Tag Archive | West Bengal

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

A 21st Century Dark Age Cries Out For Rule Of Law ! – By Mukesh Jhangiani

                                                                                   March 02, 2004

Persecution of witches

Persecution of ‘witches’ (Depiction: Wikipedia)

A 21st Century Dark Age Cries Out For Rule Of Law !*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Lives of helpless women branded as witches by men out to exploit them left a woman cop-turned-international civil servant almost speechless.

After watching a two hour film titled Jeet, Kiran Bedi said it made her wonder what she was doing flying to New York when there is so much to be done here.

Bedi, currently United Nations Civilian Police Adviser assigned to helping bring rule of law to UN Peacekeeping, was in New Delhi the past week. Almost impulsively she remarked that is work and service, too.

Efforts to quell complex conflicts over the past decade appear to have finally brought home to the UN that for peace to sustain, rule of law must be established first. To that end, the role of police officers– domestic and global– has taken on growing significance in the mandates of UN peacekeeping missions.

Rule of law– or its absence– was also the theme underlying the film at hand sponsored by the Human Resource Development Ministry’s National Literacy Mission screened at Habitat over the weekend.

It tells the story of a widow and her teenaged daughter preyed on by a village head and his henchman who is a ‘witch-doctor’ or ojha.

Both women are branded witches. One is burnt, the other dragged into the forest and gang-raped.

Emancipation comes from exposure to education brought to the village by a journalist-turned-teacher who exposes the exorcist with the help of a professional magician.

India, said Bedi, is broadly three worlds. At one end of the spectrum is the Infosys world, at the other, this. ”In between,” she told audience, ”it’s us.”

Clearly, she went on, there is a lot to be done. Watching the movie made her wonder how many times she would have to be reborn to do it all, she said.

English: Witchmonument at Anda, in Gloppen, No...

Witch-hunt outlawed and consigned to history – a Norwegian monument in memory of victims (Photo: Wikipedia)

Another viewer, former Information and Broadcasting Minister Vasant Sathe, said he felt impelled to look within and think of superstition that abounds among India’s educated even in the 21st century.

According to film-maker Lavlin Thadani, witch branding takes a toll of several hundred victims year after year in Bihar, Jharkhand, Madhya Pradesh, Andhra Pradesh, West Bengal, Uttar Pradesh, Gujarat and elsewhere.

The problem is a manifestation of failure to deliver on several fronts– education, health care and law and order.

”Violence against women is part of rural life, resorted to by the upper castes to keep the disadvantaged under economic and social subjugation and inflict political lessons,” she said.

”It is one of the ways for preservation of caste structure and upper caste hegemony, witch branding just being a cover for exploitative social arrangement.”

In absence of a proper medical support system, tribal communities rely on ojhas for magic spells to cure the sick. They enjoy power over the community. Many illnesses run their course and disappear.

When their mumbo-jumbo or potion fails to relieve a patient, a scapegoat is found, invariably in the poorest and most vulnerable women. Whether it is tuberculosis or any other virus, villagers readily believe it is a result of witchcraft.

At times, ojhas are used to target widows or single women who come into property or land. At times, because a woman has spurned a man’s advances. Given high levels of morbidity, blind faith and greed, ojhas have little trouble making a living.

Women accused of witchcraft are hounded, dragged into the forest and hacked, hanged or burned to death. Their teeth are knocked out, heads shaved or breasts chopped off, or they are forced to strip and walk naked through villages– anything to wreck their spirit.

Laws have been enacted but seldom result in convictions. Bihar, notorious in the matter, was reported to have passed a tough law requiring a three-month prison sentence for so much as calling a woman a witch.

One woman branded a witch by relatives, expelled from the village and rejected by her husband, fought back. She sued her kin, who were found guilty. The judge let them off as first-time offenders.

UNI MJ KS

Workers – Not To Be Toyed With ! – By Mukesh Jhangiani

                                                                                                            December 01, ‎2011

Labour law concerns the inequality of bargaini...

Labour law concerns the inequality of bargaining power between employers and workers (Photo: Wikipedia)

Workers – Not To Be Toyed With !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A retiring High Court Chief Justice is paid a High Court Judge’s pension. The mistake is rectified– but not before a 15 year court battle.

An Indian Institute of Technology professor invokes his Right to Information– to know why his gratuity is withheld.

After a Japanese executive kicks a worker and tosses the turban of another one, 3,000 employees at a Gurgaon plant form a union– prompting dismissals. Protest brings brutal thrashing from Haryana police in full view of news cameras.

Fired en masse, 362 union-led newspaper employees spend 20 months in Delhi High Court without relief– only to start afresh before a labour tribunal.

Tens of thousands of farmers persuaded to borrow for modern tools, chemicals and seed incur a crop of debt they cannot cope with– and end their lives.

Hired on merit, a scheduled tribe teacher harassed at work goes to the Central Administrative Tribunal, the Delhi High Court and the Supreme Court– her battle and hounding cut short by her death in the premature delivery of a stillborn.

Those are some glimpses of what India’s so-called strong labour laws are doing for– and to– some of its officially counted 400 million workforce Prime Minister Manmohan Singh calls ‘toiling masses’.

Labour and Employment Ministry officials say India has 154 labour laws to ensure welfare of roughly 30 million organised workers and 370 million unorganised workers, including some 250 million farmers and farm hands.

Set up 36 years ago to research labour issues, V V Giri National Labour Institute has yet to produce a comprehensive study of workplace disputes, their causes and outcomes– that might have shown the way to reform.

As in instances cited at the outset, those guilty of making life miserable for some of India’s workmen and women seldom suffer personal consequences under the law.

That, experts acknowledge, defeats right there a key purpose of any legal system– to deter crime by instilling the fear of law in potential offenders.

“Where we fail is in punishing our crooks or offenders,” says former Calcutta High Court Chief Justice D S Tewatia, stressing the urgency of reforms to remedy the situation.

Knowing, for instance, that the worst consequence of denying employees’ wages is having to pay after 10 or 15 years, employers may take such recourse capriciously at the slightest pretext or even without any.

Quite unlike elsewhere in the civilised world, employers in India do not face jail or hefty punitive damages that may make them behave.

In the United States, for instance, former Enron chief executive Jeffrey Skilling was given more than 24 years in prison for fraud and conspiracy involving more than US40 billion dollars debt, thousands of lost livelihoods and duped clients.

Before sentencing, an outraged Enron employee of 17 years, Kevin Hyatt, had asked the judge to ‘send a message’ to other corporate executives by giving Skilling the maximum sentence.

About labour legislation in India, a Western expert observes with an almost audible smirk, ”these laws are of little broad significance. They have long been circumvented in practice in most areas of the economy.”

Such laws as Workmen’s Compensation Act 1923, Contract Labour (Regulation and Abolition) Act 1970, Industrial Disputes Act 1947, Factories Act 1948 and Minimum Wages Act 1948 provide imprisonment for violators.

But strangely the option to invoke those provisions is controlled by government officials.

Headquarters of the International Labour Organ...

International Labour Organisation – Presiding (United Nations Photo)

For any harassment they inflict on employees, employers cannot be prosecuted on those counts without express sanction of labour inspectors or commissioners.

Here are some examples:

— Workmen’s Compensation Act 1923 section 18A(2): No prosecution under this section shall be instituted except by or with the previous sanction of a Commissioner.

— Industrial Disputes Act 1947 Section 34(1): No Court shall take cognisance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate government.

How that works out on the ground was indicated when Lok Sabha Members Sunil Khan, Basudeb Acharia, Amitava Nandy and Gurudas Das Gupta drew attention to labour law violations some years ago.

The Labour Ministry gave data on the violations handled in 2003-04 and 2004-05 by the Central Industrial Relations Machinery headed by the Chief Labour Commissioner.

Of 9,826 and 9,538 disputes received under the IDA, for instance, 3,533 and 3,583 were settled while ”FOC– failure of conciliation–reports (were) submitted” in 4,276 and 2,743 disputes respectively.

The Ministry gave no account of how many violators, if any, went to jail.

“The Ministry and its machinery should be protecting labour– not employers,” was how Acharia, a Communist Marxist MP from Bankura, West Bengal, put it.

Asked then if he knew of any case in which an industrialist has had to go behind bars for breaking labour laws, Acharia said, “not one.”

As it is, given poverty and unemployment on one hand and the state of law and courts obtaining on the other, employees find themselves between a rock and a hard place.

The reverse appears to hold for affluent industrialists. Matters are filed in courts where they take years before it is time for appeals and more years.

How workmen or women survive without wages or relief may be hard to grasp for authorities not familiar with such hardship.

Thus it is that workers lose jobs while employers keep running industries and establishments– unmindful of consequences not in evidence. There is little to deter employers’ misconduct.

A published source says even West Bengal, the left bastion, saw 274 lockouts in 2000, more than half– 143– declared to reduce workforce on “the pretext of loss of economic viability.”

Short of sound laws and implementation, half measures abound.

The Institute of Company Secretaries of India proposed some time ago requiring independent professional assurance from practising company secretaries on labour law compliance.

But critics stress the importance of sound labour laws and effective enforcement.

Experts point out how professional auditors have for decades approved accounts without raising an eyebrow– while Swiss numbered accounts of Indians have grown.

Given such facts or data, it may appear natural that workers representatives agitate to rectify things.

Strangely, it is employers’ associations which have been demanding greater facility to hire and fire employees, a Labour Ministry statement noted some time ago.

“The employers have been vehemently pressing for labour reforms on the plea that these are necessary for making Indian industry globally competitive and for attracting more of foreign direct investment.

“The existing laws, it is contended by employers, slow down growth and job creation. They say that under the existing labour laws the churning of new skills is slower; companies lose cost cutting flexibility and ability to bounce out of recession quickly.

“The employers further contend that Labour Market will become more flexible with the amendments; more workers can be hired legitimately and can ask for better benefits including better work conditions, safety standards, welfare measures and health benefits,” the statement said.

Some of these arguments are backed by such institutions as the World Bank.

But critics ask how governments reconcile promises to workers of more jobs with bigger pay packets and better work conditions with promises held out to foreign investors of abundant cheap and skilled labour.

English: Official Portrait released by the Off...

Labour & Employment Minister Mallikarjun Kharge (Photo: Wikipedia)

At a conference in New Delhi, WB experts spoke of better work contracts.

Asked who will fix a contract if an employer breaks it, the experts promptly replied: the Courts.

Asked if it was fair for employees to have to go through years of litigation for wages of their work, the experts conceded the incongruity of the situation and spoke of judicial reforms.

They argued that reforms would follow in the legal system as pressure builds up. But that, critics say, is like putting the cart before the horse, especially considering some recent trends in labour-related adjudication and judicial orders.

On the other hand, experts say it is important to note that the associations seeking to change the rules are made up of industrialists who are themselves often subsidised by taxpayers in any number of ways.

Apart from receiving concessions in tax and costs of land and other public resources, many have been notorious in building up lakhs of crores of rupees of India’s Non Performing Assets– a euphemism for unrepaid loans.

Unlike tens of thousands of debt-ridden farmers who end their life unable to face the ignominy, no one appears to have heard of NPA defaulters making such choices.

Experts agree that the government must strike a balance. Citizens must not only be proclaimed to be equal, they must also be treated as equals. Just as workers must work, so must employers manage properly and pay wages.

Any failures or abuses, including manipulation of unions, must lead to consequences, they say.

Laws and fora must be put in place or firmed up to deliver justice in time– not at leisure, experts say.

UNI MJ TBA RP 1454

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