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ANNEXURES

Summary of the report (1999-2000) and of the principal recommendations
OPINION in regard: The Prevention of Terrorism Bill, 2000
Regarding Child Marriage Restriant Act, 1929
Recommendations of the Workshop on Maternal Anaemia
Conclusions/Recommendations of the National Conference on HIV/AIDS on 24-25 November, 2000
Comments/suggestions on the draft long term Action Plan(2000-2005) for implementation of the National Policy on Older Persons

 

 

Annexure – I

 

SUMMARY OF THE REPORT (1999-2000) AND OF

THE PRINCIPAL RECOMMENDATIONS

       The Commission has repeatedly drawn attention to the delay in the placing of its Annual Reports before Parliament. The time lag between the submission of the Report and placing it before Parliament was more than nine months in respect of the Annual Report for the year 1996-97, while it was twelve months for the Report of 1997-98 and 13 months for the Report of 1998-99. It has been observed that the Reports of the Commission are an essential source of information to the people of this country and to all who are connected with human rights and that there is need to place the reports promptly before Parliament along with the Action Taken Report.  It has also been recommended that this shall be done not later than the session immediately following submission of the Report. The Commission has further urged that the Reports of the Commission should be allowed to be released to the public, if for any reason they cannot be placed before Parliament in the session immediately following the submission of the report. It would like to repeat this recommendation.
2.       The Commission is compelled to observe that successive Action Taken Reports have been less than clear in respect of whether recommendations of the Commission will be implemented or what the timeframe will be for the implementation of recommendations. Further when recommendations pertain to the States, the Commission expects that the Central Government will use its best efforts to secure compliance at the earliest. Too often, however, the Action Taken Reports simply indicate that the recommendation in question falls within the competence of the States and does not indicate what, if anything, will be done thereafter.  The Commission urges the Central Government and State Governments to respond with greater precision to the recommendations of the Commission and to endeavour to comply them within clearly defined time-limits.
3.                 The Commission has the following recommendations to make at this stage, in regard to the issues of Gender discrimination:

  • The Commission would like to reiterate its recommendation, repeatedly made in earlier reports, that there is urgent need to ensure that free and compulsory education is provided as a Fundamental Right to all children until they complete the age of 14 years as required by the Supreme Court and that the 83rd Amendment to the Constitution be passed without further delay.  The Commission would also like to emphasize that greater efforts are required to combat discrimination against the girl child in all of its manifestations and that, in particular, the doors must be opened to better health care and education.
  • The Commission is convinced of the efficacy of effective and timely consultation with all concerned groups in civil society before the submission of India’s reports before the competent treaty bodies. It therefore recommends to the Central Government that it undertake thorough and extensive consultations with all the appropriate NGOs and other activist groups, in as large a number of centres across the length and breadth of the country as possible, before preparing country reports.
  • The Commission recommends, in particular, the gender sensitization of health workers, and a specifically targeted health care campaign to combat discrimination against girls and women in regard to access to nutrition so as to effectively combat maternal anaemia. It further recommends that a vigorous and comprehensive national campaign be undertaken against female foeticide and female infanticide as these are matters which need urgent and utmost concern of the Government of India and the State Governments.
  • The Commission notes with deep concern the prevalence of the devadasi system in certain parts of the country and also the persistence of trafficking in women, especially those belonging to the weaker sections of society, for the purpose of prostitution.  It recommends that Government take effective and vigorous steps to prevent these atrocities on women and prepare a meticulous nation-wide programme, with special emphasis on vulnerable regions/areas, to deal with these deeply troubling practices that constitute gross violations of human rights.
  • The Commission also urges that the training of other key players in the governance of the country including, inter alia, members of the judiciary, administration and police personnel, be reoriented to make them more sensitive to gender related issues and the requirements of the Constitution, and the laws and treaty commitments of the country.
  • The Commission strongly recommends that early action be taken at the political level to provide for better representation for women in the State Legislatures and in Parliament, either through early enactment of the 85th Amendment to the Constitution or other appropriate means.
  • The Commission recommends the strengthening of the National Reproductive and Child Health Programme.
  • The Commission recommends that concerted efforts should be made to bring down the rate of maternal mortality with special reference to the larger Northern States of India, where it is much higher than the national average, and through more focussed National Nutritional Anaemia Control Programme to effectively bring down maternal mortality and low birth weight amongst children.
    4.       The Commission recommends that the Government of India undertake comprehensive steps to root out ‘Untouchability’ and, for this purpose, implement the provisions of the Protection of Civil Rights Act, 1976 and the Prevention of Atrocities against SCs and STs Act, 1989 more vigorously than hitherto. Further, the Government should sensitize the police force to act impartially and fearlessly to give protection to the SCs and STs and to educate the general public against the pernicious practice of ‘untouchability’ and discrimination directed against the SCs and STs.
    5.       The Commission urges the Central Government to be more forthcoming and transparent in respect of the Bijbehera incident and to place the records of the relevant proceedings before the Commission as required by it.  The Central Government is also urged, once again, to act with greater resolve to bring to book those involved in the abduction and subsequent killing of Shri Jalil Andrabi and to inform the Commission fully of the efforts it is making in this regard.
    6.       The Commission has in its earlier reports urged the Central Government to direct the armed forces, including the para-military forces, to report to the Commission - as does the police – any cases that might occur of the death of persons while in their custody.  Such a system of accountability, as observed earlier by the Commission, would add to the credibility and transparency of the actions of the armed forces and also prevent propagandist and unsubstantiated charges being made against them.  The Memorandum of Action Taken, however, reiterates the view of the Government of India that a procedure for dealing with the armed forces different from that provided in the Protection of Human Rights Act 1993 is not necessary.”  There is clearly, at present, a difference of opinion between the Commission and the Central Government on this matter, with the Commission believing that there is need for greater transparency and accountability.  The Commission has, therefore, proposed an amendment to the Protection of Human Rights Act 1993 in respect of the armed forces and urges that the recommendations made by it in respect of this matter, and its Statute more generally, be acted on without delay.
    7.       The Commission notes that deaths in police custody have not shown any significant decline over recent years. The Commission is of the view that unless there is determined action to curb such incidents and to punish the personnel involved in them promptly and severely, the record of the country in regard to custodial violence will remain deeply blemished.  The Commission therefore recommends that, in every case of death in police custody, the prima facie presumption should be that of custodial violence and a criminal case should be registered.  All such cases should be promptly investigated.  As suggested by the National Police Commission, the Commission in its earlier reports recommended that there should be a mandatory enquiry by a Sessions Judge in each case of custodial death, rape or grevious hurt. The action taken report on the Annual Report for 1998-99 stated as follows:
    “The Code of Criminal Procedure (Amendment) Bill, 1994 introduced in the Rajya Sabha on May 9, 1994 includes a proposal to amend Section 176 Cr.P.C to provide that in case of death or disappearance of a person or rape of a woman while in the custody of the police there shall be a mandatory judicial inquiry and in case of death, examination of dead body shall be conducted within 24 hours of death. The Bill was referred to the Parliamentary Standing Committee on Home Affairs which has submitted its Report with certain recommendations.  This report is under examination.” The Commission urges the Government to complete examination expeditiously and to take further action.
    8.    While the Commission’s instructions for reporting the occurrence of custodial deaths, whether in jail or in police custody,  is being complied with by all States and Union Territories, the Commission finds that subsequent action to send the post-mortem report, along with the video-graphy of the post-mortem and the magisterial inquiry report, is often considerably delayed. The Commission calls upon all States and Union Territories to send these reports promptly to the Commission and to strictly observe the directions of the Commission in this regard. 
    9.    The Commission in its earlier reports also recommended that  Section 197 of the Code of Criminal Procedure may be amended, on the basis of Indian Law Commission’s recommendations, to obviate the necessity for governmental sanction for the prosecution of a police officer, where a prima-facie case has been established, in an enquiry conducted by a Sessions Judge of the commission of a custodial offence.  The action taken report on the Annual Report for 1998-99 states as follows:
    “152nd Report of the Law Commission was referred back to the Law Commission to consider the recommendations relating to Section 197 of the Criminal Procedure code contained in their Report for providing a comprehensive review of Code of Criminal Procedure 1973.  The 154th Report submitted by Law Commission containing a comprehensive review of the Cr.P.C., has not included the recommendations made by the National Human Rights Commission with respect to Section 197 of the Cr.P.C”.
              Upon a reconsideration, the Commission reiterates its earlier recommendations for the amendment of Section 197 of the Code of Criminal Procedure.
    10.             The Commission’s instructions in regard to the video filming of post-mortem examinations of deaths occuring in judicial or police custody have been complied with by all States and Union Territories except Arunachal Pradesh, Maharashtra, Mizoram, Manipur, Uttar Pradesh, Andaman & Nicobar Islands, Chandigarh, Delhi, Dadra & Nagar Haveli and Lakshadweep. The Commission recommends that these States and Union Territories also act upon these instructions without further delay in order to help ensure that custodial violence is curbed, and that those involved in it are brought to book.
    11.                The Commission calls upon the States of Arunachal Pradesh, Bihar, Gujarat, Jammu & Kashmir, Kerala, Maharashtra and Nagaland to adopt and use the Model Autopsy Form devised by the Commission for the conduct of post-mortem examinations in respect of custodial death. 
    12.     The Commission calls upon the Government of Uttar Pradesh to comply with its recommendations following the visit to police lock-ups in that State by officers of the Commission.
    13.     The Commission calls upon the Central Government to take prompt action on such recommendations of the Ribeiro Committee “which can”, as mentioned in the Action Taken Report for the year 1998-99, “be implemented within the existing constitutional limitations”.
    14.     The Commission calls upon all the State Governments which have established human rights cells in the Offices of the Directors General of Police to use these cells to sensitize the police officers in the State on human rights issues relevant to the police force, so that its personnel increasingly recognise, respect and protect the human rights of the citizenry. An appropriate level of funds should be allocated to the human rights cells in order to enable them to prepare the appropriate curricula and conduct workshops for the spread of human rights awareness among police personnel of the State. The Commission is convinced that such steps could constitute an important way of reducing human rights violations by police personnel and  lead to greater public trust in them.
    15.     The Commission receives a large number of complaints of human rights violations resulting from the abuse of police powers relating to arrest and detention. In order to minimize the scope of misuse or abuse of such powers, Commission formulated guidelines which have been circulated to all States and Union Territories. The Commission urges all States and Union Territories to have these guidelines translated into local languages and distributed to police personnel in all police stations. These guidelines should also be made available to NGOs, citizens fora and lawyers associations, and be prominently displayed in all police stations so as to be readily accessible to all members of the public.
    16. The Commission calls upon all States, except Arunachal Pradesh, Assam, Gujarat, Jammu & Kashmir, Kerala, Manipur, Nagaland, Orissa, Punjab, West Bengal and Union Territories of Andaman & Nicobar Islands, Chandigarh and Pondicherry which have already taken appropriate action, to issue instructions to have the guidelines in respect of arrest and detention incorporated in the training curriculum for their police personnel and observed by all police personnel.
    17.     The Commission calls upon all States to have Toll-Free telephone facilities, to establish systems to inform complainants of the status of their complaints; to instruct SHOs to hold regular meetings with the public in order to build rapport and confidence; and to promote better police-community relationships by having the SPs meet leaders of the public on a regular basis to achieve this end.
    18.     In the sphere of police-community relations, the most concerned and least satisfied members of the public, often complain of the lack of transparency in police work, and delays, indifference and corruption, in dealing with complaints and cases. While several corrective steps have been taken, the complainant, very often, is not informed of the steps taken by the police. This results in the complainant/ victim becoming suspicious that the police has either not taken any action at all or that it is under the influence of the rival party or acting under political pressure or extraneous considerations. The Commission is of the view that it is the duty of the police to inform complainants of the registration of an FIR or the reasons for non-registration.  It has also recommended that if investigations are not completed within three months, the Investigating Officer should inform the complainant in writing of the reasons for such delay and reiterates the same.
    19.             The Commission has observed that a fear psychosis often governs the feelings of the general public in their dealings with the police. The Commission has appreciated, in this connection, the effort made by the Kerala Police to reduce such anxieties, a system having been established whereby the Station House Officers hold public meetings in various towns/villages in their jurisdictions twice a month. The Commission recommends that this practice be followed in other States as well. The Commission has proposed that the DGPs/Chief Secretaries of the States advise the SPs of Districts to undertake regular meetings with different sections of the society in order to promote better police-community relations and to enable the police to get information, intelligence and public co-operation.  The Commission is convinced that such exchanges can contribute to the better protection of human rights in the country and a greater sensitivity in society towards such rights and recommends the same to all States.
    20.     The Commission calls upon the States to set-up credible reporting system, to respond to requests of the Commission for inquiry into allegations of violations of human rights and to ensure that such inquiries are conducted impartially, objectively and promptly and supervised by personnel respected for their integrity.
    21.  The Commission calls upon senior officers of the States not to mechanically forward reports of inquiries received from officers under their jurisdiction but to critically and closely examine and endorse the veracity of the facts and conclusions before submitting these reports for the acceptance of the Commission.
    22.   The Commission calls upon all the States to implement its guidelines on the supply of reading material to prisoners.      
    23.  In the light of the decision of the Supreme Court in the case State of Gujarat vs. Hon’ble High Court of Gujarat requiring the payment of equitable wages to prisoners for the work done by them, the Commission calls upon those States which are yet to revise the level of wages paid to prisoners to do so at the earliest in compliance with the ruling of the Apex Court.
    24.   The Commission calls upon all States to scrupulously implement the guidelines of the Commission in regard to the premature release of prisoners and the maintenance of prison records in such a manner so as to enable the Commission to monitor action in this respect. The Commission calls upon the States of Andhra Pradesh, Bihar, Himachal Pradesh, Maharashtra, Nagaland, Manipur and Union Territory of Andaman & Nicobar, which have not yet responded to the Commission concerning the implementation of these guidelines, to act expeditiously in this matter.
    25.  On reviewing issues relating to prison administration, the Commission has grown increasingly concerned that instructions regarding the medical examination of prisoners at the time of admission, and periodically thereafter, are not being observed.  Likewise, serious problems continue to persist in respect of escorts for prisoners being sent for treatment and provision of vocational training to prisoners.  The Commission also calls upon the States to update and revise their jail manuals to incorporate international standards and to ensure that judgements of the Supreme Court on human rights of prisoners are implemented fully.
    26.   The Commission is of the opinion that in order to bring about qualitative improvement in prison administration, it is imperative that officers of proven integrity and competence are selected for the post of Inspector General (Prisons) and allowed to continue to work in that post for a minimum period of three years. The Commission calls upon all States to provide a fixed tenure for IG (Prisons).
    27.     The Commission remains deeply concerned about the predominance of undertrials in the population of prisons. The Commission is heartened at the positive response of the High Courts which have addressed communications to Sessions Judges requesting them to visit prisons regularly to review the conditions prevailing therein and to ensure speedy trial of those cases in which persons who have committed petty offences are languishing in jails because their cases are not being decided for various reasons. 
    28.   The Commission is distressed to note that mentally challenged persons have been kept in prisons and that, compounding this violation of their rights, they have also been denied proper medical care and attention. Since the Mental Health Act, 1987 does not permit the lodging of mentally challenged persons in prisons, it is illegal to do so.  In this connection, the Commission calls for early and positive action by the State Governments on the letters addressed to the Chief Ministers of all States by its Chairperson, urging them to ensure that mentally challenged persons were not kept in jails under any circumstances.     The Commission has, in its preceding Reports, made specific proposals concerning the need to improve certain aspects of the administration of Criminal Justice in India.  In the report for 1998-99, the Commission drew attention to the lack of efficiency in police investigation, certain problems  bedeviling the administration of Criminal Justice in the Courts, and recommended a programme of action for speedy clearance of criminal cases.
    29.   The Action Taken Report  (ATR) for the year 1998-99 listed the steps taken by the Central Government on these recommendations.  These included the dispatch of letters to the State Governments stressing the need for financial autonomy to the Courts, and to the National Judicial Academy  to develop programmes for speedy clearance of criminal cases in courts and interaction with the NIC for the extensive use of computerisation in the subordinate judiciary.  With regard to changes suggested in the substantive law, the ATR referred to the comprehensive review of the Cr.PC 1973 undertaken by the Law Commission and to the recommendations made by the latter for amending the Cr.PC. The ATR indicates that the recommendations of the Law Commission are being processed. 
    The Commission urges the Government to complete the processing of the recommendations of the Law Commission speedily and to take steps to amend the Cr. PC accordingly.  As the improvement of the administration of Criminal Justice is of some importance to the Commission, is reiterating those recommendations.
     
    30.    While the use of forensic science in securing evidence that can result in just and speedy results in criminal cases is well accepted, forensic services in the country are still grossly inadequate and have not incorporated the latest techniques available in this field. The Commission had therefore constituted a Core Group of experts to examine the facilities in forensic science laboratories in the country and to make appropriate recommendations. The report of the Core Group “State of the Art Forensic Sciences : For Better Criminal Justice” was released on 11 June 1999 by Shri L.K. Advani, Union Home Minister. The Commission had requested the Ministry of Home Affairs to take action on the recommendations made in the report but has not received an adequate response on this issue.  The Commission calls upon the Ministry of Home Affairs to initiate early and comprehensive action to implement the recommendations made in the report.
    31.   Concerned at the contamination of life-saving I.V. fluids which had wide implications for the health of the people of this country and to their right to life, the Commission constituted an Expert Committee to make an indepth study to examine the reasons for contamination and to suggest measures to prevent such lapses. The report of the Committee titled “Large Volume Parenterals – Towards Zero Defect” was released on 11 June 1999 by Shri L.K. Advani, Union Minister for Home Affairs. The Commission calls upon the parties concerned viz. M/s Core Health Care Ltd.; Central Drug Controller General of India, Government  of India; Commissioner, Food and Drug Control Administration, Government of Gujarat; Ram Manohar Lohia Hospital, New Delhi; Medical Stores Depot to implement its recommendations which are comprehensive in character, fully and expeditiously.
    32.     The Commission reiterates its call, made to the Ministry of Health, Government of India and the Health Departments of all the State Governments that they implement the recommendations contained in the Commission’s report entitled “Quality Assurance in Mental Hospitals” in full measure.
    33.  The Commission has requested the Central Government to amend comprehensively the Protection of Human Rights Act, 1993, through a report transmitted to it in March 2000. The Commission urges that steps be taken to bring the requested amendments before Parliament during the Budget Session 2001.
    34.     The Commission has been repeatedly urging the Government to ratify the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. Despite the passage of three years since the signing of the Convention on 14 October 1997, there has been no progress in this respect.  The delay has brought no credit to the country and has sent an ambiguous message as to the commitment of India to end the odious practices covered by this Convention. The Commission would like to reiterate in the clearest terms, that  it accords the highest importance to early ratification of the Convention and urges the Government to end the unbecoming delay that has injured the reputation of the country and has been sent confusing signals as to the intentions of India in regard to this matter.
    35.   The Commission is of the view that there is a need for India to evolve a National Policy and promulgate a National Law relating to the Status of Refugees that is in accord with international law and practice on this subject. The Commission would like to reiterate its view that a small group of experts including experts from outside the Government, should be constituted by the Ministry of External Affairs to go into this matter at an early date. It is unbecoming for a country, that has now been a Member of the Executive Committee of the Office of the UN High Commissioner for Refugees Programme for a number of years, to function in an ad-hoc manner in respect of a mater of such importance as this.
    36.  In view of large percentage of expectant mothers continuing to suffer from anaemia, despite nearly three decades of implementation of the National Nutritional Anaemia Control Programme, the Commission recommends that a close look be taken at the programme to re-evaluate it to make it more effective. 
    37.  The Commission has been pursuing the need to formulate a revised national policy to deal with greater sensitivity with issues concerning the rehabilitation of people affected by mega projects. The Commission urges that the Ministry of Rural Development and the group of Ministers seized of this matter to take the decisions required in this regard and incorporate, in the Land Acquisition Act, appropriate provisions.
    38.    The Commission calls upon the Government of Karnataka to speed up the process of compliance with the recommendations of the Commission in regard to the people affected by the Kabini Reservoir Project and the Bandipur National Park (Project Tiger) Project. 
    39.  The Commission calls upon the Government of Orissa to act expeditiously upon the recommendations of the Commission in respect of long term measures, including the construction of additional cyclone shelters, sanction of ICDS schemes, etc. The Commission urges the Government of Orissa to follow-up on the observations arising out of the report of the Special Rapporteur of the Commission after his visit to the cyclone affected districts and initiate suitable remedial actions.
    40.  The Commission calls upon the Government of Uttar Pradesh to expeditiously comply with the recommendations of the Commission in respect of the empowerment of tribals and other landless persons of Mirzapur, Allahabad and Chitrakoot districts in Uttar Pradesh where on account of the actions of the land mafia and their accomplices, the SCs and STs have, in numerous and identified instances, been dispossessed of the lands, forced into bondage and denied the minimum wages to which they are entitled.
    41.   The Commission calls upon the Government of Uttar Pradesh to take the steps recommended by the Commission to eliminate bonded labour and child labour in the carpet belt and to ensure that, in this task, the offices of the State Government officials, employers, NGOs and the affected families act in concert, with the active intervention of the district administration in ensuring that the carpet industry is freed of child labour.
    42.   The Commission calls upon the Government of Karnataka to identify the bonded labour employed in various industries of that State, with special care being given to the silk industry in Magadi and Ramanagaram, and to ensure that the practice bonded labour and child labour in hazardous industries is brought to an end in accordance with a programme that can be achieved within a clearly defined time frame. 
    43.   The Commission calls upon the Government of Gujarat to undertake a meticulous survey to assess the extent of child labour, especially in the construction industry and the diamond cutting and polishing industry, and pursue steps to eliminate this pernicious practice within the State in accordance with a programme that is attainable within a clearly defined time frame.
    44.  While the Commission is gratified to note that a number of States have amended the Conduct Rules for civil servants to prohibit the employment of children below the age of 14 years as domestic servants by Government servants, the states of Arunachal Pradesh, Bihar, Gujarat, Haryana, Kerala, Meghalaya, Orissa, Punjab, Uttar Pradesh, Manipur, Nagaland and Rajasthan, which have not yet taken a decision in this regard, are urged to act expeditiously on this matter and amend the respective service rules of their States so as to end the practice of employment of child labour by employees of Government.
    45.  The Commission is appalled that demeaning practice requiring the manual handling of night soil persists in many parts of the country. The Commission calls upon all States to take steps to put an end to this practice. The Commission, in particular, recommends that the States of Rajasthan, Uttar Pradesh, Arunachal Pradesh, Kerala, Jammu & Kashmir, Himachal Pradesh, Meghalaya, Manipur, Mizoram, Nagaland and Sikkim adopt the Central Act at an early date.
    46.   The Commission is distresed that members of the denotified and nomadic tribes (DNTs and NTs) continue to face serious problems in many states.  It calls upon all States to take steps to deal with the problems of these persons with greater sensitivity, to create strengthened mechanisms to deal with the special requirements and problems of the DNTs and NTs and to prevent atrocities being committed against them. It also calls upon the States to repeal the Habitual Offenders Act and to implement the decisions taken in the meeting convened by the Commission on 15 February 2000. 47.  In the light of the Delhi Declaration adopted at the VIII International Symposium on “Torture as a Challenge to the Health, Legal and Other Professions”, the Commission calls upon the Government of India to take action, in particular, on the follow issues:
            Ratification of the UN Convention against Torture.
            Expediting the revision of national laws to deal comprehensively with the prosecution of those engaged in torture and reparation to the victims of torture.
            Greater involvement of all components of civil society, including health, legal and other professions as well as non-governmental organisations and the media in the fight against torture.
            Special consideration to practical ways of protecting women and children against torture.
            Sensitisation of the political leadership to issues concerning torture.
    48.          Respect for human rights and the realisation of such rights, requires a continuous effort to evolve a culture that is sensitive to the needs of all.  Human rights education, from the school-level onwards, is essential to this process. While a number of colleges and universities have introduced certificate, degree and diploma courses in human rights and the NCERT and NCTE have introduced human rights education at the school-level and in teacher-education respectively, the Commission is of the view that the greater involvement of Central and State Governments is essential if such education is to be more thoroughly imparted. Considerable work is needed to incorporate human rights concerns into the educational system by weaving the message of such rights into the curricula of every class and every subject. This is a considerable task and the Commission calls upon the Central and State Governments to undertake this responsibility in consultation and coordination with NGOs and academic institutions that have experience in this matter. The Commission also urges the Government of India to respond with greater purpose to its recommendation that a National Action Plan on Human Rights Education be prepared to enhance awareness and strengthen respect for human rights in all sections of society through the dissemination of information and better training.
    49. The Commission has repeatedly approached the States which do not as yet have Human Rights Commissions to take action to set up institutions at an early date. The Commission has also, in its recommendations for seeking amendments to the Protection of Human Rights Act, 1997 suggested that the number of Members in the State Commission be reduced, if need be, to 3 and to make provision to have common Members appointed where the States wish to do so with a view to lessening the financial demands on the State. The Commission is also concerned that the States of Bihar, Maharashtra and Orissa which have issued notifications to constitute Human Rights Commissions but have not yet done despite the passage of considerable time. The Commission calls upon these States to set up Commissions without any further delay.
    50.     The Commission considers it essential to observe that the Government of Uttar Pradesh has, in particular, approached the matter of setting up a State Human Rights Commission in a most casual and nonchalant manner. Despite a commitment before the High Court of Allahabad that it would establish a Human Rights Commission within a stipulated period of four months, the State Government has not taken the steps necessary to act upon this commitment. The Commission calls upon the State of Uttar Pradesh to set up a State Human Rights Commission, that will commend the respect of the people of that State, without any further delay. 
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    OPINION in regard: The Prevention of Terrorism Bill, 2000

    CORAM

    Justice Shri J.S. Verma Chairperson

    Justice Dr. K. Ramaswamy Member

    Justice Smt. Sujata V. Manohar Member

    Shri Sudarshan Agarwal Member

    Shri Virendra Dayal Member

     

    ]INTRODUCTION
    1.       Media reports indicate that the Law Commission of India has submitted the draft Bill together with its 173rd Report to the Government of India and that the Bill is likely to be moved in the next session of the Parliament for its enactment as a law to deal with terrorism in the country. There has been a debate in the country for some time about the need of enacting such a stringent law as well as its form in case of its enactment. The debate has also focussed on the experience of the working of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the fact of it being permitted to lapse. Divergent views have emerged in the debate and the Law Commission of India has recommended enactment of the law in terms of the proposed Bill.
    2.1 Functions of the Commission specified in Section 12 of the Protection of Human Rights Act, 1993, particularly those in clauses (d), (f) and (j) are relevant in this context. These functions include : to review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; study treaties and other international instruments on human rights and make recommendations for their effective implementation; and such other functions as it may consider necessary for the promotion of human rights. It is, therefore, an essential function of the Commission to formulate its opinion on the desirability and need of enacting such a stringent law and to give public expression to it for consideration by the Parliament and all those involved in the making of the laws so that due weight is given to the Commission’s opinion in the performance of this exercise.
    2.2 It may be recalled that in discharge of this statutory obligation, the Commission had earlier opposed the continuance of the TADA Act and a letter dated 20 February, 1995 to this effect was sent by the then Chairperson to all Members of Parliament and it is also included in the Annual Report of the Commission for the Year 1994-1995 as Annexure-I. The earlier opinion of the Commission is relevant at this juncture not merely as the historical background but also because of its relevance in the formation of the opinion of the Commission in the present context.
    3.0     It is in the performance of this statutory responsibility that the Commission has examined the need for enactment of such a law in its meeting held on 11 July, 2000. The matter has been considered not strictly from the point of view of the constitutional validity of the proposed new law and its provisions which, if necessary, would be a matter for the courts to decide, but on the need and wisdom of enacting such a law particularly in the light of the earlier experience with the TADA, the adequacies of the existing laws and the provisions of international covenants to which India is a party. Even though absence of need to enact the law and its un-wisdom are not grounds of constitutional invalidity, yet they are relevant for the performance of the functions of the Commission and of the Parliament. This is the occasion for examination of this question.
    4.0 Issues
    In the above background, the issues which arise for consideration in this context are the following, namely:
    1.     Is there any need for the enactment of the above new law?
    2.     If yes, then the kind of new law which needs to be enacted.
    It may here be mentioned that the Chairperson of this Commission was invited by the Law Commission to inaugurate its seminar on 20 December, 1999 to discuss the proposed Bill. In his inaugural address, the Chairperson identified these two issues which arose for discussion in the seminar and while refraining from expressing any opinion on the first issue, he said that in the event of such a law being found necessary, it must have a human face as indicated in decisions of the Supreme Court and also because of the past experience.
    5.0 Answer
    The considered unanimous opinion of this Commission is that there is no need to enact the above new law (Prevention of Terrorism Bill, 2000) and, therefore, the need does not arise to answer the other question.
    6.0 Reasons
    Brief reasons for the Commission’s unanimous opinion are indicated here after:
    6.1 Existing Laws
    The Prevention of Terrorism Bill, 2000 under Section 3 sets out the kind of actions which are proposed to be dealt with under the Bill. These actions are substantially taken care of under the existing laws. For example, any action which threatens the unity, integrity, security or sovereignty of India is covered by Section 153-B of the Indian Penal Code (I.P.C.). Chapter VI of the IPC deals with Offences against the State. Section 121-A which forms part of this Chapter deals with conspiracy to overawe by means of criminal force or the show of criminal force, the Central or State Government and the offence is punishable with imprisonment for life. Section 122 deals with collecting arms and ammunition with the intention of waging war against the Government of India. Section 124-A deals with sedition. Under Chapter VIII dealing with Offences against Public Tranquility, Section 153-A deals with promoting enmity between two groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony. Chapter XVI deals with Offences affecting the Human Body. It includes causing hurt or grievous hurt, wrongful confinement, kidnapping, abduction and so on. Apart from the Indian Penal Code, there is the Arms Act, 1959, Explosives Act, Explosive Substances Act and the Armed Forces (Special Powers) Act, 1958 the last of which gives powers to the armed forces in disturbed areas to use force even leading to death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting assembly of five or more persons or carrying of weapons or things capable of being used as weapons or fire-arms, ammunition or explosive substances. There is also the power to arrest without warrant in the circumstances set out in the Act.
    6.2     There is also on the statute book Unlawful Activities (Prevention) Act, 1967 which can be suitably modified if required. We have also enacted the Suppression of Unlawful Activities against the Safety of Civil Aviation Act, 1982 to deal effectively with offences against the safety of civil aviation. This was pursuant to India ratifying the Hague Convention of 1970 for dealing with hijacking and Montreal Convention of 1971 for the suppression of unlawful acts against civil aviation. This Act provides the necessary legal provisions for giving effect to these Conventions.
    6.3     In addition, there are at present in force at least four Central Preventive Detention Acts and a number of Preventive Detention Acts enacted by various States. The Preventive Detention Acts enacted by the Union of India include the National Security Act, 1980, the Prevention of Black Marketeering and Maintenance of Supplies Act, 1980, the Prevention of Narcotic Drugs and Psychotropic Substances Act, 1988 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Between these legal measures, all the "terrorist acts" contemplated under the new Bill appear to be covered. If necessary, the Indian Penal Code or any provisions of any other Act can be amended to cover any specific action which at present may not be covered, though, it does not appear to be so. The punishments provided under these Acts can be increased where necessary. But there does not appear to be any need to have a separate new bill for the purpose of creating new offences.
    6.4     Avowed justification for the new law
    The avowed justification for these provisions appears to be (i) it is difficult to secure convictions under the criminal justice system; and (ii) trials are delayed. Hence special courts will speed up trial. Undoubtedly, the main problem which the country is facing today, relates to proper investigation of crimes and efficient prosecution of criminal trials. Adjudication and punishment of crimes also take a long time before the Courts. The problem, however, cannot be solved by enacting laws that do away with the legal safeguards that are designed to prevent innocent persons from being prosecuted and punished.
    The problem cannot also be solved by providing for a different and more drastic procedure for prosecution of certain crimes, for making confessions before the police admissible in evidence, contrary to the provisions of the Evidence Act, and for raising presumption of guilt as set out in the Bill, and creating special courts. These provisions seriously affect human rights guaranteed under the Constitution and violate basic principles of criminal jurisprudence as internationally understood.
    6.5 Remedy
    There are three stages at which remedial measures need to be taken on an urgent basis by the Government to strengthen the criminal justice system:
    6.5.1 The stage of investigation : Unless investigation is carried out speedily and efficiently, it is not possible to have a speedy and effective trial leading to conviction. The investigation machinery must be independent and free from political or any other kind of interference, an imperative to which NHRC has drawn attention in successive Annual Reports to the Parliament. Unfortunately, as various Police Commission Reports and the experience of the NHRC have shown, constant political interference with the police force has seriously impaired the ability of the police to investigate crimes freely and efficiently. There is also a need for giving proper training for efficient and effective investigation, including improvement of forensic skills and laboratories, another matter to which the National Human Rights Commission has repeatedly drawn attention. Such training and facilities are at present sadly lacking. In the case of Vineet Narain & Ors. Vs. Union of India & Ors., (1998) 1 SCC 226, the Supreme Court has observed:
      "There is another aspect of rule of law which is of equal significance. Unless a proper investigation is made and it is followed by an equally proper prosecution, the effort made would not bear fruition."
    The Supreme Court in that case, has also observed:
    "……there is urgent need for the State Governments also to set up credible mechanism for selection of the Police Chief in the States. The Central Government must pursue the matter with the State Governments and ensure that a similar mechanism, as indicated above, is set up in each State for the selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also of all police officers of the rank of Superintendent of Police and above. It is shocking to hear, a matter of common knowledge, that in some States the tenure of a Superintendent of Police is on an average only a few months and transfers are made for whimsical reasons. Apart from demoralizing the police force, it has also the adverse effect of politicising the personnel. ……….."
    There is, therefore, an urgent need to have independent and well-trained investigation machinery to investigate crimes, particularly, crimes related to terrorism.
    6.5.2 There must also be efficient prosecution on behalf of the State, of all such crimes. Once again in the above case, the Supreme Court has observed:
    "The recent experience in the field of prosecution is also discouraging. ……..…discharge of the accused on filing of the charge-sheet indicates, irrespective of the ultimate outcome of the matters pending in the higher courts, that the trial court at least was not satisfied that a prima facie case was made out by the investigation. These facts are sufficient to indicate that either the investigation or the prosecution or both were lacking……………..Investigation and prosecution are interrelated and improvement of investigation without improving the prosecution machinery is of no practical significance."
     It is, therefore, essential that experienced Public Prosecutors are appointed to prosecute crimes involving terrorism and that they are appointed in sufficient numbers.
      6.5.3 The delays in criminal courts are also undermining the criminal justice system. One of the main causes of delay is shortage of courts. It is necessary to create many more Sessions Courts, provide the necessary infrastructure to these Courts and to appoint many more Sessions Judges who are competent and possess integrity. The judiciary can be requested to give training or refresher courses to these Sessions Judges at the various Judicial Academies of the various States for speedy disposal of cases before them without undermining judicial adjudication. Criminal trials especially those dealing with serious offences, which are tried by the Court of Sessions, need to be speedily conducted and disposed of. There can be no doubt that amongst these cases, those dealing with acts of terrorism must be given preference for early disposal (preferably within six months). But, for this purpose, it is essential that depending upon the number of such crimes in each State, and bearing in mind the average disposal per Judge, adequate numbers of additional Sessions Judges are appointed in each State, along with adequate numbers of Public Prosecutors who will prosecute the cases before them and additional courts are accordingly set up with the necessary infrastructure. This has to be done on an urgent footing. When this is done, crimes connected with terrorist activities should be given priority before the Sessions Courts in those States where such additional Sessions Courts are set up along with all the above concomitants. Obviously in those States where terrorism is rampant, additional courts will have to be set up as early as possible and the Union Government should, wherever necessary, assist the State Government in financing such additional courts.
    The correct remedy for speedy trial and punishment of crimes connected with terrorism in India is proper strengthening of the crime investigation and prosecution machinery and criminal justice system. If there are a large number of acquittals today, it is not for lack of any laws but for lack of proper utilisation of these laws, lack of proper investigation and prosecution, and lack of adequate number of courts to try the offences. Unless this root problem is redressed, adopting draconian laws will only lead to their grave misuse, as has been the case with the previous TADA law.
    6.6 Obligations of the State under International Covenants etc.
    In pursuance of its statutory responsibility the Commission has examined the Prevention of Terrorism Bill 2000 and, in particular, sought to form an opinion as to whether the Bill will increase, or decrease, the effective implementation of treaties and other international instruments on human rights. In pursuing this responsibility, the Commission has also had in mind the opinions of the Supreme Court, notably in Vishaka & Others vs. State of Rajasthan & Others (1997(6)SCC 241 and Apparel Export Promotion vs. A.K. Chopra (1999(1)SCC 759) in respect to this matter. In the former case, the Court took the view that it was
    "….. now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law."
    In the latter, the Court held
    "In cases involving violation of human rights, the courts must ever remain alive to the international instruments and conventions and apply the same to a given case where there is no inconsistency between the international norms and the domestic law occupying the field."
    6.7     The Commission has concluded that, set against these observations, the Prevention of Terrorism Bill, 2000 would         hinder, rather than enhance, the effective implementation of treaties and other international instruments on  human  rights and that, in particular, the provisions of the Bill would not be in consonance with many provisions of the  International Covenant on Civil and Political Rights (ICCPR) to which India is a State Party. Moreover, the meaning of  the ‘right to life with dignity’ in Article 21 of the Constitution of India must include the provisions of the international  instruments on the subject because there is no inconsistency between them and the domestic law.
    6.8     As in the case of the Terrorist and Disruptive Activities (Prevention) Act, 1987, this is especially so in respect of the following:
    6.8.1 Raising of the presumption of guilt, and shifting the burden to the accused, to establish his innocence.
    o                    Art. 14(2) of the ICCPR expressly requires that
      "Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty."
    6.8.2 Making confessions before a police officer admissible in evidence.
    o              The Commission is of the view that this would increase the possibility of coercion and torture in securing confessions and thus be inconsistent with Article 14(3) (f) of the ICCPR which requires that everyone shall be entitled to the guarantee of not being compelled to testify against himself or to confess guilt." This provision is consistent with Article 20(3) of the Constitution of India.
    o              It would also imperil respect for Article 7 of the ICCPR which categorically asserts "no one shall be subjected to torture or to inhuman or degrading treatment or punishment….." It may be recalled that this right is non-derogable under any circumstances, including times of war and public emergency that India has already signed the Convention against Torture on 14 October 1997, though ratification is still awaited.
    6.8.3 Modifying the provisions of the Code of Criminal Procedure, particularly in regard to the time set for investigation and grant of bail.
    o              Article 14(3) (a) of the ICCPR requires that an accused
     "…. be informed promptly and in detail ….. of the nature and cause of the charge brought against him," while
    o              Article 14(3)(c) of the ICCPR asserts the right
    "to be tried without undue delay."
    Further, Article 9(2) of the ICCPR states
    "Anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be promptly informed of any charges against him;" while
    o              Article 9(3) asserts:
    "Anyone arrested or detained on a criminal charge shall be promptly brought before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody…."
    6.9     There are a number of other provisions of the Bill that would have a chilling effect on human rights, notable among them being Section 3(8) which provides for punishment for those in possession of information of material assistance in preventing the commission of a terrorist act. Read with Section 14, which gives powers to investigating officers to require individuals to furnish information in their possession, the Bill could gravely jeopardize the work of professionals such as journalists. The provision would also run counter to Article 19 of the ICCPR dealing with the right to the freedom of expression, which includes the right "to seek, receive and impart information and ideas of all kinds….." subject to certain restrictions, "but these, shall only be such as are provided by law and are necessary," inter alia, "for the protection of national security or of public order (ordre public), or of public health or morals".
    6.10           Furthermore, the provisions of Section 37(1) of the Bill, which provide for immunity from legal proceedings and prosecutions against the Central and State Governments and officials acting "in good faith," are inconsistent with the provisions of Article 2(3) of the ICCPR, under which
    "Each State Party to the present Covenant undertakes
    a.      To ensure that any person whose rights or freedoms are herein recognized as violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity."
    The proviso to Section 37(1) of the Bill carries this inconsistency yet further, in that it provides a blanket immunity for
      "any serving member or retired member of the Armed Forces or other para-military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism."
    Clearly, too, such a provision would adversely affect the already limited jurisdiction of the National Human Rights Commission under Section 19 of the Protection of Human Rights, 1993 to deal with complaints alleging the violation of human rights by members of the Armed Forces and, in consequence, further militate against the express purpose of that Act that the Commission should ensure the "better protection" of human rights in the country.
    6.11 It is worthwhile to recall in this overall connection that, since the World Conference on Human Rights, held in Vienna in June 1993, the international community has been categoric in its assertion that
    "The acts, methods and practices of terrorism in all its forms and manifestations ….. are activities aimed at the destruction of human rights" (Paragraph 17 of the Declaration and Programme of Action).
    Further, in a series of resolutions in recent years on "Human Rights and Terrorism", and in its 1994 Declaration on "Measures to Eliminate International Terrorism," the General Assembly of the United Nations has consistently taken the view "that terrorism, in all its forms and manifestations, wherever and by whomever committed, can never be justified in any instance, including as a means to promote and protect human rights." The General Assembly has also observed that "Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them." The General Assembly has therefore urged States to "enhance international cooperation at regional and international levels in the fight against terrorism in accordance with relevant international instruments, including those relating to human rights, with the aim of its eradication." Of these instruments, the International Covenant on Civil and Political Rights and the Convention against Torture, referred to above, are surely among the most important.
    6.12 At a time when India is itself urging support for the adoption of a comprehensive International Convention on Terrorism, it is essential to recall these developments, and the stated need to abide by the international instruments on human rights, even while combating terrorism with view to eradicating this menace. It is also essential to recall that while an overall Convention on this subject is yet to be adopted, ten multilateral conventions have already been adopted on various aspects of terrorism, and that India is a State Party to each of these Conventions. These are the:
    Convention for the Suppression of Unlawful Seizure of Aircraft, done at the Hague on 16 December 1970,
    Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971,
    Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973,
    International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979,
    Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980,
    Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988,
    Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988,
    Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on 10 March 1988,
    International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997,
    International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999.
    6.13 It is important, both to the cause of human rights and to the fight against terrorism, that the measures required to be taken by the Government of India under each of these Conventions are fully and meticulously undertaken, both in terms of appropriate legislation, where this may still be needed, and in terms of other practical arrangements essential to the effective implementation of these Conventions.
    6.14 CHECK ON FINANCING OF TERRORISM
    One area where suitable law needs to be enacted is the area of financing of terrorism. The U.N. General Assembly in its resolution of 17 December, 1996 called upon States to take steps to prevent and counteract through proper domestic laws, the financing of terrorists and terrorist organisations whether such financing is direct or indirect through organisations which may be camouflaged as charities or which are engaged in unlawful activities such as illicit arms trafficking, drug-dealing and racketeering including the exploitation of persons for purposes of funding terrorist activities. Article 4 of the International Convention on the Suppression of Financing of Terrorism enjoins each State Party to adopt such measures as may be necessary to establish as criminal offence under its domestic law, the offence relating to financing of terrorism as set out in Article 2 and to make these offences punishable by appropriate penalties which take into account the grave nature of the offences. It is in this area that there appears to be a lack of appropriate legislation. Unfortunately, the present Bill is silent on this aspect. The Government needs to frame appropriate legislation in the light of this international convention.
    7.0 Conclusion
    For the above reasons, and consistent with the view that it took in respect of TADA, the Commission is now unanimously of the considered view that there is no need to enact a law based on the Draft Prevention of Terrorism Bill, 2000 and the needed solution can be found under the existing laws, if properly enforced and implemented, and amended, if necessary. The proposed Bill, if enacted, would have the ill effect of providing unintentionally a strong weapon capable of gross misuse and violation of human rights which must be avoided particularly in view of the experience of the misuse in the recent past of TADA and earlier of MISA of the emergency days.
    This Commission regrets its inability to agree with the opinion of the Law Commission in its 173rd Report and recommends that a new law based on the Draft Prevention of Terrorism Bill, 2000 be not enacted. Such a course is consistent with our country’s determination to combat and triumph over terrorism in a manner also consistent with the promotion and protection of human rights.
    New Delhi, 14 July, 2000

    Annexure – V

     

    Regarding Child Marriage Restraint Act, 1929

    Despite the existence of the Child Marriage Restraint Act, 1929, child marriages are still quite rampant.  The incidence of child marriages seems to be widely prevalent in the states of Rajasthan and Madhya Pradesh and to a lesser extent, in the other States also.  Mean age of marriage for females has arisen from 13.2 years at the beginning of the twentieth century to an average age of 19.4 years for both men and women combined, in 1994 (Women and Men in India 1996-97, Central Statistical Organisation, Department of Statistics, Ministry of Planning and Programme Implementation, Government of India (dt. 29.1.98).  Since the latter figure is an average of the combined ages of men and women, the average for women is much lower than 19.4 years.  In fact, some of the private studies show that in Rajasthan in 1997, 60 per cent of girls were married before the age of 14 and in the slums of Delhi, 77 per cent women were married before the age of 15 (See Vandana : Abolition of Child Marriage under Hindu Law : A plea for Protection of Reproductive Rights of the Girl Child – Delhi Law Review Vol. XXI – 1999 p. 117). If at the end of a hundred years, this is the rise in the age of marriage for women, a serious examination is required of the causes for the persistence of child marriage and more particularly, about the effectiveness of the Child Marriages Restraint Act, which came on the statute book as far back as in 1929.
              The bad effects of a child marriage are obvious.  First of all, it is a violation of the rights of the child, particularly the girl child, depriving her of opportunities and facilities to develop in a healthy manner, to obtain education and to lead a life of freedom and dignity.  It also has disturbing consequence for the reproductive health of a child bride.  It leads to a vicious circle of early pregnancy, malnutrition, maternal mortality and high infant mortality.  Therefore, a child marriage not only denies the girl child control over her reproductive rights and damages her health but also prevents her from getting education and employment.  In early maternity there are also greater chances of fetal deformity and there is a high risk to the mother’s life.  At the national level, child marriages create a longer legitimate reproductive life span and contribute to population explosion.
              Various cultural factors have led to the persistence of this practice.  These include low status of women in society and the anxiety of the parents to get the unwanted girl child married as early as possible to be relieved of the “burden” of looking after her.  It is also believed that the more mature a girl gets, there are greater chances that she may not accept the choice made by her parents, or that she will not conform to the traditional norms regarding marriage, thus creating social problems for parents. Child marriages are an easy way out for parents who want their daughters to obey and accept their choice of a husband for them.  There is also a belief that child marriage is a protection for the girls against unwanted masculine attention or promiscuity.  Unless these beliefs are tackled, child marriages will continue to take place since they are seen as protecting parents and absolving them of all responsibilities towards their young daughters even though such marriages may do considerable harm to the young daughters.  This is an area where the rights of the girl child need urgent protection. 
              The reason why the Child Marriage Restraint Act, 1929 has proved ineffective is because it has not seriously tackled the issue of child marriages, and has adopted an equivocal stand in that connection.  Although originally, a child under this Act was defined as a male below 18 years, and a female below 14 years, this age has been revised upwards and all marriages where a male is below 21 years and a female below 18 years are considered as child marriages.  While there is a rising of the age bar against child marriages, the remedies under the Act to prevent or punish such marriages remain as weak as before.  The marriage is valid. The punishments are nominal.  The punishment to a male over the age of 21 years marrying a child is simple imprisonment of three months and a fine.  The punishment for solemnizing a child marriage is also the same and the punishment for a parent or guardian of a child for arranging such a marriage is also the same. Although offences under the Act are now to be treated as cognizable for the purpose of investigation, they are not to be treated as cognizable for other purposes.  Even the power to issue an injunction prohibiting the marriage in contravention of the Act is circumscribed by the requirement that no injunction shall be issued unless the Court has previously given notice to such person and has given him an opportunity to show cause.
    It is necessary, first of all, to provide for registration of all marriages – whether religious or civil.  Just as there are registers of births and deaths, there must be registers of marriages where any marriage in any form, performed within the area, must be registered.  This would provide an authentic record of a marriage and would put an end to all disputes regarding the performance of a marriage.  The register must have columns regarding the names of parties marrying, their age, their status (unmarried, divorced etc.), names of both parents of both sides, their addresses, method of performing the marriage (Hindu rites, Muslim marriage, civil marriage, etc.), the name of the person solemnizing the marriage, the date of marriage and the venue.
    (1)             The Child Marriage Restraint Act must be recast.  In the first place, a responsibility must be placed under the Act on local administrative officers to prevent impending child marriages whether singly or in groups.
    On certain days such as Akshaya Trutiya, it is well known that mass marriages take place.  The local official should be empowered to move the court for prevention of such mass marriages by a general court order that may be communicated to the villages over the media, by publication or by beating of drums. For single marriages a specific injunction order can be obtained.
    (2)             All marriages that breach such an injunction will be void ab initio.
    (3)             There should be a provision in the Child Marriage Restraint Act (as in the State of Gujarat) for the appointment of Child Marriage Prevention Officers either for the whole State or for districts where it is known that child marriages are more prevalent. 
    (i)                The Child Marriage Prevention Officer should be entrusted with the duty to prevent marriages being performed in contravention of the Act by taking such action as he might think appropriate, including initiation of proceedings in a Court for obtaining an injunction.  This should be in addition to the duty imposed on the local administration to prevent such marriages and not in substitution of it.
    (ii)               It should also be his or her duty to collect evidence for the effective prosecution of persons contravening the provisions of the Act.
    (iii)            The Child Marriage Prevention Officer should also be entrusted with the duty of creating awareness of the evils which result from child marriages and educating people about the detrimental effects of such marriages on the health and wellbeing of children.  In fact, an obligation should be cast on each State to set up a proper machinery in each of its affected districts for dissemination of proper information and for education being given to the people to wean them away from child marriages.
    (4)              In case of urgency, ex parte ad interim injunction can be granted without notice.
    (5)              It should also be open to others –friends, well-wishers, NGOs, public spirited and respectable citizens to move the Court for an injunction.
    (6)             While a marriage in violation of an injunction order should be void, all other Child marriages should be voidable.  A boy or a girl who was below the prescribed age at the time of his/her marriage should have the right to avoid that marriage at any time upto completion of one year after attaining the minimum age prescribed under the Act.  For this purpose, a matrimonial petition will have to be filed through the next friend if the petitioner is a minor. He/she should have the right to engage his or her own lawyer for this purpose.  Such a petition can also be filed by the guardian of the petitioner if he/she is a minor.  But the minor will have a right to be independently represented and heard.
    (7)             When a girl seeks to avoid such a marriage, she should nevertheless be entitled to get maintenance from her husband as well as his parents or guardians until she remarries.  This should be without prejudice to her right to be maintained by her parents/guardians and to live in the parents’ family home. The Court while granting a declaration should grant her appropriate reliefs in this connection.
    (8)               Any male who wishes to avoid such a marriage must deposit in court in advance at the time of filing the petition the full amount received by him/his family from the bride’s side in connection with that marriage, as also the marriage expenses incurred by the bride’s family.  He must also pay maintenance to the wife until she remarries.
    (9)              No person who was of the prescribed age or above at the time of marriage can ask for avoiding the marriage under this Act.
    (10)         The punishment for contravening the provisions of the Act should be more stringent, particularly the punishment for those who solemnize such a marriage such as the priest.  It will be the duty of the solemnizer to satisfy himself/herself regarding the age of the bride and the bridegroom before performing the marriage.
    (11)         The punishment of the parents or the guardians concerned should be more deterrent, but in the form of heavy fines.  
    (12)         The offence should be made cognizable in every respect.

     

    (Sujata Manohar)

    7.12.2000

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    Annexure-VI

               Recommendations of the Workshop on Maternal Anaemia

    1.                 Right to health, a right inherent in every human being and integral to the dignity of the person assured in Article 24 of UDHR, Article 12 of International Covenant on Economic, Social and Cultural Rights, Articles 4 & 5 of CEDAW and the Directive Principles in Articles 39 (f), 41, 43, and 47 of the Constitution, be expressly transformed and declared as a fundamental right, in an expansive manner with an inclusive definition to encompass within its ambit all facets of health touching human dignity, in Part III of the Constitution. It is therefore recommended that right to health be declared as a fundamental right and a suitable amendment to the Constitution be made to this effect.
    2.                 While the right to health should be made a fundamental right, a co-relative duty also be cast on the State under Article 47 to be enforced through legislative or executive measures.
    3.                 A comprehensive legislation be enacted covering all facets of health with specific emphasis on health rights of women during pregnancy and thereafter, as well as the child’s right to nutrition and a healthy environment.
    4.                 Considering that women's literacy plays a crucial role in spreading awareness about maternal anaemia and the remedial actions to be taken, the Commission recommends the setting up of a National Literacy Mission for women for improving the literacy of women at all levels in the country within a specified time-frame.
    5.                 As the citizen will be able to realise his rights only through full awareness of what he is entitled to as also the factors contributing to healthy living, education of all children be made a fundamental right, in particular upto primary level and upto the age of 14 years. It is further recommended that girl children who are more vulnerable would need special care and be made eligible to free and compulsory education upto graduation.
    6.                 The shares of education in the budgets of most States have declined significantly from 4.1% in 1990-91 to 3.8% in 1995-96.  The NHRC recommends increase in the share of public expenditure on education, especially education of women in the budget.
    7.                 Since awareness cannot come without education on human rights, human rights education be made part of the curriculum both in formal and non-formal education at all levels.
    8.                 Awareness programmes on maternal anaemia should be taken up through the ICDS programme by organising workshops and training programmes covering all panchayats.  The ICDS blocks may be categorised into groups based on the high incidence of maternal anaemia and levels of women literacy and their performance monitored closely.
    9.                 The subjects of maternal health and anaemia should form a part of all educational / vocational training and employment programmes specially designed for women both by the Central and State Governments.
    10.             As effective participation at the grassroots level is necessary for the success of the programme of anaemia eradication, the programme should be extensively decentralised.
    11.             It was unanimously recognized on the basis of comprehensive scientific reviews presented in the Workshop that prevalence of Iron deficiency anaemia was alarmingly high in the country. Maternal mortality rate for all India is 408 per 100,000 births. However, in the larger northern states, it is almost twice as high. In mothers anaemia causes high maternal mortality, high incidence of low-birth weight of children and related high infant mortality among the newborns. It is also recognised that the surviving low birth weight babies may end up with compromised mental and physical development. Iron deficiency anaemia in its worst form is prevalent among pregnant and adolescent women as well as pre-school children. The populous northern states, and particularly the poorer sections of these states, are the most severely affected and these vulnerable areas and sections of the society require immediate attention.
    12.     There is urgent need to promote the out-reach of ante-natal care to the rural community. Prevention of maternal anaemia, the single most important cause of maternal mortality, is the most effective way to reduce maternal mortality rapidly in the country. The groups agree unanimously with the professional and scientific opinion that supplementation with iron-folate tablets is the most effective and urgently actionable method for anaemia prevention in the country.
    13.     The bio-availability of iron in Indian diet is poor. There are a number of Iron absorption inhibitors present and further iron absorption promoters like Vitamin C are deficient in Indian diet. Currently, cereals account for 56% of the iron intake in the Indian diet, while only 5% is accounted for by green leafy vegetables. Widespread dissemination of all relevant information is an urgent need to improve public awareness. There is also a need to promote iron fortification of the people’s diet through additional/alternative measures such as double fortification of salt (with iron and iodine) as well as iron fortification of popular and widely consumed food items such as pickles, condiments, wheat-flour, etc. The feasibility of the technology developed by CFTRI for wheat-flour fortification be examined on an immediate basis. The technical and scientific feasibility of using pickles and chutneys as vehicles of iron fortification in the Indian context be examined in-depth for early implementation.
    14.          Prevention of anaemia using some approaches developed in Ayurveda seems promising. Therefore it is recommended that research and development work may be undertaken to promote these approaches. If successful, it will provide culturally preferable and popular anaemia prevention methods to the people at large. Research work is also to be undertaken to enhance the bio-availability of iron in popular cereals like rice as a long-term solution to this problem. Due notice has to be taken of certain of the traditional methods of preparing and processing foods such as soaking, malting, baking, etc. which are scientifically known to enhance the bio-availability of iron. These practices need to be promoted and knowledge about these practices needs to be disseminated far and wide as they will have easy acceptability with the public at large. It is also necessary to undertake detailed studies to establish the role and relevance of haemopoitic factors (Vitamin B12) in anaemia prevention as a large population of the country has vegetarian diet habits and this research can benefit the vegetarians.
    15.  The anaemia prevention programme needs not only to be decentralised but non governmental organisations should be involved extensively to secure widespread peoples’ participation so that this programme is made into a truly people’s movement.
    16.  The Conference recommends organisation of workshops, seminars in all colleges for women/high schools for girls with a view to create awareness on health issues relating to women, with special reference to maternal anaemia.
    17.  The Conference suggested that a data bank may be specially set up in the NSSO for collection and maintenance of data of women's health including that relating to maternal anaemia along with the percentage of literacy of the women, village/panchayat/district-wise in the country which will enable effective monitoring of maternal anaemia on the basis of data collected directly from the fields.
    18.             The National Human Rights Commission may play an active role through continuous interaction with government agencies, NGOs and other interested citizens through periodic consultations and reviews.
    19.  Media campaign needs to be undertaken against the ill effects of fast food and for the propagation of healthy, indigenous and time tested food habits.
    20.  The Commission also recommends taking measures for ending all types of discrimination against girl children especially relating to their health and education.

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    Annexure-VII
    Conclusions/Recommendations of the National Conference on
    HIV/AIDS on 24-25 November, 2000

    • Clear link between Human Rights, HIV/AIDS, and Development

    • Harmonization between individual rights and community interests

    •      Destigmatization would result in a more enabling environment
    •      Access to drugs as an assertion of Human Rights
    •      Involvement of civil society and States in the Response to HIV/AIDS                                                           

    Consent and testing

    • Protocol on informed consent to be applicable for all medical interventions  including HIV/AIDS
    •      Provision of infrastructure for counseling in all testing settings
    •      Availability of testing services for all should be the goal

    Confidentiality

    •      Confidentiality paramount role in HIV/AIDS response
    •      Disclosure only to be made in exceptional circumstances
    •      Explore innovative measures to implement respect for confidentiality
    •     Legal framework, administrative procedures and professional norms for  enabling environment
       

    Discrimination in Health Care

    • Anti-discrimination legislation to cover the private sector
    • State to guarantee safe working environment for health care workers
       

    Discrimination in Employment

    • Anti-discrimination legislation to cover the private sector
    •      Medical insurance scheme to cover HIV positive employees
       

    Women in vulnerable environments

     

    •  Ensure legal changes for empowering women - property rights/ marital rape
    •      Increasing male responsibility and involvement in the response
    •   Right to information and
    •      Access to care
    •      Reducing silence about sexuality
    •      Decriminalize sex work/prostitute, not prostitution
    •   Life skill education
    •      Reintegration of sex workers in a participatory manner
       

    Children and Young People

    •      Review of Juvenile Justice Act
    •      Coordinated response to children’s issues
    •      Recognition of children and young people as persons capable of accessing rights
    • Mass media to be used extensively
       

    People Affected/Infected

    •      Accessibility of legal remedy
    •      Reduction of cost of drugs
    •      Scaling up VTC services
    •      Quality control of services and drugs
    •      Government to manufacture drugs
    •     Right to information
    •      Review of legislations impeding interventions
       

    Marginalized Populations

    •      Review disabling laws and processes (Section 377 IPC, NDPS Act)
    •      Legitimization of needle exchange and condom distribution programs
     
    In addition to the recommendations received after the Conference from UNAIDS, the following proposals have also made:
     

     1)                 HIV/AIDS may not be treated only as a health problem, but should be recognized as a social problem too.  Therefore, a holistic approach is required.
    2)                 There should be wide publicity about the causes and spread of HIV/AIDS especially at the grass root level as most of the people, even the educated, are not aware of the full facts.
    3)                 Wide publicity is needed for testing facilities available at various places in the country.
    4)                 After testing positive, most people do not know what to do further. There should be publicity also for medical facilities available at various places in the country.
    5)                 Setting up research-cum-rehabilitation centers with the help from public/private sector by voluntary organizations, public/private institutions.
    6)                 Government to encourage research on alternate medicines available within indigenous systems; public sector drug companies may take up research for development of cheaper vaccines/medicines for treatment of the disease.
    7)                 Prescription of best medical practices for medical professionals and health workers dealing with the problem.
    8)                 Protection of medical professionals and health workers.
    9)                 Spread of information through media and cinema, training/awareness programmes amongst panchayats, schools and universities about the HIV/AIDS.
    10)            Close net-working amongst the NGOs and the hospitals dealing with the problem.
              Issue of guidelines to hospitals, NGOs, medical professionals, experts, social workers etc. dealing with the problem.

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    Annexure - VIII

     

    Comments/suggestions on the draft long term Action Plan [2000-2005] for implementation of the National Policy on Older Persons

    The programmes prepared under the Action Plan by various Ministries are general in nature.  They are to be more specific and focused to be taken up within a feasible time frame.
              The Action Plan should make a distinction between short term and long-term programmes.  Out of the programmes suggested, programmes which are important and of immediate benefit to the aged need be segregated, and taken up within a specified time frame for execution.
    While schemes like ADHAR are being taken up for the senior citizens, there is need for simplifying the procedures and ensuring easy access to the schemes.
    The Inter-Ministerial Committee should meet at least once in 3 months.  Periodic review the State Governments may also be taken up.
    Although Panchayats, NGOs and other non-governmental agencies and institutions are proposed to be involved, in what manner they are to be involved is not specified in the Action Plan by the Ministries.     
    Priority need be given for the aged within all the existing schemes taken up by all Ministries, especially the Ministry of rural Development and Employment, Ministry of Social Justice & Empowerment. All District Rural Development agencies may be given necessary directions by the Government of India to ensure priority for the aged within all schemes, which are being implemented by the agency.
    Review of all existing schemes by all the Ministries with a view to facilitate implementation of all welfare measures for the aged.
    In addition to the other steps suggested by the Ministry of Railways, easy facility for getting in and out of Railway compartments for the senior citizens may be taken up by redesigning the steps at the entry/exit of railway compartments.
    Since a majority of the aged live in villages and their environment and problems are different from the urbanized, the schemes for rural poor may be segregated, and taken up on priority.
    Benefits under the social security schemes like old age/destitute pensions do not reach the old people in the villages on time. Steps may be taken for streamlining implementation of the scheme in consultation with the State Governments.  Implementation could be taken up through Panchayats and responsible NGOs.
    Many of the old people amongst the tribals are displaced from their own land due to land alienation (indebtedness being the main cause).  Priority for old people among the tribals in the disposal of land alienation cases could be considered.
    Priority may be given to the aged amongst the people displaced by Mega projects while considering their rehabilitation.
    Special employment/self-employment schemes in the rural areas for the aged in conformity with their age, need and capacity may be taken up by the Ministry of Rural Development.
    The Ministry may explore the possibility of involving the Co-operative Sector for taking up/earmarking appropriate Schemes and implementing them though the existing/functioning multi purpose Cooperatives, including Primary Agriculture Cooperatives (PACs) and Large Area Multi Purpose Cooperative Societies (LAMPS) in tribal areas for eligible persons above the age of 65.
    Suitable number of houses may be earmarked for the aged under the housing schemes for poor in the rural sector especially under the Jawahar Gram Samaridhi Yojana (JGSY) being implemented by the District Rural Development Agencies on the guidelines issued by the Rural Development Ministry.
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