Supreme Court diecrtives regarding arrest of accused by police for offences punishable with seven years imprisonment or less

Supreme Court Guidelines regarding arrests of the accused by the police in cases punishable with 7 years imprisonment or less issued Arnesh Kumar Vs. State of Bihar and Another (Criminal Appeal No. 1277 of 2014):

1.All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

2. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

9. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

10. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

Sex work: To criminalize or to decriminalize?

National Commission for Women is pushing for a bill to legalise sex work. Activists argue that it will not address the problems faced by the women in flesh trade. According to them, it will increase the exploitation of sex workers by those who manage brothels as well as by the law-enforcement officials, as it is happening now. They are concerned that in a country like India where farmers are driven to commit suicide and tea workers are literally dying of hunger, legalisation of sex work will increase trafficking in women and children. It will be difficult to determine who are forced into the trade and who have freely chosen it as an occupation when they are living in a condition of famine and slavery.

By the way, speaking of free choice, I am reminded of the public stand of present NCW chief on the matter. She is on record saying that women should not assert their autonomy because they may face backlash from the biased society. It is another matter that the statutory body headed by her is mandated to protect the rights of women against the prejudices of society and not the other way around.

This NCW wants to legalise sex work apparently to protect rights and interests of women in the trade.

However, before we take any legislative actions we need to understand what is involved in flesh trade and how it is infringing rights of women.

Radical feminists hold that prostitution and pornography are aspects of male violence against women. Not only the individual women involved are subjected to degrading treatments and dehumanisation but the women as a collective is dehumanised by the practice of prostitution and pornography.

However, I feel more inclined to agree with the understanding of prostitution by the Swedish lawmakers. They say "In Sweden prostitution is regarded as an aspect of male violence against women and children. It is officially acknowledged as a form of exploitation of women and children and constitutes a significant social problem... gender equality will remain unattainable so long as men buy, sell and exploit women and children by prostituting them."

And their solution?

In 1999, after years of research and study, Sweden passed a legislation that a) criminalizes the buying of sex, and b) decriminalizes the selling of sex.

I think India can effectively deal with the problem in Swedish way.

Stopping supply of subsidised foodgrains for tea workers causes serious concerns

The Union Government of India has decided to stop supply of subsidised foodgrains for tea garden workers through FCI.*

This is a very very unfortunate development. It may cause mass starvation deaths of tea workers in Assam. Particularly in those tea estates which are closed now.

Even in the gardens which are producing, labourers are paid as less as Rs 75/- per day. It is barely possible to maintain physical existence of a family of 4/5 persons on this money. They get some help from ICDS, MGNREGA and PDS rations. If MGNREGA is reduced and ration is stopped there is nothing to stop mass starvation deaths, I am afraid.

In a span of a few months in 2012/13 we documented as many as 32 hunger deaths in a single tea estate in South Assam. The estate was closed. After our intervention it was opened. A compensation to the tune of Rs 1700000/- was provided to the next of kins of some of the deceased workers. Some other ameliorative actions were also taken. It was a temporary relief in practical sense. Technically the government closed the chapter.

During documentation we came to know that due to the closure of the work provisions of government subsidised rations were also stopped. The foodgrains were provided to the owner of the tea gardens under the Essential Commodities Act, 1955 and who in turn distributed it to the workers who were the intended beneficiaries.

The National Human Rights Commission (NHRC) heard and disposed of our complaint about these hunger deaths in its camp sitting in Guwahati last year. In the second day of the camp, the commission had a sitting with the local human rights defenders where I raised the issue and among other things I specifically stressed that the ration should be directly given to the labourers through their panchayats and not through the owners. The commission apparently was convinced and directed the officials present (a deputy home secretary and others) orally to consider my proposal. Though the state government kept giving us assurances but no change in the practice was made.

And now the Modi government decided to stop altogether the supply of rations to the labourers.

I am really very concerned about the tea labourers of Assam.

----------------------

* As reported by the Assam Tribune accessed at  http://www.assamtribune.com/scripts/detailsnew.asp?id=dec0414/at053

Why I Support Indo-Bangla Land Boundary Agreement?

The Indo-Bangla Land Boundary Agreement is a mere formality. But this formality will end virtual statelessness of more than 51 thousand people.

According to a report, 37,334 Indians are residing in 111 enclaves in Bangladesh that spread over 17,000 acres and 14,215 Bangladeshi people are residing in 51 enclaves in India that spread over 7,110 acres. As these 51,549 people are living in land-locked parcels of land situated within another country they can not exercise and avail any of the rights and amenities which citizens are provided with by the constitution and laws of their respective countries. They are virtually stateless people.

The Land Boundary Agreement was first signed by Indira Gandhi and Sheikh Mujibur Rahman in 1974 stipulated that both countries would exchange the enclaves of land that both countries had within each other's territory. India even agreed to forgo compensation for land that would be transferred to Bangladesh. India would lose about 40 square kilometres of land. But it is a matter of formality since there is no sensible ways to use these lands as they sit in small enclaves within another country.

As per the agreement, people living in the enclaves would be given a choice either to go to their country or to stay where they were living by becoming the citizens of that country. It is reported that no significant exchange of population would be involved as people reportedly wanted to stay where they were living for generations.

Bangladesh parliament ratified the agreement but India did not. When, after decades, the Manmohan Singh government attempted to move the constitutional amendment bill required for ratification of the agreement in parliament in 2013, it was strongly opposed by BJP and regional parties like TMC and AGP.

But now that the Parliamentary Standing Committee on External Affairs tabled its report in which it recommended that the constitution amendement bill be moved to end the boundary issue between the two nations and the Prime Minister also announced his intention to go ahead with the bill, I hope, it will be passed and these 51 thousand odd stateless people will get some relief.

India needs 'SMART' policing to maintain law and order: PM Modi

Prime Minister Narendra Modi expressed his concerns about the image of police in public mind. He said the mental image that people have with regard to police has to change. It is good that he noticed it and thought something was needed to be done about it. But unfortunately his diagnosis and prescription were utterly wrong. He thought it was the negative portrayal of police in Bollywood cinemas which was responsible for distrust of people in the law-enforcement forces. The medicine, according to him, is wearing make-ups. He said, “Every police thana (police station) should have a website to propagate good deeds done by the force. Each thana should upload one positive story a week, which shows the good work done by them,” said the PM.

It is not surprising that he is asking for image make-over by masks and make-ups after the huge success of the art in his own case.

The root of the ills that plague policing in India lies deep in history. The police force in India was set up after 1857 war of independence. The constituting statute was passed in 1861 which is still in force and governs policing as mother statute of all other police Acts. The force was conceptualised by the servants of the Queen as protectors of the interest of Her Highness in her Indian colonies and to repress people and their voices. True to their founding objectives the force served the Queen well during her regime and after that her successors even after independence.

Although there are legal protection for the police in Police Acts as well as in the Criminal Procedure Code, 1973, cases of police atrocities started coming up to the High Courts and the Supreme Court when after independence democracy started to percolate and deepen in remote towns and rural India. And after growth of mass media they also began to pick up stories of police atrocities, torture and killings. It is not the stories of the inhuman deeds which are responsible for the bad image of the police but it is the deeds themselves which are responsible. অন্ধ হলে কি প্রলয় বন্ধ থাকে? (Does disaster stops if you shut your eyes up?)

For decades there was a movement by human rights activists, police officers, lawyers, judges and common people for police reform. As a part of this movement, two former director generals of police moved tthe Supreme Court in 1996 requesting the Court to direct central and state governments to address the most glaring gaps and bad practice in the functioning of the police.

After a decade, on 22 September 2006, the Supreme Court of India delivered a historic judgment directing central and state governments to implement a set of seven directives laying down practical mechanisms to kick-start police reform. The Court's directives seek to achieve two main objectives: functional autonomy for the police - through security of tenure, streamlined appointment and transfer processes, and the creation of a "buffer body" between the police and the government - and enhanced police accountability, both for organisational performance and individual misconduct. The case is know as Prakash Singh vs. Union of India.

Central government has yet to comply with the directives and the responses of the states are tremendously varied. In short, most of them did not comply with the directives in their letter and spirit. In response to the directives the Assam government passed the its state police Act in 2007. It is, in fact, was an effort to bypass the Supreme Court order.

Reforming laws governing policing in compliance with the Supreme Court directives would only be the first step towards a long journey in the direction of building a law-enforcement institution which itself follows laws, protects rights of the people and enforces laws democratically.

Wearing masks or makeups would lead us nowhere.