WHY LAW ON RESERVATION IN JOBS AND EDUCATION?
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HUMAN RIGHTS SITUATION IN INDIA AS ON OCTOBER 2, 2018
Open Letter to the UN Secretary-General
Human rights
Dear Secretary-General,
I write to you in great hope. Your human rights credentials are impeccable. You fought the Salazar and Caetano dictatorships. As UN High Commissioner for Refugees, you put the protection of refugees back at the centre of UNHCR’s work.
Your present visit to India comes at a time of a serious backlash against human rights. I hope you will speak about some of these issues, in your public pronouncements and in your talks with government. Some key questions I hope you will raise are:
Caste and sanitation– As the Government of India observes Mahatma Gandhi’s 150th birth anniversary at the grand conference on sanitation that you will be attending, we ask you to urge the organisers to take a close look at the recommendations of the UN Special Rapporteur on water and sanitation who visited India recently. The rapporteur emphasized that “States cannot fully realize the human rights to water and sanitation without addressing stigma as a root cause of discrimination and other human rights violations”.
The rapporteur also referred to the continuing practice of manual scavenging – a concern that is unlikely to show up in the conference material, or for that matter in the speeches, since the programme does not include representatives of sanitation workers or those who work to defend their rights. Official data shows that more than 50,000 people are engaged in this practice – the number does not include those who clean sewers and septic tanks. The rapporteur added that “the growth in the number of toilets raises concerns that the generations-old practice of imposing sanitary tasks on the lower castes will continue in a discriminatory fashion.”
We hope that you will use the opportunity of your visit to highlight other key human rights issues:
Violence against Muslims– Much of India continues to believe in tolerance, pluralism and inclusion, but Hindu right-wing elements are hacking away at these values and Constitutional principles, one cow-related killing at a time.While violence against religious minorities is not a new phenomenon, an environment in which such attacks are condoned, often even endorsed by elected representatives, has instilled a sense of impunity among the attackers and fear and anxiety among minority communities.
Targetting of human rights defenders– Not content with paralyzing the work of defenders through the Foreign Contribution Regulation Act, the state is using laws such as the Unlawful Activities Prevention Act (UAPA) and the National Security Act to effectively shut them away for long periods. NGOs that cooperate with UN human rights mechanisms have faced reprisals. We urge you to remind the government that dissent is critical for the safeguarding of Constitutional values.
Extrajudicial executions, euphemistically called ‘encounter killings’ are carried out with such breathtaking impunity that they can only be construed as state policy. “Encounters are part of crime prevention,” the police chief of the state of Uttar Pradesh is reported to have said. The Armed Forces Special Powers Act has enabled extrajudicial executions in Jammu and Kashmir and in the states of northeast India such as Manipur. The government has ignored repeated calls by human rights defenders and UN human rights mechanisms to repeal the law.
Violence against women and girls– Rather than focusing on improving investigation and judicial processes and support mechanisms for survivors, the state has resorted to knee-jerk reactions, such as instituting the death penalty for the rape of children, setting up a sex offenders database that does not have the requisite safeguards to ensure the right to privacy and the presumption of innocence.
Jammu and Kashmir– Responding to the recent remote monitoring report by the Office of the High Commissioner for Human Rights, a sputtering, indignant establishment termed the report “fallacious, tendentious and motivated” without providing a substantive response to the allegations made in it. The Kashmir valley is in a tailspin. New Delhi continues to clamp down on fundamental freedoms in that beleaguered state. The use of human shields in military operations, the misuse of the draconian Public Safety Act, and the use of excessive and indiscriminate lethal force have ensured that civil unrest persists. Ordinary Kashmiris continue to live under a state of siege.
International human rights obligations– India continues to ignore its international human rights commitments with insouciance. It fails to report to human rights treaty bodies in time. It has issued standing invitations to the special procedures of the UN Human Right Council but ignores most requests for invitations. During the Universal Periodic Reviews, the Indian delegation chooses to ramble on about the plethora of laws and policies rather than pledge to address gaps and challenges in their implementation. India signed the UN Convention Against Torture in 1997 but is still to ratify it by passing an enabling law.
Refugees– In India, where External Affairs apparatchiks as well as self-styled guardians of ‘Indian culture’ intone, ad nauseum, that ‘the world is one family’, the approach towards refugees in general, and the Rohingya in particular, has been far from hospitable. India refuses to accede to the Refugee Convention and enact a domestic refugee protection law. Refugees therefore automatically fall within laws governing the entry, stay and exit of all foreigners, defined as anyone who is not a citizen of India. These Acts give wide discretionary powers to the State to detain and deport foreigners without due process.
Assam- In this northeastern Indian state with a historical record of migration – and unresolved tensions, often politically motivated – millions of people remain on tenterhooks, left out of an updated ‘National Register of Citizens’ often due to errors in paperwork and a lack of understanding of the process of application and review. Meanwhile, the rhetoric, including by senior functionaries of the ruling party, against irregular migrants has grown strident. The President of the ruling party recently referred to them as “termites”. Echoes of Rwanda?
I urge you to insist in your talks with government that any determination of citizenship must abide by human rights and humanitarian law and standards. The state’s failure in this respect could have disastrous consequences.
Mr. Secretary- General, in late 1976, Mario Soares, your fellow country man as Prime Minister of Portugal spoke out against the then authoritarian rule called the Emergency in India loudly and unequivocally. How can I expect any less from you? For us, socialists, democrats and human rights defenders in India, la luta continua. The struggle continues.
(Ravi Nair is Executive Director of the South Asia Human Rights Documentation Centre).
PROCEDURE FOR FILING IN HUMAN RIGHTS COURT IN TAMIL NADU
Madras High Court
Rev. Sister Flora vs S.Babiolo Viancy on 6 December, 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.12.2017
CORAM
THE HON’BLE MR.JUSTICE M.DHANDAPANI
Crl.O.P.(MD)No.14064 of 2011
and
Crl.M.P.(MD).No.1 of 2011
1.Rev. Sister Flora
Correspondent,
St.Teresa Primary School,
West Marianathapuram,
Dindigul.
2.Arockia Mary … Petitioners/Accused
-Vs-
S.Babiolo Viancy … Respondent/Complainant
Prayer : Criminal Original Petition filed under Section 482 of Cr.P.C, to
call for the records in H.R.C.No.1 of 2010, dated 06.01.2009, on the file of
the learned Principal Sessions Judge, Dindigul, and to quash the same.
!For Petitioners : Mr.N.Ananthapadmanaban
^For Respondent : Mr.V.Karuna
:ORDER
This Criminal Original Petition has been filed to quash the case in H.R.C.No.1 of 2010, pending on the file of the learned Principal Sessions Judge, Dindigul.
2. The first petitioner is the Correspondent of a Private School and the second petitioner was working as the helper maid in the said school. They filed this petition under Section 482 of Cr.P.C., challenging the private complaint lodged by a respondent/complainant, who is the parent of a student of their school. The complaint was filed under Section 200 Cr.P.C. and section 30 of the Protection of Human Rights Act, (Act 10 of 1994) alleging that the petitioners ordered the son of the respondent, who is studying in their school at fifth standard to clean the toilet, which is the violation under Section 12(C) and 12 (D) of the Protection of Human Rights Act, 1993, and threatened him not to disclose the said incident to anybody. Aggrieved by the same, the respondent preferred a complaint before the learned Judicial Magistrate under Section 30 of the Protection of Human Rights Act, (Act 10 of 1994) read with Section 200 Cr.P.C., against which the Criminal Original Petition has been filed.
3. Mr.N.Ananthapadmanaban, learned counsel appearing for the petitioners would submit that the complaint is not maintainable since the complaint was filed under Section 30 of the Protection of Human Rights Act, (Act 10 of 1994), read with Section 200 Cr.P.C. and no penal provision attracts in the said complaint, and if there is any human rights violation, as per the section amounting the violation can be lodged before the Human Rights Commission either by the victim or by any one on behalf of the victim. Chapter-III of the Protection of Human Rights Act, 1993, deals with the power of Human Rights Commission and Chapter-IV deals with the enquiry procedure of the State Human Rights Commission. However, the petitioner choose the wrong forum for lodging the private complaint before the Judicial Magistrate under Section 200 Cr.P.C., for the offences punishable under Section 12(C) and 12(D) of the Protection of Human Rights Act, 1993, and the same was taken on file as P.R.C.No.14 of 2008 and after committal proceedings, the case was taken on file in H.R.C.No.1 of 2010, on the file of the learned Principal Sessions Judge, Dindigul, instead of referring the case before the Human Rights Commission. Hence, the complaint itself is bad in law.
4. I have heard the learned counsel for the petitioners and the learned counsel appearing for the respondent and perused the materials available on record.
5. On perusal of the entire complaint filed by the respondent, it is clear that the complaint did not cause any penal offence implicating the petitioners in the above said crime for the offences punishable under Section 12(C) and 12(D) of the Protection of Human Rights Act. Hence, the complaint filed under Section 200 Cr.P.C. read with Section 30 of the Protection of Human Rights Protection Act, (Act 10 of 1994) before the learned Judicial Magistrate is not sustainable in law. In fact, Section 12(C) and 12(D) of the Protection of Human Rights Act, 1993, is not penal provisions. The above said Sections falls under Chapter-III of the said Act, which describes the Functions and Power of the Commission and Sections 12(C) and 12(D) of the said Act is a recommendatory nature, if at all any human rights violation that can be recommended for the remedial measure for the purpose of adjudication.
6. However, the Hon’ble Division Bench of Andhra Pradesh High Court in A.Goverdhan Reddy v. Superintendent of Police, Allahabad, reported in 1998 Crl.L.J.561, decided the issue on the ground that if any penal provision is attracted, the complaint cannot be instituted straight away before the Special Court, but it has to be instituted only before the Magistrate Court. Thereafter, after following the committal procedure, the Special Court shall try the case.
7. To support his contention the learned counsel for the petitioner relied on a decision of this Court in Dr.S.Sourubarani and another vs. C.Selvi, reported in 2005 (1) LW 139, and the relevant paragraphs are as follows:
?22-A. On this ground alone, quashing the proceedings may not be possible and if at all, a direction could be given to the court concerned, to send the complaint to the Judicial Magistrate concerned, having jurisdiction, to commit the case, if offences are made out. But considering the facts and circumstances of the case and other attending circumstances, in this case, this proceedings need not be followed and the proceedings could be quashed, since there are other materials available, for adopting the latter course.
23. The offences reported in the complaint are under Sections 166, 315, 325, 503 and 509 IPC. Section 166 IPC contemplates punishment, where a public servant disobeyed the law, with intent to cause injury to any person, which is not available in this case, even prima facie, as per the pleadings and therefore, taking cognizance of this offence and compelling the accused to face the trial is unnecessary?.
8. From the above said judgment, if the penal provisions attracted against the petitioners, initially, the said complaint can be entertained by the learned Judicial Magistrate. Thereafter, the learned Magistrate, after following the committal procedures, shall commit the case to the Special Court constituted under Section 30 of the Protection of Human Rights Act, 1993. In the present case, the respondent implicated the petitioners only under Sections 12(C) and 12(D) of the said Act, which did not constitute any offence against the petitioners, even as per the pleadings, there is no prima facie case attracted against the petitioners. Therefore, compelling the petitioners to face the criminal prosecution is unnecessary.
9. The learned counsel for the respondent fairly conceded that the complaint filed by the respondent before the Judicial Magistrate is unsustainable in law. Accordingly, he seeks permission of this Court to file a fresh compliant before the appropriate forum.
10. In the present case, this Court found no material was placed before this Court to entertain the complaint before theMagistrate. However, the petitioner granted liberty to approach the Human Rights Commission which was formed under Section 21 of the Protection of Human Rights Act, 1993.
11. In view of the above, I am inclined to quash the complaint with liberty to the respondent to approach the appropriate forum under the Protection of Human Rights Act, 1993. Accordingly, the private complaint in P.R.C.No.14 of 2008, on the file of the learned Judicial Magistrate No.II, Dindigul, which was taken in H.R.C.No.1 of 2010, on the file of the learned Principal Sessions Judge, Dindigul, is hereby quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
To
1.The Principal Sessions Judge, Dindigul.
2.The Judicial Magistrate No.II, Dindigul.
New Indian law providing the death penalty for rapists of girls below 12 years of age and other stringent penal provisions for rape
An ordinance providing the death penalty for rapists of girls below 12 years of age and other stringent penal provisions for rape has been promulgated yesterday. The ordinance viz. The Criminal Law Amendment Ordinance, 2018, amends Indian Penal Code…
Salient Features of the Ordinance Minimum Punishment for Rape made Ten Years Minimum punishment of twenty years to a person committing rape on a woman aged below 16. Minimum Punishment of 20 years rigorous imprisonment and maximum Death penalty/Life…
JUNE 26- International Day in support of victims of torture
June 26 – International Day in support of victims of torture
Torture is a crime under international law. But there is no specific Indian law banning torture. According to all relevant laws, it is absolutely prohibited and cannot be justified under any circumstances. This prohibition forms part of customary international law, which means that it is binding on every member of the international community, regardless of whether a State has ratified international treaties in which torture is expressly prohibited. The systematic or widespread practice of torture constitutes a crime against humanity.
Torture seeks to annihilate the victim’s personality and denies the inherent dignity of the human being. Despite the absolute prohibition of torture under international law, torture persist in all regions of the world. Concerns about protecting national security and borders are increasingly used to allow torture and other forms of cruel, degrading and inhuman treatment. Its pervasive consequences often go beyond the isolated act on an individual; and can be transmitted through generations and lead to cycles of violence.
The United Nations has condemned torture from the outset as one of the vilest acts perpetrated by human beings on their fellow human beings.
The day was selected by the United Nations General Assembly for two reasons. First, on 26 June 1945, the United Nations Charter was signed during the midst of World War II – the first international instrument obliging UN members to respect and promote human rights. Second, 26 June 1987 was when the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into effect.
India signed the UNCAT on April 19, 1997, 21 years later, is yet to ratify it. The UNCAT has been ratified by 162 countries and the Optional Protocol to the UNCAT has been ratified by 83 countries. The Supreme Court of India is hearing a petition, filed by former Minister of Law and Justice Mr.Ashwani Kumar, seeking directions to Government of India to execute a comprehensive and purposive domestic law and action plan for the prevention of torture, cruelty, inhuman or degrading treatment, death in official custody.
Human Rights Cell of Coimbatore District Bar Association has been observing this Day from the year 2000. It has published booklets for creating awareness on the subject.