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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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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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Govt Legitimizing and Legalizing Environmental Violations for Business by Amending EIA Rules: Activists  

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Himachal pradesh EIA Notification 2020 Amendments news

Shimla-While in statements, the politicians in power at the Centre and State Governments have been expressing concerns over environmental issues and ensuring the people that they are committed to protect and preserve the environment, the reality is contrary to it. The most recent evidence is the proposed 2020 draft amendments to the Environment Impact Assessment (EIA) Notification. With these amendments, the process of environmental assessment before granting permission to execute commercial projects, like hydropower projects in Himachal Pradesh, would be reduced to merely a formality.

Environmental activists and people’s organisations from across Himachal have written to the Union Ministry of Environment, Forests and Climate Change (MoEF&CC) to scrap the 2020 draft amendments to the Environment Impact Assessment (EIA) Notification proposed by it.

These activists and environmental protection groups are of the opinion that the EIA Notification, first issued in 1994 under the Environment Protection Act 1986, is a critical mechanism that regulates clearances granted to all kinds of development projects and economic activities in the country. It is one of the environmental decision-making processes that makes it mandatory for project developers to not just study the socio-economic, ecological and other impacts of a proposed project but also place them in front of the affected communities for their opinions and objections, thus, ensuring the process of a free, fair and informed consent. However, this notification has been amended and read down several times in the last two decades, in favour of ‘easing the norms’ for business. The latest draft continues to move in the direction of rendering the EIA process a mere formality. 

The submission made by HP groups states,

“In the context of the already vulnerable and sensitive Himalayan region, flouting of various provisions of even the present EIA notification has heavily impacted the local ecology and livelihoods of the people. The new amendments will only legitimize and legalize these violations and this will mean irreparable damage to the Himalayan ecosystem”. 

The key objections raised are around exemptions of a variety of projects from the mandatory  Public Consultation’ process as well as the dismantling of this process itself.

“The reduction of the time prior to public hearing from 30 to 20 days is also highly objectionable. In the given 30 day period itself, the information about Public hearings does not reach all the affected areas which are often spread out widely in case of mountains with some project-affected communities residing in remote and inaccessible terrains. Here accessing information takes a long time and reducing this time to 20 days will completely exclude such people from raising their grievances and suggestions in the public consultation. This is a clear attempt to block their participation in the environmental decision-making process”

said R.S Negi of Him Lok Jagriti Manch, Kinnaur. 

 

“It is shocking that the amendments include allowing post-facto clearance, which means that the project proponent can start work and before they have obtained environmental clearance. If the basic precautionary principle on which the EIA notifications is grounded is itself not followed it can lead to a disastrous situation for the ecology and local people. In this situation who is going to be responsible for the losses? If the project proponent is not in a position to pay for losses, will the MoEF&CC take the responsibility of losses? This provision will encourage project developers to bypass the process of environmental decision making. We absolutely oppose this amendment”,

said Prakash Bhandari of Himdhara Collective.  

The 2020 draft also dilutes the guidelines for monitoring and compliance of Environment conditions.

“Already the system of monitoring is weak, the conditions lose, the pollution control board and companies non-accountable, thus, leading to widespread destruction of local ecology and impacting health, lives, and livelihoods of project-affected communities. In the case of hydropower projects, for instance, the illegal and unmonitored dumping of muck along river beds, in forests and on common lands, has damaged pastures, disrupted the flow of the rivers, and caused massive disasters when floods occur. The proposed changes will give a free reign to those profiting from extractive and polluting projects,” 

according to Kulbhushan Upmanyu of Himalaya Bachao Samiti. 

It is ironic that on one hand, the global COVID crisis has thrown up several studies showing that pandemics like COVID emerge from ecological degradation and forest loss, and on the government is pushing for policy changes which will accentuate the environmental crisis that the country is already reeling under.  

“If the MoEF&CC wants to change the environmental laws, it should carry out countrywide regional consultations”,

added Uma Mahajan of Himachal Van Adhikar Manch.

The country, especially ecologically diverse yet climate-vulnerable regions like the Himalayas need a robust and strong environmental regulatory and governance regime that makes project proponents accountable and keeps the affected communities and ecological concerns at the centre of the EIA and environmental decision-making process. 

Notably, MoEF&CC had called for citizen’s comments before May 11 but this deadline was extended upto  June 30 and now August 11 as environmentalists and concerned groups expressed outrage that calling for public inputs on this critical law amidst the COVID led lockdown was unjustified. The MoEF&CC has in this period received thousands of objections highlighting the new draft as anti-people and environment.

The demand is to scrap these proposed amendments for the sake of the environment. 

Submission Made to Ministry of Environment, Forest and Climate Change by Activists and Organizations

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Himachal: Tourist Activity Allowed, Read New Rules for Entering State, Quarantine, Plying of Public Transport

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Himachal Pradesh New Rules quarantine on entering state

Shimla: What appears to be a blunder amid continuous surge in COVID-19 cases in India as well as in Himachal Pradesh, the State Government has decided to open the borders and allow movement of all people including tourists without permission or E-Pass. Restrictions on re-opening would be limited to only containment zones.

As a matter of concern, tourists with an advance booking of a minimum of five days and COVID-19 test report obtained not earlier than 72 hours from an ICMR accredited laboratory, would not be quarantined anymore and they would not need any pass to roam around.

The visitors entering the State would have to register on COVID-19 portal (https://covid19epass.hp.gov.in/) in advance. It’s the same portal which was earlier used to issue e-passes. Anyone who wants to visit Himachal from other states or abroad will have to fill their details during registration but would not require a pass/permission from the State or district administration.

Only those arriving from high-load cities would have to follow the mandatory institutional quarantine. Relaxation can be given only in the case of death, pregnancy, medical urgency, elderly people, and children below 10 years or infants. Daily and weekend commuters entering and exiting the State have been exempted from quarantine requirements. It includes industrialists, traders, raw material suppliers, factory workers, project proponents, service providers, inspecting authorities etc. Also, persons falling in these categories are exempted from home-quarantine on arrival from other states.

The residents of Himachal Pradesh exiting the State to visit other states for a short duration for medical, business or official purposes and coming back to the State within 48 hours have also been exempted from home-quarantine provided they are asymptomatic.

Further, persons visiting the State for bonafide purpose of trade, business, job, project, service purpose, marriage ceremonies, commission agents, and ‘artiyas’ can enter the state with supporting documents provided they are not arriving from high-load cities.  

The orchardist, agriculturist, contractors, project proponents etc. would have to get all hired labourers registered on the same portal. They will have to arrange for quarantine facility for all labour brought from other states. The Government has also allowed sending such labour directly to the site of work (orchards, industries, farmlands etc.) provided they follow the guidelines regarding quarantine and social distancing.

Personals of the Armed forces and Central paramilitary Forces would not need registering on the portal and will be allowed to enter by showing their official identity card.

The decision is quite surprising considering the fact that the total of COVID-19 positive cases has crossed the 1000 mark and the rate of appearance of new cases is also on the rise in the State. The State government claimed that it had requested the Centre to allow the State to regulate the entry of people in wake of the rising cases in the State. However, the State Government claimed that the Centre declined this request. Moreover, the economy of the State has been hit adversely due to the lockdown, thus, zero tourist influx.

Therefore, under pressure to resume economic activities, at the same time, the State Government has given a huge relaxation in the lockdown and social distancing measures. The Government has removed the conditions of maintaining 60 percent occupancy in the state carriage buses. Now, the buses could run with 100 percent capacity, informed a  Spokesperson of the HP Transport Department on Friday.

“This will be subject to maintaining social distancing and that no standing passenger would be allowed in the buses during the journey,”

the Spokerspoers said.

Other conditions not related to maintaining 60 percent occupancy mentioned in the Department’s notification issued on May 30, 2020, will remain the same, the Spokesperson said. However, the inter-state movement of public transport would remain prohibited. Inter-state movement of taxis is allowed after obtaining permission from the concerned Deputy Commissioner.

On the situation in the State, Chief Minister Jairam Thakur yesterday said that all is well, and the cause of surge in cases is due to people returning from other States.

“The situation in the State was quite under control. There is a sharp increase in corona patients in the State as over two lakh people from different parts of the country have been brought back to Himachal Pradesh. The people of the State need not worry as the Government is fully aware of the situation,”

Again, he compared the number of cases and fatalities in India with the rest of the world to claim that the spread is contained effectively.

“Number of death due to COVID-19 in the fifteen most developed countries with a population of 142 crore was about five lakh, whereas in India having a population of 135 crore, about 17,000 had lost life due to Corona till date,”

he said.

The State Government said that hotels and restaurants/dhabas would have to follow guidelines issued by the Department of Tourism from time to time. The restaurants and dhabas are allowed to serve food by operating only at 60 percent of their seating capacity. The HPTDC lifts in Shimla city have also been allowed to operate.

On the other hand, the hoteliers are not in favour of opening hotels due to the fear of COVID-19 spread. The Hoteliers & Restaurant Association, Shimla, had written to the State Government a couple of days ago suggesting that tourism activities in the State should not be allowed for the coming few months.

The Association in a written submission had given the following reasons to not open tourism activities (unedited):

  1. Corona cases are increasing at an alarming speed in India and a world at large. As per expert opinion, Corona pandemic will be at peak in the month of July/ Aug. 20
  2. In the summer season, we get bulk of our visitors from Punjab, Delhi, Gujrat, Maharashtra, Tamil Nadu. As most of the areas in the above States are gravely infected and are in the red zone, we should not invite them to visit Himachal and put our public at risk of Corona.
  3. The railway which is the popular mode of transportation for the tourist is not operating till August 12, 2020, and airlines have also suspended their operations till July 15.
  4. As most of the Corona patients are asymptomatic, despite taking all precautions and social distancing, we will be putting the life and health of our hotel staff at grave risk, if they come in contact with them.
  5. At present, there is no vaccine available for the cure of Corona, so there is a fear psychosis amongst the population and they are concerned about their health and safety and would not like to venture out from their homes and stay in hotels.
  6. For the above reasons, we don’t expect many tourists to visit Himachal in July and August 20, It will be financially unviable to open hotels.

The Association had suggested that touristic activities in hotels may be permitted after the rainy season is over, sometime in September or October.

Himachal Pradesh is witnessing a rapid rise in COVID-19 case since the day the Government opened borders for its residents who were stranded in other States. So far they required e-pass and had to go through mandatory institutional and home-quarantine. However, now, with borders opened for all including tourists without obtaining any permission, the people of the State need to be prepared in case the outbreak gets out of control.

In such a scenario, people can’t solely rely on the Government and will have to follow social distancing rules strictly to protect themselves.

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