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Watch: ‘Shimla Police Nuisance’ on rise:  Drunk, bullying, abusive cops becoming common sight   

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Flashback-13-Occasions-Shimla-cops-officers-made-HP-Police-Dept-ashamed

What all policemen and officials must understand and mind is the fact that no one forced them to join police forces if they can’t contain their own frustration and stress to themselves. It must not be unleashed on common people, who are mostly helpless and too scared to raise voice against police misconduct or assaults.

SHIMLA- After receiving regular complaints from people of Shimla regarding growing unfriendliness and unnecessary hostility in policemen/officers of Shimla Police. Himachal Watcher is trying to bring the issue to the attention of HP Police Department and HP Government. All of us would agree that all policemen are not same whenever instances of ‘anti-social’ activities, misuse of uniform, or bullying etc surface media.  There are obviously good people who actually deserv police uniform and ranks. We would also agree that job of a policeman is hard and challenging. They serve in harsh conditions and their stress levels are higher than average citizen.  However, in case of Shimla Police, such cases are very frequent.  We are posting this compilation of instance when Shimla cops turned into gundas and displayed unnecessary hostility or found drunk, creating nuisance, or harassing people for no reason.

What all policemen and officials must understand and mind is the fact that no one forced them to join police forces if they can’t contain their own frustration and stress to themselves. It must not be unleashed on common people, who are mostly helpless and too scared to raise voice against police. Police staff must follow the oath they take while joining duty. The oath clearly says that a policeman must preserve the dignity and must respect the rights of all individuals, to discharge duties with integrity and to promote understanding and conciliation, and to exercise their authority as a police staff in the manner intended by the law. Otherwise, such policemen have choice to quit if they don’t like their job.

Also Read: Shimla cops in dire need of lesson on decency and respect for human dignity

Moreover, the police department must take responsibility of monitoring stress levels and mental health of its forces regularly. It is very obvious to develop behavioral abnormalities in cops due to exposure to highly stressful and unpleasing sights and working conditions.

In no way such inappropriate and unethical acts as shown in the video can be justified as people friendly? The policemen used to behave decently, at least, under the command of previous SP Shimla Abhishek Dular. But soon after DW Negi took over the seat, sight policemen and officers equally creating nuisance and indulging in violence.

Recently, Amit Thakur, previous DSP Shimla Traffic Police, was transferred for allegedly indulging in street-fight with cab drivers under influence of alcohol.

A few days later, another drunk officer created nuisance on the Shimla Mall and halted two ambulances carrying patients.

Before that, an informant was beaten brutally by Boileauganj SHO Veeri Singh for giving information about a fatal street fight. The informant was beaten because police reached hours later on scene and did not find anything. He was also transferred after locals protested against such condemnable and criminal act by police officials.

If we go further into previous such incidents then, Shimla policemen were caught on camera beating tourists at the Victory Tunnel in public view and so on.

Despite regular complaints of such instance, Himachal Pradesh Police Department has not taken any step to curb indiscipline and growing anti-social attitude of Shimla police including officers. There is no doubt the capital need new SP, who better and responsible leader.

Madan has studied English Literature and Journalism from HP University and lives in Shimla. He is an amateur photographer and has been writing on topics ranging from environmental, socio-economic, development programs, education, eco-tourism, eco-friendly lifestyle and to green technologies for over 7 years now. He has an inclination for all things green, wonderful and loves to live in solitude. When not writing, he can be seen wandering, trying to capture world around him in his DSLR lens.

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Forest Rights Himachal’s Key Electoral Issue: Congress, CPIM Promise Justice, BJP Chooses Silence

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Himachal Pradesh Lok sabha Elections FRA ACt

Shimla-As the polling date for 17th Lok Sabha elections draw closer in Himachal Pradesh, voices against the non-implementation of the Forest Rights Act 2006 (FRA) continue to gather momentum from different corners of the state, making it loud and clear that FRA will be one of the central poll issues here.

On May 3 2019, Himachal Van Adhikaar Manch, a platform of community organisations and activists, had submitted a peoples’ demand charter on FRA to all the contesting political parties of the State – INC, BJP and CPI. 

Individual and community forest rights recognized under the Forest Rights Act 2006 hold paramount importance for the majority of the population in Himachal given the dependence on forestland, which forms 70% of the State’s geographical area. Over the last 3 years, voices demanding implementation of FRA have grown louder in the state and yet the government, especially the administrative officials have been lethargic and non-committal in their responses.   

The Forest Rights Act was passed by the Parliament of India in 2006, with the aim of protecting the interests as well as providing legal recognition and recording the rights of the communities dependent on forest land for their bonafide livelihoods. 

Section 3(1) of this act entails the recognition of rights over forest land for agriculture and habitation for ‘bonafide livelihood’ needs (not just for subsistence purposes but also for earning an income) and includes both Individual rights over land under occupation and Community rights over use, conservation and management of community forest land resources. Further, the Section 3(2) of the act provides rights to the Gram Sabha to provide consent for diversion of less than 1 hectare of forest land (involving felling of not more than 75 trees) for 13 types of village development activities. 

“On one hand, 1900 cases have been so far sanctioned by the government under section 3(2) of the FRA whereas, though 17503 FRCs have been formed, only 129 claims have been issued titles so far under the Sec 3(1) of the Act.”

 “In the 2018 Vidhan Sabha winter session at Dharamsala, the government promised that it will take effective and urgent steps for speedy implementation of the act. The State Level Monitoring Committee in its meeting in January 2019 had also positively taken upon the endorsements by HVAM reiterating similar promises but on the ground, the officials continue to be unaware of the provisions of the act,”

 remarked Akshay Jasrotia convener, HVAM.

Instead of providing any training and awareness on the act, in February the district administration of Kangra gave Panchayat Secretaries a 90-day deadline to get claims from the FRCs. In absence of any awareness about the act, FRCs are being made to send ‘nil’ or ‘zero’ claims certificates as had been earlier done in the districts of Mandi and Chamba.

 Adding further, Shyam Singh Chauhan, a member of the District Level Committee (Mandi) formed under the Act and also the Zila Parishad Member from Karsog Mandi, said

“Lakhs of occupants had applied under the 2002 policy of Regularization of Encroachments. Further, revenue and forest records too have recorded occupations on forestland for agriculture, habitation, and cattle rearing, but people still hold no legal titles. They are all eligible to claim for their Individual rights under this act but have been blatantly denied their constitutional right.”

Laal Hussain, a representative of the Gujjar Community of nomadic livestock rearers from Chamba stressed,

“2 lakh people of different pastoral communities who sustain by grazing livestock in pastures, categorized as ‘forest land’, are eligible for community forest rights under FRA, and via this charter, we want to communicate that this election we will only support those who speak of our rights and interests.”

“FRA has emerged as an important determinant of electoral polls this term not just in Himachal but across the country,”

added Prakash Bhandari of Himdhara Collective.

Whereas the national manifestos of Indian National Congress and CPM have explicitly stated that it will not allow unjust eviction and will implement the Act in letter and spirit, BJP, on the other hand, has remained mute on this issue.

“In Himachal, though people are looking out for the priority given to FRA by contesting electoral candidates from the State,”

added Bhandari.

 A very big percentage of the population has already been traumatized by the state governments’ betrayal on the promises of regularization of land under occupation, and now it lives under constant paranoia of eviction. This became evident when on 11th April, a public gathering of more than 600 in Mandi together gave the slogan “Himachal Ki Janta Kare Pukar, Humein Chahiye Van Adhikar”.

Jiya Lal Negi, convener Zila Van Adhikaar Samiti from the tribal district of Kinnaur, added

“Kinnaur has had the highest number of claims but these legitimate claims have been delayed on frivolous and illegal grounds going to the extent of questioning our identities as tribals and forest dwellers.”

Hit by the similar apathy of government and bureaucratic hurdles in the long struggle for FRA implementation, on 23rd March in a press conference, Save Lahaul Spiti, a civil society group from Lahaul had appealed for election boycott from their area. Similar public appeals of boycott or exercising the NOTA options have echoed across many tribal villages in the State.

Take for instance the case of Lippa village in Kinnaur.

“Despite a long tiring struggle for our individual and community forest rights, we have faced continued injustice at the hands of the government. What other way do we have left to show our dissent in a peaceful and democratic way but to boycott the elections?”

raised the residents of Lippa in their meeting with the district administration last week.

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HP CM Jairam Makes Scandalous Comments on Judiciary, Says It’s Taking Decision Without Considering Merit

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HP Cm Jairam Controversial statement on Judiciary

Shimla-The courts are the guarantors of justice, whose role is fundamental in a State based on the rule of law, and it is imperative that they must enjoy public confidence. They must accordingly be protected from the destructive attacks that are unfounded.

In this day and age of robust media, the courts and judges are used to being criticized and take it on the chin. According to the settled law, one can freely criticize the judgments of the court. What is not permissible is to make statements that are  “an attempt to influence the court” and  “purported to scandalize the court”. 

The parliamentarians, especially, have a duty as elected representatives, to respect the independence of the courts and to ensure that any comments made are well-informed. As what is at stake is the “right to a fair trial” of a litigant and public confidence in the “administration of justice”.

Scandalizing the court’ is a convenient way of describing a statement which, although it does not relate to any specific judge, is a scurrilous attack on the judiciary as a whole, which is made to undermine the authority of the courts.

One such scurrilous attack undermining the Majesty of the Hon’ble Court came from none other than the Hon’ble Chief Minister of Himachal Pradesh Jairam Thakur on the State Administrative Tribunal (SAT).  As reported in Tribune News Service, dated May 14, the CM said:

“Though it would not be appropriate for me to comment on the functioning of the SAT, it has been witnessed that decisions are made without considering the merit of the case. There is very strong opposition amongst the ministers, party legislators, other elected representatives and organization leaders about the functioning of the SAT. So after holding deliberations with party MLAs, post elections, we could take a call on its future,

The Chief Minister said it was immaterial in whose term the Chairman or the Members of the SAT are appointed but the decisions must be fair and impartial. He did not mince words in stating that employees were getting stays on transfers without any merit. reported the newspaper.

The attributed statements appear to bring the court into disrepute, it asserts that the judges of the Tribunal are deciding cases without applying the law.

The statement refers to “Transfer Matters” and how they are not being decided to the liking of the Government. The statement implies that Government employee’s ‘transfer disputes’, which he raises against the Government, in the Tribunal, are not being decided in a way the Govt./ministers/organizational heads prefer. This is also given as a sole reason to shut down the tribunal in the future.

The attributed statements, on their face,  appear to influence the court in its decisions in ‘transfer matters’ and to interfere with the due administration of justice in the State. Comments conflate “correctness of decisions” with the satisfaction of political parties/ ministers/organizational heads. Further, the comments also are indirectly implying that the Tribunal is not “fair and impartial” in these matters.

The statement imputes unfairness when it says that “cases being decided without there being any merit’. This amounts to lowering the authority of the court and it certainly interferes with the performance of judicial duties. The minister has failed to respect the “doctrine of separation of powers” and breached the principle of “independence of the judiciary”.

Scandalising the Court Amounts to Contempt

The Chief Minister is not the first Chief Minister to make such scandalous remarks against the Courts. The famous case regarding a court being “scandalized” is that of E.M.S Namboodiripad v. T.N. Nambiar (1970). Namboodiripad, the then Chief Minister of Kerala had made a comment on how Marx & Engels considered the judiciary as an instrument of oppression and also that judges were guided and dominated by class hatred, class interests, and class prejudices. Found guilty of contempt by the Kerala High Court, the Chief Minister appealed to the Supreme Court, where a bench led by the Chief Justice of India, Hidayatullah, upheld the conviction and imposed fine. The judgment states,

“Judged from the angle of courts and administration of justice, there is not a semblance of doubt in our minds that the appellant was guilty on contempt of court. Whether he misunderstood the teachings to Marx and Engels or deliberately distorted them is not to much purpose. The likely effect of his words must be seen and they have clearly the effect of lowering the prestige of judges and courts in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification. We uphold the conviction.”

When the judiciary as such or a Judge, in particular, is attacked in this manner and the attack contains various kinds of imputations, such contempt is treated as scandalizing the court. The Oxford English Dictionary defines the word “scandalize” as “offend the moral sensibilities of; horrify or shock by a (real or imagined) violation of morality or propriety.”

To allow an insult and belittlement of an “institution of justice” is to expose the administration of justice to the grave danger of inhibiting the appreciation of the people of our courts, and the necessity of people confidently having recourse to our courts, for the settlement of their disputes. The faith in the judiciary is of prime importance.

It would be apt at this juncture to remember the wise words of Lord Denning the “best-known and best-loved judge of this, or perhaps any, generation” who said:

“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.

All we would ask is that … those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

No doubt the courts, while upholding the laws and enforcing them, do give support to one side but they do not do so out of any impure motives. They do not range themselves on-the-side of the Government when the law does not warrant so. To charge the judiciary as unfair and impartial, to say that the judges are not guided by law and cases are not being decided on merit, instinctively favouring the Government Employees, is to draw a very distorted and poor picture of the judiciary.

Whatever your political views, support your local judges and the institutions of justice. Its the only thing between you and the oppression by the powerful.

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Saving Gudiya – Laws, Rights of Victim, Role of Govt, Judiciary, and Society

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Saving Gudiya- Rights of rape victim and laws

It is seen in numerous cases of rape/sexual assaults, which we come across as lawyers, that victims experience confusion and uncertainty about what to do, what to expect and the logic behind each of the steps in the pre-trial as well as the trial stages. The lack of legal orientation, guidance creates enormous anxiety, leading to undue exploitation for gaining elementary legal information. Simple things as, providing FIR on time, providing companion during deposition or providing compensation or, free medical treatment are not made available.

To counter this exploitation, in this series of articles (Part 1,2 & 3), the endeavour of the author will be to inform in brief, the law regarding rape, how it has evolved through judicial decision, legislative enactments/ amendments, and executive instructions.

The articles will focus on the special care which needs to be taken with respect to the rights of the victims, by the Authorities and the Society.

The series of articles will also discuss different guidelines for sensitizing those who will come in contact with the victim. The problems faced by the victims (both pre and post-trial) and solutions to these problems also will be attempted.

Part -1 –
Victim, FIR & Medical Examination

The Victim

Rape victims deserve more from the legal system and society than just a prosecution. Rape causes a tidal wave effect on a victim’s life. The profound emotional, physical, economic, and social harm to the victim affects a broad range of life activities. The response to rape should be to

  • prevent the acute trauma of rape from triggering a long-term, downward economic and social spiral for the victim. and
  • to preserve the integrity of the victim’s privacy and social relations.

28 studies of women and girls aged 14 and older who had had non-consensual sex obtained through force, threat etc found that 60% of these victims didn’t acknowledge that they had been raped.

The major reason for this is “fear of stigma” and also “the body’s automatic response to trauma”. The victim needs time to acknowledge what’s happened to them.

Many Centres which are made for the survivors note that majority of the cases are reported much after the actual assault took place. Studies show that many victims, dropped the case, to protect their privacy, and ensure their emotional and physical safety.

The job of the responsible society is to support the victim and be sensitive to her mental and emotional needs throughout various stages of recovery.

FIR

The author wishes to start with giving a brief outline of settled law regarding FIR and Medical Examination which are the first steps after the assault. This is a critical stage where the victim is vulnerable, traumatized, stigmatized, and in need of immediate support. This topic is made the starting point, having in mind the alleged Shimla rape case and its present status.

The different processes in the pre-trial stage include the registration of the FIR,  the medical examination, arrest, S.164 statement to the Magistrate and cognizance, all must proceed promptly one after the other.

Registering an FIR is the first step in the process of setting the criminal justice machinery into motion officially. Without an FIR, criminal redress cannot be obtained. This is done under S.154, of the Criminal Procedure Code of India.

The Law, Know Your Rights;

  1.  It is mandatory for a police officer to file the FIR, failing which he may be punished with imprisonment for a period of 2 years.
  2. Police cannot blame the victim for her condition,
  3. Police cannot encourage the victim to reconsider or compromise the case.
  4.  In case the complainant approaches a police station within whose jurisdiction the offence does not fall, the police station can still not refuse to register the FIR. As per Advisory No. 15011/35/2013-SC/ST-W, issued by the Ministry of Home Affairs, they must take down the complaint as a ‘Zero FIR’, and then forward it to the relevant police station. The complainant is also entitled to a free copy of the FIR.
  5. FIR, cannot,  in any condition be prompted by the police.
  6. Victims have to be provided with a copy of the FIR, it is her statutory right.
  7. Police have to record the Experience of victims on getting her FIR registered, the police’s dealing with her can be probed into by the courts at the appropriate stage
  8. Police have the duty of Informing the victim, the procedure and her rights, at every stage and in all her dealings with them.

Medical Examination

The medical examination follows the registration of the FIR. The purpose of the examination under the amended law is to

  1. Provide first aid to the victim,
  2. Psychological counselling to cope with the trauma associated with the assault,
  3. Recording bodily injuries and condition for evidentiary purposes.

The Guidelines and Protocols for Medico-Legal care for victims of sexual violence, provide comprehensive instructions for the medical practitioner, family and the justice system.

A rapport must be established between Health professionals dealing with the case and the victim. Further, the medical examination must also include psychological counselling to help her cope with the aftermath of the assault, including in relation to the social and cultural notions of stigma and shame, within her family or community.

The Law, Know your Rights;

  1. An enabling atmosphere should be created and trust be established and the victim should be informed of all available resources, referrals, legal rights.
  2. The first step is to obtain informed consent/refusal from the victim for every step of medical examination and provide first aid
  3. Absence of signs of struggle DOES NOT signify consent.
  4. In cases of adolescents, age also needs to be verified.
  5. Whether drug/alcohol was administered has to be tested.
  6. If the victim is female then female doctors are to be preferred. For a transgender, the choice should be given to the victim.
  7. Police are not allowed in the examination room, however, a relative can be present if the victim so requests.
  8. Medical treatment is the first priority. A special room must be made available to maintain privacy. The hospital should not insist on admission until there is a requirement of observation/treatment.
  9. All services to victims should be free of cost, medicines prescribed must be available in the hospital, or the victim must be compensated.
  10. A copy of all documentation must be provided free of cost.
  11. While performing a forensic examination a medical opinion has to be formed on whether a sexual act was attempted or completed, whether it was recent and any harm has been caused to the victim’s body.
  12. If the victim comes to the hospital on their own without filing a report, it is the duty of the doctors to inform the police and provide medical treatment.
  13. A per-vaginum test or the 2- finger test should NOT be carried out and the status of the hymen is irrelevant to the factum of the sexual act. (More on this in subsequent articles)
  14. A urine pregnancy test has to be performed and blood has to be collected for HIV status and other tests etc. The type of evidence would change depending upon: nature of sexual violence, time lapsed between the incident and the medical examination, whether the victim has bathed/washed.
  15. Testing should be done for sexually transmitted infections.
  16. Emergency contraception may also be given.
  17. Victims should be informed of follow-up services and all follow-ups should be documented.
  18. Psycho-social care must be ensured and first line support be offered.
  19. If the victim reports with a pregnancy resulting from an assault she is to be given the option of abortion and protocols of MTP are to be followed.
  20. Stages of the examination should be explained.
  21. To address the victim’s emotional wellbeing crisis counselling must be encouraged. Suicidal tendencies must be assessed. Friends and family should be involved in the healing process of a victim. Reactions and the range of feelings which are common after a traumatic experience must be explained.
  22. Safety assessment must be done, and if the survivor is unsafe alternate arrangements to stay must be offered. If not, a safety plan must be made.

Health professionals should engage with family and friends to discuss ways of promoting a survivor’s well-being.

The medical examiner has to pack, seal and sign over the evidence to the police. One copy of all the documents has to be given to the victim. The hospital must ensure a designated staff.

Sexual assault victims should be understood as suffering from a myriad of brutal consequences that impact their civil wellbeing and they are at risk of re-victimization by the criminal justice process. Lawyers scholars, media must step forward and take up their struggle, and support them by sensitizing all relevant actors in society.

The next part will deal with the Legislative reforms, Court cases, and other stages of the trial.

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