India’s highest court has overturned a colonial-era law that criminalizes consensual gay sex in a landmark judgment. It was a hard-fought victory for the Lesbian/Gay/Bisexual/Transsexual/Queer (LGBTQ) community. Though Section 377 of the Indian Penal Code (IPC) was revoked by this judgment, same-sex marriage was not legalized. In the Indian concept, marriage means a union of a man with a woman, strictly heterosexual.
On 25 February the Central Government submitted an Affidavit before the Delhi High Court stating that the same-sex couple cannot claim their right to marriage despite the Supreme court decriminalizing homosexuality in 2018. The government insisted in the affidavit that “Marriage is not just a matter of the union of two individuals, (but) a solemn institution between a biological man and a woman”. The affidavit also referred to the term like Bride, Bridegroom, Father, Mother. The affidavit affirmed the Indian mentality of a hetero normative society.
This poses a problem for LGBTQ couples across India. For instance, Vibhav and Paragh are in a same-sex relationship. They are very popular on social media. Paragh being an American citizen comes from a background where same-sex marriage is legal. Vaibhav however, is an Indian citizen working in America. While they have registered their marriage in the USA, their marriage registration was denied by the Indian consulate in the USA since their marriage is not legally valid as per Indian laws. During the pandemic, Vaibhav wanted to come to India for his parents, but Paragh couldn’t accompany him to India as a spouse since they are not a legally wedded couple.
This is only one instance of discrimination against LGBTQ couples. There are so many couples like Paragh and Vaibhav who are denied their rights frequently by the government behind a curtain of draconian laws. Often, this discrimination is a violation of their constitutionally guaranteed fundamental rights.
On January 6th 2021 the national newspaper, Times of India, covered a story about the legal battle of Arora and Khana.1 A homosexual couple who fought for their legal recognition. The “beautiful relationship” between them is not accepted by the law and society until the decriminalization of article 377 happens. Arora worked as a psychiatrist, and Khanna is a psychologist. Since 2006, they worked together at a mental health service co-founded by Arora that focuses on treating children and adolescents. Their relationship started in 2012 and they eventually moved in together, brought the news to their families, and found support among friends and colleagues. In October, they filed a plea in Delhi court seeking the constitutional right to marry arguing that without official recognition, they are “strangers in law.”
Their petition, along with two others, will be heard by the court starting January 8, beginning what could be a years-long legal battle for marriage equality for the more than 2.5 million Indians who identify as LGBTQ. India’s solicitor general said “concept of same-sex couples is against our culture and values and we don’t recognize same-sex marriages”.
On May 4, 2021, the Centre asked the Delhi high court to take up a plea, seeking recognition of same-sex marriage. The high court that it was caught up with the COVID -19 situation and pointed out ” Nobody is dying because they don’t have a marriage certificate”. In a democratic country, a group of people still fighting for their legal rights. This is not fair. Sourav Kripal, a very famous lawyer who helped to challenge the law of criminalization of same-sex relationships says that “in a survey of 2019, (2)62% of respondents are not supporting the same-sex marriage as well as relation. Society is not going to rush embrace same-sex marriage, but that is not what we are looking for”.2 The major argument with homosexual marriage is about the purpose of family-making.
In the Indian concept, the father, mother, and their children are the basis of a family system. But the truth is two fathers and children, two mothers and their child can also be a family. Scientific research has affirmed time and time again that same-sex couples are as fit and capable as heterosexual parents. 3 Their children are also found to be as psychologically healthy and well-adjusted as children reared by heterosexual parents.4 Homosexual couples can become parents through alternate methods like adoption and surrogacy.
There are some privileges for the married couple from the government side. like inheritance of property. After the death of the husband, the wife can inherit his property. This is not possible in same-sex marriage as it is not a legal union. Consequently, the rights of the children in a same-sex marriage are denied. The possibility of adoption or hiring the services of a surrogate mother is also denied because of the illegality of the marriage.
When discussing homosexual marriage the important part is the statute existing in India like Hindu Marriage Act,1955, Special Marriage Act 1954. All the listed Acts only discuss the heterosexual form of marriages pointing to the union of a male and female. Without exception, all of them define marriage as a union of a male and female.
In the Naz Foundation case (2009)5 it was held by the Court that “the protection against discrimination on the ground of sex under articles 14 and 15 means sexual orientation as well as gender”. This clearly shows that the affidavit filed by the central government in this regard is squarely against the fundamental rights of persons belonging to the LGBTQ community. This Affidavit declares that the culture of our country is against homosexual relationships. Nothing can be farther from the truth. In Kittitas Ramayana, two widows of kings keep living together in extreme love. Kamasutra mentions physical pleasure in male-male unions in vivid detail (circa 4 A.D). Famous 18th-century poets Insha and Rangin openly wrote about male-male and female-female (carnal) relations. Sculptures in the Khajuraho temple are also another example of the acceptability of same-sex love. It is very much a part of our Indian culture.
Marriage should be a legally and formally recognized union of two people as partners in a personal relationship irrespective of their gender and not just a union between a man and woman. There should be a law for protecting the rights of the LGBTQ community and legalizing same-sex marriage. legal recognition of same-sex marriage is a matter of human right as far as the LGBTQ community is concerned. In the Transgender Persons (Protection of Rights) Act 2019, the Indian government passes a law for the protection of Transgender person’s legal rights. People including those belonging to the transgender community had expressed strong opposition to the passing of such a law as it is totally against the NALSA judgment.6 On the contrary this Act instead of solving the problems, it pushed them even more. The act fails to recognize the basic needs including reservation, marriage among the community, issues regarding adoption, inheritance of property etc. When a law is enacted for the transgender community, it should consider their needs and problems. When such a law is passed it should be in such a way as it provides a complete solution to such problems.
Love and sexuality are personal matters. No one could deny justice and legal rights based on anyone’s sexuality or sexual orientation. “Violation of fundamental rights guaranteed in the constitution” is not justifiable it is only a matter of legislation it’s a matter of recognition also.
India is the nation that has the highest number of stray dogs and likewise, the nation with the highest rate of human rabies in the world1. The commonly seen stray dogs in India are the ‘Indian Pariah Dogs’ which are noted for their capacity to survive as they are highly immune to a plethora of diseases owing to their evolution. They are mostly people friendly and can make for excellent guard dogs. Still, their basic hunting dispositions pose a considerable threat to humans. Several instances can be coined to address the threat posed by stray dogs to the peaceful living of people in India. In fact, thousands of citizens are being attacked by them in a single day, which results in caustic casualties. Many people lose their life due to rabis infection inflicted through stray dog bites. Article 21 of the Indian Constitution guarantees the ‘Right to life’ to its citizens and makes it mandatory for state and local governments to provide a safe and ailment-free atmosphere. It is the duty of the government to direct the municipal authorities to keep the public places, especially free of stray animals and avert public inconvenience through its sophisticated municipal law. Still, the menace of stray dogs is not a novel issue in India and also not a matter which seems to await a speedy remedy. This study tries to analyse the extent and diversity of threats posed by stray dogs in India and also tries to formulate a plausible pattern of mitigation mechanism which helps curb the menace which doesn’t conflict with the established legal standards.
IS IT TRULY A SCANTILY NOTICED AREA OF CONCERN?
Imagine, while a terrorist attack, one of the citizens losing his/her life in India. How much will be the mediatization done to address the issue. Then, consider about thousands those who lose their lives due to the attack and interference of stray dogs every year in India. The amount of attention given by `media as well as by the governmental mechanisms is obviously meagre. The objective of this idea conveyed is to get an understanding of the worth of a life, irrespective of the mode which takes it. Whatever costs the life of citizens should be addressed and all possible methods of mitigation shall be employed in its eradication. Same is the case with stray dog menace. Apart from rabies majority of stray dogs are infected with parvo infection, mange and distemper which are contagious.2 Even a small scratch or bite from a stray dog results in the injection of four shots of rabies vaccination on differently scheduled days. Apart from this, several deaths and serious casualties have reported when the stray dog causes a collision when it runs into the road. Citizens pay road taxes to the government which is primarily responsible to safeguard the life of its subjects. But, in the case of stray dog’s free-access to public roads, the governments are silent as it is a ‘Pandora’s Box’ which has multifarious levels of issues when it comes to the extermination.
In march 2016, the municipal authorities reported to Supreme Court that from 1994 to 2015, 434 deaths happened in Mumbai, due to dog bites. As per reports, 1.3 million people were bitten by stray dogs amid this timespan. Kolkata had a stray dog population of more than 80000 in 2018 and its rising.3 The number of stray dogs in the major cities of India as per 20th livestock census 2016 is as under
These figures are from 2016 census. The current figures of stray dog population in India will never going to disclose an inferior number. World Health Organization (WHO) has identified that 36% of world deaths due to rabies is happening in India. ‘WHO’ has also recognised that dog bites are the root cause for the transmission of rabies to humans contributing up to 99% and added that every year 18000-20000 citizens lose their lives in India due to rabies.7 This is way much higher than the number of people killed in terrorist attacks in India.8 It still doesn’t seem alarming and an under-noticed issue?
CONVERGENCE OF ANIMAL RIGHTS AND HUMAN RIGHTS JURISPRUDENTIAL PERSPECTIVE
Humans fix the standards related with human rights as well animal rights. The friction is obvious as question related to priority in preservation of these rights arose. Whether the animal rights should be compromised for the protection of human rights or vice versa is an evergreen debatable issue as it varies in the perspectives. Animal rights activists do strongly condemn any action against the elimination of stray dogs from the public as they consider stray dogs as the part of the environment who have the right to exist along with humans and other animals. They advocate that it is the duty of the humans to preserve the rights of animals at first. Humans should avoid exploiting or exterminating animals as the interests of animals are as same as humans. But, never contemplate animals can have rights akin to humans. For example, humans can’t confer right to vote to animals. Still, they can be conferred basic rights such as right to physical, psychological and emotional health, right to adequate food and shelter, right not to be harmed and exploited, right to share the environment with other animals including humans, right to be valued and ultimately the right to live.
While analysing the jurisprudential recognition of animal rights it is just to coin Charles Darwin, who was a scientist and a naturalist. His renowned theory of ‘Natural selection’ has managed to radically alter the perspectives of humans from considering themselves as specially made by God, to being yet another animal evolved from an animal.9 Although he wasn’t an animal rights advocate, his theories have strong implications as to the importance of animal rights and standards to be maintained while dealing with animals. Darwin identified shared attributes in animals and humans like anger, terror, deceit, courage and timidity. All these vary among animals just like humans. Also, they possess multiple emotions like desire to be loved, admiral of appreciation, jealousy etc.10
While the celebrated jurist ‘Emmanual Kant’, considered rationality as the supreme factor in conferring rights to animals. For him, rationality is not alike intelligence. It is the normative capacity of humans to judge an action as good or bad. It is that incomparable capacity to find reasons for their beliefs and actions is what makes humans distinctive of animals11. Although, in an apparent sense it may feel like Kant was against the conferring of rights to animal, but it’s not legit to understand it so. At his period, his views were far progressive. Kant was of the view that animals should not be used as the subject of conducting painful experiments nor they should not be used for any sports. If they must be killed, it should be done quick and with less pain. He adds that humans have duty towards animals which they don’t owe to animals, but to themselves.12
Jeremy Bentham is yet another illustrious jurist who is still memorized for his ‘Principle of utilitarianism’. Bentham’s statement ‘The question is not can they reason? Nor, can they talk? But can they suffer?’13 was wide popular in animal welfare circles of that time. He considered the capacity for suffering as the sole criterion for conferring rights to animals. While, Henry Stephen Salt was of the view that humans shouldn’t kill their fellow-beings which lower the standard of a civilized society. He added that ‘it is ourselves, our own vital instincts, that we wrong, when we trample on the rights of the fellow-beings or animals, over whom we chance to hold jurisdiction’.14
Meanwhile human rights are those universally accepted principles which are common to all humans around the globe. Its characteristic are universality, inalienability, indivisibility, participation, non-discrimination, transparency and accountability.15 The convergence of Human rights with animal rights stems from the basic fact that humans are yet another animal species. There is no qualitative distinction between human rights and animal rights, but only quantitative. Some animals have properties like consciousness, self-awareness, sentience, sense of time and ability to plan just like great apes. Thus, human rights can also be understood as a species oh animals rights in general view. Thus, the recognition of animal rights and conferring certain rights to animals is a basic facet of human morality and values.
LEGAL FRAMEWORK AND JUDICIAL RESPONSES IN INDIA PERTAINING TO THE AREA OF STRAY DOG MANAGEMENT
Prevention of Cruelty to Animals Act, 1960
As per section 11(1) of Prevention of Cruelty to Animals Act, 1960, which is the basic law which prohibits the ill-treatment of animals, ‘mutilation of any animal or killing any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner is a cognizable offence. According to section 11, beating, kicking, over-riding, overloading, over-driving, torturing or otherwise treating any animals so as to subject it to unnecessary pain amounts to cruelty on animals.16
Animal Birth Control (Dogs) Rules, 2001 (Amended in 2010)
As per Indian law, stray dogs cannot be killed, beaten, driven away, displaced or dislocated. Only allowed manner is the sterilization procedure envisaged in Animal Birth Control (Dogs) Rules, 2001. It classifies dogs as pet dogs and street dogs. It also directs the procedure for controlled breeding, immunization, sterilization and licensing and also divided duty of street dog management among local authorities and residential associations. It also structures the function of a core committee which is meant to control and care street dogs by sheltering, sterilization, catching, vaccination, etc. The rehabilitation of captured street dogs is also the responsibility of local authorities as per the ABC Rules.17
AWBI Guidelines for Feeding Stray Dogs in Residential and other Localities
There are certain guidelines issued by the ‘Animal Welfare board of India’ for the feeding of stray dogs in residential and other localities. It states that the dogs must be fed at places which are rarely used by the residents, causeways, public footpath, streets, pedestrian path etc. Anyone interested in feeding stray dogs in their private space/flat can do as such. It also directs the spectrum of feeding interval and manner to be followed while serving food and water. The Animal Welfare Board is of the view that adherence to the guidelines can positively impact the management of stray dogs, and can prevent them from attacking humans.
Other Legislations and Rules
The municipality/Corporation is the authority which is responsible for the stray dog management in India. Municipalities are meant to have adequate dog pounds for sheltering stray dogs. Previously, municipalities used to cull these animals brutishly by electrocution, starvation and even by burying alive. After 1992 is became illegal to kill stray dogs. The High Courts of Delhi, Mumbai, Rajasthan, Gujarat and many other states have directed various municipalities to formulate a sophisticated method instead of culling stray dogs mercilessly. The AWBI has established a code of conduct for the municipalities to deal with stray dogs. Failure in its following invites contempt of court proceedings.
Section 428 and 429 of the Indian Penal Code make it illegal to maim or cause injury to any animal with a monetary value higher than Rs 10.
It is illegal to throw acid on cows (normally done by vegetable sellers.
It is illegal to intentionally kill/injure dogs, cats, cows which roam on the street.
Anyone who engage in such activities which injure animals including stary dogs shall be punished by fine of Rs 2000 and/or a jail term of up to five years.18
Judicial response
Indian Judicial system always stood supportive in the protection of animal rights. In Muhammed Habib v. Uttar Pradesh19, the court was of the view that ‘the constitution of India doesn’t permit any citizen to claim that it is his fundamental right to take life and kill animals’ and also chapter IV A, Article 51(g) ordains ‘compassion for living creatures’. Even though the court didn’t mention stray dogs as such, the ruling generalized the protection of life of animals, making it applicable to stray dogs also. In Animal Welfare Board v. A. Nagaraja and ors,20 the apex court reiterated five internationally recognized freedoms for animals. They are freedom from hunger, thirst and malnutrition, freedom from fear and distress, freedom from physical and thermal discomfort, freedom from pain, injury and disease, freedom to express normal patterns of behaviour. The supreme court considered these rights as the fundamental principles of animal rights and it stated that these rights are to be ensured for every animal in the nation.
In Animal Welfare Board of India v. People for elimination of Stray Troubles & Ors21 it was held that it is the duty of the corporations to manage the stray dogs which creates nuisance. The Supreme court urged Animal Welfare Board to supervise State Municipal Corporations, Municipal committees, district boards and local bodies and analyse whether they follow existing laws and rules pertaining to the protection of such Animals.
On march, 2016, the Supreme court directed all states to conduct sterilization and vaccination programme on stray dogs adhering to the provisions of ‘Prevention of Cruelty to Animals Act’ under the guidance of ‘Animal Welfare Board to control’ its population and also to curb the menace of rabies infection. The apex court was considering more than ten writ petitions related with stray dog menace like the welfare and protection of animals& Anr v. state and Ors22 and Rekha Gare v. State of Govt. of N.C.T of Delhi & Ors.23 The bench headed by ‘Justice Deepak Mishra’ considered the submission of ‘amicus curiae’ and senior lawyer ‘Dushyant Dave’, and recognised that proper sterilization as per law and rules are not carried out by corporations either because of lack of money or due to apathy. The court also directed state governments to report, matters which indicating compliance of provisions of the Act regarding stray dogs, with the AWBI within six-week time. Thus, it can be identified that Indian Judiciary from time to time has recognised the seriousness of the issue and has directed governments to follow ABC Rules and provision of Protection of Animals Act.
WHY INDIA CRAWL DESPITE OF HAVING AN EFFECTIVE STRAY DOG MANAGEMENT BLUEPRINT
It is a wide acknowledged fact through various statistics and reports, India is home to millions of Stray dogs. Despite of adequate legal mechanism, the actual management of stray dogs in the country is not appreciable. It can be attributed to the improper implementation of the statutes which are framed embodying advanced principles of international legislations. India does have a valid mechanism for managing stray dogs in the form of ABC Rules as mentioned before. The rules follow the pattern of European countries which effectively manage stray dog population in their territory. The rules do recognize the vital role of local authorities and animal welfare association in the management of stray dogs. It mandates such authorities to capture and shelter such stray dogs and also to sterilize and vaccine them. After that the authority should release them to the same locality from which they are captured. This proven pragmatic procedure is the most effective way in controlling the population of stray dogs
It is exactly where the nation strain in the management of stray dog population and menace. It is the utter failure of implementation mechanism which is responsible for the mismanagement. ABC programme implementation is in dormant condition in the majority of states. Owing to multifarious reasons, local bodies fail to implement ABC Rules. Lack of infrastructural facilities is the prime cause as the societies primary concerns are much different. India being a developing nation, the management of stray dogs can’t be found in the top priority list of the local administration as well as for the citizens. A very few numbers of stray dogs are being sterilized by the authorities under the ABC programme, where, it is being the only resort to attain a visible reduction in the number of stray dog population as upheld by the Supreme Court and various High Courts. The ABC Rules made by the Government of India is quite effective as it follows the pattern of proved management system around the world.
Still, it can’t be attributed to AWBI as its sole fault. Primarily it is the failure from the part of Municipalities/Corporations in the periodic monitoring of stray dogs and in the conduction of ABC programme which lead to their overpopulation. Along with that, improper waste management mechanism adds to the menace as it helps stay dogs to survive. An effective system of garbage-disposal can help reduce the population in the near future. It acts as a prime reason for the failure in the implementation of ABC Rules too. The streets in India filled with garbage is the perfect breeding ground for those strays which are not neutered or spayed.24
CONCLUSION AND SUGGESTIONS FOR REFORMS
A proper and sophisticated system of management has to be employed for the identification of stray dogs an area. The Municipalities/Corporations should maintain at least an approximate number of the stray dog population and periodic implementation of ABC Rules which includes vaccination, birth control and sterilization techniques. Along with this, adhering to the provisions of various European statutes like ‘The Clean Neighbourhoods and Environment Act 2005 of the United Kingdom25, the states must initiate the establishment of dog shelters/pounds dedicated to a defined area. This can be used to shelter the captured dogs temporarily for the time needed to sterilize and vaccinate them. Later, they can be released to the same place from which they are captured. Dog Lovers and Animal Welfare Associations should play the pivotal role in the management of stray dog and in the reduction of their population. Likewise proper garbage disposal mechanism should be devised in every nook and corner of the nation. Littering of garbage waste helps stray dogs flourish in numbers as they get adequate food and apt environment to survive. While trying to mitigate its menace, inhumane treatments against the stray dogs should also be avoided.
The natural instinct of humans to cull stray dogs which interfere in their tranquillity and normal life was witnessed in many parts of India. In 2016 at least 120 stray dogs were killed by the people of Kerala in Ernakulam and Palakkad. The incident even received the condemnation from International Animal lovers. The Supreme court also took note on the issue and urged to stop such barbaric move against the extermination of stray dogs.26 Same happened in the Kerala’s Manjeri where people killed 15 stray dogs which were vaccinated and sterilized.27 All such barbaric acts should be eradicated from a civilized society. The public must be made aware about the legal consequences of such brutish acts and also should be taught the humane value of preserving animal rights. Then only the re-occurrence of such incidents can be avoided. The knowledge on the system of management of stray dogs can help people deal with them in accordance with law. The corporation/Municipalities should impart such awareness to the citizens along with the execution of their responsibilities as per the provisions enumerated in the ABC Rules. Following all such pragmatic practises can ultimately help reduce the population of stray dogs in India and its interaction with humans, which leads to the death of thousand every year. Every citizen should be aware of the rights of other animals in the globe to co-exist and in case of their menace they should only adhere to the rules and principles established by law. Together, the nation can gradually reduce the stray dog population by applying such established way of mitigation, which doesn’t harm their rights and feelings.
CITATIONS
1.Why stray dogs divide India like nothing else, TIMES OF INDIA, (July 23, 2021 10:44 A.M) https://timesofindia.indiatimes.com/india/why-stray-dogs-divide-india-like-nothing else/articleshow/81431925.cms#:~:text=India%2C%20with%20its%20estimated%20populati on,below%2015%20years%20of%20age.↩ 2.Stray dog menace on the rise in Kozhikode city, THE HINDU, (July 23,2021 10:19 A.M) https://www.thehindu.com/news/cities/kozhikode/stray-dog-menace-on-the-rise-in-kozhikode city/article34298247.ece.↩ 3.Are stray dogs a major problem in India? MEDIA INDIA, (July 23, 2021 10:53 A.M), https://mediaindia.eu/society/stray-dogs-a-major-problem-in-india/.↩ 4.20th Livestock census-2016, ANIMAL HUSBANDRY, DAIRYING AND FISHERIES, http://dahd.nic.in/division/launching-20th-livestock-census (July 23,2021, 4:30 P.M). ↩ 5.As per the survey report by ‘Humane Society International (HIS) for the corporation of Trivandrum in 2015.↩ 6.Supra note 4.↩ 7.Rabies, Health topics, WORLD HEALTH ORGANIZATION, (July 23,2021, 5:00 P.M) https://www.who.int/india/health-topics/rabies↩ 8.Soutik Biswas, Do India’s stray dogs kill more people than terror attacks, , BBC NEWS, (July 23, 5:05 P.M) https://www.bbc.com/news/world-asia-india-36035456 .↩ 9.CHARLES DARWIN, ON THE ORIGIN OF SPECIES BY MEANS OF NATURAL SELECTION, 76-77(1895).↩ 10.FRIEDRICH NIETZCHE: ANIMAL RIGHTS: A HISTORY-CHARLES DARWIN, NOTEBOOK (1893).↩ 11.Christine M. korsgaard, A Kantian Case for Animal Rights, 33 (4) OXFORD JOURNAL OF LEGAL STUDIES 629-648 (2013).↩ 12.Id.↩ 13.See generally JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1789).↩ 14.SALT HENRY STEPHENS, ANIMAL RIGHTS: CONSIDERED IN RELATION TO SOCIAL PROGRESS 52-63 (1892)↩ 15.United Nations Population Fund, Human rights Principles, (July.24, 2021 10:09 A.M) http://www.unfpa.org/resources/human-rights-principles .↩ 16.Section 11 in the Prevention of Cruelty to Animals Act, 1960, INDIAN KANOON, (July 24, 2021 !0:57 A.M), https://indiankanoon.org/doc/1763700/ .↩ 17.Id.↩ 18.18 See generally, Section 428 and 429 of IPC↩ 19.SLP(C) 691/09 (2016); (July 24, 2021 9:50 P.M) http: awbi.org/awbi↩ 20.pdf/sc_order_18112015.pdf.↩ 21.CIVIL APPEAL NO. 5387 OF 2014, @Special Leave Petition (Civil) No.11686 of 20087)↩ 22.CIVIL APPEAL NO. 223 OF 2017, @ Special Leave Petition (Civil) No.11686 of 2007 22 W.P(CRL) 467/2009↩ 23.W. P(CRL) 1101/2009, See also M. R Ajayan v. State of Kerala, WP(C). No 28255 of 2011, Kuljit Singh Bedi v. State of Punjab and Ors Civil Writ Petition No.9902 of 2012 (O&M), Satish Kumar Verma v. O.P Shrivastava C.P. No 1339 of 2009 (2013)↩ 24.Jasmine Monrouxe, Why are there so many stray dogs in India? THE DODO, (July 25, 2021 10:50) https://www.thedodo.com/why-are-there-so-many-street-dogs-in-india 1508123458.html .↩ 25.Clean Neighbourhoods and Environment Act 2005, legistlation.gov.uk, (July 25, 2021 11:10 A.M) https://www.legislation.gov.uk/ukpga/2005/16/contents .↩ 26.At least 120 stray dogs killed in Kerala’s Ernakulam and Palakkad districts in the last week.SCROLL.IN, (July 25, 2021 11:24 A.M), https://scroll.in/latest/819045/at-least-120-stray-dogs-killed-in-keralas-ernakulam andpalakkad-districts-in-the-last-week .↩ 27.Kerala: Police begin probe into mass killing of Stray Dogs in Manjeri, TIMES OF INDIA, (July 26, 11:30 A.M) https://timesofindia.indiatimes.com/city/kozhikode/kerala-police-begin-probe-into-mass killing-of-stray-dogs-in-manjeri/articleshow/70556525.cms .↩
Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.
WP (CS) No. 1031 of 2019 & WP (CS) No. 1164 of 2019
Decided on: 10 January 2020
Bench: N.V. Ramana & V. Ramasubramanian
Petitioners: Anuradha Bhasin , Ghulam Nabi Azad
Respondents: Union of India & Ors.
Ever since Independence the position of Jammu and Kashmir in the Indian Territory, it’s Constitution and Politics has been one of much ambiguity and dispute and more often than not bloody. The measure of control the Nation has over the State has constantly been put into question. It has been subject to several disputes and criticisms in spite of the constitutional provisions set out to abate the very same. Lately by virtue of Constitutional Order 2721, the Union has single-handedly succeeded in nullifying the special status2 of the State as well as dividing the State into two Union Territories, thereby ending the legacy and disputes over Kashmir, as a State.
Seemingly, while the fate of Jammu and Kashmir was being decided, the State was restrained under a complete information blackout along with restrictions placed on movement. A writ petition filed for ascertaining the legality of such orders, and claiming immediate relief from the restrictive measures has been recently decided by the Honourable Supreme Court. The decision of the Court has given rise to criticisms, questioning the socio-political impact of the decision, as well as the arbitrary actions of the Union disregarding the consequential violations of fundamental rights. The Court while deciding should keep in mind that such a decision is bound to be looked upon as a precedent in prospective cases, thereby affecting the interests of not just a state but that of the entire nation. For this reason, the decision of the Supreme Court has opened up the scope for a thorough analysis of the issues raised and the judgement pronounced.
FACTS
The issue began when the Civil Secretariat, Home Department of the State of Jammu and Kashmir issued a Security Advisory to the tourists and Amarnath Yatris to truncate their stay and make preparations for return in the interests of safety and security. On 4/08/2019 all forms of communication services including mobile networks, landlines, and internet services were cut off in the valley, also placing restrictions on movement. Prior to this, educational institutions and offices were shut down. On 5/08/2019 Constitutional Order 272 was passed by the President abrogating Article 370 of the Constitution, whereby all the provisions of the Constitution now become applicable to the State of Jammu and Kashmir, as well as modifying Article 367 in its applicability to the State. On the same day Section 144 CrPC was imposed over the State by District Magistrates. Aggrieved by the aforesaid restrictions, a suit was initiated through a writ petition by Ms. Anuradha Bhasin, Executive Editor of the Kashmir Times by virtue of Article 32.
ISSUES
Whether the imposition of restrictions under Section 144 Cr.P.C. was valid?
Whether the Government can claim exemption from producing all the orders passed under Section 144 Cr.P.C and other orders under the Suspension Rules?
Whether the freedom of speech and expression and the freedom to practice any profession, or to carry on any occupation, trade or business over the internet is a part of the fundamental rights under Part III of the Constitution?
Whether the Government’s action of prohibiting internet access is valid?
Whether freedom of press of the Petitioner was violated due to the restrictions?
ARGUMENTS OF THE PETITIONER
The Counsel appearing for the Petitioner stated that they were unable to function the Srinagar edition of Kashmir Times, post 5/08/2019 due to the restrictions imposed. Curtailing the internet is a violation of Fundamental Rights under Articles 19(1)(a) and 19(1)(g)3 and should be subjected to the test of proportionality. Restrictions on internet services passed by virtue of Suspension Rules4
contemplate the restrictions to be temporary. The Orders so passed suffer from non-application of mind and moreover, they did not provide any reasoning as to the necessity of such restrictions, as is required by procedure. Finally, the Learned Counsel for the Petitioner contended that the Orders are based on mere apprehension of danger rather than actual danger.
ARGUMENTS OF THE RESPONDENT
The Learned Solicitor General who appeared on behalf of the State observed that the primary duty of a State was to ensure the safety and security of its citizens. Stating further that the Petitioners were relying on incorrect facts and individual movement was never restricted. There was a due application of mind. He contended that the Orders passed under Section 144 Cr.P.C. can be preventive in nature, in order to prevent danger to public safety, keeping in mind the history and background of the State. He submitted that when there is no mala fide alleged by the Petitioner, the Court has limited jurisdiction to sit in appeal over the decision to impose Section 144 Cr.P.C. Further, the internet was never suspended in the Jammu and Ladakh regions and the “jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both media are different”. Moreover, it is not possible to ban certain websites alone. Finally, the Solicitor General contended that the Orders passed under the Suspension Rules were indeed in compliance with the procedure.
JUDGEMENT
After hearing the parties, the Court, on 10 January 2020, finally passed the following verdict –
The State is directed to publish all Orders and any future orders made under Section 144 Cr.P.C. as well as Suspension Rules, to enable the affected persons to challenge it before a competent court.
Freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restrictions upon such fundamental rights should align with the mandate under Article 19(2) and (6)5, inclusive of the test of proportionality.
The Review Committee constituted under Rule 2(5)6of the Suspension Rules must conduct a periodic review within seven working days of the previous review. The State is directed to review all Orders suspending internet services forthwith. Orders not in concurrence with the law laid down herein shall be revoked.
An Order passed under Section 144 Cr.P.C. should state material facts, the power should be exercised in a bona fide and judicial manner, and should be passed relying on the material facts, indicative of application of mind. The Magistrate is bound to follow the principle of proportionality and apply the least intrusive measure. Repetitive orders under this Section is an abuse of power.
CASE ANALYSIS
The decision of the Honourable Supreme Court did not guarantee any immediate relief to the Petitioners. The Court, in its judgement stated that the power under Section 144 CrPC should be exercised in a bonafide manner. In light of such an observation, the Court should have examined the circumstances underlying the imposition of restrictions in the valley. It was essential for the Court to consider the issue:
Whether the Orders passed under Section 144 Cr.P.C. was completely bonafide or was it in pursuance of any ulterior political motives?
As facts have it, on 5/09/2019 the State was put under heavy restrictions and total information blackout whereby it’s people were forced into ignorance of the Order passed, determining the fate of Jammu and Kashmir. On examination of the events that led up to the proclamation of such an Order, the events show a pattern of arbitrariness.
In April 2018, the Supreme Court headed by a bench of Justices Adarsh K. Goel and R.P. Nariman observed that “Article 370 of the Constitution conferring special status on Jammu and Kashmir and limiting the Central Government’s power to make laws for the State had acquired permanent status through years of existence, making its abrogation impossible”7
Article 370(3) of the Constitution confers powers on the President of India to declare, with exceptions and modifications, Article 370 as operative or inoperative, provided that he has a prior recommendation of the Constituent Assembly of Jammu and Kashmir. The Constituent Assembly of the State was dissolved in 1957 after drafting the State’s Constitution. This is the contributing reason by which the Supreme Court declared permanency to Article 370. In order to overcome this situation the President, by virtue of the power conferred upon him under Article 370(1)8, made modifications to Article 3679 by adding a new clause which replaced the phrase ‘Constituent Assembly of the State’ to ‘Legislative Assembly of the State’. With this amendment, the President rendered himself capable of abrogating Article 370, the one which the Supreme Court laid down as “permanent” and “impossible to abrogate”. Constitutional Order 272 further stated that if the Legislative Assembly is in suspension, the power to take decisions on behalf of the same rests on the Governor of the State.
It is no coincidence that the day the Order’s were passed, the Legislative Assembly was temporarily suspended due to the restrictions imposed over the State. Thus the abrogation of Article 370 was effectively passed without any opposition from the State legislature, and with the concurrence of the Governor, a Central Government appointee.
All these facts underlying the restrictions imposed in the State, suggests, at the very least, a sufficient and reasonable ground to suspect that the Order was not passed in complete good faith. The Court was bound to examine such an issue since the matter at hand involves violation of the Fundamental Rights of an entire State.
The Orders of restrictions imposed by virtue of both Section 144 of Cr.P.C and the Suspension Rules did not state any material facts which warranted such an order. Material facts are what enables judicial review on such Orders. The importance of stating material facts have been emphasized by this Court in several cases including the Babulal Parate10 case of 1960. In Ram Jethmalani vs. Union of India11, the Court specifically held that
“So that the right guaranteed by Article 32(1) be meaningful, and particularly because such petitions seek the protection of Fundamental Rights, it is imperative that in such proceedings the Petitioners are not denied the information necessary for them to properly articulate the case and be heard, especially where such information is in the possession of the State”.
Therefore, failure to follow procedural requirements as well as non-compliance of law by the State is contemplated to be enough reason for the Court to quash such Orders and grant relief to the Petitioners as well as the citizens of the State.
The current socio-political environment in India is such that the decisions made by the Courts, especially one which involves questions relating to fundamental rights, require utmost care and attention. India, in many of its aspects, has become more of an autocracy than a democracy. The last shreds of the country’s hope to protect its democracy and Constitution rests on the judicial system. In such desperate times, it wouldn’t do if people lost faith in their Judiciary.
CITATIONS
1. The Gazette of India, “The Constitution (Application to Jammu and Kashmir) Order, 2019” (5 August 2019).↩ 2. The Constitution of India, art. 370.↩ 3. Id., arts. 19(1)(a), 19(1)(g).↩ 4. Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.↩ 5. Supra note 2, arts. 19(2), 19(6).↩ 6. Supra note 4, Rule 2(5).↩ 7. Dhananjay Mahapatra, “Article 370 has acquired permanent status : Supreme Court”, The Times of India, April 4 2018, available at : https://timesofindia.indiatimes.com/india (last visited on January 12, 2021).↩ 8. Supra note 2, art. 370(1).↩ 9. Id., art. 367.↩ 10. Babulal Parate v. State of Maharashtra, AIR 1960 SC 51.↩ 11. Ram Jethmalani v. Union of India, AIR 2011 SCC 1.↩
The forward pace of globalization is greatly influencing the phenomenon of organized crime. Transnational organized crimes syndicates take advantage of market liberalization, relaxed border controls and internet facilities and carry out their nefarious activities in multiple countries. The United Nations Convention against Transnational Organized Crime, 2000 (UNTOC) defines the phenomenon in Article 3 (2) as:
The offences committed in more than one state;
It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another state;
It is committed in one state but involves an organised criminal group that engages in criminal activities in more than one state; or
It is committed in one state but has substantial effects in another state.
The activities of organised criminal groups are not only interrelated, but they are also connected to political developments such as weak states, economic conditions, the open or close nature of markets and sanctions; socio-cultural developments such as the significance of clans, families or other groups1.
Human Trafficking as a Transnational Organised Crime
Human trafficking and exploitation of human beings and their vulnerabilities has evolved as one highly lucrative facet of transnational organised crime.
Owing to the multitude of right violations, their severity and scale, human trafficking is often considered as a modern form of slavery or slave trade and the very antithesis of the Universal Declaration of Human Rights, 1948 (UDHR). Trafficking follows in the tracks of poverty and inequality, the lack of educational opportunity and access to health-care, gender discrimination including gender-based violence, or racial inequality. Accordingly, trafficking occurs worldwide, although most victims are trafficked from poor countries to richer regions. Mostly, several related offences accompany the act of trafficking such as – breaches of immigration laws, document forgery, corruption, tax evasion. These are coupled with the offences directed at the individual such as – coercion or threats, extortion, aggravated sexual assault or even murder2.
According to Article 3(A) of Trafficking Protocol, 2000:
“Trafficking in persons shall mean the recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse, of power or of a position of vulnerability or giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
The human trafficking possesses a threat to the legal framework, integrity and the security of nations. It has grave consequences for the safety, welfare and human rights of its victims. Organised crimes syndicates mobilize people to in turn smuggle more people for working as migrant workers, who are then exploited as forced labourers and slaves and women victims are forced into prostitution. They are also used for trafficking drugs and arms, thereby weakening the economic and legal structure of countries.
Forms of Human Trafficking
There are various forms of trafficking depending upon the purpose for which the people are trafficked3.
Trafficking for forced and bonded labour
Trafficking for forced criminal activities
Trafficking for sexual exploitation
Trafficking for removal of organs
Trafficking of children by adoption for slavery and sexual abuse
The victims are often trafficked by trickery and deception, mainly through false advertisements offering high-paying employment, educational opportunities, matchmaking services, mail order bride agencies, usually involving a relative, a boyfriend or a friend of a friend. Sometimes victims are abducted from orphanages. Once they are recruited into sexual slavery trade, their identification documents are confiscated and they are broken in. Then they are forced to work in red light areas, massage parlours, brothels and strip clubs and are coerced to blend in with those engaged in prostitution by choice. Many victims are auctioned off on the internet through sex websites, escort services and virtual brothels. Victims that are too ill or considered too old are simply discarded4.
Children are trapped in sexual servitude as they are easy prey and less able to escape exploitation. Children are traded for adoption purposes. Older children are bought or lured by offering shelters, food or toys and infants are often kidnapped, stolen or taken away with the help of hospital or other institutional staff. Women are trafficked to sell off their children. The so-called brides are ordered from other countries often from Asia to Europe, with the hidden intention of getting them pregnant and obtaining their children for sale5. Anecdotal evidence from social services in some of these countries also shows that women with their children are ordered for marriage and the new husband adopts children with the real purpose being to sexually them6.
Trading in children for adoption – whether internationally or in the domestic market is more labour intensive and more complicated but it also brings considerably higher profits. Child trade usually takes place in undeveloped or developing countries. The main reasons for the same are various problems like to economic necessity, gender discrimination, lack of proper education facilities, social exclusion of the community, a weak system of protection, or an inefficient legal system. Wars, natural disasters, globalization are considered to be other external factors in addition to poverty that is prevalent in such nations7.
International Legal Framework for Combating Human Trafficking
Universal Declaration of Human Rights adopted by the United Nations in 1948, acknowledges that the recognition of inherent dignity and of equal and inalienable rights of all the members of the human family is the foundation of justice, equality, freedom and peace in the world.
Palermo Convention or UNTOC, 2000 is designed to be the premier global crime suppression convention in the fight against organised crime. The three Protocols – The Human Trafficking Protocol, The Migrants Smuggling Protocol and The Firearms Protocol deal with specific crimes stipulated as sufficiently serious to justify the application of the UNTOC’s regime for international cooperation and many of the provisions of the UNTOC are specifically designed meant for the implementation of the Protocol. This is the first global legally binding instrument with an agreed definition on ‘trafficking in persons’.
The UN Protocol, to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 is the International legal instrument to address the crime of human trafficking, particularly in women and children. This instrument is considered to be a law enforcement Protocol addressing aspects of Prevention, Prosecution and Protection. The element of ‘consent’ is irrelevant under this Protocol as it reflects the common understanding that individuals cannot give consent to be tortured , abused or exploited8.
Constitutional and other provisions in India
According to The National Crime Records Bureau (NCRB), every 8 minutes, a child goes missing in our country. According to the Ministry of Women and Child Development, 19,223 women and children were trafficked in 20199. India is considered to be the greatest hub of this crime in Asia. Last year India has been coined as, ‘The world’s most dangerous country for women’ ahead of Afghanistan, Syria and Saudi Arabia, according to a poll by the Thomson Reuters Foundation, which surveyed 548 experts on six different indices including health care, discrimination, cultural traditions, sexual & non-sexual violence and human trafficking10. But the National Commission for Women and Children rejected it outright, pointing out that rape, harassment, human trafficking and other forms of violence against women appeared to have risen in India because more cases are being reported driven by public outrage11.
India beinga signatory to many International Conventions like Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), Convention on the Rights of the Child, 1989 (CRC), Trafficking Protocol, Beijing Rules and Palmero Convention, a duty is cast upon the government to adopt the provisions of these Conventions into Domestic Law.
Looking into the provisions of our Constitution, we can see that human trafficking is punished and protection from such exploitation is guaranteed under Part Three as Fundamental Right. Article 23 of the Indian Constitution guarantees protection against exploitation, prohibits trafficking in humans and all forms of forced labour and makesthis punishable under law. Article 24 prohibits child labour and protects children below 14 years working in factories, mines or other hazardous employment.
Under Criminal Law (Amendment) Act, 2013, Sections 370 & 370A were introduced in Indian Penal Code, 1860 (Act 45 of 1860). Section 370 defines trafficking of persons, which largely replicates UN protocol’s definition, Section 370A explains the exploitation of trafficked persons. The punishment varies according to the nature of the offence. It varies from seven years to life imprisonment which may mean the person’s remaining years of natural life.
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 201812, which was passed by Lok Sabha in 2018, is not yet passed in Rajya Sabha till date. There are provisions for investigation of all types of trafficking, rescue, protection and rehabilitation of trafficked victims in the prescribed Bill. The Bill also classifies certain purposes of trafficking as aggravated forms of trafficking, which attracts a higher penalty. The penalties set for several offences are higher than the existing punishments in the laws prevailing.
Conclusion
We can conclude by reiterating the fact that human trafficking is a form of modern-day slavery. Here the victims are often considered as commodities. It leads to severe violation of human rights and deprivation of human dignity. The UN identified the ‘Three-P-Strategy’ – ‘Prevention, Protection and Prosecution’ as a governmental duty to take preventive measures, protection steps and prosecution to curb the crime. The ‘Three-R-strategy’ – ‘Rescue, Rehabilitation and Reintegration’ as identified by the UN is victim-oriented and this needs the concerted effort of local and international organizations for effective implementation13.
The Legal Boffin 