Shipyard Slavery?

Posted on June 12, 2008 by Law Matters

Reportedly, Signal International, a marine fabrication company, apparently recruited about 590 Indian workers though a Mumbai-based Dewan Consultants Pvt. Ltd..

About one hundred and twenty of these workers who went to the US later alleged that they had been treated inhumanly at work and walked out with the support of local activists. They also made allegations of human trafficking against the Dewan Consultants.

In India, the government filed a case of cheating against the recruitment agency and suspended the registration certificate issued to it under the Immigration Act, 1983, allegedly without verifying facts. Justice Rekha Sharma of the Delhi High Court then directed the government to dispose of the inquiry pending against the recruiters within one month pointing out that ‘The registration certificate of the petitioner is under suspension since March 10, 2008 and on account thereof, petitioner is unable to operate as a recruiting agent.’ (This certificate is required for it to recruit workers for employment overseas.)

In the US, the Indian shipyard workers initiated proceedings in the District Court of Louisiana in March. Around the same time, the US Department of Justice also launched an investigation into matter.

The MMS Scandal and the Law

Posted on June 10, 2008 by Law Matters

In a case involving an MMS showing two schoolchildren engaged in an intimate act being uploaded on to a website, Justice Muralidhar of the Delhi High Court pointed out that ‘since the IPC does not recognise the concept of an automatic criminal liability attaching to the Director where the company is an accused not even a prima facie case for offence under sections 292 and 294 is made out [against Mr Bajaj, the MD of the company at the time].’

Justice S Muralidhar went on to drop charges under the Indian Penal Code against Avinash Bajaj, the former Manging Director of Bazee.com (now Ebay India Pvt. Ltd.). Mr Bajaj had been charged with offences under IPC as well as with offences under the Information and Technology Act.

Pornography is easily available in India (just as it is in the rest of the world). In fact, any discussion about the availability of pornography is ludicrous in the Age of Online Porn. And, whether or not one wants to admit it, it is closely linked to prostitution and to trafficking: â€˜today, the hunt for cheap, easy prey has been made significantly easier because the prowlers know exactly where to clickâ€™.

There are provisions in the Penal Code, the Information Technology Act and the Indecent Representation of Women Act to deal with porn and other forms of indecent representation though.

The Indian Penal Code says:

Any book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, is deemed to be obscene under Section 292 of the Indian Penal Code â€˜if it is lascivious or appeals to the prurient interest or if its effect (or where it comprises two or more distinct items, the effect of any one of its items) is, if taken as a whole, such as to tend to deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Under Section 292 (2), whoever

sells, lets to hire, distributes, publicly exhibits or in any manner, puts into circulation or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever or
imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation or
takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation or
advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this Section or that any such obscene object can be procured from or through any person or
offers or attempts to do any act which is an offence under this Section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

This Section does not extend to:

any book, pamphlet, paper, writing, drawing, painting, representation or figure
1. the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern or
2. which is kept or used bonafide for religious purposes

any representation sculptured, engraved, painted or otherwise represented on or in
1. any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or
2. any temple or on any car used for the conveyance of idols or kept or used for any religious purpose.

And under Section 293 which deals with the punishment of an act listed in Section 292, â€˜whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding Section or offers or attempts so to do, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.â€™

The Indian Penal Code does not define obscenity itself. In Ranjit D Udeshi v/s State of Maharashtra, 1965,² the Supreme Court, however, accepted the test formulated over a century ago in R v/s Hicklin, the case under which a bookseller was prosecuted for keeping and selling the supposedly obscene Lady Chatterleyâ€™s Lover. Despite the furore which the book created when it was first published, by itself, it simply cannot be considered obscene by contemporary standard and as such, the test in R v/s Hicklin, which quite simply fails either to recognise or to make provision for this change in the perception of obscenity, should not have been accepted.

Parliament passed the Indecent Representation of Women (Prohibition) Act in 1986. It extends to the whole of India except the State of Jammu and Kashmir and is meant to â€˜prohibit indecent representation of women through advertisements or in publications, writings, paintings, figuresâ€™.

â€˜Indecent representation of womenâ€™ means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent or derogatory to or denigrating women or as is likely to deprave, corrupt or injure public morality or morals. ³

Further, there is a provision in the Information Technology Act, 2000 which deals with the publishing of information which is obscene in electronic form.

The Information Technology Act was passed by Parliament in 2000 primarily to provide legal recognition to eCommerce and is based on UNCITRALâ€™s Model Law for Electronic Commerce which the UN General Assembly adopted on January 30, 1997. Section 67 of the Act says:

Whoever publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and with fine which may extend to two lakh rupees.

Apart from online porn, recently, a large number of men have been morphing photos of women who either dump them or simply reject their advances and posting them on the Net. There doesnâ€™t seem to be very much that can be done about it â€“ once the photos are on the Net, the damage has usually already been done as far as the woman involved is concerned.

Moving away from relationships which have gone sour (assuming they existed in the first place) though, another form of indecent representation which has been much talked about is that which is on TV. Apart from a large number of PILs being filed against various actresses for wearing supposedly indecent clothes in performances, in January 2007, the Government temporarily banned the AXN Channel for showing supposedly indecent content.

While the judiciary has been trying to curtail instances of frivolous public interest litigation being filed by persons suffering from bouts of self-righteousness, the Government has increasingly been making forays into realm of morality although, as Jug Suraiya⁴ pointed out, â€œA perverse politics of pornography seems to prevail. A State apparatus which cannot grant its citizens the most basic of life enhancing requirements â€“ primary healthcare, education, gainful employment, safety from violence â€“ shows compensatory zeal in protecting its people from the ill-effects of moral pollutants in their most ingenious of Avatarsâ€¦ even as the regular police turns a blind eye, or worse and acts as an accomplice to rape, murder torture and other obscenities of violence.â€

In Bobby Art International v/s Om Pal Singh Hoon, 1996,⁵ the Supreme Court did not quash the certificate of exhibition of a film which told the story of a tribal girl â€“ Phoolan Devi â€“ whose being exposed to various forms of brutality shown in the film (including gang-rape) turned her into a dreaded dacoit known as the â€˜Bandit Queenâ€™. The Court held that the film had to be judged in its entirety and that nakedness did not always arouse a baser instinct.

References:
1. Malarek, Victor; The Natashas; Arcade Publishing; 2003
2. AIR 1965 SC 881
3. Section 2; Indecent Representation of Women (Prohibition) Act, 1986
4. Suraiya, Jug; Risque and Porn: Can I& B tell the difference?; The Times of India; 21.1.2007
5. (1996) 4 SCC 1
6. Indian Women: A Socio Legal Perspective; Saikia, N

Protesting the Pill

Posted on June 7, 2008 by Law Matters

On June 7, 1965, the U.S. Supreme Court found married couples had a right to privacy in the US Constitution in the case of Griswold v. Connecticut. The case involved an 1879 Connecticut law which prohibited the use of contraceptives. The decision was passed by a vote of 7:2. However, one of the dissenting judges, Justice Stewart, described the statute as being ‘an uncommonly silly law’, although he held that it was constitutional.

The decision enabled planned-parenthood advocate Estelle Griswold to sell birth control pills legally; she had earlier been doing so illegally.

The American Life League has chosen June 7 to be ‘Protest the Pill Day ’08: The Pill Kills Babies’. The organisation is a radical pro-’life’ organisation which is committed to telling people that birth control pills supposedly kill babies.

Sexual Harassment in the Workplace

Posted on June 7, 2008 by Law Matters

The State of Karnataka plans to enact a law to protect women against harassment in work places.

In the 1997 case of Vishaka v. State of Rajasthan, the Supreme Court laid down guidelines and norms for observance at all work places or other institutions, until a legislation to prevent sexual harassment in the workplace was enacted. Such a Bill exists but it has not yes been passed by Parliament and become law.

The guidelines laid down by the Supreme Court were laid down in the exercise of the power available to it under Article 32 of the Constitution for enforcement of the fundamental rights and are treated as the law declared by the Court under Article 141 of the Constitution. This means that they are binding on all Indian courts.

The GUIDELINES and NORMS prescribed by the Supreme Court are:

1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.

10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Disciplining Children

Posted on June 3, 2008 by Law Matters

An article from the CoE Commissioner of Human Rights says that Europe is moving towards a total ban of domestic violence against children by the end of 2009. It quotes Janusz Korczak who once said, “There are many terrible things in the world, but the worst is when a child is afraid of his father, mother or teacher,” and, speaking of violence against children, it says:

“This violence may be a deliberate act of punishment or just the impulsive reaction of an irritated parent or teacher. Both cases constitute a breach of human rights. …. The invention of concepts such as “reasonable punishment” and “lawful correction” arises from the perception of children as the property of their parents. Such “rights” are based on the power of the stronger over the weaker and are upheld by means of violence and humiliation. …. Children have had to wait the longest to be given equal legal protection from deliberate assaults – a protection the rest of us take for granted. It is extraordinary that children, whose developmental state and small size is acknowledged to make them particularly vulnerable to physical and psychological harm, have been singled out for less protection from assaults on their fragile bodies, minds and dignity.”

Across the pond, things seem to be a little different. In 2008, the Minnesota Supreme Court ruled for a couple who spanked their 12-year-old son thrity-six times with a paddle. It did not establish a ‘rule that the infliction of pain constitutes physical injury or abuse’.

In an even more unusual case mentioned in the American Bar Association Journal, Judge Gustavo Garza from Texas was being sued for giving Daniel Zurita the option of spanking his 14-year-old stepdaughter (which he took). The alternative was that she would be found guilty of a criminal offence and fined $500. The judge apparently keeps two paddles in his courtroom and, in this case, allegedly later chastised Zurita for failing to hit the girl hard enough.

In India, in recent years, there have been a number of criminal cases filed against teachers who have beaten their students although, as a general rule, this has been after the children have been seriously injured or have died. Such cases could also, in theory, be filed against parents who assault their children although such cases are rarely heard of.

The Right to Education Bill, 2005, does, however, prohibit the infliction of any form of corporal punishment on children by schoolteachers.

The Medical Examination of a Suspected Rapist

Posted on May 24, 2008 by Law Matters

Section 53A was inserted into the Code of Criminal Procedure in 2005 to make provision for the medical examination persons suspected to have committed rape or attempted rape. It came into effect on June 23, 2006.

Who Can Conduct the Examination

If it is proposed to get the person arrested medically examined, the examination should be conducted by a registered medical practitioner who is employed at a hospital or at a hospital which is run by a local authority.

However, if such a doctor is not available within sixteen kilometers of the place where the offence was allegedly committed, any other registered medical practitioner, possibly with the aid of another person acting under his direction and in good faith, may conduct the examination if he is requested to do so by a police officer. The police officer must not be below the rank of sub-inspector.

A registered medical practitioner is one whose name has been entered in the State Medical Register according to Section 53 of the Code.

Consent

A person who has been arrested because of being suspected to have committed rape or attempted rape may be required to undergo a medical examination if there are reasonable grounds to believe that such an examination will afford evidence regarding the commission of the offence.

The examination can be conducted even without the consent of the person who is to be examined. An examination which is conducted without such consent is lawful.

Such force as is reasonably necessary may be used to conduct the examination.

The Examination

The examination can be carried out when the offence is being investigated. It may include the examination of blood, blood stains, swabs, sputum, sweat, etc., by the use of modern and scientific techniques including DNA profiling and any other tests which the doctor may think are necessary.

When a person is sent to a registered medical practitioner to be examined in these circumstances, the doctor is required to conduct the examination without delay and once he has completed it, he must prepare a report of his findings.

The Report

The report must state exactly when the examination began and ended. In addition to this, it must clearly identify the accused, describe the material taken from the person of the accused for DNA profiling, list marks or injuries on the person of the accused, and mention other material particulars in reasonable detail. The doctor must give reasons for each his conclusions.

After the report has been written, the doctor is required to forward it to the Investigation Officer involved in the case. The IO then forwards it to the Magistrate empowered to take cognizance of the offence on a police report.

The report of the doctorâ€™s examination is considered to be one of the documents on which the prosecution hopes to rely on at trial.

The Medical Examination of a Rape Victim

Posted on May 24, 2008 by Law Matters

Section 164A was inserted into the Code of Criminal Procedure in 2005 to make provision for the medical examination of victims of rape or of attempted rape. It came into effect on June 23, 2006.

The language used in this Section is gender specific and literally refers only to female victims of rape.

Who Can Conduct the Examination

If it is proposed to get the woman who has been subjected to the offence medically examined, the examination should be conducted by a registered medical practitioner who is employed at a hospital or at a hospital which is run by a local authority.

However, if such a doctor is not available, any other registered medical practitioner may conduct the examination.

A registered medical practitioner is one whose name has been entered in the State Medical Register according to Section 53 of the Code.

Consent

The examination can only be conducted with the consent of either the victim herself or the consent of someone who is competent to give such consent on her behalf. An examination which is conducted without such consent is not lawful.

The woman must be sent to the doctor who is to conduct the examination within twenty-four hours after the police receive information regarding the offence.

The Examination

When a woman is sent to a registered medical practitioner to be examined in these circumstances, the doctor is required to examine her without delay and once he has examined her, prepare a report of the findings of the examination.

The Report

The report must state exactly when the examination began and ended. In addition to this, it must clearly identify the woman, describe the material taken from her person for DNA profiling, list marks or injuries on her person, record her general mental condition and mention other material particulars in reasonable detail. The doctor must give reasons for each his conclusions.