In 1997, the Supreme Court laid down guidelines in the Vishaka case, pending formal legislation, for dealing withsexual harassmentof women at the workplace. This is the judgement of the Supreme Court of India
Pre-1997 the person facing Sexual Harassment at Workplace had to lodge a complaint under Section 354 of the Indian Penal Code 1860 that deals with the 'criminal assault of women to outrage women's modesty', and Section 509 that punishes an individual/individuals for using a 'word, gesture or act intended to insult the modesty of a woman'.
During the 1990s, Rajasthan state government employee ([Bhanwari Devi] who tried to prevent child marriage as part of her duties as a worker of the Women Development Programme was raped by the landlords of the community. The feudal patriarchs who were enraged by her (in their words: "a lowly woman from a poor and potter community") 'guts' decided to teach her a lesson and raped her repeatedly.The rape survivor did not get justice from Rajasthan High Court and the rapists were allowed to go free. This enraged a women's rights group called Vishaka that filed a public interest litigation in the Supreme Court of India.'
This case brought to the attention of the Supreme Court of India, "the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places."
In 1997, the Supreme Court passed a landmark judgment in the same Vishaka case laying down guidelines to be followed by establishments in dealing with complaints about sexual harassment.Vishaka Guidelineswere stipulated by theSupreme Court of India, inVishaka and others v State of Rajasthancase in 1997, regardingsexual harassmentat workplace. The court stated that these guidelines were to be implemented until legislation is passed to deal with the issue.
The court decided that the consideration of "International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards againstsexual harassmentimplicit therein."
What is sexual harassment
Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances; b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where the victim has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem.
It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.
Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
Thus, sexual harassment need NOT involve physical contact. Any act that creates a hostile work environment - be it by virtue of cracking lewd jokes, verbal abuse, circulating lewd rumours etc. counts as sexual harassment.
The creation of a hostile work environment through unwelcome physical verbal or non-verbal conduct of sexual nature may consist not of a single act but of a pattern of behaviour comprising many such acts.
Thus, it is important that the victim report such behaviour as soon as possible and not wait for it to become worse. In some cases, the psychological stigma of reporting the conduct of a co-worker might require a great deal of courage on the part of the victim and they may report such acts after a long period of time. The guidelines suggest that the complaint mechanism should ensure time bound treatment of complaints, butthey do not suggest that a report can only be made within a short period of time since the incident occurred.
Often, the police refuse to lodgeFIRsforsexual harassmentcases, especially where the harassment occurred sometime ago.
Internal Complaints Committee and Local Complaints Committee : The Sexual Harassment Act requires an employer to set up an 'Internal Complaints Committee' ("ICC") at each office or branch, of an organization employing at least 10 employees.
The government is in turn required to set up a 'Local Complaints Committees' ("LCC") at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer.
The Sexual Harassment Act 2013 also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner.
Interim Reliefs : The Sexual Harassment Act empowers the ICC and the LCC to recommend to the employer, at the request of the aggrieved employee, interim measures such as (i) transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement.
In addition to ensuring compliance with the other provisions stipulated, the Sexual Harassment Act casts certain obligations upon the employer to, inter alia,
provide a safe working environment
display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee
organise workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee
treat sexual harassment as a misconduct under the service rules and initiate action for misconduct.
The employer is also required to monitor the timely submission of reports by the ICC.
If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000 (approx. US$1,000). A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.
All women who draw a regular salary, receive an honorarium, or work in a voluntary capacity in the government, private sector or unorganised sector come under the purview of these guidelines.
All workplaces should have an appropriate complaints mechanism with a complaints committee, special counsellor or other support services.
A woman must head the complaints committee and no less than half its members should be women.
The committee should include an NGO/individual familiar with the issue of sexual harassment.
The complaints procedure must be time-bound.
Confidentiality must be maintained.
Complainants/witnesses should not experiencevictimisation/discrimination during the process.
Sexual harassment should be affirmatively discussed at workers' meetings, employer-employee meetings, etc.
Guidelines should be prominently displayed to create awareness about the rights of female employees.
The employer should assist persons affected in cases of sexual harassment by outsiders.
Central and state governments must adopt measures, including legislation, to ensure that private employers also observe the guidelines.
and contact numbers of members of the complaints committee must be prominently displayed.
From Guidelines to Act
The Sexual harassment at workplace Bill was passed by theLok Sabhaon the 2nd of September, 2012.It is now The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It defines sexual harassment as laid down by the Supreme Court inVishakha and others v State of Rajasthan(1997) case.
National Commission for Women has asked the government to ensure constitution of Internal Complaints Committee (ICC) in accordance with Supreme Court guidelines in its departments, institutions and autonomous bodies to address such cases.It has also recommended conducting sensitisation workshops for top level management officials. NCW recommended publicizing committee using posters,etc. and explicitly mention the contact details of the members. The commission also highlighted the need for orientation programmes for employees to sensitize them on sexual harassment. Another recommendation was to enhance communication strategies to combat violation against women.
The rules for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is yet to come into force. The final draft of the rules of the act has been referred to the Ministry of Labour and Employment for examination after Law Ministry officials vetting it raised an issue with an appellate structure, Women & Child Development Minister Krishna Tirath said, adding that it would be notified soon.
RIGHT TO INFORMATION (RTI)
AICHLS’s believes that the Right to Information is fundamental to the realisation of economic and social rights as well as civil and political rights. Informed participation by all must therefore be guaranteed through increased access to public information.
AICHLS’s believes that the right to information must be guaranteed by a strong legislation and the process of law-making itself must be participatory and informed by the realities of the community concerned.
AICHLS’s works to raise public awareness about the value of the right to information. It collaborates with community based groups, catalyses the development of networks of concerned civil society organisations and seeks out the specific information needs of the people and communicates them to policy makers in various ways.
The Constitution of India does not explicitly grant a right to information. However, the Supreme Court of India (the country's highest court) has held in several cases that the right to information is implicit in the constitutionally enshrined rights to freedom of speech and expression (Article 19 (1)(a) and right to life and liberty (Article 21).
The first Supreme Court ruling on the right to information dates back to 1975. However, no attempt was made by either the Central or the State Governments to implement a simple and effective access to information regime until after the launching of campaigns for freedom of information by civil society. (Notably, effective right to information legislation is important even where a constitutional right exists because it ensures that people do not have to go to court every time they want to exercise the right, and puts in place simple, clear and regular procedures which can be easily utilised by all.)
The first and most well-known right to information movement in India was the Mazdoor Kisan Shakti Sangathan (MKSS), which began its right to information work in Rajasthan during the early 1990s. MKSS's struggle for access to village accounts and transparency in administration is widely credited with having sparked off the right to information movement across India.
From the mid-1990s, a national campaign for the enactment of a central law on right to information gained momentum. After much struggle, the Central Government enacted the Indian Freedom of Information Act in 2002. The Act represents an important step towards actualising the Right to Information, but has been criticised for not going far enough. More problematically, the Act is yet to come into force, since the rules to implement the Act are yet to be formulated by the Central Government.
While the campaign for national legislation was going on, in the meantime some significant breakthroughs were achieved at the State-level. Tamil Nadu was the first State to enact a right to information law, in 1997, followed by Goa in the same year. To date, seven other States have passed legislation - Rajasthan (2000),Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003) and Jammu and Kashmir (2003). Campaign efforts in other States have also had some success - Uttar Pradesh framed an executive code on access to information in 2000 and draft bills have now been prepared by the Governments of Kerala and Orissa.
As one of the leading campaigners for the right to information, AICHLS’s has sought to generate awareness on this issue, support civil society campaigns and provide input into the law making process, drawing on our knowledge of international best practice. AICHLS’s advocacy has included the making of policy submissions, articles in the media and training and workshops. AICHLS’s has also published several booklets, fliers, brochures and posters.
The right to information campaign in India began with the Mazdoor Kisan Shakti Sangathan ( MKSS) movement to bring in transparency in village accounts via the demand for minimum wages in rural India. Ghost entries in muster rolls were a sign of rampant corruption in the system, which prompted MKSS to demand official information recorded in government files. The movement soon spread across India. From very modest beginning in the villages of Rajasthan, the success of MKSS has been a source of inspiration for activists in India and throughout the world. It led to the genesis of a broader discourse on the right to information in India.
In 1993, a draft RTI law was proposed by the Consumer Education and Research Council, Ahmedabad (CERC). In 1996, the Press Council of India headed by Justice P B Sawant presented a draft model law on the right to information to the Government of India. The draft model law was later updated and renamed the PCI-NIRD Freedom of Information Bill 1997. Unfortunately, none of the draft laws were seriously considered by the Government.
Meanwhile, MKSS's advocacy gave rise to the National Campaign on People's Right to Information (NCPRI), which was formed to advocate for the right to information at the national level. Constituted in 1996 in New Delhi, the NCPRI aims to provide active support to grassroots struggles for the right to information and to lobby government to enact and implement effective access to information legislation.
In 1997 efforts to legislate for the right to information, at both the State and National level, quickened. A working group under the chairmanship of Mr. H D Shourie (the Shourie Committee) was set up by the Central Government and given the mandate to prepare draft legislation on freedom of information. The Shourie Committee's Report and draft law were published in 1997. Notably, the draft law was criticised for not adopting a high enough standard of disclosure.
The Shourie Committee draft law passed through two successive governments, but was never introduced in Parliament. In the interim, in 1999 Mr Ram Jethmalani, then Union Minister for Urban Development, issued an administrative order enabling citizens to inspect and receive photocopies of files in his Ministry. Disappointingly, the Cabinet Secretary did not permit this order to come into effect.
Eventually, the Shourie Committee draft law was reworked into the Freedom of Information Bill 2000, an even less satisfactory Bill than the Shourie Committee's. The 2000 Bill was sent to the Parliamentary Standing Committee on Home Affairs, which consulted with civil society groups before submitting its Report in July 2001. The Committee recommended that the Government address the flaws in the draft Bill pointed out by civil sociey. Unfortunately, the Government did not implement that recommendation, to the detriment of the final content of the Bill.
The national Freedom of Information Bill 2000 was introduced in Parliament in 2002. It was passed in December 2002 and received Presidential asset on January 2003, as the Freedom of Information Act 2002. Unfortunately, a date for the Bill coming into force was never notified, such that it never actually came into operation.
In May 2004, a new UPA Government came into power at the Centre. The national campaign for right to information received a major boost when the UPA Government's Common Minimum Programme promised that: "The Right to Information Act will be made more progressive, participatory and meaningful". The National Advisory Council (NAC) was set up to oversee implementation of the Government's Common Minimum Programme. Since its inception, the NAC has taken a close interest in RTI. At the very first meeting of the NAC on 17 July 2004, NAC members submitted a Statement from the National Campaign for the People's Right to Information to the NAC calling for action on RTI. To aid discussions.
Following the first NAC meeting, Aruna Roy met with key government stakeholders who recommended that civil society submit a paper recommending amendments to the FOI ACT. Draft National Campaign for the People's Right to Information Recommendations re Amending the Central FOI Act 2002 were developed and submitted to the NAC for consideration at their second meeting on 31 July 2004. The NAC considered the draft NCPRI Recommendations and released draft NAC Recommendations re Amending the FOI Act 2002. NAC members Aruna Roy and Jean Dreze provided an Update on the Discussions of the NAC at these first two Meetings.
In the meantime, a public interest litigation case being pursued by Advocate Prashant Bhushan on behalf of the NCPRI and Centre for Public Interest Litigation since 2002, tried to compel the Government to notify an effective FOI Act 2002 immediately. The case was heard by the Supreme Court on 20 July 2004. The Supreme Court's Order set a deadline of 15 September 2004 for the Central Government to advise when the Act will be notified and if not, when interim Administrative Guidelines would be issued. In the interim, on 12 August 2004, the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions finally released Draft Rules under the Freedom of Information Act 2002!
The Right to Information Bill 2004 (RTI Bill 2004) was tabled on 23 December during the winter session of the Lok Sabha. The RTI Bill 2004 was based largely on recommendations submitted to the Government by the NAC (which were based on the NCPRI's original draft Bill. NCPRI produced a comparative analysis of the RTI Bill 2004 against the FOI Act 2002 and the original NAC Recommendations.
On 10 May 2005, the RTI Amendment Bill 2005 (which actioned many of the recommendations of the Parliamentary Standing Committee) was tabled in the Lok Sabha. The Bill was passed very quickly - it was approved by the Lok Sabha on 11 May 2005 and by the Rajya Sabha on 12 May. On 15 June 2005, President APJ Abdul Kalam gave his assent to the national Right to Information Act 2005. With presidential assent, the Central Government and State Governments had 120 days to implement the provisions of the Bill in its entirety. The Act formally came into force on 12 October 2005.
As a party to the International Covenant on Civil and Political Rights (ICCPR), India is under an international obligation to effectively guarantee the right to information as per Article 19 of the ICCPR.
The formal recognition of a legal right to information in India occurred more than two decades before legislation was finally enacted, when the Supreme Court of India ruled in State of U.P. v. Raj Narain that the right to information is implicit in the right to freedom of speech and expression explicitly guaranteed in Article 19 of the Indian Constitution. Subsequently, the Court has affirmed this decision in numerous cases, and has even linked the right to information with the right to life enshrined in Article 21 of the Constitution.
On 15 June 2005, President APJ Abdul Kalam gave his assent to the national Right to Information Act 2005 which had previously been passed with amendments by the Lok Sabha (11 May) and the Rajya Sabha (12 May). With presidential assent, the Central Government and State Governments now have 120 days to implement the provisions of the Bill in its entirety.The Act formally came into force on 12 October 2005. The Act covers all Central Government, State Government and local bodies, as well as some private bodies.
The Government of India has notified a new set of Rules combining the Rules relating to fees and costs payable under the Right to Information Act and the appeals procedure before the Central Information Commission which were notified in 2005. The new set of rules makes a few substantive changes in the applications and appeals procedure. For example, an RTI applicant will be required to limit an information request to 500 words and pay for postal charges in excess of Rs. 50 for receiving information. A letter of appeal filed with the Central Information Commission may be returned to the appellant if it contains filing deficiencies described in the new Rules. Click here for the new RTI Rules.
As part of our advocacy on the right to information, AICHLS’s conducts workshops, consultations and seminars across India. Our workshops have served to raise awareness about the importance of the right as well as providing expertise and lessons learned to civil society groups lobbying for the right to information at state level. Through our workshops in the various states of India we have developed a good network of NGOs throughout the country, committed to advocating for effective laws on the right to information.
AICHLS’s has conducted training programs and workshops at the national level and in several States across India (see below for a list). Training Strategy focuses primarily on training of trainers, to maximise the reach of our workshops and ensure that RTI work is locally owned and sustainable. Please us or email : email@example.com if you are interested in finding out about how you can organise an RTI workshop in your own State.
CHILD RIGHTS MOVEMENT ( CRM)
Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to minors. The Convention on the Rights of the Child (1989) (CRC) defines a child as any human person who has not reached the age of eighteen years. Children's rights includes their right to association with both parents, human identity as well as the basic needs for physical protection, food, universal state-paid education, health care, and criminal laws appropriate for the age and development of the child, equal protection of the child's civil rights, and freedom from discrimination on the basis of the child's race, gender, sexual orientation, gender identity, national origin, religion, disability, color, ethnicity, or other characteristics. Interpretations of children's rights range from allowing children the capacity for autonomous action to the enforcement of children being physically, mentally and emotionally free from abuse, though what constitutes "abuse" is a matter of debate. Other definitions include the rights to care and nurturing.
"A child is any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier." There are no definitions of other terms used to describe young people such as "adolescents", "teenagers," or "youth" in international law, but the children's rights movement is considered distinct from the youth rights movement.
The field of children's rights spans the fields of law, politics, religion, and morality.
Although India has a large number of laws to protect and promote the rights of children, children’s concerns are viewed primarily as a welfare issue, rather an issue of rights. By developing a legal rights-based approach for children, the Child Rights Initiative combats the violation of children’s rights and increases their ability access to the legal system.
WHAT WE DO?
AICHLS’s Child Rights Movement (CRM) , major activity is to do Public Interest Cases in the Supreme Court of India and various High Courts on the issues affecting children. AICHLS’s provides pro-bono legal assistance services to children in conflict with the law and children in need of care and protection in the Juvenile Justice Boards and Child Welfare Committees all over the country. AICHLS’s represents and defends children who are victim of sexual abuse or victim of bonded labour during the trail proceedings in trial courts, assisting the prosecution in the trial with the help of associated lawyers.
AICHLS’s Child Rights Movement (CRM) make initiative for providing trainings to police, labour department, civil society organizations, judiciary and government officials on various legislations and policies made for children.
AICHLS’s Child Rights Movement (CRM) has made inititave in providing assistance in formulation of new laws, rules and policies for children. AICHLS’s Child Rights Movement (CRM) conducts fact-findings, campaigns, publishes books and poster, organizes consultations, meetings and Judicial Colloquiums for increasing awareness about child rights among duty bearers and right holders.
AICHLS’s Child Rights Movement (CRM) is part of the National Volunteer Task Force for the rescue and rehabilitation of child labourers and responds to crisis situations through raid and rescue operations. We have set up a 200 Crisis Intervention Center spread over in various part of our country. AICHLS’s Child Rights Movement (CRM) also monitor the implementation of various schemes and policies related to children. AICHLS’s Child Rights Movement (CRM) functions in close collaboration with other grassroots organizations , NGOs in the country.
As minors by law children do not have autonomy or the right to make decisions on their own for themselves in any known jurisdiction of the world. Instead their adult caregivers, including parents, social workers, teachers, youth workers, and others, are vested with that authority, depending on the circumstances. Some believe that this state of affairs gives children insufficient control over their own lives and causes them to be vulnerable. Louis Althusser has gone so far as to describe this legal machinery, as it applies to children, as "repressive state apparatuses".
Structures such as government policy have been held by some commentators to mask the ways adults abuse and exploit children, resulting in child poverty, lack of educational opportunities, and child labor. On this view, children are to be regarded as a minority group towards whom society needs to reconsider the way it behaves.
Researchers have identified children as needing to be recognized as participants in society whose rights and responsibilities need to be recognized at all ages.
ISSUES OF CONCERN
• Child labour
• Child trafficking.
• Right to education
• Child health and nutrition
• Child marriages
• Juvenile Justice
• Child sexual abuse
• Torture and Abuse of Children
SUPREME COURT DIRECTIONS AND ITS MAJOR IMPACTS
Public Interest Cases done by lawyers associated with AICHLS’s Child Rights Movement (CRM) have brought relief to thousands of children in this country.
Supreme Court has expanded the scope of this PIL to include each and every aspect of rights of children. In its latest order, Supreme Court has directed all the States to implement the provisions of Juvenile Justice (Care and Protection of Children) Act 2000 and to constitute Juvenile Justice Boards, Child Welfare Committees, and Special Juvenile Police Units in every district. Avinash Mehrotra vs Union of India and Ors was filed when AICHLS’s Child Rights Movement (CRM) found a lot of children dying due to school building disasters and fire etc. Schools were directed to follow bare minimum safety standards in addition to complying with the National Building Code of India, 2005, with particular emphasis on the Code of Practice for fire safety in Educational Institutions, as enumerated in the Bureau of Indian Standards. In PUCL Vs. Union of India, Court directed State to ensure the right to food and adequate nutrition for children through the Integrated Child Development Programme (ICDS), which benefitted approximately 8,30,90,382 children of the country between 0 to six years of age. The Supreme Court also directed the State Governments /Union Territories to implement the Mid Day Meal Scheme, ensuring mid day meals to approximately 100 million children across the country. The mid-day meal has been shown to contribute significantly to the lowering of levels of malnutrition among children. Forum for Fact Finding and Documentation Vs. Union of India, directions were issued that each state in India notifies the rules for the Prohibition of Child Marriages Act, 2006. Another Supreme Court case Sampurna Behura Vs. Union of India significantly changed the scenarios vis a vis implementation of the Juvenile Justice Act, as a result of which Juvenile Justice Boards and child Welfare Committees have been constituted in each district of every state in India.
The AICHLS’s Child Rights Movement (CRM) has saved hundreds of children by conducting rescue interventions VIZ. exploited as domestic workers, stopping child marriages, and facilitating the arrest and prosecution of child traffickers.
AICHLS’s Child Rights Movement (CRM) has initiated to set up 120 legal aid Centre for Juveniles in various part of our country, AICHLS’s Child Rights Movement (CRM) lawyers have consistently struggled to eliminate anti child practices from functioning of police by initiating legal action in a number of cases where children are illegal detained or tortured at police stations. On the other hand AICHLS’s Child Rights Movement (CRM) has initiated to provide trainings to police, members of juvenile justice boards, child welfare committees and government authorities to bring social impact on the quality of service delivery to children.
Convention on the Rights of the Child
Main article: Convention on the Rights of the Child
The United Nations' 1989 Convention on the Rights of the Child, or CRC, is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights. Its implementation is monitored by the Committee on the Rights of the Child. National governments that ratify it commit themselves to protecting and ensuring children's rights, and agree to hold themselves accountable for this commitment before the international community. The CRC is the most widely ratified human rights treaty with 195 ratifications. South Sudan and the United States are the only two countries which have not ratified the CRC. The CRC is based on four core principles, namely the principle of non discrimination, the best interests of the child, the right to life, survival and development, and considering the views of the child in decisions which affect them (according to their age and maturity). The CRC, along with international criminal accountability mechanisms such as the International Criminal Court, the Yugoslavia and Rwanda Tribunals, and the Special Court for Sierra Leone, is said to have significantly increased the profile of children's rights worldwide.
Vienna Declaration and Programme of Action
Vienna Declaration and Programme of Action urges at Section II para 47, all nations to undertake measures to the maximum extent of their available resources, with the support of international cooperation, to achieve the goals in the World Summit Plan of Action. And calls on States to integrate the Convention on the Rights of the Child into their national action plans. By means of these national action plans and through international efforts, particular priority should be placed on reducing infant and maternal mortality rates, reducing malnutrition and illiteracy rates and providing access to safe drinking water and basic education. Whenever so called for, national plans of action should be devised to combat devastating emergencies resulting from natural disasters and armed conflicts and the equally grave problem of children in extreme poverty. Further para 48 urges all states, with the support of international cooperation, to address the acute problem of children under especially difficult circumstances. Exploitation and abuse of children should be actively combated, including by addressing their root causes. Effective measures are required against female infanticide, harmful child labour, sale of children and organs, child prostitution, child pornography, as well as other forms of sexual abuse. This gave an influence to adoptions of Optional Protocol on the Involvement of Children in Armed Conflict and Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.
Criminal Justice Movement (CJM)
Criminal Justice refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. The criminal justice system is essentially an instrument of social control: society considers some behaviours so dangerous and destructive that it either strictly controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent these behaviours by apprehending and punishing transgressors or deterring their future occurrence. Although society maintains other forms of social control, such as the family, school, and church, they are designed to deal with moral, not legal, misbehaviour. Only the criminal justice system has the power to control crime and punish criminals.
Two central philosophies anchor the commonly accepted notion of criminal justice. The first is a zealous requirement for increased conviction rates. The second is the perception that those people in prison deserve punishment rather than rehabilitation. Both of these philosophies have especially grave consequences for the poor and marginalized. In this context, the Criminal Justice Initiative provides pro bono and low cost legal aid service to undertrials and convicted prisoners who are unable to pay for their legal representation. Our work is to defend civil liberties and to create a more humane criminal justice system. The emphasis is on greater access to justice for the poor, workers, disabled, aged, sick, tribal, women, dalit, juveniles and other minorities.
So, the main objectives of the criminal justice system can be categorized as follows:
# To prevent the occurrence of crime.
# To punish the transgressors and the criminals.
# To rehabilitate the transgressors and the criminals.
# To compensate the victims as far as possible.
# To maintain law and order in the society.
# To deter the offenders from committing any criminal act in the future.
WHAT WE DO?
One of our main focus areas is work inside the prison, as we believe in corrections via jails and prisons, which can only be understood by reviewing prison conditions and capital punishment laws. We work with progressive prison administrators and police personnel to set up legal aid clinics in prisons with the objective of representing indigent undertrials. We have initiated to be instrumental in setting up a legal aid mechanism for prisoners . AICHLS strongly believes in the abolition of the death penalty.
ISSUES OF CONCERN
Practice of Death Penalty
Legislative, Executive and Judicial Expansion of Police Powers
MAJOR IMPACTS AND CONCERN
We have represented the poor and marginalized and have highlighted that a large number of prisoners are kept in prisons without being produced in the courts on the dates fixed for their trial or in connection with remand. (See: Rajendra Bidkar and Ors Vs. The State of Maharashta)
Our team is at the forefront in regard to its reform work in prisons, playing a pivotal role in implementation of the Mulla Committee recommendations and the DK Basu guidelines layed down by the Supreme Court. Strongly condemning custodial torture and violence. However, statistics still demonstrate that 80% of India’s prison inmates are undertrials and much remains to be done to improve the criminal justice system of the country , sources (NCRB)
“The use of extra-judicial means pervades every facet of the criminal justice system in every Indian state, remaining an enduring legacy and everyday reality for millions of citizens. Instead of introducing reforms in the prevailing justice system and ensuring basic protection of the rights of the poor and minority groups, the government, aided by popular media, is calling for more stringent and oppressive laws.”
Criminal Justice System in India requires a strong second look.
The criminal investigation system needs higher standards of professionalism and it should be provided adequate logistic and technological support. Serious offences should be classified for purpose of specialized investigation by specially selected, trained and experienced investigators. They should not be burdened with other duties like security, maintenance of law and order etc., and should be entrusted exclusively with investigation of serious offences.
The number of Forensic Science Institutions with modern technologies such as DNA fingerprinting technology should be enhanced. The system of plea-bargaining (as recommended by the Law Commission of India in its Report) should be introduced as part of the process of decriminalization.
The greatest asset of the police in investigation of crimes and maintenance of law and order is the confidence of the people. Today, such public confidence is at the lowest ebb. The police are increasingly losing the benefit of this asset of public confidence. Hard intelligence in investigations comes from public cooperation. If police are seen as violators of law themselves or if they abuse their powers for intimidation and extortion, public develop an attitude of revulsion and the onerous duties and responsibilities that the police shoulder become more onerous and difficult.
In order that citizen’s confidence in the police administration is enhanced, the police administration in the districts should periodically review the statistics of all the arrests made by the police in the district and see as to in how many of the cases in which arrests were made culminated in the filing of charge-sheets in the court and how many of the arrests were ultimately turned out to be unnecessary. This review will check the tendency of unnecessary arrests. Some statistics indicate that in some districts in the country, nearly 80% of the arrests were made in respect of bailable offences.
The legal services authorities in the States should set up committees with the participation of civil society for bringing the accused and the victims together to work out compounding of offences.
# Criminal laws:laws related to Indian penal code, evidence act etc is discussed here
Of late, the relevance of our criminal justice system- both substantive and procedural- a replica of the British colonial jurisprudence, is being seriously questioned. Perhaps the criminal judicial system is based on the laws that are arbitrary and operate to the disadvantages of the poor. They have always come across as law for the poor rather than law of the poor. It operates on the weaker sections of the community, notwithstanding constitutional guarantee to the contrary.
There are hardly any people to advocate for the new laws to help the poor, there are practically none to pressurize the government and the legislature to amend the laws to protect the week and the poor. Even after five decades of independence, no serious efforts have been made to redraft penal norms, radicalize punitive processes, humanize prison houses and make anti-social and anti-national criminals etc. incapable of escaping the legal coils.
The criminal justice system is cumbersome, expensive and cumulatively disastrous. The poor can never reach the temple of justice because of heavy costs involved in gaining access and the mystique of legal ethos. The hierarchy of courts, with appeals after appeals, puts legal justice beyond the reach of the poor. Making the legal process costlier is an indirect denial of justice to the people and this hits hard on the lowest of the low in society. In fact, the legal system has lost its credibility for the weaker section of the community.
Of course, the judiciary in recent years has taken a lead and has come forward with a helping hand to give some relief to the victims of criminal justice in a limited way.
Some of the recent developments that have taken place during the last few years in our judicial delivery system to seek redress and accord justice to the poor are worth mentioning. The importance of these developments to the delivery system of justice can’t be ignored. They have revolutionized our judicial jurisprudence and will go a long way in giving relief to the large masses and the common man.
In view of the importance of the subject matter, it is proposed to explain in brief some of the important areas of the criminal justice system that have attracted the attention of the courts in recent years. These are:
1. Public interest litigation.
2. Bail justice jurisprudence.
3. Prison justice.
4. Compensation to the victims.
5. Legal aid and legal services.
PUBLIC INTEREST LITIGATION
Public interest has its origin in the United States. It was during the 1960s that public interest litigation emerges as a part of the legal aid movement primarily aimed at protecting the rights of the weaker sections of the community, such as the women, children, physically and mentally handicapped and the like.
In India during the last few years, a new wave of public interest litigation has struck the courts. It is being argued I some quarters that public interest litigation has opened a floodgate of litigation and by such action, the Indian judiciary seems to be projecting itself as the upholder of the freedom of people.This over act of the judiciary is regarded as nothing but interference in the action of the executive, which is making a good and effective government impossible. It is pointed out that the judiciary might collide head on with the other organs of the State-the executive and the legislature- in which event, being the weakest, it would collapse.
Bail Justice System
Bail is a generic term used to mean judicial release from custodia legis. The right to bail- the right to be released from jail in a criminal case, after furnishing sufficient security and bond- has been recognized in every civilized society as a fundamental aspect of human rights. This is based on the principle that the object of a criminal proceeding is to secure the presence of the accused charged of a crime at the time of the inquiry, trial and investigation before the court, and to ensure the availability of the accused to serve the sentence, if convicted. It would be unjust and unfair to deprive a person of his freedom and liberty and keep him in confinement, if his presence in the court, whenever required for trial, is assured.
Justice delayed is justice denied. This is more so in criminal cases where the liberty of an individual is at stake and in jeopardy. The irony of fate is that in all such cases, it is the poor and the week who are the victims of the criminal justice system, and not the rich who are able to get away.
The plight of undertrial prisoners for the first time came to the notice of the Supreme Court of India in the landmark case of Hussainara Khatoon v. State of Bihar in 1979, wherein it was disclosed that thousands of undertrial prisoners were languishing in various jails in the State of Bihar for periods longer than the maximum term for which they could have been sentenced, if convicted. While granting a character of freedom for undertrials who had virtually spent their period of sentences, the court said their detention was clearly illegal and was in violation of their fundamental rights guaranteed under Art.21 of the Constitution of India. The court further said that speedy trial is a constitutional mandate and the State can’t avoid its constitutional mandate and its constitutional obligation by pleading financial or administrative inability.
In Sanjay Suri , a trainee newspaper reporter initiated a public interest litigation by moving a writ petition in the Supreme Court of India to gather information about seven juvenile prisoners locked up in Tihar Jail, Delhi, whose conditions were reported miserable. The Court, after getting a thorough investigation conducted of the matter, came to know that the prisoners were living in pathetic conditions in prison and there was overcrowding in jail. The court accordingly issued a number of directions to the jail administration under the provisions of the Indian Prison Act, 1884 to undertake corrective measures, so that the prisoner could be provided with facilities available under the law and were not put to harassment and inhuman torture.
There is however, hardly any change in the condition of the jails and the attitude of the jail administration, and in spite of constitutional mandate for speedy trial, there are over two lakh prisoners, convicts and undertrials who are endlessly awaiting an early hearing of their cases.
It may be noted that the liberal remissions and grant of frequent paroles to the prisoners to spend time with their families would help to inculcate self confidence in prisoners and reduce the intensity of some of the prison vices.
As Kuldeep Singh and B.L. Hansaria, JJ said:
Unless there is introspection the part of all concerned with the criminal justice system, issues relating to jail reforms, improvement in the prisoner’s condition, and better administration of justice will continue to remain on paper. It is possible to reduce the backlog of criminal cases if the judiciary and lawyers together resolve to refrain from unnecessary and repeated adjournment.
Compensation to Victims of Crime
Criminal law, which reflects the social ambitions and norms of the society, is designed to punish as well as to reform the criminals, but it hardly takes any notice of by product of crime- i.e. its victim.
The poor victims of crime are entirely overlooked in misplaced sympathy for the criminal. The guilty man is lodged, fed, clothed, warmed, lighted, and entertained in a model cell at the expense of the state, from the taxes that the victim pays to the treasury. And, the victim, instead of being looked after, is contributing towards the care of prisoners during his stay in the prison. In fact, it is a weakness of our criminal jurisprudence that the victims of crime don’t attract due attention.
The code of criminal procedure, 1973, sec.357 and Probation of Offenders Act, 1958, sec.5; empowers the court to provide compensation to the victims of crime. However it is noted with regret that the courts seldom resort to exercising their powers liberally. Perhaps taking note of the indifferent attitude of the subordinate courts, the apex court in Hari Krishan, directed the attention of all courts to exercise the provisions under sec.357 of the Cr.P.C. liberally and award adequate compensation to the victim, particularly when an accused is released on admonition, probation or when the parties enter into a compromise.
No doubt in recent years, the Supreme Court and High Courts by invoking Art.21 of the Constitution have tried to give some compensatory relief to the poor victims of illegal detention at the hands of the executive. Such cases are, however, numbered and are not going to solve the malady.
COMPILED BY : DR ANTHONY RAJU
Sexual orientation and gender identity
Asia's first Genderqueer Pride Parade at Madurai with Anjali Gopalan. On December 11, 2013, homosexuality was criminalized in India by a Supreme Court ruling.
Sexual orientation and gender identity rights relate to the expression of sexual orientation and gender identity based on the right to respect for private life and the right not to be discriminated against on the ground of "other status" as defined in various human rights conventions, such as article 17 and 26 in the United Nations International Covenant on Civil and Political Rights and article 8 and article 14 in the European Convention on Human Rights.
As of 2011, homosexual behavior is illegal in 76 countries and punishable by execution in seven countries. The criminalization of private, consensual, adult sexual relations, especially in countries where corporal or capital punishment is involved, is one of the primary concerns of LGBT human rights advocates.
Other issues include: government recognition of same-sex relationships, LGBT adoption, sexual orientation and military service, immigration equality, anti-discrimination laws, hate crime laws regarding violence against LGBT people, sodomy laws, anti-lesbianism laws, and equal age of consent for same-sex activity.
A global charter for sexual orientation and gender identity rights has been proposed in the form of the 'Yogyakarta Principles', a set of 29 principles whose authors say they apply International Human Rights Law statutes and precedent to situations relevant to LGBT people's experience. The principles were presented at a United Nations event in New York on November 7, 2007, co-sponsored by Argentina, Brazil and Uruguay.
The principles have been acknowledged with influencing the French proposed UN declaration on sexual orientation and gender identity, which focuses on ending violence, criminalization and capital punishment and does not include dialogue about same-sex marriage or right to start a family. The proposal was supported by 67 of the then 192 member countries of the United Nations, including all EU member states and the United States. An alternative statement opposing the proposal was initiated by Syria and signed by 57 member nations, including all 27 nations of the Arab League as well as Iran and North Korea.
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Division : Sexual orientation and gender identity
Freedom from torture
Main article: Torture
Throughout history, torture has been used as a method of political re-education, interrogation, punishment, and coercion. In addition to state-sponsored torture, individuals or groups may be motivated to inflict torture on others for similar reasons to those of a state; however, the motive for torture can also be for the sadistic gratification of the torturer, as in the Moors murders.
Since the mid-20th century, torture is prohibited under international law and the domestic laws of most countries. It is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Geneva Conventions of 1949 and the Additional Protocols I and II of June 8, 1977 officially agree not to torture captured persons in armed conflicts, whether international or internal. Torture is also prohibited by the United Nations Convention Against Torture, which has been ratified by 157 countries.
National and international legal prohibitions on torture derive from a consensus that torture and similar ill-treatment are immoral, as well as impractical. Despite these international conventions, organizations that monitor abuses of human rights (e.g., Amnesty International, the International Rehabilitation Council for Torture Victims) report widespread use condoned by states in many regions of the world. Amnesty International estimates that at least 81 world governments currently practice torture, some of them openly.
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Division : Sexual orientation and gender identity
Right to a fair trial
Main article: Right to a fair trial
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
The right to a fair trial has been defined in numerous regional and international human rights instruments. It is one of the most extensive human rights and all international human rights instruments enshrine it in more than one article. The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right. Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms. The aim of the right is to ensure the proper administration of justice. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings:
the right to be heard by a competent, independent and impartial tribunal
the right to a public hearing
the right to be heard within a reasonable time
the right to counsel
the right to interpretation
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Division : Right to a fair trial
Freedom of speech
Main article: Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, such as on libel, slander, obscenity, incitement to commit a crime, etc. The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that "[e]veryone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice".
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Division : Freedom of speech
Freedom of thought, conscience and religion
Main articles: Freedom of thought, Conscience and Freedom of religion
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 18 of the International Covenant on Civil and Political Rights
Freedom of thought, conscience and religion are closely related rights that protect the freedom of an individual or community, in public or private, to think and freely hold conscientious beliefs and to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any religion. The freedom to leave or discontinue membership in a religion or religious group—in religious terms called "apostasy"—is also a fundamental part of religious freedom, covered by Article 18 of the Universal Declaration of Human Rights.
Human rights groups such as Amnesty International organises campaigns to protect those arrested and or incarcerated as a prisoner of conscience because of their conscientious beliefs, particularly concerning intellectual, political and artistic freedom of expression and association. In legislation, a conscience clause is a provision in a statute that excuses a health professional from complying with the law (for example legalising surgical or pharmaceutical abortion) if it is incompatible with religious or conscientious beliefs.
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Division : Freedom of thought, conscience and religion
Right to life
Main article: Right to life
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 6.1 of the International Covenant on Civil and Political Rights
The right to life is the essential right that a human being has the right not to be killed by another human being. The concept of a right to life is central to debates on the issues of abortion, capital punishment, euthanasia, self defense and war. According to many human rights activists, the death penalty violates this right. The United Nations has called on states retaining the death penalty to establish a moratorium on capital punishment with a view to its abolition. States which do not do so face considerable moral and political pressure.
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Division : Sexual orientation and gender identity