Archive for January 2014

Delhi law minister Somnath Bharti could be sent to jail for a term of one year on the charges of house trespassing. But this midnight raid certainly points out the urgent need to tone up the Immoral Traffic Prevention Act, even if we believe that those women were into sex trade.

SEARCH CLAUSE: Protestors demand the arrest of Somnath Bharti

The recent midnight raid at the house of a few African women in Delhi’s Khirki extension area by state law minister Somnath Bharti has caused widespread outrage. Bharti alleged there was a thriving prostitution and drug racket in that house and insisted on a raid without a search warrant. While the illegal nature of the minister’s act is beyond doubt — he could be imprisoned for a year for house trespassing — legal experts point out that the incident is also a violation of the Immoral Traffic Prevention Act (ITPA), 1986.

“Even though it is not yet proven if the women were prostitutes, the raid clearly brought out the prevailing mindset that prostitutes may be harassed at will because they are considered evil for society. It is shocking that even the law minister didn’t know that what he was doing was a violation of the existing prostitution law,” says Supreme Court advocate K.T.S. Tulsi.

The ITPA does not criminalise the practice of sex trade as long as it is done in private. Soliciting clients in public is considered illegal. The point, however, is that these women were not caught doing that.

“There was no evidence to suggest that any of these African women who were dragged out of their house that night was soliciting clients in public,” senior advocate Pinki Anand says.

Experts also point out that the ITPA does not allow the police to conduct a search without a warrant, something that Bharti had exhorted them to do that night.

A search without a warrant is allowed under Section 15 of the ITPA only if the special police officer or the trafficking police officer has reasonable grounds to believe that an offence punishable under the act has been or is being committed. But in this case, the cops didn’t have an iota of information about what was going on there. “The cops at the local police station didn’t even know what they were called for! How could they just raid a house like that,” a senior Delhi police official asks.

But even if the police were aware that unlawful activities were taking place in the house, a search without a warrant would have been legal only if two women police officers had accompanied them in the search, say experts.

“In the absence of women cops, the interrogation of the residents of the house should have been done only in the presence of a lady member of a recognised welfare institution. In this case, none of these things was done,” says Priti Patkar of the NGO Prerana in Mumbai that works for the rights of sex workers and the prevention of human trafficking.

What was done that night was nothing short of unbelievable. The women — one Nigerian and two Ugandan — have stated in their first information report (FIR) that Bharti and his men barged into their house at 3am. They added that they were assaulted by the crowd and were subjected to a cavity search during their medical examination at the All India Institute of Medical Sciences (AIIMS), which was a humiliating experience. They have also alleged that the minister and his people had asked them to give urine samples in public.

“Bharti could be arrested without a warrant under Section 41 of the Code of Criminal Procedure because a reasonable complaint has been made against him by the women,” says Tulsi. “He could also be imprisoned for a term of one year on the charge of house trespassing under Section 447 of the Indian Penal Code,” he adds.

Of course, harassment of prostitutes is nothing new in our country. Taking note of it, the Supreme Court in 2011 said that sex workers had the right to live with dignity. In their order in 2011, Justices Markandey Katju and Gyan Sudha Misra had said that sex workers were also “human beings” and nobody had the right to assault them and referred to several classics to underline the fact that a person did not become a prostitute by choice.

Later, a bench comprising Justice Altamas Kabir and Justice Misra said the court had from the beginning lay special emphasis on the rehabilitation of sex workers. Subsequently, a committee was constituted by a Supreme Court order to look into the prevention of trafficking, the rehabilitation of sex workers who wished to leave sex work, and the creation of conditions conducive for them to live with dignity in accordance with the provisions of Article 21 of the Constitution.

“Creating a conducive environment for sex workers to let them live a life with dignity is the least that we can do,” Patkar stresses.

Indeed, after the Criminal Law (Amendment) Act, 2013, which keeps sex workers out of the purview of punishment, there is now a demand for doing away with Section 8 of the ITPA that punishes sex workers for soliciting in public. “Section 370 of the amended act supersedes the ITPA. It is based on the UN protocol to prevent, suppress and punish trafficking in persons, especially women and children. It decriminalises the victims. So we want the ITPA to be made defunct,” says Ruchira Gupta, who runs the NGO, Apne Aap Women Worldwide.

That demand is bound to gain momentum. For, examples of police harassment of prostitutes abound. In fact, sex workers often get picked up by the police on the charges of committing nuisance.

Patkar points to the regular harassment of prostitutes in Mumbai. “Since lodging an FIR under the ITPA is cumbersome, sex workers in Mumbai get picked up under Section 110 of the Bombay Police Act for behaving indecently in public. We need to change this attitude towards sex workers.”

Others say that the answer lies in the legalisation of prostitution. “These outdated laws concerning prostitution are the biggest problem in society. Prostitution should be legalised to save a large section of women from being exploited and harassed,” Tulsi says.

Until that happens — or at least until the IPTA decriminalises sex work — men like Somnath Bharti may be counted upon to charge any woman who does not conform to their personal ideas of morality with prostitution — and heap harassment upon her.

Let them live with dignity

Rahul Gandhi smiles at the world from huge billboards lining the dusty and pot-holed roads of Amethi. But there is a stranger in town who vows to wipe out the smile. And that’s a little known poet called Kumar Vishwas.Kumar is likely to be fielded from the Gandhi pocket borough by the Aam Aadmi Party (AAP) in the 2014 general election. And the 43-year-old outsider is doing all he can to strike a chord in the heart of the eastern Uttar Pradesh town. “I have come here to listen to you,” he says, addressing some 300 people in the Salon area of Amethi.

While Gandhi has been busy addressing Congress members in Delhi, Kumar is canvassing hard in Amethi. He starts his day at seven in the morning, and his cavalcade of four cars — with Vishwas in a white Scorpio — weaves its way through the town, stopping every now and then to address meetings in a constituency that Gandhi has won twice, and which was earlier represented by his uncle, Sanjay, his father, Rajiv, and later, his mother, Sonia Gandhi.

Kumar’s plank is that of lack of development. “People of Amethi are angry with Rahul Gandhi because there has been no development here,” he says.

Indeed, the people do have a litany of complaints. Amethi — which comprises the five Assembly constituencies of Tiloi, Salon, Jagdishpur, Gauriganj and Amethi — has an average literacy rate of 39 per cent, far lower than the national average of 59.5 per cent.

Though there are six government colleges in Amethi, no new college has come up in the 10 years since Gandhi’s first election from Amethi in 2004. A new extension campus of the Indian Institute of Information Technology (IIIT), Allahabad, has been opened, but locals complain that it doesn’t help them.

  • Winning turf : Sunita Kori (left) with Kumar Vishwas

“Admissions take place in Allahabad. And there is no reservation for us,” Deepak Sharma, a 23-year-old unemployed science graduate, rues.

As Kumar meets people in village corners, they crowd around him to complain about unemployment. In recent years, factories of LML Vespa, Usha Rectifiers and Samrat Bicycles have shut. Only a few companies remain, notably Hindustan Aeronautics Limited, Associated Cement Companies Limited and Indo Gulf Fertilisers.

It was only last year that the foundation of the 67km-long Unchahar-Salon-Amethi rail line was laid by Rahul Gandhi. Last year, he also announced the setting up of 140 food processing units in the Jagdishpur Industrial Area and a paper mill in Amethi. But the locals are not sure if they will get jobs.

“With no new projects, we don’t even get work under the Mahatma Gandhi National Rural Employment Guarantee Act. So what will these government investments do for us,” Mohammed Arif, a resident of Bhadar village, asks.

Kumar is making the most of the resentment. “Do you see any development in your village,” he thunders. “Where are the roads? Where is electricity? Don’t you think you should question your parliamentarian?”

You can see that the people are drawn to Kumar, who peppers his speeches with colloquial Hindi words and barbs, and bits of poetry. He makes fun of the dynastic rule of the Gandhi family by referring to Rahul as babua (a nickname for small boys) and Yuvraj (Prince). “You may not be able to meet your Yuvraj but I will be there for you. I will be your slave,” he says.

Though new to politics, Kumar, clearly, is a shrewd politician. He praises Rajiv Gandhi — for the people of Amethi still hold him in reverence — while pulling down his son. And he knows that in Amethi, Muslims account for 13 per cent of the total 12 lakh votes. His mission now is to assuage the fears of Muslims, perturbed by his anti-Islamic remarks of 2005.

Of course, a lot of his rhetoric is borrowed. He uses the message of an old poster for secularism by pointing out that Ramzan, the Muslim period of fasting, starts with the name of Ram, while the Hindu festival Diwali, ends with the name Ali.

The Dalits, comprising 28 per cent of the total vote, are another constituency he focuses on. He visited Sunita Kori, a Dalit woman with whom Gandhi had shared a meal in 2008, and in whose house he had spent a night. “Rahul Gandhi ate at a Dalit’s house and advertised it widely. But did he invite any Dalit to his house,” Kumar asks.

It looks like a clever political strategy to call on the woman Gandhi had charmed. But Kumar insists that it was just a coincidence. “When I was passing by the village, someone pointed out Kori’s house. So I stopped to see how she was doing,” he says. “I was very surprised to find that she was living in a pathetic condition. She neither has a roof over her head nor does she or her husband have a job. I have promised her that we will pool in money to put an asbestos roof.”

Kori seems impressed by Kumar, and disillusioned by Gandhi. A mother of three, she managed to meet Rahul only after repeated attempts last year. “But I was shocked that he didn’t even recognise me. Nor did he offer any help,” she says.

Qattar Singh of Salon is not charmed by Gandhi either. He points out that one of the major problems that the people of Amethi face is that Gandhi is inaccessible. “He comes and goes. But we never get to tell him our problems. His security officers never let us go near him,” Singh complains.

But Amethi has its share of Gandhi family loyalists too. “If anyone can do any good to Amethi, it is the Gandhis,” says Radhey Shyam Tewary, a history professor in Amethi’s RRPG College.

Local Congressmen are doing their bit to counter Kumar. He was recently attacked by his political opponents for praising Gujarat chief minister Narendra Modi in a symposium a few years ago. “In poetry sessions, we often say good things about the chief guests. I was not political when I said all this,” Kumar replies.

The man from Pilkhuwa in Hapur, however, misses being a poet. “I used to do political satire in my shows. I would make fun of Atal Behari Vajpayee and even Manmohan Singh but I have stopped because it might lead to controversy,” he says, popping peanuts into his mouth, while his car takes him to the interiors of Amethi.

There is nothing to show — even physically — that the constituency has powerful patrons. The town is crowded like most small towns, and the villages — with thatched huts — look like time has passed them by.

He hops out of his car near one such village. A small child calls out his name, and Kumar stops. “Tell your parents not to vote for Rahul Gandhi because he has not done his homework,” he says, as the crowd bursts into loud cheers.

It doesn’t look like he has stirred up a wave in Amethi, but he may have converted some voters. “We voted for Rahul because we didn’t know anyone. Now we have an option,” schoolteacher Satyam Piyush, 23, says.

But senior Congress leaders such as Rammurti Shukla hold that the charm of Kumar will vanish in no time. “People gather to listen to his poetry. At the end of the day, they will vote for the Congress,” Shukla says. “Kumar should understand that it is a political battle and not a mushaira (poetry session).”

The going has not been all that easy for Kumar. Eggs were hurled at him at some meeting. Somewhere people threw ink. But Kumar is not giving up the battle. “If I want something in life, I make all the effort to get it. It will happen this time too,” he says.

( This was published in The Telegraph, January 19, 2014)

The heat’s on, my lords

The Indian judiciary is under attack like never before — be it over the recriminalisation of homosexuality, its position on the charge of sexual harassment against retired Supreme Court judges and a host of other decisions that do not seem to match the people’s expectation of a forward-looking judicial system. Are our courts out of step with the times?

The pink-and-white sandstone structure that houses the Supreme Court of India exudes an air of confidence. Its long corridors, stately pillars and manicured lawn all underline a body in power. For long years, in fact, it has been the temple of last resort.

The times have changed. Suddenly, the apex court — which once could do no wrong — is under fire. Judges are being questioned, some judgments condemned and the judiciary is in the dock.

Consider this:

On Saturday, newspapers named a retired Supreme Court judge who had been accused of sexually harassing an intern in 2011.

Earlier this week, retired Supreme Court Justice A.K. Ganguly resigned as chairman of the West Bengal Human Rights Commission after another intern alleged sexual harassment. Her charges had earlier led the Supreme Court to constitute an enquiry committee.

And it’s not just the behaviour of judges that has come under fire. A recent Supreme Court judgment upholding Section 377 criminalising same sex relations has been roundly denounced.

Once, the judiciary was looked upon as the strongest pillar of Indian democracy. No longer. In the past few years, it has been ensnared in controversies ranging from issues related to judges taking bribes to favouritism in appointments. And people are asking questions.

“There is general cynicism regarding public institutions. It is not surprising the court should also get adverse comments,” social scientist Dipankar Gupta says.

Questions are emerging from within as well. In an unprecedented move last month, additional solicitor-general Indira Jaising made public the affidavit filed by the intern in the Ganguly case, demanding his resignation. Ganguly in turn wrote to the Chief Justice, complaining about a “concerted move” to “tarnish” his image. Jaising said on Friday that she was going to take the second intern’s case to its “logical” conclusion.

  • UNDER FIRE: Retired Supreme Court judge A.K. Ganguly

“One of the four walls of democracy is crumbling,” senior advocate Anand Grover holds.

The growing influence of the common man’s frustrations, coupled with relentless media campaigns, has increased the pressure on judges across the country. “The India of today wants an answer to everything. It doesn’t really understand the dos and don’ts of the rulebook. It questions the rulebook instead,” contends Ashum Gupta, professor of psychology, Delhi University (DU).

Indeed, many believe judges — from the apex court to the smallest of courts — can no longer ignore the growing popular resentment. “For an ordinary man, a wrong is a wrong. He doesn’t care about the stature of the person or the institution in question,” professor of law and former Delhi University vice-chancellor Upendra Baxi reasons. “If he is raising slogans against an alleged rape by an ‘ordinary’ citizen, he can also take to the streets in protest against the alleged sexual harassment by a retired Supreme Court judge.”

The spread of the social media has also turned the heat on judges. Twitter and Facebook zero in on comments made by judges. The Supreme Court ruling on homosexuality was derided on these sites over several days, as were a Delhi judge’s recent comments on pre-marital sex and rape.

Additional sessions judge Virender Bhat had observed that pre-marital sex was “immoral” and against the “tenets of every religion”. The same judge, while hearing a similar case in October, had said: “They (women) voluntarily elope with their lovers to explore the greener pastures of bodily pleasure, and on return to their homes, they conveniently fabricate the story of kidnap and rape in order to escape scolds and harsh treatment from the parents.”

Former Supreme Court judge Santosh Hedge says he is not surprised by the sentiments against the judiciary. “If people are criticising the judiciary, the latter has given it every reason to do so. The judiciary should realise the shortcoming of the system, from corruption to long delays in judgments,” he says.

While delays in court proceedings have upped the levels of antagonism against courts (last month, the Gujarat government granted the Nanavati Commission probing the 2002 post-Godhra riots its 21st extension), one of the real reasons for the public ire is the growing perception of corruption.

In 2008, former Punjab and Haryana High Court judge Nirmal Yadav was accused of receiving nearly Rs 2 crore for passing favourable judgments in four cases. In 2010, the names of 26 members of the judiciary in Uttar Pradesh came up in the multi-crore-rupee provident fund scam, with the accusation that they had siphoned off money earmarked for the provident funds of workers.

In September 2010, former Union law minister and senior Supreme Court lawyer Shanti Bhushan told the court that at least eight of 16 chief justices of India (CJI) were “definitely corrupt” — kicking up a storm.

Many believe the time has now come for the judiciary to deal sternly with corruption within — and healthily with criticism from outside. A senior retired judge gives the example of the Spycatcher scandal in Britain. The book, written by a former British spy, was banned by the government, and the ban was judicially upheld. A British newspaper carried a photograph of the judges with their feet up, and the caption: You fools. No action was taken against the daily.

In India, there is always the fear that criticism will lead to contempt of court, and a subsequent prison term. In 2007, three journalists and the publisher of an English tabloid were sentenced to four months in jail by the Delhi High Court for carrying reports that accused a former Chief Justice of India of corruption. In 2002, the Supreme Court issued a suo motu contempt notice to writer Arundhati Roy for her comments against the judiciary, sentencing her to a one-day “symbolic imprisonment” and a Rs 2,000 fine.

There is now a growing belief that the power to initiate contempt proceedings should be abolished. “Such powers do not exist in other jurisdictions such as in the US and in Europe. In the UK too the use of this power has become obsolete,” Baxi says. “The Indian judiciary should understand that they cannot be spared criticism.”

Contempt proceedings have to be done away with because judges, many believe, have to be questioned — and controversial judgments discussed threadbare. Baxi had questioned Supreme Court judges in 1979 in an open letter after the court acquitted two policemen of custodial rape in the Mathura case. The questions — and the outrage that the acquittal triggered — led to amendments to rape laws.

Another way to clean the system would be by ensuring that judges who are selected for senior posts are known for their integrity. The present system — a collegium of senior judges choosing other judges for the Supreme Court — has been criticised for promoting favouritism and overlooking integrity.

“It is one cosy club where decisions are taken by the same group of people,” Grover says. Appointments to higher courts in countries such as the UK and South Africa are finalised through independent commissions, he points out.

Experts say that the present system of impeachment too needs to be reworked to deal with corruption sternly. Supreme Court judges so far can only be removed through impeachment by Parliament.

Also under attack is the system of appointing Supreme Court judges to high posts after retirement. According to a news report, 18 of the 21 judges who’d retired from the Supreme Court since January 2008 had been given top posts in government commissions and tribunals. BJP leader and lawyer Arun Jaitley had earlier mooted a two-year cooling off period for judges before they could take up post retirement appointments. But there were few takers for this.

Many hope that the situation will look up once the Judicial Standards and Accountability Bill is passed. The bill seeks to replace the collegium system of appointment with a Judicial Appointments Commission for appointment and transfer of Supreme Court and high court judges. Moreover, under this bill, judges will be required to declare their assets and liabilities.

The bill also establishes the National Judicial Oversight Committee, a Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of “misbehaviour”.

Not surprisingly, not everybody in the judiciary has welcomed this with open arms. Some judges have argued that the bill interferes with the independence of the judiciary. The harsh arc lights on judges and rulings are also being viewed as a form of unwarranted interference.

“I don’t understand who stands to gain by criticising the judiciary,” says former Chief Justice of India Altamas Kabir. “This criticism will only serve to undermine the authority of the Supreme Court and affect the role assigned to it under the Constitution. Only such persons who wish to see a weak and pliant judiciary can support such a trend.”

Yet many of those questioning the judiciary are not arguing for a weak justice system. Ironically, the judiciary is seen as strong and interventionist when the executive — or the government — is seen to be weak. On the other hand, when the executive is strong, the political class often comes down heavily on the judiciary.

A balance between the two is the answer. “In a democracy, ideally, the two pillars — the executive and the judiciary — should criticise each other for perfect balance. But our situation is tricky — we have a weak executive and an overstepping judiciary,” says senior Supreme Court advocate Pinki Anand. “Our society is in peril.”