Impact Of Online Games On Young Indians, Leaving Victims

INTRODUCTION

Globally India having the second largest online population, Online Games have become big business in India. Gambling has become one of the most popular and lucrative businesses

on Internet. Online Games are attracting 75 % of youth, majorly male. Online Games in India amounted to lakhs of crores revenue in 2016 and future looks beyond imaginary.

Indian software and mobile revolution has drawn plenty of attention in the last couple of years due to cheaper cost of console devices, high technology and well developed infrastructure of e-payments resulted in Online Game Industry witnessing massive evolution silently. Internet provided platform to bet or gamble without cognisance of parents and family members and get addicted to various Online Games such as Lottery, Racing, betting, Casino, Rummy, Poker Etc. Annual game tournaments are organised around the world and sponsors offer great prizes. According to recent survey, three Indian companies Teen Patti, Ultimate Teen Patti, Teen Patti Gold occupied top 4, 6 and 8th ranks in the world.

Do they hold any legality in India?

India has no dedicated laws and frame work to deal with legal issues of online games. As gambling is a state subject, different states have reacted differently in this regard. Few states allow games of skills while other states prohibited them in all forms. This has given rise to an inter-state conflict that the central government is required to resolve. This issue became more complicated since the Supreme Court recognised rummy as game of skill.

Online gaming companies of India are now required to comply with multiple laws of India, both central and state. Most of them are not complying with techno legal requirements of different laws of India. Take the example of online gaming website terms and conditions about users from a particular territory are not allowed to access or play, yet the website doesn’t prohibit any users. Anonymity is one of the major drawbacks in Online Gaming and gaming companies appoint professionals for gaining big profits by cheating common, innocent public. As the legal framework for website blocking in India is still evolving, blocking may not be a good and long term solution.

PERCEPTIONS OF PROFESSIONALS

“Receiving complaints against the online rummy firms accusing them of cheating customers through manipulation.”

Avinash Mohanthy I.P.S., Deputy Commissioner of Police – Central Crime Station (Cyber Crime – Detective Department), Hyderabad  

“Government collecting huge taxes, but forgetting action on its fraudulent steps”

Mula Vikram Goud, Sreshta Movies Banner, Film Producer, Hyderabad

“Appropriate and immediate Law reforms to be initiated, Supreme Court of India should ban Online Gaming sites performing Gambling activities”

Venkateshwara Reddy, Sr. Advocate of High Court of Judicature at Hyderabad for Telangana and Andhra Pradesh states.

“No proper research done on impact of online games till today”

Dr. Kasupa Balaraju Ph.D.(Social Work), Asst. Professor & former HoD, Social Work Dept., Osmania University, Hyderabad

“Lack of IT knowledge in Government and Courts is mere point for Online Gambling”

Shankar Ganeshan, Journalist, Chennai 

“Causing serious health problems and leads to obesity, mental stress etc.”

Dr. Harivardan Lukka, General Physician, Visakhapatnam, A. P.

“Students loosing valuable time, Parents are unable to monitor these activities”

Vanja Srinivas, Government Junior College Lecturer, Mahabubnagar, T. S.

“Telangana Government already initiated few steps like prohibiting Online Rummy etc,        I strongly welcome it. As a legislative, I try my level best to recommend the Government to bring new laws”

Ala Venkateshwara Reddy, MLA – Devarakadra Assembly Constituency, Mahabubnagar Dist., T.S.

“Youth getting addicted to online gambling”

former BJP legislator Yennam Srinivas Reddy

“Wasting valuable time of students”

Dr. Sampath Ph.D. (Psychology), Asst. Prof. Kakatiya University, Warangal, T.S.

“Possibility of hacking both nations and individual data, threat to youth life”

Narinder from Chandigarh, Retd. Radar Engineer, Indian Army

“Breaking family relationships”

Narmada from Hyderabad, Women welfare association representative

“Big Level Gambling”

Bhanu Prakash, Student Leader, Warangal

“Government should take serious action against such gamblers”

Dr. Satvika, Post Graduate Medical Science Student, Hyderabad

“Wasting of time and money”

Radha Dendi, High School Teacher (Social Studies), Ranga Reddy Dist., T.S.

“World Online Games Championship 2017 in China itself is the witness of public addiction to online games”

S. Varma, Chairman Selection Committee A.P. Volleyball Association, former National Volleyball Player

“The differing rules from state-to state and meeting those guidelines can be challenging“  Anuj Gupta, cofounder of Adda52

“It is a 100% legal business and a lot of investments have been coming into this sector. All the games of skill are legal under the Gaming Act.”

Deepak Gullapalli,  Chief executive of Head InfoTech India, which owns ace2three.com 

“I have lost more than Rs. 5 Lakhs in just 1 1/2 year, and found maximum gambling takes place during late nights in big bets”

Jagadish from Kakinada, A.P., Online Gaming user

REVIEW OF LITERATURE

With reference to Indian Laws

Public Gambling Act,1867 prohibits running or being in charge of a public gaming house. The Information Technology Act 2000 regulates cyber activities in India and prohibits online gambling. Online gambling is a banned offence in the state of Maharashtra and Telangana. Despite the existing prohibitive legislations, there is extensive illegal gambling throughout the country.

According to decided cases

Various courts in India have examined the difference between the game of skill and game of chance in following Indian judicial pronouncements:

  • In State of Andhra Pradesh Vs. K. Satyanarayana & Others, the Supreme Court (“Apex Court”) stated that “Rummy requires certain amount of skill and it is preponderantly a game of skill.”
  • In M.J. Sivani & Ors. Vs. State of Karnataka, the Apex Court observed, “Even a skilled player in a game of mere skill may be lucky or unlucky, so it is not practical to decide whether a particular game is of skill or chance. It depends upon the facts, in each case.”
  • In Dr. K.R. Lakshmanan v. State of Tamil Nadu, The Apex Court stated “Games may be of chance, or of skill or of skill and chance combined. It is the dominant element – “skill” or “chance”, which determines the character of the game.”
  • In State of Bombay Vs. R. M. D. Chamarbaugwalal, the Apex Court ruled that games where success depends on a substantial skill will not fall into category of ‘gambling’.
  • The Courts have also opined that that the degree of skill required in games played in a physical form cannot be equated with those played online and games conducted by gaming sites offering prize money are illegal in states which prohibit gambling.

Reference of few legal exercises

  • Very recently i.e. on June 16, 2017 state of Telangana has passed an ordinance redefining Online Gaming in the Telangana Gaming Act, 1974 and including Cyber Crime in Preventive Detention Act which is approved by Governor.
  • Public Interest Litigation was filed by the state of Maharashtra to ban sale of online lottery and Crime Investigation Department of the Andhra Pradesh police had sought a ban on the website of Playwin which had allegedly sold online lottery. Telangana police filed a case against Ace2Three based on complaints that the company was duping players by manipulating its software.
  • Police in several states had earlier slapped cases against online and offline gaming firms in a bid to rein them in, forcing the affected companies to approach Court. The Supreme Court dismissed a clutch of petitions by various state governments seeking legal clarity on whether rummy could be considered a game of skills, and left the matter to the state and central governments to decide.
  • States Sikkim, Delhi and Goa have made special enactments to allow online gambling. In India, the enactments essentially allow such Games of skill to be played online.

TESTIMONIES:

  1. Testimony of a recent case in Hyderabad:

The Hyderabad Cyber Crime police have booked a criminal case against the city-based online rummy company ‘ace2three’ for allegedly duping players. Deputy Commissioner of Police Avinash Mohanty said a case was booked against the online rummy gaming company after a complainant alleged that he was duped   and lost Rs. 10 Lakhs by manipulation of software

  1. Testimony of an Indian Online Games company:

Indiagames founded in 1999 is India’s largest integrated game developer-publisher across mobile, online and the Interactive Television. The company has been a breaking new ground in the mobile gaming space and has partnered with several major game publishers and media companies in the world. Some of Indiagames successful titles include the first Spider-Man game on mobile, Garfield. In 2011, Indiagames was acquired by Disney for around $100 million. At the time of acquisition, it was making a profit of $4,00,000 on revenues of $11 million .

  1. Testimony of Rummy, which is turning out to be a great bet for the exit-starved Start-up investors.

Venture capital firm Matrix Partners India has made over 20 times returns by selling its stake in online rummy gaming company Ace2Three.The transaction is one of the rare large-cash exits in the Indian start-up ecosystem, but not for players running rummy businesses. The deal comes as investors in Adda52, saw similar returns of 22 times when it was acquired by Delta for Rs. 155 crore in September 2016. Another start-up in the space is RummyCircle, owned by Tiger Global Management-backed PlayGames24x7.

These start-ups are highly profitable, with margins as high as 35%. The gaming space has also started to see the interest of global investors from markets like the US and UK, besides private equity firms who prefer cash-generating businesses.

 

OBJECTIVES OF STUDY

  • To know the socio economic and demographic characteristics of the respondents
  • To understand the reasons for online games addiction and associated problems of younger generations

Following standard snd scientific methodology, data collected from 100 respondents from whom 80 are male and 20 are female through direct interaction, telephonic conversation, using social media etc procedures. The cities and towns covered in this survey are Chennai, Bangalore, Pune, Chandighar,Visakhapatnam, Kakinada, Rajahmundry, Bhimavaram, Vijayawada, Mahabubnagar, Nalgonda etc. These places are chosen for the reason for being identified highly gambling affected areas in Online Gaming. After receiving responses from respondents,  formulated them in standard Tabular columns with respect to specific questions to respondents divided in seven major categories, the reports are as follows:

 

TABLE 1: Gender percentage of people playing online Games

GENDER NO OF

RESPONDENTS

PERCENTAGE
MALE 80 80
FEMALE 20 20
TOTAL 100 100

 

Table 1 reveals that the percentage of Male playing Online Games is 80% whereas women remained with just 20%

 Age wise players

Table 2 explains that, Majority of Online Game playing found in 21-30 age group, followed 31-40 and 41-60 age groups, lastly in below 20 and above 60 age groups

 

TABLE 3: Playing experience in years by age

AGE EXPERIENCE PERCENTAGE
16-20 1 8
21-30 2 17
31-40 3 25
41-60 5 42
> 60 1 8
TOTAL 12 100

 

Table 3 states that, Youth have been playing online games since 2 years and the middle aged i.e. 41-60 age group have been playing since 5 years, Below 20 years and senior citizens are playing since only a year

 

TABLE 4: Monthly Income and expense spent on online games by age

AGE INCOME PERCENTAGE EXPENSE PERCENTAGE
16-20 0 0 2667 6
21-30 43195 16 9548 26
31-40 81888 31 7574 25
41-60 88727 33 15340 43
> 60 53750 20 0 0
TOTAL 267560 100 35129 100

 

Table 4 shows the variations of their expenses against their income, interestingly age group 41-60 spending Rs. 15,000/- per month standing at top place, following youth spending Rs. 8,000/- per month, below 20 years Rs. 2,500/- and lastly senior citizens are not making out any expenses though they are earning Rs. 50,000/- per month.

TABLE 5: Total Gain or loss on online games by age

AGE GAIN PERCENTAGE L0SS PERCENTAGE
16-20 334 0 384 0
21-30 24804 13 75085 27
31-40 25555 13 47777 17
41-60 141818 74 160045 56
> 60 0 0 0 0
TOTAL 192511 100 283291 100

 

Table 5 explains that, the middle age group is slightly earning whereas in all other cases they are loosing 2 to 3 times to that of their gainings.

 

TABLE 6: Age wise respondents opinion feeling their opponent players are not authenticated and the percentage of Gambling taking place     

AGE                  NO AUTHENTICATION PERCENTAGE GAMBLING PERCENTAGE
16-20 100 23 27 12
21-30 83 19 40 17
31-40 86 19 48 21
41-60 73 16 37 16
> 60 100 23 80 34
TOTAL 442 100 232 100

 

Table 6 reveals that, irrespective of their age groups 85 % of users stated that they feel their opponent players are not authenticated, coming to opinion on gambling senior citizens said 80 % of gambling taking place, youth thinks  only 40 % gambling taking place on the whole

TABLE 7: Age wise perception of  Users about legality of online games

and suggest others to play or not               

 

AGE ILLEGAL PERCENTAGE NOT SUGGESTED PERCENTAGE
16-20 17 6 50 13
21-30 34 13 68 17
31-40 67 25 81 21
41-60 50 19 95 24
> 60 100 37 100 25
TOTAL 268 100 394 100

 

Table 7 stated that, 40 % of youth are continuing playing though they know that it is illegal, and 50 % age group 41-60 , 100 % of senior citizens experienced as illegal, surprising majority of all age groups irrespective of their gains or loss they are advising others “not to play.”

CONCLUSION

Youth is backbone of India’s development, consisting of 55 % of the population. We have witnessed their undefined contribution in various sectors like IT, Medical, Space, Research, Business, Management, Political etc. Such an important generation need to be guided in a right direction to transform India into a developed country. For a larger gains of very few, Online Games have become poisonous habituation amounting indefinite loss on youth like amounting severe health issues, family disputes, discontinuation of studies/jobs, suicides, huge debts etc.

FUTURE RESEARCH

Being a social responsible citizen and student of Law, I would like to extend my research on Online Gaming. I will be interacting with users country wide, collect data, study and recommend necessary areas for suitable action. I will also publish articles, support to bring new Laws or amend existing Laws, help in coordination between state laws and central laws/acts, involve public representatives, administrators and judiciary authorities for fast implementation.

FUTURE PROPOSAL

I strongly recommend that the central government to formulate techno legal laws  urgently for online gaming and online gambling industry of India. This is required as the situation has become complex day to day due to inaction on the part of various states and central government. Good governance of Law, strengthening respective wings of concerned departments, involving NGO’s to initiate debates, seminars at all possible and applicable areas, etc. are my proposals to control the impact of Online Games on Young Indians, leaving victims as well as to eradicate Gambling, betting etc. to the maximum extent.

Role Of National Company Law Tribunal & Its Formation

Backdrop

Central government on 1st June 2016 constituted National Company Law Appellate Tribunal and National Company Law Tribunal. NCLT had started its functioning in the month of June in Delhi and other benches metro cities in the month of July. The 1st class action suit has been filed in Mumbai and therefore, the functioning of NCLT has begun. The Authors via the means of this Document review try to probe into the notion, nature and scope of powers of National Company Law Tribunal.

Specialized tribunal and its genesis.

The demand of a specialized tribunal was presented by the Hon’ble Supreme Court of India in the judgement of S.P. Sampath Kumar v. Union of India[1] where Hon’ble court adopted the alternative institutional mechanism theory and held that since independence the population of the country is constantly increasing and because of which disputes before the courts are also increasing which creates a burden on court to take up the matters. Furthermore, the report presented by Shah Committee[2] in relation of specialized tribunal said that there is an urgent need of reform the laws in relation to setting up of independent tribunal because of backlogs of cases before the courts[3].

The 124th Report presented by the Law Commission of India in year 1988, presented its point of view that as the time progressed different fields of laws are being made and because of which different kinds of disputes has also been there which is the main cause of backlogs of cases therefore on the urgent bases there is a need to establishment of independent tribunal. Therefore, the need of establishment of specialized tribunal has now been taken seriously by the legislature because of which National Green Tribunal for dealing with the cases of environment , Central Administrative Tribunal to deal with the service matters were constituted. Further, now legislature by passing the Companies Amendment Act, 2015 constituted a specialized tribunal for dealing with corporate cases[4].

Meaning of NCLT & NCLAT

The NCLT is a quasi-judicial authority incorporated by the virtue of the Companies Act, 2013 to deal with corporate disputes of civil nature arising under the Act.[5] NCLT has powers and procedures similar to a court of law. NCLT functions on the lines of any normal Court of law in India and is obliged to impartially determine facts of the case and decide matters in harmony with the principles of natural justice and in furtherance of such decisions, draw conclusions from the decisions so reached by it in the form of orders.[6] The orders so formed can help in remedying a situation, correcting a wrong by corporate or imposing penalties/costs and may alter or better the rights, duties, obligations or privileges of the parties concerned. The Tribunal need not adhere with the strict rules with regard to procedural law and appreciation of any evidence.[7]

NCLAT is an Appellate Tribunal and an appellate authority which deals with the appeals arising out of the decisions of the NCLT. It is formed for maintaining check and balance mechanism and to   correct the errors made by the Tribunal if any. It is a transitional appellate forum like a High Court where the appeals go after order or decision of the NCLT.[8] The decisions of NCLAT are further subject to challenge in the Supreme Court of India. The NCLAT reviews the decisions and orders of NCLT and has authority to upheld..

Difference between NCLT and NCLAT

The NCLT has ground level jurisdiction and NCLAT has appellate jurisdiction like that of a High Court. NCLT takes in account the evidences and witnesses to reach up to the conclusion and take decisions and NCLAT usually reviews orders and decisions of NCLT and considers only point of law or fact. Primary task of NCLT is to find the facts and admit the evidence with regard to the suit filed whereas the NCLAT decides matters on the grounds of witnesses and evidences collected.[9]

Background of NCLT

NCLT is the off spring of Eradi Committee. NCLT was planned to be introduced in Indian legal system in the year of 2002 under the Companies Act, 1956 but since the litigation regarding the constitutional validity of NCLT went on for more than 10 years hence it was later notified under the 2013 Act. However, a variance can be witnessed in the functions and powers of NCLT under Companies Act, 1956 Act and 2013 Act respectively. The constitutional validity of NCLT and certain allied provisions were re-challenged and this matter was decided in May 2015. The Hob’ble Supreme Court had maintained the constitutional validity of NCLT but certain provisions were rendered violative of constitutional principles.[10]

Notification of NCLT

Provisions dealing with foundation of NCLT and NCLAT were notified by the central government on 1st June 2016. Initially the powers of Company Law Board have been transferred to NCLT. Further the Center has planned to inject second set of notifications through which the NCLT would be on a equal footing with High Courts and BIFR. NCLT now has the powers of the CLB and the newly injected powers via the Act of 2013.[11]

Transition from CLB to NCLT

There is a change in a method and procedure to approach the cases which are pending u/s 434 before various forums nationwide. The notification of transfer of cases from CLB to NCLT was notified on. On 1st June 2016, all the proceedings which were pending before CLB were handed over to NCLT and Tribunal will now decide all these matters as per the provisions of law. NCLT has been granted a discretionary power to take up the pending cases of CLB from any stage they want to.

Important Laws came into Force

Following sections have been notified by MCA which will come into force after the formation of National Company Law Tribunal

  1. Section 7(7) except clauses (c) and (d) of Companies Act which talks about the warrants given by the tribunal against the declaration filed for incorporation when, company has been formed by presenting false information, hiding any important material facts. This clause has been come into force now because of which rights of shareholders will be protected[12].
  2. Section proviso to Section 14(1) and Section 14(2) which talks about the alteration of the nature of the company. After implementation of NCLT, now if a company by passing a special resolution wants to alter the article because of which conversion of public company into a private company takes place then, there would be a need of approval from NCLT. Furthermore, the approval letter presenting the change should be filed together with the printed copy of altered articles within the period of 15 days[13].
  3. Under Section 55(3) now approval of NCLT would be needed in issue of new redeemable preference shares against unredeemed preference shares, when situation of company is not good and they are not in a position to redeem such preference shares. Furthermore, this can only happen when the company has taken the consent of three-forth holder of these preference shares[14].
  4. Under Section 61 (1) (b) NCLT has the power to approve consolidation and division of share capital because of which the voting percentage of different shareholders will change[15].
  5. Section 62(4), (5), (6) talks about further issue of share capital where company has to appeal to the National Company Law Tribunal, where conversion of debentures or loan obtained through a government is needed into shares of the company, where the terms issued are not satisfactory & acceptable for the company[16].
  6. Under Section 71(9), (10), (11) the Debenture holders can file a petition before the tribunal when company fails to redeem debentures of pay interest thereon, or when the debenture holder has suspicion that the company doesn’t have sufficient balance.[17] It grants the company to redeem the debentures and forthwith payment of principle and interest amount to the debenture holder should be given.
  7. Section 97, 98, 99 of The Companies Act, 2013 deals with the power of Tribunal to call up annual general meeting of the members & if these general meeting are not taken place or company doesn’t comply with the directions of NCLT then each and every officer responsible for the omission would be held liable for the fine as prescribed under the provision[18].
  8. Section 119(4) deals with inspection of minute – books of general meeting which means that each and every important statement in general meeting should be written down and stored as a document. So that when members of company are in need of these documents for inspection then they should be provided to them & if company refused to provide these documents then NCLT can order immediate inspection of minute – books or direct them to send the copy to the required party.
  9. Under Sec. 130 & 131 NCLT can inspect in case if it is informed by certain member of company or statuary that the previous accounts are having fraud or certain affairs which are compulsory for them are not followed properly, casting a doubt on the reliability of financial statements[19]. NCLT has given the powers till the extent in order to ask for reviewing the books of accounts of previous year.
  10. NCLT suo moto, or by the application of central government or any other person can remove the auditor of the company if he had committed any fraud. This will go to an extent of canceling the eligibility of appointment of auditor for any other company for certain period of time.
  11. Section 169(4) is a provision under which NCLT has provided power of restricting the representation of director of the company as mentioned under this section because the director has abused this option.[20]
  12. Furthermore, there are certain other powers which came into existence after the implementation of NCLT, these powers are mentioned under Sec. 213, 206(2), 218, 221 , 224(5), 245 & etc. Previously out of 470 section of Companies Act, 2013 284 were in force but now after implementation of NCLT by the amendment act, most of the remaining 186 sections of the Act shall also be brought into force[21].

Powers vested in NCLT

Some of the significant powers that are currently vested with NCLT are:

  1. Class Action:Fortification of the interest and rights of numerous stakeholders, particularly non-promoter shareholders has always been the apprehension of company law from inception. There have been various improprieties that were identified, where the key scum were the shareholders.[22] The investors found out themselves to be losing on their hard earned money into the investments made in various listed companies they had invested in and such companies later on ended up cheating the stakeholders and shareholders.[23]

The Companies Act, 2013 has a good mix of remedies available for the shareholders in case of any cheating done with the. Shareholders now have a remedy of punishment for the offender along with making other parties involved liable for a civil suit more precisely class action suit.[24] Therefore the offenders and ancillaries will now have to reimburse the shareholders and depositors for the losses suffered by them because of the fraudulent practices of the company.

A class action suit is a technical mechanism that allows plaintiff(s) to file a lawsuit representing a larger group, defined as class. The nature of a class action suit Is similar to that of a representative suit where the interest including rights and obligations of a group of people is represented by a only some of them. A class action suit is useful for the shareholders who are geographically dispersed and are affected from the wrong doings of the company. It can be a handy tool where a few may take legal action for the interest of the large. Section 245 has been incorporated in the Companies Act, 2013 to provide respite to the investors from wrongful actions of the company management or other institutions and consultants who are linked with the body corporate.

Both private sector and public sector companies are the subject to the class action suit.[25] It can be instituted in opposition to any company which is included under the Companies Act, 2013 or any previous Companies Act, 1956. The only exceptions to class action suit are the banking companies.[26]

  1. Registration of Companies: The Companies Act, 2013 now allows to question the legitimacy of any company because of certain procedural errors at the time of registration and incorporation. NCLT is empowered to take a number of steps, ranging from canceling the registration to dissolving the company. The Tribunal can even render the charge or liability of members unlimited. This new approach for de- registration of a company in certain special situations when the is registration certificate is obtained by illegal means or wrongful manner has been provided u/s 7(7) of the Act of 2013.
  2. Refusal to Transfer shares:NCLT also has power to hear complaints of rejection of companies to transfer shares and securities and adaptation of register of members u/s 58 and 59 of the Companies Act, 2013 which were initially were under the ambit of the CLB. Going back to the act of 1956 the remedies available for denial of transfer or transmission were constrained only to shares and debentures of the company but now the horizon of the same has been increased under the 2013 Act and the umbrella now cover all the securities issued by a company. The sections dealing with remedies in case of default or fraud by the company provide express acknowledgment to contracts dealing with transfer of securities; the said contract is signed between 2 or more persons w.r.t. the shares of a public company.
  3. Deposits:Chapter V of the Companies Act, 2013 deals with deposits and the same was notified in varying time periods in the year of 2014 and CLB was the authority to take up cases under this chapter. Now, these powers under chapter V have been transferred from CLB to NCLT with its birth.[27] A clear variation could be seen on the face of it with regards to law on deposits under the act of 1956 and the act of 2013. The provisions with regard to deposits under Companies Act, 2013 were already notified prior to the formation of the NCLT. Distressed depositors now, also have a remedy of class actions suits in order to seek remedy for the acts and omissions on the part of the company which affects their rights in the shoes of the depositors.
  4. Reopening and Revision of Financial Accounts:Prior to the incorporation of the Companies Act, 2013 many instances of falsification were witnessed under the Act of 1956. Hence keeping in mind such instances and to counter and void similar menaces in future, quite a few measures have been incorporated in theAct of 2013. For Example Section 130 r/w 447 and 131 r/w 448 in the new Act provide for prohibiting the company from suomotu starting or opening its bank accounts or auditing its financial accounts. The above said can be only done as per the manner prescribed by the 2013 Act.[28] Section 130 and 131 deal with the situations where in the financial statements in question of the company can be revised and reopened respectively. Section 130 is mandatory provision, where in the Tribunal or Court trying the matter has the power to instruct the company to reopen its financial accounts when some predefined criteria were satisfied or violated by the company and the same is shown before the court of law.[29] Section 131 permits a company to revise its financial accounts but does not speak anything with regard to reopening of accounts of the company. The company can suo moto approach the Tribunal (NCLT) under sec 131 of the new Act, via its director(s) for revising its financial statement.
  5. Tribunal Ordered Investigations:Chapter XIV of the Companies Act, 2013 hands over various powers to NCLT with respect to investigations. Some of the most important powers that rest with the Tribunal are:
  6. a) Power to order investigation[30]:According to the provision of Companies Act, 2013 investigation into the affairs of the company can be ordered on an application of 100 members whereas prior to the 2013 act, 200 members were required for same. Furthermore, if any person who is not related to the company is able to convince NCLT about the existence of circumstances to order a investigation then the tribunal has the power to order an investigation. Any investigation ordered by the NCLT can be conducted either in India or in any other part of the world. Provisions have been drafted for providing and seeking help from investigation agencies and the courts of foreign countries.
  7. b) Power to freeze assets of the company[31]:The NCLT has not only been given the power to congeal the assets of the company so as to use them later when the company comes under scrutiny or investigation, the said investigation can also be initiated on the request of other people in certain circumstances.
  8. Conversion of public company into private company: Sections 13 to 18 of theCompanies Act, 2013 r/w rules regulate the transformation of a Public ltd. Co. into Private ltd. Co. the said conversion requires  a prior confirmation of the NCLT. The Tribunal has the power u/s 459 of the Companies Act, 2013 to impose certain restrictions or conditions and may subject the grant of approval to such conditions.
  9. Tribunal Convened AGM:Shareholders opinion is assessed by the company time to time in its General meetings. The Companies Act, 2013 makes it a mandate for very company to call a “annual general meeting” or ‘AGM’ per year. All the other general meeting(s) are classified as “extra ordinary general meeting”.[32] If the company fails to organize or convene an AGM or an EOGM according to the procedure provided under the Companies Act, 2013, then the NCLT is empowered u/s 97 and 98 of the Act of 2013 to direct the companies or in its own capacity organize general meetings of the defaulter company.There is no difference in provisions under both the Companies Act’s with regard to the AGM and EOGM.[33]
  10. Change in Financial Year:Section 2 (41) was notified on April 1 2014. The Act demands uniformity with regard to the financial year of every company or the body corporate under it and the said financial year must end on 31st March of the year. The only exception to this provision is the application by the companies to the NCLT for the choice of a different financial year. Since NCLT was not in force when Sec. 2(41) was notified hence the powers to regulate and alter the dates of the financial year of a company were rested with the CLB. Thus, all the applications which have been in CLB and are yet to be disposed after the formation of NCLT have now been transferred to the Tribunal.[34]
  11. Auditors Certificate:According to the draft rules presented by MCA, not a company listed or unlisted have to submit an auditor’s certificate to NCLT. This auditor’s certificate is necessary for ensuring conformity with the prescribed accounting standard by MCA. Previously, this certification was mandatory for only listed companies under the guidelines of SEBI. This step will help in reducing the accounting flexibility for unlisted companies & further will deal with the capital reduction process.[35]
  12. Corporate Debt Restructuring(CDR):According to the draft rules of NCLT if more than seventy- five percent of the secured creditors thinks that there is a need of Corporate debt restructuring then they can approach the NCLT. This kind of facility was not provided to the creditors previously under The Companies’ Act, 1956. Furthermore, the applicant is also required to disclose through an affidavit other matters like, auditors report conforming the liquidity test post CDR, safeguards for protection of the creditors, Creditors responsibility statement and valuation report evaluated by registered valuer representing the shares and all the assets of the company.

Conclusion

The present paper reviewed the role of National Companies Law Tribunal under different laws after its implementation this law provided great support to corporate field now after its implementation certain judges who are expert in this field only will judge the cases and provide justice as early as possible. The forming of NCLT/NCLAT is a long overdue reform which has been welcomed by everyone. Tribunal will also have the power to make its own procedures, there will be speedy remedy and matters will be disposed of expeditiously.[36] Now the tribunal have the power to hear class action suits which will give birth to a new and different kind of shareholder democracy in India, which has been followed in different western countries[37].  This will help Indian companies in implementinghealthier corporate governance practices and will expand the worth to the shareholders. Now MCA’s hurdle would be to deal with the period of shifting from CLB to NCLT which should be carefully handled by them, furthermore this could not have taken place if CLB should be dissolved when NCLT would have been formed this would ease the process. Be that as it may, we, as professionals see this as a very welcome step in Indian Corporate Law History and one that will have far reaching effects[38].

[1] (1987) 1 S.C.C. 12.

[2] Chaired by Justice A P Shah, Former Chief Justice, Delhi High Court, Report of the Group of Experts on Privacy, Law Commission of India., http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf (last updated Sep. 10, 2016).

[3] K.J. Vibhute., Administrative Tribunals and the High Courts: a plea for Judicial Review, 29 Indian Law Institute L.J 529,  524-546(1987).

[4] P. Grover, National Company Law Tribunal — A single window institution for Corporate Justice, 7 National Conference of Practicing Company Secretaries. 69, 67-72(2016).

[5] Anonymous, NCLT & NCLAT under Companies Act, 2013, http://taxguru.in/company-law/nclt-nclat-companies-act-2013.html. (last updated Jun. 02, 2016).

[6] V.D. Rao, Challenges before the National Company Law Tribunal?, http://indiancorporatelaws.blogspot.in/2010/05/supreme-court-on-nclt-nclat.html.  (last updated Sep. 5, 2016).

[7]PrachiManekarWazalwar., NCLT – Powers & Functions under Cos. Act, 2013.,http://lawstreetindia.com/experts/column?sid=164  (last updated Sep. 04, 2016).

[8] K.P.M.G, MCA releases draft rules on NCLT, Schemes of compromises arrangements and prevention of oppression and mismanagement, for public comments.,  https://www.kpmg.com/IN/en/services/Tax/FlashNews/KPMG-Flash-News-MCA-draft-rules-on-NCLT-1.pdf. (last updated Feb. 12, 2016).

[9]Supra note 3.

[10] Madras Bar Association v. Union of India, (2014) 10 S.C.C. 1.

[11]Supra note 4.

[12]Kumar Deep., Constitution Of National Company Law Tribunal (NCLT) And National Company Law Appellate Tribunal (NCLAT): Comprehensive Analysis., http://www.mondaq.com/india/x/518892/Corporate+Commercial+Law/INDIA+NOW+TO+BE+FAMOUS+ECONOMIC+DESTINATION+FOR+FDI+INVESTMENT  (last updated Aug. 15, 2016).

[13] § 14, Companies Act, 2013.

[14] K.P.M.G., The central government constitutes NCLT and NCALT and notifies the related sections of the Companies Act, 2013., https://assets.kpmg.com/content/dam/kpmg/pdf/2016/06/firstnotes-22june2016.pdf  (last updated Jun. 22, 2016).

[15]Supra note 12.

[16] Anonymous, Constitution of National Company Law Tribunal (NCLT).,http://blog.ipleaders.in/constitution-national-company-law-tribunal-nclt/ (last updated Jun. 02, 2016).

[17] Anonymous, Power and functions of Registrar etc – NCLT/NCLAT., https://aishmghrana.me/2016/09/02/power-and-functions-of-registrar-nclt-nclat/   (last updated Sep. 04, 2016).

[18]Id.

[19]Supra note 14.

[20]Supra note 7.

[21] Government of India, Proposed amendment and its reasons. http://www.mca.gov.in/Ministry/pdf/Company_AmendentBill_2016.pdf   (last updated Jun. 15, 2016).

[22] S.N. Gupta, National Company Law Tribunal – The Company Court of Tomorrow., www.icsi.edu/docs/…/NATIONALCOMPANYLAWTRIBUNAL-SMGUPTA.doc. (last updated Sep. 02, 2016).

[23]Id.

[24]Shreeja Sen, Class action suits in Indian company law, explained.,http://www.livemint.com/Companies/OhvhdZ4oAPmUCy5Ji9bWjM/Class-action-suits-in-company-law-explained.html.   (last updated Jun. 10, 2016).

[25]Supra note 3.

[26]Anonymous, What is a class action lawsuit, and who can file it?, http://www.business-standard.com/article/opinion/class-action-lawsuit-explained-115081600603_1.html.   (last updated Sep. 03, 2016).

[27]Supra note 3.

[28]Supra note 1.

[29]Id.

[30] P.W.C., MCA constitutes NCLT and NCLAT and notifies certain provisions of Companies Act, 2013 to make them operative.,https://www.pwc.in/assets/pdfs/news-alert-tax/2016/pwc_news_alert_2_june_2016_mca_constitutes_nclt_and_nclat_and_notifies_certain_provisions_of_companies_act_2013.pdf.    (last updated Sep. 02, 2016).

[31]Id.

[32] Supra note 26.

[33] §97 & §98, The Companies Act, 2013.

[34]Supra note 3.

[35]Supra note 8.

[36] Anonymous, National Company Law Tribunal Constituted – New Perspectives for Dispute Resolution., http://blog.scconline.com/post/2016/06/04/national-company-law-tribunal-constituted-new-perspectives-for-dispute-resolution/     (last updated Sep. 01, 2016).

[37]Supra note 7.

[38]Supra note 30.

Analysis Of Various Aspect Of Law Relating To Confessions

INTRODUCTION

The Judicial confessions are those confessions which are made before the Magistrate or in the Court, in due course of legal proceeding. It is essential that they be made of free will of the party and with full knowledge of the nature and consequences of the confessions. Extra judicial confessions are those which are made by the party else where than before a Magistrate on in the Court. The confessions of such type may be express or implied. It includes the confession made to private individuals and to the officers of justice in private capacity such as constables, police officer. They are receivable in evidence after being proved like other facts.

An extra judicial confession if satisfactory proved to have been voluntarily made, may be the basis for a conviction even in the absence of corroboration.[2] There is no controversy that such confessions are receivable in evidence if they are voluntary. The Supreme Court held[3] that, “An extra judicial confession if voluntary can be relied upon by the court along with other evidence in convicting the accused. It will have to be proved like any other fact.

The value of evidence as to the confession just like any other evidence depends upon the veracity of witness of witness to whom it is made.”[4]Extra Judicial confession means admission of guilt to a private person or to a judicial official in a private capacity.

If it always a question of fact to be determined in each case if:[5]When he was drunk or because it was made in answer to which he need no have answered whatever may have been the form of those questions or because he was not warned that he was not bound to make such confessions and that evidence of it might be given against him.[6]Section 29 of Evidence Act covers the field of confession other than those dealt within its proceeding section. In others words it covers extra judicial confession.

Any other view as to the meaning of this section would lead to repugnancy between the proceeding sections and may in certain conditions of things lead to absurdity.[7]U/Sec. 164(3) of Cr. P.C. The directions are given to warn the accused that he is not bound to make a statement are not mandatory, but directory. The failure of the Magistrate to give the warning would not be sufficient to render the confession inadmissible. So section 29 of Evidence Act Section 164(3) of Cr. P.C. can be read together. In Rangappa vs. State[8] – It has been held that in context, this opening dense refers to a confession which has been dealt with in proceeding sections. It postulates that they are admissible under said section, such confessions deals section 29.

The Probative force of judicial and extra-judicial:- Logic may have its appropriate effect in case of the judicial admission when used as probation rather than as levamen probationis. When used as proof, the more deliberate and, as it is said, solemn nature of the circumstances under which the judicial admission is made may confer upon it a probative force not characteristic of the average extra-judicial admission.

The former having been made in solemn for, in a Court of justice constituting the foundation, or a part of the procedure, in causes pending, in which the rights of the parties are states, and by which the Courts are called upon to pass judgment, and upon which they must solemnly decree the rights, of the parties, are for those reasons entitled to greater consideration and weight than when casually or incautiously made, at a time and place, and under circumstances not calculated or intended to affect the rights or interests of others, and, perhaps, unmindful of all the facts and circumstances of the case – Chamberlayne’s Evidence, p. 1236. But the absence of denial in written statement of an allegation in the plaint may amount to an admission only for the purpose of that suit, and cannot have the effect of an admission capable of being proved under this section. Diali v. Lachman, 225 Ind. Cas. 329 : 48 P.L.R. 21 : A.I.R. 1946 Lah. 256.

The Evidentiary value extra-judicial admissions – If we analyze the verbal admissions it may be observed that they ought to be received with great caution, Manu v. Lang, 3A, & E, 702; Curtis v. Hunt, 1 C. & P. 180. The evidence, consisting as it does in the mere reception of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. Greenleaf Evidence p, 200. “In a same way extended experience of jury trials, we have been compelled to the conclusion that the most unreliable of all evidence is that of the oral admissions of the party, and especially where they purport to have been made during the pendency of the action or after the parties were in a state of controversy. It is not uncommon for different witnesses of the same conversation to give precisely opposite account of it; and in some instances it will appear that the witnesses depose to the statements of one party as coming from the other, and it is not very uncommon to find witnesses of the best intentions repeating the declarations of the party in his own favour as the fullest admissions of the utter falsity of his claim. When we reflect upon the inaccuracy of many witnesses, in their original comprehension of a conversation, their extreme liability to mingle subsequent facts and occurrences with the original transactions, and the impossibility of recollecting the precise terms used by the party, or of translating them by exact equivalents, we must conclude there is no substantial reliance upon this class of testimony.

The fact too, that in the final trial of open question of fact, both sides are largely supported by evidence of this character, in the majority of instances, must lead all cautious tries of fact greatly to distrust its reliability.” Vide Judge Redfield’s addendum to Section 200 of Greenleaf s Evidence, 12th Edn. Oral admission should have little weight, if it appears that the witness testifying to the admission is careless in his mode of testifying; that he does not accurately remember the statements; that he is willing to misconstrue them, or that the declarant was misinformed, or did not clearly express his own meaning. A fortiori, where the admission is that of one deceased, the caution should deepen into suspicion for reasons that are obvious and without corroboration is of little value.

Burr Jones Evidence, p. 295. In Kenney v. Murray, 170 Mo, 674 (Am.), the Court said: “Evidence of such declarations, it is true, is admissible, but it never amounts to direct proof of the facts claimed to have been admitted by those declarations; and it is sometimes doubted whether it ought to be received at all when introduced for the purpose of diverting a title created by deed.” “The intrinsic weakness of this class of evidence is further enhanced in any given case by the length of time that has intervened since the declarations were made and the case with which it can be manufactured, and the temptation to do so, when all those by whom it could be contradicted are in their graves,’ Fanning v, Doon, 139 Mo, 392 (Am.). Hence, it is obvious that the degree of weight to be given to admissions depends upon the circumstances under which they were made as shown by the testimony, as well upon the degree of accuracy and truthfulness with which they are related. Burr Jones, p. 295. But where the admission is deliberately made precisely identified, the evidence it affords is often; of the most satisfactory nature. Rigg v. Curgenven, 2 Wills 395. In such a case it is neither weak evidence, nor does it require corroboration. Commonwealth v. Galligan, 113 Mass, 202. On the other hand, when admissions are so proved, they may have great inherent force as evidence. Dreher v, Fitchburg, 22 Wis. 675. So, what a party to a litigation has admitted to be true may be presumed to be true and, until he rebuts it, the Court will take it as established. Gulam v. Mahomed, 65 Ind. Cas. 398 : A.I.R. 1922 Oudh 98. A statement in a document should, prima facie, be accepted as true as against the explanation unless it can be shown by independent evidence to be false. Irshad v. Mt. Kariman, 22 C.W.N. 530 : 28 C.L.J. 173 : 20 Bom. L.R. 790 (P.C.). An admission is the best evidence against the party making the same, and unless it is shown that it is untrue and is made under circumstances which does not make it binding on the party, must be presumed -to be true.

The weight of the admission increases with the knowledge and deliberation of the speaker of the solemnity of the occasion on which it is made Nanilal Das v, Nutbehari, 38 C.W.N. 861. Unless admissions are contractual or unless they constitute an estoppel they are not conclusive, but are open to rebuttal or explanation, or they may be controlled by higher evidence. Bur Jones, p. 296 in delivering the judgment of the Court, observed: “There is no doubt but that the express admission of a party to a suit, or admissions implied from his conduct, are evidence, and strong evidence against him, but, we think, he is at liberty to prove that such admissions were mistaken or were untrue, and is not estopped or concluded by them unless another person has been induced by them to alter his condition. In such a case, the party is estopped from disputing their truth as against that person (and those claiming under him) and that transaction, but as to third parties he is not bound,’ cited with approval by Lord Atkinson in Chandra v. Chowdhury. In Newton v. Liddiard, 12 B. 926, Lord Denman approved and adopted this statement of the law, and Ex parte Morgan. The rebuttal will be in accordance with the circumstances of each particular case, but must be clearly established, and must show fully the reasons why such admissions should not be binding. The party confesses its untruth; he may show mistake or that the response which formed the admissions was made not in a serious but in a jocular manner; or that the admission was made in ignorance of the true state of the facts. Sidu v. Netai, 9 Ind, Cas. 806. So, an admission obtained by misrepresentation of fact is of no value, especially where the person making such admission is a female. Talok v. Jogannath, 117 P.W.R. 1911. Gratuitous admission can be withdrawn unless there is some obligation not to withdraw it.

The mere fact that certain admissions made in previous suits constituted a good defence to the suits in which they were made, cannot lead to the conclusion that they were untrue. Where in cross-examination a witness admits that a statement previously made by him relative to a certain fact is a false statement, he ought to be asked in re-examination by the prosecution or at any rate by the Court, why he made a statement which was false. The mere fact that the witness acknowledges the previous statement to be false is no justification for rejecting such previous statement, if on other grounds the Court is able to reach the conclusion that the statement is in substance true. An admission operates merely to shift the onus and raises only a rebuttable presumption. Admissions are of no evidential value once they are found untrue. A general statement by a witness that a number of persons admitted having committed a crime is valueless without some indication as to which of the persons made the admission in question and without some particulars of what was actually said. The admission of a wife in a divorce proceeding unsupported by corroborative proof should be received with utmost circumspection and caution. If a person admits a right, it is necessary implication that he also admits the legal consequences of that right. Where a guardian is appointed to minor for purposes of litigation in order to look after his interest, any admission made by minor against his own interest is waste paper. A statement made by a person in his own favour is inadmissible in evidence on his behalf. Title by law cannot pass by admission when the statute requires a deed.

A purchaser cannot be prejudiced by admission subsequently made to the debtor whose property has been sold. An admission by an attorney unless satisfactorily explained away, furnishes cogent evidence against the client. But an erroneous admission of the pleader of a party does not bind the parties.A previous admission cannot be taken in a later case unless it is legally proved on record. Admissions are always evidence against the party who makes them, but their evidential value varies very much in accordance with the circumstances, and a Court is quite at liberty to reject them if it is satisfied from other circumstances that they were untrue. The effect of acknowledgement of paternity validly made as establishing marriage between the parents of the acknowledged paternity may be a matter of substantive Mohammedan law; but the effect of an admission of marriage, as proof of such marriage, is a question merely of adjective law governed by the Indian Evidence Act. Its probative value must depend on the surrounding circumstances. Though the mere production of an account-book is not sufficient to charge a person with liability, still with regard to admission, i.e. entries, against the producer’s own pecuniary interest the law dispenses with all proof save that the book has been kept by or under the authority of the producer. Though the filling of a suit for arrears of rent after a decree for ejectment may amount to an admission recurrent as a piece of evidence under Section 17, it is no conclusive proof and where there is no institution to re-admit and the rent is not paid in the belief there has been a re-admission to the tenancy there is neither a re-admission to tenancy nor any estoppel. An admission is not an inconclusive unless it amounts to estoppel. It may be proved to be wrong but unless it is so proved it is a very strong piece of evidence against the maker thereof and is decisive of the matter though not conclusive. Ghasiram v. Omkar, 34 Cut. L.T. 328; A.I.R. 1968 Orissa 99.

The Judicial confession in Sec. 164 of the Criminal Procedure Code:-  The Judicial confession indicate confessions which are made on a magisterial investigation. Section 164 of the Criminal Procedure Code contains the provisions for recording confessions by Magistrates. The evidence of witness who are sent up by the police for the purpose of having their statements recorded under Section 164, Criminal Procedure Code, and who have been presumably in police custody until their production before the Magistrate, should not be recorded by such Magistrate, unless he has some assurance that their attendance and statements were voluntary. The provision of this section is imperative. The proper course for a Magistrate to presume when an accused person is brought under the above section of the Code before him is to ask him, if he wishes to make any statement or confession. If he says he does not, the Magistrate should write down the statement or confession (as the case may be) and ask the accused such questions as may be necessary to show clearly or ascertain clearly what his meaning is. The examination of the accused must not be made with a view to eliciting by constant questions, the truth of his mouth as though he were a witness. Before recording a confession the Magistrate should enquire how long the accused has been in custody.

The failure to do this, however, is no irregularity and does not invalidates or cast any doubt upon the genuineness and voluntary nature of the confession. A Magistrate should ask the prisoner, before recording as to the circumstances under which it was made. A Magistrate must not put any question to accused which tends to incriminate him, In re Rayappan, 2 Weir, 136. Section 164, Criminal Procedure Code, should be read together with Section 24, 25 and 29 of the Evidence Act. If so read we get the following rules : (1) that a confession shall not be made to a police-officer; (2) that if a person in police custody desires to make a confession, he must do so in the presence of a Magistrate; (3) that the Magistrate shall not record it unless he is upon enquiry form the person making it, satisfied that it is voluntary; (4) then when the Magistrates records it, he shall record it, he shall record it in the manner provided in Section 164, Criminal Procedure Code; (5) that only when so recorded the confession will become relevant and admissible in evidence. It is neither expressed nor implied in Section 164 that the statement of an accused person cannot be recorded unless it is a confession. The distinction made in the section is between statements that are the confession and statements that are not, and not between the persons by whom statements of either character are made, the object being to prescribe different modes of recording. It is discretional with a Magistrate to act under Section 164 and prepare a record. Great care and circumspection are necessary in recording confession under Section 164 of the Criminal Procedure Code. It is necessary to record the questions put to the accused to ascertain whether the confession was voluntary, to tell him that after his confession he will not have to go back to police custody, to warm him of the consequence which will ensue if he falsely implicate himself in the hope of release and to ask him whether the police or any other person has subjected him to any ill-treatment.

No hard and fast rule can or should be laid down as to the procedure which should be adopted when an accused person is placed before a Magistrate for the recording of a confession under Section 164, Criminal Procedure Code, but it is not sufficient to put one comprehensive question as to the nature of the confession or to make a note at the commencement of the record of the confession that the accused has been warned not to confess through any fear or inducement and that the police of the thana have been removed from the Court. A Magistrate ought, by putting questions which occur to him, to make himself conscientiously satisfied that, the man is a free agent and the confession is voluntary and had not been procured by threats or inducements. Where a Magistrate asked a person who was charged with an offence. “What offence are you going to confess 1” Instead of ascertaining whether the accused wished to say anything at all, held that the Magistrate had not acted properly.

A Magistrate should ascertain whether a confessional statement was made voluntarily, at the beginning of the statement, and not at the end. Where after the prisoner had made a long confessional statement, ‘he was told by the Magistrate that if he stated all that he knew, he would then be examined as an approver and as a witness, held that the conduct of the Magistrate was highly improper. There is no provision for the admission in evidence of a confession made to a Magistrate unless it is recorded in the manner prescribed by law; and even if such confession may, under special circumstances be proved otherwise, where the confession of the accused is shown to have been made under the inducement, such fact deprives the evidence of its value. Where a Magistrate inadvertently omits to certify the voluntariness of a confession recorded by him under Section 164, Criminal Procedure Code, the defect may be cured by the evidence of the Magistrate, Ram Sanchi v. Emperor, 9 Ind. Case. 148: 12 Cr. LJ. 15. It is for the prosecution to establish the admissibility of a confession. It is duty of the Court to find out whether the confession is true or not. If it is not true the accused cannot be convicted upon it. Brahma v. Emperor, A.I.R, 1947 Oudh, 95 : 228 Ind. Cas. 21 : 48 Cr. LJ. 27.

The confessions carrying inculpatory and exculpatory statements:-

The definition attempted by the Privy Council has found favour with the Supreme Court. In its decision in Palvinder Kaur v. State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami v. Emperor, over two scores. Firstly, that the definition of confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence, and secondly, that a mixed up statement which, even though contains some confessional statement, will still lead to acquittal, is no confession. Palvinder was trial for the murder of her husband along with another whom all the time remained absconding. The husband’s body was recovered from a well after it had already suffered about two month’s decomposition.

The post mortem could not even reveal whether death was due to poisoning or what. In her statement to the court the accused said that her husband , a hobbyist photographer, used to keep handy photo developing material which is quick poison; that on the occasion he was ill and she brought him some medicine; that the phial of medicine happened to be kept nearby the liquid developer and the husband while going for the medicine by mistake swallowed the developer and died; that she got afraid and with the help of the absconding accused packed the body in a trunk and disposed it off into the well. The statement thus consisted of partly guilty and partly innocent remarks. It was partly inculpatory in the sense that it confessed to something wrong and partly exculpatory in the sense that if accepted it would totally absolve her of any guilt. The lower courts sorted out the exculpatory part and acting on the inculpatory part announced her to be guilty of the murder of her husband by poisoning him. But the Supreme Court did not countenance this approach. The court thus accepted the inculpatory part of the statement and rejected the exculpatory part. In doing so it contravened the well-accepted rule regarding the use of confession and admission that they must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only inculpatory part, while rejecting exculpatory part as inherently incredible. Reference in this connection may be made to the observation of het Full Bench of the Allahabad High Court in Emperor v. Balmukand with which we fully concur. The confession there comprised of two elements: (a) an account of how the accused killed the woman and (b) an account of his reasons for doing so. The former elements being inculpator and the latter exculpatory, the question referred to the Full Bench was: Can the court if is of opinion that the inculpatory part commends itself, and the exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter ?

The answer to the reference was that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. Similarly, in a case before the Rajasthan High Court, the accused said that he was in the room when his wife killed their children and then committed suicide, it was held that the court could not accept the part of the statement by which he confessed to be there and reject the rest. Under English law confession not rejected only because of exculpatory statements.

The principle of English law is that:

The whole statement must be left to the jury who may attach different weight to different parts of it. The same rule applies in the case of confessions. This principle was established overruling earlier authorities in R. v. McGregor, and again in R. v. Storey, In the Me Gregor case, LORD PARKER, C.J. supported the better opinion when he said:

‘The better opinion seems to be that as in the case of all other evidence, the whole should be left to the jury to say whether the facts asserted by the prisoner in his favour are true.”

In R. v. Storey, a girl was prosecuted along with another for possessing a dangerous drug, which was recovered from her apartment. The other man was also in the apartment and her defence was that the whole contraband belonged to him. This was in fact no confession, but an explanation that she was not guilty. Even so the Court of Appeal held that the statement should go to the jury. “The fact that the cannabis was on the applicant’s bed in her flat was in itself some evidence of possession to go to the jury. Her unsworn explanation, although, if true, it would have been a complete answer to the charge, did not cancel out or nullify the evidence which was provided by the presence of cannabis.

It was ultimately for the jury to decide whether that explanation was or might be true. Thus, the principle has crystallized that a confessional statement should not be rejected merely because it also carries with it exculpatory statements. It should be for the jury to say what weight shall be given to several parts of the statement, for they may well believe that part which charges the prisoner, and reject that which tends to exculpate him.

The Supreme Court approach to English Law:

The Supreme Court of India also appears to have been influenced by this development. Its decision in Nishi Kant Jha v. State of Bihar, marks the turning point. The accused was charged with murdering his friend while traveling with him in a train. He was seen washing his clothes in a river flowing near the station where the murder was detected. The news spread to a nearby village and villagers arrested the accused. Blood-stained clothes, papers and a knife were recovered from him, and the blood on them agreed with the blood of the deceased.

He admitted washing blood­stained clothes, but explained the presence of blood by two contradictory statements. In one of them he tried to explain away the blood by saying that there was a struggle between two persons in the compartment one of whom killed the other and some blood spilled over him in the act of rescue. In the other version, he said that a herd boy had robbed and injured him. The High Court did not accept these explanations and confirmed the conviction for murder. The Supreme Court upheld the conviction and pointed out that there was nothing wrong in relying on a part of the statement and rejecting the rest, and for this purpose the court drew support from English authorities. The court did not mean to overrule Palvinder, Hanumant or Balmukund but distinguished the present case from them. Here there was enough evidence to reject the exculpatory part of the statement of the appellant.

The High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime. In the prosecution of Palvinder there was no other evidence of the circumstances surrounding her husband’s death except her own statement and, therefore, the court had no choice but to hold that the statement should be accepted or rejected as a whole, In Hanumant, also, where an officer was prosecuted for forgery in tampering with a tender document and a letter, there was no choice, the confessional statement being the only evidence on record. The letter in question was typed on a machine which was purchased by the office much later than the date of the letter, which shoed that the letter was deliberately antedated. The explanation of the officer was that the machine was with them for trial before ultimate purchase. There being no other evidence to contradict this explanation, the court held that the statement should be accepted or rejected as a whole. So was true of the Balmukund case. The explanation offered by the accused as to why he killed his wife was the only evidence on record of his guilt. But in Nishi Kant Jha’s case, the explanations were inconsistent in them and also with the other evidence on record, and were, therefore, so obviously false that there was no chance of justice being miscarried in discarding them. This approach has again been adopted by the Supreme Court in Keshoram v. State. The accused admitted that he had struck the deceased with a sharp weapon but that he had done so to defend himself and his farm labour whom the deceased was going to attach while they were working in his (accused’s) field.

The self-defence part of the admission turned out to be false as there was evidence to the effect that the deceased was attacked while he was working in his farm field. The court accordingly rejected that part of the confession by which the plea of self-defence was set up and acting upon the rest of it convicted the accused. Statement in the first information report which was furnished by an accused person was not allowed to be used against another accused person. The court said that such statements could not be used even against the maker unless he offers himself as a witness in which case a limited use could be made for contradicting or corroborating his testimony. Statements recorded during an inquiry under Section 108 of the Customs Act, 1962 or during confiscation proceedings are not confessions made by an accused person within the meaning of Section 24. Such a confessional statement although subsequently retracted, can be the sole basis of conviction if it is otherwise truthful and voluntary.

The outline of Confession:

A confession may occur in any form. It may be made to the court itself, when it will be known as judicial confession or to anybody outside the court, in which case it is called an extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P. The accused that was charged with the murder of his daughter-in-law with whom he was always quarreling was seen on the day of the murder going out of the home, saying words to the effect: “I have finished her and with her the daily quarrels.”The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it should be communicated to some other person.

The voluntary nature of Extra-judicial confession:

“It has always been the fundamental principle of the courts that a prisoner’s confession outside the court is only admissible if it is voluntary. In deciding whether an admission is voluntary the court had been at pain to hold that even the most gentle threats or slight inducements will taint a confession.”Recognizing the value of an extra-judicial confession, the Supreme Court remarked: The learned Sessions judge regarded the extra-judicial confession to be very weak type of evidence and therefore refused to rely on the same. Here the learned Sessions judge committed a clear error of law. Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. In the instant case, the extra-judicial confession was proved by an independent witness (Sarpanch) who was a responsible officer and who bore no animus against the appellants.

There was hardly any justification, for the session’s judge to disbelieve the evidence of the Sarpnach particularly when the confession was corroborated by the recovery of an empty cartridge from the place of occurrence. In still another case the Supreme Court remarked that an extra-judicial confession to afford a piece of reliable evidence must stand the test of reproduction of exact words, the reason and motive for confession and the person selected in whom confidence is reposed. There was no evidence of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. Acting upon this principle the Supreme Court rejected the evidence of confession by accused to another under-trial. Similarly, where the confession sought to be proved was supposed to have been made to a witness for the purpose of seeking his help to save the accused from harassment, but it was not shown how the witness was in a position to help him; the confession was described to be unreliable.

An accused of murder and robbery confessed before the village Administrative Officer. His statement in recording it and then submitting it to police was found to be reliable. The statement of the accused in the trial court than the was innocent did not have the effect of retracting the confession or destroying its evidentiary value. The confession was corroborated by several other circumstances such as recovery of jewellery and other valuable stolen in connection with the killing. The accused was also absconding immediately after the incident. An extra-judicial confession is, in the very nature of things a weak piece of evidence. There should be no difficulty in rejecting it if it lacks in probability. A confession which was cited in evidence was made by the accused persons to the Sarpanch of some other village. It was held that in the absence of any reasons to show why and how the accused had reposed such a confidence in that Sarpanch as to confess their guilt before him, the confession was held to be improbable. A confession made by a large number of persons before the village Panchayat was held to be more in the nature of a vague and general declaration.

It could not come within the definition of confession which requires specific admission of guilt. No reliance could be placed upon such a confession. A confession made by a person at an arrack shop after consuming some liquor to another person who, being otherwise stranger, dropped there by chance at that very time was held to be not reliable. Where the prosecution witness to whom a confession as supposed to have been made was produced before the magistrate after a gap of one month for recording the confession made to him, the Supreme Court ruled that the confession had lost its reliability because of .the gap. Where no reason was shown why the accused persons went to the witness and one of them told him of their crime, ‘the confession was held to be not believable. Neither the witness was much known to the accused for confiding in him, nor was he an influential person to be of any help. In recognition of this principle, the Evidence Act indicates in sections 24 to 27 to circumstances in which a confession is not voluntary and, therefore, not relevant.

The confessions to police in England:

English law does not discredit confessions to police as a rule. If the judge feels confident that there was no oppression and the statement was free, fair and voluntary, he may admit it. A 24 years old State nurse of previous good character was jointly charged with three others for possessions of cannabis resin and knowingly permitting it to be smoked at their residence. She was arrested in the noon and detained in a cell, which was exceptionally cold and was kept there till late evening. She was all alone in the cell, was not told what the time was, nor served any refreshment till 7.15 p.m. when a policeman gave her a cup of tea. During this period she was subjected to two spells of strenuous interview by the police and excise staff. The court held that despite the lack of impropriety on the part of the police, all the above circumstances combined to sap the defendant’s free will in such a way that her admissions were obtained oppressively and also in breach of judge’s rules as to provision of refreshments.

The confession in custody of police:

No confession is made to anybody while the person making it is in police custody is provable. The section will come into play when the person in police custody is in conversation with any person other than a police officer and confesses to his guilt. The section is based upon the same fear, namely, that the police would torture the accused and force him to confess, if not to the police officer himself, at least to some one else. The confessions made to a police officer or to anyone else while the accused is in police custody, are not different in kind and quality. Both are likely to suffer from the blemish of not being free and voluntary. “The policy objectives underlying the limitation are clear. It is manifest to every one’s experience that from the moment a person feels himself in custody on a criminal charge, his mental condition undergoes a very remarkable change and he naturally becomes much more accessible to every influence that addresses itself to either his hopes or fears.

The meaning of police custody

The Police custody means police control even if it be exercised in a home, in an open place or in the course of a journey and not necessarily in the walls of a prison. All circumstances in which the accused remains in the custody of the police while inquiries are made by them have been considered to fall within the purview of the statutory bar. The courts have declined to recognize in this context any distinction between lawful and unlawful police custody. Moreover, the concept of police custody does not necessarily connote the immediate presence of police officers, so long as the accused persons are aware that the place where they are detained is really accessible to the police.”

Thus, where a woman arrested for the murder of a young boy was left in the custody of villagers while the chowkidar (watchman) who arrested her left for the police-station she confessed in his absence, while the accused being carried on a tonga was left along by the policeman in the custody of the tonga-drive and he told of his criminality to the tonga-driver and where the accused was taken to a doctor for treatment, the policeman standing outside at the door, the accused confessed to the doctor, a confession to the village Pradhan accompanying the police officer after the accused is in effective police control, he is in police custody and temporary absence of the policeman makes no difference. The legality of the custody is also immaterial. If there is “custody” in fact the confession will be vitiated even if the accused was illegally detained. An accused made his confession to two persons of the locality. Subsequently, the confession was reduced to writing inside the police station on the accused being brought there. The Supreme Court said that such extra-judicial confession was not hit by section 26. Explaining the concept of custody, the court said:

“Such custody need not necessarily be post-arrest custody. The word “custody” used in Section 26 is to be understood in a pragmatic sense. If any accused is within the less of surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance for the purposes of the section. If he makes any confession during that period to any person be he not a police officer, such confession would be held within the banned contours outlines in section 26.”

The implication of this aspect to the fact of case the court said that the confession was not made while the accused was anywhere nears the precincts of a police station or during the surveillance of the police. The mere fact that the confession spoken to those witnesses was later put in black and white is no reason to cover it with the wrapper of inadmissibility. Self incriminating statement made by party when his mind is not in natural state ought to be received as evidence. His state of mind should be taken into consideration by the jury as an informative circumstance. Thus a confession made by a prison then drunk has been received by a party in state of total intoxication are void.

It is otherwise where intoxication is partial and not sufficient to prevent his being of aware of what he is doing. A person has been hand to say while talking in his sleep seems not be legal evidence against him. But these subjects have some exception:

  1. Deception: The confession obtained by deception if otherwise admissible does not make it irrelevant. Where a prisoner in jails on charge of felony asked the turnkey of the jail, to put the letter into the post for him. After promising to do so, the prisoner gave him a letter and the turnkey instead of putting the letter into the post, gave it to be prosecutor. It was held that the contents of the letter were admissible in evidence against the prisoner.[9]Where a confession has been obtained by artifice deception but without any use of promise or threats is admissible where the confession is obtained from an person by false representation made to deception practiced upon him, it will not be inadmissible evidence.[10]A confession is not excluded because of any illegality in the method of obtaining it or in the speaker’s situation at the time of making it. The general principle is the illegality of the source of evidence is no bar to its receptor.

It is not for any such reason that confessions are rejected. So the exclusion of confession is not due to principle of public faith on private pledge of secrecy. It follows that the use of trick or fraud does not itself exclude confessions induced by means of it. In a case it was held that the rules of evidence contained in section 24 to 29 are based on certain rules of procedure adopted in English jurisprudence.

According to the rule Sec. 29 does not cover confessions recording by Magistrate U/S 164 Cr. P.C.[11]Section 29 says that if a confession is otherwise relevant, it does not become irrelevant because the accused was not warmed that he was not bound to make such a confession.

If any of the reasons mentioned in Section 24 to 28, the confession is inadmissible than there is no question of applying the provision of section 29 at all section 29 proceeds to invalidate or negate possible objections other than mentioned in section 24 to 28 to that may raise against it admissibility. The principles of testimonials not trustworthy are being the foundation of exclusions. The confessions should taken into account unless their case was such that the accused was induced to untruly confess. Briefly was that inducement of such nature that there was risk of false confession.

  1. The Promise of Secrecy: The confession will not become inadmissible obtained from the accused by a promise of secrecy. The accused made their confession to a commissioned officer of the regiment who stated to the accused that he had already obtained information from another person. He promised of secrecy if they told him truth. It was held that the alleged deceptions inducement were covered by the provision of section 29.[12] It does not make a confession inadmissible though a confession is thus created in mind of prisoner and he is thrown of his guard.
  2. Drunkenness : Confession made in state of intoxication are governed by general principle of testimonial capacity that is capacity of observation, capacity of recollection, capacity of intelligence and truthful narration etc, Therefore are usually admissible. It is only where intoxication is produced by a person desirous of obtaining a confession that its trust worthless becomes really doubtful. So to of the confessions during sleep or hypnotic influence.

A confession must be judged with reference to the time of its utterance. The mere fact of intoxication at the time does not itself exclude the confession.

  1. Want of caution: A voluntary confession is inadmissible though it does not appear that he was no so warned. In some cases section 164 is not complied with the confession admissible. In other words, a confession otherwise admissible does not become inadmissible merely because the accused was not bound to make confession.

It the irregularity appears to the court that whether confession was voluntary or not the court would not hesitate to reject the confession as being inadmissible on the ground that it is not voluntary.[13]Section 164(2) was not a mandatory but directory only.[14] The Rajasthan High Court held that although in view of specific provision of section 29.[15] The more absence of warning U/S 164(2)[16] would not make the confession recorded inadmissible.[17] The court has to satisfied that the accused knew that he was not bound to make the confession.[18]

  1. Cross-examination: The mere fact that a statement had been elicited by a question of fact did not make irrelevant whether such statement is material otherwise. The confession is elicited by questions put by a person in authority, is admissible in evidence. It being impossible to discover. The facts of crime without putting question. If the questions we properly put after due warning the prisoners: answer were held to be admissible in evidence.[19] There was no settled practice with respect to the admissibility of confessions made by persons in response to questions put to them while in custody.[20]In a case before Calcutta High Court, it was held that mere fact that a statement had been elicited by a question did not become it irrelevant as a confession though; the fact that it was so elicited might be material to the question, whether such statement was voluntary.[21] In India, the law expressly provides for the examination of the accused persons by courts.[22]

Conclusion: It is a well settled law that if once police custody has commenced, the mere fact that for a temporary period the police discretely withdraw from the scene and left the accused in charge of some other person will not render the confession of the accused before that person admissible. Once an accused is arrested by a police officer and is in his custody, the mere fact that for some purpose or other the police officer happens to be temporarily absent and during this temporary absence leaves the accused in charge of a private individual does not terminate his custody, the accused shall be deemed to be still in police custody. The test, therefore, is whether at the time when the person makes an extra judicial confession, he is a free man or his movements are 141 R. v. Vahala (7 Bombay H.C. 56). Sec. 161 controlled by the police either by themselves or through some other agency employed by them for the purpose of security of such a confession. With the above study it seems that the relevance of the statement of the accused is an important fact in conviction of the accused. But there are various factors involved in the relevance of the statement of the accused.

 

—————–

[1] Shiv Raman and Nidhi Sharma, Assistant Professsor, Amity law School, Amity University Haryana. Email- [email protected] & [email protected]

[2]      Bisheshar Dhani Ram vs. State 1963 ILJ 645.

[3]      Mulk Raj vs. State of U.R AIR 1959 SC 502.

[4]      Mulk Raj vs. State of U.P. AIR 1959 SC 502.

[5]      State of Orisssa vs. Machindra Majhi AIR 1964, Orissa 100.

[6]      Daskanda vs. State 1976 Cr. L.J. 2010.

[7]      Section 29 of Indian Evidence Act.

[8]      Cr. P.C. 1973.

[9]      Emperor vs. Mohd. Baksh Karim 8 Bom. L.R. 507.

[10]     R. vs Derrington (1826) 2 C & P 418.

[11]     Wigmor’s Law of Evidence.

[12]     1954 Bombay 285.

[13]     Cr. P.C 1973

[14]     Cr. P.C. 1973

[15]     Evidence Act 1872.

[16]     Cr. P.C. 1973.

[17]     Dhula vs. State AIR 1957 Raja 141.

[18]     State of Orrisa vs. Jayadhar 1975 Cul L.R. 433.

[19]     R. vs. Miller 18 Cov. C.C. 54.

[20]     Ibrahim vs. R. 1914 P.C. 155.

[21]     Barindra vs. R. 1909 37 Cal. 467.

[22]     Cr. P.C. Sec. 313.

PROCEDURAL ASPECTS OF CHILD ABUSE: COMPARATIVE STUDY OF INDIA AND UNITED KINGDOM

ABSTRACT

Child abuse is taken as a serious problem in the countries around the world and should be dealt with caution and care as it is a question of children, not more than 5 to 15 years of age in general.  Abusing a child should be considered as a grave offence and punishment should be serious in nature. Child should not only be protected and cared for before but specially after he or she is being abused. Then the major protection should be taken to not hamper the psychological condition of the already abused child.

The project on child abuse a comparative study will deal with the two countries mainly India and United Kingdom. It will look into the procedural aspects of the laws made for protecting the children and victims of the abuse.

 

INTRODUCTION

Child abuse has been a major problem in the countries around the world. Children are abused in many ways by paedophiles, their relatives or even their parents. The main problem comes when there is no reporting of these incidents as many children are not aware of the abuse happening to them or they are not comfortable telling it to their parents. If they do tell then many times the abuser is the relative and family members try to curb the incident. Many times its their own parents. Countries are coming with new procedures to try and give justice to the children facing abuse of any kind.

In UK alone 50000 cases of child abuse were reported by police in the year 2014. 85% of the children are not getting any help or treatment after the abuse. Actual count of the children in UK was estimated to be 450000. Many programmers of educating the children about the many kind of abuses are run in the schools. Schools are now also trying to provide counseling for the children who are the victims of any kind of abuse. In the present time almost 57000 children are identified as needing care and protection from abuse. NSPCC claims that every 20 children in UK are victims of child abuse. Many efforts are being made by different organizations to help and curb the exploitation and abuses happening around the globe and in their own country. Groups like Action For Children and BACA offers help to children as well as their parents whenever needed.

Situation in India is also nearly as same as UK. Government commissioned surveys show that the more than 53% of sexual abuse of children is not reported. Backdrop of Nithari killings brought into focus child safety issues in our country. Children ranging between 5 years to 12 years of age were reported victims of high level of abuse. Survey done in 13 States in India which has sample size of 12447, revealed 53.22% of children faced one or  more forms of sexual abuse. Andhra Pradesh, Bihar, Assam and Delhi reported the highest percentage. The study interviewed 2324 young adults between the age of 18 to 24 in which almost half of them were physically or sexually abused as children. In India every second child is the victim of emotional abuse where 83% of the cases parents were the abusers.

 

Child abuse Protection and Procedure – an Indian Overview:

Major policies relating to child abuse:-

Child abuse refers to the intentional or unintentional or perceived maltreatment of a child habitual or not habitual, including the following :-

  • Psychological and physical abuse, neglect, cruelty, sexual and emotional maltreatment. Any act, deed or word which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being.
  • Unreasonable deprivation of his/her basic needs for survival such as food and shelter; or failure to give timely medical treatment to an injured child resulting in serious impairment of his/her growth and development or in his/her permanent incapacity or death. [1]

 

Code of criminal procedure, Indian penal code and Protection of Children from Sexual Offences Act are some legislation identifying the laws and procedure related to children. Code of criminal procedure is the first and general code of procedures identifying child abuse and its reporting and procedure.

Recording of statement:-

Under Section 164 of the Code of Criminal Procedure (CrPC), a magistrate should record the statement of a child in the exact language spoken by the child. The statement must be recorded in the presence of the child’s parents or another person of the child’s choice. The assistance of a qualified translator or interpreter can be taken and as far as possible, the statement must be recorded by audiovisual means. The Magistrate should also ensure that the child and the parents or representative are given a copy of the police report on the matter. While recording the statement of a disabled child, the assistance of a qualified special educator or a person familiar with the manner of communication of the child or an expert in that field, must be sought.[2] Once the police have registered the case a fixed procedure of CrPC has to be followed. Once the police have registered the first information report of the complaint then the investigation officer has to be informed which after collecting evidences files the case in the designated court of prosecution.

Investigation :-

Sec 173 of the Act states the investigation done in the case of child sex abuse in a time bound manner-(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”;

  1. b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—

“(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.[3]

In cases in which the accused persons include a juvenile as well as an adult, the child victim will have to testify twice as per the current legal framework. Most respondents agreed that this was not desirable, but agreed that this was unavoidable because of the existing statutory framework. Similarly, children have to repeat the statement made to the Magistrate under Section 164, CrPC before the Special Court as the CrPC does not allow the earlier statement to be admitted as examination-in-chief, unless the child is disabled.[4]

Protection of children from sexual offences act 2012

The POSCO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from sexual abuse. It also intends to protect the child through all stages of judicial process and gives paramount importance to the principle of “best interest of the child”. Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five offences against children that are covered by this act.[5] POCSO has sated many child friendly procedures which were not there earlier in the code of criminal procedure. It also gives for special courts for children.

Questioning children:-

Section 33(2), POCSO Act prohibits the Special Public Prosecutor and the defence lawyer from putting questions to the child directly. All questions during the examination- in-chief and cross-examination must be routed through the Special Court. It is the judge of the Special Court who can pose the questions to the child. Under no circumstances, can the questions be posed by the Special Public Prosecutor, defence lawyer, or the Investigating Officer. Further, under Section 33(6),  POCSO Act, the Special Court should not allow aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.[6]

Creation of a child friendly atmosphere:-

Sec 33(4) helps in creating the children friendly environment in the court by asking their parents or guardians or any relatives whom they are comfortable with to be in the court with the children. And most of the time these procedures are complied with. Sometimes judges go a step further to make the children comfortable. For example making the child sit with them on the dias and then asking questions.

Minimum appearance in the court and giving frequent breaks between the trials:-

Under section 33(3) and section 33(5) of the act court ensures that the appearance of the child in the court should be minimum so as not to startle the child. And it also keeps in mind the trials which have to be given frequent breaks so as not to overwhelm the child who is in the proceeding.

Protection of identity:-

Section 33(7) of the Act provides for the protection of the identity of the child which cannot be disclosed. And can only be disclosed with the permission of the special court. Because according to several respondents the identity of the children is poorly protect which brings the children in lime light poorly exposing them to the public in their venerable position.

Award of compensation:-

A conviction did not automatically result in an award of compensation. Compensation was awarded in only 36 cases out of 667 cases by Special Courts i.e., a measly 5.39% of cases. The quantum was determined by the Special Court in all cases except one. In State v. Dinesh Sharma[7], the defendant was found guilty of sexually assaulting his 14-year -old daughter. Recognizing that imprisonment of the breadwinner could stall the education of the girl, the judge recommended that a suitable compensation be paid u/s 357A, CrPC ‘to enable her to complete her study and become financially independent.’ He directed the Secretary, DLSA to determine the quantum of the compensation.[8]

Prompt recording of evidence and disposal of the case:-

As per section 35(1) of the Act the evidence should be recorded within 30 days of the reporting of the cognizable offence. And if the delay is made it should be recorded by the special court.

According to section 35(2) of the Act the trial should be completed within one year of the court taking cognizance of the offence.

In camera trials:-

Section 37 of the Act requires the court to resume the proceedings recorded in the camera and in presence of the child’s guardian or anyone who has the trust of the child it is not compulsory to keep the proceedings in the court room only, if the special court deems fit it can the proceeding can be held somewhere else also where the child is comfortable.

Avoiding exposure to the accused:- Section 36(1) of the Act requires the court to appoint supporters which can take the child to someplace when the proceeding of the accused is going on because exposure takes place almost every time when the child is in the court or waiting outside the courtroom.

Assistance of interpreters, translators or special educators:-

Section 38 of the Act requires court to appoint any special assistance to the child. Or if child doesn’t know the vernacular language then the translator is appointed to him or her. Children with disability have to be appointed special educators which know their language and easily communicate between the child and the court.

Assistance of private legal practitioners:-

Section 40 of the Act provides the party to appoint private legal assistance if they want and requires court to appoint a government litigator if the party cannot afford one. Independent advocates related to NGOs or other private organizations dealing with case can also be appointed to make the child comfortable.

 

Child abuse Protection and Procedure: in United Kingdom

The child protection mechanism is far more developed in the United Kingdom. Guidelines by the government are designed to protect the victims of child abuse of further harm and to give them protection under Crown Prosecution Services. The child protection mechanism in UK is far more developed at local level as agencies like  Local Safeguarding Children Boards was created in 1974 because of the public outrage of not being able to give any law for protecting children in the country. The procedure laid down by the agencies include:-

  • Concerns about a specific child should be reported immediately by telephone to the DSP
  • Confirmed in writing within 24 hours using the form at Appendix E. Delay could prejudice the welfare of a child.

NATIONAL SOCIETY FOR PREVENTION OF CRUELTY TO CHILDREN

  • Gives certain guidelines regarding protection and procedure regarding child victim.

Criminal investigation of child abuse:-

All police forces in UK have a specialize unit known as child abuse investigation unit. Their main purpose is to investigate the case of child abuse in their jurisdiction. The unit makes the decision of filing criminal complaint against the accused after looking into the matter. Other agencies relating with child protection can also work with police units in helping them in taking care of the children abused.

Criminal prosecutions in cases of child abuse:-

The Crown Prosecution Service decides whether or not a prosecution is in the public interest. The Code for Crown Prosecutors (Crown Prosecution Service, 2010) is a public document that sets out the basic principles to be followed when making a decision. Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must also decide whether the evidence can be used and whether it is reliable. If the evidential stage of the decision making process is passed then the case moves to the public interest stage. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect.[9]

Police protection:-

In an emergency situation the police can take the child away from the family and can keep him or her under protection for 72 hours. The police does not need the permission of the court for doing so but the local authorities have to be informed about the child and where he or she is being kept. If the situation seems safe the child can be returned to the family and if not than the court may take proper action.

Children as witness:-

In many child abuse cases children are the witness during the proceedings. If that happens police inform this to Crown Prosecution Services about it. Many Crown Courts have child liaison which helps the child during the proceedings. Many guidelines are also issued by CPS for children who have to attend the proceedings-

  • Entrance of the child from different gate away from the general public.
  • Placing a child in different waiting area and the person who is with the child.
  • Arranging the child to visit the court before the trial so they can get familiar with the environment.
  • Requesting the court to minimize the time for a child for giving evidence.

Organising lunch and toilet facilities:

Taking an oath:-

Some victims of child abuse want to stand in court in front of a jury and the person who has hurt or abused them. But if you don’t want to see the defendant or their family when you’re answering questions, you could ask for a screen around the witness box.

If you are 14 years or over, you may be asked to take an oath if you’ve

  • made a written statement, and
  • Decided to give evidence in the court room.[10]

Other special rules:-

The judges and lawyers go to an extent of taking off their wigs to make the child comfortable in the atmosphere of the court.

Identification of child:-

Though the evidences are given in the open court the name and address and other identifying qualities of the child cannot be disclosed and published in their lifetime. Court can lift the restriction in restricted circumstances.

 

Comparative Study between India and United Kingdom

As child abuse has always been a problem in the countries, the government has come up with many laws and legislations regarding safeguarding interest of children. If in case child is the victim of any kind of abuse then more care has to be taken in dealing with the matter that is what the legislation is trying to do while framing the procedure of the trial and investigation in the cases of child abuse.

The laws and procedure regarding child abuse and harassment are more or less same in both the countries. Both countries focus upon rehabilitating the child, providing him or her with utmost protection so as they are no more abused in any other form during the trial.

Special courts are made for dealing with the trials and proceedings of child abuse. And both the countries have look into this matter. As in India POCSO is legislated under which special courts can be setup for the trial of these kind of cases. In United Kingdom Crown courts are there to handle these kinds of cases.

Judges and advocates go out of their way to make the child comfortable during the trial, as again these things can create a bad image in the mind of the child and he or she can be psychologically can get effected by it.

Police in both the countries take special care while dealing with these kinds of cases. NGOs and other agencies are also allowed to help the children and their parents during the trial and investigation process.

 

CONCLUSION

Abusing a child is a grave offence in all the countries around the world. Special care and attention is to be needed while dealing with these cases and their victims. Both the countries have come up with new laws and legislations for protecting the children and framing the procedure for it. As earlier in India there was only code of criminal procedure that laid down the procedure of criminal offences in the country but it did not have any special procedure regarding children and their safety and protection. But many new acts have been framed from there and now specific guidelines have been given for the procedure and dealing with child abuse cases like POCSO. In United Kingdom too many surveys have been done and guidelines are issued by NSPCC for the procedure and conduct of the trials and investigation of these kinds of abuse cases.

Abusing a child is a serious matter because it harms the child as a very young age and harms society in general. Keeping the children safe should be the top priority of the State as they are the future generations of the country and the world. During making procedures and guidelines the legislature should keep in mind the age and delicate situation of child victims and effects of the proceedings and how to not further abuse them more because of the proceedings and trials.

[1] KOUSHIK MALAKAR, A project on “child abuse in india”, Tripura University

[2] Ganga Madappa, How should a case of child abuse be dealt with under POCSO,  12 Aug 2014 , Citizen Matters

[3] Code of criminal procedure amendment act 2008, section 173

[4] CENTRE FOR CHILD AND THE LAW, Report of Study on the working of Special Courts under the POCSO Act, 2012 in Delhi, NATIONAL LAW SCHOOL OF INDIA, UNIVERSITY, BANGALORE.

[5] Analyzing the POSCO Act 2012, http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-2012/articleshow/19718160.cms

[6] CENTRE FOR CHILD AND THE LAW, Report of Study on the working of Special Courts under the POCSO Act, 2012 in Delhi, NATIONAL LAW SCHOOL OF INDIA, UNIVERSITY, BANGALORE

[7] SC No. 155/2013 decided on 03.02.2014.

[8] CHILD Protection & Child Rights, http://www.childlineindia.org.in/Child-Sexual-Abuse-and-Law.htm

[9] An NSPCC factsheet,Child abuse cases: deciding to prosecute

[10] Child abuse – children as witnesses in criminal proceedings, https://www.citizensadvice.org.uk/relationships/children-and-young-people/child-abuse/police-involvement/child-abuse-children-as-witnesses-in-criminal-proceedings/

 

CRITICAL ANALYSIS OF THE AFRICAN HUMAN RIGHTS SYSTEM

INTRODUCTION : WHAT ARE HUMAN RIGHTS ?

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin,

colour

, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.[1] Those fundamental rights, which empower human beings to shape their lives in accordance with liberty,

equality

and respect for human dignity. The focus of human rights is on the life and dignity of human beings. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international

law ,

general principles and other sources of international law.[2] International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[3] It is expected that human rights should be Universal & Inalienable, Interdependent & Indivisible, Equal & Non-Discriminatory.

The Universal Declaration of Human Rights (UDHR) is generally agreed to be the foundation of international human rights law. Adopted in 1948, the UDHR has inspired a rich body of legally binding international human rights treaties. It continues to be an inspiration to us all whether in addressing injustices, in times of conflicts, in societies suffering repression, and in our efforts towards achieving universal enjoyment of human rights.[4]

THE ORGANIZATION OF AFRICAN UNITY

Africa is the world’s second-largest & second-most populous continent. Although it has abundant natural resources, it remains the world’s poorest & most under developed continent. The result of a variety of causes that may include corrupt governments that have often committed serious human rights violation, failed central planning, high levels of illiteracy, lack of access to foreign capital, and frequent tribal & military conflict ( ranging from guerrilla warfare to genocide). The Organisation of African Unity (OAU), established on 25 May 1963, was the culmination of a number of diverse and far-reaching historical currents and political trends both on the African continent and abroad. [5]  Of particular import to the ideological formation of the OAU was the late 19th century Pan-Africanist movement which emerged in the United States of America (USA) among Black American intellectuals.[6] The sentiment among these intellectuals centred on the belief that in order for black civilization to prosper, it was necessary to establish their own nation free from the USA where they would be able to pursue self-determination with dignity.[7]

Thus, between 22 and 25 May 1963, delegates from 32 African countries convened in the Ethiopian capital of Addis Ababa to establish the Organisation for African Unity (OAU), intended to form the continental base for pan-Africanism but resulting in a watered-down compromise between competing ideological blocs.  At the outset, then, complete unification seemed unattainable. The divisions rendered the construction of a union government based on a consensus of structural, military and political institutions untenable.  The OAU was thus founded with the intention that the organisation would proceed, incrementally, with unification until the eventual goal of a Union of African States was realised. [8]

OBJECTIVES :

  • Promote unity and solidarity of the African states
  • To coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa,
  • To defend their sovereignty, their territorial integrity and independence,
  • To eradicate all forms of colonialism from Africa, and
  • To promote international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights[9]

This was to be achieved by calling on member states to recognise :-

  1. The sovereign equality of member states,
  2. Non-interference in the internal affairs of each state,
  3. Respect for the sovereignty and territorial integrity of each state and its inalienable right to independent existence,
  4. Peaceful settlement of disputes by negotiation,
  5. Unreserved condemnation, in all its forms, of subversive activities on the part of neighbouring states or any other states,
  6. Absolute dedication to the total emancipation of the African territories which were still dependent, and
  7. Affirmation of a policy of nonalignment with regard to all other blocs.[10]

On May 25, 1963 in Addis Ababa, Ethiopia, the 32 African states that had achieved Independence at that time agreed to establish the OAU. A further 21 members joined gradually, reaching a total of 53, as South Sudan joined African Union on 9th July 2011and hence became the 54th member.

STRUCTURE :

Independence was a pre-condition for attaining a membership status in the OAU, although policies of the organisation were not legally binding on member states.  The Assembly of Heads of State and Government acted as the executive body of the OAU which met annually and directed OAU policy.  The Assembly acted as the supreme organ aimed at discussing African concerns, integration and the harmonisation or the OAU’s policies and functions.[11]

The Council Of Ministers, consisting of foreign ministers designated by each member state, met biannually and was accountable to the Assembly.  The function of the Council centred on preparing matters of concern for discussion at Assembly meetings. The Council was also responsible for implementing decisions of the Assembly and the coordination of member state cooperation.[12]

The OAU structure also included a Secretariat headed by an appointed Secretary General.  Article XVII of the OAU Charter made it abundantly clear that the Secretariat and the Secretary General were to remain objective and accountable only to the OAU, uninfluenced by member states and their respective governments.[13]

In an attempt to address the potential for inter-state disputes, the OAU Charter provided for the establishment of a Commission of Mediation, Conciliation and Arbitration which would allow for the peaceful settlement of disputes among members of the Organisation.[14]

A further allowance (Article XX) was made for the establishment of Specialized Commission through the Assembly, which included an Economic and Social Commission, an Educational, Scientific, Cultural and Health Commission, and a Defence Commission.[15]

The OAU also established a Liberation Committee tasked with assisting liberation movements in Mozambique, Angola and Guinea Bissau through the provision of material assistance.[16]

Although the OAU, at the time it was founded, placed special emphasis on fighting colonialism, racism & apartheid[17], its charter makes no mention whatsoever of human rights. In those days, political decision makers in Africa were quite concerned that their states be granted the Right to Self-Determination from all European colonial powers, however they were not inclined to take this right further than a political independence. They did not grant their own people’s the right to self determination, nor did they allow African people any individual rights within these new states that might be enforced by regional monitoring bodies. Instead, they seemed to be of opinion that by abolishing colonialism & apartheid they would automatically guarantee individual Human Rights as well.

ACHIEVEMENTS :

One of the OAU’s greatest achievements was the assistance it provided to liberation movements, to which the organisation afforded Associate Member and observer status.  Article II (1)d of the OAU’s Charter, which states the intention “to eradicate all forms of colonialism from Africa,” was perhaps the organisation’s most successful venture, restoring territorial integrity to many formerly-colonised states.[18]

A further achievement of the OAU was its encouragement of the development of regional economic communities such as the Economic Community of West African States (ECOWAS), the South African Development Coordinating Commission (SADCC), the North Africa-Greater Area Free Trade Area and the Central Africa-Economic Community of the Great Lakes Countries.  Eventually, attempts at creating a continental body for economic development led to the establishment of the African Economic Commission through a treaty signed in Abuja, Nigeria in 1991.  The Abuja Treaty contained a blueprint for full continental economic integration which was to be achieved in 34 years (by 2018/2019), although at the time of writing (2015), prospects for this appear bleak.[19]

In terms of social achievements, the OAU facilitated the unification of trade unions through the establishment of the Organisation of African Trade Union Unity (OATUU) and promoted youth organisations to further the leadership potential on the continent.  The OAU also attempted to deal more concretely with the issue of refugees by adopting the 1969 African Convention on Refugees and the African Charter on Human and People’s Rights in 1981, which dealt with asylum and the obligation of states to provide asylum-seekers with at least temporary refuge.   However, the Refugee Convention never filtered down to national legislation and has thus remained mostly ineffective.[20]

CHALLENGES :

In the aftermath of colonialism, many African states were ravaged by economic crises brought about by a plethora of internal and external influences.  Poor policy advice, resource deficiencies and a lack of institutional and physical infrastructure together with corruption, political instability and rampant underdevelopment served to hamper much of the socio-economic development pursued by the OAU. [21]

Sadly enough, the most serious & systematic violations of human rights were committed.

  • REGIME OF IDI AMIN IN UGANDA: Idi Amin Dada was the 3rd president of Uganda, ruling from 1971 to 1979. Amin joined the British Colonial regiment the King’s African Rifles in 1946, serving in Kenya & Uganda. Eventually, Amin held the Rank of Major general in the Post-Colonial Uganda army & became its Commander before seizing power in the military Coup of January 1971, deposing Milton Obote. He later promoted himself to Field Marshal while he was the head of state. Amin’s rule was characterized by Human Rights abuses, political  repression, ethnic persecution, extra judicial killings, nepotism, corruption & gross economic mismanagement. The number of people killed as a result of his regime is estimated by the International Observers & Human Rights groups to range from 100,000 to 500,00.
  • REGIME OF JEAN BEDEL BOKASSA IN CENTRAL AFRICAN REPUBLIC : Bokassa was a military officer & later became the president of Central African Republic (CAR) by using his position to oust David Dacko, who was his distant cousin and declared himself the president in 1966. He then began a reign of terror, taking all important government posts for himself. He personally supervised judicial beatings and introduced a rule that thieves would have an ear cut off for the first two offences & a hand for the third. In 1976, he had hundreds of school children arrested for refusing to buy uniforms from a company owned by one of his wives. Bokassa was reported to have personally supervised the massacre of 100 children of the school children by his Imperial Guard. He even practically bankrupted the country for his coronation ceremony.

The above two regime shows how OAU failed in protecting the human rights of the peoples of Africa. A further major challenge for the OAU was the fact that its deference to state sovereignty affected the Organisation’s efficacy in preventing and stemming conflict in its member states.  The OAU’s impenetrable respect for sovereignty and territorial integrity came at a cost; emerging dictatorships,

coups

and counter coups exacerbated political instability.

This lack of enforcement capabilities meant that the OAU could not enforce member state compliance with any of its decisions, instead relying solely on wavering political will.  Internal divisions meant that any attempts at organising a reactive and cohesive response to crises were limited, if not impossible due to their non-intervention stance.  Due to a requisite two-thirds consensus on all resolutions,

fractionalisation

further complicated the resolution of pressing issues.  Therefore, when the continent collapsed into a plethora of intrastate wars and insurgencies following the fall of the Soviet Union, the OAU was rendered largely redundant.[22]

DISSOLUTION OF OAU :

With the battle for independence more-or-less won, attention was turned to Africa’s economic overreliance on former colonial powers, which was perceived to be the root cause of the continent’s poverty.  The OAU was forced to recognise its own inadequacies not only in terms of facilitating economic development, but also with respect to addressing Africa’s continual and seemingly intractable conflicts, for which its own Charter was to blame.  The Organisation had made little attempt to prevent the fractionalisation of member state groupings which had been responsible for infighting within the OAU, and by the time the Organisation was dissolved in 2002 it had become, in the eyes of its critics, “an elite club of leaders largely cut off from their people,” protecting kleptocrats and dictators.[23]

At the 35th OAU Summit of Heads of State and Government held in Libya, talks began of reforming and reconceptualising the OAU.  Libyan President, Muammar Al Gaddafi, called on the OAU to convene its fourth extra-ordinary session which would further consider the reformation of the OAU into a more capable and less constrained African Union (AU), which came into force in 2002.[24]

AFRICAN UNION

The OAU’s limited Charter, together with its failure to stem the tide of civil wars and emerging dictatorships, eventually overburdened the institution, and in 2002 the African Union (AU) was established as its successor.[25]  The AU, while retaining much of the ideology of its predecessor, would be created with an eye to addressing shortcomings of the OAU while still promoting continental unity and a united front for Africa.[26] Through the 1990s, leaders debated the need to amend the OAU’s structures to reflect the challenges of a changing world. In 1999, the OAU Heads of State & Government issued the Sirte Declaration[27] calling for the establishment of a new African Union. The vision for the Union was to build on the OAU’s work by establishing a body that could accelerate the process of integration in Africa, support the empowerment of African States in the global economy & address the multifaceted social, economic, & political problems facing the continent.

STRUCTURE : ORGANS OF AU

  • TheAssembly, comprising of Heads of State and Government, acts as the supreme organ of the AU and meets annually.  The Assembly is responsible for determining common policies, membership, and the establishment of institutions.  The responsibility of deciding on matters of intervention rests with the Assembly. In comparison to the OAU, the AU Assembly possesses legal capacities to impose sanctions on members who do not comply with AU policies.[28]
  • TheExecutive Council, comprised of foreign ministers, is tasked with determining policies of common interest to member states such as trade, industry, resources, infrastructure and science and technology.  Decisions are taken through a two-thirds member state majority.[29]
  • TheAU Commission is the third organ of the AU, appointed by the AU Assembly to act as a secretariat to the Assembly, preparing documents and agendas.[30]
  • Inaugurated in March 2004, thePan African Parliament was established to act as an oversight body to the executive functions, and to ensure grassroots participation and input of civil society (CSO) and non-governmental organisations (NGO).  While the intention is for the PAP to become a fully legislative body, at present it is only able to exercise advisory powers through making recommendations and promoting the collective aims of the AU.[31]
  • Permanent representatives of AU member states form the Permanent Representatives’ Committee, which is responsible for preparing work of the executive and acting as an advisory body. The Representatives also facilitate dialogue between member state capitals and the AU Commission.[32]
  • The AU further makes use of Specialised Technical Committees which are involved in the preparation and oversight of projects relevant to their areas of specialisation.  The Technical Committees are comprised of seven committees with unlimited membership, including committees on agriculture, finance, trade and immigration, science and technology, transport and infrastructure, health, and education.[33]
  • The provision for a Court of Justice was adopted in 1998 and established via Article 1 of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s rights. The jurisdiction of the court extends to cases submitted which involve the interpretation and implementation of the Protocol, and can include interstate disputes and the defence of human rights.  Thus far, only 26 states have ratified the Protocol.[34]

ACHIEVEMENTS :

  • Democracy & Good Governance – Unlike its predecessor, the AU has taken initiative to promote democracy and good governance.  Its Constitutive Act states the AU’s aim, under Article 3(g), to “promote democratic principles and institutions, popular participation and good governance,” and nearly all institutions and organs of the AU reflect this goal. [35]
  • Economic – Established as a means to correct the flaws in its predecessor, the AU has reconsidered its objectives to reflect the concerns of postcolonial Africa.  Among those concerns was the imperative to counter low economic growth brought about by over-reliance on neo-colonial trade with America and Europe through establishing intra-continental trade which would, theoretically, strengthen Africa’s entry into the global economic system. The New Economic Partnership for African Development (NEPAD), the brainchild of former South African PresidentThabo Mbeki, has been instrumental in assisting economic integration as well as Africa’s entry into the global economy from which it has been perpetually excluded and marginalised.[36]
  • Peace & Security – Article 4 of the Constitutive Act indicates a major shift from the OAU which stressed state sovereignty, to the enshrined ability of the AU to intervene in a member state under grave circumstances.  Of particular import is Article 4(h) and more recently, 4(j) which allows for AU intervention under the circumstances of genocide, war crimes and crimes against humanity, and affords member states the power to request intervention in order to restore peace and security. Nevertheless, the AU in partnership with international bodies such as the UN has made strides towards managing the multiple conflicts and insurgencies in Africa. Notably, the AU has played a major role in mitigating post/electoral violence in Kenya and the Ivory Coast, and has undertaken a number of hybrid missions together with the UN. The AU frequently sends observer missions to monitor elections in member states under the African Charter on Democracy, Elections and Good Governance (2007).[37]

MAJOR IMPEDIMENTS :

  • While the OAU has attempted to address the need for peace and security on the continent through the notion of a security community, it has thus far failed to do so adequately due to the lack of regional integration on the continent.  Economic integration – required for effective regional integration – has fared poorly due to a number of reasons such as foreign aid dependency, a lack of political will, overlapping mandates of regional economic blocs and a lack of financial and human resources.  While regional economic communities (RECs).[38]
  • Clearly, Africa’s many conflicts severely inhibits attempts at integration and collective security.  These conflicts drain state resources, threaten political stability and result in human rights abuses and humanitarian crises on a massive scale which disables state cooperation and development.[39]
  • Thus, while the AU is a major improvement – both legislatively and structurally – on the OAU, a number of significant challenges remain.  The AU’s regional economic integration initiative is arguably the most significant challenge as well as the most urgent, which will require a paradigmatic shift in the way governments conceptualise sovereignty.  Political will acts as a further impediment to the achievement of the AU mandate, particularly as the AU lacks significant authority to enforce member compliance.  Nevertheless, the African continent – civil society in particular – has demonstrated (as in the case of Burundi’s recent electoral violence and the Arab Springs) the desire for strong, accountable and transparent institutions, governments and democracy.  In the spirit of optimism, perhaps this desire will catch fire and spur the AU to shun complacency and continue to promote good governance, the rule of law and the active participation of civil society.[40]

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHT

The African Charter on Human and Peoples’ Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent.

Oversight and interpretation of the Charter

is

the task of the African Commission on Human and Peoples’ Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples’ Rights was to be created. The protocol came into effect on 25 January 2005.[41]

The Banjul Charter creates an African Commission on Human and peoples’ Rights [Arts. 30-46], allows for inter-State complaints [Arts. 47-54], and even envisions the receipt of individual communication [Arts. 55-110]. However, all these provisions are quite vague. There is no reporting system, no judicial organ or any other mechanism for authoritative regional enforcement of decisions. [42]

NORMS CONTAINED IN THE CHARTER:

  1. CIVIL & POLITICAL RIGHTS – The Charter recognizes most of what are regarded universally accepted civil and political rights. The civil and political rights recognised in the Charter include the right to freedom from discrimination(Article 2 and 18(3)), equality (Article 3), life and personal integrity (Article 4), dignity (Article 5), freedom from slavery (Article 5), freedom from cruel, inhuman or degrading treatment or punishment (Article 5), rights to due process concerning arrest and detention (Article 6), the right to a fair trial (Article 7 and 25), freedom of religion (Article 8), freedom of information and expression (Article 9), freedom of association (Article 10), freedom to assembly (Article 11), freedom of movement (Article 12), freedom to political participation (Article 13), and the right to property (Article 14).
  2. ECONOMIC, SOCIAL & CULTURAL RIGHTSThe Charter also recognises certaineconomic, social and cultural rights, and overall the Charter is considered to place considerable emphasis on these rights. The Charter recognises right to work (Article 15), the right to health (Article 16), and the right to education (Article 17).
  3. PEOPLES’ RIGHTS & GROUP RIGHTSIn addition to recognising the individual rights mentioned above the Charter also recognises collective orgroup rights, or peoples’ rights and third-generation human rights. As such the Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards the family protection by the state (Article 18), while “peoples” have the right to equality (Article 19), the right to self-determination (Article 20), to freely dispose of their wealth and natural resources (Article 21), the right to development (Article 22), the right to peace and security (Article 23) and “a generally satisfactory environment” (Article 24).

DUTIES :

The Charter not only awards rights to individuals and

peoples,

but also includes duties incumbent upon them. These duties are contained in Article 29 and are as follows:

  • The duty to preserve the harmonious development of the family.
  • To serve the national community by placing both physical and intellectual abilities at its service.
  • Not to compromise the security of the State.
  • To preserve and strengthen social and national solidarity.
  • To preserve and strengthen national independence and the territorial integrity of one’s country and to contribute to its defence.
  • To work to the best of one’s abilities and competence and to pay taxes in the interest of society.
  • To preserve and strengthen positive African cultural values and in general to contribute to the promotion of the moralwell-being of society.
  • To contribute to the best of one’s abilities to the promotion and achievement of African unity.

REPORT OF THE FACT-FINDING MISSION TO ZIMBABWE,24-28 JUNE 2002 :

Executive

Summary ,

in Seventeenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 2003 -2004, Annex II, at 13.

Following widespread reports of human rights violations in Zimbabwe, the African Commission [decided in May 2001] .. to undertake a

fact finding

mission to the Republic of Zimbabwe from 24th to 28th June 2002.

FINDINGS

  1. The Mission observed that Zimbabwean society is highly polarised. It is a divided society with deeply entrenched positions. The land question is not in itself the cause of division. It appears that at heart is a society in search of the means for change and divided about how best to achieve change after two decades of dominance by a political party that carried the hopes and aspirations of the people of Zimbabwe through the liberation struggle into independence.
  2. There is no doubt that from the perspective of the fact-finding team, the land question is critical..[but recent legal and other developments mean] that land reform and land distribution can now take place in a lawful and orderly fashion.
  3. There was enough evidence placed before the Mission to suggest that, at the very least during the period under review, human rights violations occurred in Zimbabwe. The Mission was presented with testimony from witnesses who were victims of political violence and other victims of torture while in police custody. There was evidence that the system of arbitrary arrests took place…
  4. There were allegations that the human rights violations that occurred were in many instances at the hands of ZANU PF [the ruling Zimbabwe African National Union – Patriotic Front] party activists. The Mission is however not able to find definitively that this was part of an orchestrated policy of the government of the Republic of Zimbabwe.
  5. The Mission is prepared and able to rule , that the government cannot wash its hands from responsibility for all these happenings. It is evident that a highly charged atmosphere has been prevailing, many land activists undertook their illegal actions in the expectation that government was understanding and that police would not act against them – many of them, the War Veterans, purported to act as party veterans and activists. Some of the political leaders denounced the opposition activists and expressed understanding for some of the actions of ZANU (PF) loyalists. Government did not act soon enough and firmly enough against those guilty of gross criminal acts. By is statements and political rhetoric, and by its failure at critical moments to uphold the rule of law, the government failed to chart a path that signalled a commitment to the rule of law.[43]

OTHER AFRICAN REGIONALS & SUB REGIONALS

1.      ECOWAS : ECONOMIC COMMUNITY OF WEST AFRICAN STATES

Welcome to the Economic Community of West African States (ECOWAS). Established on May 28 1975 via the treaty of Lagos, ECOWAS is a 15-member regional group with a mandate of promoting economic integration in all fields of activity of the constituting countries.[44]

Member countries making up ECOWAS are Benin, Burkina Faso, Cape Verde, Cote d’ Ivoire , The Gambia, Ghana, Guinea,

Guinea Bissau

, Liberia, Mali, Niger, Nigeria, Sierra Leone, Senegal and Togo.[45]

Considered one of the pillars of the African Economic Community, ECOWAS was set up to foster the ideal of collective self-sufficiency for its member states. As a trading union, it is also meant to create a single, large trading bloc through economic cooperation.[46]

Expectations of economic integration have always been high and a lot has been accomplished by the regional group since the endorsement of the treaty which gave it the required legal teeth. Going by current assessments, the regional body has exceeded the expectations of its founding fathers. Today, the organisation is being acknowledged globally as a successful regional body. ECOWAS can be seen now as a toast to a workable integration and regional co-existence.[47]

The Vision of ECOWAS is the creation of a borderless region where the population has access to its abundant resources and is able to exploit same through the creation of opportunities under a sustainable environment. What ECOWAS has created is an integrated region where the population enjoys free movement, have access to efficient education and health systems and engage in economic and commercial activities while living in dignity in an atmosphere of peace and security. ECOWAS is meant to be a region governed in accordance with the principles of democracy, rule of law and good governance.[48]

2.      COMESA : COMMON MARKET FOR EASTERN & SOUTHERN AFRICA

The history of COMESA began in December 1994 when it was formed to replace the former Preferential Trade Area (PTA) which had existed from the earlier days of 1981. COMESA (as defined by its Treaty) was established ‘as an organisation of free independent sovereign states which have agreed to co-operate in developing their natural and human resources for the good of all their people’ and as such it has a wide-ranging series of objectives which necessarily include in its priorities the promotion of peace and security in the region.[49]

COMESA’s current strategy can thus be summed up in the phrase ‘economic prosperity through regional integration’. With its 19 member states, population of over 389 million and annual import bill of around US$32 billion with an export bill of US$82 billion COMESA forms a major market place for both internal and external trading. [50]

CONCLUSION

Africa has been traumatized by human rights violations of historic proportions over the last five centuries. The recent chapter in that long history of abuses is still being authored under the direction of the post-colonial state. But the peoples of Africa, like peoples elsewhere, have never stopped struggling for better conditions of life, and especially for more enlightened and accountable political societies. The popular repudiation of one party and undemocratic states over the past decade has once again given hope that the predatory impulses of the post-colonial state might be arrested. Within states, non-governmental organizations have multiplied during that period and governments are being been forced to revise policies and laws that are offensive to basic human rights. At the continental level, NGOs and human rights advocates have demanded that the African Commission become part of this movement towards change.

[1] http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx; visited on 21/10/2016.

[2] Ibid

[3] Ibid

[4] http://www.un.org/en/sections/universal-declaration/human-rights-law/index.html; visited on 21/10/2016.

[5] http://www.sahistory.org.za/topic/organisation-african-unity-oau; visited on 23/10/2016.

[6] http://www.sahistory.org.za/topic/organisation-african-unity-oau; visited on 23/10/2016.

[7] Ibid.

[8]Ibid.

[9] http://www.au.int/en/history/oau-and-au; visited on 20/10/2016.

[10] http://www.sahistory.org.za/topic/organisation-african-unity-oau; visited on 23/10/2016.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] http://www.sahistory.org.za/topic/organisation-african-unity-oau; visited on 23/10/2016.

[15] Ibid.

[16] Ibid.

[17] Definition of Apartheid as given in Cambridge Dictionary – especially in the past in South Africa a political system in which people of different races are separated.

[18] http://www.sahistory.org.za/topic/organisation-african-unity-oau; visited on 23/10/2016.

[19] http://www.sahistory.org.za/topic/organisation-african-unity-oau; visited on 23/10/2016.

[20] Ibid.

[21] Ibid.

[22] http://www.sahistory.org.za/topic/organisation-african-unity-oau; visited on 23/10/2016.

[23] Ibid.

[24] Ibid.

[25] http://www.sahistory.org.za/article/african-union-au; visited on 23/10/2016.

[26] Ibid.

[27] The Sirte Declaration was the resolution adopted by the Organisation of African Unity on 9th September 1999, held at Sirte, Libya.

[28] http://www.sahistory.org.za/article/african-union-au; visited on 23/10/2016.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] http://www.sahistory.org.za/article/african-union-au; visited on 23/10/2016.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] http://www.sahistory.org.za/article/african-union-au; visited on 23/10/2016.

[39] Ibid.

[40] Ibid.

[41] http://www.achpr.org/instruments/achpr; visited on 24/10/2016.

[42] Gurdip Singh; International Law (Eastern Book Company, 3rd ed , 2015) Chap- 24; pg-690.

[43] Henry J Steiner, Philip Alston, Ryan Goodman; International Human Rights In Context(Oxford, 3rd ed, 2008) pg- 1073.

[44] http://www.ecowas.int/about-ecowas/basic-information; VISITED ON 25/10/2016.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] http://www.comesa.int/overview-of-comesa; visited on 25/10/2016.

[50] Ibid.

TRAFFICKING IN WOMEN

Abstract

The unfortunate and unprivileged humans – women and children – upon whom immeasurable, unfathomable and grave excesses, atrocities and aberrations take place daily by perpetrators of the crime. They survive in the darker, drearier side of Human Rights violations. Young girls are trafficked into prostitution; young boys are trafficked into forced labour and sodomisation. Young women are also abducted and trafficked as domestic workers, unorganized labourers or sex workers. The rights of these tortured and trafficked women and children form an essential part of Human Rights Jurisprudence which still lies in the neglected sphere. Female children are subjected to various types of sexual abuse, including rape, molestation, etc. In the fight against trafficking Government organizations, Non-Governmental Organizations, Civil Society, pressure groups, international bodies – all have to play an important role. Law cannot be the only instrument to take care of all problems.

 

Introduction

 

The unfortunate and unprivileged humans – women and children – upon whom immeasurable, unfathomable and grave excesses, atrocities and aberrations take place daily by perpetrators of the crime. They survive in the darker, drearier side of Human Rights violations. Young girls are trafficked into prostitution; young boys are trafficked into forced labour and sodomisation. Young women are also abducted and trafficked as domestic workers, unorganized labourers or sex workers. The rights of these tortured and trafficked women and children form an essential part of Human Rights Jurisprudence which still lies in the neglected sphere. Female children are subjected to various types of sexual abuse, including rape, molestation, etc.

 

Definition of Trafficking

 

            Oxford English Dictionary defines Traffic as “trade, especially illegal (as in drugs)”. Merriam-Webster Dictionary defines Human Trafficking as: “organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labour)”

 

*ADVOCATE AND NOTARY PUBLIC, SAI LAW ASSOCIATES, PRESIDENT, MAYURAM BAR ASSOCIATION, MAYILADUTHURAI – 609 001 TAMILNADU.

In a landmark judgment of “Raj Bahadur v. Legal Remembrance[1], the Calcutta High Court defined trafficking in human being as selling and buying of men and women like goods and includes trafficking in women and children for immoral or other purposes.

 

The legal definition of “severe forms of trafficking in persons” as defined in the “U.S. Trafficking Victims Protection Act, 2000” is: Sex trafficking in which a commercial sex act is inducted by force, fraud, or coercion, or in which the person inducted to perform such an act has not attained 18 years of age.”

 

Judicial Attitude for Prevention of Trafficking In Women and Children

 

The cases decided by the Supreme Court in the first quarter century after Independence in India have focused mostly on punishment perspective of traffickers and less on rescue and rehabilitation perspective. However in later years, a shift in the judicial response to the growing menace of immoral trafficking is noticed, where Courts have emphasized more on the rehabilitation aspect of the victims of the prostitution including inmates of Protective Home etc.,

 

In Kamalabai Jethamal v. State of Maharashtra[2], the Bombay High Court which had set aside the order of acquittal of the appellant and sentenced her to undergo one year rigorous imprisonment and evicted her form the premises which she was occupying as tenant. The main charge against the appellant was that she supplied girls for prostitution to a named person and kept/managed a brothel at a named place. She lived on the earnings of prostitution and procured women for this purpose. The police laid a trap and sent two named persons to complete the assigned job, later these persons were used as witnesses and the entire evidence produced before the High Court was including recovery of given money showed that the appellant under Section 3 of the SITA. Hence the appeal was dismissed.

 

In Krishnamurthy Alias Tailor Krishnan v. Public Prosecutor[3], Madras, the Supreme Court observed that circumstances about the place and the person keeping it can be nothing else then the place was being used as a brothel and the person in charge was so keeping it. Dismissing the appeal the court further observed that ‘it is not necessary that there should be evidence of repeated visits by persons to the place for the purpose of prostitution. A single instance coupled with the surrounding circumstances is sufficient to establish both that the place was being used as a brothel and that the person alleged was so keeping it’.

 

In Bai Radha v. State of Gujarat[4], the Supreme Court while dismissing the appeal observed that a search which is to be conducted under SITA 1956 must comply with the provisions contained in Section 15, but it cannot be held that if a search is not carried out strictly in accordance with the provisions of that section the trail is rendered illegal.

 

In Upendra Baxi v.State of U.P[5] a letter which was treated a writ petition brought to the notice of the Apex Court the Conditions in which girls/women were living in the Government Protective Home at Agra, were being denied their right to live with basic human dignity in that Protective Home. Several directives were issued by the Court inter-alia; include setting up of a Board of Visitors.

 

The Supreme Court of India has passed two important judgments on the subject of rescue and rehabilitation programmes and the commercial sexual exploitation of women and children in India.

 

The Apex Court shoed its great concern about immoral trafficking in Vishal Jeet v. Union of India,[6] by observing that prostitution always remains a running sore in body of civilization and destroys all moral values. This case has brought into sharp focus the miseries of many more victims being exploited by the highly organized profession of prostitution. In Vishal Jeet’s case Justice S.Ratnavel Pandian recalled that parents owing to acute poverty and unbearable miseries sold their teen-aged female children for paltry sum hoping that they would be engaged in household duties or manual labour but subsequently pimps or brokers in the flesh trade and brothel keepers forcibly land them into flesh trade. The Court observed this malady is not only a social but also a socio-economic problem and, therefore, the measures that are to be taken in that regard should be more preventive than punitive. The Supreme Court further issued some remedial and preventive directions to all State Governments and Union terriorities to setup Advisory Committees within the respective zones.

 

In the case of Gaurav Jain v. Union of India,[7] the plight of prostitutes and fallen women in the flesh-trade and their progeny was highlighted. In this case the Supreme Court of India was concerned more with the rehabilitation aspect than with prevention of the crime. The Court emphasized on the review of the relevant law in this behalf, effective implementation of the scheme to provide self-employment, training in weaving, knitting, painting and other meaningful programs to provide the fallen women the regular source of income by self-employment or after vocational education or the appropriate employment or after vocational education or the appropriate employment generating schemes in Governmental Semi-Governmental or private organizations.

 

Feeling stunned and horrified at the agony of the female child and the manner of their being traded like commodity, the Apex Court gave precious piece of judicial legislation for evolving a procedure to prevent illegal sale of children in the grab of adoption by child welfare agencies in Laxmikant Pandey v. Union of India[8]. In this leading case the court issued several directions regarding adoption of Indian Children by foreign parents.

 

Prajwala v. Union of India[9] is case which has come up before the Apex Court in the form of public interest litigation wherein the question of protection of women has been raised in the context of Immoral Traffic (Prevention) Act, 1956. The Supreme Court showed concern for creating a monitoring agency to have a look on the activities of Protective Homes and desired that National Legal Services Authority should also be made a party to the petition. In this case, the observations, of the Apex Court as well as the submissions of the Solicitor General exhibit of fair amount of concern towards victims of trafficking and their rehabilitation.

 

In the Supreme Court in State of Maharashtra v. Mohammad Sajid Husain,[10] held that in cases involving such as one punishable under section 376 of IPC and Section 5 of ITPA, should be investigated thoroughly by the investigating agency and victims who are lured or coerced for immoral trafficking should be accorded protection. This case brings about some new hopes for this discarded and neglected segments of the society, Justices S.B. Sinha and H.S. Bedi speaking for the bench stated that if the accused had taken a girl to hotel, Government, guest house or even on occasions to his own apartment and staring behaving indecently with her and even if the prosecutrix -girl was a girl of easy virtue, made statement there after implicating the respondent accused as such and gave statements under 164 of Cr.PC and her evidence should not be rejected out rightly.

 

In Supreme Court of India in Majappa v. State of Karnataka[11] held that if the accused appellant had kidnapped a girl of 13 years age from her house and had sold her to a brothel house for the purpose of prostitution. In these circumstances he is surely liable under section 316-A, 372 and 373 IPC. Further the accused, which used to engage her daily for prostitution against her wish, be accorded deterrent punishment as it is an offence under section 5 of Immoral Traffic (Prevention) Act, 1956. There should therefore be proper rehabilitation and reintegration programmes for those who return to their homes.

 

The paradigm shift in the judicial response to the growing menace of human trafficking is as follows :

Punishment Perspective 

Preventive Perspective

Rehabilitation Perspective

Kamalabai Jethamal v. State of Maharastra (1962)

(Judgment based on Punishment Perspective)

Vishal Jeet v. Union of India (1990)

(Judgment based on Preventive Perspective)

Gaurav Jain v. Union of India (1997)

(Judgment based on Rehabilitation Perspective

Majappa v. State of Karnataka (2010)

(Judgment based on 100% Rehabilitation Perspective)

 

New Bill on Anti – Trafficking in India 2016

 

            The Ministry of Women and Child Development released the draft “Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 on 30th May 2016. This bill is the main law proposed for protection of trafficked victims in India. The main provisions of the bill are as follows.

 

  1. The Bill contained 41 sections and 12 chapters which aimed at prevention, protection and rehabilitation of trafficked victims in India.

 

  1. The bill provided for District Anti – Trafficking Committee to be constituted in every district to perform functions and duties in relation to prevention, rescue, protection, medical care, psychological assistance, skill development and need based rehabilitation of victims. The Committee shall consist of the District Magistrate or District Collector as Chairperson, two social workers, one representative from District Legal Services Authority and District Officer of Social Welfare or Women and Child Development Department of concerned State Government as Member Secretary. It shall meet atleast once in three months.

 

  1. The bill also provided for State Anti-Trafficking Committee to perform functions and duties as that of District Anti-Trafficking Committee and it shall consist of Chief Secretary as Chairperson, Secretary to the Department of Women and Child, Secretary to the State Home Department, Secretary to the State Labour Department, Secretary from the State Health Department, Director General of Police of the concerned State, Secretary of the State Legal Services Authority and two social workers as members.

 

  1. The bill also provided for Central Anti-trafficking Advisory Board headed by the Secretary Ministry of Women and Child Development and representatives from the concerned Ministries, State/Union Territories and members from Civil Society Organisations. The board shall oversee the implementation of the Act and advise the appropriate Government on matters relating to prevention of trafficking, protection and rehabilitation of victims.

 

  1. The bill provided for Constitution of a Special Agency for investigation of offences under the provisions of the Act. It also provides for protection homes for shelter, food, clothing and medical care to the rescued victims. Provisions for Special Homes for long-term institutional support for the rehabilitation for the victims also finds a place in the bill. The Registration of Protection Homes and Special Homes in mandatory under the above said bill. The bill also provided for registration of placement agencies.

 

  1. The bill provided for framing of specialized schemes for victims especially for women engaged in prostitution or any other form of commercial sexual exploitation, to enable them to come forward and reintegrate into mainstream society, in a manner as may be prescribed. The bill provided for punishment which may extend to one year or with a fine of Rs.1,00,000/- or both for persons contravening the provisions of the Anti-trafficking bill. The punishment in certain cases for extended to 3 years or with fine upto Rs.50,000/- or both. The offences under this bill are cognizable and non-bailable. The bill also provided for confiscation, forfeiture and attachment of property of accused by the special court.

 

  1. The bill provided for Constitution Special Courts that too a Court of Session has to be notified by the State Government in consultation with the Chief Justice of the High Court to act as Special Court. The bill also provided for appointment of Special Public Prosecutors.

 

  1. The bill provided for a Investigating Officer who should be a Police Officer of the rank of Gazetted Officer. The bill provided for creation of Anti-Trafficking Fund for welfare and rehabilitation of victims.

 

Critique of Anti-Trafficking Draft Bill – 2016

 

            Experts in the field of Criminology and Victimology in India claim that the Anti-Trafficking Draft Bill is toothless and it has got crucial gaps. The bill has the terms of Prevention, Protection and Rehabilitation in its name itself. But, unfortunately nowhere in the bill these terminologies had been defined. The bill is silent above the mode of prevention of trafficking. Regarding protection point of view, the bill failed to clarify whose protection and from whom and how. The bill bears the term rehabilitation but fails to clarify what would rehabilitation include. The bill speaks about trafficking of persons, but, the term trafficking was nowhere defined in the bill. The bill provides for setting up of special agencies to tackle human trafficking, but there is no description of Constitution and formation of special agencies. The bill provides for creation of Anti-Trafficking Fund but lacks explanation of utilization of such funds. The bill requires more consultations with states and experts.

 

Preventive Measures

 

  • A high level of legal reforms are needed for combating this menace. An exclusive enactment like that of the S. Trafficking Victims Protection Act, 2000, may be thought of to attend the ills of trafficked women and children in India.

 

  • Trafficking for commercial sexual exploitation of women and children is a fundamental violation of the rights of women and children. The problem of trafficking requires essentially human rights perspective for its eradication as it’s violating the rights and dignity of the victims. The women and children who have been trafficked mostly suffer various forms of exploitation.

 

  • Children in Observation homes should not be made to stay long, and as long as they are there, they should be kept occupied and made them aware of humane virtues. The violation of the rights of the children of tender age has become a very disturbing factor for their proper growth, Welfare and protection.

 

  • Since good number of Mathadishs (priests) of the Ashrams has been involved in child abuse at a large scale, serious efforts need to be made the Government on war footing to streamline these Ashrams and save the children from their clutches. Those Ashrams which are found to be involved in such shameful, and nefarious activities, should be taken over by the Government forthwith.

 

  • Prevention as a strategy to combat trafficking has to focus on areas of sensitization and awareness among the public – especially, the vulnerable pockets of trafficking.

 

  • Prevention of human trafficking requires several types of interventions such as role of state, role of NGOs, role of Media and awareness and advocacy at the policy level.

 

  • Protective Custody, as a means of dealing with victims of trafficked should be reconsidered. The victims of human trafficking should not be detained and the stay should be voluntary.

 

  • Proper training programmes should be organized to train the police forces and sensitize the judges and trial magistrates. The proceedings in the court need to be monitored so that even the defence does not indulge in revictimisation and traumatisation of the victims. To combat trafficking in humans the training should consist of raising on the issue as well as development of investigative skills for the police officials.

 

  • The rehabilitative measures given to the victims of trafficked women and trafficked children subjected to sexual exploitation are intended to ensure that trafficked persons are not treated as criminals but as victims of crime who have suffered serious human rights abuse.

 

  • A recent UN report says: “The judiciary is one of the most important sectors that need to be sensitized on gender issues and violations of rights of women due to trafficking. An analysis of the attitude of judges reveals of protectionist approach in their judgment of criminal cases against trafficking.

 

  • The report of the Department of Women and Child Development (DWCD) mentions: “The judiciary is accused of playing a role in secondary victimization, by its mode of questioning during court procedures, the long tedious legal processes and legal system is seen to be forbidding for victims who seek justice;”

 

  • The Government must launch media campaigns that promote children’s right and elimination of exploitation and other forms of child labour. Wide publicity may be given regarding the legal, penal provisions against trafficking and the modus operandi’ of the traffickers through radio, television, etc., The media should transmit appropriate message to ensure that the victims learn that they are not alone;

 

  • Exclusive forums may be established to support voluntary organizations working in the field to restrict further exploitation of the trafficked victims.

 

  • Proper implementation should doe by the Government with a monitoring mechanism of the principles contained in the convention of Rights of women and children.

 

  • At school level, institutions should be encouraged to include trafficking in their curriculum.

 

In the fight against trafficking Government organizations, Non-Governmental Organizations, Civil Society, pressure groups, international bodies – all have to play an important role. Law cannot be the only instrument to take care of all problems.

[1]. AIR 1953 Cal 522

[2]. AIR 1962 SC 1189

[3]. AIR 1967 SC 567

[4]. AIR 1970 SC 1396

[5]. AIR 1987 SC 191

[6]. AIR 1990 SC 1412

[7]. AIR 1997 SC 3021

[8].  AIR 1984 SC 469; (1987) 1 SCC 67

[9].  2005 (4) SCALE 517(2)

[10].  (2008) 1 SCC 213

[11]. [2010] 9 SCC 334.