Hot Off The PressNews

NHRC, India issued a notice on 24-02-2021 to the Union Ministry of Defence, through its Secretary, to show cause why Rs 5 Lakh should not be recommended to be paid as a relief to the next of the kin of an innocent citizen Thingtu Ngemu, who died in the uninformed and indiscriminate firing by the Army unit of 21 Para Special Forces, PSF, during an operation against Naxalites in Nantok circle, Dist. Changlang, Arunachal Pradesh in the interning period of 14-15 June, 2017.

The Commission has communicated that the case needs to be treated as special because the Judicial Enquiry Magistrate has held that the PSF personnel are responsible for the death of an innocent citizen. The Commission has also emphasized that if the Defence Ministry pays the relief amount to the victim’s family on the basis of its show cause notice in such cases, it will send positive signals amongst the locals and the credibility of the Armed Forces shall also improve. The response is expected within four weeks.

The Commission had registered the case on 29th June, 2017, on the basis of intimation from the Supdt. of Police, Changland, Arunachal Pradesh regarding the death of Thingtu Ngemu during an action by the security forces against naxalites in Nantok circle District Changlang.

Subsequently, the Commission through its Investigation Division found that the Judicial Magistrate, First Class, Distt. Changlang, had conducted the enquiry in the matter. It is recorded, in his report that the PSF personnel neither cooperated nor submitted any statements regarding the operation despite official letters & request of the Enquiry Magistrate.

After considering the relevant evidences, the Judicial enquiry officer found that the Army Unit of 21 Para Special Forces (PSF) of Jorhat had laid ambush within the reachable range of civilian/villagers, without any knowledge of local civil police or villagers, which was undesirable and dangerous for the inhabitants. Further, the PSF personnel detained a local innocent villager Tuwang Ngemu till late night without any reason, while he was returning from his own garden. He should have been allowed to go home after ascertaining his identity.

As a result, the other villagers and family members came towards the forest in search of Tuwang Ngemu. The PSF should have used night vision glasses/equipment to see through the dark night hours and should have identified innocent empty-handed villagers. They should have also heard the shouts of the villagers, who were searching their man, who was already detained by the PSF. Instead they resorted to blind firing without any provocation, which led to the killing of an innocent villager under the pretext of “mistaken identity”.

The enquiry Magistrate has also reported that the PSF continued firing indiscriminately from one side till 3 am of the next morning of 15/6/2017 without any retaliation or any cross-firing from anywhere. Such a blunder and irresponsible action is unjustified.

Holding the PSF personnel responsible for the death of Thingtu Ngemu, the enquiry magistrate noted that the victim was an innocent and had no connection with any outfit. The deceased is survived by his old ailing parents, wife & two small children. He was the primary bread earner & now the family has no source of livelihood.

Based on the analysis and inputs of the facts by its Investigation Division, the Commission, under Section 19 of PHR Act, has issued the show cause notice why the victim’s family should not be paid the monetary relief.


NHRC

[Press Release dt. 26-02-2021]

Corp Comm LegalExperts Corner

Human rights is increasingly occupying an important position with respect to a good corporate life, performance indicator and social responsibility. In the last decade, there has been an increased focus on the ramifications of the actions of business entities on individuals, communities and the environment.

However, despite the increasing discourse on the impact of business on human rights, effective attempts to check human rights violations in the supply chains and activities of corporations have remained limited. There continues to exist a gap between the policies being framed on business and human rights and its effective practical implementation. The cause for the same can be attributed to the lack of the political will, in some States, to strictly regulate human rights violations by business entities.

This lack of political backing to a binding business and human rights framework, particularly in developing countries, is largely a result of the economic considerations of the States, and their inclination to incentivise foreign investments in their territory by providing lenient investor obligations, labour markets and regulatory frameworks.

Let us analyse some recent developments on business and human rights, with particular reference to the Indian scenario.

Developments in Law

As against the traditional understanding that business and human rights are unconnected aspects of law and practice, in recent times, international community has growingly become aware of the impact of the actions of business entities on enjoyment of human rights. In 2011, the United Nations Guiding Principles of Business and Human Rights (UNGPs) acknowledged the duty and responsibility of States and corporations, to respect and protect human rights.[1] The principles articulated by the UNGPs stand as its three pillars: (i) State duty to protect; (ii) corporate responsibility to respect; and (iii) access to remedy.

The UN Working Group on Business and Human Rights had urged all States to develop a national action plan on business and human rights, such that they can effectively implement the UNGPs in their territories. For the same, the Working Group developed a “guidance note,” which stipulated four criteria for developing the national action plans: (i) the plan must based upon the UNGPs; (ii) it must reflect the State’s actual and potential business related human rights abuses; (iii) it must be inclusive and transparent; and (iv) it must be regularly reviewed and updated. Several States have already formulated their national action plans to implement the UNGPs in their respective States.

While India announced in 2018 that it will be formulating a National Action Plan on Business and Human Rights, the same is still to be finalised and released. The Ministry of Corporate Affairs, which is steering the process of formulating the National Action Plan, was undertaking consultations and accepting comments from stakeholders till March 2020, and the document must be in its final stage now.[2]

The National Action Plan will be expected to target several issues that are prevalent in India, such as dispossession and rehabilitation of communities, child labour, bonded labour, health and safety of workers, favourable working conditions, social protections, among others. Importantly, the most problematic issue with respect to regulating activities of businesses in India is that around 90 per cent of the labour works in the informal sector.[3] Employers of informal labourers are often aloof of voluntary commitments to corporate social responsibility.

Therefore, for the policies to be effectively put into practice, they must be devised in a manner to bring the informal labourers under the ambit of its protection. Unless the same is done, the policies framed by the State will effectively only be protecting 10 per cent of the workforce in India. It is also very important for the National Action Plan to emphasise on the need to ensure access to remedies to all the victims of business-related human rights violations.

Incidentally, in 2019, the Ministry of Corporate Affairs had revised the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business, 2011 (NVGs) and formulated the National Guidelines on Responsible Business Conduct (Ngrbc). The revision of the guidelines was made with the intention to urge businesses to actualise the UNGPs in letter and spirit.[4] However, all these guidelines only provide for voluntary commitments, and unless the same is replaced with mandatory compliance requirements, it will continue to serve mere lip service, without bringing about any effective change. An effective business and human rights framework will require accountability and enforceability of the principles enshrined in the UNGPs.

The United Nations Human Rights Council (Unhrc), in another move to regulate business and human rights, has also been attempting to devise a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.[5] State parties to the instrument will be required to regulate effectively the activities of all business enterprises domiciled within their territory or jurisdiction, including those of a transnational character. This would include ensuring that business, in its territory, undertake human rights due diligence, respect all internationally recognised human rights and prevent and mitigate human rights abuses throughout their operations.

Another development is the Hague Rules on Business and Human Rights Arbitration, which was also formulated recently with the objective of imparting a set of rules for arbitration in relation to business and human rights disputes.[6] The intention of the Hague rules is to subscribe to the application of the third pillar of the UNGPs which secures the access to remedy. It will be interesting how States and corporations respond to these developments in the coming years.

Position in Bilateral Investment Treaty Framework

The lack of political will on part of the States to regulate human rights compliances of corporations can be understood from the fact that traditionally investment treaties have failed to impose any obligation upon the investors, with respect to environment protection, labour and human rights. Moreover, while some recent treaties do have provisions relating to investor compliances/obligations, they merely call for a bona fide commitment to corporate social responsibility standards, without providing any enforceability of the compliances. The Indian Model Bilateral Investment Treaty (BIT), 2015 can be a good example for the same. Article 12 of the Model BIT reads as:

“Investors and their enterprises operating within its territory of each party shall endeavour to voluntarily incorporate internationally recognised standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the parties. These principles may address issues such as labour, the environment, human rights, community relations and anti-corruption.”

Therefore, as evident, the Indian Model BIT only calls for a voluntary endeavour to respect human rights, and does not stipulate a binding obligation to that regard. To put the same in context, a comparison can be drawn to the more efficient investor obligations that can be found in the Southern African Development Community (SADC) Model BIT, 2012. The SADC Model BIT stipulates, in concrete terms, that the investors and/or investments are mandatorily required to respect the international environmental, labour and human rights obligations binding on the host State.

As it is becoming increasingly evident that transnational businesses can have a major impact on environment and human rights in the host State, States should negotiate treaties that are more balanced between the States and investors, and provide for investor compliances as jurisdictional prerequisites in investment treaties.

Impact of Covid-19 Pandemic

The pandemic, as we know, has caused major economic disruptions and destabilised the global economy. At its peak, extended travel limitations and broken supply chains had led to significant drop in the prospects of several business entities and corporations. Compromised supply chains and economic losses, as a chain reaction, caused several corporations resort to harsh measures to keep themselves afloat, such as discriminate laying off of workers, altering of working cultures and cutting on due diligence cost.[7]

The UN Working Group on Business and Human Rights, in its statement on the ramifications of the pandemic, had acknowledged that the actions of corporations are, directly or indirectly, affecting the rights of their employees, contract workers and individuals involved in their supply chains.[8] The pandemic brought to light the issues pertaining to the right to health, equality, livelihood, safety and favourable conditions to work of the workers.[9] While States undertook several relief measures,[10] and urged corporations to continue to provide safety and recourses on a non-discriminatory basis, the lack of adequate protection against violations of labour and human rights was manifest.

As States embark on economic recovery, it is imperative that they strike an equilibrium between safeguarding health, reducing economic and social disruption, and respecting human rights. As a response to the pandemic, efforts must be taken to impose stricter guidelines on human rights impact assessments, grievance mechanisms, and other due diligence obligations of corporations, such that the three pillars of the UNGP can be effectively reinforced. Particularly, the temptations to resort to lenient labour regulations and investor compliances, to aid, economic recovery and incentives investments must be resisted. For instance, the ordinances passed to suspend certain labour laws for a period of next three years, in several Indian States, was heavily criticised by human rights activists as being a clear departure from India’s commitment to the UNGP.[11] Developing countries are particularly susceptible to such a trend, and if not checked, it might limit progress on business and human rights regulations.

Conclusion

It is the duty of businesses to conduct human rights due diligence within their supply chains and operations. To ensure that the business effectively perform their duties, the States must provide adequate regulations and check mechanisms. Therefore, both States and corporations must cooperate and ensure a healthy corporate environment in the country, which is respectful of the internationally accepted human rights and UNGPs. In conclusion, it can be said that the increasing discourse on business and human rights is a positive sign, only time will tell if the same is effectively put in practice.


Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. Abhishar Vidyarthi, Student Researcher and can be contacted at avividyarthi@gmail.com.

[1]United Nations Guiding Principles on Business and Human Rights, 2011, <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>.

[2] National Action Plan, <https://www.mca.gov.in/Ministry/pdf/NationalPlanBusinessHumanRight
_13022019.pdf
>.

[3]Employment in Informal Sector and Conditions of Informal Employment, 2013, <https:// labour.gov.in/ sites/default/files/Report%20vol%204%20final.pdf>.

[4]National Guidelines on Responsible Business Conduct, 2019, <https://www.mca.gov.in/ Ministry/pdf/NationalGuildeline_15032019.pdf>.

[5]Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, 2020, <https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/OEIGWG_Chair-Rapporteur_second_revised_draft_LBI_on_TNCs_and_OBEs_with_respect_to_Human_Rights.pdf>.

[6] Hague Rules on Business and Human Rights Arbitration, 2019, <https://www.cilc.nl/project/the-hague-rules-on-business-and-human-rights-arbitration/>.

[7] Howard Levitt, Some employers may be using pandemic as excuse to fire employees protected by human rights codes, Financial Post (21-4-2020), <https://financialpost.com/executive/careers/some-employers-may-be-using-pandemic-as-excuse-to-fire-employees-protected-by-human-rights-codes>.

[8] Statement by the UN Working Group on Business and Human Rights, <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25837&LangID=E>.

[9]      Respecting Human Rights in the time of the Covid-19 Pandemic, 16-4-2020, <https://www.ihrb.org/focus-areas/covid-19/report-respecting-human-rights-in-the-time-of-covid19>.

[10] Measures, such as stimulus packages, tax reliefs, wage subsidies, etc., were undertaken in order to safeguard businesses, and thereby, restrict the hardships from trickling down to the workers. One of the best examples of the same can be seen in the form of Canada Emergency Wage Subsidy, wherein, to protect the Canadian workforce, the eligible businesses were provided up to 75 per cent of employer salaries; Jamie Golombek, Wage subsidy programs for employers: Canada’s Covid-19 response plan, <https://www.cibc.com/content/dam/personal_banking/advice_centre/tax-savings/covid-wage-subsidy-en.pdf/>. Similarly, corporations were urged to continue to provide access to accurate informations, paid sick/preventive leaves, payments to hourly waged staff, emergency supplies on a non-discriminative basis, etc.

[11]Ashima Obhan and Bambi Bhalla, Suspension of Labour Laws Amidst Covid-19, <https://www.mondaq.com/india/employment-and-workforce-wellbeing/935398/suspension-of-labour-laws-amidst-covid-19>.

Hot Off The PressNews

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that after 5 years in jail in Agra district of Uttar Pradesh for the crime they didn’t commit, a couple can’t find their two kids, who had been reportedly sent to some orphanage in their absence.

Considering it as a serious issue of human rights violation, the Commission has issued notices to the Chief Secretary and DGP, Uttar Pradesh calling for a detailed report in the matter within four weeks.

The reports should include the enquiry/action taken, if any, against the police officers and the public servants who were responsible to ensure social security to the innocent children of the victim couple.

Issuing the notices, the Commission has observed that the gross negligence committed by a public servant has devastated the entire family. The State authorities including the police and the social welfare authorities of the district Agra have acted in a reckless manner, showing no respect towards the basic human rights.

According to the media reports, carried on the 23-01-2021, the couple was arrested by the police in the year 2015, when a boy aged five years was found murdered and they were named in the case. The Additional District and Sessions Court, while releasing the couple had mentioned in the order that it is unfortunate that innocent people have spent five years behind the bars and the main accused is still free. The Court has reportedly directed the Senior Superintendent of Police to take action against the investigating officer for his negligence. The Court has also recommended re-investigation of the case on the basis of the available evidences, to arrest the actual perpetrator.

It is specifically mentioned in the news report that the then Sub-Inspector, who was working with the investigating officer, had admitted in the Court that he did not even try to find out as to against whom the FIR was registered.

As mentioned in the news report, the victim Narendra Singh, who was earlier working as a teacher, has been asking as to what was the fault of their children, son aged 5 years and daughter aged 3 years. The wife of Narendra Singh, who was also lodged in the jail with her husband, has reportedly written a letter to the Senior Superintendent of Police, Agra to search for their missing children. The couple never met their children after their arrest, and their bail application was rejected by the District Judge in the year 2015. It is also mentioned in the news report that the victim couple could not go further to approach the High Court due to their inability to afford the expenses.


National Human Rights Commission

[Press Release dt. 28-01-2021]

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of media reports that ten infants were killed in a fire that swept through the Sick Newborn Care Unit (SNCU) at Bhandara District General Hospital in Maharashtra on 09.01.2021. The fire reportedly broke out at around 1.30 am and the hospital administration could rescue only seven out of the seventeen children kept in the ward. A relief of Rs 5 lakhs has been announced by the state government from the Chief Minister’s Fund to each bereaved family and a state wide fire audit has also been announced. A case of accident has been reportedly registered and further investigation is being conducted.

The Commission has issued notices to the Chief Secretary and DGP, Government of Maharashtra calling for a detailed report in the matter within four weeks.

The Director-General of Police is also expected to inform the Commission about the outcome of the investigation being conducted by the police authorities. The report must contain the fire audit reports of various hospitals in the state as well as what measures have been taken or contemplated to be taken by the state against the erring or negligent officers/officials so that they cannot go with impurity.

Issuing the notices, the Commission has observed that the victim babies were in the custody of a state-run hospital where they lost life. Hence, the state cannot escape its responsibility. This is a serious issue of violation of human rights for which the accountability of the negligent officers/officials is required to be fixed, with retrospective effect. The monetary relief alone is not sufficient to compensate. Further, it is imperative to ensure that the support systems in various hospitals in the state must provide adequate care and attention to the patients for protection of their human rights.

According to the media reports, prima facie, the fire perhaps originated from the Air Conditioner and the victim babies died due to suffocation caused by the smoke. Reportedly, a committee headed by the Health Director will probe the incident and submit its report within three days. Electrical Department officials are reportedly investigating into the exact cause of the fire as reported by quoting the Superintendent of Police of Bhandara district.


National Human Rights Commission

[Press Release dt. 11-01-2021]

Hot Off The PressNews

NHRC has taken suo motu cognizance on alleged rape of a 13-year-old girl in Umaria city of Madhya Pradesh and has directed issuance of notice to the Chief Secretary and the Director-General of Police, Madhya Pradesh calling for a detailed report in the matter.

As mentioned in the news report, the 13-year-old girl was abducted on 04.01.2021 from a market in Umaria city of Madhya Pradesh by a person known to her and later on she was taken to a secluded place and was subjected to rape by nine persons for two days. The girl was again abducted by one of the accused on 11.01.2021 and was taken to a desolate place where five people, including three accused in the previous incident and two unidentified truck drivers allegedly subjected her to rape for two days. The report also revealed that the victim was threatened with dire consequences due to which, she did not report the matter to the police. The mother of the girl has lodged a police complaint on January 14, following which seven of the accused have been arrested and the search of the remaining two is under way.

The gruesome incident puts a question mark towards law and order situation in the region. The perpetrators in this case, have committed the heinous crime twice, without having any fear of law violating human rights of the victim.

The Commission has opined that this is a case of violation of human rights of the victim and it is apparent that the law enforcing agencies who are expected to provide a safe environment to the citizen, have failed in exercising their lawful duty.

The Commission has called for a detailed report in the matter within 4 weeks. The report must include details regarding arrest of the remaining accused persons, counseling given to the victim as well as relief and rehabilitation provided or proposed to be provided to the victim by the State authorities.


Nationa Human Rights Commission

[Press Release dt. 18-01-2021]

Hot Off The PressNews

In a case of a death in judicial custody, the National Human Rights Commission, India has set aside the conclusion of an Additional Chief Metropolitan Magistrate of Ahmedabad that it was natural.

On the basis of the material on record, NHRC has held that the Under Trial Prisoner died due to the negligence and torture by the jail officials of Sabarmati Central Prison, Ahmedabad on 29-05-2017 and that the Judicial Enquiry Report is shady in nature and hence, cannot be relied upon.

Further, expressing serious concern over the order of the concerned judicial officer, the Commission has directed its registry to bring the matter to the notice of the Chief Justice of the Gujarat High Court for consideration of taking necessary action on the presence of such Judicial Officers.

The Commission has noted in its proceedings in the matter under case no Case No.487/6/1/2017-JCD that “it is very surprising & shocking to know that though 22 ante mortem injuries over the body of the deceased were clearly reflected in post mortem report, but still enquiry magistrate i.e. ACMM, Ahmedabad, Gujarat had stated that no injury was found to be present on the deceased. The Chief Justice of Gujarat High Court has to seriously consider the presence of such Judicial Officers in public domain.”

The NHRC has also issued a notice to the Chief Secretary, Govt. of Gujarat, to show cause why not an interim relief of Rs 3 Lakh should not be recommended to be paid to the Next of the Kin, NoK of the deceased Under Trial Prisoner, as his human rights were violated by the delinquent Jail officials, Director General of Police, Gujarat has been asked to submit a detailed report in the matter along with criminal case registered and progress in the matter. The response is expected within four weeks.

The Commission, as per its standing guidelines, had registered the case on the basis of an intimation from Supdt. Central Prison Ahmedabad Gujarat on 31.05.2017 regarding the death of UTP Ashok @ Lalit on 29.05.2017.

On the directions of the Commission, its Investigation Division informed that the victim under trial prisoner was in the custody of Sabarmati Central Prison, Ahmedabad since 27.05.2017. He was arrested in case no. 5261/15 u/s 66(1)(b), 65(a) Prohibition Act by PS Maghaninagar. Within two days on 29/5/2017, he fell ill and was sent to the Civil Hospital, Ahmedabad for treatment where he died on the same day at 16.38 hrs.

The postmortem was done by a panel of four doctors, which revealed 22 ante-mortem injuries from head to toe on the person of the deceased. The cause of death was kept preserved. Later, after viscera & HPE, the FCOD was given as death due to shock and hemorrhage as a result of injuries sustained over the body. However, in the magisterial enquiry the ACMM, Ahmedabad, Gujarat concluded that the health screening report, as well as inquest report, revealed that no injury was present on the person of the deceased. During the magisterial enquiry, the family members did not complain of anything and based on the statements of doctors & jail officials, so he concluded that there was no direct or indirect evidence that the deceased was physically or mentally tortured or ill-treated during custody and without any evidence.

The Commission noted that the Under Trial Prisoner was normal at the time of entry into the jail and died within two days of his entry into the jail. The strong scientific & biological forensic evidence cannot be undermined as far as the cause of death is concerned. This is also a fact that he was in jail for the past two days before his death in the hospital. Hence, there is no point in accepting that his death was natural. This is a clear case of unnatural death in the judicial custody of Sabarmati Central Jail & hence State is vicariously responsible for the same. Further, the Commission held that the statements of the family members of the victim after his death bear no relevance as the victim was in jail and the family members may not have met after the injuries, when he was alive.


National Human Rights Commission

[Press Release dt. 08-01-2021]

Case BriefsInternational Courts

African Court on Human and People’s Rights: While deliberating upon a request for Advisory Opinion filed by the Pan African Lawyers Union (hereinafter PALU) regarding compatibility of ‘Vagrancy Laws’ with the African Charter of Human and People’s Rights and other Human Rights instruments applicable in Africa, the Court unanimously observed that Vagrancy Laws, which contain offences criminalising the status of a person as being without a fixed home, employment or means of subsistence, as having no fixed abode nor means of subsistence, and trade or profession etc; laws that order the forcible removal of any person declared to be a vagrant; and laws that permit the arrest without a warrant of a person suspected of being a vagrant, are incompatible with Articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter. The Court declared that there is a “positive obligation” on the State Parties to review, repeal or amend their vagrancy laws and related laws to comply with the Charter, the Children’s Rights Charter and the Women’s Rights Protocol within reasonable time and that this obligation requires them to take all necessary measures, in the shortest possible time.

It was submitted by the PALU that a number of Member States of the African Union still have laws that criminalise the status of individuals as being poor, homeless or unemployed as opposed to specific culpable acts. PALU submitted before the Court that these laws are overly broad and confer too wide a discretion on law enforcement agencies to decide who to arrest which impacts disproportionately on vulnerable individuals in society.

The PALU put forth the following requests for an opinion from the Court-

  • Whether vagrancy laws and by-laws, (including but not limited to) that contain offences which criminalise the status of a person as being without a fixed home, employment or means of subsistence etc., violate Articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights and Articles 2, 4(1) and 17 of the African Charter on the Rights and Welfare of the Child.
  • Whether vagrancy laws and by-laws that allow for the arrest of someone without warrant simply because the person has no ‘means of subsistence and cannot give a satisfactory account’ of him or herself, violate [Articles 2, 3, 5, 6, 7 of the African Charter on Human and Peoples’ Rights, Articles 3, 4(1), 17 of the African Charter on the Rights and Welfare of the Child and Article 24 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
  • Whether State Parties to the African Charter on Human and Peoples’ Rights have positive obligations to repeal or amend their vagrancy laws and/or by-laws to conform with the rights protected by the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and in the affirmative, determine what these obligations are.

The Court also took into account the observations made by the Member States of the African Union. The Member States informed the Court about several reforms that are in the queue to streamline the process of repealing or amending laws that are in non-conformity with the Charters, like- Ouagadougou Declaration and Plan of Action on Accelerating Prisons’ and Penal Reforms in Africa, which calls for the decriminalization of offences such as being a rogue and vagabond, loitering, prostitution and failure to pay debts and disobedience to parents.

Upon scrutinizing the issues and questions raised, the Court held that Article 1 of the African Charter, Article 1 of the Children’s Rights Charter and Article 1 of the Women’s Rights Protocol obligates all State Parties to, inter alia, either amend or repeal their vagrancy laws and by-laws to bring them in conformity with these instruments. This would be in line with the obligation to take all necessary measures including the adoption of legislative or other measures in order to give full effect to the Charter, the Children’s Rights Charter and the Women’s Rights Protocol. As to the nature of the obligation, the Court held that this obligation requires all State Parties to amend or repeal all their vagrancy laws, related by-laws and other laws and regulations so as to bring them in conformity with the provisions of the Charter, the Children’s Rights Charter and the Women’s Rights Protocol. Some of the important findings of the Court regarding the issue are as follows-

  • Vagrancy laws and by-laws containing offences in which a child has been declared a vagrant or rogue and vagabond and summarily orders such child’s forcible relocation to another area, are incompatible with Articles 3, 4(1) and 17 of the Children’s Rights Charter.
  • Vagrancy laws which allow for the arrest of any woman without a warrant simply because the woman has no “means of subsistence and cannot give a satisfactory account of herself” are incompatible with Article 24 of the Women’s Protocol.

[Request for Advisory Opinion on compatibility of ‘Vagrancy Laws’ with the African Charter of Human and People’s Rights and other Human Rights instruments applicable in Africa, No. 001/2018, decided on 04-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that at least 23 people were killed and over 30 injured after the roof of a shelter at a crematorium collapsed on them in Murad Nagar Municipality, Ghaziabad, Uttar Pradesh on Sunday, 3-01-2021.

The Commission has issued notices to the Chief Secretary and the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within four weeks. The report must contain review of all the crematoriums, burial grounds and other such buildings, which are used by the general public for community activities in the State and maintained by the local administrative authorities. The authorities concerned must ensure proper maintenance of such places to avoid any untoward incidents in future posing danger to human lives.

The Commission has also noted, as reported in the media, that an FIR has been registered and some financial assistance has also been announced by the State government. It has asked the State Government, through its senior officers, about the present status of the investigation of the case as well as the health condition of the injured.

Issuing the notices the Commission has also observed that apparently, the contractor and department concerned have acted in a negligent manner leading to violation of the right to life of the victims. The incident is required to be investigated thoroughly so that the guilty could be adequately punished as per the provisions of the law.

According to the media reports, the rain shelter had been constructed recently by a private contractor engaged by the Muradnagar Municipality. The incident occurred when about 60 people were attending a cremation. Some labourers, who were working at a Rapid Metro site nearby and the local residents came forward to rescue the victims. The police personnel and members of NDRF team also reached the spot and rescued the victims. Twenty-three deaths were confirmed, while many injured were admitted in the hospitals.

As per news report, an FIR u/s 304/337/338/409 and 427 IPC was registered and three persons including the contractor and two civic officials were arrested. The State Government has, reportedly, announced financial assistance of Rs.2 lakhs each to the families of the deceased. Reportedly, some local residents alleged that poor quality material was used in the construction of the structure due to which it was collapsed.


NHRC

[Press Release dt. 05-01-2021]

Hot Off The PressNews

Justice H.L. Dattu completed his tenure as the seventh Chairperson of National Human Rights Commission, NHRC, India on 2-12-2020. He had joined the Commission on the 29-02-2016 after retiring as the Chief Justice of India on the 2-12-2015.

During his tenure, the Commission intervened in a number of cases of human rights violations, which brought succour to the victims of human rights violations. The Commission also brought down the number of cases, which were taking long to dispose of. Total 3,91,937 complaints of human rights violations were registered during his tenure; 4,20,913 cases, including some old and new cases, were disposed of. Rs 84,31,94,593/- were paid in 268 cases as monetary relief by the public authorities as per the recommendations of the Commission.

The Commission, in his leadership, retained its “A” Status of Accreditation with the Global Alliance of National Human Rights Institutions, GANHRI. The Asia Pacific Forum, APF in acknowledgement of the wide range of experience and expertise of the NHRC, India, has signed an AMU to share it with several NHRCs and like entities in the world. He also represented the NHRC as a member in the GANHRI Bureau and the Governance Committee of the APF.

The dialogue with the State Human Rights Commissions and other National Commissions gained strength for mutual cooperation on the matters of human rights. The State Governments responded to the NHRC’s requests by designating human rights courts at district levels.

The Commission expanded its outreach by linking its online complaints filing system with over 3 lakh Common Service Centres spread across the country. Justice Dattu also launched HRCNet portal to facilitate quick online communication between the NHRC and SHRCs to cut short the possibility of duplication of complaints and promote timely processing of complaints received online.

During his tenure, the Commission also launched its Twitter Handle in 2020, which is a short span, saw a number of followers. He also launched the NHRC’s much popular annual short film competition on human rights in 2015. He also promoted building awareness about human rights through street theater and launched the initiative as a mark of the Silver Jubilee celebrations of the NHRC in 2018. The first ever documentary on the journey of the Commission was also made during his tenure.

Justice Dattu paid a lot of attention to the media reports on the issues of human rights violations and took prompt action by taking suo-motu cognizance of such incidents. The number of open hearings and camp sittings of the Commission to hear on spot the complaints of rights violations of Scheduled Caste and Scheduled Tribe people and pending cases in various states were increased.

During Covid-19 lock down, in addition to taking suo-motu cognizance of media reports on the plight of people including the migrant labourers, the NHRC also intervened in the suo motu writ of the Supreme Court in the matter of migrant labourers. He constituted and expert group to come out with the NHRC Covid-19 Advisories. He also strengthened the mechanism of the Commission to hear the human rights violations of the Human Rights Defenders. During his tenure, the Core Group mechanism of the Commission gained further impetus along with the appointments of Special Monitors and Special Rapporteurs to act as the eyes and ears of the Commission.


National Human Rights Commission

[Press Release dt. 02-12-2020]

Hot Off The PressNews

The National Human Rights Commission issued notice to the Chief Secretary, Director General of Police and the Director-General of Prisons, Madhya Pradesh after taking suo motu cognizance about the allegations made by women on five cops for gang rape in lockup.

It is mentioned in the news report that a 20-year-old woman has levelled allegations that she was kept in lock-up for 10 days in the month of May this year and was subjected to rape by 5 police personnel including the Police Station Incharge and SDPO of Mangawan area of Rewa district of Madhya Pradesh. The woman, as mentioned in the news report, was an accused in a case of murder and presently she is lodged in judicial custody. The incident occurred in the month of May and it came to the knowledge of the District Judge after a period of five months. Even the prison warden did not have the courage to report the matter to the higher authorities.

It is further added that as alleged by the victim woman, she was subjected to rape between 09-05-2020 to 21-05-2020 while the police contradict, to be arrested on 21-05-2020. The female constable had protested at that time but she was rebuked by her seniors.

The Commission considered the vulnerable position of the victim. She was in police custody when she was allegedly subjected to utmost cruelty and sexual assault by the 5 police personnel. Even a protest made by a female police official went in vain. Very serious allegations have been levelled by the victim woman. Public servants from the law enforcement agencies, who are supposed to safeguard the citizens especially the women and the people from the vulnerable classes of the society have allegedly committed the heinous crime against a woman in their custody.

The Commission directs that the matter may be investigated by a senior police officer, not below the rank of the Deputy Inspector General of Police.


National Human Rights Commission

[Press Release dt. 19-10-2020]

COVID 19Hot Off The PressNews

The National Human Rights Commission (NHRC), viewing the unprecedented situation across the country and being deeply concerned about the rights of the vulnerable and marginalised sections of the society affected by the COVID-19 pandemic and the resultant lockdowns, constituted a ‘Committee of Experts on Impact of Covid-19 Pandemic on Human Rights and Future Response’.

The Committee, included representatives from the civil society organizations, independent domain experts, and the representatives from the concerned ministries/ departments, and was tasked to assess the impact of the pandemic on realization of the rights of the people, especially the marginalised / vulnerable sections of the population which have been disproportionately impacted.

After due consideration of the impact assessment and recommendations made by the Committee of Experts, the Commission has now issued the ‘Human Rights Advisory for Protection of the Rights of LGBTQI+ community in the context of COVID-19 pandemic’, available on https://nhrc.nic.in/sites/default/files/Advisory_for_the_Protection_of_the_Rights_of_LGBTQI%2B_Community_0.pdf

The Commission has also requested to concerned Union Ministry and all States/UTs for implementation of the recommendations contained in the advisory and compliance the action taken report to the Commission.


NHRC 

Press Release dt. 19-10-2020

COVID 19Hot Off The PressNews

National Human Rights Commission (NHRC), India viewing the unprecedented situation across the country and being deeply concerned about the rights of the vulnerable and marginalised sections of the society affected by the COVID-19 pandemic and the resultant lockdowns, constituted a ‘Committee of Experts on Impact of Covid-19 Pandemic on Human Rights and Future Response’.

The Committee included representatives from the civil society organizations, independent domain experts, and the representatives from the concerned Ministries/ Departments, and was tasked to assess the impact of the pandemic on realization of the rights of the people, especially the marginalised / vulnerable sections of the population which have been disproportionately impacted.

After due consideration of the impact assessment and recommendations made by the Committee of Experts, the Commission issued the advisories on following human rights issues:

1. Human Rights Advisory on Impact of COVID-19 Pandemic: Human Rights of the Prisoners & Police Personnel and Future Response.

2. Human Rights Advisory on Human Rights of Informal Workers during COVID-19.

3. Human Rights Advisory on Impact of COVID-19 Pandemic: Businesses & Human Rights and Future Response.

The Commission has also requested to concerned Ministries/States/UTs to implement the recommendations made in the advisories and compliance with the action taken report to the Commission.


National Human Rights Commission

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and P. Velmurugan, JJ., while addressing the present petition observed that, Court fails to ascertain how women consent to get married to life convicts.

The present petition was filed by the wife of the life convict who got married to him when he got married when he came out on parole. The petitioner sought leave for 30 days for her husband to make arrangements for the livelihood of her family members.

S.G. Vedha Priyadharshini, Counsel appeared for the Petitioner and R. Prathap Kumar, Additional Public Prosecutor appearing for the Respondents.

Probation Officer in its report recommended 30 days’ leave to the convict which was sought by the petitioner.

Taking into consideration the above-stated report along with earlier orders of the Court, the bench is inclined to grant 30 days’ leave to the convict.

Accordingly, the life convict was directed to be released on 01-10-202 without a police escort and the Convict was directed to surrender before the prison authorities on 30-10-2020.

However, the petition was kept pending as the Court had impleaded National Commission for Women and the State Commission for Women to device a mechanism by which it is ascertained as to whether women are getting married to life convicts on their own accord or by force or coercion.

Hence, the Court raised the query:

“Whether the women marrying the life convicts are examined by the State Commission for Women or National Commission for Women to ascertain as to whether the willingness of the marriage or sign for the acceptance of the marriage has been obtained from the women?”

Bench noted that in many cases, women get married to the life convicts and this Court fails to find out as to how the consent of the women has been obtained. The rights of women have to be safeguarded. Usually, no girl will come forward to marry a life convict.

Nowadays, it is seen that it is difficult for a normal man to get married as modern girls are putting so many conditions for marriage. When that is so, it is unbelievable or surprising to see that a woman on her own volition giving consent to marry a convicted person for a life without husband’s companionship, love and care, which will amount to a violation of human rights.

National Commission for Women filed the response and the State Commission for Women’s response is still awaited. [Saibunisha v. State, 2020 SCC OnLine Mad 2733, decided on 30-09-2020]

Hot Off The PressNews

The Commission took suo-motu cognizance of alleged suicide of 40 years old rape accused in police custody and directs issuance of notice to the Commissioner of Police, Delhi calling for a detailed report in the matter within two weeks. The Commission has noticed that this case of custodial death has not been reported by the authorities within 24 hours of its occurrence, the authorities are expected to explain the reasons.

All the reports, including the inquest and the post-mortem examination reports accompanying video CDs and medical report, of the deceased before being lodged in the lockup to be forwarded to the Commission. The Commission would also sought the details of the persons, who were put in the lockup in both the police stations for any reason, during the period the victim was lodged. It is expected that the magisterial enquiry in the matter will be completed without any further delay.

According to media report that the deceased was out on parole after being convicted in a case of robbery & murder and another of rape, a 40-year-old man allegedly raped a 14-year-old girl in an outer Delhi locality on 19th September,2020 and died allegedly by suicide hours later after being arrested for rape of minor.

It is also mentioned in the news report that the family members of the deceased saw policemen beating him in the police station. The Deputy Commissioner of Police, outer North District, Delhi, has stated history about deceased, being accused and convicted of robbery & murder and sexually assaulted a 10 years old boy. The deceased was released on parole on 02.02.2020 and later, his parole period was extended due to pandemic.

Also, the news report states that the single mother of rape victim was not at home when the incident took place. The deceased was arrested on the allegations of rape under POCSO Act and was kept in police custody. The nephew of the deceased has reportedly stated that when he reached the Swarup Nagar police station, he saw a group of policemen beating his uncle.

The next day, the family was informed about the incident of man hanging himself at Samaypur Badli police station. The Deputy Commissioner of Police has reportedly stated that the CCTV camera footage has been preserved and the guard on duty has been placed on suspension.

The police personnel have apparently failed to do their lawful duty at two stages, first when a person with a history of committing crime was out on parole; it was expected from the local police station to keep an eye on his activities through Beat Constable and other sources. Secondly, when such a person was kept in the police lock up, it was normal to be more vigilant to keep check on him during his stay inside the lock up.

The deceased was in the lawful custody of the police. “Right to life” of the deceased has been violated and the state cannot escape its liability. This is a case of violation of human rights.

Apart from this, considering the trauma suffered by the poor victim who is a minor girl, the Chief Secretary, Government of NCT of Delhi is directed to inform about her health condition as well as the relief, rehabilitation and counseling provided to her by the administration.


NHRC

[Press Release dt. 21-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Allegations levelled by Amnesty International

National Human Rights Commission, India takes suo motu cognizance of the matter and directs issuance of the notice to the Home Secretary, Ministry of Home Affairs, Govt. of India, New Delhi, calling for their comments on the allegations levelled by the Amnesty International as mentioned in the news report.

According to media reports that the complete freezing of its India bank accounts the Amnesty International Organization in India has reportedly halted all the work in which it has been engaged in the country.

In a statement, the organization has stated that it has been compelled to let go of staff in India and pause all its ongoing campaign and research work.

It is alleged that this is the latest in the incessant witch-hunt of human rights organizations by the Govt. of India over unfounded and motivated allegations.

The news report gives more details stating that on 22-10-19, Amnesty International testified at the US Congressional hearing on human rights in South Asia, with a specific focus on Jammu & Kashmir after the Indian Parliament on 5th August pushed through constitutional changes that divested Jammu & Kashmir of its special status and reorganized it into two Union Territories. On August, 28 the rights groups released an investigative brief on the complicity of the Delhi Police in the month of February, 2020. Amnesty International had claimed that 53 people had died in the riot while Delhi Police rebutted the claim saying that the report was lopsided, biased and malicious. Amnesty International has reportedly accused the government of suppressing the speech and demanded the release of activists Rona Wilson, Shoma Sen, Sudha Bhardwaj, Surendra Gadling and others who were arrested in connection with the January, 2018 caste clashes in Bhima-Koregaon near Pune in Maharashtra. It is also mentioned in the news report that this is the fifth time when Amnesty International is closing down its office in India.

The Union Home Ministry has reportedly mentioned in their statement that the stand taken by the Amnesty International is unfortunate, exaggerated and far from the truth. The organization has been accused of Foreign Contribution Regulation Act (FCRA) violations, and “interference in domestic police debates” despite being funded by foreign donations.

The rights group has reportedly denied the financial violations charges and has stated that they have been in full compliance with all laws.

INVESTIGATION

It is further mentioned in the news report that the Enforcement Directorate (ED) has been investigating the rights group since October, 2018 when they raided its office in Bengaluru and the accounts of the organization were frozen. In the year 2019, the Income Tax Department wrote to the office bearers of the organization seeking their clarifications on the subject. It is also mentioned that in November, 2019, CBI has filed a case against Amnesty International alleging that it has received Rs. 36 crore in funding without the mandatory permission required under the FCRA. The Investigative Agencies have also reportedly alleged that the fundraising model of Amnesty International India was in violation of FCRA that amounts to money laundering. The organization has also been blamed for its activities which are in clear contravention of laid down Indian laws. The organization has reportedly stated that their harassment by the government is a result of their unequivocal calls for transparency in the government, more recently for accountability of the Delhi Police and the Government of India regarding the grave human rights violations in the Delhi riots and in Jammu & Kashmir. The charges of the organization have however been denied by the Bharatiya Janata Party (BJP) alleging that the organization was raising funds from abroad in contravention of the Indian laws. They have also stated that there has been shifting money transfer to the companies and there is a suspected flow of money into the trust of Amnesty International.

The Commission has carefully examined the contents of the news report.

Amnesty International is a reputed non-governmental organization raising its voice globally whenever there is an incident of violation of the human rights of the people. The allegations levelled by the organization are serious in nature and have been strongly answered by the government agency. Any kind of difference of opinion may be a subject of investigation and decision by the competent court.

The Commission finds it necessary to go through the matter, analyse the facts and reach a conclusion in the interest of human rights friendly environment in the country.

The response is expected within six weeks.


NHRC

[Press Release dt. 30-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission, India takes suo motu cognizance of the matter over reported gang rape and brutality of 19-year-old women belonging to Scheduled Caste in Hathras district, UP.

According to media reports that a 19 year old woman belonging to Scheduled Caste went missing on 14.09.2020. She was found in a badly injured condition on 22.09.2020 and she was subjected to gang rape and brutality in Hathras District of Uttar Pradesh two weeks ago. She was shifted from the Aligarh Muslim University’s Jawaharlal Lal Nehru Medical College and Hospital on 28.09.2020 when her condition deteriorated and there were no signs of improvement in her health condition. The victim has reportedly died at Safdarjung Hospital in New Delhi on 29.09.2020.

The District Magistrate, Hathras, Uttar Pradesh has reportedly stated that the accused have also been booked under the SC/ST(POA) Act and the family of the victim has been given compensation of Rs 10 Lakhs. He has also mentioned that a Fast Track Court will be set up to hear the case to punish the culprits at the earliest.

The Supdt. of Police, Hathras, U.P. has reportedly stated that the woman had suffered spinal injuries and he has denied the reports that the tongue of the victim was slit.

He has also mentioned in his statement the In-charge of the Hathras Kotwali PS has been removed for the alleged inaction in the case and the four accused have been arrested who will be booked for the murder. Further, he added that the first one Sandeep Singh was arrested the day when the woman was subjected to rape and later three more accused Lovkush Sikarwar, Ramu and Ravi were arrested when the woman named them in their statement before the Magistrate, on 22-09-2020.

The perpetrators reportedly tried to strangulate the victim when she tried to resist their attempts to rape her.

Another media report reveals that the family of the victim woman has alleged that the body of the deceased was forcibly taken away for cremation by the police personnel.

The body of the deceased had reportedly reached her village around mid-night and the cremation was done by 3.00 A.M., on 30.09.2020. It is mentioned in the news report that the villagers wanted to take the body of the woman to her house but the administration pressurized for cremation at the earliest.

The police authorities have however denied the allegation. It is reportedly stated by the SP, Hathras, that the cremation was done as usual, after the body reached Boolgarhi village in Hathras. He has also stated that the situation is calm and heavy police force has been deployed in the village.

The Commission has gone through the contents of the media reports which are very painful. A young woman belonging to SC community has been subjected to sexual harassment and brutality. It is apparent that the police was not able to take timely action to trace and save the victim girl due to which the young woman could not be saved from being subjected to grave cruelty. The way the perpetrators have acted shows that they had no fear of law in their mind. The family has suffered an irrevocable loss. A young and a precious human life has been lost.

Not only this, but there are also allegations made by the family that the police forcibly took away the body of the deceased for cremation have been revealed by the media. The incident has raised many questions about the law and order situation in the State. Many such incidents have occurred in the State of Uttar Pradesh where the members of the Scheduled Community have been subjected to discrimination and harassment by the people belonging to the upper caste. There have been a number of instances of leveling allegations of inaction against the police authorities and the administration. This is a serious issue of violation of human rights.

The Commission has further directed to the State Govt. to provide adequate protection to the family of the deceased keeping in view the gravity of the matter and aspect of the witness protection as there is an apparent rift between the two communities and there may be a danger to the family of the deceased.

The DGP, U.P. is expected to look personally into the matter to ensure a speedy trial so that the culprits could be punished by the competent court without any further delay. In the current scenario, it is necessary that the family of the deceased as well as other members of the SC Community residing in the village are provided proper protection by the police.

Both the authorities are expected to submit their report, within the stipulated time.

The Commission is expected the responses from the State Authorities within four weeks.


NHRC

Press Release dt. 30-09-2020

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Mithal and Rajeev Singh, JJ., found itself dealing with an unusual set of facts whereby a petition has been dismissed on the ground that the petitioner has not approached the Court with clean hands.

The set of circumstances in the present matter which led to the above-stated dismissal is that while adjudicating the present petition, an objection was raised by the counsel on behalf of the respondent, J.N. Mathur that the petition is not in the nature of public interest litigation as it is already in the public domain, even before it was presented or officially filed in the Court. The petition is available on a legal news website www.livelaw.in.

The petitioner, Krishan Kanhaiya Pal, who happens to be a practising lawyer, submits that he has filed the petition by abiding by the due procedure and he’s oblivious as to how the petition entered the public domain.

Counsel for the respondent retorted by stating that a breach in the chain of service of notice can be ruled out as the notice if this petition was sent to the Assistant Solicitor General, S.B. Pandey via e-mail. There is no possibility of the petition escaping from his office or system as he is currently recuperating from Covid-19 in the hospital and did not access his e-mail account at all.

Upon careful perusal of the facts, circumstance and arguments advanced, the Court observed that it is evident that the petitioner has invoked writ jurisdiction in order to gain unwarranted publicity in the garb of public interest. The petition was publicised on social media in the pre-litigation stage with a concealed motive of hogging undue limelight.

The legal position in similar cases has been well settled through a catena of judicial pronouncements the crux of which is that the basic purpose behind public interest litigation is to advance human rights and equality or raise issues of broad public concern. It helps the cause of the minority and disadvantaged class of society. The petitioner does not belong to the deprived class and is not seeking any basic human rights through this petition.

The Court has also passed some enlightening remarks which are reproduced below-

“It is pertinent to note that it is becoming a practice to gain publicity by filing petitions on sensitive issues so that it becomes a topic of discussion in public knowing fully well the ultimate result. Thus, publishing of any material proposed to be brought before the courts before it is actually filed is not a healthy practice rather an abuse of the process. It unnecessarily at times may prejudice the minds of the Judges. The media is supposed to play a responsible role in undertaking any such pre litigation publication and ought to avoid it.”

The petitioner has not approached the Court with clean intentions in public interest rather for the oblique purpose of seeking cheap popularity and publicity.

Thus, basis the reasons stated above, the Court dismissed the petition finding no reason to entertain the petition for the purposes of publicity alone.[Krishan Kanhaiya Pal v. Union of India, PIL Civil No. 15130 of 2020, decided on 18-09-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Hot Off The PressNews

The stand taken and the statements made by Amnesty International are unfortunate, exaggerated and far from the truth.

The facts of the matter are as follows:

Amnesty International had received permission under the Foreign Contribution (Regulation) Act (FCRA) only once and that too twenty years ago (19.12.2000). Since then Amnesty International, despite its repeated applications, has been denied FCRA approval by successive governments since as per law it is not eligible to get such an approval.

However, in order to circumvent the FCRA regulations, Amnesty UK remitted large amounts of money to four entities registered in India, by classifying it as Foreign Direct Investment (FDI). A significant amount of foreign money was also remitted to Amnesty (India) without MHA’s approval under FCRA. This mala fide rerouting of money was in contravention of extant legal provisions.

Owing to these illegal practices of Amnesty, the previous government had also rejected the repeated applications of Amnesty to receive funds from overseas. This had led Amnesty to suspend its India operations once during that period as well. This bipartisan and purely legal approach towards Amnesty, under different governments, makes it clear that the entire fault lies in the dubious processes adopted by Amnesty to secure funds for its operations.

All the glossy statements about humanitarian work and speaking truth to power are nothing but a ploy to divert attention from their activities which were in clear contravention of laid down Indian laws. Such statements are also an attempt to extraneously influence the course of investigations by multiple agencies into the irregularities and illegalities carried out over the last few years.

Amnesty is free to continue humanitarian work in India, as is being done by many other organizations. However, India, by settled law, does not allow interference in domestic political debates by entities funded by foreign donations. This law applies equally to all and it shall apply to Amnesty International as well.

India has a rich and pluralistic democratic culture with a free press, independent judiciary and tradition of vibrant domestic debate. The people of India have placed unprecedented trust in the current government. Amnesty’s failure to comply with local regulations does not entitle them to make comments on the democratic and plural character of India.


Ministry of Home Affairs

[Press Release dt. 29-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The Commission takes suo-motu cognizance of the matter and directs the issuance of notice to the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within 4 weeks including the status of the investigation of the cases registered in connection with both the cases of murder.

The Commission also directs to issue a notice to the Chief Secretary to the Government of Uttar Pradesh calling for a report on whether any relief has been granted to the NOK of the deceased as the state has failed to secure the right to a fair trial of the victim. He is also expected to inform the status of any disciplinary action initiated against the delinquent officers/officials.

According to the police, the deceased man was from Gorakhpur and had come to the village, looking for a teacher named, Sudhir Kumar Singh. As soon as he saw Singh, he took out his father’s gun and killed the teacher, according to the police. After shooting the teacher, the man tried to escape but on spotting a crowd outside the house, he climbed the terrace, waved the gun and fired to keep the villagers at bay. A police team followed him to the terrace but the man escaped and was caught by a crowd, which set upon him. The videos relating to the incident emerged later, showed the man in police custody before the mob grabbed and attacked him.

According to the media reports, several policemen were present on the spot when the incident occurred. Some of the policemen were seen trying to control the crowd but the blows did not stop even when the man lay motionless. The police station in-charge of the area has been suspended for negligence. The victim’s head appeared to have been bashed in as the ground was splattered with blood.

The Commission has perused the contents that cruel high handedness by the villagers, taking law in their hands that too in the presence of police force, cannot be denied. A well-equipped police team was present on the spot when the victim was brutally attacked with sticks and stones.

The police personnel present at the time of the fateful incident and their in-charge definitely failed to do their lawful duty. Human life has been lost due to the apparent negligence of the public authority. This is a serious violation of human rights.


NHRC

Press Release dt. 08-09-2020

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

“Justice will not be served until those who are unaffected are as outraged as those who are.”

 – Benjamin Franklin

Objective

It is written with an objective to reflect on the laws currently in force in India, to tackle the global menace of human trafficking and contemplate the journey ahead to reach towards elimination of this socio-politico-economic evil through legislative competence, executive efficiency and judicial courage.

Introduction

According to the definition of United Nations: “trafficking is any activity leading to recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or a position of vulnerability”. Human trafficking is the trade of humans for the purpose of forced labour, sexual slavery, or commercial sexual exploitation for the trafficker or others. This may encompass providing a spouse in the context of forced marriage or the extraction of organs or tissues, including for surrogacy and ovary removal. It can happen in any community and victims can be of any age, race, gender or nationality. Traffickers might use violence, manipulation, or false promises of well-paying jobs or romantic relationships to lure victims into trafficking situations. People can be trafficked and exploited in many forms, including being forced into sexual exploitation, labour, begging, crime (such as growing cannabis or dealing drugs), domestic servitude, marriage or organ removal. Human trafficking is an egregious human rights violation that occurs throughout the world. Due to its complex cross-border nature, human trafficking requires a coordinated, multi-disciplinary national and international response. Human trafficking is the third largest organised crime after drugs and the arms trade across the globe.

Legal Framework against Human Trafficking in India

At present the legal regime of trafficking in humans is explicitly and implicitly governed by the following statutes towards curbing the menace. The table containing relevant provisions is as follows:

Immoral Traffic (Prevention) Act, 1956

Section 3 – It provides for punishment to a person for keeping a brothel or allowing premises to be used as a brothel or who is in charge of any such premises either by himself or through a tenant, occupier, etc.


Section 4 – It provides for punishment to any person over 18 years of age, living on the earnings of prostitution of another person.


Section  5 – It provides for punishment to any person who is involved in procuring, inducing or taking another person for the sake of prostitution.


Section 6 – It provides for punishment to a person who detains another person with or without his consent in any brothel or any premises for prostitution with an intent that such detained person may have sexual intercourse with any person who is not the spouse of such detained person.


Section 7 – Any person who carries on prostitution and the person with whom such prostitution is carried on in any premises which is within close proximity to a public place, including a hospital, nursing home, place of religious worship, hostel, educational institution, or in an area notified under the provisions of the Act, can be punished with imprisonment for a term of three months.


Section 8 – Seducing or soliciting for the purpose of prostitution is also an offence and punishable with imprisonment up to six months or a fine up to Rs 500, in the case of a first conviction. In case of a subsequent conviction, the prison sentence can be extended up to one year including a fine of Rs 500. However, if the person soliciting is a man, the statute provides that he shall be punishable with not less than seven days imprisonment which may be extended to three months.


Section 18 – A Magistrate can order the immediate closure of a place that is being used as a brothel or as a place for prostitution and is within 200 meters of any “public place” as referred to in Section 7 above, and direct the eviction from the premises from where any person is ostensibly carrying out prostitution on receipt of information from the police or otherwise. The occupier is given only seven days notice for eviction from such premises.


Section 20 – It empowers a Magistrate, on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, to issue notice to such person requiring him to appear before the Magistrate and show cause why he should not be removed from the place and be prohibited from re-entering it, and an order to be passed by the Magistrate effecting the same on merits, non- compliance of which will attract punishment in accordance with this section.


Section 21 – The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions when established shall be maintained in such manner as may be prescribed. Whoever establishes or maintains a protective home or corrective institution except in accordance with the provisions given shall be punishable under this section.


Section 22-A – If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the Official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the First Class, or, as the case may be, Metropolitan Magistrate, in such district or metropolitan area.


Section 22-B – Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a Magistrate [including the presiding officer of a court established under sub-section (1) of Section 22-A] and the provisions of Sections 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply to such trial

Constitution of India

Article 23 –  It specifically prohibits “traffic in human beings and begar and other similar forms of forced labour”.


Article 39 – It states that men and women should have the right to an adequate means of livelihood and equal pay for equal work; that men, women and children should not be forced by economic necessity to enter unsuitable avocations; and that children and youth should be protected against exploitation. It is enshrined in the Constitution in the form of a directive to be followed while formulating policies for the State.


Article 39-A – It directs that the legal system should ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.


 Note: Articles 14, 15, 21, 22 and 24 also emcompass certain provisions relating to human trafficking.

Penal Code, 1860

Penal Code, 1860 specifically deals with two kinds of kidnapping:
(a)  Section 360Kidnapping from India

(b) Section 361– Kidnapping from lawful guardianship


Section 362 – A trafficked person can also be subjected to an act of abduction covered under this section which involves using of deceitful means by another and thereby forcefully compelling this person to go from any place.


Section 363-A specifically punishes any person who kidnaps or maims a minor for purposes of begging.


Section 365 punishes any person who kidnaps or abducts another person with intent to secretly and wrongfully confine him/her.


Section 366 – punishes any person who kidnaps, abducts or induces woman to compel her marriage against her will, or be forced/seduced to have illicit intercourse.


Section 366-A punishes any person who by any means whatsoever induces any minor girl under the age of 18 years to go from any place or to do any act that such girl may be forced or seduced to have illicit intercourse with another person.


Section 370 – By the Criminal Law (Amendment) Act, 2013, this section punishes all acts of trafficking in human beings and their exploitation.


Section 372 – If any person sells, lets to hire  or disposes of any other person who is a minor i.e. under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.


Section 373 – If any person buys, hires or obtains possession of  any other person who is a minor i.e. under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.


Sections 354, 354-A , 354-B , 354-C, and 354-D – These sections punish any person who assaults or uses criminal force on a woman intending to outrage modesty, disrobe her, or to commit an offence of voyeurism or stalking. Sections 354, 354-A, 354-B, 354-C, and 354-D were added by the Criminal Law (Amendment) Act, 2013.


Section 366-B – Any girl under age of 21 years being imported from a foreign country by a person with an intent that she will be forced or seduced to illicit intercourse with another person, the person so importing shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.


Sections 375 and 376 – These sections were added to make the justice-delivery system more responsive to the sexual offences against women. It explicitly deals with the definitions of rape, gang rape, repeatedly raped which is a major consequence of trafficking and also lays down punishments for such acts under the said sections.


Section 374 –The section defines that any person who compels another person to labour against his will shall be punished with imprisonment up to 1 year or fine or both. This section punishes those people who are involved in trafficking in humans with an intention to forced labour and grave exploitation.


Bonded Labour System (Abolition) Act, 1976

[Read here]

An Act to provide for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people. The Act prohibits anyone from making any advance or compelling any person to render any bonded labour and states further that any agreement or custom requiring any person to do work as a bonded labour is void and provides for punishment for anyone who compels any person to render bonded labour or advance any bonded debt. Punishment in both cases is imprisonment up to 3 years and fine up to 2000 rupees. The bonded laborers are to be treated as victims and not as offenders.


Child and Adolescent Labour (Prohibition and Regulation) Act, 1986

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An Act to prohibit the engagement of children in all occupations and to prohibit the engagement of adolescents in hazardous occupations and processes. It prohibits employment of children in hazardous industries and lays down safety measures and other requirements which shall be met irrespective of what is stated in other labour legislations.


Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

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An Act to prevent the commission of offences related to atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. Many victims are from marginalised groups because traffickers are targeting on vulnerable people in socially and economically backward areas. This Act provides an additional tool to safeguard women and young girls belonging to SC/ST and also creates greater burden on the trafficker to prove his lack of complicity in the crime. This can be effective if the offender knows the status of victim. It specifically covers certain forms of trafficking, forced or bonded labour and sexual exploitation of women. A minimum punishment of 6 months is provided that could extend up to 5 years in any offence covered under the Act regarding trafficking in humans.


 Transplantation of Human Organs and Tissues Act, 1994

[Read here]

This Act deals with criminal responsibility in cases of harvesting of organs and trafficking of persons for this purpose. The perpetrator includes traffickers, procurers, brokers, intermediaries, hospital or nursing staff and medical laboratories and their technicians involved in the illegal transplant procedure. Section 11 declares prohibition of removal or transplantation of human organs for any purpose other than therapeutic purposes and Section 19 deals with commercial dealing in human organs and clarifies that it punishes those who seek willing people or offer to supply organs and such traffickers and alike shall be punished with imprisonment for a term which shall not be less than five years but which may extend to ten years and shall be liable to fine which shall not be less than twenty lakh rupees but may extend to one crore rupees.


Protection of Children from Sexual Offences Act, 2012

[Read here]

It has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children. Sexual offences are currently covered under different sections in Penal Code. However, Penal Code, 1860 does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.


Criminal Procedure Code, 1973

[Read here]

Responsibility for providing compensation to trafficking victims is fragmented between the Central Government and individual States. This is largely the result of Section 357 and Section 357-A CrPC. When the punishment itself contemplates sentence or fine Section 357 CrPC provides that the fine can be passed on to the victim. Even if that is not so, Section 357-A CrPC have the fund — a State fund, which can be extended to the victims of any crime (not limited to trafficking) who have suffered loss or injury. However, it fails to note the form or degree of such compensation.


Evolution through Judicial Pronouncements

 What is Human Trafficking

It was clearly laid down as early as in 1953 in Raj Bahadur v. State of W.B., 1953 SCC OnLine Cal 129 that traffic in human beings mean to deal in men and women like goods, such as to sell or let or otherwise dispose of. It would include traffic in women and children for immoral or other purposes.

Heinous Nature of the Crime vis-à-vis Moral Culpability

The Court observed in Vishal Jeet v. Union of India, (1990) 3 SCC 318 that:

“The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. It is highly deplorable and heartrending to note that many poverty stricken children and girls in the prime of youth are taken to ‘flesh market’ and forcibly pushed into the ‘flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions—indeed there is none—that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”

 Human Trafficking and Child Prostitution

In Vishal Jeet v. Union of India, (1990) 3 SCC 318  the Court laid down following directions in this regard:

  1. All the State Governments and the Governments of Union Territories should direct their law enforcing authorities concerned to take appropriate and speedy action in eradicating child prostitution.
  2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones to make suggestions regarding the measures to be taken and the social welfare programmes to be implemented for the children and girls rescued from the vices of prostitution.
  3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors.
  4. The Union Government should set up a committee of its own to evolve welfare programmes on the national level for the care, protection, rehabilitation, etc. of the young fallen victims and to make suggestions of amendments to the existing laws for the prevention of sexual exploitation of children.
  5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
  6. The Advisory Committee can also delve deep into devadasi system and jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.

Human Trafficking and Bonded Labour

The Supreme Court in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 has elucidated the rehabilitation of bonded labour and directed the Government to award compensation to released/rescued bonded labour under the provisions of Bonded Labour System (Abolition) Act, 1976 after taking note of serious violation of fundamental and human rights:

“The rehabilitation of the released bonded labourers is a question of great importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion. The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and illusory security’ as against a world of freedom and starvation.”

It may be pointed out that the concept of rehabilitation has the following four main features as addressed by the Secretary, Ministry of Labour, Government of India to the various States Governments:

  • Psychological rehabilitation must go side by side with physical and economic rehabilitation.
  • The physical and economic rehabilitation has 15 major components, namely, allotment of house sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, health medical care and sanitation, supply of essential commodities, education of children of bonded labourers and protection of civil rights, etc.
  • There is scope for bringing about an integration among the various central and State sponsored schemes for a more qualitative rehabilitation and to avoid duplication.
  • While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would meet the total requirements of the family of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.

The Supreme Court in PUCL v. State of T.N., (2013) 1 SCC 585 directed the District Magistrates to effectively implement Sections 10, 11 and 12 of the Bonded Labour System (Abolition) Act, 1976 and expected them to discharge their functions with due diligence, empathy and sensitivity, taking note of the fact that the Act is a welfare legislation.

Human Trafficking and Child Labour

In Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 P.N. Bhagwati, J., observed:

6. It is obvious that in a civilised society the importance of child welfare cannot be over-emphasised, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ‘supremely important national asset’ and the future well-being of the nation depends on how its children grow and develop.”

The Supreme Court in M.C. Mehta v. State of T.N., (1996) 6 SCC 756 seeing the severe violation of fundamental rights in cases of child labour observed:

“… if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. Therefore, unless the family is assured of income aliunde, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended.

… if employment of child below the age of 14 is a constitutional indiction insofar as work in any factory or mine is concerned, it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfilment of legislative intendment behind enactment of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.”

 In view of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs 20,000 which is to be deposited in Child Labour Rehabilitation-cum-Welfare Fund.

Constitution of Committee to Combat Trafficking in Humans

In Gaurav Jain v. Union of India, (1997) 8 SCC 114, the Supreme Court passed an order directing, inter alia, the constitution of a committee to make an in-depth study of the problems of prostitution, child prostitution, and children of prostitutes, to help evolve suitable schemes for their rescue and rehabilitation.

The Supreme Court observed:

27. … The ground realities should be tapped with meaningful action imperatives, apart from the administrative action which aims at arresting immoral traffic of women under the Immoral Traffic (Prevention) Act through inter-State or Interpol arrangements and the nodal agency like the CBI is charged to investigate and prevent such crimes.”

The Central Government pursuant to the directions issued by the Supreme Court in Gaurav Jain case constituted a “Committee on the Prostitution, Child Prostitutes and Plan of Action to Combat  Trafficking and Commercial and Sexual Exploitation of Women and Children”.  

Vocational Trainings and Social Welfare Boards

The Supreme Court in Budhadev Karmaskar v. State of W.B., (2011) 11 SCC 538 had issued notice to all States while noting down the concern on the pathetic conditions of sex workers:

 “… we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.

A woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India.”

Critical Analysis — Old Wine in a New Bottle

There need to be a comprehensive single legislation that will cover all forms of trafficking. Hence, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was introduced in Lok Sabha by the Minister of Women and Child Development, Ms Maneka Gandhi on 18-7-2018 and passed in that House on 26-7-2018 which eventually lapsed later due to dissolution of the 16th Lok Sabha. The Bill provided for the prevention, rescue, and rehabilitation of trafficked persons. The present legislation/well intentioned but lapsed Bill ignored the factors that drive people to risky situations and failed to integrate the lessons learned by anti-trafficking stakeholders since the adoption of the United Nations Trafficking Protocol popularly known as “Palermo Protocol”. It adopted a belief that trafficking can be stopped through harsh punishments, rather than addressing root causes, and this indeed may have undermined, rather than protected, the human rights of trafficked persons. Implementing a rights-based approach that facilitates, and does not criminalise migration and one that promotes decent work is the most constructive approach to prevent human trafficking.  This is expected to be the litmus test while drafting the next Bill.

Conclusion

While the lapsed Bill was a well-timed and well-intentioned attempt by the Indian Government to enact a comprehensive legislation which will tackle human trafficking and its fundamental problems. However, the Government was supposed to adopt a broader perspective towards trafficking in accordance with Expert Committee recommendations. Ensuring effective legislation and its implementation will take time and patience but considering Modi Government has a clear majority in Parliament and that the Women and Child Development Ministry is fully devoted towards fighting this menace, it is hoped that any new Bill will bring all stakeholders on board to enact a people-centered social legislation which addresses some of the problems identified here and in line with the expert committee recommendations.

Thus, it may be concluded using the words of Justice V.R. Krishna Iyer, without prejudice to any one gender,

“No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free — free to live without sale of their young flesh to lascivious wealth or commercialising their luscious figures….”