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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 [email protected] The personal blog is at https://lawumbrella.wordpress.com/

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Himachal Pradesh: A Report on ‘Plight of Migrant Workers’ during the Lockdown & Need for Protection of their Rights

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Himachal pradesh - a report on migrant labourers during lockdown

Shimla-Poor people like migrant labourers and workers are nothing more than insects for the governments in India. The attitude of the government and its treatment of the poor workers, who had migrated to other states in search of livelihood, during the lockdown is a very clear evidence of it. What is more pathetic is the fact that that their plight remained invisible to the remaining public as mainstreamed media was being paid more by their political masters for diverting public attention from real issues to rubbish, spicy news. Our society is rotten to such an extent that public also preferred the rubbish served by the media over the bitter truth. Except for a small section of people including social activists, volunteers and non-profit-organizations actually worked to provide some relief like ration to the poor. Spare some time to go through a report on the plight of the migrant workers prepared by the Himachal Pradesh Workers Solidarity (HPWS) – a voluntary solidarity platform.

The first day of Lok Sabha’s monsoon session earlier this week saw MPs raising questions about the condition of Migrant Workers during the lockdown. The response of the Labour Minister that no data on migrant deaths for the period was available has drawn much flak. Additionally, no data on return of migrant workers was available for many states including Himachal Pradesh.

The issue of invisibilisation of migrant workers in a state like Himachal Pradesh has now been raised in a report, highlighting the impacts of the ongoing crisis on this community which contributes significantly to the state economy. Himachal Pradesh Workers Solidarity (HPWS) – a voluntary solidarity platform formed in April 2020, in its report, describes the havoc that a sudden, un- facilitated and unplanned national lockdown announced in response to the COVID19 pandemic six months ago had on the interstate migrant workers stranded in Himachal. HPWS ran a helpline during the period, provided assistance in accessing ration and other relief, travel to home states, through administrative coordination, registrations, and information dissemination etc.

Himachal, in the context of migration, is different from neighbouring Uttarakhand, where the rate of migration out of state is higher, whereas in Himachal the rate of in-migration is slightly higher than out-migration.

Gagandeep, a journalist based in Karsog and part of HPWS, elaborates,

“Post the decade of 1980 -90, expansion of industrial activities in the Shivalik hill region, multi-level infrastructure and development projects, growing local interests in horticulture, and cash crop farming alongside tourism-dependent economy made Himachal an emerging centre for in-migration.”

Today, workers from Uttar Pradesh, Bihar, Nepal, Uttarakhand, Jharkhand, Chhattisgarh, Rajasthan, and Kashmir constitute a large chunk of the migrant population in Himachal. Most of them are from Scheduled Caste, OBC, STs and minority communities. Difficult work areas and geography, insecure and unsafe living conditions, along with payment and other labour law violations, makes the situation even more difficult for them in mountain state like Himachal.

While the 2011 Census suggests that Himachal had approximately 3.10 lakhs migrant workers, this figure seems to be severely under-estimated due to lack of registration (under the Inter-State Workmen Act 1979), non-maintenance of data by State Labour Department and non-publication of all statistics of Census. The lack of data further worsened the pandemic crisis and impacted relief facilitation.

In response to the issues, the focus of the State was limited to distributing ration but ration alone was not enough for survival and sustenance. Ritika Thakur, another member of HPWS elaborates,

“Having some cash in hand was an urgent need to access gas cylinders, milk, medicines and other essential things like phone recharge, so that workers can at least call for support. Most of the people who contacted HPWS”, she adds, “had not been paid their wages and their savings had died out in payment of room rents and ration as loans and debts kept on piling up.”

Many migrant labourers complained about the interrogatory, apathetic and discriminatory attitude of the officials when they were called for ration support. Seeing no transport facility forthcoming, many workers were forced to walk back home on foot. When caught at borders they were put into quarantine centres forced to return or were left with no choice but to escape on foot.

“The online registration mechanism was completely inaccessible for workers and for weeks there was no response to registrations”,

according to Sukhdev Vishwapremi, a social activist and member of HPWS.

The first ‘shramik train’ ran as late as May 22, 2020.

“The government, meanwhile, allowed private bus operators to run on exorbitant prices,”

he adds.

Many workers were pushed to take loans or sell property/artefacts to be able to return home through these buses while 5000 HRTC buses remained standing in bus stands.

“The fact that the Central government shifted the burden of facilitating transport on the states without any significant co-ordination and clarity made matters worse, aided by lack of coordination and communication between nodal officers, both between Himachal and other states and within Himachal”,

Vishwapremi emphasized further.

According to the information shared by an officer from Himachal Pradesh Government (SDMA), 94,819 migrants had gone out from Himachal to various states of the country by June 23, 2020. As per the information received from SDMA under RTI, 14 shramik trains ferried around 13,183 people out of the state.

Himshi Singh from HPWS reminds, “more than 80% of the migrants took the road on their own expense in which the government merely provided e-passes for private transportation, and the number of people who walked on foot is not yet known.”

Adding further she remarks,

“It’s tragic that in the midst of this crisis, FIRs were registered against reporters who did stories on migrant worker’s condition and on the other hand no action was taken against fake news or media who communalised the issue leading to violence on minority communities like the migrant workers from Kashmir”.

The report highlights how Himachal was one of the 12 states who made major dilutions in labour laws in favour of companies and ‘ease of doing business’.

Almost five months have passed living with this epidemic and even as the success and failure of the lockdown are debated- the economy is falling in doldrums and our governments seem inconsistent and directionless. As per the estimate by ILO, 400 million informal workers in India will fall to critical levels of poverty than ever before- a situation that demands urgent cognizance, state accountability and a responsible approach.

In this regard, HPWS in this report has made the following recommendations for the State:

  1. Release in the public domain all the information about relief/support provided to migrant workers
  2. A joint task force be set to bring out a comprehensive report on the conditions and needs of migrant labourers in the state within 6 months
  3. Provide universal Access to Ration, Economic and other Relief Facilities
  4. Housing facilities for Migrant workers who have been living in Himachal and hostel facilities for seasonal labour
  5. Housing facilities for Migrant workers who have been living in Himachal and hostel facilities for  seasonal labour
  6. Compliance of SC/HC orders-setting up helpdesk/grievance redressal centres at Panchayat, Block, Tehsil  and District levels and conducting employment and skill-based survey of the migrant workers who have returned from other states
  7. Dilution in labour laws be withdrawn and all changes scrapped and strengthening the time-bound  ‘Grievance Redressal’ system and Labour Courts Mandate the registration of all migrant labourers working in the state under ISWMA 1979

HPWS will be submitting the report to various state and central agencies for further advocacy and hopes that the HP Government will take adequate measures to protect the interests of the migrant worker communities in the state.

Read Complete Report

Feature Photo: Sumit Mahar, Volunteer HPWS

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Amid Surge in COVID-19 Cases in Himachal, Speculation of Complete Lockdown Gains Momentum

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Himachal Pradesh Lockdown from August 1st speculations

Shimla-The number of COVID-19 cases is rising at an alarming rate in Himachal Pradesh as for the past five consecutive days, the state had been reporting nearly 100 cases per day. With Monday’s 95 new cases, the tally  for the state jumped to 2270. The number of active cases has crossed the 1000 mark to reach 1025 on Monday. So far, 1216 patients have recovered while 12 of them succumbed to COVID-19 infection.

Among Monday’s cases, Sirmaur district reported the highest 31 cases from Govindgarh (mohalla) locality in Nahan. Complete lockdown of two days was imposed in this area but the spurt in cases continues. Fifteen new cases were reported from Baddi and Parwanoo in Solan district while remaining cases were reported from Bilaspur (11), Mandi (10), Kangra (16), Shimla (5), Una (2), Hamirpur (1), and Chamba (3).

In Shimla, five family members of a policeman, who had tested positive a couple of days ago, also tested positive.

HP Health Department’s COVID-19 Bulletin July 27, 2020 (9PM)

himachal pradesh demand of lockdown amid surge in covid-19

Some leaders of the ruling party (BJP) continue to invite criticism for behaving irresponsibly. The government itself is not learning any lesson from the situation in Govindgarh- a hot spot where the outbreak was triggered due to a marriage ceremony.

On Monday, the opposition Congress filed a police complaint against three persons including a BJP leader for violating rules by roaming around and meeting a large number of people instead of placing themselves under home-quarantine. The opposition said that samples of these persons were taken after they showed symptoms of the COVID-19 infection. Still, these persons kept roaming around after giving samples. The opposition has also alleged a discrimination was seen in initiating legal action for violations of social distancing norms. In Spiti, hundreds of tribal women were booked for staging protest against Minister Ram Lal Markanda for not adhering to the resolution passed by the locals regarding mandatory quarantine for all including the residents of the district. Cases have been filed against the opposition Congress too for violating these norms during recent protests. 

Earlier, a leader from Mandi had introduced the coronavirus in Chief Minister’s office and the State secretariat and infected about two dozen of his contacts including the Advocate General and his family. The leader reportedly visited the IGMC, Shimla, State High Court and other offices.

Now, another ex-MLA from Nadaun and the Vice-Chairman, HRTC, was reported to have met several party workers and even attending an event as the chief guest. Vijay Agnihotri reportedly continued shopping, roaming around, and meeting people after giving a sample. Reportedly, he also attended a marriage ceremony. The district administration would now have a task to trace all his contacts.

At the sametime, the Congress was also seen disregarding the social distancing norms during their recent protests against the hike in bus fare.

Laxity in Organization of and Checking Gathering in Govt Events

While the state government has issued guidelines for attending funerals and marriages, there is hardly any seriousness when it comes to organizing government or the party events. The ‘havan’ organized in Shimla where hundreds of people had gathered and several party leaders including Chief Minister Jairam Thakur had visited it. The event had invited criticism as the Chief Minister and workers of BJP Mahila Morcha were seen disregarding every social distancing norm. 

An employee of HP University also tested positive recently. A few days prior to the confirmation of this case, an event was organized at the varsity on the occasion of the Foundation Day a large number of people including media persons were present.  

Amid such a sharp increase in cases, instead of being so lax, the government is supposed to prohibit any such gathering or at least issue guidelines regarding the maximum number of persons allowed to attend such events/functions.

Solan district where the total COVID-19 cases have reached 553 has begun to witness a shortage of health staff.  The BBN area is the worst hit and has reported about 80 percent of the total cases in Solan. According to a media report, there are only 10 doctors at the CHC at Nalagarh and six at the Civil hospital, Baddi. There are only 28 nurses.

Amid this panic, the public, especially from Shimla district has been suggesting the imposition of a lockdown and questioning the government over still keeping the border open for tourists. To make thing even worse, there are instances where people violated quarantine rules after their samples were taken or were not monitored properly. In Mandi district’s Bagsaid market, a person had opened his meat shop giving a sample. It was after the arrival of his report that the shop was closed. 

Further, the online opinion poll of the State Government inviting public opinion over the imposition of a complete lockdown in the state has led to speculations of a possible lockdown from August 1st.  The matter regarding a lockdown is expected to be taken up in the Cabinet meeting to be held on July 30. The public is confused and preparing to stock up ration/essentials or planning to leave for villages. Several readers have also been writing to Himachal Watcher to inquire about the possibility of imposition of a complete lockdown.  

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First Open for Tourism, Then Train Staff, HP Govt Goes Topsy Turvy

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Himachal pradesh CM jairam thakur on hotel staff training

Shimla- In the last week, the Himachal state government has taken decisions that could have a long-lasting impact on citizens without consulting or even informing all stakeholders.

First, it came out with guidelines for tourism that did not have any inputs from the tourism industry. Second, it decided to open the state for tourism without consulting hotel and travel industry or keeping village pradhans in the loop.Six days after the decision to allow tourist activity and opening State borders for tourists, the state government of HP has decided to train people employed with the industry.

“Online training for the Hospitality sector would also be held in wake of COVID-19. About 10,000 candidates would be provided one-day training on hygiene and sanitation procedures. Three weeks training on basic essential of a tourist guide communication skill etc. would be provided to about four hundred candidates,”

said Chief Minister Jairam Thakur in a review meeting with Tourism Industry officials on 8th July. It’s surprising that the Government did not find the time to either have this ‘1 day training’ program ready or train the staff of hotels and restaurants before throwing open state borders for tourists. The government gave no time to the hotel industry to understand, prepare and implement directions given in the issued SOPs.

Major Hotel Associations have already decided to keep hotels closed at least till September and  Village Pradhans have also refused to allow tourists into their jurisdiction. The Chief Minister said that the State Government is following the lead of states such as Uttarakhand, Rajasthan, Goa, Kerala etc. where the Governments have decided to open the State for tourists.

To enter Himachal Pradesh, tourists have to meet three conditions, a valid booking for at least five days, a COVID-19 test report from an Indian Council of Medical Research (ICMR) certified laboratory not older than 72 hours and their vehicle should have a sanitisation certificate.

About 600 tourists have already entered Kangra district. Police arrested a couple in Kangra district who managed to enter the State by furnishing a fake COVID-19 negative report.

“A case was registered at Damtal police station against a couple who entered HP from Bhadroya barrier based on fake COVID Negative test report. Legal action is being initiated against them for cheating, fraud & forgery. They are currently lodged in an institutional quarantine facility at Parour,”

SP, Kangra, Vimukt Ranjan, said confirming the report. In another case in Kullu, five tourists, who managed to enter the State and reach Bajaura barrier in Kullu, were detained for not carrying required documents. A total of 12 tourists have been allowed in to Kullu district after they met the three conditions needed for tourists.

According to Kullu district police, about 70 tourists from Punjab, Haryana, Chandigarh, Rajasthan, Telangana, Uttar Pradesh etc. were sent back for not fulfilling conditions prescribed by the State Government. Tourists who should be sent back for a lack of required documents and fulfilling conditions given in the SOPs issued by the State Government are able to cross barriers at borders, like Parwanoo and Swarghat.

Police manning barricades are also frontline staff who are at risk.

We have provided police who are manning the barricades with N95 masks, raincoats that will serve a double purpose for rain and COVID protection and long gloves, policemen over the age of 50 years and those with existing conditions are not deployed at barricades,

said DSP, Kullu, Priyank Gupta.

While the majority of the hospitality industry players, (which is worst hit by the loss of business), is against opening the State for tourism, there are some, especially those who have leased hotels and taken loans who want to open for tourism. However, until the state government takes steps to add healthcare facilities and make more dedicated COVID hospital wards especially in rural areas, large scale tourism could endanger locals.

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