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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 author will endeavour 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 concerning 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 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 is 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.

(The post was first published in https://lawumbrella.wordpress.com/ )

Deven Khanna is a Lawyer, practicing at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles, he can be contacted at 7018469792 or at khannadeven@gmail.com. The personal blog is at https://lawumbrella.wordpress.com/

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The Story of Himachal’s ‘Friendly Leopard’ from the Viral Videos

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Viral Himachal Leopard Cub Video

Kullu-Several videos of the ‘leopard incident’ in Tirthan Valley, Kullu district, Himachal Pradesh, are going viral in India and would soon spread to international media. Anyone who is watching these videos is wondering as to how a wild predator who avoids humans, habitats, roads etc. and is a shy feline happened to be playing with people amid a huge gathering of people around him, traffic jam, and a lot of noise. It’s just like a fantasy to see a wild animal having such close, friendly contact with humans despite not being familiar with humans. Not only it was dangerous for the animal itself but also the ignorant people chasing him with mobile cams in their hands. That’s what we could infer from the response given by forest officials after watching the behavior of the people in these video clips. Himachal Watcher has also compiled several video clips of the incident.

A lot of our curious readers had been writing regarding the incident, so we talked to people who actually have knowledge regarding wildlife and animal behaviour in order to find a possible explanation for this rare leopard-man contact. It turned out, opposite to the fun people were having with this animal, it was a sensitive matter for the wildlife officials. 

We talked to the Divisional Forest Officer (DFO), Banjar, Praveen Thakur and HPFS, Sachin Sharma, who is currently posted as DFO, Great Himalayan National Park (GHNP).  Readers had been asking us questions; Where did it come from? How did it become so friendly with humans? What happened to the cub later? So we requested DFO, Banjar, Praveen Thakur, to answer these and some other important questions related to the incident. 

What you already know is that a leopard came out of the wild onto the road near Sarchi – Nagladi bridge in Tirthan valley on January 14. This belt comes under the Great Himalayan National Park. People stopped their vehicles and came out to record videos. The leopard was seen playfully grabbing different people. A traffic jam and a huge gathering of people, mostly locals, were seen in the videos. It was something that people had never seen, at least in this part of the world. 

The DFO, GHNP, also admitted that this is highly uncommon to see such ferocious wild predator getting so friendly within a few hours after contact with humans. But in this case, it was just a cub, aged about seven to eight months. 

“I haven’t seen or heard of such an incident where a wild leopard became so friendly with humans that he started to play with them. These animals are generally shy and smartest in the feline families. They avoid humans and their habitats,” he said.

When asked whether a cub of its age, considering strength and growth of nails and teeth, was capable of inflicting harm or not, he said that on sensing a threat it can. He condemned the behaviour of the people as it was not only dangerous for them but also the animal.

“Amid such a chaotic environment, the behaviour of any wild animal would be unpredictable. If not intentionally, the cub could have inflicted minor injuries to someone while playing. In that case, the reaction of people could have been hostile and things could have gone wrong,” he said.

In his opinion, this rare instance can’t be termed as a result of man-animal conflict. No other instances where these animals attacked or caused harm to humans in this region have been reported, he said.

The DFO, Banjar, Praveen Thakur said he was also surprised but also gave an explanation.

“It was an eight- to-nine-month-old cub, who got separated from its mother. The mother with its cubs lives in a nearby forest in a territory of four to five square kilometers. There was an incident of fire in the area and the cub, most probably, got separated from the mother due to it,” the DFO told Himachal Watcher.

Regarding the friendly behaviour of this cub, he said,

“Several videos are going viral on social media where the cub was looking comfortable and friendly with humans amid a crowd. Adult leopards show behavioural changes before becoming mature animals. They mostly avoid humans. But it was not an adult leopard, but just an 8 to-9-month-old cub,” he said.

“However, the cub did not get friendlier at the starting and was avoiding vehicles. As per my knowledge, for the first few hours, the cub was seen roaming around in a distress and avoiding humans and vehicles. (Watch Video). Initially, a couple of vehicles stopped to see the cub. As it was just a cub unable to hunt and survive at its own, it got friendlier after sensing that humans were not harming and, thus, were no threat. Cubs can get friendly on sensing no threat. Similarly, cubs and young offspring of several other animals can get friendlier.”

If watched video clips carefully, the cub was curious and trying to explore this new environment. But at the same time it was distressed as it had gotten separated from its mother and was in a environment not natural for it.

Citing a previous case, the DFO said,

“Not long time ago, we had rescued a bear cub. He had also become friendly within no time.”

“In the present case, we have identified the family. Mother lives in the forest not far from our Rest House. The area falls under the Great Himalayan National Park and is not far from the road. The family is not entirely unfamiliar with traffic and human movement,” he told HW.

In the current incident, he said that it’s a case of separation of the cub from mother.

A forest fire was reported in the territory of this family, and the mother or the cub got stuck somewhere due to it, resulting in a separation.”

He confirmed hearing calls from its mother. Mother would make a particular sound as a form of a call when trying to find its cubs, he explained.

He said that the department received the information regarding the presence of this cub among humans a little late. On receiving information, a rescue team was dispatched, which reached the spot within half-an-hour.

The team caught the cub with a net without much difficulty, he said. As it was healthy and had no injury or disease, it was released into its natural habitat as guidelines say that in such a case the animal should be released to its natural habitat as soon as possible to reduce distress.

He also said that teams are continuously monitoring the movement of the cub to ensure that it reunites with its mother and do not venture into human habitats or comes near the road again.

The mother and the cub are only a couple of kms distance apart. The cub would also make calls, which would help the mother find it, he said.

He rejected speculations of this cub being raised as a pet.

“His mother would have not been making calls if the cub was raised as a pet. These calls imply that the cub got separated very recently,” he said.

“After consulting wildlife experts, we have decided that in case the cub is seen venturing into human habitats or places having human presence and displaying same friendly behaviour again, then it would have to be captured and sent to the rescue centre in Gopalpur in Kangra district,” he said.

If it would grow up while remaining in friendly contact with humans, it might not get capable of attaining hunting skills to survive at its own in the wild. Moreover, these animals could inflict grieve injuries unintentionally while playing.

However, we are certain that the mother would soon find the cub. We will keep monitoring it until the mother stops making distress calls, he said.

On being asked whether this cub was capable of hurting or injuring a human, the DFO said that cubs of this age lack hunting skills, and it’s mostly after one year of age that the mother starts training them.

The DFO, however, expressed more concern over the behaviour of the people than that of the animal.

Most of these people were locals and they are often made aware about dos and don’t on an encounter with a wild animal.

“As soon as I came across the videos, I contacted a few people who were present on the spot including the Pradhan of the area and told him to ask people to stay away from the cub and to not chase him for photos and videos. I had even spoken to the local police to help manage the situation as people were not even listening to our Rangers,” he told HW.

“It was a complete nuisance that the people were creating by causing a traffic jam, chasing the cub, and trying to get close to it. We are trying to identify some people visible in the video deliberately going near the cub,” he added while informing that there are provisions of three to six months of imprisonment for those creating nuisance for or teasing wild animals, especially those protected. Leopards are protected under Schedule 1 of the Indian Wildlife Protection Act.

He urged the people to avoid wild animals if they happen to encounter them. Stay away from them, do not gather around and obstruct their path. Left alone, on sensing no threat, these animals eventually find their course and go back to their natural habitat, he said. In the current case, the situation would have led to chaos if it was a mature leopard, he said.

Even if you want to watch the animal then, at least, maintain a safe distance or remain in the vehicle, he added.

When asked whether this instance can be related to man-animal conflict and is a matter of concern or not, the DFO said,

“This can’t be termed as a matter related to man-animal conflict and isn’t a matter of concern as long as animals do not enter human habitats and kill livestock or attack humans. Moreover, such judgement can’t be made based on a single instance.”

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Farmers Welcome SC Order to Stay Implementation of Farm Laws But Suspicious About Formation of Committee

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stay on farm laws

New Delhi: The Supreme Court on Tuesday stayed the implementation of three contentious farm laws passed by the Centre Government, which has led to huge protest from hundreds of farmer groups. The stay implies that the Centre Government can’t take any executive actions based on these laws till further order. 

“The implementation of the three farm laws (1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and (3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, shall stand stayed until further orders,”

said the order passed by a panel headed by the Chief Justice of India (CJI) Sharad A Bobde on Tuesday.

Further, the MSP system would continue as it was before the enactment of the laws.

“As a consequence, the Minimum Support Price System in existence before the enactment of the Farm Laws shall be maintained until further orders. In addition, the farmers’ land holdings shall be protected, i.e., no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws,”

the order said.

With this order, the SC hoped to end the ongoing impasse over the contentious farm laws.

The farmers who have been protesting for over the last 45 days, welcomed the SC’s order.

However, at the same time, the Apex Court ordered the formation of a committee to listen to both sides and make recommendations to the court. The committee, which would comprise of Agriculture economist Ashok Gulati, Bhupinder Singh Mann, Dr Prmod Kumar Joshi, former director of National Academy of Agricultural Research Management), and Anil Ghanwat from Shetkari Sangathan, was asked to submit its report in the court within two months.

The CJI, in its order, speaking about the purpose of this “extraordinary” order, said,

“While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers’ bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others.”

Though a stay on the implementation of laws was welcomed by protesting farmers, several unions said that they would not accept this committee and the protest will continue. They said the Government is trying to form this committee through the Supreme Court. This committee, they said, included persons who have already been justifying the farm laws. They said the purpose of this committee is nothing more than creating a diversion. The protest would be armed up and only a repeal of laws would be accepted, the unions said. 

At the same time, the SC was undeterred with these statements and said there is nothing that can stop it from forming a committee. The SC asked the farmers to cooperate with the committee.

On the other hand, the Government was more concerned about that other political parties would think of the stay as a “political victory”.

Further, the Government has also expressed apprehension about security breach due to the tractor rally planned by protesting farmers on the Republic Day.

K.K. Venugopal, Attorney General, told the court that there are reports that the farmers’ bodies may take out a tractor rally on January 26, 2021, disrupting the Republic Day Parade and celebrations However, the same was stoutly denied by Dushyant Dave, learned senior counsel appearing for a few of the farmers’ bodies on the ground that at least one member of the family of each of the farmers from Punjab is in the Army and that they would not disrupt the Republic Day celebrations.

The Court, in its order, said that several rounds of talked between farmers and the Government have failed and there was no solution in sight.

“The situation on ground is: (i) that senior citizens, women and children are at site, exposing themselves to serious health hazards posed by cold and covid; (ii) that a few deaths have taken place, though not out of any violence, but either out of illness or by way of suicide,”

the order said.

The court also lauded the farmers for carrying on the agitation peacefully without any unwanted incident.

Further, the Court orders also mentioned separate petitions filed by individuals/residents of the NCR complaining of blockade of roads/highways leading to Delhi and terming it an infringement of the fundamental rights of other citizens to move freely and to carry out trade and business.

Stay on 3 Farm Laws and Formation of Committee: Read Full Order of Supreme Court

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Inflation, Increased Cost of Food Items, Ration, Crumbling Health Infrastructure, and 100 Gram Sugar: Govt’s Diwali Gift to People

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hp govt's gift on diwali 2020

Shimla-The Himachal Pradesh Government has collected over Rs. 86 crores in the name of the COVID-19 relief fund, but only Rs 25 crore was spent. It was stated by Sanjay Chauhan, former Mayor of Shimla and a senior CPI (M) leader. It’s a shocker considering negligible relief measures and the state of health infrastructure crumbling amid a pandemic. The unpreparedness of the state government to deal with community spread of coronavirus is coming to light as its COVID-19 hospitals have begun to run out of beds in isolation wards. Two major medical facilities -Indira Gandhi Medical College & Hospital and DDU Hospital in Shimla- are packed to their full capacity. 

What’s not shocking is that Chief Minister did hail the Prime Minister, exactly as he was told, claiming that the nation is out of COVID-19 crisis. It suggests that the Chief Minister is little aware of the surge in cases and over 400 COVID-19 deaths, of which 93 were reported during the last 12 days of November month. Yesterday, the state has reported over 700 cases with six deaths, which is alarming.

“Prime Minister Narendra Modi deserves all praise for his dynamic leadership as he is successfully steering the Country amid all troubles and difficulties. He has successfully brought the Nation out of Covid-19 crisis,” 

said Chief Minister Jai Ram Thakur, while addressing a public meeting at Sihunta under Bhatiyat Assembly Constituency on Wednesday. 

Talking about the real situation and relief measures, the state Government became a laughingstock and was being trolled on social media after it announced 100 gram sugar and 500-gram rice per person to all ration cardholders as a Diwali gift. If that was not enough, according to a media report, this quota has still not reached the depots. There is a possibility that it would reach the cardholders only after Diwali.

The reason behind this backlash is not only that 100-gram sugar is too trivial to be called a gift or relief, especially amid a pandemic when common people, especially those falling in middle and lower-income groups, are faced with unemployment and economic crisis.

While the people were hoping for relief from their elected government, inflation was on the rise. Currently, prices of food items including vegetables and other essential commodities have also witnessed a huge increase. Further, cut in subsidy on electricity, hike in bus fare, increase in property tax, rise in diesel and petrol prices etc. have put additional burden on the commoners. 

Then there were other issues like relaxation in garbage collection fee for the period of lockdown. Sadly, the public did not get any relief even in garbage bills despite staging protests. 

Meanwhile, Ministers made news for spending tax money on buying luxury vehicles and VIP numbers. 

Oppositions, Congress and CPI (M) have also targeted the government over its failure to provide any considerable relief to the people when it’s most needed. As per oppositions, the current government has no control over the market or inflation.

Chauhan also raised the issue of thousands of vacant posts of doctors, para-medical staff, nurses etc. at medical facilities across the state. He said that of the total 1000 posts of lab technicians, 700 were still vacant. He said that the government did not prepare for a community spread despite having a time of eight months during the lockdowns. It was due to this lackadaisical attitude of the government that currently IGMC and DDU hospitals have run out of space in isolation wards, he said.

He also said that, in an all-party meeting convened on March 21, CPI(M) had given the government 12 recommendations to effectively deal with the situation. The party had suggested that thousands of vacant posts should be filled at the earliest, all government buildings construction of which were completed should be prepared to accommodate COVID-19 patients. Similarly, at least four blocks of the under-construction building of IGMC should also be equipped with facilities to accommodate patients, the party had suggested. 

On November 8, 2020, the state unit of Mahila Congress staged a protest over a huge increase in prices of food items. They wore garlands of potatoes and onions and marched from the party headquarter to the Office of Deputy Commissioner, Shimla. Women alleged that the people have received no relief despite such a huge crisis. Instead, the current government is encouraging hoarding of essentials.

The opposition also said that the government has increased the rate of cereals provided through the public distribution system. This increase is Rs 5 for cereals and Rs. 9 for mustard oil. Vegetable prices have gone beyond Rs 50 during the festival season. It also said that the registration fees of vehicles have also been increased.

Sanjay Chauhan is of the view that to provide relief, the government should deposit at least Rs 7500 in the accounts of consumers and provide them with 10 kg ration per person for free.

He also said that recently the government has hiked the charges for electricity and installation of meters. The government has now withdrawn its notification restricting schools to charge only tuition fee and allowed them to charge full fees, including those pending for the period of lockdown, he said. This decision has come as a huge financial burden for parents and is causing mental harassment. 

The policies of the current government are only benefiting corporates, while other sections like labourers/daily wagers, small scale industries and businesses, shopkeepers, farmers are faced with financial crisis and unemployment due to lockdowns imposed in view of corona pandemic, Chauhan said. 

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