Tag Archive | Republic Day

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.

UNI MJ NK 1749

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India’s National Holidays Work For Employers ! – By Mukesh Jhangiani

                                                                                                                                       September 16, 2008

India’s National Holidays Work For Employers !

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Thousands of Indians in the nation’s Capital spent the Independence Day holiday on job, earning twice the wages and a day off as compensation– at least in law.

English: Rashtrapati Bhavan Illuminated on Rep...

Republic Day celebration (Photo: Wikipedia)

But, four weeks later, authorities have no clue how many get to collect the due wages, and how many, if any, don’t.

”We take action against errant employers under the law,” Delhi’s Labour Commissioner K S Wahi said in a telephone interview, but acknowledged ”certain gaps in the laws which must be covered.”

On the Independence day, the Department’s 30-odd Shop Inspectors went around some 130 establishments in the city checking for violations. The count won’t be in until another few days.

Experts point out that such a small number does not even qualify as much of a sample considering hundreds of thousands of units operating in India’s National Capital Territory.

Employment in shops, hotels, restaurants and eateries, theatres or other public amusement or entertainment establishments is governed under the Delhi Shops and Establishments Act 1954.

Enacted to ”consolidate” laws to regulate work hours, pay, leave, holidays and so on, it is one of two dozen Acts on matters ranging from minimum wage to gratuity the Department enforces.

The Act is enforced through 30 plus Shop Inspectors in nine districts of Delhi who function directly under respective district Deputy or Assistant Labour Commissioner.
Experts say the ”gaps” alluded to may have to do with inadequacies in the law and enforcement which let law-breaking employers get away.

Take the ”exemption” proclaimed by the Lieutenant Governor of Delhi in September 2004 to let shops do business as usual on three days in a year lawmakers have declared National Holidays.

By law, Indians are entitled to take the day off on: January 26, the Republic Day, August 15, the Independence Day, and October 2, Mahatma Gandhi’s birth anniversary.

But thousands of shops and call centres across the NCT keep working through those days– some because they have to, others simply choose to.

What if an employee wishes to celebrate a National Holiday ? What steps are taken to ensure that employees are paid the prescribed wage and compensatory holiday ? How many employers have been prosecuted in the last three years ?

When these and related questions were addressed to Delhi’s Lieutenant Governor Tejendra Khanna, his Principal Secretary R Chandramohan suggested these be put to the Labour Department.

Replying for the Department, K R Verma, Chief Inspector of Shops and Establishments, stated that an employee wishing to celebrate a national holiday must ”seek leave of absence from his employer”– in other words, no longer take it as a matter of right.

The issue is not holidays, it is labour law and enforcement.

How does a department with just 30 labour inspectors keep tabs on so many employers or millions of employees ?

Verma said ”the current thinking regarding securing compliance with laws is based upon the policy that most of the establishments comply with the law.”

The Department has not prosecuted any employer on this count or, indeed, under the entire 1954 Act in the last three years, Chief Inspector Verma told United News of India Special Correspondent Mukesh Jhangiani.

While commercial activity has mushroomed in most of the city’s residential areas, even hogging space meant for homes and street traffic, law or its rule have yet to catch up.

Wahi, for instance, could not say how many units do business in the NCT, as Delhi government stopped registering them almost two decades ago.

”Registration was mandatory under the Act prior to 23.11.1989 since when the same has been kept in abeyance,” a government website acknowledges.

Lawyers say they apply for registration on behalf of client firms only to secure a reply– often after repeated effort– that the process is on hold.

”We typically either do not get a response,” says advocate Diljeet Titus, ”or receive a note from the Chief Inspector stating ‘We acknowledge receipt of your application’.”

He says he applies to ensure ”no allegation of violation of the Act is made against the client in the absence of a registration.”

Section 37 of the Act empowers Inspectors to enter ”any… establishment,” examine the premises and records and take on the spot evidence so as to detect violations.

But a source said inspections have also been put on hold for ”four or five” years owing to short staffing and alleged corruption.

Complaints were made by some businessmen that authority was being abused to demand bribes, the source said.

Instead of cracking down on corrupt officers or businessmen, the city apparently chose to skip the drill provided in law to detect offences.

As to staffing, Verma disclosed that against 72 posts, the Department has barely 30 Shop Inspectors, and against 20 posts, barely nine Inspecting Officers. It doesn’t even have enough stenographers to transcribe orders, he said.

The induction of Delhi and Andaman Nicobar Islands Civil Services officers appears to have contributed complications of its own over professional qualifications, officials say.

So how does the Department enforce law ? According to Commissioner Wahi, the complaint of a labour violation has to come from the worker whose right is violated. ”We are here to take care of it.”

”On getting specific information regarding a violation,” said Verma, the Department ”investigates the complaint and decides the action to be taken in each case on merits.”

But experts say the odds of employees– waiters, salesmen, attendants or helpers– lodging complaints against employers, especially in prevailing market conditions, are low.

Even when a complaint is made, the processes are so set as to give employers ample opportunity to escape punishment.

Does the Commissioner’s office undertake to protect a worker victimised for filing a complaint ? For instance, what is the remedy if the employee is sacked.

Officials point to courts a worker may turn to.

Experts say courts may at best secure an employee’s unpaid wages.

But the costs, the time– years, decades– litigation takes, not to mention the tortuous risks and uncertainties it involves, make it impractical, even prohibitive.

An employee considering adjudication has to think about the next meal, rent or school fee ? What is worse is that the system offers little in terms of justice or deterrence against wrong.

Labour officers say they cannot go beyond the law, which often provides for petty, laughable fines– Rs 25, Rs 250, not revised in half a century.

But it turns out that even penalty law provides is seldom awarded by metropolitan magistrates who hear complaints.

For instance, Section 41 of the Act prescribes up to three months imprisonment for a false entry in office record.

But Labour officers, including N R Ahluwalia, who retired as ALC four years ago, said they could not recall a single instance in which an employer went to jail under the provision.

Experts acknowledge the dire need for clear laws, with strong deterrence in terms of mandatory punishment not just for violations, but for any lapse in enforcement at any level.

UNI MJ