desist from deliberatelyportraying children as adultsthereby depriving them of theirrights under juvenile legislation.The procedure should obligate theMagistrates to ask the accused hisage, and record the same forappropriate action.An effective way to control thismisuse is to create awareness aboutjuvenile legislation not onlyamongst the public and the legal /judicial fraternity, but also amongstchildren ho are vulnerable to beingpicked-up by the police so that theythemselves are in a position to voicetheir juvenility before the concernedauthority.Maharukh Adenwalla is alawyer in the Bombay High Courtand is involved on issues concerningChild Rights and Housing Rights.CL

child rightsWORLD MAP OF CHILD SOLDIERS (2000/2001)List of Countries with Child Soldiers Fighting in Recent and Ongoing CVonflicts(G: government armed forces, P: paramilitaries, O: armed opposition groups)Colombia(P,O)Mexico (P,O)Peru (O)Russian Federation (O)Turkey (O)Yugoslavia (former Rep. of)(P,O)Algeria (P,O)Angola (G,O)Burundi (G,O)Chad (G)Republic of Congo (G,O)Dem.Rep. of the Congo (G,O)Eritrea (G)Ethiopia (G)Rwanda (G,O)Sierra Leone (G,P,O)Somalia (all groups)Sudan (G,P,O)Uganda (G,O)AMITA CHAVANIran (G,O)Iraq (G,O)Israel and Occupied Territories(G,O)Lebanon (O)Afghanistan (all groups)India (P,O)Indonesia (P,O)Myanmar (G,O)Nepal (O)Pakistan (O)Philippines (O)Solomon Islands (O)Sri Lanka (O)East Timor (P,O)Tajikistan (O)Papua New Guinea (O)Uzbekistan (O)Note: This map indicates only situations in which children have actively participated in conflict. It does not show all countrieswhere children are recruited into government armed forces or armed groups. Please refer to individual countryentries in the Child Soldiers Global Report (2001) for further information.38 combat law • April - May 2004

child rightsChild Labour and Cultural RelativismsBY PARUL SHARMAThe problem of childlabour is international inscope. It is a result ofpoverty, the lack of politicalcommitment to endit, and weak legal and monitoringmechanisms.In the developing world, factorssuch as enormous debt burdens,bloated military budgets, and structuraladjustment programs affectpoor families drastically. Averageincomes have fallen over the past 10years in many countries, and socialsector spending — which previouslyhelped support the poor — has beenseverely reduced. Compounding theproblem, heightened competition onthe global marketplace has raisedthe demand for cheap andexploitable labour.Internationally, legal measuressuch as trade sanctions againstcountries where child labour occurscan be counter-productive and actuallyharm the children. This furtherimpoverishes societies becausewages are pushed lower by childlabour and adults remain underemployedor out of work. Thus, the cycleof labour and deepening poverty continuesthrough generations.It is difficult to say how many childrenare involved in labour worldwide.A recent report released by theInternational Labour Organization(ILO) titled “Child Labour:Targeting the Intolerable” estimatesthat there are some 250 million childrenbetween the ages of 5 and 14working in developing countries.According to the ILO report, approximately120 million children areworking full-time and 130 millionworks part-time.The Situation in IndiaThere is hardly any product inIndia, which has no child labourbehind it. Be it locks, carpets, bangles,bricks, matchboxes and crackers.It is quite amazing to note thatmore than 300 central and statestatutes concerning children havebeen enacted to protect and safeguardthe interest of the child workers.Yet the truth remains that theyhave badly failed to cherish the goalof child welfare in its trueperspective.India has the distinction of beingthe nation with the largest numberof child labourers in the world. Theofficial figure of child labourers is 13million. But the actual number ismuch higher. Reports from recenttimes indicate the absurd conclusionof the number being anythingbetween 14-100 million children.There is an argument that childlabour represents a stage of development,which all countries passthrough before full-blown capitalismis reached and child labour becomesobsolete, either because of technologyor loss of cost effectiveness. This iscertainly an argument the IndianGovernment has used to explainaway the persistence of child labour.Looking at it closer, India mayalready have reached that full-blowncapitalism (India Shining) asreferred to by the same Governmentin other contexts.Child labour is defined by Article32 of the Convention on the Rights ofthe Child as any economic exploitationor work that is likely to be hazardousor interferes with the child’seducation, or is harmful to the child’shealth or physical, mental, spiritual,moral, or social development. Article32 consists of all the componentsrequired to understand a need of achild inside or outside labour.However, policy makers have nottaken the pluralist view of the causesof child labour, which would actuallyamount to laws with strongerenforceability.39 combat law • April - May 2004Despite strong wordings in legislations,how often do we hear policymakers referring to children inlabour and their right to health andmental health and measures guaranteeingthe same? How often do wehear of state making a commitmentto children in labour and their rightto equality and education and measuresguaranteeing the same? Theseguarantees can only be made if socialchains are understood and studied.Time utilization data indicate thatout - of - school children work about4.7 hours a day on average, about 2hours more than school going childreni. . Deprivation of money formeals is generally a reason for notsending children to school.The Supreme Court of India did setpath for the mid day meal scheme,however, many states, for instanceKarnataka, find it difficult to implementthe same due to the fact of notbeing able to mix children from differentcastes while having the meals.Furthermore, it is well known thatschool participation and educationallevels in India are particularly lowamong socially disadvantaged communities,notably the “scheduledcastes”. A combined approach ofeducation, income-generation, andadvocacy are valuable measures, anda must to include. Education, in particular,is a key strategy to combatchild labour, and can only succeed inIndia if genuine screenings are madeof each geographical spot where aschool is being invested in or set up.The Supreme Court in UnnikrishnanJ.P. v. State of Andhra Pradesh(1993) SCC 645 is a landmark judgmentwhich declared that every childup to 14 years of age has a fundamentalright to primary education.National generalized schemes maynot be able to remove the culturalhurdles, which have long historicalroots in a particular area of India,such as the understanding of the

child rightscaste system or how different groupsview women in education. Here, itcould be valuable to draw lessonsfrom the somewhat misused term ofcultural relativism in human rights.India being a subcontinent of massivecapacity suffers from a numberof cultural relativisms when we discussrights based issues. In eachnational intervention, which concernschildren, the question of how itcan combat child labour should beasked. DPEP and SSA, which aremajor governmental primary educationinterventions in India, haverelated or linked themselves to childlabour issues in a very meagre manner,and therefore missed out onissues directly linked to the problemof not being able to enrol, or notbeing able to create permanency inprimary education ii. .Compulsory education can indeedhelp reduce the practice but it is notenough to neutralize the demand forchild labour where poverty exists,especially if the education schemedoes not include cultural segmentsin specific areas.Children in labour and itsaftermath; issues of rehabilitationThe physical dangers associatedwith child labour often transcend themoral implications. Hazardous andexploitative child labour has a profoundnegative impact on a child’sphysical, emotional, mental,spiritual, moral, and social development.In many cases, childrenengaged in labour suffer poor health,a lower IQ, physical harm and abuse,low self-esteem, little or no education,and deprivation of adequatesupport systems.There are various issues withchild labour and education. One isthe cultural implication in the variousregions of the country, theother is special education for childrenwho have been through theaggressions of child labour- linkedto rehabilitation. The measurestaken by the government for therelease of children, from hazardousoccupations are significant throughthe formulation of National ChildLabour projects (NCL projects). Thiswas an attempt towards visualizingeducation as one of the basic ingredientsof child welfare services, withAMITA CHAVANmain areas such as: Stepping up enforcement ofchild labour laws Non-formal education Income and employment generations Special schools Sensitising public on childlabour issues Survey and evaluation.This has made it possible for alarge number of children to come outof their cruel surroundings and deprivation.However, inherent flaws inthe Child Labour Act (Prohibitionand regulation), 1986 has failed toprovide relief to the large number ofchildren, who are engaged in worksituations outside those listedindustries.Furthermore, a section of childrenengaged in assisting their familymembers in craft activities also falloutside the purview of this Act. It is40 combat law • April - May 2004also a fact that the policies andschemes failed to relate to the socioeconomicrealities of families of theaffected children. For many households,children work not only to meettheir own basic needs but also for thesurvival of their families. In theabsence of proper support from theState and the society, such hastysteps have gone against the “Right toSurvival” and the “best interest ofthe child”.One area rarely touched upon isthe mental health aspects and supportof the children rescued fromhazardous child labour. Looking atthe mental health aspects wouldindeed break the cycle of violenceand aggressions created throughpractices such as child labour. Herethe legislator plays an importantrole in realizing the need for mentalhealth professionals while rehabilitatingchildren. This has to be incorporatedin the NCL projects as aprimer objective in the rehabilitationprocess of children rescued fromchild labour.ConclusionThe Indian policy and lawmakersare clearly working with contradictoryinitiatives, half planned policies,and generic mechanisms when itcomes to fighting child labour.Unfortunately, there is a lack ofmechanisms, which are capable ofattacking the underlying problem ofpoverty – and actual reasons for violationsof child rights. The Indian

child rightsscene of child labour is dominatedwith various cultural impacts whereeducation alone cannot work to completethe rights chain. Each state,and each district have varied culturalimpacts and cannot be addressedthrough a national scheme alone.Similarly, issues of rehabilitationand mental health considerationscannot be addressed until the size ofthe problem is acknowledged.At a policy level there is a long wayto go. The first step would be to stepBY SHIBANI GHOSHThe Juvenile Justice(Care and Protection ofChildren) Act, 2000 (56of 2000) considers adoptionof a child, who isabandoned, orphaned, neglected orabused in their families or in institutions,to be one of the ideal ways ofrehabilitation and social integrationfor the child. Certain provisions ofthis Act ostensibly remove the anomaliesthat existed in the law relatedto adoption in India. However, theobjective of the Act is in effect defeateddue to its conflict with the existinglaw which has neither beenexpressly nor impliedly beenrepealed by the Act or any other legislativeprovision.Section 1.3 of the Aims andObjectives, of the Revised GuidelinesTo Regulate Matter Relating ToAdoption Of Indian Children (1994)says that the thrust of NationalPolicy for the Welfare of Childrenformulated by the Government ofIndia is summed up in the followingwords:“The nation’s children are asupremely important asset. Theirnurture and solicitude are ourresponsibility…Equal opportunitiesout of the denial phase, the second torealise the country’s cultural diversitiestowards children, and the thirdto understand the needs of a childwho has been rescued from childlabour.Endnotes:i.See No.18 of a series of papers onEconomic Development: School participationin Rural India by JeanDress and Greta Gandhi Kingdomii. DPEP- District PrimaryEducation Programmed, and SSA-Critical Analysis Of TheAdoption Lawfor development to all children duringthe period of growth should beour aim, for this would serve ourlarger purpose of reducing inequalityand ensuring social justice.”This Article, in brief, analyses thelaw regarding adoption of children inIndia and demonstrates how thesame will remain to be discriminatory,unjust and deny equal opportunitiesto children until such statutoryinstruments are introduced whichnot only explain andenable the provisions ofthe Act of 2000 but alsorepeal the conflictingpre-existing law.Until the coming intoforce of the JuvenileJustice Act 2000, theonly legislation enablingadoption was the HinduAdoptionandMaintenance Act 1956(HAMA). According theprovisions of the Actonly Hindus (which asper the definition givenin the Act also includesBuddhists Sikhs, andJains), can adopt, givein adoption or be adopted.The Muslims,Christians, Jews and41 combat law • April - May 2004A new Codethat encouragesadoptionof childrenhaving haveadequate safeguardsto preventany incidentof traffickingorexploitation ofthe child is theneed.Sarva Siksha Abhiyaan (educationfor all)Parul Sharma is currently workingwith the Human Rights LawNetwork in New Delhi as a seniorlegal adviser. She has worked for theSwedish Foreign Ministry, and as aHuman Rights Adviser with theEuropean Commission in India.CLParsis could only become guardiansof a child under the Guardian andWards Act 1890 (GAWA). While theHAMA gives the status of a naturalborn child to an adopted child on thecompletion of the adoptionprocedure, the fiduciary relationshipestablished under the GAWAbetween the guardian and ward doesnot do so. For instance, unlessexpressed in the will, a person takenunder guardianship by a family cannotclaim property afterthe death of the parents.He has no legalrights incase of intestatesuccession.Further, on attainmentof majority of the ward,the powers of aguardian cease.Lawyers, socialactivists, adoptionsagencies and thosewanting to adopt a childfor various reasonshave criticized theHAMA. Firstly, a marriedwoman can onlyconsent to an adoptionby her husband. Shecannot initiate theprocess herself.Secondly, according to

child rightsSection 11 of the Act, a child of thesame sex as the one the adoptingparents already have cannot beadopted. Consequently, in case anadoption agency has siblings of thesame sex they are forced to separatethem and give them in adoptionto different homes. From theguidelines issued by the CentralAdoption Resource Agency (CARA)it is apparent that in an attemptnot to separate siblings, specialprovisions have been made toencourage inter-country adoptionfor them. At the same time theSupreme Court in its landmarkjudgment in LK Pandey v. Union ofIndia on the CARA guidelines categoricallystate that all effortsmust be made to place the child inIndia itself and resort to intercountryadoption as a last resort.Thirdly, Section 11 does not allowthe adoption of a son in case theadopting parent or parents alreadyhave a grandson or great-grandson ordaughter in case they have a granddaughter. Such a provision only discouragesadoption and denies theopportunity to many children to ahappy future and a loving family.According to the CARA Guidelines theadoption procedure cannot be completedwithout an exhaustive Home StudyReport of the adopting parents, theirbackground, their family, income etc.Therefore, as the investigation thatgoes into making the Report is quitesufficient to decide whether the childwould be given the necessary love andattention and unnecessary precautionslike Section 11 are redundant.The Juvenile Justice Act 2000 providesthat any child can be given foradoption that is orphaned, abandoned,neglected and abusedthrough institutional and non-institutionalmethods. It does not drawany distinction between the childrenof different religion. However, theAct does not apply to cases where thebiological parents themselves surrenderthe child to the adopting parents.This would mean that while aHindu family who due to severepoverty cannot take good care oftheir child, can find a suitable familywilling to adopt the child, a childfrom a non-Hindu family cannot beadopted in a similar fashion.Furthermore, the Act does notrepeal the provisions of the HAMA itcontradicts. Since the latter is amore specific legislative instrumentthan the former, it would continue togovern the Hindus in points wherethey are contradictory. For instance,while the Act of 2000 defines a childas one who has not attained the ageof eighteen, and therefore can begiven for adoption till then, theHAMA does not allow the adoption ofa child above the age of 15 years. TheAct of 2000 allows children to beadopted irrespective the sex of thebiological daughters and sons.However, the bar on adoption of sonincase of a living grandson or greatgrandson and of a daughter in case ofa living granddaughter [(Section11(i) and (ii)] persists.The Act of 2000 in Section 41 statesthat the adoption procedure must bein accordance to the guidelinesissued by the State Governments.This means in the absence of guidelinesby the state governments, theadoption will continue to take placeaccording to the pre-existing adoptionlaw that is HAMA, applicable toonly the Hindus and inapplicable tothe non-Hindu community. TheGuidelines issued by the CARA arethe regulatory framework so far asany in/inter country adoption inIndia. The Juvenile Justice Act doesnot clarify the position of the existingCARA guidelines in governing theadoption process under the Act andin fact proposes to be governed bynew guidelines that have to be set bythe State governments.What India requires now in aUniform Adoption Code that wouldprescribe a uniform procedure foradoption of children irrespective oftheir religion and irrespective of thereligion of the adopting parents. A42 combat law • April - May 2004similar step had been proposed inthe Adoption of Children Bill 1976.Unfortunately the same was notpassed by the Legislature, due tostrong opposition by the Muslimcommunity, according to whomadoption was against their religion.Such an opposition is unnecessary asthe Bill did not impose any obligationor take away any right of theMuslim community. It only gave anoption to those willing to adopt. TheChildren’s Code Bill 2000 also proposesthe same changes in the law.The Juvenile Justice Act though inprinciple might remedy the flaws inthe adoption law in India; it does notlay down the necessary proceduralsafeguards and creates parallelmechanisms to those existing now. Anew Code has to be introduced whichwould encourage the adoption of childrenby reducing the unnecessaryrestrictions and at the same timehave adequate safeguards to preventany incident of trafficking orexploitation of the child. The KeralaHigh Court in Philips Alfred Malvinv. Y.J. Gonsalvis and Others, heldthat the right of the couple to adopt ason is a constitutional right guaranteedunder Article 21 as the right tolife includes those things whichmake life meaningful. India has ratifiedthe Convention on the Rights ofChild and is therefore under aninternational obligations to fulfill themandate of the Convention whichprohibits discrimination of childrenand promotes the development of thechild and his or her best intersts.The international obligations andthe constitutional mandate laiddown in Article 39(f) along with thefundamental rights enshrined inArticle 14 and Article 21 of theConstitution of India have not onlyto be read, but also interpreted andapplied effectively into the lawregarding adoption.Shibani Ghosh is IIIrd yearStudent at the National University ofJuridical Sciences, Kolkata. CL

BY ALOK GUPTACorporal punishment isdefined as the use ofphysical force with theintention of causing achild pain, but notinjury, for the purpose of correctionor control of the child’s behaviour. Itis widely believed that corporal punishmentin schools, where teachersare empowered to use physical forceto discipline children, plays a veryeffective and instrumental role inthe overall growth of the child.This practice with its deep rootsand historical evidence, sometimesinvites, rather insidiously, advocacyon grounds of customary practice.People believe that they have a rightto hit their children because this is apractice that has been followed bytheir communities and societies overgenerations and produced healthy,smart, efficient and hard working,men and women, not despite corporalpunishment but because of it.The old adage of ‘spare the rod andspoil the child’ is the guiding light ofthe supporters of corporal punishment.This highly patronizing worldview believes that corporal punishmentis essential because: physical force is essential in discipliningchildren who can getvery unruly (especiallyb o y s )without it most grown ups who aresuccessful and ‘well-disciplined’are the result ofcertain minimumdegrees of corporal punishmentduring theirchildhood Such punishment is feltto be a necessary part ofthe pedagogy and importantfor a child’supbringing. It is believed that therechild rightsCorporal Punishmentare no other methods that couldbe equally effective.The practice and expectation of corporalpunishment for the student toreceive, the teacher to administerand the parents to condone, is sodeeply internalized that it becomesimpossible to generate a larger voiceagainst it, unless a brutal incidentlike the death of an eight-year-oldRohit Kumar Sakpal of Sangli,Maharashtra, (Hindustan Times,New Delhi, 2nd May 1999) who wasbeaten to death by his headmaster,comes to light.The Sangli incident could still beisolated as an exception, but as ageneral rule corporal punishmentthrives on the fear of pain, and thethin line that separates it from tortureis the current discourse againstcorporal punishment.Corporal Punishment inIndiaCorporal Punishment is widespreadin India. A September 2001UNICEF report on ‘CorporalPunishment in Schools in SouthAsia’ argues that hierarchical set upof South Asian societies, ‘whetherfamily, community, caste hierarchiesor religious institutions – givespower to those in authority, the ‘elders’,the men; and in schools, to theAMITA CHAVAN43 combat law • April - May 2004teachers. On the assumption thatadults know best and that decisionsabout children’s lives must be madeby adults, children are often considerednot ‘mature.’’In schools, the teachers are seen asfigures of authority, transmittingknowledge to the students who areexpected to submit, obey and learn.The historical guru-shishya (teacherstudent)divide, where teacher isabove all and close to God, only addsto the power of the teacher as theeducator. The teacher chooses andenforces a choice and the studentscomply. The teacher is the subject ofthe learning process, while the studentsare the objects.As the person with authority todecide the process and content oflearning, the teachers wield greaterpowers and are given the authorityto exercise punishment if the studentsfail to comply and learn.Corporal punishment is also believedto have a toughening impact on boys.So much so that even over threeyears after a Delhi High Court rulingabolishing corporal punishment inschools the practice continuesunabated and unchallenged.In terms of statistics there are veryfew studies, therefore the data is limited,but still shocking. According toa nation wide survey conducted bythe Educational ResearchCentre, between 1990 and 2003cases of corporal punishmentstand at an alarmingly high 700to 1,000 per annum.A 1996 UNICEF studyrevealed that children from severalschools in India were regularlyabused by their teachers inthe name of corporal punishment,by hitting them hard withhands or a ruler, pinching themor make them stand or kneeloutside the classroom. TamilNadu had the highest number,87 percent, students confirming

child rightsthat they have been physicallyabused by their teachers followed byMaharashtra at 66 per cent.In a report in August 1998, TheIndian Express, reported that aseven–year-old girl in India wasthrashed by her teacher in classbecause she forgot to paste a pictureof a train in her notebook for homework.To teach the girl a lesson, theteacher beat the child on her hands,legs and back with a wooden ruler; tomake doubly sure that the childlearnt her lesson, he then slappedher hard on her face and arm. Theteacher was arrested but wasreleased on bail the next day. Thechild was admitted to hospital incritical condition, her arm bruisedand her liver damaged.In another report in the HindustanTimes (July 1998) a teacher in Indiaquit her job as Head Mistress in aprivate school because the school’spractice was to beat the children.“The principal’s complaint againstme was that I was softwith the children andthat I had to be tough.The teachers wouldmercilessly bang theheads of these little childrenagainst the walland beat them withcanes. They wanted meto do the same thing butI protested and quit thejob.”These stories showhow easy it is forcorporal punishment toeasily translate intotorture. There is also,an argument, althoughnot a justification, thatteachers in ruralschools work under limitedresources, with avery large work load,and an very lowsalaries. Thus the license of corporalpunishment also becomes a source ofventing ones frustrations and feeling.Most parents is rural areas areThe legaldebates inmost placesrest betweenallowing, whatis calledauthority forreasonablepaddling versusthe argumentfor anabsolute banon corporalpunishment.illiterate and the teacher or the educatorwith his licensed badge of educationholds power as someone whocan better the lives of their kids. Insuch subservient circumstances itoften becomes impossible for parentsand students to question the authorityof the teacher.Legal scenarioNo Court in this day and age disagreeswith the damaging effect corporalpunishment can have on achild. But at the same time we arestill far from a world-wide consensuson an absolute ban on corporal punishment.The legal debates in mostplaces rest between allowing, what iscalled authority for reasonable paddlingversus the argument for anabsolute ban on corporal punishment.In a recent case called theCanadian Foundation for Children,Youth and the Law v. Canada(Attorney General), the SupremeCourt of Canada in permitting parentsand teachers tospank children hasimposed new legal limitationson what constitutesa reasonable paddlingversus an unreasonableone.Chief Justice BeverleyMcLachlin, writing forthe majority, held thatcorporal punishmentmay from now oninvolve only “minor correctiveforce of a transitoryand trifling nature’’(i.e., it’s only spanking ifit’s a tap or a cuddle)and that it’s legallyimpermissible to spanka child younger than 2or older than 13; to usebelts, rulers, and otherobjects; or to strike achild in the head or face.Some may think this is a great orderthat considerably limits the applicationof corporal punishment inschools. On the other hand whatwould constitute a ‘minor correctiveforce’ is still a big question? DahliaLithwick, argues that the real definitionof what would constitute aminor or a major force depends noton the action of the teacher but the‘propensity of the child’ to handle thephysical force in question.The relative requirement of “reasonableness”is too vague, and legallyunsatisfactory as still leaves alarge window of arbitrariness.In more absolute and non-negotiableterms the Delhi High Court, inresponse to a petition filed by theParents Forum for MeaningfulEducation and others (judgementdated 1st December 2000), held thatrules 37(1)(a) (ii) (that permits corporalpunishment as a disciplinarymeasure) and 37(4) (that prescribesthe forms and restrains on corporalpunishment) of the Delhi SchoolEducation Rules (1973) were illegal,arbitrary and violative of Articles14 and 21 of the Indian Constitution.Justice Anil Dev Singh, in hisjudgement argued that when there isno corporal punishment for adultswhy are children put in a separateclass and subjected to legal forms ofcorporal punishment. The Court instating that the above mentionedrules were unconstitutional as theycreated an unequal and unjustifiedseparation between adults and children,stated that:‘Article 21 in its expanded horizonconfers medley of rights on the personincluding the following rights :-1. A life of dignity.2. A life which ensures freedomfrom arbitrary and despotic control,torture and terror.3.Life protected against cruelty,physical or mental violence, injuryor abuse, exploitation includingsexual abuse. All these rights areavailable to the child and he cannotbe deprived of the same justbecause he is small. Being smalldoes not make him a less humanbeing than a grown up. We arenot mentioning other rights flowing46 combat law • April - May 2004

child rightsfrom Article 21 as they are notrelevant for the purposes ofpresent petition. Article 21 makesno distinction between a grown upperson and a child. Whateverrights are available to the formerare also available to the latter.It also appears to us that corporalpunishment is not keeping withchild’s dignity. Besides, it is cruel tosub ject the child to physical violencein school in the name ofdiscipline or education. Even animalsare protected against cruelty.’Justice Singh reprimands the useof ‘pain’, in however limited a manner,as a means of discipliningthe child andillustrates in most aptterms its adverse consequencesand thereforethe need to abolish corporalpunishmentaltogether:‘The fall out of useof physical force on thechildren in schools byteachers defeats thevery purpose for whichit is applied. Inflictionof bodily pain aspenaltyforThe historicalguru-shishyadivide, whereteacher isabove all andclose to Godadds to thepower of theteacher as theeducator.indiscipline of thechildren at school mayhave different effectson different children. Some childrenmay become submissivewhile others may learn that punishmentis an accepted mode ofensuring compliance of one’s wishesby others and that physicalviolence is an accepted means ofexercising control over them. Withthe latter class of subjects, violencebecomes means to acquire whatthey wish.Thus violence becomesan integral part of their lives. It isdifficult to imagine the future of anation whose children believe inviolence for subjugating others orbeing submissive to force. Brutaltreatment of children can never inculcate discipline in them. Obedienceexacted by striking fear of punishmentcan make the child adopt thesame tactics when he grows up forgetting what he wants.’The judgement also heavily reliedon the principles of the Convention ofthe Right to Child (CRC), which providefor the States to protect the ‘bestinterests of the child’ as paramountin providing for safe environment,education, health and protectionfrom any form torture or cruelty.One of the more relevant provisionsof CRC, Article 28, states that“State parties shall take all appropriatemeasures to ensure thatschool discipline is administered in amanner consistent withthe child’s human dignity”.India ratified the CRCin 1992 and theNational Policy on educationwas amendedthereafter in complianceto the CRC. Provision5.6 of the policy a general‘child centered’approach to educationabolishes corporal punishmentstatingthat:‘Corporal punishmentwill be firmlyexcluded from the educationalsystem…’ConclusionThere is a huge abyss with thewide practice of corporal punishmentat one end and the right policy andjudicial decision prohibiting corporalpunishment at the other. The gulfclearly is in the enforcement of therules. For the law to be enforced, it isalso practically impossible for thelegal watchdogs to be present inevery classroom or every distantnook and corner of the country. Andprobably what is more important isjust something as simple as awarenessand knowledge of alternatives.A two-pronged approach is needed;the first begins with something assimple as awareness and other onthe enforcement of rules. Conferences should be conductedwith students for planningacceptable behaviours of punishment,use of school psychologists,detentions and rewardingpositive behaviour in studentsare such examples. Alternativesshould teach children to be selfdisciplinedrather thancooperate under the fear of painor torture. Teachers need discipline too.Stress-release and anger-transformingworkshops for teachersas well as children is a must. Every classroom should havechildren’s rights clearly displayedand written in a waythat the youngest child canunderstand. Also the career and successobsessed Indian society shouldrethink its high expectations onchildren and remodel them onrealistic expectations of thedevelopmental ability of thechildren.For the purpose of enforcement ofthe law:Parents forums, like the one thatbrought the case in the Delhi HighCourt, should play a more active rolein reviewing the activities of school,which includes the behaviour of theteaches towards the studentsEmpower the students to stand upand speak against any violationsFinally and foremost educating thestudents and the parents that theirchild shall not under any circumstancesuffer physical abuse of anykind at the hands of a teacher, educatoror a trainer, in such capacity.Endnotes:i. Mode (1996). ”Attitudes Study onElementary Education in India AConsolidated Report”, A Study Sponsoredby UNICEFii. http://www.slate.comAlok Gupta is a student of law atthe University of Bombay.CL47 combat law • April - May 2004

eportsmade to the ex-lessors the erstwhile landlords exertedmuch pressure on various governments to return alltheir land to them. Subsequently the State governmentamended the Principle Act in 2001 which came into effectin 2003 which allowed for the return of land to the exlessorsupto the ceiling limit but no limit on the annualincome of the landlord.Since 1982 the adivasis have been cultivating a smallpart of such surplus agricultural land earlier belongingto joint sugar companies and presently owned by theGovernment, which was not being put to cultivation bythe Corporation as well as by the State Government. On28th November 1991 the Maharashtra StateGovernment passed a G.R No. LEN-1090/PK 172/J-1 forthe regularization of encroachment made by personsbelonging to Schedule Tribes upon Government land.These adivasis fall under this category. However, inspiteof repeated applications being made to all concerned officialstheir application for land titles not processed.Finally in 2001 BHA filed a petition before the BombayHigh Court, Aurangabad Bench for regularization andapplication for land titles. The petition was disposed offwith directions to the government to consider and decidethe applications of adivasis to regularize their possessionas per civil policy by following principles of natural justice.On June 4, 2002 the Collector passed an order rejectingthe claim of the Adivasis without holding enquiry or followingprinciples of natural justice. The action of theCollector, is questionable given the fact that BHA haveprovided him with the orders of the Supreme Court onthe issue of conducting an inquiry even when theclaimants do not have any documentary evidence in supportof their claim. BHA filed a Revision Applicationbefore the Revenue Commissioner, Nasik. The saidapplication is pending. Despite the pendency of the applicationand the ongoing High Court Case some 150 adivasiswere evicted and their huts and other property weredamaged and thousand acres of standing crops destroyedduring the period from July 21-23, 2003 and subsequentlysporadic demolitions in August and September 2003.The panel visited the site and met with some of theevicted adivasi families. At the various sites the panelsaw charred remains of the huts, a complete removal ofthe standing crop and a deep sense of loss among the peoplewho were evicted.In each site, it was clear the adivasis have been in possessionof the land for a long period of time because thearea is heavily forested with thick growth of vedi babul– a strong drought resistant tree. Prior to being able tocultivate the adivasis have uprooted the vedi babul andclear the land of the deep roots of the vedi babul, a taskthat cannot be completed in a couple of year, as shoots ofthe tree sprout up from roots left in the earth.The Tribunal met with some of the families who hadbeen evicted. Some of them were able to show proof inform of ration cards that they had been residing there forover 13 -14 years. Others had lost most of their documentsin the demolition. Over and over again theTribunal was told the same story – that no notice wasgiven to the people, the crops were destroyed and peopleevicted inspite of having lived and tilled the land for severalyears. Moreover the demolition was done during theheight of the monsoon.Official ResponseExcept for the Collector who was in Ahmednagar thePanel met with the Police Inspectors, the Tehsildar andall the other concerned officials including Mr. Warkar,Estate Manager of MSFC. In the meeting that followedthe Thesildar stated that the rights of the Adivasis hadalready been decided upon and they were given orders toevict. He and Mr. Warkar Estate Manager of MSFLshowed the Panel the copy of the Judgement of the HighCourt which directed the State Government to take adecision on the claim of the adivasis. However, the orderwhich was shown to the Panel clearly shows as a matterof fact their rights were not decided.Public HearingAbout 100 people gathered to meet with the Panel onSeptember 12, 2003 in Puntamba. This community ofpeople landless casual labourers who used to previouslymigrate for sugarcane cutting as well as to the brickkilns in the off seasons. The average size of the familygroup is six including parents. The educational level isnext to nothing. Due to the seasonal nature of theiremployment most of them are heavily in debt. It was outof sheer necessity that they began to clear the governmentwasteland it took almost years two years the clearan acre of land at the cost of Rs. 3,000/- per acre. Most ofthe families have occupied about three to four acres ofland. Each year they spend around Rs. 2,000/- per acrefor cultivating the land. If the weather is clement theycan manage to produce their food requirements for thefollowing year and need not migrate in search of work orfood. Each family also keeps a small amount of livestockin the form of cows, goats and chickens. This has beenthe practice for atleast two decades.The tribals who deposed before the panel also mentionedthat in a certain hamlet where a group of tribalshad voted for a local politician, those tribals were notevicted inspite of that fact that they were also living onthe MSFC land.Findings and RecomendationsAfter going through the background of the events, thesite visits and meetings with the various officials theTribunal is of opinion:49 combat law • April - May 2004

eportsperformance and panel discussion. There was hardlyroom to sit, stand or even lie as the small auditorium wasfilled up with eager minds and beating hearts!The festival was formally opened with a spoken wordperformance and a video collectively made by LesbiansAnd Bisexuals In Action (LABIA, formerly StreeSangam), OLAVA and HUMJINSI. It was screenedmuch to the pleasure of hooting queer junta; even thestraight folks couldn't suppress the urge to clap. For oncea predominantly queer space had been created wheremany for the first time were compelled to think of theprivileges that are a given & taken for granted within thenorm of sexual and gender expression.39 Films of different genre including feature length fiction,shorts, experimental, documentary, animation &mixed media presentations of varying durations fromacross the world were thematically organised into 25packages and screened over 3 days of the festival. Thefestival also included 2 powerful and moving spokenword performances by Nighah Media Collective and 2provocative panel discussions on sexuality, gender andissues of representation.Most packages were followed by Q&A with either filmmakersin attendance or other people who could addressthe issues raised by the films. The questions revealed agenuine curiosity on part of the audience to know moreand we could clearly see that these encounters are rare.The quality of these discussions were very high and occasionallywe had to deal with naïve questions & statementsabout people dying after 15 years because they arehomosexuals or that a bisexual woman is one who hashair around her nipples! Though many of these questionswere exasperating, there was also the realisation thatthis film festival was for many, their first brush with sexualityand gender variance.Following its debut in Mumbai the festival traveled toother cities as well. OLAVA an autonomous lesbian andbisexual women's group from Pune and PRISM anautonomous group working for sexual rights in Delhihosted the festival in their cities. Many of the films fromthe festival were also screened at the World Social Forumorganised in Mumbai in January 2004.In a sense LARZISH was able to publicly launch analternative viewpoint. The festival as well as the publicitycampaign that revolved around it was effectively ableto generate positive visibility for the queer communitiesand to connect with the demands of the LGBT movementfor the repeal of Section 377 of the Indian Penal Code.The ideas released are resistant to the imposition ofsilence and although the queer community continues toexist under threat, its presence has made a visible andtangible impact.CLPOTA - A Movement forits RepealTen-year old Om Prakash from UP, a POTA accused.On 13 and 14 March 2004, a People'sTribunal was held in New Delhi to focuson the gross misuse of POTA and othersecurity legislations in the country. Morethan 55 innocent victims deposed before apanel of eminent jurists, academicians, journalists andactivists. The panel comprised Ram Jethmalani (former law minister) Arundhati Roy (writer) Mohini Giri (former head of the Women'sCommission) Sayeda Hamid (Former member, NationalCommission for Women) Prafull Bidwai (journalist) Justice D.K. Basu (Former Justice of the CalcuttaHigh Court) Justice Suresh (Retired judge, Mumbai High Court)and K. G. Kannabiran, President, People's Union for CivilLiberties.The tribunal was jointly organized by human rightsactivists, lawyers and rights-based groups from acrossthe country. The organizing committee included distinguishedhuman rights activists and lawyers such as Henri Tiphange of People's Watch, Tamil Nadu Mihir Desai of the Mumbai-based India Centre forHuman Rights and Law Teesta Setalvad of Communalism Combat Prakash Louis of the Indian Social Institute and Colin Gonsalves of the Human Rights Law Network.Teams from 10 states --- Jammu and Kashmir, UttarPradesh, Jharkhand, Delhi, Andhra Pradesh, Gujrat,Manipur, Tamil Nadu, Maharashtra and Punjab ---51 combat law • April - May 2004

eportsthe cases under IPC continue.Similarly, 16-year old Roopni Khari was arrestedunder POTA in the Gumla district in Jharkhand Hercrime? She organized the women of her village againstpatriarchal oppression.Commenting on the depositions, panel memberArundhati Roy said, "What is clear is that POTA is a lawthat has been passed in order for any state to use it inany way. It is not just the state that is using the Act is adisruptive way, but people are using it against eachother."She further stated, "The government has embarked onthe cause of dispossessing the poor. POTA is a law beingused by a fascist government towards fascist ends."In Gujrat, POTA was invoked for the first time in 2003immediately after the Godhra incident. In one year 287people were booked under POTA. All among them wereMuslims.In his presentation, Mukul Sinha, senior advocate,stated, "Waging a war against terrorism has become alucrative business. But what do you do in a state wherethere are no terrorists? So therefore the CM of Gujrathas used a potent medicine --- POTA to create terrorists.In Gujrat, the acronym POTA translates into theProduction of Terrorists Act." Sinha works closely withvictims of POTA misuse and their families. He sharedthat not one person booked under POTA has beenreleased on bail.Zakia Jowher, Coordinator, Community PeaceBuilding, Action Aid India shared hard facts on the patternof POTA misuse in Gujarat:· For every person arrested, there are several othersillegally detained. According to studies of civil societygroups, in September 2003, 350 to 400 persons were inillegal detention in Ahmedabad. Most among them arefamily members of the accused.· Most of the accused of POTA are employed as electricians,in radio and television repairs, as drivers andteachers. All the accused are young, below 30 years ofage. Most have been the sole bread earner of the family.· The accused have been subjected to severe torturesuch as electric shock on private parts, moving of woodenroller-like objects on their bodies. Their homes andshops are repeatedly ransacked.· Families of the accused have been threatened ofencounter killings if they speak up.Rashid Machiswala's 32-year-old son Anas is inSabarmati jail. "We have been threatened about deposingbefore this panel. But till we raise our voice outsideGujarat, we will not get justice," he appealed to thepanel.As story after story of misuse, violence and torturerolled out, Sayeda Hamid, panel member and formermember of the National Commission for Women commented,"We have seen so much in the last two days thatone has reached the point that one cannot take anymore.But we must use the positive energy and courage of thisTribunal to galvanize a national movement for the totalrepeal of POTA."Ram Jethmalani in his closing remarks stated, "Iregret that I supported POTA. I had reposed faith in thehonesty of the politicians who told me that it would notbe misused. But I have no doubt now that it should golock stock and barrel.He strongly recommended that as soon as a transcriptof the evidence is ready, the members of the jury mustmeet, prepare a report influence the course of the elections.According to Henri Tiphange, Director, People's Watch,Tamil Nadu, "the Tribunal is the first sign of organizedresistance in the country for the repeal of POTA. Thenext step surely is that all human rights movements,activists and the media come under a common bannerand reiterate what the National Human RightsCommission had said - that POTO and POTA are notrequired in the country. There are enough existing legislationsto deal with the problem of terrorism."Even as the Tribunal kicks off a national campaign forthe repeal of POTA, a fragile 32-year old Manipuri girlsits on a fast unto death in the security ward of theJawaharlal Nehru Hospital in Imphal. Sharmila Iromwill end her fast only after the Armed Forces SpecialPowers Act --- a draconian security legislation - is liftedfrom Manipur.In 2004, her 'satyagraha' entered its fourth year. Sheremains in police custody and is being force fed. AmnestyInternational has recognized Sharmila as a prisoner ofconscious.In every way, Sharmila Irom is the face and spirit of allorganized resistance against security legislations in thecountry. She represents the collective spirit and steelspines of all those who chose to speak, and loudly, oftheir struggle to access justice against POTA.Participating Organizations of the Tribunal:Asian Centre for Human Rights, Action Aid (Gujarat),Amnesty International (India), Communalism Combat,Janhit, Human Rights Law Network, India Centre forHuman Rights and Law, Indian Social Institute,Lawyers for Human Rights International (Punjab),People's Watch-Tamil Nadu, POTA Virodhi Jan Morcha,PUCL Ranchi Unit, People's Union for DemocraticRights (PUDR), Thanthai Periyar Dravidar Kazhagam,UP Agrarian Reform & Labour Rights CampaignCommittee.CL53 combat law • April - May 2004

womenBranding WomenA fact finding report reveals the use of witch hunting as yet another means of oppressionof women in the tribal belts of Nandurbar, Maharashtra.On December 29th, NDTV 24X7, anEnglish news channel, carried a newsitem on cases of witch hunting (wherewomen have been branded as witches andsubsequently murdered) from the tribaldistrict of Nandurbar, in the Narmada river belt ofMaharashtra. Alarmed by this report, lawyers at theCriminal Justice Initiative (CJI) of the India Centre forHuman Rights and Law (ICHRL) decided to conduct afact-finding trip.The fact finding team included Chetna Birje, AlokGupta, Vijay Hiremath. The team visited the districts ofNandurbar on the 10th and 11th of January 2004 to findout the scale of the violence against women due to thepractice of witch hunting, the cultural beliefs that instigatedsuch violence, the reasons for the recent increasein the incident of witch hunting and assaults on women.The team also looked at the real motives behind themurders of women- Whether women were being killeddue to the belief in witches alone; Whether women werebeing killed due to any animosity; Whether the womenwere killed due to any property disputes or Whetherwomen were being killed to acquire their property andother financial assets. The team also looked at the stepstaken by the local police and the administration to protectthe women and the ability or inability of the villageleaders and the village community to prevent this violenceagainst women branded as witches.Nandurbar is the youngest district in the state ofMaharashtra. It was formed from a division of thenorthern part of the district of Dhule on 1st July 1998.It is a border district nestled between the new Dhuledistrict in the south, the state of Gujarat to the west, thestate of Madhya Pradesh to the north and east. The populationof Nandurbar consists mainly of tribals, mainlythe Bhils, spread over the Satpuda range.Nandurbar also falls in the belt of the NarmadaValley, with the river Narmada passing through thefoothills of Satpuda range on its way to MadhyaPradesh. The tribals of Nandurbar have had their ownfair share oftroubles due to the upcoming Sardar Sarovar DamProject. Many people displaced by the project are beingsettled in Nandurbar.Branding of WitchesThe practice of witch hunting in the tribal communitiesof the Narmada belt is age old. The tribals believethat certain women are witches because they haveoccult/evil powers that need to be controlled anddestroyed. Only the hunt for a witch always begins witha personal loss. Most commonly it is associated with adeath in the family. Most tribals rely on a ‘Badwa’, aquasi-ayurvedic doctor also known as a ‘Bhagat’ formedical treatment. But often if despite the treatment orwith no treatment at all the person dies, the family ofthe deceased will gather with the Badwa to opine onwhat killed the person that even the herbal medicinescould not save him or her.Some claim it is the Badwa passing the buck, but itsalmost a mandatory custom to expect the Badwa tolocate the reason of death to something more beyondhuman control, something supernatural and its often awitch. The Badwas in an over-rehearsed act will randomlychoose a name of a woman from the same village,he will point the direction of her house and the numberof trees outside in her garden - always someone knownto the family of the deceased. None of this is done forfree and large offerings in terms of food, alcohol andmoney are shelled out to solicit these precious details.Also the search for witch hunting is not inspired onlyby something as drastic as death either by illness ormishap. There are often other more trivial reasons forexample someone falling ill, death of a cattle or even lossin business. The old superstitious adage of Jado Tona isthe best explanation for almost everything that goeswrong.Once the suspected ‘witch’ is identified the process ofrevenge sets in. Adivasis traditionally believe in the conceptof an eye for an eye. For example the adivasisbelieve that revenge in a murder will be complete bykilling any member from the family of the accused.The women branded as witches are sent for confirmationceremonies in certain specific shrines, where moresenior Bhagats conduct this confirmation. It ofteninvolves the women being tied up in chain and her abilityto liberate herself from it, which is almost impossible,highlight the absurdity of the ritual. The test is reallya farce, as it all depends on how much money eitherparty can provide the Bhagat to get the desired order.But often with witch hunting the revenge begins withthreats, where women are first warned against steppingout of their house, or asked to leave the village or faceher death. There are several reported cases of physicalabuse and stoning on women branded as witches. Sexualviolence is also a commonly used tool humiliate the54 combat law • April - May 2004

womenKeli Bai – the brutal consequences!In a tiny hamlet called Runmal pada, located in the MandviShivarat and Dhadgaon Taluka in Nandurbar, Keli Bai 50years old and a mother of three, married to an ageing, visuallyhandicapped man, left home one evening of 16th April2003 to fetch some salt in exchange for some eggs to cookthe evening meal. Little did she or her family know that thatwould be the last time they would see her. Keli Bai neverreturned and disappeared from the lives of her family.A few years ago, circa 1995-95, the young son of aVansingh Valvi from the same village expired. The familysoon after the child was cremated aproached a badwa whoin this case was actually the brother of father of the deceasedchild. The Badwa branded Keli bai a witch and blamed her forthe untimely death of the child. The same evening Keli Bai’shouse was surrounded by five people, mainly the father andother male relatives of the deceased. They threatened herstating that: ‘she has given an witch chant against their son,and that they would kill her.’Disturbed by this sudden attack and allegations, Keli Baicalled for the Panchayat. The family of the deceased childrefused to show up for it, stating that they believed that KeliBai was a witch and were determined to kill her.In fact one day Vansingh under the influence of alcoholcame with an axe to assault Keli Bai. Nirmula, the 18 yr olddaughter of Keli Bai, remembers that horrific afternoon,“We brother and sisters were alone at home. He abused mymother in filthy language and threatened to kill her. My motherlay hidden in the house.” ‘No matter wherever you hideyourself, but one day you will be eliminated’, was the threatissued from outside. We brothers and sisters were crying outside.We were pleading with Vansingh. The villagers werewatching. No one came forward for help. No one dares tohelp a woman identified as a witch.”In this way Kelibai struggled for over four to five years.Sometimes there were abuses, sometimes threats to her life.Subsequently a land dispute also arose between a relative ofKeli bai and Vansingh’s families. She was regularly harassed‘she would eat us and our children’ – the people would say ifshe stepped out. Another villager lost his mother, who wasold and ailing, this villager was related to the father of thechild who had died earlier. This gave Vansingh Valvi’s familya fresh excuse to attack/blame Keli Bai. But Kelibai stoodbold hardened by the circumstances.Finally we return to the horrific evening of 16th April 2003.The search for Keli Bai after she disappeared for over twoweeks but there was no news, no clues, nothing. At homeNimla, younger sister and her blind father waited for theKelibai. Mother was going to cook food on her return.However, it was late and mother did not return. Search startedin all the villages in the locality and at the relative’s places.As reported by Ramakant Patil in Sakal dated...‘Slowly it begin to dark. Kelibai was going to send herdaughter Nimla but however thinking about mountainousroad and dark she decided to go on her own. For fetching saltshe was required to go to Mandvi, crossing one huge mountain.Kelibai chasing the dark reached Mandvi. RekhabaiVasave, relative of Vansingh casually invited her to her home.At home alongwith Vansingh there were 3-4 persons.’On April 30,2003, Nirmala lodged a complaint withDhadgaon Police Station. The police launched a hunt togetherwith the villagers. Keli bai was found in parts, her torsowithout her limbs, in a rivulet at a distance of two km at thenorth from the precincts of village Mandvi. The tribals believethat if a witch has to be killed, it cannot be an ordinary murderas the witch could re-surface, so its important to cut herin parts to make it difficult for the body to come together aswhole again.Kelibai was brutally murdered in one of the hut in Mandvivillage and her corpse discarded in a rivulet at Mandvi faraway in the jungle. The police tracking the way of bloodstaintraced the hut where the murder took place. By now everybodyhad came to know that Vansingh had killed her. Anoffence of murder was registered under S.302 and 201 of theIndian Penal Code at Dhadgaon Police Station vide F.I.R. no.35/03. Bhikha Patle, a relative of Vansingh and a coaccused,was arrested but released in two months on a bailbond. The rest of the accused include Vansingh continue tolive normal, undisturbed lives.CLwomen. In the past women branded as witches weremade to parade naked in front of the entire village. In areported incident in Makadkund area at DhadgaonTaluka a woman branded as a witch had a piece of woodinserted in her private parts and she had to be admittedin the hospital for treatment.Murder is often the final culmination of revenge, butnot necessarily in every case. It is never certain howlong after a woman has been branded a witch, anattempt for her life will be made, if its made at all. Thedeath may take place years after the victim has beenbranded a witch. As was the case with Keli Bai (box)where she was murdered 8 years after by the same peoplewho branded her a witch.NDTV reports that ‘in the tribal interiors ofNandurbar, since June 2003, nine women branded aswitches have either been hung or stoned or burnt todeath.’ There are various reasons for the killing of thewomen. Some of the obvious reasons are blind faith andilliteracy, while it is less known that absence to primaryhealth care also plays an important role in this practice.All of this compounded with the apathy of the adminis-55 combat law • April - May 2004

womenChandu BaiDhulia a respected village elderin Mandvi Taluka, Dhadgaon,had a young son who passedaway one morning through somewater-borne infection. As usualafter the cremation ceremony thecustomary quest for the ‘supernatural’cause of the untimelydeath began. Dhulia along with the other men from the family visitedBadwo, a well known Badwa in Mogli Village. Daya (the husband ofChandu Bai) was an uncle of the deceased child and had gone at thefuneral ceremony to present the customary clean white sheet for thedead boy’s cremation. Daya went along with the others to the Badwa.Badwo in his usual practice isolated a pair of grains, in an occult-likeprophecy and squarely and randomly pointed at Daya and blamed hiswife Chandu bai for the murder and branded her a witch. The father ofthe deceased child was a highly respected village elder. The whole villagewas almost obliged to accept his beliefs, when he confirmed thatChandu was indeed a witch as declared by Badwo and that sheshould be sent to her parents home. Daya was asked to go home andsend away his wife, which he bravely refused.But the matter did not stop there. The family of Dhulia determined toensure that Chandu bai leaves the village went to her place andthreatened to kill her if she would not leave her village. To gain supportfor herself, at a time when the entire village went against her, shecalled on members of her own family, mainly her brothers andapproached the local police station at Dhadgaon to file a complaint.Tribals do not welcome interference from mainstream law enforcementagencies in their community matters. It is generally preferredthat they be resolved by the arbitration of the Panchayat. The PolicePatil in Chandu Bai’s case went to the police station had got them towithdrew her complaint against taking full responsibility to arbitratethe matter through the Panchayat. Chandu Bai and her husband wereonly informed at a later stage that their complaint had been withdrawn.The Police Patil did in fact try to bring about conciliation bycalling a Panchayat sitting, but the accused openly refused to acceptany decisions and threatened to kill Chandu Bai if she was notdespatched.The family of Chandu bai made a second attempt to approach thePolice and file a complaint against Dhulia. This time around again,soon as the Sarpanch and the Police Patil heard of the second complaintthey tried to discourage Chandu bai and her husband to pursuethis matter through the police and to resolve it within the village. In ashocking repetition the Sarpanch and the Police Patil went to thepolice station and got the complaint dismissed for the second time.But the threats still continue. Chandu bai has now not stepped out ofthe house for over six months. One time when she did step out, she wasattacked by stones. She has six children the youngest barely a fewmonths old. Torn between the decision to look after her family or to leaveand escape the village, she lives under another constant fear – death.CLtration and the resistance of the tribal panchayatsto let mainstream law govern their internaldisputes has only reduced the hope andarguably the chances of survival of severalwomen who have been branded as witches andawait their fate. And all of this just a days journeyfrom Mumbai!Why are women targetted?Witches are almost always women, with a fewexceptions of men called ‘daka’ who are ofteneither related to a female witch or tutored byone, but never on their own. Women are alwaysidentified as the real culprits. Pratibha Shindeand Swati Deshmukh, activists working withthe Punarvasan Sangharsh Samiti, throughtheir interactions with the tribals over ten to fifteenyears pin the reasons down to several factors:Historically the tribals have lived in a matriarchalsociety. Women have often had at leastequal if not more powers than men. The tribalwomen are strong willed, hard working and talented.Women often have more knowledge of theherbs and of the forests, they farm and controlfamily affairs. All of which has led to a frustrationof the male ego.The tribals have abundant, almost obsessive,superstitions about female sexuality and reproductivecycles. The ability of the female body tomensurate with a precise cycle of four weeks, ofits ability to reproduce another human beingand after a certain stage in their life reachmenopause. For example, Adivasis attribute 30days of the month to mensuration cycles. Andtwelve months of the year are attributed to theperiod of pregnancy of 9 months plus 3 monthsthat it takes for the menstruation cycle to startagain. It is attributed that this confers some hidden,secret, supernatural, occult powers withincertain, if not all, women. There is a very latentdisdain for this female strength.Eventually it could be argued that the ideabehind female witches is also in some way tobring down the respect and status of women bylinking their relative superiority to somethingevil and dangerous.PropertySingle women who hold property are a specialtarget of the practice of witch hunting, addinganother non-superstitious but an extremelyinsidious motive to the practice. Women arebeing branded witches to stealthily acquire their56 combat law • April - May 2004

womenTara Bai Ganga VadviTarabai had been branded a witch by her husband’s brotherover a long standing property dispute.Tarabai’story was told to us by her daughter Vanti. Vanti’sfamily lived in a small village on the foothills of the Satpuda.Her father owned one of the few pieces of irrigable land inthe area. To secure the future of the family the father soldsome of the family jewellery to buy a water pump with whichthey began to farm in their land. Unsettled by the progressmade by the Vanti’s father, her father’s brother began todemand a stake in the farmland to which he had no entitlement.But after Vanti’s father died, the uncle became a lot moreaggressive with his demands. He would regularly beat up hermother and the daughter herself, even when Vanti was pregnantwith a child.To continue the revenge the Uncle branded Tarabai a witchafter his wife died of a long illness in a local hospital. Hebrought people who threw stones at Tarabai and her daughterVanti, threatening Tarabai to leave the village. The pressuresand threats for Tarabai to evict the village because shewas branded a witch increased. So much so that the entirevillage joined in and pushed Vanti to ask her mother to leavethreatening her that she would in turn become a witch herselfif she does not take any action against her mother.Tarabai finally gave in and mainly for the safety of herdaughter left the village to go and live with her parents in thevillage of Utvada near Taloja. The uncle acquired large partsof her land illegally and took it under his possessions. CLproperty and other assets. Branding a woman, a witch,is the easiest way of justifying her eviction from theproperty or even her death and getting her out of theway to illegally acquire her property. Mostly widows aretargeted, who have inherited their husband’s property.The people responsible are close relatives. The examplethat best illustrates this is the story of Tarabai (box)Conflict between the Police/legal systemand tribal affairsTribals prefer to solve their internal disputes withintheir own system and means. Panchayats are the mostrevered institutions, every body wants to solve villagematters within the village mechanisms. Therefore, inthe cases of witch hunting if tribal women, or her family,do dare to approach the police for assistance, she isshunned by the village and the village elders. On theother hand, an already lethargic and uninterested policeforce is pressurised by the village elders and panchas toleave the matter to them. This is exactly what happenedin Chandu Bai’s case.Mr. Padmakar Vavli, a local MLA from the tribal communityfor the Taloda Constitutency, openly admittedthat the police in the tribal area were corrupt. ‘Witchhunting is a social disease’, he proclaimed, but addedthat ‘most cases get resolved within the tribal panchayats.’But not always so. According to Pratibha Shinde thereis an ideological conflict. ‘We have always advocated formore autonomy for the tribals to govern their affairs,including resolution of disputes through their own ajudicationprocess. But in the cases of witch hunting, evenwe feel that the police should be involved as the panchayatsare not always able to resolve the matter.’Another fear with leaving the village panchayat and thepolice patil to arbitrate is the real possibility of bias ashas been the case with Ambi and Vajli (box).Ramakant Patil, a journalist with the Dainik Sakal inNandurbar, and an expert on tribal affairs is less harshon the police. He believes that the police needs the supportof the bureaucracy to go ahead and arrest theaccused in cases of witch-hunting, or else they fear therepercussions from the tribal communities. The localpolice expressed similar sentiments mixed also withfrustrations. Most of the times when a case is actuallytaken up, most witnesses or panchas turn hostile at thestage of trial, leading to quick acquittals.In an interview with us the District Collector ofNandurbar, Mr. Sanjay Khandare admitted that ‘Policedoes not take the cases seriously and prefers to leave iton the Panchayat.’ He admitted this had to change andwas in the process of initiating some sort of an action.Another important problem with taking the practice ofwitch hunting to a criminal task is that there is no specificact or legislation in the state outlawing the practice.When cases of witch hunting lodged, ‘witch-hunting’as a culture practice that has led to the crime isnever mentioned as a main reason. Cases to the policeonly go when an incident takes place, not after she hasbeen declared a witch. In the period from being declareda witch to the occurrence of any unfortunate incident,the women have no access to the support and protectionof the law and enforcement agencies.The practice of witch hunting has reached a stagewhere women are being branded witches for reasonsother than superstition alone. Witch hunting hasbecome an easy way to avenge a rivalry or most of allacquire land and property as had happened with TaraBai.ConclusionsThe issues here are many and the urgency grave especiallyin lieu of the fate of Keli Bai, which could be ofmany other women. Everyone agrees that educationagainst the superstition of Witches and witch-hunting isthe need of the hour, especially as the practice and belief57 combat law • April - May 2004

womenAmbi and VajliThis is an incident that was reported by Dr. ShivajiDedsingh Pawar via a letter to the Editor of Dainik Sakaldated 30th December 2003. Dr. Pawar wrote the letter tosolicit some media response to save the lives of two of hisaunts who have been branded witches in the village ofShrikhed, Tal. Shahada, in Nandurbar.In November 2003, in Shrikhed, two deaths occurredalmost simultaneously, one due to Chronic Hepatitis andthe other through snakebite. However, the family of thedeceased men held two women Ambi Bandya Pawra andVajli Ambalal Pawara responsible for the death and brandedthem witches. Both of these women are relatives Dr.Pawar, the author of the letter to Dainik Sakal.The family of the two women now branded as witches andfearing their lives, reached the Police Patil to take actionagainst those responsible for branding them witches andresolve the matter. The Police Patil who is duty bound toassist victims in such cases instead of going to the PoliceStation and registering a complaint or calling for a sitting ofthe Panchayat, only aggravated the situation by joiningfamily who branded Ambi and Vajli as witches.Dr. Pawar also alleges in his letter that village-wide contributionof Rs. 50 each has been collected to organize avisit to ‘wise’ badva who is also a priest at a Vithoba templein Madhya Pradesh to ascertain whether or not the twowomen are witches. The village community had set aside29th November 2003 as the date for the visit.Dr. Pawar concludes his letter with the disgrace, traumaand fear that has come to occupy the lives of Ambi and Vajliand their families.CLis so widespread that a very ambitious and pro-activeprogramme is needed. The problem lies at responsibility.People pass the buck. Besides education the lack ofaccess to basic, primary health facilities are shocking.Pratibha Shinde of the Punarvasan Sangharsh Samiti saysthat throughout the tribal belt it is impossible to find a doctorwith an MBBS degree. According to official figures inNandurbar district alone around 2053 infants and childrenhave died mostly due to ill-health, and often curable diseases.Tribal Research Centre, a think-tank run by ArunBhatia, through a survey 114 villages in the tribal beltreports that almost 57 per cent deaths of children are notrecorded.So along with lack of education and a more progressiveand less superstitious perspective to life, the tribalshave appalling public health facilities and access. Thishas been compounded by sheer inaccessibility of most ofthe tribal villages where often only less than ten percent of the villages can be accessible by any kind of vehicle.It can be argued that to eradicate the practice ofwitch-hunting we need much more than just education,we need to ensure that tribals have upgraded healthstandards so they learn to believe in western medicine,science and hopefully substitute some of their beliefs ondeath from something supernatural to natural ailmentsand their cures. Maharashtra AndhashraddhaNirmulan Samiti together with the government hasdecided to create awakening.A law on Witch HuntingOne of the main demands that came out of the factfinding were for a specific law both for forbidding thepractice of witch hunting, and providing a mechanismby which people responsible for branding of women aswitches can be prosecuted. The opposing view states,compellingly that the Indian Penal Code has sufficientprovisions under criminal intimidation, assault, grievoushurt and murder to book people responsible forbranding women as witches under the purview of Law.Any action by the police is often taken only at the pointwhen women actually suffer some tangible consequence,like assault, or grievous hurt or even death due to theirbranding as a witch. There is, despite the Indian PenalCode, glaring gaps to; take cognizance of branding of awoman as a witch itself as an offence; providing herwith the much needed protection after that, and; prosecutingthe people responsible for branding the woman asa witch. There is a need for a law on the lines of theBihar Anti- Witch hunting Act 1999. The legislationshould be aimed specifically to eradicate the practise ofbranding women as witches and killing them. Brandinga women itself should be made illegal and the offendersshould be penalised.RecommendationsThere is a need to institute an enquiry to determinethe need for a proper legislation that allows prosecutingthe Badwas along with the prosecutors. The state has toprovide special protection for women branded as witchesand also making investigation a lot easier. The teamalso felt that protection for witnesses and panchasshouldbe provided. There is also a need to gain the trustand support of village panchas and police patil.The health and education services in the district ofNandurbar and the villages therein should be upgraded.The government needs to work with NGOs to bringabout change through awareness campaigns regardingthe blind faith and educating people about the falsity ofthe concept of evil spirit.It is also pertinent that women’s and tribal rightsgroups conduct their own investigation and providemore nuanced and contextual understanding of theexisting scenario and make their own additionalrecommendations.CL58 combat law • April - May 2004

womenSati Judgement - An Appeal3rd March 2004New DelhiMs. Vasundhara RajeChief Minister of RajasthanJaipurDear Madam,16 years after Roop Kanwar's immolation, 22 cases inthe Sati glorification matter of 1987 came up for hearingin the Special Sati Court in Jaipur in 2003. The judgeacquitted all the accused in the four cases that completedtrial on the 31st of January 2004. Some of the accusedthat were acquitted are senior leaders of yourparty.Since then, women's groups in Rajasthan have beentrying without any success to meet with you to urge thatin your capacity as Chief Minister you ensure that theState appeals against this judgement with urgency. Butwith appalling lack of concern, you have failed to respondto them. Hence, representatives from women's groupsfrom all over the country are gathering in Jaipur inprotest today.In solidarity, representatives of women's groups andconcerned individuals in Delhi are simultaneouslyattempting to meet the Resident Commissioner ofRajasthan in Delhi. Because only in challenging a practiceas retrogressive as Sati, and a judgement as biasedas this, can the state of Rajasthan demonstrate its concernfor women, and its commitment to uphold the lawsof the land that clearly do not allow either the practice of,or the glorification of Sati.1) It is evident that the judgement in the Roop Kanwarcase is full of loop holes.On five grounds we feel that the Government canappeal in the Rajasthan High Court.a. the inaccurate interpretation of glorification as apractice that has to beconnected with the event of Sati, that the Judge Mr.Shiv Singh Chauhan has made in the judgement, isagainst the 1987 Rajasthan Ordinance of Sati Preventionunder which these cases were tried.b. the judge even completely disregarded the SupremeCourt judgement which had set aside the order of theRajasthan High Court with regard to the notification ofthe District Magistrate regarding section -c. the judge has rejected the evidence provided by thepolice, the testimony of investigation officer as sayingthat as they are sheer policemen they do not have to betrusted. This is against the basic Indian Law.d. the judge goes outside his jurisdiction and gives adefinition of Sati as all those woman who spend theirentire lives with one men and are pure and of character,clearly shows the judges disregard for his office as thelaw has clearly not defined Sati in this manner.e. the contradictory nature and the predeterminedmind of the judge is clearly highlighted from the fact thatonce he had given the above interpretation of glorificationas being linked to the incident of Sati, he need nothave appreciated the evidence regarding glorification.We feel these facts are enough to take the matter forappeal to the Rajasthan High Court.2) We also feel that action needs to be taken against allthose official witnesses who turned hostile. Some of themare Nar Hari Sharma (ADM), Gyan Prakash Shukla(SDM Amer), Shukam chand (ADM Neem Ka Thana),Madho Lal (police photographer), Bhoop Singh (ASI),Nathu Singh (Head Constabel), Noor Mohammed (RAS),Nathu Ram (ASI), Prabhu Dayal (SI, Behror) RamNiwas (RPS, SHO Adarsh Nagar), Satish Kumar(Bhilwara SHO), Sawar Mal (constable), Chagan lal(SHO, Nagar Nigam, Jaipur), Prabhu Singh (SI, PatanSikar ).3) We also feel that the 18 other cases that are undergoingtrial need to be conducted not with just one PublicProsecutor but a support group of legal experts.Thus a committee needs to be constituted to lead theprosecution with strength.It is a matter of grave concern that even in the year2004 we cannot convict people of glorifying the heinousand barbaric act of Sati.With regards,Saheli,CC: Resident Commissioner, Bikaner Bhawan, NewDelhiSaheli Women's Resource CentreNew DelhiCL59 combat law • April - May 2004

BY HOSHEDAR HAVEWALAcommunalismPassing the saffron buckThe Jhabua rape - a major travesty of humanrights, contorted into a spark of communalviolence. The tragic and gross death of agirl, used to pursue an anti-minority agendausing methods that local humanrights activists compare to events in the neighboringGujarat in 2002.Jhabua is a predominantly tribal district in the stateof Madhya Pradesh, to the eastern border of Gujarat,adjacent to Godhra, infamous for its recent communalturmoil. Jhabua's claim to (in)fame is its highest crimerate in Asia. The diocese of Jhabua only has 30,000 membersout of the 1,400,000 population of Jhabua district.There have been no conversions in the last decade. On11th January, 2004, a nine-year old girl, daughter of afruit vendor, and her brother Suraj were running a stallon Monday when their father had moved out for a shortwhile. An unidentified person then arrived at the stalland asked the girl to deliver fruits to some nuns at thenearby Catholic Mission School and Church, and collectthe payment for the same from there. After the girl followedthe man into the school, she went missing. Herbody was later found in a school toilet.The subsequent series of events took a horrific communaltwist. The VHP and Sangh Parivar declared 13January a day of protest, apparently accusing theChristians/Church and headmaster of the school of thecrime. Some groups related to the Sangh Parivar heldprocessions in differenttowns, burned the effigies of the Bishop and priests inpublic places, shouted slogans and distributed inflammatoryleafletsagainst Christianity. The Parish Priest,Assistant Parish Priest, two Regents of Jhabua Parishand the Principal of Jhabua Mission School weredetained at the Police Station. On 14 January, a largecrowd forcibly entered the campus, beat up around tenpriests, pelted stones at thebuilding and destroyed vehicles parked in the campus.The Superintendent of Police and the police force tried tocontrol the crowd but were outnumbered. Towards theevening, a crowd of more than a thousand people gatheredaround the mission compound and started to throwstones. By night, the Inspector General from Indorereached Jhabua with more personnel. On 15 January,the Madhya Pradesh Home Minister visited the districtand made a statement that seemed to accuse theChristian missionaries of the crime. The crowds continuedto pelt stones at the church.By evening of January 15th however, the District60 combat law • April - May 2004Magistrate called representatives from the town for apeace meeting. The Bishop took part in the peace meetingand met the priests in custody. By the end of the day,the police succeeded in identifying the culprit, whoadmitted to the crime. He worked in an office near theChurch and is not a Christian. But even after this, communalturmoil continued. Even articles in newspaperssuggested that the priests were involved in the rape. AHindustan Times article dated Jan.17th read thus : "Atleast one person was killed and dozens injured as Hinduand Christian groups clashed in Amkhur village nearJhabua, where a girl was allegedly raped by a Christianmissionary." - This was all that was printed, and anyreader would deduce from this that it was the priestswho were involved.The priests and other persons detained as suspectswere released on 16 January. But that was hardly theend of their woes. That same day a few sadhvis (femaledisciples) from Gujarat went to the village of Amkhut,60km from Jhabua. After a discourse against conversions,they proceeded to the Church of North India (CNI)mission, where, accompanied by a police officer whostood outside as they entered the campus, raised slogansagainst Christians, distributed inflammatory material,went into classrooms where examinations were beingconducted and tore down posters of Jesus. This wasdownright 'dadagiri' on their part. The entire villagegathered at the mission premises and pelted the sadhviswith stones, forcing them to flee. When this newsreached Alirajpur, a neighbouring town 29 km away, severalarmed men led by the local Member of LegislativeAssembly (MLA) of Alirajpur rushed to Amkhut (whichis not even in his constituency). Bhil Christians wereinjured and one of the vehicles was ambushed. One of thepeople with the MLA was killed in the fight. When newsof this attack reached Alirajpur an unruly mob of VHPand Bharatiya Janata Party (BJP) men attacked churchesand Christian homes in the town. A Catholic Priest,manager of Don Bosco School at Alirajpur, was brutallybeaten with sticks and iron rods resulting in seriousinjuries. They attacked houses of the Christians in thetown and set some on fire. The mob then went to theproperty and farm owned by Don Bosco School on theoutskirts of Alirajpur, hacked down trees and vandalizedthe fencing, the pump house and the drip irrigation system.The violence andvandalism against the Christians continued well into thenext week.Despite the culprit being arrested and admitting to thecrime, VHP and Hindu Jagaran Manch activists arepressurising Catholic priests to confess that one of them

communalismis the 'real rogue' behind the heinous crime. Churchsources say that there has been a slow, sustained campaignagainst the Church and its activities over a periodof years.Although the identity of the criminal at the Missioncompound was clearly established, the protests, misinformationand mass mobilization led by the HinduJagaran Manch, and supported by Vishwa HinduParishad, Bajrangdal and Durga Vahini and otherSangh Parivar associated groups, continued. It isbelieved that their aim was to try to turn tribals againstChristians and missionaries. The methods used werecompared by local human rights activists to events inGujarat following the Godhra incident of February 2002.Church sources fear that the campaign of harassmentis not over. The recent installation of a Chief Ministerwho had earlier been known for her extremist views, andthe transfer of top police officials who acted swiftly inthese incidents are giving rise to concern among localpeople. MP Chief Minister Uma Bharti is now repeatingthe same false allegations after theJhabua incident that were levelled against GrahamStaines - that of converting poor tribals by offering them'allurement'. At a press conference in Bhopal earlier thismonth, Bharti, rather than appealing to Hindu JagaranManch and VHP activists to let the police do their job,stated: "Reports of conversions in Jhabua district havesurfaced repeatedly. This activity should stop." This is inspite of there not being a single conversion in the area inthe last ten years.The most shocking aspect to this tragedy though wasbrought out by the The National Commission for Women,which correctly pointed out the selfish marginalisation ofthe main issue of the rape of a nine-year-old girl and theraising of other insignificant issues by some groups. Thisexposed the present-day attitude of Indians. The mainissue was the rape of a minor, helpless girl, not who didit. It would have been an equally demonic act, whether itwas committed by a saffron hardliner or a Christianpriest, but this basic point was overlooked. Instead, thecommunal angle was more delved into. This not onlyshows us the mindset of the people, but reflects the socialfabric of India which, over the conservative centuries hasbecome so base. The most tragic aspect was that even theeducated press covered the issue from a purely communalangle, rather than as a humanitarian travesty.This incident is one in a series of anti-minority attacksby the saffron wave. With MP now under BJP rule alongwith neighbouring Gujarat, minorities like theChristians can expect tough times ahead. Its not a questionof whether the Hindutva brigade continues its activitiesagainst the minorities, it's just a question of when.Hoshedar Havewala is a first year law student at theNational Law School of India University, Bangalore.CLThe Mumbai High Court in March 2004made a decision concerning the filmFather, son and holy war by the famous documentaryfilm maker Anant Patwardhan. In thisfilm the Censor Board had granted certificate butthe Government owned Doordarshan was refusingto telecast the documentary. Part 1 of the filmhad been granted "U" certificate and Part 2 hadbeen granted "A" certificate. This documentaryhad received two awards in two different categoriesi.e. best investigative film and best film onsocial issues at the 42nd National Film Festivalconducted by Government of India. The film hasalso won international film award. Patwardhansubmitted his film for being telecast toDoordarshan. Even this film was refused telecaston the ground that the film had lot of provocativethings which may promote violence.The film in the words of the Court " The documentaryis trying to explore the link between theindoctrinate mechanism of patriarchal order andrights watchcommunal aggression, and attemptedto analyse relations between patriarchyand violence and suppression of women. The documentary,traversing the paths of atrocitiesthrough monitoring lanes of trouble torn Indiabrings out connection of violence , fundamentalismand masculinity and forcibly makes a praythat the victims and loses of all wars and violence,whether it be in the name of religion or patriotismare women".The court after viewing the film came to the conclusionthat the film had a serious message toconvey and was relevant in the present context. Itfurther held that Doordarshan being a State controlledagency funded by public fund could nothave denied access to screening the Petitioner'sdocumentary except on valid grounds. The courtfurther granted adults certificates on the T.V.Consequently the court directed DD to show thefilm on T.V.CL61 combat law • April - May 2004

judiciary & polityCyber Crime andIndian SocietyA pragmatic approach of all concerned isneeded to tackle this crime still in itsnascent stage in India.BY ANURADHA PARASARAreport written near the start of informationAge warned that computers were at riskfrom hackers. It said that computers thatcontrol our power delivery, communications,aviation and financial services andstore vital information, from medical records to businessplans, to criminal records, were vulnerable from manysources, including deliberate attack. The modem thiefcan steal more with a computer than with a gun.Tomorrow’s terrorist may be able to do more damagewith a keyboard than with a bomb i. . It has been predictedthat cyber crime is the wave of the future. The computerworld and the Internet frontier are perfect forcriminal ii. activities iii. . Dr. Uday Kumar iv. in Chennaistated in a three days capsule course for officers of therank of Dy. Superintendents of Police that Humanbeings have not changed mentally. Mentally, they arestill living in jungles. Only their tool of crime haschanged over the ages.In India cyber crime is no longer an illusion but it hasnot received the attention it deserves. This is so becauselaw and socio-cultural issues regarding cyber world andnature v. of cyber crime are still taken for granted withignorance. The development of cyber socio-culturaldeviance in our country in the last five years appears tobe inversely related with development of cyber law. Dr.Nirpen .L. Mitra vi. is of the opinion thaat law behaveslike a traditional hindu wife, staying seven steps behindher husband. Although there is continuous growth incyber crime and mis-use of World Wide Web, the lawand society are almost stagnant in this regard. Theincreasing rate of cyber crime is now opening the eyes ofsociety and law enforcing agencies at all levels.In a seminar titled ‘Cyber Law and Police’ on July 23,2000 Information Technology Minister Pramod Mahajansaid that India has not woken up to the cyber crime andthat this was the biggest challenge facing the lawenforcement agencies. He further added that cyber crimeis different from physical crime. You need differentmethods to combat vii. . Recognizing and anticipating thefatal result of cyber misuse the Central Bureau ofInvestigation (CBI) in August 2000 set up a “CyberAMITA CHAVANCrime Research & Development Unit” (CCRDU) to collectand collate information on cyber crime reported fromdifferent parts of the country viii. . Also the Cyber CrimeInvestigation Cell (CCIC) ix. of the CBI, notified inSeptember 1999, started functioning w.e.f. 3.3.2000 x. .The first cyber crime police station was opened inBanglore, which is the IT capital of India on August 30,2001 xi. . Not only this, Indian police has also made firstCyber Crime arrest on 02/09/01 in New Delhi xii. and hasalso drawn up cyber crime as digital xiii. signature xiv. .The internet today provides avenue for a wide range ofcyber crimes including several insider attack xv and outsidersthreats. Along with this Hackers xvi. , hactivism xvii. ,Virus writers xviii. , Criminal Groups xix. , Denial of serviceattack xx. , Terrorists xxi , Sensitive intrusions xxii. ,Information warfare xxiii. and Jurisdictional problem xiv.are the serious cyber threats, affecting society. AlthoughCyber crime in India is still in its nascent stage theimportance and consequences of cyber crime and itsimplication on socio-cultural deviance in Indian Societyis being noticed. The government drafted the IT Bill of1999, which was implemented as Indian cyber law i.e.Information Technology Act 2000 (IT Act 2000) onOctober 17, 2000 xxv. . IT act also provides compensationto the victim of cyber cases upto Rupees one crore xxvi. .Adjudicating officers xxvii. judge cyber law cases. India isamong the feww countries in the world that have cyberLaws. Analyzing the devastating effect, which theInternet can cause in India, even Insurance companiesare also offering insurance against all kinds of cybercrime, including loss of airtime, to the extent of $25 millionxxviii. . Even few police individual from the rank ofDCP from different state are being trained by IT62 combat law • April - May 2004

judiciary & polityprofessional for the cyber crime happening in differentstates of India.The National Crime Records Bureau and the C.B.I.handle cyber crime in India. As far as statistics is concernedThe National Crime Records Bureau does nothave any statistics of cyber crime across the countrywhereas the C.B.I. deals only with special cases. In theyear 2000 C.B.I. has handled 7 cases (this is the yearwhen Cyber Crime Investigation Cell, Delhi was set up).In 2001, the number of complaints rose to 19 and so farin 2002 there are 16 complaints registered with them. Afew eye-opening examples of documented cyber law casesin India are hacking of the Mumbai police Web site, illegalsale of an Indian company’s software by an Indianemployee in the US, sites providing information abouthacking and stealing credit card numbers, theft ofaccount information from State Bank of India computersin Raigarh, crashing of Phoenix Global Solutions’ mainserver by a disgruntled employee, harassment and stalkingxxix. of women online, obscene messages victimizinginnocent women, hacking of a company’s Web site by afired employee, spamming against a UK site by aPondicherry teenager, domain name disputes overYahooindia.com and rediff.com, hacking of Indian newsand government sites by Pakistani groups, and even sexuallyimproper content posted on a Web site by a schoolboyin Delhi. All these crime differ in nature and scopefrom each other. Although the above statistics showsthat cyber crime in India is still at its nascent stage, theGovernment, law makers and law enforcing agencieshave to be aware of the harm and dangers, which Indianssociety and economy face if not dealt with properly.Hence, the law enforcement agency should equip itselfwell to fight against cyber crime based on the experienceof other countries where one can see full fledged cybercrime in its youth.Internet-related crime like any other crime can bereported and taken care of with all due regards by appropriatelaw enforcement investigating authorities at thelocal, state, federal, or international levels, depending onthe scope of the crime. Some federal law enforcementagencies across the globe that investigate domestic crimeon Internet include Federal Bureau of Investigation(FBI), NIPC (National Infrastructure Protection Center),United States Secret Service, The United State CustomService, United State Postal Inspection Service andBureau of Alcohol, Tobacco and Firearms (ATF). Otherfederal agencies with investigative authority are TheFederal Trade Commission and The U.S. Securities andExchange commission.In India Cyber Crime Research & Development Unit(CCRDU) and the Cyber Crime Investigation Cell(CCIC) of the CBI handle crime in cyber space so as togive a safe and secure cyber society. But governmentefforts alone are not sufficient to combat this new crime,responsibility and awareness in society and educationalInstitutions at large is most desirable. Even companiesin India need to come up with comprehensive strategiesto fight cyber crime. Along with this in order to preparethe future lawyers of India to deal with the cyber Lawrelated cases, the faculty of all Law colleges need todevelop expertise in cyber Laws. Police should alsoaccept it as their social responsibility to prevent youngstersfrom indulging in cyber crimes and also to ensurethat cyber cafes were not made crime hubs. Researchprograms should be promoted in the sphere of cybercrime so that law can also keep pace with technologywith all clarity, promptness and effectiveness. However,there is an urgent need to have a fresh look at the criminaljurisprudence of the country and also there is theneed to adapt the same to the specific requirements ofthe online environment. There is an urgent need toovercome the initial inhibitions and hesitancy on thepart of the corporates to report the matter relating tocyber crimes.Indian Society needs to come up with a detailed comprehensivecode on cyber crime and computer-relatedcrime. Today there is the need to come up with a comprehensivelegal strategy to counter the menace of cybercrime. Brushing the issue below the carpet will not helpin the long run. It’s time to change the mindset of theIndian corporate fraternity in order to ensure that Indiaputs up a spirited fight against cyber crime. It will alsobe prudent for the Indian government to sign theInternational Cyber Crime Treaty so that India does notlag behind. This will ensure that India continues to be onthe same boat as a majority of forward looking nations,in terms of fighting and regulating cyber crime. The presentscenario requires a pragmatic approach from Indiancorporates as well as from the Indian government, in comingup with a comprehensive approach to fight cybercrime. Only a well-thought-out assault can ensure effectivepolicing. We should act now to protect our future.Endnotes:i. National Research Council, “computer’s at risk”, 1999ii. Cyber crime is a criminal activity that requires certain knowledgeof computers, allowing criminals to hack (or ‘crack’) into a computerto alter or destroy files or to gain information for personalbenefit, or to use the Internet to conduct illegal activities. This isdistinct from other types of computer and networking criminalactivity, such as computer-related crime, where computers are usedas tools but knowledge of them is not necessary for success.iii. Director of Anna University, Centre for ProfessionalDevelopment Education, Chennai.iv. Cyber crime are relatively easy to commit and difficult todetect. Most Cyber crimes are committed by insiders and only feware prosecuted. Potentially serious cyber attack can be conceivedand planned without detectable preparation. They can be invisibly63 combat law • April - May 2004

judiciary & polityreconnoitered, clandestinely rehearsed, and then mounted in a matterof minutes or even seconds without revealing the identity andlocation of the attackers.v. Vice Chancellor, National Law University, Jodhpur.vi. www.rediff.com/us/2000/aug/10us1.htmvii. “http://www.cbi.nic.in/cyber1.htm” www.cbi.nic.in/cyber1.htmas visited on 4.5.2001vii. The CCIC functions under the overall guidance of specialDirector , Joint Director, Economic offences wing II and the immediatesupervision of DIG, special investigation cell-III. The cell isheaded by a Superintendent of Police and has one Deputy Supdt. OfPolice, three Inspectors and One sub- Inspector at present, besidesother supporting staff. The jurisdiction of this cell is all India, andbesides the offences punishable under Chapter XI, IT Act, 2000, italso has power to look into other high-tech crimes.ix. CBI sets up Cyber crime Investigation cell, HYPERLINK“http://www.indiainfo.com/news/sept-24-92/24di49.html” www.indiainfo.com/news/sept-24-92/24di49.htmlas visited on 3.4.2001.x. Country’s first Cyber crime Police Station Opens - The TimesOfIndia,www.timesof india.indiatimes.com/articleshow.asp?art_id=69539761as visited on 21.4.2001xi. www.news.sawaal.com/09-Feb-2001/National/58.htmxii. Whenever a Computer or a Digital Device is used, it generates“Electronic Documents”. If these are to be produced as evidence,then Cyber Laws are in play. As per the provisions of the ITA-2000Digital Signatures affixed will be considered equivalent to writtensignatures. The Indian Evidence Act has also been suitably amendedby the ITA-2000 to provide for presentation of evidences ofElectronic Documents either in the electronic form itself or as certifiedprint outs.xiii. www.cyberdemocracy.org as visited on 2.1.2001xiv. India is confused with cyber laws, w.ciol.com/content/news/interviews/300101101.aspas visited on 2.1.2001xv. The disgruntled insider is a principle source of computercrimes as their knowledge of victim systems often allows them togain unrestricted access to cause damage to their system.xvi. Hackers crack into networks simply for the thrill of the challengeor for bragging rights in the hacker community.xvii. Hactivism is politically motivated attacks on publicly accessibleweb pages or e-mail servers. These groups and individuals overloade-mail server and hack into web sites to send a political messagexviii. Virus writers are posing an increasingly serious threat tonetworks and systems world wide e.g. The Melissa Macro Virus, theexplore.Zip worm, The CIH (Chemobyl) Virusxix. Criminal Groups – The increasing use of cyber intrusions bycriminal groups is also a serious threat as they attack systems forthe purpose of monetary gain. For e.g. ‘Phonemaster’s’ were an internationalgroup who penetrated the computer systems of very importantand confidential government agencies. The phonemaster methodsincluded ‘dumpster diving’ to gather old phone books and technicalmanuals for systems. They then used this information to trickemployees into giving up their logon and password information. Thegroup then used this information to break into victim systems.xx.Denial of Service attacks – In this hackers plant tools such asTrinoo, Tribal Flood Net (TFN), TFN2K or Stachldraht (German forbarbed wire) on a number of unwitting victim systems. Then whenthe hacker sends the command, the victim systems in turn beginssending messages against a target system. The target system isoverwhelmed with the traffic and is unable to function. Users tryingto access that system are denied its Services.xxi. Terrorists are known to use information technology and theInternet to formulate plans, raise funds, spread propaganda, and tocommunicate securely. For example, Convicted terrorist RamziYousef, the mastermind of the World Trade Centre bombing, storeddetailed plans to destroy United States airlines on encrypted fileson his laptop computer.xxii. Sensitive Intrusions – A series of Intrusions into numerousdepartment of defense computer networks as well as networks ofother agencies, Universities and private sector entities. Theseintruders successfully accessed Government network and takesenormous amount of unclassified but sensitive information.xxiii. Information warfare – One of the greatest potential threatsto our national security is the prospect of ‘information Warfare’ byforeign militaries against our critical infrastructure.xxiv. Jurisdictional Problem – A significant challenge amongstcyber crime specifically in hacking is multiple jurisdictions. A typicalhacking investigation involves victim sites in multiple statesand often many countries. This is the case even when the hackerand victim are in the same country.xxv. IT Act 2000 targets three existing areas of law: contract,penal code, and evidence, and expands the provisions of the IndianPenal Code of 1860, the Indian Evidence Act of 1872, the Banker’sBook Evidence Act of 1891, the Reserve Bank of India Act of 1934,and the Companies Act of 1956. See also supra note 13xxvi. Chapter IX, Section 43 of the IT Act provides for compensationupto one crore of rupees in cases involving unauthorized accessof a computer, unauthorized copying, extracting and downloading ofdata, introduction of viruses, worms, Trojans, etc. damaging or disruptinga computer or network, denying access to a computer, committingfinancial irregularities by manipulating computer, facilitatingillegal access to computer.xxvii. Under section 46 of the of the IT Act state that claims forcompensation lie to an adjudicating officer appointed by the CentralGovernment. Such adjudicating officers, according to section 46,have to possess relevant technical and legal experience and have tobe of the rank of a Director to the Government of India or any otherequivalent rank.xxviii. www.indian-express.com/ie/daily/20010226/ina26039.htmlxxix. Cyber-stalking – Cyber Stalking is a growing concernamongst cyber crime, with the majority of victims being female.Evidence can be found in Internet chat-rooms and newsgroups, aswell as through e-mail. The Internet provides anonymity, enablingperpetrators to be more vicious and threatening than might be thecase in person.Anuradha Parasar is Assistant Lecturer, Departmentof Policy Sciences, National Law University, Jodhpur.CL64 combat law • April - May 2004

judiciary & polityRule of Law — A FugitiveIncreasing corruption and brazen bending of the judiciary by people holding publicoffices intensifies the need of a Special law.BY K.G. KANNABIRAN“In a democracypolitical opponentsplay an importantrole both insidethe house and outsidethe House”observed theSupreme Courtwhile dealingwith a transferapplication filedby DravidaMunetra Kazhagam of a case pending before theSpecial Court against the reigning Chief Minister ofTamil Nadu, Jayalalithaa. The Court went on to observepolitical opponents do perform a role in a democracy.They are really interested in the administration of justiceand are a party interested in the matters of transferof a case from one court to another within the Sate andto a court in another State under the jurisdiction of theHigh Court of that state. In fact the principle of transferof cases is a statutory recognition of more than one principleof natural justice.The Supreme Court in this case found that the PublicProsecutor and defence counsel were working in tandemin subverting the judicial processes by recalling aroundseventy eight witnesses and for securing permission toanswer interrogatories addressed to her in lieu ofher presence in court to explain incriminating evidenceto the court as an accused under 313 of CriminalProcedure Code.I remember in the early stages of my practice in a familydispute before the High Court on its Original Side, aMinister of the Madras Government filed a petition thathe be examined on commission on the ground he being aminister he may not find time attend the court to giveevidence. He was a witness not an accused. The courtrejected the petition admonishing the minister quitesternly by pointing out that it is a very elementary dutyof a citizen to give evidence in a court when called uponto do so. What rings in my ear still is the prophetic sentencethe learned judge used. He pointed out that the lessonsof history should not be forgotten that in theantechambers of democracy dwells despotism. That kindof inter institutional discipline is slowly giving way toindulgence leading to the present state of decay.Little incursionspermittedindulgently bythe people andthe courts led toa grotesque caricatureof democracywe are livingwith to day.If the party orperson at thehelm of affairs iscorrupt, the kindAMITA CHAVANof massive appropriationof which Jayalalithaa isaccused, - 65 to 66 crores of disproportionate wealth- cannotbe acquired without wrecking the constitutionalmachinery. Corruption has the insidious quality ofdestruction of governance of the society as the termitehas. Corrupt governments are a hundred times moredangerous than terrorist violence and in fact terroristviolence thrives in corrupt governments. It is not terrorismthat is destructive of governance but the massivecorruption we have been reading about and living with.Once the Supreme Court comes to the view that justiceis not possible in the courts in Tamil Nadu in casesagainst the reigning Chief Minister will mere transferorders meet the ends of justice? It has been found by theCourt that the Chief Minister has been subverting thejudicial process. It is different from the ordinary run ofcases courts deal with.The issue of constitutional morality is also involved insuch cases. It would have been a case for impeachment ifthat procedure were available. An impeachment doesn’tforeclose a prosecution under ordinary law. It is a crimecommitted by the head of the government calling for theevolution of a different set of principles to insulate thecommunity against these depredations. A criminal prosecutiondeals with an indictment of a crime without referenceto and without interfering with the political statusa criminal holds. An accused Chief Minister facingthe trial in his/her courts was a situation which was notcontemplated at all and so not provided for. We do nothave separate category of political offences committed bypower wielders and a law to try these political offenders.This should be in addition to prosecution of crimes underordinary law.Soon after the Emergency of 1975 and in the wake and65 combat law • April - May 2004

judiciary & polityas response to the Report of Shah Commission, our politiciansof all hues made some feeble efforts to disciplinetheir conduct while in office. They however were not willingto legislate on their political status while under trialand the political consequence on conviction for their fouldeeds while in office. Special Courts Act was passed inthe wake of the findings given by the Shah Commission.In these fifty years of Independence no honest effort hasbeen made to contain misgovernance. In the SpecialCourt Bill debate in the Supreme Court JusticeChandrachud observed “Parliamentary democracy willsee its halcyon days in India when law will provide forspeedy trial of all offenders who misuse the public officeheld by them. Purity in public life is a desired goal at alltimes and in all situations, emergency or no emergency”and Justice Iyer wrote “the impact of ‘summit’crimes inthe Third World setting is more terrible than Watergatesyndrome as perceptive social scientists have unmasked.Corruption and repression –cousins in such situationshijackdevelopmental process” and goes on to state thatthis process leads only to erosion of confidence of the peoplein the constitutional value system and processes.Murtuza Fazl Ali J in V C Shukla’s case said that the Actis a permanent one, This Act however was not to remainfor long in the Statute Book. As soon as Mrs. Gandhicame to power without even a murmur of protest this Actwas repealed as having become infructuous!So we are left with the ordinary criminal law to dealwith crimes by political leaders who committed crimes,which are in abuse of their powers. The essential preconditionsfor a successful prosecution are an impartialand independent investigation into the crime. and anequally independent prosecuting agency. These are thesine qua non for a functioning criminal justice system.The chapter on investigation in the Criminal ProcedureCode proceeds on the assumption of an independent andimpartial investigation into crimes reported. The provisionsof the Code dealing with the powers and duties ofthe Public Prosecutor emphasize the independence of thePublic Prosecutor. There is a catena of cases of theSupreme Court emphasizing the importance of the roleof these two agencies if the criminal justice is to makeany sense. The major ruling premise is that the governmentshould respect the law, which it expects its citizensto obey. This respect for law should find expression in itscompliance with the scheme of legislation setting downnorms and the consequence of their breach.TheConstitution is the charter for the existence of the Stateand the Union, and any breach of its terms sets apart thegovernment as a law breaker and it breeds contemptfor law from the law breakers the government sponsorsand encourages.. This occurs when the politics of theparty in power takes precedence over the Constitutionand the laws.66 combat law • April - May 2004A Chief Minister bending the institution of justicebrazenly only with the object of ensuring her continuancein power and another for legitimizing the theocraticdesigns of a political party ignoring the Constitutionalmandate and driving Rule of Law in search of safehavens to function fearlessly is a tragedy the like ofwhich was never witnessed even in the worst periods ofauthoritarian trends in this country. Should we allowRule of Law to take to flight like a fugitive? Or should theacts of these two chief Ministers be taken, as breakdownof the Constitutional machinery is the question confrontingthe country today. We were already up againstthe objection raised by the Karnataka State to the transferof the case for trial in that State The Chief Ministerof Karnataka soon realized the untenability of such anobjection and so did not act upon the objection.Nonetheless the Chief Minister of Tamilnadu moved theSupreme Court again for transfer of the case against her,to some other State on the ground that the relationshipbetween the two States is soured due to Kaveri RiverWater dispute. The inter state river water dispute, whichis about water sharing of the common natural resourceby the people of riparian regions has been converted intoa chauvinistic and senseless fight between people of thetwo regions leading to riots between two linguisticgroups. This speaks volumes of our understanding of politicsand the constitutional arrangements of the relationshipbetween the states inter se and with the Union. Theconcept of enmity between two states, alien to any constitutionalscheme, federal or quasi-federal, is promotedand nursed and kept ready for use by the prevailing vulgaradversarial political practice.This dimension never invaded the debates and affectedthe decision making process in courts. A composite judiciaryin a quasi federal set up is now called upon tobestow thought on the rise of regional politics and partiesand the consequent weakening of the center leading tobreakdown of judicial authority. This attitude exposesthe ignorance of the history of Constitution making andthe absence of a working knowledge of the Constitution.This ignorance even of an awareness of Constitutionalpolitics has produced modern Chief Ministers likeJayalalithaa Narendra Modi and a whole lot of leaders atthe state and the center for whom election means occupationof the power structure and governing without referenceto the Constitution and its values. Can this fleeingRule of Law successfully evade the long arm of corruptionand abuse of power? Nor can we expect the ChiefMinisters facing similar accusations help the fugitiveRule of law to function freely and fearlessly with the constitutionalsystem seeming to be paralyzed.Fundamental rights of a huge collectivity of citizens inthe country who have been told by the courts that theirright to vote is a fundamental right, that they have a

judiciary & polityright to a corruption free government and that a fearlessand free administration of justice system is a part of thebasic structure of the Constitution and yet courts appearto be helpless in these situations. Surely the Courts,which came up with the principles of prospective overruling and the basic structure of the Constitution duringperiods of crisis, can innovate ways to secure a corruptionfree government by providing them with a stable,Has the Philosophy of the Supreme Court on Public Interest Litigation changed in theera of Liberalisation?BY PRASHANT BHUSHANShifting the Balance?The foundations of public interest litigationwere laid in the late 70s with cases like theRatlam Municipalities case. The scope andbreadth of public interest litigation wereexpanded in the Eighties from the initialenvironmental concerns, to concerns like bonded labour,child labour, the rights of detenues, inmates of variousasylums, the rights of the poor to education,to shelter and other essential amenitieswhich would enable them to lead a life ofdignity.Article 21 was expansively interpreted toinclude all these rights and the rule ofLocus Standi was relaxed to enable anypublic spirited citizen to move the courts onbehalf of a person or persons who may nothavethesocial or financial capacity to move thecourts themselves. Subsequently, in theearly Nineties the courts also took up aspublic interest litigation, cases involvingcorruption in high places and the accountabilityof public servants.This new activism on the part of thecourts naturally created serious rumblingsof discontent in the political and bureaucraticestablishments which charged thatthe courts were going beyond their normalrole and were assuming extra constitutionalpowers.The political establishment alsothreatened from time to time to curb thepowers of the courts with regard to publicinterest litigation by legislation.However, since this activist role of the courts gainedincreasing public support, the political establishmentdesisted from such legislative misadventures. However,the charges of usurpation of extra constitutional powersIn a large bodyof cases decidedin the lastdecade thecourt hasbetrayed alack ofsensitivitytowards therights of thepoor and disadvantagedsections ofsociety.67 combat law • April - May 2004fearless and free system of administration of justice.K.G. Kannabiran is an advocate and also President ofthe People’s Union for Civil Liberties (PUCL), a leadingcivil liberties group in India.CLby the activist courts, continued to be made by all sectionsof the ruling establishment.Unfortunately however, these charges appear to havestruck a sympathetic chord among a significant sectionof the court, as appears from some of their pronouncementsrecently.Changing PhilosophiesThere is now a large body of cases decided in the lastdecade where the court has not onlybetrayed a lack of sensitivity towards therights of the poor and disadvantaged sectionsof society, but has also made gratuitousand unmerited remarks regardingabuse of public interest litigation. Thisdecade has also been the decade of “economicreforms” as they are called. Severalpublic interest cases were filed during thisperiod challenging alleged perversions, corruptionand other illegalities involved inthe implementation of the new economicpolicies. Almost all these cases were dismissed.In several of them, the court hintedat and made remarks suggesting anabuse of public interest litigation. Since Ihad myself been involved in many of thesecases as a lawyer, I thought that it wouldbe interesting to investigate whether onecould see a change in the philosophy of theSupreme Court with regard to public interestlitigation during the era of economicreforms. This is what I have set out to dobriefly, in this presentation. The results arequite illuminating and indeed, distressing.In BALCO Employees Union v. Union of India (2002Vol 2 SCC 343), where the employees union of the governmentcompany had challenged its disinvestment onvarious grounds including the arbitrary and non transparentfixation of its reserve price, the Supreme Court

judiciary & politywhile dismissing the petition went on to make the followingobservations:“There is, in recent years, a feeling which is not withoutany foundation that public interest litigation is nowtending to become publicity interest litigation or privateinterest litigation and has a tendency to be counter-productive.”“PIL is not a pill or a panacea for all wrongs. It wasessentially meant to protect basic human rights of theweak and the disadvantaged and was a procedure whichwas evolved where a public spirited person filed a petitionin effect on behalf of such persons who on account ofpoverty, helplessness or economic and social disabilitiescould not approach the court for relief. There have been,in recent times increasing instances of abuse of PIL.Therefore there is a need to re-emphasise the parameterswithin which PIL can be resorted to by a petitionerand entertained by the court.”The court in this case refused to consider the petitionof Mr B. L. Wadhera, a lawyer known for having takenup many serious public interest cases, on the groundthat he was not directly affected by the disinvestment ofBalco. It went on to observe, “it will be seen that wheneverthe court has interfered and given directions whileentertaining PIL, it has mainly been where there hasbeen an element of violation of Article 21 or of humanrights or where the litigation has been initiated for thebenefit of the poor and the underprivileged who areunable to come to court due to some disadvantage. Inthose cases also it is the legal rights which were securedby the courts. We may, however, add that public interestlitigation was not meant to be a weapon to challengethe financial or economic decisions which had beentaken by the government in exercise of their administrativepower. No doubt a person personally aggrievedby such decisions which he regards as illegal, canimpugn the same in the court of law, but, a public interestlitigation at the behest of a stranger could not to beentertained. Such a litigation cannot per se be on behalfof the poor and the downtrodden, unless the court is satisfiedthat there has been violation of Article 21 and thepersons adversely affected are unable to approach thecourt. The decision to disinvest and the implementationthereof is purely an administrative decision relating tothe economic policy of the State and challenge to thesame at the instance of a busybody cannot fall withinthe parameters of public interest litigation. On thisground alone, we decline to entertain the writ petitionfiled by Shri B. L. Wadhera”.This effectively meant that a citizen could not challengeby way of PIL, the loot of the public exchequer,unless he was personally affected. It is significant thatthese observations were made in a case involving a challengeto an element of the so-called “economic reforms”of the government. It will be seen that the SupremeCourt has almost without exception negated all challengesto any element of the economic reforms packageof the government, even when such challenges werebased on specific violation of law or evidence of corruption.In Balco itself, the challenge to the selloff of the PSU,was based inter alia on a completely non transparentand arbitrary valuation of the company conducted inless than a week by a valuer of immovable property havingno experience in the valuation of companies. It hadbeen pointed out that the valuation of the captive powerplants of the company alone were worth more than theprice at which it was being sold. The court howeverrefused to examine this challenge by saying that the valuationwas done by one of the known methods ofvaluation.Restricitng AccessIn CITU v. State of Maharashtra, where the validity ofthe Enron power project had been challenged on theground that it was being set up in violation of Section 29of the Electricity Supply Act, that the project would beruinous to the finances of the State Electricity Board,and that there was adequate circumstantial evidence ofcorruption in the sanction of the project, the courtrestricted the challenge only to examine the accountabilityof the public servants involved in the sanction ofthe project. It refused to examine the challenge to theproject itself on the ground that they did not think it tobe in public interest to go into the validity of a projectwhich had been substantially set up and against whichseveral previous challenges had been rejected by thecourts.This was said despite the fact that the constructionof phase 2 of the project (which was more than twicethe size of phase 1) had not even commenced at the time,and that none of the previous challenges to the projectwere based on the grounds and material on which theCITU challenge was based. One of the grounds, onwhich CITU had challenged the project was that underSection 29 of the Electricity Supply Act, it was only theCentral Electricity Authority which had the power toexamine and grant technical and economic approval tothe project. In this case, when the CEA was finding thecost of power from this project too high, the FinanceMinistry told the CEA not to examine the financialaspects of this project and proceed to grant only technicalapproval. This is how the project came to beapproved which went on to supply power to the StateElectricity Board at a cost of upto Rs 27 per unit, as aresult of which the supply from the project had to bestopped, leading to claims of thousands of crores by68 combat law • April - May 2004

judiciary & polityEnron in an arbitral tribunal in London.In State of Karnataka v. Arun Kumar Agrawal, (20001 SCC 210) the Karnataka High Court had ordered aCBI investigation into the circumstances in which a1000 MW power project had been approved inKarnataka. The series of highly suspicious circumstancesfound by the High Court which warranted suchinvestigation were among others:That the financial capacity of the company, Cogentrix,which had been approved to set up this project was suchthat no reasonable person could think that it was capableof executing such a project. Its paid-up capital wasonly 130,000 US$, as against a project cost of over $1 billion.Its debt equity ratio was 19.2 is to 1 as against thenorm of 2:1.That Cogentrix had falsely claimed in its techno economicfeasibility report that General Electric Co wouldbe its technical partner in order to ride piggyback on thetechnical experience of GE.That China Light and Power which was subsequentlybrought in as a partner by Cogentrix had shown anamount of 191 million Hong Kong dollars as developmentcosts in India (through its Hong Kong subsidiary,CLP international) though they did not have any ongoingproject in India and had not shown how and on whatthese costs had been incurred. This Hong Kongsubsidiary was subsequently shut down and anothersubsidiary by the same name was opened in theBritish Virgin Islands, a known tax haven for moneylaundering.That though the requirement for power in Karnatakawould mainly be in the Bangalore area, and that is whyoriginally the application of Cogentrix was for setting upa 500 MW plant in Bangalore and another 500 MWAMITA CHAVANplant in Mangalore. Later however, they were allowed toset up the entire 1000 MW plant in Mangalore, necessitatingexpensive transmission of power by the Stateauthorities from Mangalore to Bangalore.That though the original permission for setting up theplant was given on the basis that Cogentrix would sellthis power privately to whoever was willing to purchaseit from them at mutually negotiated rates, thereafterthe State Electricity Board entered into the power purchaseagreement with Cogentrix to purchase the entirepower at very high rates.The Supreme Court however made short shrift of theelaborate High Court judgment, holding that,”Thusnone of the 13 circumstances noticed by the High Courtcan be characterised as giving rise to any suspicion,much less the basis for investigation by a criminal investigatingagency.”Slippery DealsIn Centre for Public Interest Litigation v. Union ofIndia (2000 8 SCC 606), the Supreme Court dismissedthe plea for an independent investigation into the government’sdecision to sell off developed offshore gas andoilfields from ONGC to a private joint venture. The challengewas based on a large number of facts and circumstancessuggesting corruption in the deal such as: thegovernment’s own estimates of the oil and gas depositskept arbitrarily varying at different points of time andthe deal was evaluated at the lowest of such estimates.An SP of the anticorruption unit of the CBI had filed asource information report to the effect that the dealinvolved a loss of thousands of crores to the publicexchequer and recommending that an FIR be registeredso that a regular investigation could be commenced andsearches and seizures made. However, instead ofregistering an FIR, the SP was transferred out of theCBI soon after he made this report, and the file onwhich he made the report was made to disappear. TheCBI went on to file a false affidavit in the High Court,denying the existence of the file on which the SP’s notehad been made.The CBI had in another case being investigated by itrecorded the statement of the private secretary of theMinister of petroleum who had signed the deal, that theMinister had received four crores from RelianceIndustries, one of the joint venture partners to whomthe oilfields had been sold.Various high officials of the Ministry of petroleum andONGC who were involved in the evaluation of thisdeal left their jobs and joined Reliance immediatelythereafter.The CAG had submitted a report on this deal pointingout that:69 combat law • April - May 2004

judiciary & politythe government had not studied the comparative economicsof running the gas fields and oilfields throughthe ONGC versus giving them to a private joint venture.The estimates of gas and oil deposits kept arbitrarilyvarying at different points of time.Though the deal was evaluated on certain claimed levelsof operating expenses by the joint venture, the operatingexpenses were not capped in the contract, leadingto a situation whereby the operating expenses actuallyclaimed by the joint venture in the first few years ofoperation were higher than those of the ONGC.The royalties and cess payable to the government ofIndia by the joint venture on the extraction of oil andgas were frozen for the duration of the contract, thoughthe JV was allowed to sell the oil and gas at the internationalmarket prices prevailing at any point of time.However, despite the above host of highly suspiciouscircumstances surrounding the deal, the report of theCAG, and the report of the SP of the CBI, the Court didnot think it fit to even order an investigation in the matter,though it castigated and passed strictures againstthe CBI for the loss of the file containingthe SPs report and their false affidavitsfiled in the High Court.In Delhi Science Forum v. Union of India(AIR 1996 SC 1356), the petitioners hadchallenged the award of telecom licences toprivate companies on various grounds,including that one of the companies HFCLwhich had made by far the highest bids innine circles had a very small net worthwhich made it ineligible. It however soughtto make up its net worth by entering into ajoint-venture with a foreign company whichhad a minor equity in the joint-venture, but90% of its net worth. The petitioners alsochallenged the decision of the governmentto place a cap of three circles for any singlecompany, which effectively allowed HFCLto vacate its other six circles, where it wasby far the highest bidder, without thepenalty of 50 Crores per circle which itwould have otherwise had to pay since itcould not have possibly paid the licence feesof all 9 circles. Again the court dismissedthe challenge by saying that the matter had beencleared by the tender Evaluation committee and therewere no allegations of malafides against it. All otherchallenges were repelled on the ground that theyamounted to challenges to the economic policies of thegovernment.In Union of India v. Azaadi Bachao Andolan, (2003 8SCALE 287) the High Court had struck down a governmentcircular which compelled the IT authorities toIt is difficultnot to get thefeeling thatthe courtsdecisions wereinfluenced byits ownapproval of thenew policies ofliberalisation,privatisationandglobalisation.70 combat law • April - May 2004exempt post box companies registered in Mauritius as“offshore companies”, from taxation in India on theground that such a direction violated the IT Act and preventedthe IT authorities from lifting the corporate veilof these post box companies in order to examine theirreal place of residence. The Supreme Court howeverreversed the High Court decision, holding that thegovernment could in terms of its economic policies granta tax holiday to foreign companies in order to attractforeign investment. It gave short shrift to the argumentthat this would violate the Income Tax Act underwhich non resident companies are taxable on theirdomestic income and that any change in the taxregime would have to be done by means of a Finance Actpassed by Parliament and could not be made by theexecutive alone.The Oil companies case (CPIL v. UOI 2003 Supp 1 JT515) is the only case to my knowledge in which theSupreme Court has allowed a challenge to any purportedimplementation of the new economic policy. It heldhere that the government oil companies nationalized byActs of Parliament which specifically mandatedthe companies to remain governmentcompanies could not be privatized withoutamending the Acts and thus taking theapproval of Parliament.So we see that barring the exception of theoil companies’ case, the court dismissed allother petitions challenging any executiveact taken under the cover of economicreforms. While it may be possible to takethe view that all these decisions are technicallycorrect, it is difficult not to get thefeeling that the Courts decisions were influencedby its own approval of the new policiesof liberalisation, privatisation and globalisation.Indeed, the court in Balco wenton to say that, “lastly, no ex parte relief byway of injunction especially with respect topublic projects and schemes or economicpolicies or schemes should be granted. It isonly when the court is satisfied for good andvalid reasons, that there will be irreplaceableand irretrievable damage that aninjunction be issued after hearing all theparties. Even then the petitioner should be put onappropriate terms such as providing an indemnity or anadequate undertaking to make good the loss or damagein the event the PIL filed is dismissed.”A similar proposition, virtually restraining the courtfrom granting any interim orders in PILs challengingany “ development projects”, was also laid down by thecourt in Raunaq International (1999 1 SCC 492).Obviously, if a public interest petitioner is asked to give

judiciary & politya bank guarantee or even an undertaking that he willmake good the loss that may occur to the government orany other person because of an interim order obtained inhis petition, in the event of his petition eventually beingdismissed, no interim order can never be granted in aPIL. No petitioner, especially one who moves the courtin public interest, can be held responsible for thevagaries of the court. Different judges have completelydifferent views on even matters of law. The Narmadamatter for example came to be heard and decided by adifferent bench from that which had originally stayedthe construction of the Dam. Even the bench, whicheventually dismissed the petition and allowed the constructionto proceed, had continued the stay order invarious hearings. Could or should the NBA have beensaddled with any loss occasioned to the government orthe project authorities or the contractors on account ofthe stay order which stopped the construction for fouryears? It would completely stultify PILs, if such a perniciousview is allowed to prevail.Environment vs Development?The activism of the Supreme Court in thelast decade is most evident is environmentalcases, particularly cases involving theurban environment or deforestation. Thus,the court has taken sweeping and boldsteps to move polluting industries out ofDelhi, to improve the air quality of Delhi byforcing commercial vehicles to convert toCNG, and to stop deforestation across thecountry. But it must be noted that in anumber of cases where the cause of theenvironment was pitted against “developmentprojects”, such as large dams, or evenhotels and housing colonies, the cause ofthe environment gave way to the interest ofsuch development. It is important to notethat in many of these cases, the legalsoundness of the case was also evident fromthe fact that some of the judges gave dissentingjudgments or that the court wentagainst the advice of its own expert committees.In Narmada Bachao Andolan v. Union ofIndia (2000 10 SCC 664), despite the strongdissenting judgment of Justice Bharucha,pointing out that the Sardar Sarovar projectwas proceeding without a comprehensiveenvironmental appraisal and withouteven the necessary environmental impactstudies having been done, as was evidentfrom the documents of the governmentitself, the majority judges still went on toIn a numberof caseswhere thecause of theenvironmentwaspitted against“developmentprojects”, suchas large dams,or even hotelsand housingcolonies, thecause of theenvironmentgave way tothe interest ofsuchdevelopment.71 combat law • April - May 2004approve the project and allowed it to go on without anycomprehensive environmental impact assessment whichwas necessary even according to the governments ownrules and notifications. The underlying reasons and ideologybehind the subordination of the cause of the environmentto the cause of “development”, is also evidentfrom the majority judgment. There are several passagesin the majority judgment, extolling the virtues of thekind of development brought in by large dams. The judgmenteven goes on to gratuitously emphasise the myththat the Bhakra dam was responsible for the green revolutionin the country. This, despite the fact that thecourt had specifically restrained the Narmada BachaoAndolan from making any submissions on the pros andcons of large dams. The court also goes on to make disparagingremarks against the NBA as being an antidevelopment organization.The same subordination of environmental interests tothe cause of “development” is evident in the SupremeCourt’s judgment in the Tehri Dam case (N.D. Jayal v.UOI, 2003 7 SCALE 54), where the governments ownexpert committee known as the Hanumantha Rao committeehad given an elaborate report pointingout a series of violations of the conditionson which environmental clearance to theproject had been given by the Ministry ofenvironment. The committee had pointedout that a number of studies, which werenecessary to evaluate the environmentalimpact of the project, had not been conductedand had recommended these be immediatelyconducted. However, despite this,though Justice Dharmadhikari held that inorder to ensure compliance with the conditionsof environmental clearance, it wasnecessary to constitute an independentexpert committee which would monitor thecompliance and further construction of theDam could only proceed on the green signalof this expert committee, the majorityjudgement did not even bother to ensurecompliance with the conditions of environmentalclearance of the project. Again, thejudgement makes remarks extolling thevirtues of development projects like suchlarge dams.In TATA Housing Development Companyv. Goa Foundation (2003 7 SCALE 589), thecourt went against the report of its ownexpert committee in allowing the constructionof a housing colony on land which hadbeen held by the committee to be forestland. The court held that the committee hadwrongly classified this land as forestland,

judiciary & polityby holding that the committee had deviated from its ownnorms. The court also relied on the reports of some otherprivate experts filed by the Tata Housing developmentCompany. Without entering into an elaborate discussionof the merits of this judgment, it may only be noted,that such microscopic examination of a report of thecourts own expert committee has never been done at theinstance of a poor or weak petitioner.For example, the court did not critically examine orinterfere with the report and recommendations of theCentrally empowered committee appointedby the court, regarding fishing by poor localfishermen in the Jambudvip islands. Thecourts orders based on the committee’sreport had effectively deprived hundreds ofpoor fishermen of their livelihood who wereusing the Jambudvip islands.Decreasing SensitivityThe period of economic reforms alsoappears to have coincided with an apparentlydecreased sensitivity of the courts tothe rights of the poor. This is evident fromthe attitude that the court has displayedtowards slum dwellers, oustees and workmen.In Almitra Patel v. Union of India,(2000 3 SCC 575) the court while adverselycommenting upon the governments policyto rehabilitate slum dwellers, remarkedthat, “ the promise of free land, at the taxpayerscost, in place of a jhuggi, is a proposalwhich attracts moreland grabbers.Rewarding an encroacher on public land with the freealternative sites is like giving a reward to a pickpocket.”This, despite that the court was aware of the fact thatmost of the dwellers live in sub human conditions and donot have access to other houses, and the court had earlierrepeatedly pronounced that the right to shelter andhousing is a fundamental right of every citizen of thecountry.In Ekta v. Union of India, the Supreme Court refusedto stop the eviction of slum dwellers in Calcutta who hadbeen living in those slums for the last more than 30years, despite the fact that they had no other access tohousing nor were they being offered any alternativeplace to go by the government. This was a case wherethe High Court had ordered the eviction on the groundthat the slums were a public nuisance. In AzaadiBachao Andolan v. Union of India, (2003) the SupremeCourt even refused to examine the question whether theLand Acquisition Act in so far as it allowed compulsoryacquisition of land from persons who are dependentupon that land for their livelihood is violative of theirfundamental rights, since the Act does not obligate theThe ideology ofthe SupremeCourt has duringthis phaseof “reforms”,shifted decisivelyinfavour of therich and powerfulsectionsof society.72 combat law • April - May 2004government to provide them with alternative land or analternative means of livelihood. The challenge to thevalidity of the Act was made in the circumstances thatthe monetary compensation given under the Act doesnot enable the oustees to recover what they lose by theirdisplacement as a result of compulsory acquisition of theland, and that they are in effect deprived of their livelihoodby such compulsory acquisition.The recent decision of the Supreme Court (T.N.Rangarajan v. State of Tamil Nadu), holding that thereis neither any fundamental nor legal nor anymoral right to strike on the part of workmen,(which not only goes against the Statutewhere this right has been recognized, butalso against several earlier judgments) hasfurther strengthened the perception amonga significant class of poor and disadvantagedsections of society, that despite itsexpansive pronouncements on the ambit offundamental rights under Article 21 of theConstitution, the ideology of the SupremeCourt has during this phase of “reforms”,shifted decisively in favour of the rich andpowerful sections of society.The above cases provide more than anecdotalevidence for the propositions that, a)The Supreme Court as an institution hasfrowned upon challenges to any action ofthe executive taken in the purported furtheranceof “economic reforms”, even whensuch challenges were based on violations ofStatute and evidence of corruption, and b)The court appears to have diluted its interpretation ofArticle 21, in the recent past. At the very least, it hasoften not acted to enforce the rights that it had declaredearlier in favour of the poor and the weak.In these circumstances, it is indeed tempting to arguethat the recent drawing back of the court in PIL, and thefears expressed by it of the possible abuse of PIL isbecause the court has in fact bought the ideology underlyingthe economic reforms - an ideology which veneratesthe virtues of the free market and undermines therole of the State in providing education, jobs, and thebasic amenities of life to its citizens. Such an ideologyruns counter to the Court’s earlier expansive interpretationof Article 21. This hypothesis does seem to offer thesimplest explanation for the above decisions of theCourt.Prashant Bhushan is a civil liberites lawyer practicingin the Supreme Court, has been actively associatedwith NBA, Enron, Jain Hawala cases and is part of theCommittee on Judicial Accountability.CL

judiciary & polityDNA fingerprinting - a legalperspectiveBY ABHIJEET SHARMARecently the Indian Evidence(Amendment) Bill, 2003 has been proposedon the recommendation of the185th Law Commission Report. The billprovides for DNA tests in paternity disputes.Scientific evidence frequently plays a key part inboth civil and criminaltrials and the scientificinvestigationof evidence left at thecrime scene can seemmore persuasive to acourt than the testimonyof eyewitnesses.The Scientific andTechnological proceedsin the process ofidentification of anindividual are of paramountimportancepredominantly in aforensic setup.Several techniqueshave been developedfor this purpose, simpleexample of whichis fingerprints of anindividual. One of the newest forms of forensic evidenceis DNA Fingerprinting, which uses material from whichchromosomes are made to identify individuals positively.The use of DNA evidence is anticipated to becomeuniversal in the 21st century. It is considered to be amajor breakthrough in forensic science in this century.It has been subjected to the most comprehensive, scientificexamination as no other twig of forensic science,and has currently established itself as one of the bestwith mounting applications. It is now a well recognizedtechnique, which is not only used in numerous areas ofresearch in modern molecular biology and genetics butalso finding prospective applications in our day to daylife. DNA fingerprinting is based on the principle thatthe genetic makeup of every individual is different fromthe others but is unique and idiosyncratic to an individual.DNA fingerprinting is the only definite, positive andpermanent identification method of a person as one’sDNA does not changes during one’s lifetime. DNA testingtakes advantage of the fact that, with the exceptionof identical twins, the genetic material -DNA- of eachperson is unique. DNA evidence, like fingerprint evidence,offers prosecutors important new tools for theidentification and apprehension of some of the most violentperpetrators. At the same time, DNA aids thesearch for truth by exonerating the innocent. DNA fingerprintsare useful in several applications of humanhealth care research,as well as in the justicesystem. They areused to diagnoseinherited disorders inboth prenatal andnewborn babies inhospitals around theworld. Research programsto establishinherited disorders onthe chromosomesdepend on the informationcontained inDNA fingerprints.They are also used tolink suspects to biologicalevidence.Another use of DNAAMITA CHAVAN fingerprints in thecourt system is toestablish paternity in custody and child support litigation.Advances in technology are leading to novel uses ofDNA fingerprinting almost every day.How DNA Fingerprinting is done?In DNA profiling process firstly, the DNA is isolatedfrom cells or tissues of the body in which the amounts ofDNA found at the root of one hair is sufficient. Afterchemically extracting the intact DNA from the samplerestriction enzymes are used to cut DNA at specificplaces. The DNA pieces are then sorted out according tosize by sieving technique called electrophoresis in anagarose gel. The DNA fragments are blotted from the gelonto a nylon membrane. This process is known asSouthern Blotting. On addition of radioactive or coloredprobe to the nylon sheet a pattern called the DNA fingerprintis produced. The final DNA fingerprint is builtby using several probes (5-15 or more) simultaneously.Where the samples are inadequate and the quality73 combat law • April - May 2004

judiciary & politypoor, this technique has been found to be less satisfactory.Therefore, a new technology was developed to replicatethe inadequate sample, by synthesizing new DNAfrom the existing one to obtain sufficient quantities foranalysis. This technique is called Polymerase ChainReaction (PCR) and the testing PCR is known as PCR-STR (Short Tandem Repeat). It can produce quick, valuableresults with degraded specimens.In India this technique is in its infancy. Centre forDNA fingerprinting and Diagnostics (CDFD), AndhraPradesh Forensic Science Laboratory (APFSL), Centrefor Cellular and Molecular Biology (CCMB), RajivGandhi Centre for Biotechnology (RGCB) are the majorinstitutes where DNA fingerprinting is done.Historical DevelopmentsIn 17th century English Botanist Dr Nehemiah Grew,fellow of the college of Physicians and of the RoyalSociety, was the first person to document his findingsabout the ridges on the hands in his paper published in1684 i. . This for 150 years was the primary source foridentification of individuals. But later it was found thateven fingerprints can be altered by surgery. Also theproblem with the fingerprints is that two individualscan have the same fingerprints although the chancesare very-very low. Karl LandSteiner ii , who was given aNoble prize in 1930 for dividing blood into four distinctgroups, formed the basis for identification of an individual.Today more than 100 different factors in humanblood are known which may vary in different individuals.Thus there had been clearly a need of another markerwhich is conclusive in exclusion so as to minimize thehigh increase in the error rate in wrongful convictionsand acquittals. This need was fulfilled by Alec Jeffreysby which individual specific polymorphism can bedetected. DNA fingerprinting/profiling was developed in1985 by Alec Jeffreys and his colleagues at LeicesterUniversity (England) who named the process for isolatingand reading DNA markers as “DNA Fingerprinting”.Forensic use of DNA technology in criminal casesbegan in 1986 when police asked Dr. Alec J. Jeffreys toverify a suspect’s confession that he was responsible fortwo rape-murders in the English Midlands iii. . Testsproved that the suspect had not committed the crimes.Police then began obtaining blood samples from severalthousand male inhabitants in the area to identify a newsuspect iv. .In a 1987 case in England, Robert Melias became thefirst person convicted of a crime (rape) on the basis ofDNA evidence v. . In one of the first uses of DNA in acriminal case in the United States, in November 1987,the Circuit Court in Orange County, Florida, convictedTommy Lee Andrews of rape after DNA tests matchedhis DNA from a blood sample with that of semen tracesfound in a rape victim vi. .Two other important early cases involving DNA testingare State v. Woodall vii. and Spencer v.Commonwealth viii. . In Woodall, the West VirginiaSupreme Court was the first State high court to rule onthe admissibility of DNA evidence. The court acceptedDNA testing by the defendant, but inconclusive resultsfailed to exculpate Woodall. The court upheld the defendant’sconviction for rape, kidnapping, and robbery oftwo women. Subsequent DNA testing determined thatWoodall was innocent, and he was released from prison.The multiple murder trials in Virginia of TimothyWilson Spencer were the first cases in the United Stateswhere the admission of DNA evidence led to guilty verdictsresulting in a death penalty. The Virginia SupremeCourt upheld the murder and rape convictions ofSpencer, who had been convicted on the basis of DNAtesting that, matched his DNA with that of semen foundin several victims ix. .DNA fingerprinting vis-à-vis IndianEvidence Act, 1872Applications of DNA testing are now well establishedin developed countries x. . In India, in several cases, judgmentshave been given either based on the results ofDNA testing alone or along with other corroborative evidence.Although DNA test has been accepted in manycourts in India, it has not yet been included in theEvidence Act. It is therefore, left to the discretion of thejudge whether the DNA tests under Section 45 of theIndian Evidence Act is to be accepted or not.The first paternity dispute in India xi. , which wassolved by DNA fingerprinting test, was the case No.M.C. 17 of 1988 in the court of the Chief JudicialMagistrate of Telicherry (Thalassery). The ChiefJudicial Magistrate held that: “the Evidence of Expert isadmissible under Section 45 of The Indian Evidence Act,1872. So also, the grounds on which the opinion isarrived at are also relevant under Section 51 of TheIndian Evidence Act. PW4 is an expert in the matter ofmolecular biology and the evidence tendered by him isquite convincing and I have no reason why it should notbe accepted. Just like the opinion of a chemical analyst,or like the opinion of a fingerprint expert, opinion ofPW4, who is also expert in the matter of cellular andmolecular biology, is also acceptable.”This verdict was challenged in the High Court but theHigh Court upheld the verdict of the Telicherry Courtstating that the results of DNA test by itself coulddecide paternity.Questions have been raised before the courts in casesof DNA fingerprinting, creating a hindrance to theinvestigating agencies, and some of them are: whether asuspect, or for that matter anybody can be forced to give74 combat law • April - May 2004

judiciary & politya blood sample for testing?, Whether such a testingwould be considered a violation of Article 20(3) of theConstitution of India, which protects every citizen fromproviding self-incriminating evidence? Whether anorder forcing an individual for DNA testing would beviolation of his right to privacy? If the person refuses tosubmit himself/herself to such test whether adverseinference or presumption can be drawn by the court?Justice Jagganatha Rao, Chief Justice of the KeralaHigh Court pointed the lacunae in this regard in 1995 ina verdict concerning paternity dispute. Justice Raopointed out in his judgment xii. :a) DNA testing is as yet not considered a conclusiveproof under Section 112 of the Evidence Act, andb) Law has not been passed by the Parliament for suchtesting.Section 112 uses the words, “conclusive proof” andrefers to ‘non-access’ as the sole exception xiii. . Therefore,as the language of the section stands, no other evidenceis permissible except non access, to prove that a personis not the father. This was held in several decided casesand also recently by the Supreme Court in Kanti Devi v.Poshi Ram xiv. . That case concerned DNA evidence butthe Supreme Court refused to permit the evidence onthe ground that except ‘non-access’ no other evidence ispermissible to prove that a person is not the father.A judgment of the Supreme Court in 1993 also highlightedthe fact that there is no provision in Indian lawsto force or compel people to undergo blood tests or anyother type of DNA testing xv. .Bombay High Court in the case of SadashivMalikarjun Kheradkar v. Smt. Nandini SadashivKheradkar and Another xvi. , it was held that the Courthas power to direct blood examination but it should notbe done as a matter of course or to have a roving inquiry.The Bombay High Court even felt that there should be asuitable amendment by the Legislature and after notingthat nobody can be compelled to give blood sample, itwas held that the Court can give a direction but cannotcompel giving of blood sample.In a recent case of Mrs. Kanchan Bedi and Anr. v. ShriGurpreet Singh Bedi xvii. , where the parentage of theinfant was in question, and the application filed by themother for conducting DNA test was vehementlyopposed by the father contending that it would violatehis rights, Vikramjit Sen J of the Delhi High Court heldthat: “it appears to me to be difficult to resist that thelaw, as it presently stands, does not contemplate anyimpediment or violation of rights in directing persons tosubmit themselves for DNA test, especially where theparentage of a child is in controversy for the grant ofmaintenance.” It was further held that where theparentage of a child is in controversy for the grant ofmaintenance, parties submitting themselves for theDNA test is not violation of rights. He relied on the decisionof the Supreme Court in the case of Geeta Saha v.NCT of Delhi (DB) xviii. , where a Bench of Hon’bleSupreme Court had ordered that a DNA test be conductedon a foetus of a rape victim. Vikramjit Sen J distinguishedthis case from the case of Goutam Kundu v.State of West Bengal & Anr. xix. , where it was held that“wife cannot be forced to give blood sample and noadverse inference against her can be drawn for thisrefusal”. In Ms. X v. Mr.Z & Anr. xx. , a single Judge ofDelhi High Court had allowed a similar application andhad directed that at the cost of husband, the PathologyDepartment of All India Institute of Medical Sciencesshould conduct the DNA test. The DNA test was to beconducted of a foetus.In a very important and recent judgment delivered bythe Supreme Court of India in the case of Sharda v.Dharmpal xxi. the core question was, whether a party toa divorce proceeding can be compelled to undergo a medicalexamination. In this case an order for DNA test wasopposed by the Respondent on the ground that such anorder violates his right to privacy. The three Judgebench of the Hon’ble Supreme Court held that: “If forarriving at the satisfaction of the court and to protectthe right of a party to the lis who may otherwise befound to be incapable of protecting his own interest, thecourt passes an appropriate order, the question of suchaction being violative of Article 21 of the Constitution ofIndia would not arise. The court having regard to Article21 of the Constitution of India must also see to it thatthe right of a person to defend himself must be adequatelyprotected.” It further held that if respondentavoids such medical examination on the ground that itviolates his/her right to privacy or for a matter right topersonal liberty as enshrined under Article 21 of theConstitution of India, then it may in most of such casesbecome impossible to arrive at a conclusion. It was alsosaid that if despite an order passed by the Court, a personrefuses to submit himself to such medical examination,a strong case for drawing an adverse inferencewould be made out. Section 114 of the Indian EvidenceAct enables a Court to draw an adverse inference if theparty does not produce the relevant evidence in hispower and possession.DNA Legislations in other countriesCanada has passed DNA Identification Act whichbecame official on June 30, 2000 xxii. . This legislationallowed a DNA data bank to be created and amendedthe Criminal Code to provide a mechanism for a judge toorder persons convicted of designated offences to provide75 combat law • April - May 2004

judiciary & polityblood, buccal or hair samples from which DNA profileswill be derived. The National DNA Data Bank respectsconsiderations of genetic privacy and follows strictguidelines as specified in the DNA Identification Act.The biological samples collected from convicted offendersand the resulting DNA profiles can only be used forlaw enforcement purposes. It assists law enforcementagencies in solving crimes by:• Linking crimes together where there are no suspects;• Helping to identify suspects;• Eliminating suspects where there is no matchbetween crime scene DNA and a DNA profile in theNational DNA Data Bank; and,•Determining whether a serial offender is involvedIn Canada taking of a genetic sample without consentis held to be valid when the sample is collected by ahealth care professional xxiii. .Recently “Advancing Justice Through DNATechnology Act of 2003” has been enacted inthe United States of America to eliminate thesubstantial backlog of DNA samples collectedfrom crime scenes and convicted offenders, toimprove and expand the DNA testing capacityof Federal, State, and local crime laboratories,to increase research and development ofnew DNA testing technologies, to developnew training programs regarding the collectionand use of DNA evidence, and for otherpurposes xxiv. . By this Act imperative amendmentshave been made in DNA IdentificationAct of 1994 xxv. and DNA Analysis BacklogElimination Act of 2000 xxvi. and OmnibusCrime Control and Safe Streets Act of 1968.This Act also provides for the establishmentof National Forensic Science Commissionwhich shall make specific recommendationsto the Attorney General, as necessary, to enhance theprotections described in subparagraph (G) to ensure—(i) the appropriate use and dissemination of DNAinformation;(ii) the accuracy, security, and confidentiality of DNAinformation;(iii) the timely removal and destruction of obsolete,expunged, or inaccurate DNA information; and(iv) that any other necessary measures are taken toprotect privacy.Britain has Criminal Justice and Public Order Act,which provides for forcible testing of blood samples.76 combat law • April - May 2004Like all newmethodologiesDNA typingwill have toface legalchallengesbefore thecourts willallow it intoarena ofevidence.Drastic changes required in IndiaFor the successful incorporation of this technique inthis country various scientific and legal reforms arerequired. Legislature should draft a piece of legislationthat would maximize the use of DNA evidence to punishthe guilty and protect the innocent, as has been done inCanada, USA and UK. Steps have been taken under theproposed Indian Evidence (Amendment) Bill, 2003. InSec. 112, i.e. section regarding paternity disputes, apartfrom the sole exception of ‘non-access’, other exceptionsby way of blood-group tests, DNA have been proposedbut subject to very stringent conditions. The bill providesfor DNA tests conducted in the cases of paternitydisputes by the consent of the man and in the case of thechild by permission of the court. It also provides that incase the man refuses to undergo the DNA test then heshall be deemed to have waived his defense to any claimof paternity made against him. Accordingto this proposed amendment, DNA testscan result in conclusively proving paternity.But where the samples match, the controversyremains. If the DNA data is lessand does not cover the whole populationof a country, the matching is weak evidence.Where the DNA data is availablefor a larger population or for the wholecountry; naturally, the probability aboutthe identity of the person will be far lessthan in a smaller population. Therefore,as in the case of blood-group tests, sciencehas progressed to this extent that wherethe samples of the male and the child donot match, it is certain that the male isnot the father. But, where they match, itleads us to a theory of probability. It hasbeen proposed that as in the case of bloodtests, there can be evidence by way ofDNA tests to prove that a person is not the father. ButDNA evidence cannot be used to say that a person is thefather xxviii. . I think that ‘match’ must also be given thesame treatment because the probability is same in boththe cases, being it ‘match’ or mismatch’.Many a times the courts have expressed their inabilityin giving any order for DNA examination or even forblood test because as according to the law in India onecannot be forced to give his blood sample and a numberof times objections have been raised to such an order, inmany cases it has been contended that such an orderwould violate the rights of an individual enshrinedunder Article 21 of the Indian Constitution. Thoughsuch an objection has been well answered and has beenrightly rejected by the Hon’ble Supreme Court in therecent case of Sharda v. Dharampal xxix. . If a person hascommitted an offence, then why will he volunteer to give

judiciary & politya specimen of blood, knowing fully well that it will convictthem? Such a law which prohibits taking blood samplesforcibly without the wishes of an individual, formedical examination is rather protecting the offenderswhich from no angle of vision can be the purpose of law.Even in well developed countries like Canada andBritain forceful blood examination is permitted to servethe ends of justice. It also cannot be said that proof comingout from DNA cannot be self-incriminatory becauseit is naturally present in the body, thus any proofderived from it cannot be self-incriminatory.There is a need for the enactment of a legislation providingfor DNA examination and establishment of aNational Commission, which will keep abreast of allnew technological developments for scientists andlawyers alike. The commission will formulate the procedure,standards and quality control, and will provideofficial approval to the testing laboratories.The legislation must provide that:-•DNA evidence should not be collected from a suspectunless the information is relevant to a specific crime inquestion and it must not be collected from suspects as amatter of routine.• There should be reasonable grounds for suspectingthat the person committed the offence before taking theDNA sample.•As a privacy safeguard, DNA evidence should be collectedfrom a suspect only if a judge authorizes the collection.•The legislation should also provide for the eligibilityof the scientists conducting the DNA tests.• The legislation should also authorize collection ofDNA samples from persons convicted of specified felonyoffenses which, military offenders, and terrorism relatedoffences. Because of their DNA record it would bemuch easier to trace the criminal and also it would savea lot of time of police.• The legislation should also provide that the policeofficers must be properly trained for collecting samplesfor DNA test, from the crime scene;•The legislation should also permit storage and maintenanceof DNA data of crime scene Specimens, unidentifiedhuman remains and relatives of missing persons.ConclusionAfter both sides present their evidence and argue theircases, judges must weigh what they have heard anddecide whether or not the accused person is guilty ascharged. This can be difficult. The evidence presented isnot always clear-cut, and sometimes judges must decidebased on what a witness says they saw or heard.Physical evidence can be limited to strands of hair orpieces of fabric that the prosecution must somehow linkconclusively to the defendant. DNA fingerprinting is away of tying a person to the scene of a crime beyond ashadow of a doubt or more importantly it could rule outsuspects and prevent the wrong person from beinglocked up in jail. Judges, Lawyers and forensic scientistsneed to be much better educated about the inferentialnature of DNA evidence. With well informed judges,lawyers and investigative people, the probability forconvicting innocent people will be minimized and theprobability of convicting guilty people will be maximized.It was observed by the 185th Law CommissionReport that the law of evidence is likely to undergo radicalchanges with standardization of new technologies.The judge will be handicapped if he is unable to appreciatethe probative value of new standards and conceptsof evidence. The entire technology of DNA fingerprintingis an accepted method of proof today in contestedparentage and similar disputes. Genetics and reproductivetechnologies are throwing new light on severalquestions of fact in which ordinary inferences are nomore acceptable. It looks as though the 21st century willherald radical changes in our understanding of humanbehavior through inventions in biological sciencesrather than in social sciences. Naturally, law, concernedwith human behavior, has to mend fences with biologyand bio-technology in more significant ways than hithertobefore xxx. .DNA evidence should be lauded nationally as the mostreliable evidence known. Like the fingerprint each personhas a unique DNA fingerprint. Although the fingerprintscan be altered by surgery, a DNA fingerprint cannotbe altered by any known treatment. DNA profilingcan be done from almost every part of the body. So, DNAfingerprinting is rapidly becoming the primary methodfor identifying and distinguishing among individualhuman beings. The technique is new but it is much betterthan other identification techniques like fingerprintingand picture ID which have their own limitations.Like all new methodologies DNA typing will have toface legal challenges before the courts will allow it intoarena of evidence. The trier of fact will have to be convincedthat the procedure is both reliable and generallyaccepted by the forensic science community. There aremany challenges yet to be confronted with before DNAtyping can be classified as a routine forensic laboratoryprocedure. A number of questions have been raisedquestioning the reliability of DNA evidence in the countrieshaving legislations for DNA fingerprinting but atthe same time the conviction rate has also increased inthose countries. DNA fingerprinting, if properly performedis beyond any doubt which is there on the conductof Indian police and Prosecutors because of theirhistory of fabricating and padding evidence. So, effectivelegal and administrative measures must be taken toovercome this practice of investigating officers and to77 combat law • April - May 2004

judiciary & polityensure that such a stout piece of evidence is aboveboard. The foundation of forensic science based on thepremise ‘material objects will not lie’ becomes meaninglessbecause material objects are made to lie by certainmen.CDFD Director Seyed Ehtesham Hasnain said “Localevidence can be removed or created but DNA can’t lie.DNA is very very robust. We can get enough DNA evenfrom the burnt teeth xxxi. .” he also said that “the rate ofconviction has gone up significantly wherever DNA fingerprintinghas been taken as evidence in the court xxxii. ”The time for denial of admitting DNA evidence is over.We know that the present system has identifiable flaws.Law has to grow in order to satisfy the needs of the fastchanging society and keep abreast with the scientificdevelopments taking place in the country. Law mustwalk in tandem with the evolutions science has madeand thus take away evidence from the jugglery and trivialobjections of lawyers. As new situations arise the lawhas to be evolved in order to meet the challenge of suchnew situations. Law cannot afford to remain static.Endnotes:i. http://www.met.police.uk/history/fingerprints.htm (visited on3rd January, 2004)ii.http://www.pbs.org/wnet/redgold/innovators/bio_landsteiner.html (visited on 3rd January, 2004)iii. The first reported use of DNA identification was in a noncriminalsetting to prove a familial relationship. A Ghanaian boywas refused entry into the United Kingdom (U.K.) for lack of proofthat he was the son of a woman who had the right of settlement inthe U.K. Immigration authorities contended that the boy could bethe nephew of the woman, not her son. DNA testing showed a highprobability of a mother-son relationship. The U.K. Governmentaccepted the test findings and admitted the boy. See Kelly, K.F,J.J. Rankin, and R.C. Wink, “Methods and Applications of DNAFingerprinting: A Guide for the Non-Scientist,” Criminal LawReview (1987):105, 108; Note, “Stemming the DNA Tide; A Casefor Quality Control Guidelines,” Hamline Law Review, 16(1992):211, 213-214.iv.http://www.ncjrs.org/txtfiles/dnaevid.txt(visited on 4thJanuary, 2004)v.Gill, Peter, Alec J. Jeffreys, and David J. Werrett, “ForensicApplication of DNA Fingerprints,” Nature, 318 (1985):577. See alsoSeton, Craig, “Life for Sex Killer Who Sent Decoy to Take GeneticTest,” The Times (London) (January 23, 1988):3. A popular accountof this case, The Blooding, was written by crime novelist JosephWambaugh, New York, N.Y.: William Morrow & Co., Inc., 1989.http://www.pbs.org/wgbh/pages/frontline/shows/case/revolution/wars.html (visited on 19th December, 2003)vi.Bureau of Justice Statistics, “Forensic DNA Analysis: Issues,”Washington, D.C.: U.S. Department of Justice, Bureau of JusticeStatistics, June 1991, at 4, note 8: See alsohttp://web.utk.edu/~jrainey1/Jasmine’s%20Biology%20Web%20Presentation (visited on 15thJuly, 2003)vii.The admissibility of the DNA evidence was upheld by theintermediate appeals court, which cited the uncontroverted testimonyof the State’s expert witnesses. State v. Andrews, 533 So.2d841(Dist. Ct. App. 1989).tk.edu/~jrainey1/Jasmine’s%20Biology%20Web%20Presentation(visited on 4th January, 2004)viii. 385 S.E.2d 253 (W. Va. 1989). http://www.mslawyer.comix.384 S.E.2d 775 (1989). Additional court appeals by Spencerwere rejected by the Virginia Supreme Court at 384 S.E.2d 785(1989); 385 S.E.2d 850(1989); and 393 S.E.2d 609 (1990). Ibid.x.http://www.pbs.org/wgbh/pages/frontline/shows/case/revolution/wars.html.xi. DNA Identification Act (which allowed a DNA data bank to becreated and amended the Criminal Code to provide a mechanismfor a judge to order persons convicted of designated offences to provideblood, buccal or hair samples from which DNA profiles will bederived.) has been passed in Canada, and Britain has CriminalJustice and Public Order Act (which provides for forcible testing ofblood samples)xii. Pandit, M.W. and Dr. Lalji Singh, “DNA Testing, EvidenceAct and Expert witness”, The Indian Police Journal, October-December 2000, p. 100.xiii.Though the Indian Evidence (Amendment) Bill 2003, hasproposed, apart from the sole exception of ‘non-access’, other exceptionsby way of blood-group tests, but subject to very stringent conditions.xiv. AIR 2001 SC 2266.xv. Ibid.xvi.1995 Crl. L.J. 4090xvii.AIR 2003 Delhi 446.xviii.1999(1) JCC 101.xix. (1993) 3 SCC 418xx.96(2002) DLT 354.xxi.2003 AIR SCW 1950 (B); 2003 (3) JT 399; 2003 (3) Scale475(2); 2003 (2) Supp. 962.xxii.http://www.nddb-bndg.org/main_e.htm (visited on 18thDecember, 2003)xxiii.Sharda v. Dharampal AIR 2003 SCxxiv. http://store.cq.com/cq-store/dnateexbi.html. (visited on 17thDecember, 2003)xxv 42 U.S.C. 14132(b)(2)xxvi. 42 U.S.C. 14135(d)(3)xxvii. 42 U.S.C. 3797mxxviii. 185th Law Commission Report.xxix. AIR 2003 SCxxx. http://www.kar.nic.in/fnjpc/report1a.html.xxxi. http://in.news.yahoo.comxxxii. Ibid.Abhijeet Sharma is 3rd year student in LL B fromNational Law University, Jodhpur.CL78 combat law • April - May 2004

labour rightsTea Garden Workers -Abandoned to DeathBY SUNIL SCARIAIt was 8.45pm on 7th March 2004. Around 250Raimatang tea estate workers were still waitingfor the Tribunal to arrive at their garden.The tribunal was supposed to be there at5.00pm. But then every worker in the other 5gardens the tribunal visited earlier the day had endlesstales of sufferings to tell. We reach their ‘enclave’ at 8.50pmand there is no electricity. Eversince the garden was closed,the elctricity has been disconnected. They lit two lanterns inthe darkness and we began recording their voices.I moved aside to chat with Rakesh, a 17 year old whilethe tribunal hearing was in progress. Just a few minutesbefore I had heard that many school and college goingchildren had to quit their education and this includedmany youngeters who were just about to complete theirmatriculation and degree courses. Rakesh was in his secondyear degree course at a Siliguri college. I asked himif he is going to college. His reply echoed what I justheard. He said that he used to be going to college once ina month, but since four months that also is discontinued.Because it costs at least Rs.30 per day in travel toSiliguri and food for the day and now the family is earninghardly Rs.50 at present he has to work to augmentthe family income. As our chat progresses he tells meabout this racket that takes young girls three times amonth to neighbouring states like Sikkim under theguise of domestic help and women entering prostitutionto support family. A few days after, Avijit Sinha, a correspondentwith the Telegraph in Siliguri reports,Twenty-five-year-old Ratia Oraon (name changed)stands out against the green tea bushes in her pink printedsaree and bright lipstick as she hurries down the ribbon-likewalk of Palashbari tea estate towards the dingylabour lines. That is where her client, a garden labourerat Palashbari, stays. Ratia will be paid Rs 30 for an hour.Her main customers come from Chamurchi, Haldibari,Mahabir tea estates, neighbouring gardens ofKanthalguri tea estate where she belongs.With the Kanthalguri tea estate lying closed since July22, 2002, and starvation deaths becoming a regular feature- 400 have already died - a section of the gardenwomen have resorted to prostitution as the only way outof stark poverty. "After lockout was declared in the garden,we plucked the leaves and sold them off. Then wesold the trees for firewood and some people even sold thefurniture, doors and windowpanes of the manager's bungalowfor food. There is nothing left now so we have takento this profession. It is better than seeing my little brotherdie without eating," says Ratia, fidgeting with herpainted nails .PHOTO COURTESY: SUNIL SCARIA79 combat law • April - May 2004Shining India? - Dekhlapra Tea Estate.Education is not the only thing that is affected. The teaplantations in India are witnessing an unprecedentedhuman tragedy, a survival crisis. The plantations inNorth Bengal have been feeling the heat for a couple ofyears now with newspapers writing about the crisis,especially the plight of the workers almost daily. Themanisfestations of this man-made calamity were manifold.They newspapers reports, various trade unions,NGOs said that hundreds of tea garden workers aredying of hunger and starvation in the region.In view of the persistent reports of starvation and otherhuman rights abuses in the tea gardens of North Bengal,Swadhikar, a voluntary society of Jalpaiguri requestedIndian People’s Tribunal (IPT) to visit the area in orderto determine the facts and make recommendations onthat basis. The Tribunal accordingly constituted abench under the Chairmanship of Justice (Retired)Hosbet Suresh which included Harsh Mander, Dr.Manas Dasgupta, Samar Nath Chatterjee, GayatriSingh, Virginius Xaxa and Ranjit Sarkar.The Terms of ReferenceTo look into the present living conditions of the nearlymillion workers and their dependents who are said tohave died in their hundreds due to starvation, endemicmalnutrition, poor sanitation and water-borne diseases,aggravated by unattended proper medical care.To investigate into the genesis, progress and the causesof the crisis in the tea industry that has entailedslashed wages and bonuses, curtailment or terminationof wages in kind (as required by the Plantation LabourAct), retrenchments, closures, lockouts and the abandonmentof many gardens by the employers.To review the powers and actions of the Central andState governments, the Tea Board and other regulatorybodies in preventing and ameliorating the full force ofthe crisis.

labour rightsThe Tribunal visited 6 gardens - Kathalguri,Dheklapara, Ramjhora, Mujnai, Kalchini andRaimatang on the 7th and held public hearing on 8, 9and 10 March, in Jalpaiguri to record oral and writtenstatements from all concerned parties. The people whodeposed included the local MLA, several tea employeesand union officials, discharged officials of the tea industry,the advisor to the Supreme Court in writ Petition196/2001 on the Right to Food and Right to Work, onemember of the Tea Auction Committee at Siliguri andseveral important buyers, social activists, and voluntaryassociations who are engaged in providing relief to thedistressed in the tea gardens. The Tribunal also met theDivisional Commissioner and the District Magistrate.A study done by the West Bengal Right to Food andWork Netwok and the advisor to the Supreme Court inWrit Petition 196/2001 has revealed that as many as 22plantations, 21, 000 permanent workers and about95,000 people have ben affected in Jalpaiguri districtalone. A door to door survey of 204 households in 2 plantationsdone by the study team revealed an even morefrightening picture with the average number of deathsper year increasing by 241% after closure of the plantations.Male deaths showed an increase of 404%, while theaged showed an increase of 350% after closure!The death registers show that most of the workers diedue to blood dysentery and cardio respiratory failure.However the maximum percentage die of causes ‘notgiven’ or ‘others’ which is not difficult to be understood ashunger deaths given the present condition of these gardens.There is an acute drinking water problem in allthese gardens. Once they were shut down the electricityand water supply was disconnected. People use the riverwater for drinking purposes with the same river beingused for cremation purposes. The water is also highlycontaminated with dolomite from the cement manufacturingfactories. Even the ground water in the region isunfit for drinking due to large scale application of fertilizers,pesticides and agrochemicals in the tea gardens.Why the Problem?The causes for the exisiting problem are manyfold. Themost common cited cause being the price fall. And theprice fall is attributed to a general over supply situation.But its beyond comprehension that the tea prices fallwhile the demand for tea is ever increasing. Consumerscontinue to pay higher prices for tea purchased off theshelf. It defies the supply - demand equation. The shiftfrom ‘commodity business’ to ‘branded product’ hasdenied the producers due fair price for their product.Tea gardens are ‘enclaves’, alien and inward lookingand cut off from all links with the surrounding peopleand economy i .. During the colonial period, labour washired from outside given housing and incorporated into anew form of society, the pattern of which was dictated bythe management of the plantation and designed solely tosuit the needs of the plantations. The owners of the teaplantations behaved as the rulers of these principalitiesii. . The tea plantation workers in eastern India, mostlyadivasis and lower castes, are fourth generationdescendents of these immigrants brought by the colonialplanters 150 years back from the tribal tracts of Bengal,Bihar, Jharkhand, Orissa, Madhya Pradesh and Nepal.Post independence, according to the Plantation LabourAct, 1951, the planters were to continue provide healthcarefacilities, transport and elementary schools. ThePlantation sector still operates under the colonial legacycharacterized by migrant labour, poor condition of work,low wages and generally perceived exploitative conditions.They are still treated as secondary citizens of thestate and continue to live under sub-human conditions.The Cha Bagan Majdur Union (associated with CITU)Secretary Mr. Zia –Ul- Alam had another reason for thepresent crisis. He said, “The nature of the present phenomenonof lock out and abandonment of tea gardens inWest Bengal during the last two years is quite differentfrom the earlier trends. The gardens hat have faced thisproblem are either gardens with declining productivityin terms of land (and not labour) and over-loaned (mosteven more than their total asset value). These plantershave sucked the land of all its resources and have failedto invest anything to the land. Instead, they abandonthe garden when the productivity of the land showsdeclining trends”.The Tribunal found from its interaction with the concernedpeople that there had been large number ofhunger related deaths, resulting from a combination ofstarvation, malnutrition, general debility and diseasethe number of deaths being not less than 800 in those sixclosed or abndoned gardens gardens it visited.Interim ReportThe Tribunal in its interim report came down heavilyon the violations of human rights, violation of statutoryobligations by the plantation managements, failure/inactionof the Central and State Governments in taking necessaryaction, and failure of the trade unions in protectingthe workers. The Tribunal noted that the workers’right to food, right to work, right to healthcare and sanitation,right to education and decent living conditionsare severly curtailed due to the closure of the gardens.The plantation managements have violated their statutoryobligations by misappropriating many crores ofrupees from the workers’ earned wages, salaries, bonus,rations, earned leave, provident funds, gratuity, lifeinsurance etc. They have also evaded their liabilities tothe government exchequer. Many operational gardensare also following this trend of not paying the80 combat law • April - May 2004

labour rightswages/salaries in time, not disbursing cereals in duetime, not depositing the PF amount, not paying gratuity,paying three day’s wages for six days of work and arepushing the workers and their dependents into starvationand death.The Tribunal also noted that the inaction and indifferenceof the Central Government and the Tea Board.While there is widespread agreement on the starvationand deaths among all parties including the ruling coalitionin West Bengal, the concerned ministers at theCentral and State level have denied that anyone haddied of hunger and starvation. Under the Tea Act 1953,the Central Government has vast regulatory powers particularlyin relation to employers who have defaulted inthe payment of wages and PF dues. Under the Act, theCentral Government and the Tea Board can initiatestringent measures against the tea undertakings orunits if they are ‘managed in a manner highly detrimentalto the tea industry or to public interest.’It also criticised the State Government for the indifferenceshowed to the workers. Their indifference is illustratedin the fact that the 2002 BPL survey did not includethe workers of the gardens even after their closure for oneand half years. The tribunal goes on to state that,It is also unfortunate that the State Government in itsaffidavit filed in the Supreme Court, states that it is nottheir responsibility to provide ration at subsidised ratesto these workers. The State Government should haverealised that it has constitutional obligation to identifyhuman rights violations and to prevent violation ofhuman rights and to fulfil human rights both under theInternational Covenant on Economic, Social & CulturalRights and also under the Directive Principles of StatePolicy. The state also has a duty to come to the rescue ofcitizens living under forced conditions of severe destitutionand forced hunger. It was only after the order of theSupreme Court dt. 16 January 2004, that the localadministration decided to undertake food relief measuresunder SGRY and AYY (Antyodaya AnnapurnaYojana). The Tribunal also found that these schemeswere implemented in a fragmented and inadequate manner.The Tribunal received several complaints to theeffect that many did not either receive the amounts dueunder the schemes or the full quota of grain supply. Eventhe BPL card was not issued by the government to thepeople entitled to the same which would have enabledthem to get their dues and food at the minimum priceand also would have helped them in availing governmenthealthcare facilities. It appears that the local administrationissued a card of its own that did not include medicalfacilities. The Tribunal also found that till this datethe scheme of payment of unemployment allowance ofRs.500 per month to employees of closed gardens for aperiod of one year, which was to be extended to thoseworkers of the 6 closed gardens of Jalpaiguri districtw.e.f. 1.12.2003., is yet to be implemented.The Tribunal was also critical on the trade unions. Whilethe trade unions feel the sand being swept away undertheir feet, they have achieved little to address the miseryof the workers mostly due their political allegiances andfight for dominance. It noted that if the trade unions actedunitedly taking prompt and proper steps, the conditions ofworkers could have been different. It was surprising tohear Mr. Zia –Ul- Alam of Cha Bagan Majdur Union (associatedwith CITU) tell us that he was not sure if the deathsin the tea gardens were due to hunger and starvation,echoeing the stand of the state government when askedabout the hunger deaths in the gardens.What should be DoneThe Tribunal recommended that all out measures(within the existing framework or special if needed),medical, food and potable water supply, transportationetc. needs to be taken to prevent anymore hunger deathsin the gardens. The tribunal also recommended prosecutionof employers in order to recover dues on LIC, PF andGratuities and other dues and called for immediate cancellationof leases and setting up of workers cooperativesto run the gardens as demanded by all trade unions. TheState Government should take back a portion of leasedout land for the settlement and development of nonworkersand/or temporary workers and their families.The tribunal also recommended amendment of the PLAto provide for welfare measures under the Act, to besupervised by the local panchayats and the BlockDevelopment Officers. The Government should take preventivemeasures against closure of gardens without permissionof the government and consultation with workers.The Tea Act should be suitably amended so as to assign aproper role to the State administration in the matter ofproper supervision and running of the tea gardens.Workers’ condition in this land ruled by the workers’party is indeed sub-human. And the state is yet to wakeup from its slumber and realise that it is their duty toprotect its citizens from hunger and starvation.Endnotes:i. Edgar Graham & Ingrid Floreing. The Modern Plantations inthe Third World (London, Croom Helm, 1984),p.25.ii. G.E Beckford, Persistent Poverty: Under-development inPlantations Economies of the Third World. (London:OxfordUniversity Press, 1972), p. 75.Sunil Scaria is the Joint Coordinator of the IndianPeople’s Tribunal on Environment and Human Rights(IPT) and visited the area with the Tribunal panel.Theauthor could be contacted at iptindia@vsnl.netCL81 combat law • April - May 2004

adivasi rightsAdivasi Tradition as CrimeAdivasi tradition of dispute-resolution is made out as a criminal offence.BY STAN SWAMYThe Adivasi Community has had centuries-oldtradition of dispensing justice at village /area level. The traditional village headman(Munda in Munda & Ho communities, Pahanin Oraon community, Manjhi in Santal community,Doklo in Kharia community) has the authorityto settle village - level disputes. He calls village meeting,summons the disputing parties, discusses the case inquestion, obtains a consensus decision on the matterfrom all assembled and pronounces the community’sjudgement which both parties are expected to accept.This may include punishment to the erring party in theform of fine in cash or kind and in extreme situationseven social ostracism from the village community.In case the guilty party refuses to accept the verdict ofthe village community, then it is referred to the areaheadman responsible for 20 to 30 villages (Padharaja inMunda & Oraon community, Manki in Ho, Pargana inSantal, Sohor in Kharia community) who together withthe all the village heads in his jurisdiction summons theconcerned parties, examines the case and arrives at aconsensus decision which the parties have to accept. Andin rare cases where even this decision is unacceptable toeither party, three area headmen representing about 90to 100 villages gather together and issue their finalverdict which has necessarily to be accepted by the disputingparties. Refusal to accept would be dealt withseverely leading to even physical ostracism. The mostsignificant factor is the consensus-decision makingprocess so that individual prejudice, lack of competenceof some persons etc. are taken care of and collective wisdomis cherished.This tradition of the Adivasi People was formally acknowledgedby the Indian Parliament when in December 1996 itpassed ‘The Provisions of the Panchayats (Extension to theScheduled Areas)Act,1996’ wherein in Section 4 (d) itaffirms “every Gram Sabha shall be competent to safeguardand preserve the traditions and customs of the people, theircultural identity, community resources and the customarymode of dispute resolution”.Adivasi Tradition made into a crime inPakur DistrictThe Jharkhand Government has issued notificationfor land acquisition in nine tribal villages of PachwaraCentral Block, within the scheduled area of Pakur Districtfor captive coal mining to supply coal to the power plants ofPunjab State Electricity Board (PSEB). The captive miningwill be done by a private company, PANEM Coal MinesLimited. Open cast mining will be done in 11 square kilometersof land which includes: Raiyati land - 640 hectares,Forest - 360 hectare, Homestead - 2 hectares, Waste land -15 hectares, Nala, River - 34 hectares, Road - 28 hectares,Grazing land - 22 hectaresAll the above agreements between JharkhandGovernment, PSEB and PANEM company were madewithout any reference to the Tribal People affected bythis mining project. Then the Land Acquisition Deptissued Notification No 4 on 13-11-2002 in the local newspapersto which the Gram Sabha of Pachwara sent a letteron 9-12-02 to the concerned authorities remindingthem of Panchayat Raj (Extension to Scheduled Areas)Act, 1996, according to which prior consultation withGram Sabha on any project involving land acquisition inScheduled Areas is a must. There was no response fromthe government. Then again the government issuedNotification No 6 in local newspapers on 14-5-03announcing the proposed acquisition of plots. The peopleagain responded on 2-7-03 to the effect that they demanda dialogue with concerned Gram Sabhas. This communicationwas sent to concerned officials by Registered Post.This letter was returned to them on 23-7-03 with a note“Refused” by the post man. In the meantime, the governmenthas issued Notification No 8 as per which the peoplehave been informed that measurement of those plotsof land proposed to be acquired is to take place. Peoplehave now hand delivered a letter on 25-7-03 to the officialsdemanding explanation for their Refusal of the previousletter. Response is still awaited.The action of the government goes against the prescriptionof Sec. 53 of Santal Parganas Tenancy(Supplementary Provisions)Act,1949, which enjoins theDeputy Commissioner “to issue notice to the raiyats andother persons interested to appear before him and to fileobjections, if any…” Let it be noted that the DeputyCommissioner of Pakur Dt., has not issued any suchnotice to the raiyats as of 25-11-03. Nor has he entertainedany of their objections.All that the people are demanding from the Govt is adialogue through which they will come to know the purpose,the use of their to be acquired land , terms of rehabilitation/ compensation etc. And this the govt refuses tooblige. This whole process adopted by the government isunconstitutional and illegal. Hence the village heads ofthe area decided they would not allow any outsider, be itgovernment officials, PANEM company personnel, into82 combat law • April - May 2004

adivasi rightsthe area by putting up manned barricades.All the nine villages presently affected and about 35surrounding villages which will be affected in futurestand united in this action. In the meantime, PANEMcompany is trying to weaken this united struggle by buyingoff some persons by money and promise of jobs.Hence the Pargana and the Manjhis of the area deemedit necessary to summon such deviants before their traditionalcourt, established their guilt, levied a fine as punishmentand issued a warning to the effect that if theywould not mend their ways more serious action would betaken against them. Now the local police persuaded onesuch person to file an FIR against the tribal chiefs in theDistrict Sessions Court and arrested all the village headsof the nine villages including a venerable 71 year-oldPargana (area-headman). The charge-sheet includesoffences such as (IPC Section 386 implying forcible extortionand Section 34 meaning group culpability of all theeight Manjhis and one Pargana). The whole groupapplied for bail in Pakur District Court. All of them gotbail. But the police retained one person who happens tobe the most outspoken of them all. Other charges havebeen added against him, including kidnapping andthreat to kill. When he applied for bail it was rejected onthe ground that these are non-bailable offences and hehas been languishing in jail for over 10 months. Thecrime is that he and the other tribal chiefs’ dispensed justiceas per their tradition of dispensing justice.This situation calls into question as to where the adivasipeople of Jharkhand and their democratic traditionof dispensing justice stand before the government’sadministration, the law and order forces and the judiciary.The only constitutional instrument which can dothat is the State High Court. Accordingly, JharkhandJustice Forum, a state level legal body, has filed a PIL inthe High Court of Jharkhand challenging the governmenton its land acquisition process and demanding therecognition of the Adivasi method of justice dispensationas valid and constitutionally binding. It is to be seenwhether the High Cort will restore the respect and dignitydue to the rich traditions of the Adivasi People?Stan Swamy is an activist from Jharkhand and isassociated with Bagaicha.CLThe Bombay High Court in March 2004 pronouncedthe judgement in the RameshPimple produced documentary film Akroshon the communal riots that took place inGujarat in 2002. As observed by theDivision Bench, “ the documentary makes asincere attempt to give expression to thesufferings and woes of the survivors of theholocaust. Ramesh Pimple applied for censorcertificate and the Examining Committeecame to the conclusion that the certificatecould not be granted. Pimple appealed tothe Revising Committee of the CensorBoard. The Revising Committee also decidednot to grant any censor certificate to thisfilm. Pimple then appealed to the FilmCertification Appellate Tribunal. ThisTribunal also agreed that no censor certificatecould be granted to the film as accordingto the Tribunal the film was one sidedversion of one particular community if shownto the masses it was bound to provoke thecommunal feelings and the desire to retaliateand take revenge. The Tribunalobserved “ These riots are now history andtherefore be forgotten by the public to avoidsuch cruel acts”.The Division Bench consisting of Justice A.P.Shah and Justice S.C. Dharmadhikariviewed the film for themselves. Theyobserved : “ If the narratives are consideredin the context of devastating destructioncaused by riots they will generate sympathyin the minds of the viewers for the riot affectedpersons. We are unable to agree with theview of the tribunal that exhibition of the filmwould lead to further communalviolence.The film creates more compassionrights watchthat hatred and would shame and shockordinary people and hopefully spur many ofthem to think and act positively”.They further observed: “ The petitioner’sdocumentary film “Aakrosh” brings out theagony and anguish of victims of communalriots which took place in Gujarat in early partof 2002. Gujarat burned and was convulsedwith barbarious violence for over 40 daysfrom February 2002 when the Sabarmatiexpress, running from Faizabad toAhmedabad, was attacked and torched atGodhra killing 58 passengers, many of themwomen and children.Even as the Godhratragedy was roundly condemned, the anticipatedbacklash took on the dimensions of aholocaust primarily aimed at the Muslimcommunity. This soon engulfed central,north and northeastern Gujarat, includingAhmedabad, Vadodara and part of the easterntribal belt. Nearly 800 persons were filledaccording to the official count, unofficial estimatesare far higher. It was a slaughter ofthe innocents. The brutalities were unprecedented,especially against women. The tragicevents in Gujarat, starting with the Godhraincident and continuing with the violencethat rocked the State for over two months,have greatly saddened the nation. It is nodoubt true that it is essential to heal thewounds and to look to a future of peace andharmony. But we are unable to share theviews of the tribunal that the riots are nowhistory, and therefore, be forgotten by publicto avoid repetition of such cruel acts. It iswhen the hour of conflict is over it may benecessary to understand and analyse thereason for strife. We should not forget thatthe present state of things is the consequenceof the past; and it is natural to inquireas to the sources f the good we enjoy or forthe evils we suffer.”Finally the Court referring to the riots whichtook place in Gujarat observed: “ Incidents ofriots occurred in Gujarat are extensivelyreported in newspapers and on electronicmedia.The national print and electronicmedia meticulously documented the holocaustespecially targeting of Muslim homes,mohallas, shops and establishments, factories,hotels and eateries and other economicassets as well as shrines. Sufferings ofvictims as an aftermath of the riots are alsometiculously shown on electronic media andthere seems to be nothing new or startling inthe narratives in the documentary. The petitionerto his credit has completely avoidedsensationalism and excitement. He ahs sincerelytried to portray the sufferings of theriot affected persons. Message of movie is amessage of unity and peace and judged inits entirety we are unable to hold that theexhibition of the film would lead to communalviolence.”The court after summarising various decisionsof the Supreme court came to the conclusionthat the Tribunal was not right inobserving that the movie would incite peopleand would lead to further violence.Accordingly the court in its historic decisiondirected the Censor Board to grant certificatefor exhibition of the film Aakrosh.83 combat law • April - May 2004

prisoners’ rightsAccessing JusticeThe right of the accused to a copy of the First Information Report will go a long way inensuring justice.BY HIRDEY PAL SINGHOur Constitution has provisions thatensure justice is delivered. Ensuring thataccess to the first information report isgiven to accused is provided for in law andalso judgements of Courts.Under Section 154 (2) Cr.P.C., a copy of the informationas recorded by a police officer has to be given forthwith,free of cost, to the informant. However, there is no suchexpress statutory right available to the person againstwhom the criminal investigative machinery of the Statehas been set in motion. The scope of the right of theaccused to the copy of the FIR needs to be judgedfrom the combined effect of the constitutional and thestatutory Law.Article 22 of the Constitution provides:(1) No person who is arrested shall be detained in custodywithout being informed, as soon as may be, of thegrounds for such arrest nor shall he be denied the rightto consult, and to be defended by a legal practitioner ofhis choice.(2) Every person who is arrested and detained in custodyshall be produced before the nearest magistratewithin a period of twenty-four hours of such arrestexcluding the time necessary for the journey from theplace of arrest to the court of the magistrate and no suchperson shall be detained in custody beyond the said periodwithout the authority of a magistrate.The analysis of Clause (1)shows that every arrestedperson is entitled -(a) to be informed of the grounds of his arrest,(b) to consult and to be defended by a legal practitionerof his choice.Under clause (2)(c) He must be produced before thenearest magistrate within 24 hours and(d) must not be detained beyond 24 hours without theauthority of a magistrate.The conclusion reached above is reinforced by the wordingsof the Clause 5 and 6 of Article 22 itself.(5) When any person is detained in pursuance of anorder made under any law providing for preventivedetention, the authority making the order shall, as soonas may be, communicate to such person the grounds onwhich the order has been made and shall afford him theearliest opportunity of making a representation againstthe order.(6) Nothing in clause (5) shall require the authoritymaking any such order as is referred to in that clause todisclose facts which such authority considers to beagainst the public interest to disclose.State has been given an express right in this case towithhold information from the detenue if the disclosureis against the public interest. No such authorization hasbeen given in the case of arrest. Therefore, it implies thatthe authorities are bound to disclose the complete factsforming the grounds of his arrest to the accused "as soonas may be".The right of the accused to inspect the FIR or obtaincopies of it can also be derived from Section 74 of theIndian Evidence Act, 1872 which defines 'public documents'and Section 76 which pertains to certified copiesof public documents. The Calcutta High Court in thecase of Panchanan Mondal v. the State, held that theFIR is a public document. The Court said:“The question of prejudice of the accused on account ofdenial of the copy of the FIR at the earlier stage thereforeassumes greater importance and on a proper considerationthereof, I hold that it is expedient in the interest ofjustice that a certified copy of the first informationreport, which is a public document, should be granted tothe accused on his payment of the legal fees therefore atany stage even earlier than the stage of S. 173(4) of theCode of Criminal Procedure. At the later stage, theaccused will have the right to have a free copy but thesame would not take away the right he already has inlaw to have a certified copy of the first information reporton payment of the legal fees ......."The above view of the Hon'ble Calcutta High Court wasalso accepted by the Gujarat High Court in the case ofJayantibhai Lalubhai Patel v. The State of Gujarat. TheHon'ble High Court held that the accused has a right toinspect the FIR which is a public document. Directingthe trial court to supply certified copy of the FIR at theearliest on payment of charges by the petitioner, it said:“When the FIR is forwarded to the Magistrate as contemplatedin the Code, then it is certain that a regularendorsement is made in the public document, viz., generaldiary regarding the case as contemplated underSection 154 of the Code. It also makes it clear that afterregistration the report has been forwarded under Section157 of the Code and that would raise a legal presumptionthat there is an official act and the same has been dulyperformed. Therefore also it becomes a public document,viz. forwarding a report to the Court under the Code andtherefore when a person against whom the report is86 combat law • April - May 2004

prisoners’ rightsmade asks for a copy, the same should be supplied to himwithout any hesitation on charging legal fees”.Under Section 173(7) of the Cr.P.C., (7) if the police officerinvestigating the case finds it convenient to do so, hemay furnish to the accused copies of all or any of the documentsreferred to in sub-section 173(5). However, theaccused has a right to apply for bail before the completionof investigation against him, even when he isbrought before the magistrate for the first time, which,according to the Constitution, has to be within 24 hours.In Hussainara Khatoon it has been laid down that inorder to determine whether the accused has his roots inthe community which would deter him from fleeing, theCourt should take into account the following factors concerningthe accused:“ 7. The nature of the offence charged and the apparentprobability of conviction and the likely sentence in so faras these factors are relevant to the risk of non-appearance,…”The legal practitioner appearing on behalf of theaccused can only represent the case fully and assist theBY VEENA KUMARIModel Jail, Chandigarh again came intonational news on January 22, 2004when three of the alleged assassins offormer Chief Minister of Punjab, BeantSingh allegedly escaped from the jailthrough a 94 feet long tunnel inside the jail premises.Former Chief Minister of Punjab, Beant Singh waskilled in a bomb blast outside Civil Secretariat inChandigarh on August 31, 1995. Seventeen others diedin the blast which was allegedly triggered by a humanbomb, Dilawar Singh, a dismissed Punjab police constable.The case was immediately handed over to CentralBureau of Investigation which arrested nine accused andbrought them to trial in the court of Sessions Judge,Chandigarh in 1996. The accused were lodged in highsecurity Model Jail Chandigarh since 1996 and the trialwas conducted inside the jail premises, after the administrationinvoked Section 268 Cr.P.C. against all theaccused on the ground that these accused were hardcoreterrorists and could not be brought out of the jail forsecurity reasons. The trial court has so far examined 235prosecution witnesses out of more than 375 cited witnesses,in the 900 pages challan filed by the CentralBureau of Investigation. With no bail for even a day duringthe last eight years to any of the accused, they mightbe mentally prepared to face any eventuality arising outof this high profile political case. Interestingly, twoA Model for All?87 combat law • April - May 2004court on the prima facie probability of conviction for thepurpose of bail if the first information report, the basis ofprosecution, is made available to him at the earliest.Delaying the furnishing of a copy of the FIR till the completionof the investigation does not at all help theaccused in securing liberty through bail.Copy should begiven prior to being produced before a magistrate.In conclusion, an amendment to the Cr.P.C. providingfor a copy of the FIR to the accused in case of his arrestwould not only benefit the defense, it would also nip corruptionin the bud as the accused would no longer haveto bribe to get a copy of the document on the basis ofwhich his liberty has been curtailed. However, even inthe absence of such a legislative exercise the accused hasa right to get a copy of the FIR which rests on the bedrockof the fundamental rights enshrined in the Constitutionof India.Hirdey Pal Singh is a Lawyer practising in the Highcourt of Punjab & Haryana.CLaccused, Balwani Singh Rajoana' and Jagtar Singh'Tara' have confessed their involvement in the crime inwriting before the trial court and have pleaded guiltyduring the pendency of trial.On January 22 2004, reportedly there was an alarm inthe jail at about 8. a.m. after the jail superintendent duringhis routine checking found that the three undertrials,namely Jagtar Singh "Hawara", Jagtar Singh Tara' andParamjeet Singh 'Bheora' alongwith one of their helper,Debi Singh( a murder convict) were missing. Soon thenews spread like a wild fire and media, senior police officialsand administrative officers rushed to the jail. Whilethe members of press and defense counsels were deniedentry into the jail premises, senior police officers weretight lipped about the whole incident. Suspecting foulplay, the defense counsels alleged that their clients couldhave been forcibly taken out of the jail premises by thepolice or jail authorities for the purpose of elimination.The defense counsel for one of the under trial even faxeda complaint to the National Human Rights Commissionthe same day apprehending threat to the life of his clientat the hands of police. Father of one of the under trial,Paramjeet Singh 'Behora' has also filed a private complaintin the court of Judicial Magistrate,Chandigarh fearing elimination of his son by the jailauthorities or police.In order to cover up their lapses; the administrationswung into action and arrested the Superintendent,deputy superintendent, assistant superintendent and

prisoners’ rightsfour other subordinate staff of the Model Jail, who wereheld responsible for the escape of the four prisoners,interestingly, not even a single senior administrativeofficer, responsible for the jail administration was questionedor arrested in the incident. Within a short tune,hundreds of persons from different parts of Punjab andChandigarh were rounded up by the police in connectionwith this case. Names of several human rights activistsand even defense lawyers were involved in the incident.After a month of the incident, fifteen persons have beenarrested in the" case including six inmates of the jail anda woman. Three human rights activists -including adefense lawyer suffered harassment during the interrogationby the police. All the arrested persons were subjectedto sustained third degree torture during theirpolice remand. Among the arrested persons a youngwoman Baljeet Kaur and her husband LakhwinderSingh alias Lakha, were brutally tortured and electricshocks were given on their private parts. Even theSuperintendent and deputy superintendent of the jailhave alleged in their applications before the Magistratethat they were given electric shocks on their privateparts. Narayan Singh 'Chaura' of village Dera BabaNanak in the border district of Gurdaspur, the allegedmastermind of the incident, was so brutally tortured thathis left arm became motionless. A board of doctors constitutedon the court orders for his medical examinationconfirmed the infliction of extreme form-of third degreetorture during his twelve day police remand by theChandigarh and Punjab police, but the Magistrale failedto take cognizance of this blatant violation of humanrights of the suspects. Even effective legal aid was deniedto many persons arrested in the case.After the media rubbished the theories put forward bythe Chandigarh Administration regarding the allegedescape of the four prisoners by digging a tunnel from thehigh security prison in Chandigarh, the Centralgovernment hurriedly constituted a high powered committeeheaded by Commissioner of Delhi Police comprisingof the Senior Superintendent of Police, Chandigarhand an IAS officer. They were asked to report within twomonths with regard to the lapses in the jail security systemand make recommendations for taking steps to preventsuch incidents in future.Showing distrust over the shabby investigation conductedby the Chandigarh Police, a Public InterestLitigation was filed in the Punjab and Haryana HighCourt demanding a CBI inquiry into the jail breakincident. The High Court issued notices to the Centralgovernment Chandigarh Administration and Districtand Sessions Judge, Chandigarh seeking their responseon the incident. Few human rights organizations alsojoined in the issue and demanded a high level judicialinquiry into the incident.Suspension of human rights of inmatesIn order to create terror in the minds of other inmateslodged in the Model Jail Chandigarh, the new jail administrationhas deprived all prisoners the enjoyment ofeven the minimum basic amenities like proper food, beddingand movement outside the barrack. The relatives ofthe prisoners who come for interview in the jail are maltreatedand subjected to constant harassment at thehands of jail staff. Two iron meshes affixed at a distanceof two feet from each other comes as an obstructionbetween the visitors and the prisoners, depriving themand their relatives to talk in privacy. The prisoners havebeen locked in their barracks for twenty four hours. Allprisoners lie on the naked floor and their clothes or quiltprovided to them by their relatives have been takenaway on the orders of the jail superintendent. The subordinatejail staff is also facing acute tension and hostilecircumstances inside the jail. Due to the indiscriminateinterrogation of subordinate jail staff by the Chandigarhpolice numerous jail officers are suffering from acutehypertension and depression. Charan Singh, an assistantjail superintendent who was called for interrogationin the case by the police and was made a witness, diedthe same day by suffering cardiac arrest on February 6,2004, The relatives of many other prisoners apprehendthreat to the lives of their near and dear ones who arelodged in the jail and a sense of insecurity is also breedingin the minds of jail inmates.Interestingly, a police officer of the rank ofSuperintendent of Police of Chandigarh Police has beenappointed as the Inspector-General of Prisons, U.T.Chandigarh in place of deputy-commissioner, who wasdischarging this duty till recently.Few questions which haunts every person on the tunneltheory of the police are as under :-1. How did the high-tech implements used for digging a 94-feet long and 14 feet deep tunnel reach the escapees andthe work of digging continue for a considerable long timewithout being noticed by even a single jail employee?2. Why would the under trial Jagtar Singh Tara' escapefrom the jail when he had voluntarily confessed of hisinvolvement in the assassination of the Chief Minister inthe court and had pleaded guilty in the court during thetrial?3. Did the delay of eight long years in the trial, withless than half of the prosecution witnesses having beingexamined so far, contribute in any way to convince theunder trials to run away and subvert the process of law?Veena Kumari is a practicing lawyer and co-ordinatorof the Human Rights Law Network, Chandigarh Unit.CL88 combat law • April - May 2004