Tag Archive | National Human Rights Commission

Drawing Line Between Trial And Punishment ! – By Mukesh Jhangiani

                                                                                                                          March 25, 2011

M. Veerappa Moila

M. Veerappa Moily (Photo: Nestlé)

Drawing Line Between Trial And Punishment !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – More than 300,000 under-trials were let out of custody after a special drive begun early last year but with new arrivals daily the number in prisons remains almost what it was– more than 200,000.

”Imagine the plight in absence of such an effort,” was how a senior government official responded when asked about the impact of the special drive, which, he pointed out, has been extended.

Article 21 of the Constitution lays down that ”No person shall be deprived of his life or personal liberty except according to procedure established by law.”

A statistic to bear in mind: roughly two out of every three prisoners in India are under-trials– only one is a convict serving sentence.

Doing Time, Doing Vipassana

Guilty or Innocent (Photo: publik16)

That, critics say, is a telling reflection of a justice system ostensibly committed to treating an accused as innocent until proven guilty.

For instance, 162 of 543 Members elected to Parliament in 2009 faced criminal charges as against 128 in 2004. Correspondingly, 76 and 58 of them faced serious charges.

Of 813 legislative assembly members in Assam, Kerala, Puducherry, Tamil Nadu and West Bengal, which go to the polls next month, 204 faced criminal charges, 83 of them serious charges.

Serious crime cases include those involving murder, attempt to murder, kidnapping, robbery and extortion.

The special drive was an initiative by Law and Justice Minister M Veerappa Moily to decongest prisons.

”We want to dispose of as many as two-thirds of the under-trial cases by July 31,” Dr Moily told journalists on Republic Day eve 14 months ago. ”The mission begins January 26.”

The exercise involved expediting legal process for some 200,000 under-trials as part of a National Mission for Delivery of Justice and Legal Reforms.

In a jurisprudence known to let even those accused of serious crimes get bail or get elected to legislatures, many under-trials are believed to spend longer in jail than their alleged petty crimes warrant.

By law anyone arrested has a right to be informed of any charges he or she faces, consult a lawyer of his or her choice and to be produced before the nearest magistrate within 24 hours of arrest.

Lawyers say that without legal aid, those who cannot afford bail inevitably suffer prolonged incarceration during the pendency of investigation by police and trial by a court.

Experts say they languish simply because they are illiterate, do not know their rights or charges they face, and cannot afford lawyers– although Rs 50 crores is spent annually on legal aid.

According to a National Human Rights Commission consultant, India’s prison capacity in December 2008 was 293,144 inmates, against which 386,791 inmates were actually in prison– 264,502 of them under-trials and 122,289, convicts.

While authorities have been acquiescing in the miscarriage of justice, the victims’ plight has, from time to time, evoked concern at home and abroad with critics assailing India’s tortuously slow courts.

India is bound by several international human rights conventions and for decades the government as well as courts have been aware of the violations.

An early official reference to the plight of under-trial prisoners came in the findings of K F Rustamji, a National Police Commission member, 32 years ago.

He saw under-trials as ”dumb, simple persons, caught in the web of the law, unable to comprehend as to what has happened, what the charge against them is, or why they have been sent to jail,” and prisons as a system ”slowly grinding thousands of people into dust.”

Indeed, the first public interest litigation– Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar… 1979– brought to light how undertrial prisoners had been in jail longer than if they had been charged, tried, convicted and given maximum punishment.

Supreme Court lawyers recall a September 1977 judgement by Justice V R Krishna Iyer who held that ”the basic rule may perhaps be tersely put as bail, not jail.”

Among exceptions he spelt out ”are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like.”

”It made clear that incarceration in the name of judicial custody and protracted or delayed trial is itself criminal as it hits at the very base of Article 21,” says advocate Ravi Prakash Gupta.

Eight years ago, National Democratic Alliance Law Minister Jana Krishnamurthy drew attention to the plight of more than 200,000 under-trials.

”It’s a shame,” he said, that in independent India men and women have to await their day in court for over ten years.

The yearly cost to public exchequer for under-trials upkeep was then estimated at Rs 4.6 crore.

Although under-trials’ guilt is yet to be proven, they remain in prison almost indefinitely.

Experts say unlike convicts, found guilty, they are not even entitled to such basics as uniforms, literacy lessons or work.

NHRC consultant Lakshmidhar Mishra says children and juveniles are worse off inasmuch as they are put up in regular jails with hardened criminals contrary to law for lodging them in police lockups or observation homes, which are neither adequate in number nor adequately equipped.

There was no let-up until about a year ago, when a move to cut two thirds of under-trial cases was announced by Dr Moily of the United Progressive Alliance.

Addressing lawyers on November 26, 2009, marked as Law Day, the Minister regretted the justice system’s failure to give every citizen equal protection of law.

”A necessary corollary to the guarantee of the rule of law is Article 14 of the Constitution,” Dr Moily reminded.

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

”Unfortunately,” he admitted that ”justice delivery system in its working in India has not been able to guarantee this protection to every citizen– man, woman and child.”

The government asked High Courts to identify under-trials not involved in heinous crimes or preventive detention so that their cases may be put on a fast track to expedite pressing cases.

The Indian Constitution guarantees speedy trial. But the commodity is routinely in short supply, with litigation often taking years, even decades.

Indian courts have close to 31 million cases pending, a factor that discourages justice seekers at home, investors from abroad, and has even judges advocating alternative ways of resolving disputes.

Hope may be hard to entertain given hundreds of High Court judgeships and thousands of lower judicial posts perennially vacant and inconsistent sentencing practices across India undermining the deterrent value of law.

Government figures show that there were 213,739 under-trials in prison as the drive got underway.

Over the next six months or so, only 43,504 were convicted and 50,282 discharged.

As many as 309,728 under-trials were released after having been kept in jails for unspecified periods.

About the same time, 399,115 new under-trials arrived in prisons across India, to wait for their day in the court.

Government data indicate that of 612,854 under-trials in prison for unspecified periods– ranging from a day to possibly several years– merely 7.09 per cent were actually convicted in those six months or so.

The figures made available do not, for instance, specify how long individuals spent in jail on what sort of charges before they were convicted, discharged or released.

Nor has there been a mention of compensating any who might have been jailed or held without basis.

Any compensation awarded by human rights or other authorities is discretionary, depending on how a given judge feels at the moment– hardly fair.

No compensation is mandated by the Indian Constitution or statutes for wrongful confinement.

In a telephone interview with United News of India special correspondent Mukesh Jhangiani, Dr Mishra called it ”a significant omission,” and agreed that a remedial legislation is needed.

But given the pace of legislation in India, remedies are neither swift nor easy.

The figures indicating that the number of under-trials in prison at the end of the drive was 212,454– just 1,285 less than at the outset– do not necessarily reflect a nationwide trend.

In 16 out of 27 States or Union territories for which the Justice Department has received figures, the numbers actually went up.

West Bengal led in this increase with 14,238 under-trials put into prisons while 9,337 were released, an increase of 4,901 under-trials in prison.

It was followed by Orissa, with an increase of 4,305, Rajasthan, 3071, Haryana, 1,737, Jharkhand, 1,726, Bihar, 1,550, Chhattisgarh, 1,516, Gujarat, 1,086, and Assam, 1,000.

Smaller increases were reported by Andhra Pradesh, 678, Punjab, 677, Kerala, 652, Manipur, 238, Tripura, 118, Himachal Pradesh, 107, Goa, 106, Nagaland, 69, and Arunachal Pradesh, 47.

One State which reported the highest decline was Uttar Pradesh which released 77,205 under-trials while putting in jail 55,287, an actual decrease of 21,918.

It was followed by Madhya Pradesh, where the number of under-trials in prison declined by 748, Karnataka, 643, Uttarakhand, 569, New Delhi, 356, Maharashtra, 257, Mizoram, 156, Meghalaya, 112, Sikkim, 58, Chandigarh, 11, and Daman and Diu, 1.

The Department had no figures immediately from Tamil Nadu, Jammu and Kashmir, Andaman and Nicobar, Dadra and Nagar Haveli, Lakshadweep and Puducherry.

The programme originally scheduled to end on July 31, ”is continuing,” Dr Moily told journalists a few weeks ago.

From citizens’ perspective locking up innocent, law-abiding individuals is as undesirable and indeed repugnant as letting crooks and lawbreakers roam free or shape laws or societies.

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Vedanta Workers’ Wage Struggle ‘Not Entertainable’ : NHRC – By Mukesh Jhangiani

English: NHRC logo

NHRC (Photo: Wikipedia)

                                                                                                           November 21, 2010

Vedanta Workers’ Wage Struggle ‘Not Entertainable’ – NHRC

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – India’s National Human Rights Commission has dismissed a complaint against authorities’ alleged inaction on human rights violations of workers of a multinational company in Orissa.

”Not entertainable” was how the Commission dubbed the complaint dated September 8, 2010 pertaining to an August 31, 2010 night incident at Vedanta Resources’ aluminium project at Lanjigarh.
The incident involved a hundred-odd policemen swinging batons at thousands of agitated unpaid Vedanta Resources workers, injuring 25 of them and throwing an unspecified number of them in jail.
”The root cause,” the complaint said was ”labour demanding its salary backlog… When workers were denied their arrears, they protested but failed to get their dues and landed in jails… implicated in criminal cases.”
The protest began in the evening after talks on paying minimum wages failed and workers were ”retrenched” instead, Orissa-born complainant Radhakanta Tripathy said.
Police baton-charged protesters ”as some of the workers forcibly entered Vedanta Aluminium’s administrative office and began to destroy property,” the complaint said.
Neither the complaint, nor some media accounts make it clear why Vedanta Resources– committed to investing Rs 36,000 crores to expand the project– allegedly chose to deny workers’ dues.
It is even less clear why the Orissa Labour Department had not intervened at the first sign of trouble.
Efforts to get the status from the Orissa government’s Labour and Employment department commissioner-cum-secretary have yet to bring a reply or an acknowledgement even after three weeks.
The complaint filed before the NHRC did not say how long the workers had remained unpaid, nor the amount the company owed. It simply urged the Commission to institute an investigation.
India has more than a hundred labour laws to ”protect” workmen and workwomen, but enforcement is another matter, subject often to delays and distortion at various levels or stages.
Several laws provide imprisonment for violators, but errant employers usually get away by paying paltry fines or bribing.
Employers seldom– indeed, if ever– do time in jail or pay punitive damages– no matter the laws, no matter the violations, no matter the suffering their victims undergo on account of their actions or inaction.

English: Vedanta Nagar Lanjigarh

Vedanta Nagar Lanjigarh (Photo: Wikipedia)

No matter, indeed, Article 14 of the Constitution Judges are sworn to uphold which provides that ”the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Critics say such circumstances may in effect encourage violations by making the breaking of the law a ”profitable” business proposition.
The government has reported that the Britain-based mining conglomerate has been denied permission to expand its Alumina refinery in Lanjigarh for allegedly having flouted norms at its existing works.
The violations reportedly adversely affected the lives of tribals and forest dwellers around Lanjigarh.
The 47-word order cited Section 36 of The Protection of Human Rights Act, 1993 read with regulation 9 of the NHRC (Procedure) Regulations 1994, as amended.”
”Hence, no action is called for and the file is closed,” the order by a Commission assistant registrar (Law) said, without specifying the cause of the disqualification.
Asked why the Commission does not clearly say why a complaint is dismissed, officials acknowledged the need to do so in the interest of transparency but offered no explanation.
Section 36 says the Commission shall neither inquire into any matter pending before a State or other Commission nor into an alleged violation after the expiry of a year.
While the 1993 Act is spelt out on the NHRC website, the 1994 Regulations are not as easily accessible.
Asked to clarify, NHRC joint registrar A K Parashar suggested checking with information officer Jaimini Kumar Srivastava, who cited a Website list of the sort of complaints not entertained:
— Violation committed longer than a year before;
— Matters sub-judice;
— Matters Anonymous or pseudonymous;
— Matters frivolous;
— Service matters.
Asked which of those criteria applied in this case, Commission assistant registrar A K Garg told United News of India special correspondent Mukesh Jhangiani a few days later that ”our policy is not to entertain industrial disputes. That is why the complaint was dismissed.”
UNI MJ SLD 0955