Wednesday, July 22, 2015
Crime and commensurate punishment
Today, the Juvenile Justice Bill that seeks to equate 16 to 18-year-olds with adult criminals will be presented in the Rajya Sabha. Will the rights of children below 18 be protected here at least?
It is also called The House of Elders. And beginning today, the Rajya Sabha needs to play its role, to protect not only the teenagers of this country but also their parents. For today, the Minister of Women and Child Development is slated to demand the passing of a bill, which if made into law, will instantly violate every elected government’s compact in protecting all its people, be they voters or children. As also every international pact that India has signed guaranteeing the rights of children below 18 years of age.
The government has already passed the Juvenile Justice Bill in the Lok Sabha. Put it down to its numbers therein, or the personality-oriented politics of today that makes something so fundamentally issue-based almost irrelevant. Or that they don’t know that they have sent teenaged boys (and girls) to certain sodomisation in adult jails. Or perhaps some of them do know, but presumably by their rough reckoning, a little “punishment” befits a “heinous” crime. But whatever the case, they don’t care that in throwing teenagers aged between 16 and 18 to the wolves, under the guise of punishing them for “heinous” offences, is to go against the legislative commitment in the Preamble of their own Bill. The Juvenile Justice Care and Protection of Children Bill, 2015 is on the Internet, and its lofty opening paragraphs go against the ruling. As does the report of the Parliamentary Standing Committee to which this Bill was sent, which rejected the clause.
The “16-18 heinous offence” clause in the Juvenile Justice Bill, apart from being wrong at so many levels is also a failure of imagination to come up with a collective political solution that can stand the test of time. This author has been fortunate to be part of a process that began when Atal Bihari Vajpayee was Prime Minister. It eventually culminated into the watertight Protection of Children from Sexual Offences Act or POCSO 2012, under the United Progressive Alliance government, protecting minors (understood as being under 18) from adults (above 18) from any and all forms of sexual abuse. There is a quiet sort of pride in knowing that a nation came together — government, bureaucrats, police, retired judges, stakeholders such as principals and grandparents — with suggestions for a law so comprehensive that today it has become a ready reference for other countries to consider. Incidentally, the watertight POCSO will be tinkered with, should the government succeed in treating 16 to 18 year-olds as adults.
During POCSO, a fierce debate had risen on whether 16 to 18 year-olds should be considered as minors at all. Readers might recall how middle-class, working professionals and young parents vehemently opposed the lowering of the minor age, including in this newspaper. Their voices were heard. Agreeing with them were the present Finance Minister Arun Jaitley, present External Affairs Minister Sushma Swaraj, and the present HRD Minister Smriti Irani.
Why do teenagers not have these three powerful Ministers on their side today? Especially since 16-18 year-olds are to be judged for “heinous” crimes without explaining what “heinous” means? The Minister does not bother to spell out (consultations with the Law Ministry and an approval by the Prime Minister would have served the purpose of this Bill) on what actually constitutes “heinous”. Instead, bizarrely, the word is equated with its punishment.
There are two other innocuous, but deeply disturbing, words that find their way into the Bill. Chapter I, Page 5 (33) says “Heinous offences” includes offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. The word “includes” lays the entire system and not just the juvenile vulnerable to misinterpretations and gross misuse by those with different agendas at every level the case goes through. The author has submitted this to the Parliamentary Standing Committee, and also sent emails and letters to the Prime Minister and other Ministers and MPs.
“The Bill that can turn into a law today has a word so innocuously draconian that it can affect the rights of all Indian children in future, as also their parents. ”
Second, Chapter II, Page 8 (14) says under ‘Principle of fresh start’: All past records of any child under the Juvenile Justice system should be erased, except in special circumstances. This author has pointed out that the phrase “except in special circumstances” is dangerous and leaves something so sensitive totally open-ended. It can lead to, among other things, racial profiling of the child — and his/ her family — on the lines of family background, caste, community, and religion. The “circumstances” must be specified.
Heinous offences
There is no stated legal definition of the word “heinous”. There is no law to quantify or qualify what “heinous” should mean. In such a case, it could just as well be used in a civil context and not just a criminal one. When asked about the definition of “rarest of the rare”, Supreme Court Advocate Subhangi Tuli says the following. “In Bachan Singh vs. State of Punjab(1980), the Supreme Court said that the death sentence can be declared by judges when the option of life imprisonment is “unquestionably foreclosed”. It also lays down the principle of weighing aggravating and mitigating circumstances. A balance sheet has to be drawn up, to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime that renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?”
There is no stated legal definition of the word “heinous”. There is no law to quantify or qualify what “heinous” should mean. In such a case, it could just as well be used in a civil context and not just a criminal one. When asked about the definition of “rarest of the rare”, Supreme Court Advocate Subhangi Tuli says the following. “In Bachan Singh vs. State of Punjab(1980), the Supreme Court said that the death sentence can be declared by judges when the option of life imprisonment is “unquestionably foreclosed”. It also lays down the principle of weighing aggravating and mitigating circumstances. A balance sheet has to be drawn up, to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime that renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?”
Suppose the above guidelines are also taken for “heinous offences by those in the 16-18 age band. Suppose “death sentence” and “life imprisonment” (since neither are applicable to citizens under 18) are replaced by “adult court” and “adult jails”. Can the state-level Juvenile Justice Boards (JJB) be trusted to apply the same guidelines strictly to juvenile crimes? But they are not qualified for such gravity; in fact most state-level JJBs have no domain-specific professionals on board other than the Magistrate. It is no secret that the juvenile justice system is as broken as the adult legal system is overburdened.
Thus, “heinous offence by those between 16 and 18” can mean anything. It will include the violation of rights of not only a teenager (for in the current collapsed law and order, all are guilty until proven innocent) but also, by extension, the violation of the civil rights of any parent who has a 16 to 18-year-old who has been foolish enough to cross a boundary. Can the police use “heinous offence by 16 to 18-year-old” to enter an ordinary home, when there is no definition of it or specific law on it, for the purpose merely of harassing the parents? In a country where rights can quickly turn into shifting sands, that should set alarm bells ringing.
The Bill that can turn into a law today has a word so innocuously draconian that it can affect the rights of all Indian children in future, as also their parents. “Heinous offences”, if it stands in the statutes without definition, condemns India’s future citizens. No government, once it holds such a sword over its citizenry’s head, will reverse it.
Yes, even if only a minuscule percentage of teenagers in the 16-18 age group are rapists-murderers, the problem needs to be addressed. Approximately every second person in India is less than 30 years of age today. This means increasing crime among teenagers, especially sexual crimes. Accordingly, this author has submitted seven detailed solutions (including the definition of the word “heinous” and the idea of specially structured juvenile jails) aligned with international and UN conventions that specify that all offenders under 18 should be treated by law differently from an adult. Justice must not only be seen to be done but must also be actually done. And speedily, unlike the delayed process of the adult system.
A politician’s carelessly enacted law can, instead of “reforming” a teen-convict, create the face of pure evil. When these boys (and girls) come out from adult jails, they will be hardened criminals, drug addicts, and members of gangs that will have recruited them while they were inside. They will have been raped and sodomised many times over. They will then wreak vengeance on other young bodies in society.
It is now over to the House of Elders. They must ensure that no law is passed in an artificial hurry if it needs to be perfected. After all, why should it be so wrong to get it fully right?
Author-activist Pinki Virani catalysed India’s Passive Euthanasia Law, and the law against sexual abuse of children (POCSO) includes several of her suggestions.
Neither BPL nor APL
Socio-Economic and Caste Census can help identify welfare beneficiaries without falling into a binary trap.
The release earlier this month of the Socio-Economic and Caste Census (SECC) has been followed by much media analysis. Some have expressed scepticism about what it shows and others have treated it as yet another set of numbers on how many are poor in India. It has also been variously hailed as revolutionising benefit transfers and slammed mainly on the absence of the caste data. However, no one has really discussed what this data enables and what still remains to be done. Also, after the big-bang release, the government has not elaborated on how it intends to use this data or on the timelines involved. My aim here is to congratulate the present government for taking ownership of the SECC, and also point out that there are still pending matters. Not many know that the SECC grew from an almost routine exercise to perhaps one of the most ambitious of its kind ever conducted anywhere. The original intent was to simply update existing BPL (below poverty line) lists. The last BPL census had been conducted in 2002 and the procedure then adopted was to collect information on 13 indicators for every rural household and assign a mark for each of these. Households were ranked on the basis of their total marks, and the cut-off for BPL selection was the mark at which the total number of BPL households in a state was equal to the Planning Commission’s poverty estimate for that state. Since the latter was based on surveyed per capita consumption, completely different from the BPL census indicators, the result was a conceptual hotchpotch. It also lacked transparency — no one really knew why they had or had not been classified as BPL — and was therefore subject to manipulation. The outcome, as is well known, was that many relatively rich persons were included and many genuinely poor people were left out of the BPL list. This list, moreover, was mindlessly binary since it determined eligibility to either none or several welfare benefits, each of which sought to address a different need. The committee appointed by the ministry of rural development, under the chairmanship of N.C. Saxena, to suggest the broad design of the new BPL census noted all of the above and proposed a radical departure: A three-fold classification of households between “excluded”, “automatically included” and “others”. The first of these, to be identified on the basis of assets and income, would be excluded from welfare benefits. The second, to be identified on the basis of acute social destitution, would be eligible without any further condition. “Others” would be ranked on the basis of indicators of deprivation and would, resources permitting, be eligible for suitable benefits. Further, noting problems of manipulation, it recommended both gram sabha oversight and a national data registry. The implementation of this was led by B.K. Sinha, then secretary, rural development, who took a number of pathbreaking steps. Conscious of possible data misreporting, he set up a small core group of officials and academics and, taking the states on board, conducted a detailed pilot census in 250 villages across the country to test the reliability of the indicators before finalising the questionnaire. He coordinated with the registrar general who, in the meantime, had been asked to conduct a caste census. So both exercises could be done through the same questionnaire, riding on house-lists prepared for the 2011 Population Census and the National Population Register. He also got public-sector undertakings to provide over six lakh handheld electronic devices and operators who worked with state officials to conduct a paperless census, household data from which was uploaded in near real time on to a central server. The core group at the Centre analysed this data against the Population Census and other sources, requesting resurveys in cases of gross mismatch. In addition to this and other supervisory checks, he also got the states to agree that, in the interest of transparency, the preliminary data uploaded would be final only after every household had the chance to see their data, file objections and subject it to public audit in the gram sabha. The data now released is mainly the preliminary upload for rural areas, which was already in place by end-2013. The final lists after public audit are complete only for half the rural districts, and progress has been even slower in urban areas, where the urban development ministry is implementing a different methodology, devised by a committee chaired by S.R. Hashim. On caste data, the registrar general’s office still awaits inputs from the states on how to classify the very large number of castes reported. There is, therefore, much to be done before the SECC is completed. Nonetheless, having examined the rural data as chair of an expert committee on the use of SECC data for rural development, I am convinced that it amounts to an online national registry of good-quality household-level data that can be used to identify beneficiaries for each of the many government welfare programmes separately, without falling into the binary BPL trap. Most of the data are robust and consistent with those available from other sources, at least up to the state level. Also, there is no evidence of large data misreporting, except possibly on land, and if anything, richer respondents could hide much less wealth in the SECC than assessed in the pilot census. The pilot-based exclusion criteria, which eliminate households that meet any one of 14 exclusion indicators, exclude 40 per cent of households in the full data, against only 28 per cent in the pilot. Besides considering possible specific criteria for social pensions and the Indira Awaas Yojana, our committee recommended relaxing the exclusion criteria so that a household would be excluded either if it had any one of five specified indicators or if it possessed any two of the remaining exclusion indicators. This would bring the rural exclusion criteria conceptually closer to those recommended by the Hashim Committee for urban areas and, by reducing the excluded proportion from 40 per cent to about 25 per cent, also be consistent with the National Food Security Act (NFSA). Of course, other options exist, but consistency in exclusion across rural and urban areas and with the NFSA may help the states to complete the already delayed final stage and proceed to the actual use of the data.The writer is professor, Jawaharlal Nehru University, Delhi, and former member, Planning Commission.
Written by Abhijit Sen | Published:July 22, 2015 12:00 am -
Jul 22 2015 : The Economic Times (Delhi)
The Speaking Tree - Love Family, Not Blindly
ISHAN CHAUDHURI
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The family is the smallest unit of society . It is the unit most of us are most familiar with.Quite naturally , our love and loyalty for it is the strongest.Along with this natural inclination, we have been taught, directly and indirectly , that the family is sacred. But what if the family is not just a happy sanctuary but also a `hideout' where blanket protection is guaranteed for wrongdoers? Trained as we are to be blindly loyal to this unit, the family does not exist in a moral vacuum. To protect its members no matter what they may be guilty of, and not help in making them change their ways, is to abuse the very sanctity of the family .Mehboob Khan's 1957 film, Mother India, is the most illustrative depiction of someone standing up to, and taking action against, the wrongs committed by a family member. When Radha (Nargis) finds out that one of her sons, Birju (Sunil Dutt), a bandit, has killed a man and kidnapped his daughter, she is forced to shoot her own beloved son dead.
Such extreme conditions that arise in the film hardly come up in our lives. But much smaller, everyday versions of Birju's shortcomings and how we react to them do.We must not be blinded by the sanctity of family so much that we disregard the wrongs committed by a family member at the cost of the world outside. Monks give up the ties of family for this very purpose, so that any conflict of interest is removed. Such an extreme measure need not be resorted to if one remains loyal to one's family without being morally blinded by it.
Such extreme conditions that arise in the film hardly come up in our lives. But much smaller, everyday versions of Birju's shortcomings and how we react to them do.We must not be blinded by the sanctity of family so much that we disregard the wrongs committed by a family member at the cost of the world outside. Monks give up the ties of family for this very purpose, so that any conflict of interest is removed. Such an extreme measure need not be resorted to if one remains loyal to one's family without being morally blinded by it.
Jul 22 2015 : The Economic Times (Delhi)
ACHHE DIN FOR WORKERS - Labour Law Recast to Add More Leave to Maternity
Vikas Dhoot
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New Delhi:
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Bonus payments to be doubled, gratuity to be made portable
The Narendra Modiled NDA government is looking to enhance maternity leave for working women from three months to six months, virtually double bonus payments to employees and make gratuity portable between jobs.These proposed changes in employment laws could buttress the Modi government's credentials with the working class while it attempts to push through more ambitious reforms in labour rules that are blamed for hampering investment and job creation in the country. “The changes in the Payment of Bonus Act would raise the salary limit for getting a bonus from Rs 10,000 per month to Rs 19,000, and are at an advanced stage with a draft Cabinet note being moved earlier this month for comments from ministries,“ said a senior labour ministry official.
Separately, the government is initiating stakeholder consultations to amend the Maternity Benefits Act of 1961 and the Payment of Gratuity Act of 1972, the official added.
Currently, companies are legally required to grant 12 weeks of maternity leave to employees though several leading employers offer additional time off and other benefits.
For instance, Accenture offers five months off to new mothers while Flipkart offers 24 weeks paid leave. Citibank also offers a creche allowance to new mothers, as do some other multinational firms and investment banks.
“The ministry of women and child development has been pursuing this with us extensively as it is primarily responsible for women's welfare, so we are framing a proposal to kick off talks with employers and trade unions on enhancing the maternity leave to 24 weeks,“ the official said.
One option being considered is to limit the enhanced maternity leave to two children and an employee having a third child would be granted 12 weeks off, in line with the present norm.
REDUCTION IN 5-YEAR ELIGIBILITY
Similar tripartite discussions are also being launched on amending the gratuity law to do away with the requirement that employees serve at least five years in a single workplace to be eligible for the benefit.
Employee representatives have been seeking a reduction in the five-year continuous service clause to qualify for gratuity and the social security committee of the Indian Labour Conference had endorsed the idea in May 2013.
“While we are examining the possibility of reducing the five-year eligibility for gratuity benefits, this requirement would be redundant if we allow gratuity to be transferred from one job to another. So we are looking at both the options,“ the official said.
The Payment of Bonus Act of 1965, expected to be the first of the three laws for which amendments will come up for the Cabinet's consideration, sets two numerical ceilings for limiting bonus payouts to workers.
All employees earning up to Rs 10,000 a month are eligible for a minimum bonus of 8.33% of their annual salary and a maximum of 20%. This ceiling takes into account any productivity-linked bonus that employers may offer.
The Rs 10,000 salary cut-off is only used for eligibility purposes and actual bonus payments are linked to a separate `calculation ceiling'. Bonus payments for anyone earning more than Rs 3,500 a month are made assuming his or her salary is Rs 3,500 per month.Both these thresholds were last revised in 2006.
After tripartite consultations with employers and employees yielded no consensus late last year, the government had referred the Bonus Act amendments to an inter-ministerial group that has now recommended both thresholds be raised in line with changes in the consumer price index since 2006.
The new ceilings under the Bonus Act are likely to be Rs 19,000 per month (salary limit for eligibility) and Rs 6,600 (salary limit for bonus calculation purposes).
Separately, the government is initiating stakeholder consultations to amend the Maternity Benefits Act of 1961 and the Payment of Gratuity Act of 1972, the official added.
Currently, companies are legally required to grant 12 weeks of maternity leave to employees though several leading employers offer additional time off and other benefits.
For instance, Accenture offers five months off to new mothers while Flipkart offers 24 weeks paid leave. Citibank also offers a creche allowance to new mothers, as do some other multinational firms and investment banks.
“The ministry of women and child development has been pursuing this with us extensively as it is primarily responsible for women's welfare, so we are framing a proposal to kick off talks with employers and trade unions on enhancing the maternity leave to 24 weeks,“ the official said.
One option being considered is to limit the enhanced maternity leave to two children and an employee having a third child would be granted 12 weeks off, in line with the present norm.
REDUCTION IN 5-YEAR ELIGIBILITY
Similar tripartite discussions are also being launched on amending the gratuity law to do away with the requirement that employees serve at least five years in a single workplace to be eligible for the benefit.
Employee representatives have been seeking a reduction in the five-year continuous service clause to qualify for gratuity and the social security committee of the Indian Labour Conference had endorsed the idea in May 2013.
“While we are examining the possibility of reducing the five-year eligibility for gratuity benefits, this requirement would be redundant if we allow gratuity to be transferred from one job to another. So we are looking at both the options,“ the official said.
The Payment of Bonus Act of 1965, expected to be the first of the three laws for which amendments will come up for the Cabinet's consideration, sets two numerical ceilings for limiting bonus payouts to workers.
All employees earning up to Rs 10,000 a month are eligible for a minimum bonus of 8.33% of their annual salary and a maximum of 20%. This ceiling takes into account any productivity-linked bonus that employers may offer.
The Rs 10,000 salary cut-off is only used for eligibility purposes and actual bonus payments are linked to a separate `calculation ceiling'. Bonus payments for anyone earning more than Rs 3,500 a month are made assuming his or her salary is Rs 3,500 per month.Both these thresholds were last revised in 2006.
After tripartite consultations with employers and employees yielded no consensus late last year, the government had referred the Bonus Act amendments to an inter-ministerial group that has now recommended both thresholds be raised in line with changes in the consumer price index since 2006.
The new ceilings under the Bonus Act are likely to be Rs 19,000 per month (salary limit for eligibility) and Rs 6,600 (salary limit for bonus calculation purposes).
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