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In a blow to every corrupt politician or bureaucrat shielded by the executive’s unwillingness to let them stand trial, the Supreme Court on Tuesday set a three-month deadline for governments to decide whether or not to grant sanction for prosecution under Section 19 of the Prevention of Corruption Act.

A Bench of Justices G.S. Singhvi and A.K. Ganguly was allowing a petition filed by Janata Party president Subramanian Swamy, who questioned the delay on the part of Prime Minister Manmohan Singh, the sanctioning authority, in granting sanction for prosecution of the former Telecom Minister, A. Raja, in the 2G spectrum allocation case.

The Bench gave two concurring judgments and held that Dr. Swamy had the locus standi to file a private complaint and seek sanction for prosecution. Justice Singhvi said: “Keeping in view the fact that the Special Judge, CBI, has already taken cognisance of the offences…

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Reproduced here are excerpts from the concluding paragraphs of the Supreme Court’s verdict cancelling 122 2G licences issued during A. Raja’s term as Minister of Communications and Information Technology.

69. …There is a fundamental flaw in the principle of first-come-first-served inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served principle has inherently dangerous implications. Any person who has access to power corridor at the highest or the lowest level may be able to obtain information from the Government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission would be given. He would immediately make an application and would become…

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Centre for Public Interest Litigation and others versus  Union of India and others  Writ Petition(Civil) 423 of 2010

At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural, form. A natural resource’s value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best sub-serve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State legislatures deal with specific natural resources, i.e., Forest, Air, Water, Costal Zones, etc.

The ownership regime relating to natural resources can also be ascertained from international conventions and customary international law, common law and national constitutions. In international law, it rests upon the concept of sovereignty and seeks to respect the principle of permanent sovereignty (of peoples and nations) over (their) natural resources as asserted in the 17th Session of the United Nations General Assemble and then affirmed as a customary international norm by the International Court of Justice in the case opposing the Democratic Republic of Congo to Uganda. Common Law recognizes States as having the authority to protect natural resources insofar as the resources are within the interests of the general public. The State is deemed to have a proprietary interest in natural resources and must act as guardian and trustee in relation to the same. Constitutions across the world focus on establishing natural resources as owned by, and for the benefit of, the country. In most instances where constitutions specifically address ownership of natural resources, the Sovereign State, or, as it is more commonly expressed, ‘the people’, is designated as the owner of the natural resource.

Spectrum has been internationally accepted as a scarce, finite and renewable natural resource which is susceptible to degradation in case of inefficient utilisation. It has a high economic value in the light of the demand for it on account of the tremendous growth in the telecom sector. Although it does not belong to a particular State, right of use has been granted to States as per international norms.

 In India, the Courts have given an expansive interpretation to the concept of natural resources and have from time to time issued directions, by relying upon the provisions contained in Articles 38, 39, 48, 48A and 51A(g), for protection and proper allocation/distribution of natural resources and have repeatedly insisted on compliance of the constitutional principles in the process of distribution, transfer and alienation to private persons. The doctrine of public trust, which was evolved in Illinois Central Railroad Co. v. People of the State of Illinois 146 U.S. 387 (1892), has been held by this Court to be a part of the Indian jurisprudence in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and has been applied in Jamshed Hormusji Wadia v. Board of Trustee, Port of Mumbai (2002) 3 SCC 214, Intellectuals Forum, Tirupathi v. State of A.P. (2006) 3 SCC 549 and Fomento Resorts and Hotels Limited v. Minguel Martins (2009) 3 SCC 571. In Jamshed Hormusji Wadia’s case, this Court held that the State’s actions and the actions of its agencies/instrumentalities must be for the public good, achieving the objects for which they exist and should not be arbitrary or capricious. In the field of contracts, the State and its instrumentalities should design their activities in a manner which would ensure competition and not discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods. In Fomento Resorts and Hotels Limited case, the Court referred to the article of Prof. Joseph L. Sax and made the following observations:

The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.

 The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets.Professor Joseph L. Sax in his classic article, “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.

The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people’s rights and the people’s long-term interest in that property or resource, including down slope lands, waters and resources.”

In Secretary, Ministry of Information & Broadcasting, Govt. of India v.Cricket Assn. of Bengal, (1995) 2 SCC 161, the Court was dealing with the right of organizers of an event, such as a sport tournament, to its live audiovisual broadcast, universally, through an agency of their choice, national or foreign. In paragraph 78, the Court described the airwaves/frequencies as public property in the following words:“There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies.”

In Reliance Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC 1, P. Sathasivam J., with whom Balakrishnan, C.J., agreed, made the following observations:  “It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.” Learned Judge then referred to the judgments, In re Special Reference No. 1 of 2001 (2004) 4 SCC 489, M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 and observed:

“This doctrine is part of Indian law and finds application in the present case as well. It is thus the duty of the Government to provide complete protection to the natural resources as a trustee of the people at large.”

 The Court also held that natural resources are vested with the Government as a matter of trust in the name of the people of India, thus it is the solemn duty of the State to protect the national interest and natural resources must always be used in the interests of the country and not private interests.

 As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly placed private parties.

In Akhil Bharatiya Upbhokta Congress v. State of M.P. (2011) 5 SCC 29, this Court examined the legality of the action taken by the Government of Madhya Pradesh to allot 20 acres land to an institute established in the name of Kushabhau Thakre on the basis of an application made by the Trust. One of the grounds on which the appellant challenged the allotment of land was that the State Government had not adopted any rational method consistent with the doctrine of equality. The High Court negatived the appellant’s challenge.

 Before this Court, learned senior counsel appearing for the State relied upon the judgments in Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3 SCC 635, State of U.P. v. Choudhary Rambeer Singh (2008) 5 SCC 550, State of Orissa v. Gopinath Dash (2005) 13 SCC 495 and Meerut Development Authority v. Association of Management Studies (2009) 6 SCC 171 and argued that the Court cannot exercise the power of judicial review to nullify the policy framed by the State Government to allot Nazul land without advertisement.

This Court rejected the argument, referred to the judgments in Ramanna Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489, S.G. Jaisinghani v. Union of India AIR 1967 SC 1427, Kasturilal Lakshmi Reddy v. State of J & K (1980) 4 SCC 1, Common Cause v. Union of India (1996) 6 SCC 530, Shrilekha Vidyarthy v. State of U.P. (1991) 1 SCC 212, LIC v. Consumer Education and Research Centre (1995) 5 SCC 482, New India Public School v. HUDA (1996) 5 SCC 510 and held:

 “What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.”

In Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295, the Court referred to some of the precedents and laid down the following propositions:

“State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.”

In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.

 Can the Courts interfere in Policy decisions of the Government

In majority of judgments relied upon by learned Attorney General and learned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters. There cannot be any quarrel with the proposition that the Court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters. When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights and, at the same time, are bound to perform the duties enumerated in Article 51A. Reference in this connection can usefully be made to the judgment of the three Judge Bench headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India (2011) 4 SCC 1.

Before concluding, we consider it imperative to observe that but for the vigilance of some enlightened citizens who held important constitutional and other positions and discharged their duties in larger public interest and Non Governmental Organisations who have been constantly fighting for clean governance and accountability of the constitutional institutions, unsuspecting citizens and the Nation would never have known how the scarce natural resource spared by Army has been grabbed by those who enjoy money power and who have been able to manipulate the system.

Once the victim is rehabilitated, it is not in her interest to recall her to the court of law for any purpose including evidence, as she is compelled to relive the trauma and indignity. Therefore, it would be better to take into consideration the statement given by her before repatriation and act accordingly. If, however, her recall is necessitated, it should be done in such a way that it causes  least harm to her. Dislocating her from the rehabilitated ambience usually causes serious problems. Therefore, if her statement is to be recorded, or evidence taken, it should be done in commission  or through video conferencing at an appropriate place which would create least disturbance and discomfort to the person concerned. The Supreme Court has held in State of Maharashtra vs Praful Desai (2003 4 SCC 601) that the recording of evidence by way of video conferencing might be done in cases where the attendance of the witness cannot be ensured without delay, expense and inconvenience. It was also held by the apex court that recording of evidence by video conferencing was a ‘procedure established by law’ under Article 21 of the Constitution and did not violate the rights of the accused. The court observed that although the rights of the accused must be safeguarded, they should not be overemphasised to the extent of forgetting that the victim also has rights. Therefore, the ITPA should make it mandatory to provide video conferencing facility at the place where the victim would find it comfortable. The victim’s best interests should be the deciding factor in choosing the place and time of video recording/conferencing.

Another order by the High Court of Delhi has made notable improvement in the field of criminal jurisprudence and victim protection in India. On 27 February 2004, the High Court delivered this order, in Crl. M.1467/04 in Crl. W. 532/1992, in a petition filed by an NGO Prajwala of Hyderabad through its advocate Ms. Aparna Bhat. Thanks to the intervention of the Delhi High Court, girls rescued from the brothels in Delhi were repatriated and rehabilitated in their hometowns in several parts of India including Andhra Pradesh. The rehabilitation work was carried out by the Government of Andhra Pradesh with the involvement and participation of the NGO, Prajwala. Many of these girls who had been rehabilitated to districts like Nellore, were summoned by the trial court in Delhi for providing evidence against the exploiters. Since these girls were repatriated after spending considerable time in the rescue home in Delhi, ideally speaking, their statements should have been recorded by the trial court during that period. However, due to the delays in the trial, this was not done and, therefore, these girls were called to Delhi. The government agencies in Andhra Pradesh tried their best to get in touch with these girls. Since their efforts failed, Prajwala was asked to step in again. The NGO realised that these girls were reluctant and unwilling to go to Delhi mainly because they did not want to relive the trauma and agony which they had undergone. It was decided to move the trial court for facilitating the recording of evidence of these girls to their hometowns. However, the court did not approve of this for want of required infrastructure. The matter was, therefore, taken up with the High Court of Delhi which directed the government counsel to look for alternatives. Since National Informatics Centre did not have the required facilities, the counsels for the government and the NGO took initiative, interacted with the government of Andhra Pradesh and found that video conferencing facility was available in Andhra Bhawan, New Delhi. The A.P. government agreed to provide this facility, which they have in Delhi and the concerned district headquarters in Andhra Pradesh. The High Court confirmed the availability of these facilities at A.P. Bhawan by judicial officers and then gave orders for recording the evidence of the victims through video conferencing. The court also directed that the state of Andhra Pradesh make appropriate arrangements for the same and that the trial court ensure adequate safeguards enumerated in the decision of the Supreme Court in State of Maharashtra vs.Dr. Praful B. Desai, 2003 4 SCC 601. This was a historical decision of the Delhi High Court because, for the first time in India, inter-state video conferencing was being utilised in criminal trials.  Once implemented, this judgment can go a long way in protecting the rights of trafficked victims and, therefore, is a judgment truly honouring the human rights of the victims.

B. R. Ambedkar delivering a speech to a rally ...

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Dr. B. R. Ambedkar (Bengal: General): The point that I want to make is this, that, while I have no objection to the redrafting of sub-clause (a) and (b) in order that they may run in a compact manner, I have a certain amount of doubt as to whether the dropping of the Explanation is in consonance with the desire of the majority of the members of the Advisory Committee that the State should not have power in any way for introducing compulsory service. Mr. Munshi suggests that, if the clause stands as redrafted and if the Explanation is omitted, nonetheless, the State will have the right to introduce compulsory military service. I have not had sufficient time to apply my mind to the consequences of the proposed change, i.e., the dropping of the Explanation but I fear that the dropping of the Explanation and retaining the clause in the form in which it is stated may have opposite and serious consequences. Because ‘begar is also something which is imposed by the State. So far as I know, in Bombay, ‘begar’ is demanded by the State for certain public purposes, and if the State is prohibited from having ‘begar’ it is perfectly possible for anybody to argue that even compulsory military service is begar. I am, therefore, not quite satisfied that the dropping of the Explanation is something which is advisable at this stage. I am not in a position to suggest any definite course of action in this matter, but I think I shall be sufficiently discharging my duties if I draw the attention of the House to the doubt which I have in mind about the effect which the dropping of the Explanation may have on the right of the State in regard to compulsory service either for military purposes or for social purposes for the State. MY suggestion would be that at this state we should not drop the Explanation, but leave it as it is and have the whole matter reconsidered the Provincial Constitution and he Federal Constitution are when drafted in their final form.

     Shrimati Dakshayani Velayudan (Madras: General) Mr. President, I have great pleasure in commending Clause 11 because it is a clause which mostly relates to a community, a vast regiment of people who are subjected to untold miseries for so many centuries. Sir, even nowadays we find traffic in human beings in some parts of India and this clause will have a great effect on the underdogs of this land who will have a voice when India gets her independence. This clause will bring about an economic revolution in the fascist social structure existing in India. All the disabilities of the underdogs of this land are mainly due to the economic backwardness of the unfortunate brethren of the neglected community. It is unfortunate that a section of the people of this land will have to work without getting any remuneration whatsoever, even for their daily maintenance and the people who work in the fields or in other places– will have to go back to their homes even without getting a single pie. They have not got the right to demand the wages even though they will work for day and night. If the people are called upon to work and if they do not go for that work they will get punishments. That is what we find in certain Provinces of India like the United Provinces. Even if there is not the system of ‘begar’ in other parts of India, almost a similar sort of compulsion exists throughout India and the majority of the people are subjected to exploitation economical and in all sorts of ways. The underdogs of this land are deprived of the facilities that make life happy. This System ought to have been, abolished even before the Provinces got self-government. Even if there are rules and regulations regarding this in certain provinces, the system still prevails and the people who are subjected to the system have no voice whatsoever in deciding their fate. So, this clause when it comes into existence will give great relief to a great number of people who are subjected to economic exploitation. When this sort of economic exploitation is eliminated from this land, the underdogs also will rise up and will be in a position to assert their rights and keep up their self respect and dignity and they too will have a right to enjoy like the people belonging to the upper class and upper caste. I have great pleasure in supporting this clause.

     Mr. B. Das (Orissa: General): I have great pleasure in supporting Mr. Munshi’s amendment to Clause 11. I accept the new draft of the clause. Sir, I have studied a good deal of forced labour problems since 1929. I was a member of the Forced Labour Convention in Geneva in 1929. India accepted the Forced Labour Convention in 1930, but the Indian States, with certain exceptions, did not accept it. That practice does not exist among the major States whose representatives I find today in this House. Sir, in my part of the country forced labour has been taken advantage of by most of the small Indian States. They receive grants from the Government of India for the construction of roads and utilise the money for their own purposes and by means of forced labour they construct roads and other civil works. Therefore, Sir, I do not apprehend the trouble which my friend Dr. Ambedkar has just now voiced. In case of national emergency the State must come forward and everybody must compulsorily work for the country, be it war or famine or drought. But I do not want any lacuna left over which will allow some of the Indian Princes to use forced labour for their own gains.

     Sir, one point I am not satisfied with is whether traffic in human beings includes women traffic. Sir, some of us have studied this problem about women’s traffic for the last ten years or more. Unfortunately, every year thousands of women of Orissa and the Province of Bengal, where there are surplus women, are carried away to other parts of India. There is a regular traffic going on by crooks and gangsters who carry away these women to some outside Provinces. I do not know whether they are regular house-wives or whether they lead the life of shame. We do know that in provinces like the Punjab and the Frontier the number of women is less than the population of men.

     Sir, we had the painful experience during the Bengal famine when lakhs of women were spirited away. Whether these women were taken to the provinces where there are less women or whether they were used to supply women to the huge British army that was then in the eastern part of India, that is a problem that social workers must work out, But I would have been happy to see “traffic in women” being specifically mentioned in the clause. Those of us who belong to the eastern part of India still apprehend that in spite of this provision in the Fundamental Rights, traffic in women will be carried on by unscrupulous moneymakers. I, therefore, want Sardar Patel to assure me whether he has in contemplation some kind of legislation by which this traffic in women may be stopped for ever.

     Sir, I want a further assurance from the representatives of the Indian States here whether they will persuade their colleagues in the less advanced States to abolish forced labour which is a source of profit and gain to many small principalities in India.

The Supreme Court has issued notice to all States and Union of India on the issue of Rehabilitation. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.

 Ravi Kant , Advocate Supreme Court of India & President, Shakti Vahini

 Recently the Supreme Court had issued notice to all states while noting down the concern on the pathetic conditions of Sex Workers:

“ Although we have dismissed this Appeal, we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. As already observed by us, a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed herself.

We propose to have the response of the Centre and the States in this regard and hence the case shall be listed before us again on 04.05.2011 to be taken up as first case on which date the first compliance report indicating therein the first steps taken by the Central and the State Governments in this regard shall be submitted. Issue notice to the Central Government and all the State Governments which will also file responses by the date fixed for hearing.”

 The court was expressing anguish and concern about failure of the Union of India and the States to effectively implement the National Plan of Action 1998 to combat trafficking and Rehabilitation has caused irreparable damage to lakhs of victims who have been caught in this illegal trade. The applicants states that this Honourable Court in Gaurav Jain Vs Union of India keeping in view of the legislative inertia and the consequent failure of the government  directed that a high level committee be constituted to make an indepth study of these problems and to evolve such guidelines to protect the rights and interest of victims of sexual exploitation. It also  laid down certain guidelines and further  directed that a high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent  with the guidelines.

 The central government pursuant to the directions issued by this Honurable Court in Gaurav Jain case constituted a “Committee  on the Prostitution , Child Prostitutes & Plan of Action to combat trafficking and commercial and Sexual Exploitation of Women and Children”. In 1998 a Report containing an Action Plan was prepared by the Department of Women and Child Government of India . Apart from the highlighting the problems faced in addressing issues of commercial sexual exploitation which are set out hereinafter detailed recommendations were made with a view to arrest the systematic problem , including issues relating to law enforcement and legal reforms.

 The above recommendations have not been implemented. In fact there has never been any serious attempt by Respondents to address the issues /recommendations made by the committee. Further the Action Plan does not have any budgetary or non budgetary support from the Government. The petitioner believes that there has been no study relating to the economic cost of implementing the recommendation and the sources through which such costs could be met. In the years from 2001- 2010 the Government of India has focused its initiatives on the issue to combat trafficking. It has formulated the Swadhar and Ujjwala initiatives which are primarily aimed at rehabilitation of trafficked victims. The Government of India in 2010 has formed special Anti Human Trafficking Units across the country under the Ministry of Home Affairs . Apart from the above mentioned initiatives the respondents  have  failed  miserably to formulate special schemes for rehabilitation of women who are in prostitution and also failed to implement the guidelines which were formulated in the National Plan of Action 1998 for rehabilitation of women in the red light area.

The Govt of India , UNIFEM and National Human Rights Commission undertook a study on the issue of Human Trafficking and to propose  recommendations to combat this crime. The NHRC report came out with a set of recommendations which have till date not been complied with. The failure to implement the measures set out in 1998 Plan of Action and also the recommendations of the NHRC report has caused severe injury and prejudice to the victims of prostitution . The legislative deficit, coupled by callousness displayed by the respondents continues to ruin the lives of lakhs of women who are caught up in the Illegal Sex Trade being openly run from the red light areas. The respondents have failed and neglected to accept responsibility and discharge their duty as mandated by law.

 Due to the callous attitude of the Union of India and the various state governments the trade in the red light area has been thriving. Combined with lax law enforcement and insufficient support structures the trafficking in Human Beings is on the increase. It is due to the problem of trafficking the victims are forcefully pushed into this illegal and viscous trade. The victims are mostly minors when they are brought and are sold to the organized crime thriving in the red light areas. From there these victims are tortured and forced into prostitution. The victims are kept in bonded conditions and are forced to live a life of bondage , sexual slavery , repeated and forced rape , deprivation of basic human rights and hidden away from law enforcement agencies. The victims after repeated human rights violation , continued torture and bodily harm are forced to do and act as there captors desire. These victims are then forced to cater to ten to fifteen men each day . This bonded conditions continue for at least seven to ten years or until the victim can be rescued. The seven to ten years of bonded and sexual slavery is serious violation of Article 23 (3) and Article 21 of the Constitution of India. During this period the victims is forced to suffer repeated rape ten to fifteen times and also during this process of forced and sexual slavery the victim also gets exposed to Sexually Transmitted diseases and HIV/AIDS. The economics of the illegal trade of human misery and also the the exploitation has been vividly explained in the NHRC / UNIFEM

 The victim after immense suffering and years of exploitation and sexual slavery multiplied with lax law enforcement is left with no choice but to continue in the illegal trade. The victims cannot return to their homes for the fear of stigma and shame. They are left to their pathetic situations. Some of them are forced to continue in the trade and many with no choice left become part and parcel of the illegal trade. The Victims continue to suffer and with no rehabilitation or support from the government are left to beg and die in utter neglect. They don’t even venture out as they will be further exploited. Thus the suffering and violation of basic human rights and fundamental rights continue .

 The Honourable Court in VishalJeet Vs Union of India explained the pathetic situation of the victims:

 “No denying the fact that prostitution always remains as a running sore in the body of civilisation and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making its way onwards leaving a track marked with broken hopes. Therefore, the necessity for appropriate and drastic action to eradicate this evil has become apparent but its successful consummation ultimately rests with the public at large.

 It is highly deplorable and heart-rending to note that many poverty stricken children and girls in the prime of youth are taken to ’flesh market’ and forcibly pushed into the ’flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions–indeed there is none–that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”

 The Honurable Supreme Court in Vishaljeet Vs Union of India laid down certain guidelines for eradication of the malady :

 This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers. The Courts in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences. Apart from legal action, both the Central and the State Government who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction.Bhagwati, J. (as he then was) in Lakshmi Kant Pandey v.Union of India, [1984] 2 SCC 244 while emphasizing the importance of children has expressed his view thus: “It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ’supremely important national asset’ and the future wellbeing of the nation depends on how its children grow and develop.”

 We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard. Accordingly, we make the following directions:

 1. All the State Governments and the Governments of Union Territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.

 2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women’s organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and associations etc., the main objects of the Advisory Committee being to make suggestions of:

 (a)  the measures to be taken in eradicating the child prostitution, and

(b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution.

 3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatarists and doctors.

4. The Union Government should set up a committee of its own in the line, we have suggested under direction No.(2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children.

 5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.

 6. The Advisory Committee can also go deep into devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.

 7. The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commissioner of Police, Delhi for necessary action. We may add that we are not giving an exhaustive list of the members for the constitution of the committee. Therefore, it is open to the concerned Government to include any member or members in the committee as it deems necessary.

 We hope and trust that he directions given by us will go a long way towards eradicating the malady of child prostitution, Devadasi system and Jogin tradition and will also at the same time protect and safeguard the interests of the children by preventing of the sexual abuse and exploitation.

 The Honourable Supreme Court in Gaurav Jain vs Union of India had keeping in view the legislative inertia and the consequent failure of the Government to protect the rights and interest of the victims ,laid down certain guidelines and further directed high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines. The Supreme Court realizing the enormity of the problem and the need to urgently mend the systematic and symbolic failures proceeded to give further directions in the manner as follows:

 “The Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women the Child Development as the chairperson and three or four Secretaries from the concerned State Governments, to be nominated by the Minister of Welfare. They would make an in-depth study into these problems and evolve such suitable schemes as are appropriate and consistent with the directions given above. The Committee should be constituted within one month from the date of the receipt of this judgment. The Committee should finalise the report within three months thereafter. As soon as the report is submitted. the same may be communicated to all the State Governments and the concerned Ministries for their examination. Within two month from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decision. The Committee should finalise the report with further suggestions or amendments, if suggested in the conference. Thereafter, the report should be finalised and then direction would be given to the State Governments for effective implementation of the schemes. The nodal Department would enforce and regularly be supervised by the Ministry of Welfare, Government of India. A permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis, and to take such other steps as may be expedient in the effective implementation of the schemes. Periodical progress as to funding and enforcement of the scheme should be submitted to the Registry of this Court. If further directions would be needed, liberty is given to the parties to approach this Court. In that view of the matter, it is believed and hoped that the above law and directions would relieve the human problem by rehabilitation of the unfortunate fallen women cought in the trap of prostitution ; their children would be brought into the mainstream of the social order ; these directions would enable them to avail the equality of opportunity and of status, with dignity of person which are the arch of the Constitution.”

The Advisory committee formed pursuant to the judgement of this Honourable Court  in Vishal Jeet vs Union of India have remained defunct and many states have not even convened meetings of the committee. The Central Advisory Committee formed by the Government of India , Ministry of Women and Child has been meeting regularly since 2005 and has been addressing the problems of trafficking. Though the committee has not focused on the issue of rehabilitation of women in prostitution. These committees were formed with the intention to promote inter department cooperation and approach the problem in a unified manner.

 When Shakti Vahini  (Writ Petition 190 0f 2002) had petitioned to the Supreme Court that such committees were not functional and pursuant to the Supreme Court notice many governments had formed the committees just to file affidavits in the Supreme Court. After that again these committees became non functional. The National Plan of Action 1998 formed pursuant to the Honourable Supreme Court order has remained a dead document as nothing much has been done for the emancipation of women victims.

 The National Human Rights Commission in 2006  has also framed a Plan of Action to combat Trafficking but the same has also remained as a dead document. The Government of India has initiated several initiatives in collaboration with NGOs to combat trafficking and has also formed a special cell in the Ministry of home Affairs , Government of India as the Nodal Agency for the Anti Human trafficking Units. The law enforcement agencies are also being sensitized on the issue of Trafficking and several modules for police trainings have been formulated by United Nations office on Drugs and Crimes ( UNODC) , Bureau of Police Research and Development (BPRD) and Ministry of Home Affairs. The Union of India in collaboration with NGOs has launched Ujjwala and Swadhar Schemes which are more focused towards trafficked children and as short stay homes.

 The Government of India unfortunately has till date not devised any proper scheme for rehabilitation for women in prostitution so that they can become part of the mainstream.

Ratification of the UN Protocol on Human Trafficking

 The Government of India has recently ratified the UN Protocol .  This also implies that  Government of India formally adopting definition of Human Trafficking which is :“Trafficking in persons” which shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

 The UN Protocol makes Human Trafficking and Smuggling a organised crime and call upon states to provide victim support , victim repatriation , witness support and protection , Joint Investigations between member nations  etc. It specially calls upon nations to ensure  implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. It mandates nations to  ensure that take into account the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. It also provides for nations to provide for the physical safety of victims of trafficking in persons while they are within its territory and  ensure that its domestic legal system contains measures that offer  victims of trafficking in persons the possibility of obtaining compensation for damage suffered. It takes a commitment from nations that they shall establish comprehensive policies, programmes and other measures inter alia  to prevent and combat trafficking in persons; and (b) to protect victims of trafficking in persons, especially women and children, from revictimization. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.

 It mandates that nations shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: (a) whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons; the types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and the means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them.

 It ensures that nations  shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with nongovernmental organizations, other relevant organizations and other elements of civil society.

 State Liablity

 The Government of India and the various states have failed in their duty as the problem of prostitution is a serious violation of Fundamental Rights as enshrined in Article 21 and Article 23 of the Constitution of India. India is also a signatory to international conventions such as the Convention on Rights of the Child (1989), Convention on Elimination of all forms of Discrimination Against Women (1979), UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000) and the latest South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002). The Constitutional , International, Statutory obligations   and orders of the Honourable Supreme Court makes it mandatory for the Government of India and the different state Government to combat this heinous organised crime and also to provide support to the victims of Prostitution.

 Rehabilitation / Compensation approach

 The Supreme Court in Bandhua Mukti Morcha  1984 (3) SCC 161 has elucidated the rehabilitation of Bonded Labour and directed the Government to award compensation to Bonded labour under the provisions of Bonded Labour System (Abolition) Act 1976 after taking note of serious violation of Fundamental & Human Rights :

 “The other question arising out of the implementation of the Bonded Labour System (Abolition) Act 1976 is that of rehabilitation of the released bonded labourers and that is also a question of the greatest importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion.

 The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and (illusory) security’ as against a world of freedom and starvation. The State Governments must therefore concentrate on rehabilitation of bonded labour and evolve effective programmes for this purpose. Indeed they are under an obligation to do so under the provisions of the Bonded Labour System (Abolition) Act 1976. It may be pointed out that the concept of rehabilitation has the following four main features as admirably set out in the letter dated 2nd September 1982 addressed by the Secretary. Ministry of Labour, Government of India to the various States Governments:

 (i) Psychological rehabilitation must go side by side with physical and economic rehabilitation;

 (ii) The physical and economic rehabilitation has 15 major components namely allotment of house-sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, horticulture, animal husbandry, training for acquiring 134 new skills and developing existing skills, promoting traditional arts and crafts, provision of wage employment and enforcement of minimum wages, collection and processing of minor forest produce, health medical care and sanitation supply of essential commodities, education of children of bonded labourers and protection civil rights;

 (iii) There is scope for bringing about an integration among the various central and centrally sponsored schemes and the on-going schemes of the State Governments for a more qualitative rehabilitation. The essence of such integration is to avoid duplication i.e. pooling resources from different sources for the same purpose. It should be ensured that while funds are not drawn from different sources for the same purpose drawn from different sectors for different components of the rehabilitation scheme are integrated skillfully;and

(iv) While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would need the total requirements of the families of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.

We would therefore direct the Government of Haryana to draw up a scheme on programme for “a better and more meaningful rehabilitation of the freed bonded labourers” in the light of the above guidelines set out by the Secretary to the Government of India, Ministry of Labour in his letter dated 2nd September 1982. The other State Governments are not parties before us and hence we cannot give any direction to them, but we hope and trust that they will also take suitable steps for the purpose of securing identification, release and rehabilitation of bonded labourers on the lines indicated by us in this Judgment.”

The compensation since 1978 has undergone a change and presently the compensation is Rs20,000 and access to Government schemes of poverty alleviation and also housing under Indira Awas Yojana .

 Supreme  Court in MC Mehta vs State of Tamil Nadu and Others – Writ Petition (Civil) No.465/1986 seeing the severe violation of fundamental rights in cases of child labour laid down guidelines for compensation and rehabilitation :

 “ It may be that the problem would be taken care of to some extent by insisting on compulsory education. Indeed, Neera thinks that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. therefore, unless the family is assured of income allude, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are, however, of the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain a will-o’-the wisp. Now, if employment of child below that age of 14 is a constitutional indication insofar as work in any factory or mine or engagement in other hazardous work, and if it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfillment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs.20,000/-; and the Inspectors, whose appointment is visualised by section 17 to secure compliance with the provisions of the Act, should do this job. The inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs.20,000/- which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the concerned child. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high yielding scheme of any nationalised bank or other public body.

As the aforesaid income could not be enough to dissuade the parent/guardian to seek employment of the child, the State owes a duty to come forward to discharge its obligation in this regard. After all, the aforementioned constitutional provisions have to be implemented by the appropriate Government, which expression has been defined in section 2(i) of the Act to mean, in relation to establishment under the control of the Central Government or a railway administration or a major port of a mine or oil field, the Central Government, and in all other cases, the State Government.

 Now, strictly speaking a strong case exists to invoke the and of an Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39(e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child. This would also see the fulfillment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unni Krishnan. We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”. The very large number of child-labour in the aforesaid occupations would require giving of job to very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector establishment or, for that matter, in a public sector organisation., we are not issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as above-mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5,000/- for each child employed in a factory or mine or in any other hazardous employment.

 The aforesaid would either see an adult (whose name would be suggested by the parent/guardian of the concerned child) getting a job in lieu of the child, or deposit of a sum of Rs.25,000/- in the Child Labour Rehabilitation-cum- Welfare Fund. In case of getting employment for an adult, the parent/guardian shall have to see that his child is spared from the requirement to do the job, as an alternative source of income would have become available to him.”

 The  Supreme Court in Delhi Domestic Working Women’s Forum Vs. Union India and others writ petition (CRL) No.362/93 in recognition of severe violation of Fundamental rights of Rape Victims had directed the National Commission Women to evolve a “scheme so as to wipe out the tears of unfortunate victims of rape’’. The Supreme Court observed that having regard to the Directive Principles contained in Article of the Constitution, it was necessary to set up a Criminal Injuries Compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial and in some cases are too traumatized to continue in employment.

“ In this background, we think it necessary to indicate   the broad parameters in assisting the victims of rape.The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well- acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.

 (2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3)The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

 (5)The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.

 (6)In all rape trials anonymity of the victim must be maintained, as far as necessary.

 (7)It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

 (8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

 16. On this aspect of the matter we can usefully refer to the following passage from The Oxford Handbook of Criminology (1994 Edn.) at pages 1237-38 as to the position in England:

 ”Compensation payable by the offender was introduced in the Criminal Justice Act, 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where ‘injury, loss, or damage’ had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penological thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1988 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, impose a duty on the court to give reasons for not doing so. it also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review ….

The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.”

 17.Section 10 of the Act states that the National Commission for men shall perform all or any of the following functions, namely:, (a) Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws. (b) Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal.

 18. Having regard to the above provisions, the third respondent will have to evolve such scheme as to wipe out the tears of such unfortunate victims. such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall necessary steps for the implementation of the scheme at the earliest.

 The National Commission for Women pursuant to the orders of the Honourable Supreme Court has drafted a scheme for Compensation. Some states have already started the implementation of the scheme. The scheme The scheme has proposed a compensation of Rs2 to Rs3 Lakhs for Rape victims.

The Government of India has recently amended the  The Code of Criminal Procedure 1973 as amended by  The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation.

“357A. Victim compensation scheme. (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation.

 (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

 (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

 (5) On receipt of such recommendations or on the application under sub-section

(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”.

Article 23of the Constitution of India prohibits ,”Traffic in Human Beings” this Honourable Court has held that the expression “Traffic in Person” in Article 23(1) of the Constitution of India is evidently a very wide expression which includes the prohibition of traffic in women for immoral and other purposes . In the case of women in prostitution the failure to implement the National Plan of Action drafted pursuant to the Judgement in Gaurav Jain vs Union of India has resulted in serious deprivation of fundamental rights.

The trafficked victims and women in prostitution go through serious fundamental rights violation which includes bondage and sexual slavery  and repeated rape and gang rape. The crimes are very serious in nature which results in deprivation of Fundamental Rights and therefore the state is liable. As mentioned above this Honourable Court has already ordered compensation in Bonded Labour and for victims of Rape , the victims of Human Trafficking and women in Prostitution also are eligible for compensation from the State.

 The failiure of the Union of India and the State Governments to draft a suitable rehabilitation scheme for women in prostitution is a serious violation of orders of this Honourable Court and also violation and deprivation of Article 21 and Article 23(1) of the Constitution of India. Article 23 read with Article 39, 41 and 42 together constitute inalienable rights and the failure to grant such right would constitute deprivation of basic fundamental rights. The problem of trafficking and prostitution is also serious violation of Article 14 , Article 19 of the Constitution of India.

 A way forward – Suggested Recommendations

 Shakti Vahini after held several meetings with women victims of the red light area of GB Road on the issue of Rehabilitation after the Honourable Supreme Court issued notice to the Union of India and all states in the present case. The victims have provided suggestions as to how the State can formulate schemes which can help them to reintegrate back to the society. The victims have also come out with suggestions so that they can be reintegrated in the society and also be rehabilitated which are as follows:

1. Compensation to be paid for serious violation and deprivation of Fundamental rights.

 2. The women in prostitution are in bondage condition for several years . As a result there is a serious loss of identity and the organised crime changes their names frequently. This ultimately leads to having no identity and hence access to government schemes and government facilities are completely not available to the Victims. The Government of India and the State Government should at once issue identity cards , Ration Cards , UID Cards so that domicile can be proved. Without these documents the women have no approach to the government facilities.

3) The Women victims of prostitution and Human Trafficking undergo serious violation of Fundamental rights and are forced to live a life of sexual slavery and bondage. They have no source of income and they should be treated as Below Poverty Line. This will enable them to access the schemes for Poverty Alleviation.

 4) Most of the victims of Human Trafficking and Women in Prostitution belong to the lower strata of the society and are tribals and belong to the SC and ST communities. The schemes for alleviation of these communities should be open to all those victims who belong to such communities

 5) The Government should provide schemes for training and Income generation programme and also link these schemes with Nationalised Banks and agencies like Rashtriya Mahila Kosh . The training provided should encourage entrepreneurship and this needs to be supported by easy and low interest credit. Services of NGOs can be asked to provide mentor support.

6) The victims of trafficking and prostitution who want to leave the place should be provided residential facilities and rehabilitation scheme as soon as possible.

7)  All schemes of social security and Health facilities should be accessible to victims of trafficking.

8)  Legal aid and legal support should be provided to the victims .

 9)   States in destination area should also accept responsibility of victims as they are liable because their fundamental rights violation has taken in the destination areas. This is because many a times states pass on the responsibility of the victims on the home state and the home states accepts no responsibility.

10) The present schemes of swadhar and Ujjwala are completely irrelevant compared to the magnanimity of the crime.

11) Any scheme devised by the Government of India should have strong budgetary support.

 12) The victims of trafficking and women in prostitution categorically state they are victims of organised crime and have landed in this situation due to they were forced in this situation. They all agree that in no case prostitution should be allowed or regulated.

13) Government should frame stringent laws to convict traffickers who indulge in trafficking of women and children. The Law enforcement agencies should take action against such criminals.

 14) The whole illegal business of prostitution is run by organised crime who have links across the country. The honourable court should direct the law enforcement agencies to launch investigation against these perpetrators

When the Supreme Court said that the victims of Commercial Sexual Exploitation should be provided “ a life of dignity” it should not be meant that the court is talking about legalization. Organizations and individuals with vested interest who have to gain from such illegal trade start speaking about the legalization issue.

 It is a reality that Govt of India has never had a serious view on the issue of rehabilitation. It may be thing of past as the Government of India with the liberalization of the economy has now no dearth of the funds to do it. The Government is already spending huge amounts in National Rural Health Mission, Sarva Shiksha Abhjiyan , National Rural Employment Gurantee Scheme, Integrated Child Protection Scheme (ICPS) & etc.

Recently the Government of India has launched Anti Human Trafficking Units across the country. This is a specialised force which will work exclusively to combat Human Trafficking. The results are already being felt with more such gangs being busted. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.

The writer is practising advocate in the Supreme Court of India and is President of Shakti Vahini a leading non governmental organization working on anti trafficking. He can be reached at :

All forms of gender based violence, “crimes of honour” deprive women of the right to life, liberty and security of person, the right to be free from torture or cruel, inhuman or degrading treatment or punishment, right to equality in the family and the right to the highest attainable standard of physical and mental health. In the broader context of patriarchal principles motivating “crimes of honour”, India is obligated as a state party to ensure that all discrimination against women in matters relating to marriage and family relations are eliminated, providing them with the same right to enter into marriage and to freely choose a spouse and to enter into marriage only with their free and full consent .This includes ensuring that informal decision making bodies operating on customary laws, such as the khap panchayat, are refrained from enforcing their dicta, and interfering with the right of women to choose their spouse.

India, as a state party to CEDAW has the legally binding obligation to “eliminate discrimination against women by any person, organization or enterprise,” as enumerated in article 2e. State parties have to take appropriate measures to eliminate prejudices and customary practices, such as “crimes of honour”, “which are based on the idea of the inferiority or the superiority of either of the sexes,” as enumerated in article 2e. Creating statutes that criminalize the different types of acts that fall within the ambit of “crimes of honour”, while essential, is certainly not adequate if there is no systematic enforcement of the statutes. Active prosecutions are one of the means to achieve the practical realization of eliminating discriminatory principles such as “crimes of honour”, in order to ensure that state parties meet their obligations to “take all appropriate measures to eliminate discrimination against women [article 2]. Taking preventative measures, such as promoting gender sensitization and initiatives on combating dated patriarchal notions, are also necessary to eliminate discrimination against women.

Article 14 , Constitution of India The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15(1) , Constitution of India The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Article 15(3) , Constitution of India Nothing in this article shall prevent the State from making any special provision for women and children.
Article 21 , Constitution of India No person shall be deprived of his life or personal liberty except according to procedure established by law.
Convention on the Elimination of All Forms of Discrimination against Women (1981) Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public  authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.

  Article 5 States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

  Article 161. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

Convention on the Elimination of All Forms of Discrimination against Women (1981) General Recommendation No. 195 that “discrimination” includes “gender based violence …. that is directed against a woman because she is a woman or that affects women disproportionately.”Gender based violence includes “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”

The Committee advises that traditional, patriarchal and archaic views that subordinate women to men contribute to gender based violence. These socially constructed gender based stereotypes legitimize and “justify gender-based violence as a form of protection or control of women.” “Crimes of honour”, including fatwaas, “honour killings,” rape, beatings and torture, forced separation and divorce, extortion and displacement, that are specifically and disproportionately targeted towards woman, are similarly justified as means to control women.

Commission on Human Rights In its resolution 2000/31 on extrajudicial, summary or arbitrary executions, the Commission on Human Rights expressed concern at the large number of killings committed in the name of passion or in the name of honour reported by the Special Rapporteur, and called upon Governments to investigate such killings promptly and thoroughly; to bring those responsible to justice; and to ensure that such killings were neither condoned nor sanctioned by government officials or personnel. The Commission adopted similar resolutions in 2001 (resolution 2001/45) and 2002 (resolution 2002/36). In its resolution 2000/45 on the elimination of violence against women, the Commission defined the term “violence against women” as any act of gender-based violence that resulted in or is likely to result in physical, sexual or psychological harm or suffering to women, including crimes committed in the name of honour and crimes committed in the name of passion, and called upon States to condemn violence against women and not to invoke custom, tradition or practices in the name of religion to avoid their obligations to eliminate such violence. The Commission adopted similar resolutions in 2001 (resolution 2001/49) and 2002 (resolution 2002/52).
Subcommission on the Promotion and Protection of Human Rights (former Sub commission on Prevention of Discrimination and Protection of Minorities)  The Subcommission addressed crimes of honour in its resolutions 2000/10 and 2001/13 on traditional practices affecting the health of women and the girl child,3 in which it shared the concerns of the Special Rapporteur of the Subcommission on traditional practices affecting the health of women and the girl child about the perpetuation of certain harmful traditional practices, including crimes of honour, and appealed to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning the harmful effects of all forms of harmful traditional practices, in particular through education, information and training, in orderAttention has been drawn, particularly in recent years, to the issue of crimes against women committed in the name of honour at the international and national levels, and the issue has been addressed by intergovernmental and expert bodies within the United Nations system, and some measures have been taken by Member States to eliminate such acts.
International Covenant on Civil and Political Rights . As a member to this covenant the Union of India is mandated to provide to all its citizens the rights guaranteed under the following articles :Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Universal Declaration of Human Rights The Union of India as a member to the Universal Declaration of Human Rights has an obligation to protect the lives, rights and liberty of individuals and protect them from such heinous crimes. The Universal declaration of Human Rights under Article 16 guarantees the following:(1)  Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2)   Marriage shall be entered into only with the free and full consent of the intending spouses.

(3)  The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent. Hence the order of the High Court was not without jurisdiction. However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law. In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under s. 100 of the Code of Criminal Procedure is always used. There is also the remedy of a civil suit for restitution of conjugal rights. In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum  remedium and the power can only be exercised in a a clear case. That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman. Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place.

The Judgment of the Court was delivered by S. MOHAN, J.-

We have carefully perused the report. We are appreciative of the good work done by the learned District Judge. He had held a thorough inquiry by examining several witnesses to arrive at the truth. In our considered opinion the report is a fair one and deserves to be accepted. It is accordingly accepted.

The report in no uncertain terms indicts the police. It inter alia states:

“On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24/25/26-7-1993. On 24-7-1993 she was pressurised by J.C. Upadhyay SHO, Sukhpal Singh SSI and Narendrapal Singh SI and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused, her family members were brought in to pressurise her into implicating them. On 25-7-1993 she was jolted out of sleep by Sukhpal Singh SSI and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted her on her leg with danda and poked it in her stomach. She did not yield to the pressure. Then, on 26-7-1993 567 she was given filthy abuses and threatened by J.C. Upadhyay and Sukhpal Singh for writing a dictated note. She was pushed and jostled by them both. Sukhpal Singh SSI hit her with a danda on her leg and made threatening gestures aiming his danda on her head. Ultimately they both succeeded in making her write a note dictated by them whose contents were those which were incorporated by the investigating officer in his case diary as her statement under Section 161 CrPC. Thereafter on 27th July she was purported to be taken by K.C. Tyagi to the Court for the recording of her statement under Section 164 CrPC but was taken by J.C. Upadhyay SHO to Chauki Chauraha Police Outpost and kept there and brought to the police station and kept there. She was despatched from there to Nari Niketan only at 5 p.m. When ACJM 11 had passed orders for Nidhi being kept at Nari Niketan, Bareilly, K.C. Tyagi 10 was under obligation to take her from court to Nari Niketan straightway without any delay whatsoever but she was brought back to the police station and lodged there and only afterwards she was despatched from there for Nari Niketan. Then on 29-7-1993 while being taken to the court for the recording of her statement under Section 164 CrPC Nidhi was brought from Nari Niketan to the police station and there J.C. Upadhyay SHO commanded her to speak that which he had asked her to speak and if she did not make her statement accordingly and went with Charanjit Singh then she would not be spared by him and he would ensure that she underwent miserable lifetime.

He further told her that if she cultivated enmity with the police its consequences were only too obvious. So the torture extended uptil 29-7-1993. Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave.” This clearly brings out not only high-handedness of the police but also uncivilised behaviour on their part. It is difficult to understand why Sukhpal Singh SSI assaulted Nidhi on her leg with danda and poked it in her stomach.

Where was the need to threaten her? As rightly pointed out in the report that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to make her submit to the demands of the police? 5. A further reading of the report shows:

(i) fabrication;

(ii) illegal arrest;

(iii) without personal knowledge or credible information that the arrested persons were involved in a cognizable offence; and

(iv)illegality of verbal order of arrest not contemplated under Section 55 CrPC.

This again is a blatant abuse of law.

The report clearly holds Narendrapal Singh SI of indulging in illegal arrest and detention in arresting Charanjit Singh Bagga and Rajinder Singh Bagga. Further, both of them were tortured as they were given danda blows at police station on 23-7-1993. The report blames J.C.Upadhyay SHO and K.C. Tyagi 10 for the wrongful detention of Nidhi. It concludes:

“The detention of a married woman in custody who is not an accused on the pretext of her being a victim of abduction and rape which never was to her knowledge and to the knowledge of the police officers concerned aforesaid is itself a great mental torture for her which cannot be compensated later but here we have found that she was tortured otherwise also by threats of violence to her and to her husband and his family and was given physical violence calculated to instil fear in her mind and compel her to yield and to abandon her marriage with Charanjit Singh Bagga which had been duly performed in Arya Samaj Bhoor and which had been duly registered in the office of Registrar of Hindu Marriages under the U.P. Hindu Marriage Registration Rules, 1973 framed by the Governor in exercise of the powers conferred by Section 8 of the Hindu Marriage Act, 1955 (Act No. XXV of 1955). She was made to write a statement as commanded by J.C. Upadhyay SHO and Sukhpal Singh SSI on 26-7- 1993 which was reproduced by the 10 in the case diary as her statement under Section 161 CrPC. The physical and mental torture was given to Nidhi on 24-7-1993 and 25-7-1993 by J.C. Upadhyay SHO, Sukhpal Singh and SSI and Narendrapal Singh SI but on 26-7-1993 it was done by only J.C. Upadhyay SHO and Sukhpal Singh SSI and there was no participation of K.C. Tyagi  in the torture and harassment dated 24-7-1993, 25-7-1993 and 26-7-1993.”

On a perusal of all the above, we are really pained to note that such things should happen in a country which is still governed by the rule of law. We cannot but express our strong displeasure and disapproval of the conduct of the police officers concerned. Therefore, we issue the following directions:

1.The State of Uttar Pradesh will take immediate steps to launch prosecution against all the police officers involved in this sordid affair.

2. The State shall pay a compensation of Rs 10,000 to Nidhi, Rs 10,000 to Charanjit Singh Bagga and Rs 5000 to each of the other persons who were illegally detained and humiliated for no fault of theirs. Time for making payment will be three months from the date of this judgment. Upon such payment it will be open to the State to recover personally the amount of compensation from the police officers concerned.

Writ petition shall stand disposed of in view of the above terms.

Gulshan Jahan had married Jamshed in the presence of witnesses and claimed to be major. However her father filed an FIR stating that she was a minor (14) and had been kidnapped by Jamshed. The High Court had to consider Gulshans disputed marriage and thereafter establish wether she was with Jamshed of her own sweet will. Medical examination established she was above 18 and the detention was illegal. Accordingly the court held that since Gulshan Jahan stated she had married Jamshed of her own choice and that the guardianship of her father had ceased the day she became a major and since both Gulshan and Jamshed were major the law did not prohibit them for loving each other They had to live therir lives with dignity and honour and make their life meaningful. The court also noted their right to privacy, to protection of life and personal liberty under Article 21 of the constitution.

According to Indian Majority Act 1875 a person who is 18 years of age is a major vide section 3 of the Act. The law deems that a major understands his / her welfare. Hence a major can go wherever he /she likes and live with anybody. India is a free, democratic, welfare country. Hence if a person is major even parents cannot interfere with that individual. Once a person becomes a major that person cannot be restrained from going anywhere and live with anyone. Individual liberty under Article 21 has the highest place in the constitution.

Rani Gupta moved the court claiming her father was forcing her to marry a boy she disliked. Of her own free will she entered into marriage with a person of her choice. The Court accepted that she was a major and Rani was given the opportunity of making her statement to the court on her choice. The court stayed the arrest of her husband stating that the personal liberty of Rani Gupta should not be interfered with.

The Supreme Court in this case laid down guiding principles on the law of arrest.

In India, Third Report of the National Police Commission at p. 32 also suggested:

“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

 (i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines……” The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A  person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

SMT SEEMA VS ASHWANI KUMAR Transfer Petition (civil) 291 of 2005 /Supreme Court

In the affidavit filed on behalf of the National Commission for Women (in short the ’National Commission’) it has been indicated as follows:

“That the Commission is of the opinion that non-registration of marriages affects the most and hence has since its inception supported the proposal for legislation on compulsory registration of marriages. Such a law would be of critical importance to various women related issues such as:

(a) prevention of child marriages and to ensure minimum age of marriage.

(b) prevention of marriages without the consent of the parties.

(c) Check illegal bigamy/polygamy

(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.

(e) Enabling widows to claim their  inheritance rights and other benefits and privileges which they are entitled to after the death of their husband.

(f) Deterring men from deserting women after marriage.

(g) Deterring parents/guardians from selling daughters/young girls to any person including a foreigner, under the garb of marriage.”

As noted supra, except four statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh registration of marriages is not compulsory in any of the other States. As is evident from narration of facts though most of the States have framed rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable. The legislative intent in enacting Section 8 of the Hindu Act is apparent from the use of the expression “for the purpose of facilitating the proof of Hindu Marriages”. As a natural consequence, the effect of non registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered.

Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.

Accordingly, we direct the States and the Central Government to take the following steps:

(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall  issue appropriate notification bringing the Rules into force.

(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.

Needless to add that the object of the said Rules shall be to carry out the directions of this Court.

(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.

(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.

The false registration of kidnapping charges on eloping couples is very well reflected in the NCRB data. Inspite of thesestates being lersser trafficking prone areas there has been a substantial increase of Kidnapping and abduction in these three states

There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment.

Writ Petition (Crl.) 208 of 2004

This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband’s relatives.

We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner’s brothers who were only furious because the petitioner married outside her caste.

We are distressed to note that instead of taking action against the petitioner’s brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner’s husband and his relatives. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.

This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or intereligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner’s husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.

We further direct that in view of the allegations in the petition (set out above) criminal proceedings shall be instituted forthwith by the concerned authorities against the petitioner’s brothers and others involved in accordance with law. Petition allowed.

In this case the High Court laid down the law to decide on complaints against the boy by the girl parents in the case of runaway couple:

In this case, a large number of cases of run away couples were decided by this Court with the following directions:

(i)Whenever any intimation is received by the SSP/SP of concerned District regarding the marriage of a young couple with a threat and an apprehension of infringement of the right of life and liberty by the police at the instance of the family members of one of the spouses, the SSP/SP concerned will consider the representation and will himself/herself look into the matter and issue necessary directions to maintain a record of the said intimation under Chapter 21 of the Punjab Police Rules.

(ii) On receipt of above said intimation of marriage by any police officer, necessary directions will be issued to the concerned Police Station to take necessary steps in accordance with law to enquire into the matter by contracting the parents of both boy and girl. The matter regarding age, consent of the girl and grievance of her family will be determined. In the eventuality of any complaint of kidnapping or abduction having been received from any of the family members of the girl generally the boy (husband) will not be arrested unless and until the prejudicial statement is given by the girl (wife). Arrest should generally be deferred or avoided on the immediate receipt of a complaint by the parents or family members of the girl taking into consideration the law laid down by Hon’ble Supreme Court in Joginder Kumar’s case (supra);

(iii)If the girl is major (above 18 years), she should not forcibly be taken away by police to be handed over to her parents against her consent. Criminal force against the boy should also be avoided.

(iv)So far as the threat to the young couple of the criminal force and assault at the hands of the private persons is concerned, it would always be open to the police to initiate action if any substantive offence is found to have been committed against the couple;

(v)In case of any threat to the breach of peace at the hands of the family members of the couple it will always be open to the State authorities to take up the security proceedings in accordance with law;

(vi)It will not be open to the “run away couple” to take law in their hands pursuant to the indulgence shown by the police on the basis of their representation sent to the SSP/SP of the concerned District;

(vii)If despite the intimation having been sent to the SSP/SP there is an apprehension or threat of violation of right of personal life and liberty or free movement, the remedy of approaching the High court should be the last resort;

(viii)In case there is an authority constituted for issuance of marriage certificate as per the law laid down by Supreme Court in Seema’s case (supra) in the concerned districts, the couple of so called `run away marriage’ should get the marriage registered in compliance with the directions of the Supreme Court and a copy of the same should also be forwarded to the police along with the representations or any time subsequent thereto.

(ix)Nothing said here-in-above will prevent the immediate arrest of a person who fraudulently entices a girl with false promises and exploits her sexually as per the statement of the girl.”

The Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnisation of child marriages.However, subsequently it was amended in 1949 and 1978 in order to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint Act, 1929 though restrains solemnisation of child marriages yet it did not declare them to be void or invalid. Since there was a hue and cry in the Society to prevent and provide more deterrent solutions by making stringent provisions to eradicate the evil practice of  solemnisation of child marriages, the present Act i.e. The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. The relevant provisions of the Act are as under :

Definitions – In this Act, unless the context otherwise requires-

(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(f) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.”

9. Punishment for male adult marrying a child – Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

10.Punishment for solemnising a child marriage – Whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

11.Punishment for promoting or permitting solemnization of child marriages –

(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend upto one lakh rupees.

12.Marriage of a minor child to be void in certain circumstances – Where a child, being a minor – (a) is taken or enticed out of the keeping of the lawful guardian; or  (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,

Interestingly the question that has been raised by the counsel for respondent No.4 was conspicuous by its absence in all the judgments which have been cited by the learned counsel for the petitioners. Therefore, the questions which arise for consideration of this Court are :

(i)In a case of run away marriage where the girl is admittedly minor, who has been enticed away from the lawful keeping of a guardian by her alleged husband against whom a case under

Sections 363/366-A IPC is also registered, whether such a marriage is void in terms of Section 12 of the Act?

(ii)Whether the persons who are in someway party to the such child marriage, are also liable for punishment under Sections 10 and 11 of the Act?

(iii)Whether a person who has enticed/taken away minor from the keeping of lawful guardian and against whom a case under the provisions of IPC has already been registered can claim police protection in the name of his life and liberty?

In this case the facts are not in dispute. Petitioner No.1 was a minor girl being 16 years and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act, 1875 every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. According to Section 2 (f) of the Act “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. According to Section 2 (a) of the Act, “child” means a person, who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age and according to Section 2 (b) of the Act, “child marriage” means a marriage to which either of the contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No.1 which falls within the definition of child and within the definition of minor being the age of 16 years and 2 months who has been enticed away out of the keeping of the lawful guardian cannot contract the marriage and her marriage shall be null and void.In view of those provisions, I have no other choice but to hold that marriage of petitioners No.1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate (Annexure P-1 undated) as void marriage and none of the judgments which have been cited by the learned counsel for the petitioners in support of their case, is applicable to the facts and circumstances of the present case because in the case of Ravi Kumar (supra), the Division Bench had considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of violation of 5 (iii) of the Act of 1955, the punishment is only 15 days simple imprisonment with fine of Rs.1000/- or both but the marriage is not illegal or void. However, much water has flown thereafter and now for the contravention of Section 5(iii)of the Act of 1955, the punishment under Section 18 (a) has been enhanced to 2 years rigorous imprisonment and/or with fine upto Rs.1 lac or with both. Moreover, the case of Ravi Kumar (supra) was decided on 5.10.2005. At that time, the Act was not in force as it did not receive the accent of President of India and has been notified w.e.f 1.11.2007. Therefore, the learned counsel for the petitioners cannot take the advantage of the observations made in the case of Ravi Kumar (supra). Insofar as the case of Ridhwana and another (supra) is concerned, in that case also this Court had prima-facie found that there is evidence collected by the police that girl was more than 18 years of age but still while parting with the judgment for the sake of argument, it was decided that even if girl is 16 years and 2 months age and has married with her own sweet will, no offence is said to have been committed. This Court had no occasion to refer to the provisions of Section 12 of the Act. Therefore, the ratio laid down in these cases is not applicable. The case of Lata Singh (supra) itself talks about the persons who were major at that time when they got married and on that premise, it was held that if the persons are major and have got married on their own, their life and liberty should not be threatened by the persons who are against their marriage. Hence, the said judgment is also of no help to the present petitioners. In the case of Pardeep Kumar Singh (supra) this Court had laid down as many as nine directions but in none of the directions it has been provided that if the girl is minor and has been enticed away for the purpose of marriage by alleged husband, the said marriage is valid. Hence, I have found that provisions of Section 12 of the Act would apply with full rigour in the present case and the marriage which has been solemnised by petitioner No.2 with petitioner No.1, who is child and a minor, is unsustainable in the eyes of law and is thus, declared as void. The second question involved in this case is that whether the persons, who have performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No.1, is also equally liable and for that purpose, I direct the state to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take the benefit of the constitutional remedy of protection of their life and liberty on the pretext of their void marriage. The life and liberty of petitioners No.1 and 2 is only endangered and is being threatened by respondent No.4 so long their marriage legally subsists but once their marriage is declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/parents and a case has been registered under Sections 363/366-A IPC, no protection under Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to be granted to a fugitive of law.

 “In such cases of inter-caste or inter religion marriage the Court has only to be satisfied about two things:

(1) That the girl is above 18 yeas of age, in which case, the law regards her as a major vide Section 3 of the Indian Majority Act, 1875. A major is deemed by the law to know what is in his or her welfare.

(2) The wish of the girl.

In the circumstances, we direct that nobody will harass, threaten or commit any acts of violence or other unlawful act on the petitioner, Chanchali Devi/Mehvesh Anjum and the petitioner’ family members and they shall not be arrested till further orders in connection with the case in question. If they feel insecure, they can apply to the police and, in such event, the police shall grant protection to them.”

Government Officials will be held responsible for Honour Killings – Supreme Court

In CRIMINAL APPEAL NO._958__of 2011  Arumugam Servai Vs  State of Tamil Nadu  ( Respondent) The Bench of Justice Markandey  Katju and Justice Gyan Sudha Mishra  has passed a order on the Honour Killings being reported across India. The bench stated that    in   recent   years    `Khap   Panchayats’   (known   as  katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way  on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people.    We   are   of   the   opinion   that   this   is   wholly  illegal   and   has   to   be   ruthlessly stamped   out.   As  already   stated   in  Lata   Singh’s  case   (supra),   there   is  nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment.  Only in this way can we stamp out such acts of barbarism and feudal mentality.  Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.

Hence,   we   direct   the   administrative   and   police   officials to   take   strong measures   to   prevent   such   atrocious  acts. If   any   such   incidents   happen,   apart   from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against  them departmentally if they do not (1) prevent  the incident  if it has not   already   occurred   but  they  have   knowledge   of   it   in   advance,   or   (2)   if   it   has occurred,   they   do   not   promptly   apprehend   the   culprits  and   others   involved   and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or indirectly accountable in this connection.

Copy   of   this   judgment   shall   be   sent   to   all Chief Secretaries,   Home Secretaries and Director Generals of Police in all States and Union Territories of India with the direction that it should be circulated to all officers up to the level of District Magistrates   and   S.S.P./S.P.   for   strict   compliance.   Copy   will   also   be   sent   to   the Registrar  Generals/Registrars  of all High Courts  who will  circulate it to all Hon’ble Judges of the Court.

It is time to stamp out these barbaric, feudal practices which are a slur on our nation.

 The Supreme Court in another Judgement Bhagwan Dass vs State of NCT of Delhi Criminal Appeal 1117 of 2011 again reiterated that  in our country unfortunately ‘honour killing’ has become common place, as has been referred to in our judgment in Arumugam Servai vs. State of Tamil Nadu Criminal Appeal No.958 of 2011 (@SLP(Crl) No.8084 of 2009) pronounced on 19.4.2011. Many people feel that they are dishonoured by the behaviour of the young man/woman, who is related to them or belonging to their caste because he/she is marrying against their wish or having an affair with someone, and hence they take the law into their own hands and kill or physically assault such person or commit some other atrocities on them. We have held in Lata Singh vs. State of U.P. & Anr. (2006) 5 SCC 475, that this is wholly illegal. If someone is not happy with the behaviour of his daughter or other person, who is his relation or of his caste, the maximum he can do is to cut off social relations with her/him, but he cannot take the law into his own hands by committing violence or giving threats of violence. We would like to state that ‘honour’ killings have become commonplace in many parts of the country, particularly in Haryana, western U.P., and Rajasthan. Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. We have held in Lata Singh’s case (supra) that there is nothing ‘honourable’ in ‘honour’ killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal minds. In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honour’ killings should know that the gallows await them.Let a copy of this judgment be sent to the Registrar Generals/Registrars of all the High Courts who shall circulate the same to all Judges of the Courts. The Registrar General/Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/Additional Sessions Judges in the State/Union Territories. Copies of the judgment shall also be sent to all the Chief Secretaries/Home Secretaries/Director Generals of Police of all States/Union Territories in the country. The Home Secretaries and Director Generals of Police will circulate the same to all S.S.Ps/S.Ps in the States/Union Territories for information.

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