Tuesday, April 9, 2013

Review laws to save kids from the rod

Uma Poddar
Warden Uma Poddar forced a girl to consume her own urine in the Visva Bharati University in Bengal.

Corporal punishment is now frowned upon by all, including the courts, but there is a need for a holistic review of our laws to bring them in consonance with the contemporary thinking with regard to such punishments. Though we have moved from a stage when our laws specifically recognised the right of the teachers to give corporal punishments to a complete ban on it, some provisions of law still grant legitimacy to the 'spare the rod and spoil the child' dictum.
The change started with courts striking down state laws permitting corporal punishment in schools and culminated with an all-India ban with the enactment of the Right to Education (RTE) Act but there have been no corresponding changes in our penal law.
The RTE Act provides for disciplinary action against erring teachers but criminal prosecution is a must to deter such offenders and to instill faith in the system.
There is no offence in the Indian Penal Code (IPC) specifically dealing with corporal punishments but there are provisions which grant immunity to teachers from prosecution in such cases.
Teachers can escape prosecution by invoking general exceptions under sections 88 and 89 which continue to shield teachers "acting" in good faith despite the ban on corporal punishment.
No doubt, there are a host of existing offences in the IPC like hurt, grievous hurt etc that can be invoked against a teacher for the physical injury caused to a student but there is hardly any offence which takes into account the mental torture and trauma that has been caused to the victim.
A similar vacuum in the law with regard to harassment of married women by her in-laws was filled by the incorporation of section 498A in the penal code through an amendment in 1983.
In the absence of any specific provision, law enforcement agencies grapple to look for offences which can make out a strong case against the accused. Particularly, when there is strong public outrage as was seen in the case of the recent incident in the Visva Bharati University in West Bengal.
Uma Poddar, a warden at a girls hotel in the University, had forced a girl student to consume her own urine.
She was booked for wrongful confinement under section 341 and under sections 269 and 270 of the IPC for doing an act likely to spread infection.
The invocation of section 23 of the Juvenile Justice Act concerning assault on a minor would have been more appropriate, as was suggested by the trial court.
Though the trial court will ultimately take a decision, to bring home the charge under section 269, the prosecuting agency will have to prove that Poddar's act was likely to "spread the infection of any disease dangerous to life".
And section 270 is more difficult as this comes into play only when the act is actuated with malice. Further, the charge of wrongful restraint will be seen in the context of the fact that she was the warden of the hostel in which the girl was staying.
The above offences obviously do not take into account the mental torture faced by the victim.
While it is always a tough job for the prosecution in cases where there is no physical injury, Poddar and similarly placed persons always have the option of making an attempt to escape trial altogether by seeking the benefit of general exceptions under the IPC.
The ban cannot be effective unless corresponding changes are made in the IPC and corporal punishment in itself is considered to be an offence.
US court holds India liable
Activists and kin of Bhopal gas tragedy victims protest against Union Carbide Corporation.
A United States District Court has absolved Union Carbide Corporation (UCC) and Warren Anderson but has blamed the Indian government for polluting ground water after the Bhopal disaster. While rejecting pollution related claims by the Bhopal gas tragedy victims, the US court recorded in its June 26 judgment that the Madhya Pradesh government wanted to reclaim the land having evaporation ponds at the plant site after the disaster and sought a report in this regard from the National Environmental Engineering Research Institute (NEERI).
"NEERI recommended that Pond III can be converted into a secure landfill to contain the sediments and contaminated soil leaving 11 hectares of [solar evaporation pond] area for reuse," the court said, adding that the claim by the victims was based on "leakage from this landfill".
Giving a clean chit to UCC, the judge said the decision to bury toxic waste in the former evaporation pond was proposed by NEERI and mandated by the government of India".
UCIL employees met with UCC scientists to learn about water and soil sampling techniques but there is no evidence to suggest UCC's "intimate participation" in the Bhopal Plant clean-up, and certainly no evidence that UCC approved the creation of a landfill in a solar evaporation pond.
Pendency in NHRC as bad as the judiciary
The problem of pendency is no longer just with courts. Statistics show that it is stealthily creeping into the National Human Rights Commission (NHRC) as well.
The rate of disposal of complaints by the NHRC is lower than the rate of institution. As many as 9,381 complaints were filed before the commission in May this year but only 8,339 could be disposed of in the month. And the figures for April show that May was not an exception - pendency has been increasing with each passing month.
In April this year, the number of cases disposed of by the commission was mere 5,215 as against 7,076 complaints filed in the month. The pending cases, thus, grew by 1,861 and 1,042, respectively in April and May. According to the latest figures available, over 17,000 complaints are pending before the commission. The number is growing.
If delay in delivery of justice is a violation of human rights, where would one go if the country's apex human rights body itself fails to provide justice in time?
Gauhati HC introduces corporate work ethic
The Gauhati High Court has directed all judges in trial courts under its jurisdiction to give in writing the reasons for non-disposal of pending cases which are over five years old. In what would keep judges on their toes, they have further been asked to submit through e-mail a 'Daily Work Done Statement' to the District Judge (DJ) concerned at the end of each working day.
As part of the Action Plan for achieving 'zero pendency' of cases which are more five years old, the high court has sought equal distribution of cases in courts of every district. The judges have also been asked to suggest, on the basis of their experience, measures for achieving the target of zero pendency for cases more than five years old.

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