Assault in Jails: Inform Us on Steps Taken, SC to Centre

Incidents of attack on foreign prisoners have “international ramifications", Supreme Court today said asking the Centre and Jammu and Kashmir government to apprise it of steps to ensure that assaults similar to the one on Pakistani inmate Sanaullah Ranjay do not recur.

A bench of justices R M Lodha and S J Mukhopadhya also voiced displeasure over the pace of progress in investigation into the death of Ranjay at Kot Balwal Jail in Jammu.

“Such incidents have international ramifications. The Government has to tell us that about the certain steps that have been taken and are being contemplated to ensure that such incidents do not recur in future," the court said and asked the Centre and the state government to file affidavits.

“Look, such incidents have happened in Pakistan and in India. In so far as Pakistan is concerned, we have no control and so far as India is concerned, we have got the control. You must tell us about the steps taken to ensure that such incidents do not happen again," it said.

The court, after perusing the affidavit filed by Jammu and Kashmir government, expressed unhappiness there was “not a single word" about investigation into Ranjay’s death though 72 days had passed since the incident.

“You must have held some preliminary inquiry. What are the findings. This (affidavit) is nothing as it does not give as to what had happened? How it happened? It does not even say the date on which the FIR was lodged.

“More than 72 days have passed and the investigation has not completed. The incident occurred inside the four corners of your jail. There is not a word about the investigation. The state must be co-operative and forthright. It is not a complex case. The approach of state is always obstructive," it said.

The court asked the state government to apprise it of actions taken against jail officials in the case.

It, however, said that certain steps have been taken, but the better enforcement was needed to stop such incidents.

It was hearing a plea filed by Jammu and Kashmir Panthers Party Chief Bhim Singh seeking repatriation of foreign and Pakistani prisoners, including Ranjay, and those who have already spent over 15 years in detention in India.

Ranjay, however, died on May 9 here after being attacked inside the Jammu jail.

The bench said, “The Jammu and Kashmir government shall keep strict vigil to ensure that foreign nationals prisoners, kept in jails in the state, remains safe and no harm is caused to them."

The court also asked the Centre and the Jammu and Kashmir government to expedite the process of repatriation of those twelve Pakistan prisoners against whom neither any inquiry nor any trial is pending and moreover, they have already served the awarded jail terms.

Meanwhile, senior advocate Colin Gonsalves told the bench that about 400 Indian and Pakistani fishermen are languishing in jails in both countries.

“The Indian government is not taking back Indian fishermen from Pakistan," the lawyer said.

“We cannot ask Pakistan to take their fishermen back. So far as Indian prisoners are concerned, you move an application, we will ask the Centre to respond," the bench said.

Earlier, the bench had asked the Centre and the Jammu and Kashmir government to explain as to why no steps were taken to prevent assault on Sanaullah Ranjay inside the Jammu jail.

Bhim Singh, in his plea, has also sought repatriation of all the mentally challenged prisoners, who are not wanted in any case in India but are lodged in different jails in the country, to their respective countries without any delay.

The petition also sought a direction to the Centre and the Government of Jammu and Kashmir to complete trials of all the foreign prisoners within six months.

http://news.outlookindia.com/items.aspx?artid=804053

SC notice on proposed bodies for plaints against cops

The Supreme Court Monday issued notice to the central and and state governments on a petition seeking direction to set up Police Complaint Authorities (PCA) to deal with public complaints related to law enforcers.

The authorities comprising competent and independent people were mandated by the apex court by its 2006 verdict related to police reforms.

The apex court bench of Chief Justice Altamas Kabir, Justice F.M. Ibrahim Kalifulla and Justice Vikramajit Sen issued notice as senior counsel Colin Gonsalves pointed to the court the "poor state of the implementation of the directions of the apex court for pushing police reforms".

The petition was filed by Sarfraj Mulla, Kavesh V. Gosavi, Abdul Allbaksh Gaffar Shirogod and Khalil Tannub Mohammed, who were all allegedly ill-treated by Goa Police, urging the court to direct all states and union territories to set up a PCA each and make it functional within three months.

The petitioners urged the court to direct the central government to frame model rules to be adopted by states and union territories on establishing the proposed complaint authorities.

They alleged that they were "tortured by the police, stripped naked, racially abused and maliciously prosecuted" by Goa Police.
As they filed a complaint on their torture by police before the PCA, it (PCA) allowed their cross examination by counsel for police and disallowed their counsel to question the police personnel who allegedly ill-treated them.

The PCA conducted proceedings in a manner openly favouring police and appeared to be labouring under a very wrong legal notion as to the scope of its authority, the petition said.

The petition sought direction to state governments that they should treat the apex court's directions on setting up the complaint authorities as "binding".
http://newindianexpress.com/nation/SC-notice-on-proposed-bodies-for-plaints-against-cops/2013/07/16/article1686154.ece

Legal fees are on the house

Corporate Social Responsibility has entered India's legal corridors. Top law firms and lawyers are doing pro bono so that they can give back to society.

A man phones a lawyer and asks, "What's your fee for answering three simple questions?" The reply is: A thousand dollars. "Whoa! That's very expensive, isn't it?" exclaims the man. "It certainly is, now what's your third question?" asks the lawyer.

Expensive legal fees have been the butt of many jokes but not all lawyers are the sharks they're made out to be. There are a number of socially aware and generous souls who are increasingly lending their expertise for pro bono work. Short for the Latin term pro bono publico, 'for the public good', pro bono means a case is taken up for free or the rates are deeply discounted. I n India, traditionally, pro bono legal work was carried out by lawyers who had dedicated themselves to helping society. Take senior advocate Colin Gonsalves who, in the early 1980s, co-founded the Human Rights Law Network (HRLN) to provide free legal access to the needy. Since then HRLN has expanded the scope of its legal offerings to include filing PILs, legal clinics and advocacy. Pune-based advocate Asim Sarode set up Human Rights and Law Defenders in 2002, which won accolades for providing free legal service to prisoners.

Yet, given the need for proper legal help for a diverse section of society — ranging from NGOs to social entrepreneurs; from sex workers to child labourers; and from battered women to helpless prisoners — even the PM, in his address at the Bar Council's centenary celebrations earlier this year, urged lawyers to take on more pro bono cases.

Cyber-platforms such as the international Lex Mundi Pro Bono Foundation and i-Probono are already helping connect law firms with social projects. Then there are organisations such as Ashoka which, through its 'Law for all' initiative, ensures that Ashoka Fellows (social entrepreneurs) have access to the most appropriate law firms. "In addition to meeting regulatory hurdles, this initiative also aims at providing emergency support to Ashoka Fellows, who given the nature of their work sometimes face threats and intimidation from vested interests," says an Ashoka spokesperson.

Currently, the Lex Mundi Foundation works exclusively with law firm Amarchand Mangaldas in India. Ashoka relies on lawyers such as Gonsalves and Sarode who are also Ashoka fellows. In addition, it connects with a handful of topnotch law firms.

At online forum i-Probono, pro bono initiatives are supported by a clutch of top law firms as well as individual lawyers and law students.
The Society of Women Lawyers (SOWL), India has also set up a pro bono committee. "Its objective is to act as a forum to link deserving women focused probono projects with domestic and international lawyers or law firms. While several law firms do have their internal systems and engage in pro-bono projects, SOWL-India seeks to 'institutionalise' this culture," explains Priti Suri, President, SOWL India and founder partner of PSA, a law firm.

Slowly but steadily, the pro bono culture is gaining ground. It now extends beyond serving needy individuals to providing legal services to the social sector (viz: non-profits and social entrepreneurs) thereby accelerating the pace of social good.

However, some challenges do remain in scaling up. As Swathi Sukumar, India country director, i-Probono says: "Building commitment to probono work in a systematic way in the legal profession has been a challenge. Likewise, working with the social sector organisations of all sizes is also challenging because they vary widely in terms of their professionalism, communication styles and internal organisation." Yet progress has been steady. i-Probono's India operations began in 2010 and last year it matched 53 projects with a value to the Indian social sector of over Rs 1.2 crore.

Chole B Holderness, MD, Lex Mundi Foundation points out that in developing countries, pro bono lawyers play a critical role in helping to build the organizational capacity of social entrepreneurs and innovators. "Some key areas of the law aimed at impactful social change include: Intellectual property advice for protection and licensing of innovative ideas; advice on structuring and registrations of social sector entities; advice on how to navigate and surmount government regulations that threaten to restrict the achievement of social goals."

In India, where doing business isn't easy (it ranked a poor 132 out of 185 countries on ease of doing business during the last annual survey of the International Finance Corporation) such pro bono legal assistance is much needed, especially as the same complex commercial laws extend to the social sector.

"Advising the social sector can involve navigating a maze of laws such as foreign exchange regulations, tax laws, state legislations for public charitable trusts, the Foreign Contribution Regulation Act etal and in sectors as diverse as education, microfinance and social venture funds (a class of funds now recognised by SEBI)," says Bahram N Vakil, one of the founder partners at law firm AZB & Partners.

Sometimes regulatory complexities result in a social project not taking off. Anand Prasad, partner, Trilegal, has a case in point. "A foreign NGO wanted to set up medical support facilities to provide quality healthcare to the poor. Since the project involved an element of investment in real estate by a foreign player, RBI's approval was required. Despite our best efforts to persuade the regulator, the approval wasn't forthcoming and the project had to be abandoned," says Prasad.

Given their commercial expertise, these law firms also engage actively with regulatory bodies, various ministries and policy makers to present the challenges faced by social entrepreneurs and usher in regulatory changes.

Internationally, there is a debate on whether pro bono should be mandatory or left to the individual and his conscience. Recently, the New York bar mandated that from January 2015, all applicants must have carried out at least 50 hours of legal pro bono work before they are approved to practice law. The potentially revolutionary change is aimed at providing assistance to low-income residents. Yet most jurisdictions, including India, do not make it compulsory.

Nishith Desai Associates (NDA), an international legal firm, has carved out a separate social sector practice. "We have created a dedicated team, led by a surgeon turned lawyer, which focuses on the social sector and related areas. In addition around 60-70 hours are devoted annually to such work by our employees, giving us ample human capital and capability to fulfil our passion of contributing to change," says Nishith Desai, founder of NDA.

Suri is not averse to introduction of mandatory pro bono hours, given that the legal environment as it stands today is driven towards attaining revenue targets. "At PSA, even before we gave a formal structure to the firm's pro bono policy, 60 hours annually towards pro bono work was contained in the firm's HR policy. Time spent on such projects is counted towards an individual's performance."

In India, most law firms prefer to keep things flexible, rather than dedicating a certain percentage of revenue or a certain number of hours. Sukumar agrees with this approach: "Mandatorily imposed conditions tend to often degenerate into some form of tokenism, which we would not want to encourage."

There is however an increasing realisation of the benefits of engaging in such work. "Such assignments often involve thinking out of the box and devising creating solutions. Lawyers engaged in pro bono assignments are given full credit for time spent on it," says Vakil. "Pro bono work exposes lawyers to areas of law that they would otherwise not encounter, and this helps them become more rounded professionals. Interaction with the social sector also fosters empathy," adds Prasad. Pallavi Shroff, partner, Amarchand Mangaldas, says: "With profit generating firms increasingly looking at best practices in corporate citizenship, and we are seeing resurgence in the level of community engagement of law firms."

This resurgence will help accelerate the pace of social entrepreneurship in India where a maze of complex laws can daunt even the bravest.
http://timesofindia.indiatimes.com/business/india-business/Legal-fees-are-on-the-house/articleshow/21293375.cms

Torture and Sexual Assault in Police Custody

Here Justice dies ……

By Adv. Suma Joseph

When Delhi was boiling after the December 16 gang rape just fews days later on 27th  December a 55 year old woman was tortured and sexually assaulted in police custody. On 27^th December 2012, the old lady along with her grand daughter arrived at Nizammudin Railway Station. She had come to see her daughter and son in law who had lost both his legs in an accident.

She was taken into police custody on false charges of kidnapping. There were 7 police officers and no female constable to accompany her. She was beaten up all night by these police officers with no specific evidence or reason to do so. She was battered with belts and sticks by the officers. Also one of the police officer sexually assaulted her and forced her for unnatural sex.

The poor 60 year old lady was harassed for 4 days at stretch and her grand daughter left alone on the railway station. She was threatened for life and respect. When HRLN Lawyer met her in prison she was covered with bruises and wounds all over her body. The tragedy of the case is that even when she was taken before the Magistrate, he failed to see the bruises on her face and marks on her body.

What can be worst is that a poor lady was asked to submit Rs. 10, 000 as bail bond for the first time by the duty magistrate on January 1^st and later in the concerned court , the magistrate asked for furnishing surety amount of Rs. 15000. An urgent application was moved by HRLN in the high court for a fresh medical and action to be taken against the police. The court issued notice to file status report and production of the petitioner. The next date of hearing is on 21^st February 2013.

Delhi HC orders for entitlements to Below Poverty Line Women within 6 weeks

11 January 2013, NEW DELHI

In a contempt hearing initiated by the Human Rights Law Network (HRLN), the Delhi High Court gave the Union of India and the NCT of Delhi “a final opportunity” to fully implement the Janani Suraksha Yojana (JSY) and National Maternity Benefit Scheme (NMBS) within six weeks.  If the NCT Delhi fails to fulfill its obligations by 7 March 2013, the Respondents will have to answer to the Court. The contempt petition emerges from the Delhi High Court’s judgment in Laxmi Mandal vs. Deen Dayal Harinagar Hospital & Ors. (W.P. (C) 8852/2008).  In its landmark decision, the Delhi High Court became the first national level court to hold that maternal mortality is a violation of a woman’s fundamental right to life. The petition outlines the circumstances leading to the preventable maternal death of Shanti Devi and the degrading conditions under which Fatema delivered her daughter, Alisha.  The High Court passed extensive orders to award compensation to the families and to ensure meaningful implementation of government schemes for Below Poverty Line women.  To date, the Respondents have not complied with these orders.

Broadly, JSY establishes cash incentives for delivery care and NMBS provides Rs. 500 to all pregnant women 8-12 weeks prior to delivery.  Because the Government of Delhi has failed to implement these schemes, homeless pregnant and lactating women like Fatema and Priya Kale, have been unable to access the government entitlements that provide them with the minimum nutritional and financial support they need to survive.

The original Writ Petition,Laxmi Mandal vs. Deen Dayal Harinagar Hospital & Ors. (W.P. (C) 8852/2008), details grave violations of Shanti Devi and Fatema’s fundamental rights. Shanti Devi had no choice but to carry a dead fetus in her womb for 5 days, as multiple facilities refused to treat her.  She only received medical care after the Delhi High Court intervened. While the High Court considered the petition, Shanti Devi became pregnant again, and died after giving birth to a pre-mature baby. The baby, Archana, survived and currently lives with a neighboring family. Fatema delivered her daughter, Alisha, in full public view under a tree in Jangpura, New Delhi. In both cases, the government failed to provide the women with their financial or nutritional entitlements under myriad Union of India sponsored schemes. The Court ultimately found that the Respondents violated both Shanti Devi and Fatema’s fundamental rights to life and health under the Constitution.  In addition to providing compensation to both Shanti Devi’s family and to Fatema, the Court ordered the Respondents to comply with a 2007 Supreme Court order directing all state governments and Union Territories to implement both the NMBS and JSY schemes.

HRLN will continue to pursue this matter until the most marginalized women in Delhi can fully realize their right to healthy and dignified, pregnancy, delivery, and post-partum period.

For more information, please contact:
Kerry McBroom, Director, Reproductive Rights Unit, HRLN (+91 9650316596)
or
Advocate Jayshree Satpute (+91 9871155098)

Read the order here

The Supreme Court of India sets up a commission to look into extra-judicial killings in the State of Manipur

    

In the case of Extra Judicial Execution Victim Families Association (EEVFAM) and Another versus Union of India & Another, a writ petition was filed in the Supreme Court it stated that during the  period  May,  1979 to  May,  2012,  1528  people  were  killed  in  Manipur  in  extra-judicial execution. The statement is mainly based on a memorandum prepared by  'Civil Society Coalition on Human Rights in Manipur and the UN'  and  submitted  to one  Christof  Heyns,  Special  Rapporteur  on  extrajudicial,  summary   or arbitrary executions, Mission to India, 19-30 March,  2012.  

The petition highlights the list of 1528 people  unlawfully killed by  the  State Police  or  the  security  forces.  The Court ordered constituion of a three member committee to look into extra judicial killing and the circumstances in which people were killed. And if the commission finds that the state police/ security forces transgress the legal boundaries the commission shall make its recommendations. It also ordered State Government to hand over the commission without any delay all records, materials and evidences relating to the cases. 

Read the full order here

For more information Contact:

Adv. Shamik Naraian

litigation.delhi@hrln.org 

Supreme Court summons health secretaries of 7 states over female foeticide, infanticide

Concerned over the drastic drop in the girl child ratio across the country, the Supreme Court on Tuesday sought response from seven worst performing States and summoned their health secretaries. The Court wanted them to explain action taken by them against offenders who violated the PNDT Act that prohibits pre-natal sex determination.

The average count of the girl child (0-6 years) has dropped to 914 per 1,000 boys as per the Census 2011 from a relatively high level of 927 in the the 2001 Census. The apex bench of Justices KS Radhakrishnan and Dipak Misra noted that the ration was particularly dismal in in Punjab, Haryana, Rajasthan, Uttar Pradesh, Bihar, Maharashtra and Delhi.

Issuing notice to the respective State Governments to respond by February 12, the bench directed the respective Health Secretaries to remain present in Court with statistics explaining action taken under the Pre-Conception and Pre-natal Diagnostic Techniques Act 1994.

Drawing a direct link between the fall in the female child ratio with the prevailing mindset to have a boy child, the bench said, "Society as a whole is not accepting equality between boy and girl." Attacking the superstition that hell awaits those who failed to conceive a boy, the bench added, "There has to be a change in this mindset."
The Voluntary Health Association of Punjab, which filed the PIL in apex court to highlight serious violations of PNDT Act, stated that when it came to matching the girl child ratio with that of boys, the above seven States/UTs fared the worst. "Any figure below 900 girls per 1000 boys is to be viewed seriously," said senior counsel Colin Gonsalves, appearing for the NGO.
In Rajasthan, for instance, the ratio of female child was 909 in the previous census and  dropped to 883 in the 2011 count. Uttar Pradesh also recorded a drop  from 916 to 899, Bihar 942 to 933, and Delhi 868 to 867.  Maharashtra  witnessed a drastic slip from 913 to 883 in a decade, while e Punjab and Haryana recorded an increase from 798 to 846 and 819 to 830 respectively.
Three other states Jammu and Kashmir, Uttarakhand, and Madhya Pradesh, too fared badly on the census list.
In order to ascertain the effective implementation of the PNDT Act, the Court asked the Health Secretaries to present statistics on the number of persons booked under the Act since its inception, prosecutions pending and convictions achieved.
Gonsalves pointed out that prosecution figure was very low and only few cases yielded conviction. While the law provides for three years sentence, seldom do courts impose it as in majority cases, accused were let off with fine. Thus the Act failed to be a deterrent against female foeticide as intended by the legislature, Gonsalves said. He even accused the Centre of not conducting periodic reviews of state agencies under the Act, meant to supervise registration of clinics and centres conducting pre-natal diagnosis.