Thursday, April 15, 2010
HAQ : Centre for Child Rights: Article in the Hindu on the report on mining and children
http://www.hindu.com/mp/2010/04/15/stories/2010041550390300.htm
Article in the Hindu on the report on mining and children
http://www.hindu.com/mp/2010/04/15/stories/2010041550390300.htm
Caught in the quagmire
A Delhi-based NGO has spearheaded a study on the plight of children in the mining industry. SANGEETA BAROOAH PISHAROTY brings you the details
Photo: A Roy Chowdhury
Childhood in pits A large number of children work in our mines and quarries without any facilities
Children have always been at the receiving end of many of our flawed policies. There has always been a wide gap between what should be and what it is the reality. Here, one is talking about our mining and quarrying industry where this gap is way wide. According to the 2001 Census, 45,135 children between the age group of five and 14 years, and 206,720 between five and 19 years, are employed in the industry. “The number is much more than what the Census quotes,” points out Enakshi Ganguly Thukral, co-director of the Delhi-based NGO Haq. Enakshi is part of a comprehensive study recently conducted by Haq: Centre for Child Rights in partnership with Dhaatri Resource Centre for Women – Samata and Mines, Minerals and People Alliance. Supported by Terre Des Hommes, Germany, AEI and ASTM Luxembourg, the study called “India's Childhood in the Pits – a Report on Impacts of Mining on Children in India, was carried out in eight States and took the organisations about a year to complete it. Enakshi says the results are startling but adds that the Ministry of Mines is not the only department which is responsible for their situation. “It needs to be addressed by other departments like child welfare, education, tribal welfare, labour and environment. Without such a convergence, the mining child falls through the gap.” Here, Enakshi takes a few questions on the report.
What triggered the study?
In April 2005, HAQ, Samata, M.V. Foundation, Campaign Against Child Labour (Karnataka) and along with several other organisations carried out a fact-finding mission in the iron ore mines of Bellary where they found huge number of children living and working in hazardous conditions. When the report was put out, and particularly after National Human Rights Commission took suo moto cognisance of it, it was dismissed as emotive, non-factual, exaggerated, etc.
This latest study was conceived in follow up to that, and is the first study of its kind in India, looking not only at child labour in the mines, but the multitude of other ways in which children are impacted by mining such as on their health, education, living conditions, etc.
Which States has it covered?
The study covered numerous mining sites in 18 districts across Andhra Pradesh, Rajasthan, Orissa, Jharkhand, Chhattisgarh, Karnataka, Maharashtra and Madhya Pradesh. In Orissa, we undertook case studies in a number of different sites as it is a State most impacted by mining and has been the focus of further mineral expansion.
What are the findings?
One important finding of the report is that the Government's policies related to mining and related processes do not address the specific rights and entitlements of the mining children. Also, that the mining areas are more vulnerable to child malnutrition, hunger and food insecurity. By being displaced, homeless or living in inadequate housing conditions, they are forced to drop out of schools and become vulnerable to abuse and trafficking and are recruited for illegal activities by local mafias.
Besides, the mining regions have a large number of children working in the most hazardous activities. Large-scale mining activities are mainly in Adivasi areas and the Adivasi childred are losing their Constitutional rights under 5th Schedule due to displacement, land alienation and migration by mining projects. The mining Dalit children are suffering too.
Are the children employed at the mines mostly from migrant families?
The children are from a mixture of local and migrant families. Migration and mining go hand-in-hand, due to the seasonal nature of the work and market fluctuations in demand for minerals. Large numbers of migrant families were found in many of the mining areas visited, e.g. in Pune district of Maharashtra. However, local children are often employed in the sector, particularly after their families have become displaced or lost agriculture land for mining, e.g. in Orissa.
Is it only poverty that is responsible for child labour in the mining industry?
A number of factors are responsible for child labour in the mining industry. Loss of land /displacement leads to children being forced out of school and into work. Low wages and indebtedness of their parents (often also engaged in mining work) means that children are forced into work in order to help their families survive. In the majority of areas visited, illness of parents also paid a key role in child labour. After a number of years of working in mines, their parents were falling sick with TB and silicosis, which meant that their children had to drop out of school and become ‘breadwinners'.
Approximately how many children are employed in the mining industry?
This was not a Census survey…only a proper census on each and every mining site or quarry across the country will give us an exact figure. Given that the existence of child labour in mining is often even denied (as we can see from answers raised on this issue in Parliament, wherein the concerned Minister has replied saying that there were no children in mining as it is banned by law.), it is clearly impossible to estimate how many children are working in mining and quarrying sector and its allied activities.
How will the report be used in the advocacy of the issue?
The report has already been shared with the Ministry of Mines and some ther Government departments. The Secretary for Mines was a panellist at the report's launch on March 22 in New Delhi. She has promised to take some of the suggestions. She has also invited the research team and others to feed into the process that the Mines Ministry has initiated for amending the Mines Act as well as the development of a sustainable development framework.
A National Consultation on Children and Mining took place in Delhi on March 22 and 23, which brought together organisations working on mining and groups working on child rights. It is hoped that these groups will continue to work together to ensure that mining children no longer continue to be neglected.
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Caught in the quagmire
A Delhi-based NGO has spearheaded a study on the plight of children in the mining industry. SANGEETA BAROOAH PISHAROTY brings you the details
Photo: A Roy Chowdhury
Childhood in pits A large number of children work in our mines and quarries without any facilities
Children have always been at the receiving end of many of our flawed policies. There has always been a wide gap between what should be and what it is the reality. Here, one is talking about our mining and quarrying industry where this gap is way wide. According to the 2001 Census, 45,135 children between the age group of five and 14 years, and 206,720 between five and 19 years, are employed in the industry. “The number is much more than what the Census quotes,” points out Enakshi Ganguly Thukral, co-director of the Delhi-based NGO Haq. Enakshi is part of a comprehensive study recently conducted by Haq: Centre for Child Rights in partnership with Dhaatri Resource Centre for Women – Samata and Mines, Minerals and People Alliance. Supported by Terre Des Hommes, Germany, AEI and ASTM Luxembourg, the study called “India's Childhood in the Pits – a Report on Impacts of Mining on Children in India, was carried out in eight States and took the organisations about a year to complete it. Enakshi says the results are startling but adds that the Ministry of Mines is not the only department which is responsible for their situation. “It needs to be addressed by other departments like child welfare, education, tribal welfare, labour and environment. Without such a convergence, the mining child falls through the gap.” Here, Enakshi takes a few questions on the report.
What triggered the study?
In April 2005, HAQ, Samata, M.V. Foundation, Campaign Against Child Labour (Karnataka) and along with several other organisations carried out a fact-finding mission in the iron ore mines of Bellary where they found huge number of children living and working in hazardous conditions. When the report was put out, and particularly after National Human Rights Commission took suo moto cognisance of it, it was dismissed as emotive, non-factual, exaggerated, etc.
This latest study was conceived in follow up to that, and is the first study of its kind in India, looking not only at child labour in the mines, but the multitude of other ways in which children are impacted by mining such as on their health, education, living conditions, etc.
Which States has it covered?
The study covered numerous mining sites in 18 districts across Andhra Pradesh, Rajasthan, Orissa, Jharkhand, Chhattisgarh, Karnataka, Maharashtra and Madhya Pradesh. In Orissa, we undertook case studies in a number of different sites as it is a State most impacted by mining and has been the focus of further mineral expansion.
What are the findings?
One important finding of the report is that the Government's policies related to mining and related processes do not address the specific rights and entitlements of the mining children. Also, that the mining areas are more vulnerable to child malnutrition, hunger and food insecurity. By being displaced, homeless or living in inadequate housing conditions, they are forced to drop out of schools and become vulnerable to abuse and trafficking and are recruited for illegal activities by local mafias.
Besides, the mining regions have a large number of children working in the most hazardous activities. Large-scale mining activities are mainly in Adivasi areas and the Adivasi childred are losing their Constitutional rights under 5th Schedule due to displacement, land alienation and migration by mining projects. The mining Dalit children are suffering too.
Are the children employed at the mines mostly from migrant families?
The children are from a mixture of local and migrant families. Migration and mining go hand-in-hand, due to the seasonal nature of the work and market fluctuations in demand for minerals. Large numbers of migrant families were found in many of the mining areas visited, e.g. in Pune district of Maharashtra. However, local children are often employed in the sector, particularly after their families have become displaced or lost agriculture land for mining, e.g. in Orissa.
Is it only poverty that is responsible for child labour in the mining industry?
A number of factors are responsible for child labour in the mining industry. Loss of land /displacement leads to children being forced out of school and into work. Low wages and indebtedness of their parents (often also engaged in mining work) means that children are forced into work in order to help their families survive. In the majority of areas visited, illness of parents also paid a key role in child labour. After a number of years of working in mines, their parents were falling sick with TB and silicosis, which meant that their children had to drop out of school and become ‘breadwinners'.
Approximately how many children are employed in the mining industry?
This was not a Census survey…only a proper census on each and every mining site or quarry across the country will give us an exact figure. Given that the existence of child labour in mining is often even denied (as we can see from answers raised on this issue in Parliament, wherein the concerned Minister has replied saying that there were no children in mining as it is banned by law.), it is clearly impossible to estimate how many children are working in mining and quarrying sector and its allied activities.
How will the report be used in the advocacy of the issue?
The report has already been shared with the Ministry of Mines and some ther Government departments. The Secretary for Mines was a panellist at the report's launch on March 22 in New Delhi. She has promised to take some of the suggestions. She has also invited the research team and others to feed into the process that the Mines Ministry has initiated for amending the Mines Act as well as the development of a sustainable development framework.
A National Consultation on Children and Mining took place in Delhi on March 22 and 23, which brought together organisations working on mining and groups working on child rights. It is hoped that these groups will continue to work together to ensure that mining children no longer continue to be neglected.
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Wednesday, April 7, 2010
The Growing Divide
Do we ever realize that we live in the midst of so many dualities? We recently came across two such divergent realities in our own city.
Most of us think that Delhi has become a fast paced metro where in the sprawling mall culture is a validation of this richness that we perceive ourselves to be a part of. However, there are those who may not think so and are so removed from these very malls standing right in front of their homes.
We have been working with a family from a financially impoverished background. We thought of taking them to the mall right in front of their jhuggi, which they seemed to be curious about but had never visited.
To our shock, coming from the democracy that we are all so proud of, they were not allowed inside. Why is it that they were not allowed to go inside this big symbol of richness and opportunity and display of wealth? Apparently, they were not dressed well enough. If you were to ask us, we would think that it had little to do with their clothes but more to do with everyone’s sense of prejudice towards that poor nobody whose poverty is somewhere written all over his/her face.
We did manage to fight our way inside, having argued with the security guards to let us all go as we were all paying for the services provided. All we wanted was an ice cream.
We went inside and had our ice-creams watched by two Security guards standing very close to us. What was their crime? The fact that they looked poor and were not fashionably dressed was reason enough to be barred from stepping inside a mall, something that we take for granted.
When we asked the security guards as to why we could go inside but the family with us could not, they said that they had no problems with this but their customers would not like to be around ‘these’ people.
All in all, this turned out to be a humiliating exercise for the family, which further reinforced their sense of being different and not good enough to even step into a mall. This is India as we didn’t know…an India which is heading towards development and unprecedented growth but it must alienate and exclude so many for this. Then should we ever wonder as to why crimes are committed by so many who are never allowed the opportunities and the possibility of being able to shape their destinies? A luxury we all seem to enjoy and often take for granted.
Namita
Shahbaz
Most of us think that Delhi has become a fast paced metro where in the sprawling mall culture is a validation of this richness that we perceive ourselves to be a part of. However, there are those who may not think so and are so removed from these very malls standing right in front of their homes.
We have been working with a family from a financially impoverished background. We thought of taking them to the mall right in front of their jhuggi, which they seemed to be curious about but had never visited.
To our shock, coming from the democracy that we are all so proud of, they were not allowed inside. Why is it that they were not allowed to go inside this big symbol of richness and opportunity and display of wealth? Apparently, they were not dressed well enough. If you were to ask us, we would think that it had little to do with their clothes but more to do with everyone’s sense of prejudice towards that poor nobody whose poverty is somewhere written all over his/her face.
We did manage to fight our way inside, having argued with the security guards to let us all go as we were all paying for the services provided. All we wanted was an ice cream.
We went inside and had our ice-creams watched by two Security guards standing very close to us. What was their crime? The fact that they looked poor and were not fashionably dressed was reason enough to be barred from stepping inside a mall, something that we take for granted.
When we asked the security guards as to why we could go inside but the family with us could not, they said that they had no problems with this but their customers would not like to be around ‘these’ people.
All in all, this turned out to be a humiliating exercise for the family, which further reinforced their sense of being different and not good enough to even step into a mall. This is India as we didn’t know…an India which is heading towards development and unprecedented growth but it must alienate and exclude so many for this. Then should we ever wonder as to why crimes are committed by so many who are never allowed the opportunities and the possibility of being able to shape their destinies? A luxury we all seem to enjoy and often take for granted.
Namita
Shahbaz
Friday, March 19, 2010
Recent Media articles on Impacts of Mining on Children
To view recent media articles on impacts of Mining on Children, please click on the following link: http://www.haqcrc.org/latest-from-haq/recent-media-articles-on-impacts-of-mining-on-children.html
To view the invite for the launch of "India's Childhood in the "Pits": A Report on the Impacts of Mining on Children", please click on the following link: http://www.haqcrc.org/fileadmin/Files/Invite_with_logos.pdf
To view the invite for the launch of "India's Childhood in the "Pits": A Report on the Impacts of Mining on Children", please click on the following link: http://www.haqcrc.org/fileadmin/Files/Invite_with_logos.pdf
Tuesday, March 16, 2010
HAQ's Impact on the Fight against the HPV Vaccine
HAQ: Centre for Child Rights (HAQ) has been part of the campaign along with Saheli and Sama, two organisations investigating the claim that HPV (human papillomavirus) vaccines protect young girls from cervical cancer as well as the unethical tests being conducted by manufacturers on young girls in India. It is amazing, and very encouraging, to see how media has since responded to the topic. It tells us how serious of a matter it truly is.
Please follow the link below to view the message sent out by HAQ as well as links to recent articles covered by the media since then.
http://www.haqcrc.org/latest-from-haq/media-response-on-campaign-against-hpv-vaccine.html
Please follow the link below to view the message sent out by HAQ as well as links to recent articles covered by the media since then.
http://www.haqcrc.org/latest-from-haq/media-response-on-campaign-against-hpv-vaccine.html
Monday, February 22, 2010
Child Statement in the court
There are three stages in the case at criminal trail level:
At the time of 161 Cr. P. C. when police take the statement of the child. Though there is no evidentiary value of this statement in the court, police has to produce the child in front of Metropolitan Magistrate.
164 Cr. P. C. statement in front of Magistrate- where the statement has to be recorded in front of Metropolitan Magistrate.
Then there is a stage of cross-examination at Session-Court level. Now depending upon the case and after filing charge sheet (some cases it is 60 days or 90 days) the child, as a witness has to be called again in the Court of Session. Calling the child in the session-court might take some time, i.e. more than sixty or ninety days.
So during this period lot of things can happen.
The loophole is also in between the time period of taking 164 Cr. P. C. statement and cross-examination of the child. Can we minimise it. I think Delhi High court has given judgement on this. I do not have it right now, the moment I will get I will share with the group. In case, if any body has in the group, please share.
The next is role of Child Welfare Committee:
They would have asked other CWC if, the children are from other district or state, to monitor the child by the welfare officer and submit periodic report.
They would have asked NGO from that district or state to monitor the child and submit periodic report.
In absence of all, they would have asked the juvenile police officer of the district from where the child belongs, to monitor the child in the child friendly manner and submit periodic report till the time of cross-examination.
Special Juvenile Police Unit could have taken all the papers in their hands and follow the case.
Prepared by Vipin Bhatt
At the time of 161 Cr. P. C. when police take the statement of the child. Though there is no evidentiary value of this statement in the court, police has to produce the child in front of Metropolitan Magistrate.
164 Cr. P. C. statement in front of Magistrate- where the statement has to be recorded in front of Metropolitan Magistrate.
Then there is a stage of cross-examination at Session-Court level. Now depending upon the case and after filing charge sheet (some cases it is 60 days or 90 days) the child, as a witness has to be called again in the Court of Session. Calling the child in the session-court might take some time, i.e. more than sixty or ninety days.
So during this period lot of things can happen.
The loophole is also in between the time period of taking 164 Cr. P. C. statement and cross-examination of the child. Can we minimise it. I think Delhi High court has given judgement on this. I do not have it right now, the moment I will get I will share with the group. In case, if any body has in the group, please share.
The next is role of Child Welfare Committee:
They would have asked other CWC if, the children are from other district or state, to monitor the child by the welfare officer and submit periodic report.
They would have asked NGO from that district or state to monitor the child and submit periodic report.
In absence of all, they would have asked the juvenile police officer of the district from where the child belongs, to monitor the child in the child friendly manner and submit periodic report till the time of cross-examination.
Special Juvenile Police Unit could have taken all the papers in their hands and follow the case.
Prepared by Vipin Bhatt
Lawyer in the Child Welfare Committee
If there is a girl (minor) rescued from a red light area. Police take the custody of the child and produce the child front of the CWC. This child should be treated as child in need of care and protection rather than juvenile in conflict with law. (Definition of child in need of care and protection)
And just in case, if police instead of taking the child (rescued) into custody as a juvenile in conflict with law rather then as a child in need of care and protection what would be the implications.
The child will go to the JJB, the parents might come or some pimp would become distance relative and seek for the custody, they would hire a good lawyer (as lots of money is involved in this trade) and could argue that the child was roaming on the street and wrongly picked by the police and where bail as a matter of right can file an application for the bail and custody of the child. In case, if JJB refuses to give the custody of the child to the parents can easily go the session court and get the bail and take the custody of the child.
Now, think about the situation where the same the child was taken into custody by the police and produced before the CWC. Here, the child has not been apprehended but taken into custody by the police for her rehabilitation, care and protection, the power has been given to the CWC to take the decision. So in this case, it is the duty of the CWC to conduct the Home study report or ask welfare officer to prepare Social Investigation report of the child. CWC can ask CWC from the other state to conduct the home study or to prepare the SIR of the child. Based on the report, if CWC finds that the parents are UNFIT and can decline the custody to the parents. Here the child was not apprehended so there is no matter of bail. Here the rehabilitation of the child is important so there is no need of criminal trial. Mental health aspect of the child is also a concern. So the CWC can also take into consideration by calling some professional counsellor to do so. If the family is not satisfied by the order can go the session court, and I am sure if represented well in the court we can make the judge understand that what are the important aspect of the case and why custody of the child should not be given to the family.
The services of lawyer can be used by the CWC when there is a case of criminal matter and case going in the trial court. So there is a need of child friendly lawyer who can actually help the child in taking 164 Cr. P. C. statement of the child or who can represent the child at the stage of cross-examination. A lawyer can also place or put across the view of CWC in the higher courts. Can help in filing the complaints on the behalf of the CWC under relevant sections of the law for the child.
Putting the lawyer’s representation in the CWC only jeopardises the whole situation by making CWC as a criminal court. We all want the system to be more child-friendly and not court like environment. And I think this principle applies in all the cases of children.
And just in case, if police instead of taking the child (rescued) into custody as a juvenile in conflict with law rather then as a child in need of care and protection what would be the implications.
The child will go to the JJB, the parents might come or some pimp would become distance relative and seek for the custody, they would hire a good lawyer (as lots of money is involved in this trade) and could argue that the child was roaming on the street and wrongly picked by the police and where bail as a matter of right can file an application for the bail and custody of the child. In case, if JJB refuses to give the custody of the child to the parents can easily go the session court and get the bail and take the custody of the child.
Now, think about the situation where the same the child was taken into custody by the police and produced before the CWC. Here, the child has not been apprehended but taken into custody by the police for her rehabilitation, care and protection, the power has been given to the CWC to take the decision. So in this case, it is the duty of the CWC to conduct the Home study report or ask welfare officer to prepare Social Investigation report of the child. CWC can ask CWC from the other state to conduct the home study or to prepare the SIR of the child. Based on the report, if CWC finds that the parents are UNFIT and can decline the custody to the parents. Here the child was not apprehended so there is no matter of bail. Here the rehabilitation of the child is important so there is no need of criminal trial. Mental health aspect of the child is also a concern. So the CWC can also take into consideration by calling some professional counsellor to do so. If the family is not satisfied by the order can go the session court, and I am sure if represented well in the court we can make the judge understand that what are the important aspect of the case and why custody of the child should not be given to the family.
The services of lawyer can be used by the CWC when there is a case of criminal matter and case going in the trial court. So there is a need of child friendly lawyer who can actually help the child in taking 164 Cr. P. C. statement of the child or who can represent the child at the stage of cross-examination. A lawyer can also place or put across the view of CWC in the higher courts. Can help in filing the complaints on the behalf of the CWC under relevant sections of the law for the child.
Putting the lawyer’s representation in the CWC only jeopardises the whole situation by making CWC as a criminal court. We all want the system to be more child-friendly and not court like environment. And I think this principle applies in all the cases of children.
Prepared by Vipin Bhatt
Friday, February 19, 2010
Battle is On....
The BATTLE continues …
This was not a just another case for us, in which we tried to restore justice to the girl child of eight years who was sexually abused by the man. The plight of the girl started in year 2007 when an adult male who was her neighbour raped her at night when she was sleeping alone in her cottage. Father, a daily wage earner used to work in the factory and mother went to her hometown in Bihar to meet her relatives. The girl was in the custody of the relatives.
The matter came in the knowledge of Child Welfare Committee, Nirmal Chayya Complex. Dr, Bharti Sharma, then Chairperson, Child Welfare Committee called HAQ: Centre for Child Rights to assist the poor family in the court. We decided to work on this case at the priority basis and also thought to ensure to conduct the trial in the child friendly manner. But our journey took the different route and we start getting difficulties (read challenges) from the beginning. After incident the child was in the hospital for twenty-two days. According to one of the eyewitness, when she took the child in her arms, after the incident her sari turned red with the blood.
After the recovery from the hospital another battle of getting justice started for the child. The law of the country need everything including the statement of the child and as early as possible. So she has to depose in front of the metropolitan magistrate (popularly called as 164 Cr. P. C. statement) that the accused has committed an offence. But we had no idea that there are going to be lots of speed breakers in the path. The first one came at the very initial level. Fortunately or unfortunately the magistrate was a female officer. We had an impression that she will handle the case sensitively and judicially. But our dream falls flat when she starts giving dates. She had different reason to do that, once she shared that I have to go for Test Identification Parade or I have some work or at one time she dismissed the application in default. After waiting for eight dates for eight days we realised that she is not at all serious in taking the statement of the child. In the meantime, small girl also start getting irritated and angry. She starts saying that I will not come and depose in front of her. We somehow managed to convince her about the importance of date.
The father of the girl was very nice man and taking care of the child. The mother of the child was little weird or emotional. The trauma was big and she was angry at the system. She starts showing her anger to the child. She starts saying that she is not interested in keeping the girl and if we can keep the child in some children’s home. We totally rejected her idea. We make her understand all the consequences with it. But when she again raised this issue with us, we sternly warned her not to talk like this again. The most ironical part was, as the mother was telling this to us she was also pushing away her daughter but the child was again and again clinging to her.
Another breaker was waitng for us. The magistrate was not in the mood to record her statement. She ordered to send the child at NARI NIKETAN (let me tell you it is for home for women and not for children… nari ka niketan) fortunately; before MM passed the order the girl had left to home. Well, as the MM starts giving dates and seems not interested in traumatising child we decided to move to the High Court of Delhi. We sent an email to high-powered high committee on juvenile justice to look into this matter. The high court committee forwarded the mail to the judge who was handling criminal matter in the court. He asked to the state counsel to ensure the recording of the statement today itself. The order of the copy should be given to magistrate and she should record the statement of the child and MM should explain in the court that why she has not taken the statement of the child on that day only. After this the whole system shakes-up. The Station House Officer with the Inspector investigation came to the court and was looking worried as if order has passed against them.
Well, in the end the statement was recorded and later on high court gave very good guidelines how to deal the cases of child sexual abuse by the different agencies like police, session judge and doctors including metropolitan magistrate.
Then another stage of the case came popularly called as cross-examination of the child and other witnesses in the case. We tried to help the child and the family in recording of their statements and cross-examination.
It is sometime very difficult to understand that why they take so many statements, first at the police station level when an investigation officer takes the statement sometime s/he asked very pointedly about each and every aspect. Then Metropolitan Magistrate who has to record the statement as a part of recording under 164 Cr. P. C. After filing of charge sheet i.e. approximately ninety days then, the Session Judge in the name of examination-in-chief. Then defence counsel about the incident as a part of the cross-examination. And in between that if any NGOs worker comes then there is another repeating of statement. Don’t we ask the child do remember the trauma if she wants justice and runs revision classes.
The examination in chief and cross-examination of the case is always a very important stage in the criminal case and we tried to make it as friendly as possible for the child. There should not be direct questioning, there should be always a very procedure of asking the question, the whole atmosphere should be child friendly, and there should be in-camera trial. We tried to ensure that and always ensured that the child or her family should get any kind of trauma in this process. Seconds turned into minute and minutes into hour, hours into day and days into month and months into years and after approximately three years the judgment came. Ten Years of Imprisonment with fine. Means the accused has to be there in the jail for another SEVEN YEARS (he had already spent three years in jail).
As we feel that justice is restored but the parents of the child are still unsatisfied and they were expecting life imprisonment for the accused. We do not know whether getting justice is the matter of satisfaction of the victim’s family even after getting the punishment for ten years. As we have to get the order of the copy and have to assess for appeal further.
But we know, as there are lots of other cases of small girls victimised and sexually abused who are still looking for ‘justice’ and for us the battle continues......
This was not a just another case for us, in which we tried to restore justice to the girl child of eight years who was sexually abused by the man. The plight of the girl started in year 2007 when an adult male who was her neighbour raped her at night when she was sleeping alone in her cottage. Father, a daily wage earner used to work in the factory and mother went to her hometown in Bihar to meet her relatives. The girl was in the custody of the relatives.
The matter came in the knowledge of Child Welfare Committee, Nirmal Chayya Complex. Dr, Bharti Sharma, then Chairperson, Child Welfare Committee called HAQ: Centre for Child Rights to assist the poor family in the court. We decided to work on this case at the priority basis and also thought to ensure to conduct the trial in the child friendly manner. But our journey took the different route and we start getting difficulties (read challenges) from the beginning. After incident the child was in the hospital for twenty-two days. According to one of the eyewitness, when she took the child in her arms, after the incident her sari turned red with the blood.
After the recovery from the hospital another battle of getting justice started for the child. The law of the country need everything including the statement of the child and as early as possible. So she has to depose in front of the metropolitan magistrate (popularly called as 164 Cr. P. C. statement) that the accused has committed an offence. But we had no idea that there are going to be lots of speed breakers in the path. The first one came at the very initial level. Fortunately or unfortunately the magistrate was a female officer. We had an impression that she will handle the case sensitively and judicially. But our dream falls flat when she starts giving dates. She had different reason to do that, once she shared that I have to go for Test Identification Parade or I have some work or at one time she dismissed the application in default. After waiting for eight dates for eight days we realised that she is not at all serious in taking the statement of the child. In the meantime, small girl also start getting irritated and angry. She starts saying that I will not come and depose in front of her. We somehow managed to convince her about the importance of date.
The father of the girl was very nice man and taking care of the child. The mother of the child was little weird or emotional. The trauma was big and she was angry at the system. She starts showing her anger to the child. She starts saying that she is not interested in keeping the girl and if we can keep the child in some children’s home. We totally rejected her idea. We make her understand all the consequences with it. But when she again raised this issue with us, we sternly warned her not to talk like this again. The most ironical part was, as the mother was telling this to us she was also pushing away her daughter but the child was again and again clinging to her.
Another breaker was waitng for us. The magistrate was not in the mood to record her statement. She ordered to send the child at NARI NIKETAN (let me tell you it is for home for women and not for children… nari ka niketan) fortunately; before MM passed the order the girl had left to home. Well, as the MM starts giving dates and seems not interested in traumatising child we decided to move to the High Court of Delhi. We sent an email to high-powered high committee on juvenile justice to look into this matter. The high court committee forwarded the mail to the judge who was handling criminal matter in the court. He asked to the state counsel to ensure the recording of the statement today itself. The order of the copy should be given to magistrate and she should record the statement of the child and MM should explain in the court that why she has not taken the statement of the child on that day only. After this the whole system shakes-up. The Station House Officer with the Inspector investigation came to the court and was looking worried as if order has passed against them.
Well, in the end the statement was recorded and later on high court gave very good guidelines how to deal the cases of child sexual abuse by the different agencies like police, session judge and doctors including metropolitan magistrate.
Then another stage of the case came popularly called as cross-examination of the child and other witnesses in the case. We tried to help the child and the family in recording of their statements and cross-examination.
It is sometime very difficult to understand that why they take so many statements, first at the police station level when an investigation officer takes the statement sometime s/he asked very pointedly about each and every aspect. Then Metropolitan Magistrate who has to record the statement as a part of recording under 164 Cr. P. C. After filing of charge sheet i.e. approximately ninety days then, the Session Judge in the name of examination-in-chief. Then defence counsel about the incident as a part of the cross-examination. And in between that if any NGOs worker comes then there is another repeating of statement. Don’t we ask the child do remember the trauma if she wants justice and runs revision classes.
The examination in chief and cross-examination of the case is always a very important stage in the criminal case and we tried to make it as friendly as possible for the child. There should not be direct questioning, there should be always a very procedure of asking the question, the whole atmosphere should be child friendly, and there should be in-camera trial. We tried to ensure that and always ensured that the child or her family should get any kind of trauma in this process. Seconds turned into minute and minutes into hour, hours into day and days into month and months into years and after approximately three years the judgment came. Ten Years of Imprisonment with fine. Means the accused has to be there in the jail for another SEVEN YEARS (he had already spent three years in jail).
As we feel that justice is restored but the parents of the child are still unsatisfied and they were expecting life imprisonment for the accused. We do not know whether getting justice is the matter of satisfaction of the victim’s family even after getting the punishment for ten years. As we have to get the order of the copy and have to assess for appeal further.
But we know, as there are lots of other cases of small girls victimised and sexually abused who are still looking for ‘justice’ and for us the battle continues......
Vipin Bhatt
HAQ: Centre for Child Rights
Thursday, February 18, 2010
child labour and revelant sections
CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986
(ii) "child' means a person who has not completed his fourteenth year of age;
Penalties.
Section 14. (1) Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.
(2) Whoever, having been convicted of an offence under section 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not he less than six months but which may extend to two years. (3) Whoever-
(a) fails to give notice as required by section 9; or
(b) fails to maintain a register as required by section 11 or makes any false entry in any such register, or
(c) fails to display a notice containing an abstract of section 3 and this section as required by section 12; or
(d) fails to comply with or contravenes any other provisions of-1his Act or the rules made thereunder,
shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both.
Labour Department of the state is the nodal department for securing compliance with the provision of this Act
Section-17 The appropriate Government may appoint Inspectors for the purposes of securing compliance with the provisions of this Act 5nd any Inspector so appointed shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976 (g) "bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,-- (i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, on such advance, or (ii) in pursuance of any customary or social obligation, or (iii) in pursuance of an obligation devolving on him by succession, or (iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or
Section- 10. AUTHORITIES WHO MAY BE SPECIFIED FOR IMPLEMENTING THE PROVISIONS OF THIS ACT. - The State Government may confer such powers and impose such duties on a District Magistrate as may be necessary to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer so specified.
IMPORTANT
People’s Union for Democratic Rights V Union of India 1982 3 SCC 235
the Supreme Court also held that ‘where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of forced labour’.
Section- 16.
PUNISHMENT FOR ENFORCEMENT OF BONDED LABOUR. - Whoever, after the commencement of this Act, compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees
Section- 22
COGNIZANCE OF OFFENCES. - Every offence under this Act shall be cognizable and boilable.
Indian Penal Code
Section 370. Buying or disposing of any person as slave
Whoever imports, export, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as slave, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Non-cognizable and bailable. Trial by Magistrate of first class
Section 371. Habitual dealing in slave
Whoever habitually imports, exports, removes, buys, sells, traffics or deals, shall be punished with imprisonment for life or with imprisonment of either description for a term not exceeding the years, and shall also be liable to fine.
cognizable and non-bailable trial by Court of session
Section 374. Unlawful compulsory labour
Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with both.
Cognizable & bailable and trial by Any magistrate
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
"juvenile" or "child" means a person who has not completed eighteenth year of age;
Section 26. Exploitation of juvenile or child employee.- Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall be liable to fine.
Section 27. Special offences.- The offences punishable under sections 23, 24, 25 and 26 shall be cognizable.
Code of Criminal Procedure 1973 , THE FIRST SCHEDULE
II-CLASSIFICATION OF OFFENCES AGAINST - OTHER LAWS
If punishable with death, imprisonment for life, or imprisonment for mote than 7 years. Cognizable. Non-Cognizable. Court of Session
If punishable with imprisonment for 3 years, and upwards but not more than 7 years. Cognizable. Non-Cognizable Magistrate of the first class.
If punishable with imprisonment for less than 3 years or with fine only.
Non-Cognizable
Bailable
Any Magistrate.
Prepared by: Vipin Bhatt
(ii) "child' means a person who has not completed his fourteenth year of age;
Penalties.
Section 14. (1) Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.
(2) Whoever, having been convicted of an offence under section 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not he less than six months but which may extend to two years. (3) Whoever-
(a) fails to give notice as required by section 9; or
(b) fails to maintain a register as required by section 11 or makes any false entry in any such register, or
(c) fails to display a notice containing an abstract of section 3 and this section as required by section 12; or
(d) fails to comply with or contravenes any other provisions of-1his Act or the rules made thereunder,
shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both.
Labour Department of the state is the nodal department for securing compliance with the provision of this Act
Section-17 The appropriate Government may appoint Inspectors for the purposes of securing compliance with the provisions of this Act 5nd any Inspector so appointed shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976 (g) "bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,-- (i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, on such advance, or (ii) in pursuance of any customary or social obligation, or (iii) in pursuance of an obligation devolving on him by succession, or (iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or
Section- 10. AUTHORITIES WHO MAY BE SPECIFIED FOR IMPLEMENTING THE PROVISIONS OF THIS ACT. - The State Government may confer such powers and impose such duties on a District Magistrate as may be necessary to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer so specified.
IMPORTANT
People’s Union for Democratic Rights V Union of India 1982 3 SCC 235
the Supreme Court also held that ‘where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of forced labour’.
Section- 16.
PUNISHMENT FOR ENFORCEMENT OF BONDED LABOUR. - Whoever, after the commencement of this Act, compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees
Section- 22
COGNIZANCE OF OFFENCES. - Every offence under this Act shall be cognizable and boilable.
Indian Penal Code
Section 370. Buying or disposing of any person as slave
Whoever imports, export, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as slave, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Non-cognizable and bailable. Trial by Magistrate of first class
Section 371. Habitual dealing in slave
Whoever habitually imports, exports, removes, buys, sells, traffics or deals, shall be punished with imprisonment for life or with imprisonment of either description for a term not exceeding the years, and shall also be liable to fine.
cognizable and non-bailable trial by Court of session
Section 374. Unlawful compulsory labour
Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with both.
Cognizable & bailable and trial by Any magistrate
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
"juvenile" or "child" means a person who has not completed eighteenth year of age;
Section 26. Exploitation of juvenile or child employee.- Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall be liable to fine.
Section 27. Special offences.- The offences punishable under sections 23, 24, 25 and 26 shall be cognizable.
Code of Criminal Procedure 1973 , THE FIRST SCHEDULE
II-CLASSIFICATION OF OFFENCES AGAINST - OTHER LAWS
If punishable with death, imprisonment for life, or imprisonment for mote than 7 years. Cognizable. Non-Cognizable. Court of Session
If punishable with imprisonment for 3 years, and upwards but not more than 7 years. Cognizable. Non-Cognizable Magistrate of the first class.
If punishable with imprisonment for less than 3 years or with fine only.
Non-Cognizable
Bailable
Any Magistrate.
Prepared by: Vipin Bhatt
Tuesday, February 9, 2010
Importance of Section 160 of Cr. P. C.
Section 160. Police Officer’s power to require attendance of witnesses.
(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who from, the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
IN THE SUPREME COURT OF INDIA
Appellants: Nandini Satpathy Vs. Respondent: P.L. Dani and Anr. AIR1978SC1025
The very act of directing a woman to come to the police station in violation of S. 160 (1) may make for tension and negate voluntariness.
IN THE HIGH COURT OF CALCUTTA
Decided On: 30.03.1973 Appellants: Rukmani Debi Kashuka Vs. Respondent: Jadu Nath Misra and Ors.
That apart some meaning has to be given to the limitation imposed by Section 160 when it says that the power under this provision can be exercised only in respect of persons being within the limits of the jurisdiction of the Investigating Officer or any adjoining station. Certainly this provision furnishes no authority for an Investigating Officer of Orissa to send a requisition to a person at Calcutta more so when the proviso to this section further enjoins that no woman shall be required to attend any place other than the place where she resides. Infringement of these statutory limitations in my opinion, does not only render the requisition illegal but with-out jurisdiction too.
1995CriLJ2754 IN THE HIGH COURT OF MADRAS
Appellants: A. Nallasivan Vs. Respondent: State of Tamil Nadu and others
Taking into account the above said proviso to S. 160 of the Criminal P.C. the abovesaid detention of 90 women and 28 children at the Forest Ranger's Office, Harur on 20-6-1992, appears to be illegal, offending their fundamental rights.
Prepared by Vipin Bhatt
HAQ: Centre for Child Rights
(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who from, the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
IN THE SUPREME COURT OF INDIA
Appellants: Nandini Satpathy Vs. Respondent: P.L. Dani and Anr. AIR1978SC1025
The very act of directing a woman to come to the police station in violation of S. 160 (1) may make for tension and negate voluntariness.
IN THE HIGH COURT OF CALCUTTA
Decided On: 30.03.1973 Appellants: Rukmani Debi Kashuka Vs. Respondent: Jadu Nath Misra and Ors.
That apart some meaning has to be given to the limitation imposed by Section 160 when it says that the power under this provision can be exercised only in respect of persons being within the limits of the jurisdiction of the Investigating Officer or any adjoining station. Certainly this provision furnishes no authority for an Investigating Officer of Orissa to send a requisition to a person at Calcutta more so when the proviso to this section further enjoins that no woman shall be required to attend any place other than the place where she resides. Infringement of these statutory limitations in my opinion, does not only render the requisition illegal but with-out jurisdiction too.
1995CriLJ2754 IN THE HIGH COURT OF MADRAS
Appellants: A. Nallasivan Vs. Respondent: State of Tamil Nadu and others
Taking into account the above said proviso to S. 160 of the Criminal P.C. the abovesaid detention of 90 women and 28 children at the Forest Ranger's Office, Harur on 20-6-1992, appears to be illegal, offending their fundamental rights.
Prepared by Vipin Bhatt
HAQ: Centre for Child Rights
Thursday, February 4, 2010
FILING OF CHARGE SHEET IN THE COURT and THE CODE OF CRIMINAL PROCEDURE, 1973
Filing of charge sheet or final report or challan:-
A.
60 days from date of arrest in the cases of punishment is less than 10 years
B.
90 days from date of arrest in the cases of punishment is more than 10 years
C.
Where the accused was arrested and released on bail mostly police officer rarely take interest and took long time in filing charge sheet
D.
Where the person is absconding the police should conduct the proceeding under section 82 and section 83 Cr. P. C. and as per order given by the court declared the person “proclaimed offender” and filed the charge sheet at the earliest.
Various sections in the Code of Criminal Procedure
Section 82. Proclamation for person absconding.
Section 83. Attachment of property of person absconding.
Section 167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence,
And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.
2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.]
3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.
2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
Prepared by: Vipin Bhatt
HAQ: Centre for Child Rights
A.
60 days from date of arrest in the cases of punishment is less than 10 years
B.
90 days from date of arrest in the cases of punishment is more than 10 years
C.
Where the accused was arrested and released on bail mostly police officer rarely take interest and took long time in filing charge sheet
D.
Where the person is absconding the police should conduct the proceeding under section 82 and section 83 Cr. P. C. and as per order given by the court declared the person “proclaimed offender” and filed the charge sheet at the earliest.
Various sections in the Code of Criminal Procedure
Section 82. Proclamation for person absconding.
Section 83. Attachment of property of person absconding.
Section 167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence,
And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.
2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.]
3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.
2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
Prepared by: Vipin Bhatt
HAQ: Centre for Child Rights
Tuesday, February 2, 2010
Rock4Life Concert held at Shillong, Meghalaya
“Everywhere I go, I see very much the same thing. I see the same compassion for people who live half a world away. I see the same concern about events beyond these borders and increasingly, I see the same conviction that we can and we must join together to stop the scourge of AIDS and poverty.”
… Bono (lead singer of U2)
Urban folk songwriter and singer Susmit Bose, HAQ, UNDP, UNAIDS and NACO joined hands to bring together the music of 8 leading rock bands of North East India, in the form of CD, in order to advocate and spread awareness on HIV/AIDS. The songs laid special emphasis on sensitizing the general public, especially young people, about the facts relating to and the myths and stigma associated with HIV/AIDS.
The CD was released on World AIDS Day i.e. December 1, last year in Shillong. A specially designed concert - Rock4Life - was held in Shillong for the launch of the CD and for purposes of direct interaction with the youth. The bands included were Soulmate (Meghalaya), Digital Suicide (Assam), Scavenger Project (Mizoram), Recycle (Manipur), Alive (Sikkim), Native Rising (Nagaland), Horjwlai (Tripura), and Alien Gods (Arunachal Pradesh).
The initiative, designed for advocacy through the arts, was based on the belief that addressing the youth directly through a medium they best understand, identify and relate is the most effective strategy to win over young peoples’ hearts and eventually spread awareness on a particular issue. The concept worked; the event was hugely successful and participation of youth was immense. As one participant remarks in his blog ‘The bands were rocking and the crowds were rolling ...’
p/s :- Check out some of the the ROCK4LIFE pictures on HAQ facebook page.
The initiative, designed for advocacy through the arts, was based on the belief that addressing the youth directly through a medium they best understand, identify and relate is the most effective strategy to win over young peoples’ hearts and eventually spread awareness on a particular issue. The concept worked; the event was hugely successful and participation of youth was immense. As one participant remarks in his blog ‘The bands were rocking and the crowds were rolling ...’
p/s :- Check out some of the the ROCK4LIFE pictures on HAQ facebook page.
Thursday, January 28, 2010
Section 354 Indian Penal Code
A suggestion to amend the law. Please share your valuable comments:
Indian Penal Code
Section 354: Assault or criminal force to woman with intent to outrage her modestyWhoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
STATE AMENDMENTS
Indian Penal Code
Section 354: Assault or criminal force to woman with intent to outrage her modestyWhoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
STATE AMENDMENTS
ANDHRA PRADESH
Section 354. Assault or criminal force to woman with intent to outrage her modestyWhoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which also shall not be less than five years but which may extend to seven years and also be liable to fine.Provided that the court may, fore adequate and special reasons to be mentioned in the judgement, imposed a sentence of imprisonment of either description of a term which may be less then five years, but which shall not be less than two years.
MADHYA PRADESH
Section 354A. Assault or use of criminal force to woman with intent to disrobe herWhoever assaults or uses criminal force to any woman or abets or conspires to assault or uses such criminal force to any intending to outrage or knowing it to be likely that by such assault, he will thereby outrage or causes to be outraged the modesty of woman by disrobing or compel her to be naked on any public place, shall be punished with imprisonment of either description for a term which also shall not be less than one year but which may extend to ten years and also be liable to fine. [Vide Madhya Pradesh Act 14 of 2004, section 3 (w.e.f.2-12-2004)]STATE OF ORISSA: In the First Schedule to the said Code in the entry under column 5 relating to section 345 or the IndianPenal Code 1860 for the word” bailabe’ the word ‘non bailable’ shall be substituted .
Suggestion to amend the section:
Section 354. Assault or criminal force to a person with intent to outrage the modesty of the personWhoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that the abuser will thereby outrage the person modesty, shall be punished with imprisonment of either description for a term which also shall not be less than five years but which may extend to seven years and also be liable to fine.
Provided that if the person in respect of whom an offence committed under this section is a child below the age of 18 years the punishment provided under this section shall extend to imprisonment for a term of not less than seven years.
Suggestion to amend the section:
Section 354. Assault or criminal force to a person with intent to outrage the modesty of the personWhoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that the abuser will thereby outrage the person modesty, shall be punished with imprisonment of either description for a term which also shall not be less than five years but which may extend to seven years and also be liable to fine.
Provided that if the person in respect of whom an offence committed under this section is a child below the age of 18 years the punishment provided under this section shall extend to imprisonment for a term of not less than seven years.
Tuesday, January 26, 2010
Who owns the child?
Who owns the child, police department or the court or the child welfare committee or NGO or the child rights commission, Who Actually? It is difficult to say who is actually the guardian of the child, if the child abused by her own family member. A girl, child sexually abused by the father, on which emotionally she must have relied upon the most and who is supposed to be the caretaker of the child. By the brother, who is supposed to fulfill all the demands of his sister or by the person to whom the child knows best, residing as a neighbor of the family or by grandfather or by chacha, or by mama, or by uncle or anyother person. In approximately more than 90% of sexual abuse cases, the victim knows the abuser. This act crashes the trust of the child and makes her vulnerable for whole life. The financial dependency and society pressure is so high that it is difficult or almost impossible for the mother or other family member to raise voice against the perpetrator in the family. Even after loosing all the trust from all the quarters in the family sometime these girls show big courage and raise their voice against the brutality. They find someone to whom they can share their feelings and emotions, confront their pain and trust again. It could be her mother, friend, teacher, classmate, or any other person. And when abusive act comes in the public domain then the emotional scuffle turns into a legal battle.
From here, another journey starts. Who owns the child? Who would take stand for her? Who would defend her? Who would reinstate faith and trust in her towards life and society at large? The child meet police, NGO, Child Welfare Committee popularly called as CWC under (Juvenile Justice (Care and Protection of Children) Act, 2000) and shares her trauma with all them as if, she is revising the chapter from her book. She shows trust in all of them with the thought they might give justice to her. First Information report lodged and case comes up for the trial at session level. The girl has to stay at the children homes under the custody of Child Welfare Committee.
Ninety days, time for filing charge sheet in the Session Court, give ample amount of time to the family for pressurizing the victim. A child turns hostile and changes her statement. Court verdicts, the prime witness turned hostile, case disposed off and accused acquitted. Family members file an application for custody of the child. Without looking the gravity of the offence; session court pass order “custody should be given to relative of the child as child has also shown interest for going back in the family” “signature of the child also taken”. Irrespective of the fact that the child is going in the same abusive family environment but the custody order passed.
When relatives goes to Child Welfare Committee ask for the child, as the order passed by the session judge, it is difficult for the CWC to refuse it, irrespective of the fact that they have the authority to take the stand on the issue related with the child care, protection and rehabilitation. However, they do not take the stand and give the child to the family member where the abuser is also residing. They do not willing or interested in sharing the facts to the session court. It is a power structure, nobody wants think out of the box, wants to take risk and consider about the child’s trauma. If the child sent back in the same abusive family with the same abuser what will happen to her. Who will decide? Who is thinking about the child and who owns the child?
Prepared by: Vipin Bhatt HAQ: Centre for Child Rights
From here, another journey starts. Who owns the child? Who would take stand for her? Who would defend her? Who would reinstate faith and trust in her towards life and society at large? The child meet police, NGO, Child Welfare Committee popularly called as CWC under (Juvenile Justice (Care and Protection of Children) Act, 2000) and shares her trauma with all them as if, she is revising the chapter from her book. She shows trust in all of them with the thought they might give justice to her. First Information report lodged and case comes up for the trial at session level. The girl has to stay at the children homes under the custody of Child Welfare Committee.
Ninety days, time for filing charge sheet in the Session Court, give ample amount of time to the family for pressurizing the victim. A child turns hostile and changes her statement. Court verdicts, the prime witness turned hostile, case disposed off and accused acquitted. Family members file an application for custody of the child. Without looking the gravity of the offence; session court pass order “custody should be given to relative of the child as child has also shown interest for going back in the family” “signature of the child also taken”. Irrespective of the fact that the child is going in the same abusive family environment but the custody order passed.
When relatives goes to Child Welfare Committee ask for the child, as the order passed by the session judge, it is difficult for the CWC to refuse it, irrespective of the fact that they have the authority to take the stand on the issue related with the child care, protection and rehabilitation. However, they do not take the stand and give the child to the family member where the abuser is also residing. They do not willing or interested in sharing the facts to the session court. It is a power structure, nobody wants think out of the box, wants to take risk and consider about the child’s trauma. If the child sent back in the same abusive family with the same abuser what will happen to her. Who will decide? Who is thinking about the child and who owns the child?
Prepared by: Vipin Bhatt HAQ: Centre for Child Rights
Monday, January 25, 2010
Remembering the first time National Bravery Award for stopping Child Marriage was given
On the occasion of India's 61st Republic Day, HAQ is proud to remember that in 2003, HAQ had for the first time taken the initiative encourage Indian Council for Child Welfare (ICCW) to recognise children intervening to stop 'Child Marriage' as an act of bravery worthy of National Bravery Award. Since then, it is every wondeful to see that each year children are given bravery awards for stoppin child marriages.
Bharti Ali, co-director of HAQ and National Convener of Campaign against Child Trafficking (CACT), had taken a strong initiative to ensure that 5 girls from a school in Karnal were recognised for their extreme act of bravery for bringing to notice and thus stopping the marraige of their classmate with the support of their teacher.
Below mentioned links could be visted for further details, on the 2003 National Bravery Awards given to the 5 girls:
http://www.icrw.org/photoessay/html/future_subs/grassroots.htm
http://www.hinduonnet.com/2004/01/25/stories/2004012503771000.htm
http://www.tribuneindia.com/2004/20040125/nation.htm#1
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