BANGLADESH: Military dealing with case assignments in the Supreme Court and the systematic smothering of the judiciary

A Statement by the Asian Human Rights Commission

FOR IMMEDIATE RELEASE
AHRC-STM-264-2008
October 14, 2008

The media reports alleging that it is in fact a military officer who decides the case lists in the Supreme Court of Bangladesh is a shocking revelation which sharply brings to light the militarised political context in the country. Barrister Rafique-ul Haque who is defending two former prime ministers of Bangladesh in graft cases revealed to the Bar and the media that an army major is occupying a room on the second floor of the Supreme Court Building and deciding which judge should decide what case in the country.

It has also been revealed that three senior lawyers, Barrister Rafique-ul Haque, Barrister Shafique Ahmed and Barrister M. Amir-Ul Islam have received letters from anonymous sources stating that they are national betrayers and threatening the lawyers and the members of the judiciary with cross fire, which in the local context means assassination.

The Asian Human Rights Commission (AHRC) and several other national and international civil society organisations have reported that the current administration in the country is trying to smother judicial independence in Bangladesh by all possible means. The incidents cited above are the latest in a series of revealing acts where the army has infiltrated the judiciary to an alarming level. The recent reconstitution of High Court judges at the behest of the army is yet another example of this increasing interference.

Interference of any nature, however minor it may be, with the administrative and adjudicating function of the judiciary is a major setback for any country. Bangladesh need not look anywhere else to find shocking examples of how bad such interference could be. Pakistan, Burma, Nepal and Sri Lanka are immediate South Asian neighbours that have suffered severely from such interference with the function of their judiciaries. In Pakistan, however, the Bar was bold enough to challenge this interference when the independence of the judiciary and that of the lawyers was threatened by General Musharraf’s military regime.

The recent history of the administration of justice in these illustrates the fact that the judiciary is weak, subjected to executive control and sometimes even corrupt. The situation of Bangladesh in this regard is no different.

It is obvious that the judiciary in Bangladesh is fully aware of such interference by the executive and the military. In the context of the widespread fear psychosis in the country and the practice of impunity the judiciary may be unwilling to want to put up resistance against such interference. However, there is a widespread feeling among the lawyers and the people that executive and military interference must be resisted.

Threats received by lawyers and senior judges and even the recovery of explosives and explosions in the residences of sitting judges who challenge the current administration is proof that the current administration is bent upon silencing all opposing voices. Even the Bangladeshi media has fallen victim to this tragedy. Unfortunately some senior jurists within Bangladesh rally along with the administration, condemning anyone who opposes the current government and even directly and indirectly support the administration.

It appears that as of now the armed forces of Bangladesh is in absolute control of the government. The armed forces have literally transformed the administration into a puppet that dances to their tune.

So many of the important government posts are occupied by members of the armed forces that demilitarizing the country’s administration will take years. It is unfortunate that most of the country’s politicians are facing graft charges or have such tainted backgrounds that none of them dare to challenge this new status quo that is pulling the country into deeper corruption and nepotism. The support given by the World Bank and some other European countries to the military regime strengthens the militarization process in the country and makes the transformation into democracy and rule of law even more difficult.

The present situation can easily degenerate and the whole country may come under the grip of the military as has happened in countries such as Burma. It is the duty of all to prevent such a situation and it is particularly the duty of all civil society organisations and the international community to ensure that the militarization process should be brought to an end. In this context it is most important that the military presence in the Supreme Court office and other offices such as Sessions judges office, the Special Tribunal on Anti Corruption and the Judicial Magistrate’s Court should be brought to an end immediately.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Military invades Bangladesh’s judiciary

RATER ZONAKI

HONG KONG, China, October 14, 2008

The judiciary in Bangladesh is being seriously undermined by the military, to the point that it can no longer carry out its functions. Judges and courts are subject to illegal, unconstitutional and even criminal practices.

Among the more serious recent incidents, two handmade bombs were discovered in the residence of Justice Sharif Uddin Chaklader, who until last week was head of a High Court Division dealing with petitions challenging detention orders against politicians and businessmen. In late September a bomb exploded in front of the house of Justice Tariqul Hakim, another Supreme Court judge. Luckily neither judge was injured.

Anonymous letters threatening assassinations were also sent to three senior lawyers – Barrister Rafique-ul Haque, Barrister Shafique Ahmed and Barrister M Amir-ul Islam – as well as the present and past presidents of the Supreme Court Bar Association.

Rafique-ul Haque, who is a former attorney general of Bangladesh, lamented the situation during an urgent meeting of the Supreme Court Bar Association last Sunday. “An army major sits in a room on the second floor of the Supreme Court building where no one is allowed to enter,” he said. He explained that this major handles the case list for the Supreme Court judge – meaning that only those cases the military-backed government approves of will be given a hearing.

Barrister Haque also explained that the chief justice has reconstituted the benches of the High Court Division, assigning junior judges to deal with sensitive criminal cases and sidelining more competent senior judges. It is generally understood that this was done under military pressure.

These incidents expose the vulnerability of judges and lawyers at the highest levels of the judiciary. Not even the Supreme Court of Bangladesh can confront the military authoritarianism in an organized manner.

These incidents have occurred whenever the military-controlled government has faced serious challenges from the highest levels of the judiciary, especially regarding enquiries into the legality of its actions in the past 21 months of emergency rule in Bangladesh.

The government, which grabbed power illegally, has no legitimate authority to rule the country. It is already unhappy with the decision of the High Court that declared its promulgation of ordinances to be beyond its constitutional powers. Also, under emergency laws, the current rulers have disallowed decisions by the Supreme Court on granting bail to certain accused persons.

It appears that over-ambitious high-ranking officers of the armed forces are behind these incidents. The armed forces of Bangladesh shamelessly believe that by invading the civil institutions they can achieve more, especially if a powerful institution like the judiciary is sufficiently suffocated. The people of Bangladesh seem headed for an even more disastrous era under the grip of the armed forces.

If the armed forces dictate to the highest judiciary, how can their abuse of power be curbed? Should the judiciary entertain or tolerate these ongoing military invasions? What role is the chief justice of Bangladesh playing to stop the humiliation of the judiciary at the hands of the military? Why is the lawyers’ community silent while its professional dignity and sanctity are under serious threat? Why does the Supreme Court not hold the armed forces accountable for grabbing power and occupying civil institutions illegally?

People who are aware of the situation in Bangladesh know that corruption and abuse of power with blanket impunity are among the biggest setbacks to the country’s journey toward democratic stability. At the same time, the existing system allows people to become involved in corruption, either by choice or by force, due to the lack of transparency and accountability by civil servants and politicians who are close to the military rulers.

This does not mean that only a few members of a specific professional community are responsible for leading the country toward disaster or capable of improving things overnight.

Officers of the armed forces are accustomed to taking orders and following commands. However, such practices are useless in civil institutions. Many decisions taken by the military in civilian circumstances are not based on rationality or on a constructive assessment of the consequences of these decisions. This is true because the military officers have no respect for civilians and civil institutions. Most people agree that the armed forces are absolutely incompetent to solve civil problems by adopting military rules and regulations.

The Bangladeshis and the international community who are committed to the rule of law should think seriously whether it is time to remain silent or to act to ensure the survival of Bangladesh’s judiciary and other civil institutions. Remaining silent could kill all hope of justice ever being restored to its rightful place in Bangladesh.

–

(Rater Zonaki is the pseudonym of a human rights defender based in Hong Kong working at the Asian Human Rights Commission. He is a Bangladeshi national with a degree in literature from a university in Dhaka. He began his career as a journalist in 1990 and engaged in human rights activism at the grassroots level in his country for more than a decade. He also worked as an editor for publications on human rights and socio-cultural issues and contributed to other similar publications.)

Source: upiasiaonline.com

Our uncaring society

31 Aug 2008, 0041 hrs IST, Meenakshi Kumar,TNN

 

On August 21, just a few hours before the eagerly awaited iPhone was launched in the country, a young man was walking the streets of central Delhi, pleading for help. He had been stabbed seven times. Bleeding profusely, his assailants still right behind him, Manmohan Singh desperately tried to flag down cars, buses, anyone who’d help. No one stopped. Finally, a passing autorickshaw driver took pity on Singh, taking him off the streets and straight to hospital.

Just three days before Singh’s ordeal on Delhi’s unquiet streets, Nirmala Kadam died on a busy road in Mumbai. Hit by a taxi while crossing the road, Kadam was then run over by a bus. As she lay in a pool of blood, begging for water, the world turned a blind eye to Kadam’s distress. Even the constables who came ostensibly to help, treated her with callous neglect. She died on the way to hospital.

Singh and Kadam are not the only victims of our uncaring society. Almost every other day, on some mean street, in some madding city crowd, someone falls victim to the apathy of his fellow citizens. People refuse to help in the hour of crisis. They turn their backs or remain mute bystanders. What has happened to our sense of compassion? Did we ever have it at all?

TOO MUCH TROUBLE
“It’s not that people are lacking in compassion,” says sociologist Patricia Uberoi. “It’s just that they don’t want to get involved.” That’s because citizens generally fear the cops and don’t want to get embroiled in legal issues. On the streets, it’s hard to enforce the Supreme Court’s guidelines directing lay Indians never to ignore the injured and medical practitioners never to turn away victims of road accidents. Often, bureaucratic formalities engulf the Good Samaritan. Last month, Mumbai businessman Kirit Gada took the victim of a train accident to hospital. Much to his shock, he was fined Rs 1,200 by the police and labelled ‘drunk’ by the hospital authorities after he had an argument with a doctor over delayed assistance to the victim. Gada would now think twice before reaching out to another casualty.

“As long as accident cases involve bureaucratic hassles, nobody would like to help,” says social scientist Shiv Vishwanathan. “A lot of them may be keen, but shy away from coming forward.” If it’s a criminal incident, the legal system may deter people from offering a helping hand. “People in India are the same as anywhere else in the world. But it’s our system that makes them so callous. Our judicial system treats even a witness as a criminal. So why would a common man come forward to help?” asks Ved Marwah, former Delhi police commissioner. The infamous BMW incident (in which an industrialist’s grandson Sanjeev Nanda ran over six people in Delhi in January 1999) is a striking example — many of the witnesses in the case turned hostile in court.

Many believe that Indians lack a strong sense of civic duty. “We have become comfortable in ignoring our basic duty,” says Maxwell Pereira, retired senior police officer. He argues that fear of the cops and the legal system is misplaced. The police just do their duty, he says, but it’s our sheer cussedness and attitude that prevents us from helping out. “It’s sad that when a person is lying on the road, we prefer to look the other way. It speaks volumes about our sense of duty towards our fellow citizens.”

 

WE JUST DON’T CARE
At times, it’s about passing the buck — “let somebody else help, I’m in a rush.” Says Harman Singh Sidhu, who was once a victim of an accident and now heads Chandigarh-based NGO ArriveSAFE, which helps people like Delhi’s unfortunate Manmohan Singh. “At least 90% cases (the NGO has helped) are those where people have refused to help the victim,” he says.

It’s an alarming statistic. But more shocking by far is the callousness of those the state pays to be Good Samaritans — ambulances, police and hospitals. Sidhu recalls seeing ambulances heedlessly whiz past accident victims. It is common enough to hear of hospitals turning casualties away.

In Delhi recently, one hospital demanded a Rs 40,000 deposit from the person who brought in an accident victim. When the Good Samaritan refused, he was asked to take the casualty elsewhere. A scuffle ensued and the police were called in. It was revealed that the hospital had a history of denying admission to accident victims.

But it’s an incident in Kolkata which takes the cake and shows how far we can fall. When security guard Kadam Prasad Panth was taken ill on a bus, the driver stopped. Panth was brought out of the bus and made to lie on the pavement. People crowded around; no one did anything to help or offer water. Meanwhile, police from two different areas squabbled over which jurisdiction applied to Panth. By the time they sorted out their differences, the old man was dead.

What explains such callousness? “The visuality of the situation forces us into becoming spectators. A complete sense of non-involvement takes over,” reasons Vishwanathan. We switch off and rush away to resume our busy lives.

But some believe it may also have something to do with our sense of social status. “The higher we are in the social pecking order, the lower we are in our compassion quotient,” says Subroto Das, founder, Lifeline Foundation. “In most cases, it’s usually the villager or the poor man on the cycle who will help. The excuse given by big car owners is that the upholstery of the car will get spoilt or that they don’t have time to waste,” he adds.

Das should know. Ten years ago, his car rammed into a tree on a highway in Gujarat. His wife and a friend in the back seat were badly injured. Though he was badly hurt too, Das managed to work his way out of the car. He spent four hours trying to flag down vehicles on the highway. It was much later that a milkman stopped and helped Das get on a bus. Today, Das’ NGO provides an ambulance service and basic medical aid within the ‘golden hour’ (the hour immediately after an accident). The service covers 1,476 km of highways across Gujarat, Maharashtra, and West Bengal.

LIMITED COMPASSION
Natural calamities and riots often produce a crop of touching stories. During the Mumbai floods of 2005, the worst in living memory, residents famously handed out bread and water to the weary and threw open their homes to complete strangers. And yet Mumbai ignored Nirmala Kadam as she lay dying on the street.

Vishwanathan believes Indians are generous when all that’s needed is food and shelter, but mean-spirited if an incident could end in a police station or court of law. Our Gandhigiri appears to stop at donating money to victims of natural disasters. But we would rather not take a casualty off the roads and to hospital. At least part of the callousness may be a habit ingrained by years of clandestine help during communal riots. As Pereira says, those who help, do it because they don’t want more riots. “But in accident cases, people just don’t want to help.”

The fact that people can be caring sometimes and callous at others puzzles Uberoi. “It’s a question that needs to be asked. How can people be so caring with family and friends, but not towards his fellow man, even if a stranger? It’s almost like the need to keep oneself and one’s homes clean but not your surroundings. It’s a strange contradiction,” she wonders.

Everyone agrees it is time the state created institutional mechanisms to ensure the good Samaritan is hailed, not harassed. Till then, we may carry on, turning our backs on civic duty.

(With inputs from Kumar Sambhav, Mumbai and Krishnendu Bandyopadhyay, Kolkata)
Email: meenakshi.kumar@timesgroup.com

 From: http://timesofindia.indiatimes.com/Sunday_Specials/Our_uncaring_society/articleshow/3426504.cms

 

BSF kills one in Benapole

UNB, Benapole

A Bangladeshi cattle trader was shot dead by Indian Border Security Force (BSF) on Agrabhulat frontier in Benapole early today.

The deceased was identified as Amir Mollah, 40, son of Ali Mollah of Agrabhulat village.

BDR sources said when a group of 7/8 cattle traders were retuning to their village from the border area, BSF troops of Jhaudanga camp fired on them, killing Amir Mollah on the spot.

The border guards of India took away the body into their territory.

Tension has been prevailing along the border.

Source: The Daily Star, Bangladesh,  August 29, 2008.

Minor alleges sister forced her into sex trade

NEW DELHI: A 13-year-old girl from Lucknow has alleged she was forced into sex trade by her sister who runs a brothel in her flat in Rohini’s Sector 4. The girl was helped by an auto driver and an FIR has been filed with the help of National Commission for Women.The girl, Rashmi, was brought to

Delhi by her brother-in-law (Ramesh), 15 days back on the pretext of helping her older sister (Lata), who is pregnant. Rashmi came willingly and was made to do household chores like cleaning, sweeping and cooking. Very soon, however, her sister allegedly forced her into sex trade.Speaking to

Times City, Rashmi said: ” My sister asked me to practice with my brother-in-law before I could entertain customers. They both forced me into it. Men and girls came every week to the house. This is their only source of income. One of the girls even got me a medicine to lessen the pain I felt.”Unable to continue, Rashmi decided to run away from the flat on Wednesday morning on the pretext of getting milk for the house, while her sister and brother-in-law were still asleep.

With only a small bag of clothes and 50-odd rupees on her, Rashmi set out for

Lucknow , but was lost in the big city. Fortunately for her, an auto driver, Radhe, helped her out when he saw her, surrounded vulnerably, by other auto drivers at Jain Nagar bus stand near Rohini Metro Station.” She was pleading to be taken to New Delhi Railway Station, but was being ridiculed by the drivers,” said Radhe. ” She reminded me of my own nine-year-old daughter . I knew she was not safe alone. So I decided to drop her to her house. But when she narrated her story, I realised it was better if I took her to my home in Rajiv Nagar in Rohini,” he added.

Radhe then consulted one Sapna Chowdhury, a teacher in a primary school in Rajiv Nagar, who also is a social worker. She in turn filed a complaint with the National Commission for Women (NCW).

The girl was brought to the commission on Thursday, and in the presence of NCW member Manju S Hembrom, an FIR was lodged. The girl was later taken for a medical examination. ” We have asked the police to investigate on the sex racket that the girl has alleged is taking place in the flat of Rohini sector 4. We will ensure the girl goes back to

Lucknow, safe and,” said Manju S Hembrom.(Names of victim and accused have been changed)

Source: The Times of

India, 29 Aug 2008, 0822 hrs IST, Deeksha Chopra,TNN

 

Identity crisis: Converting back to Hinduism couldn’t save his life

PHIRINGIA (KANDHMAL): Gayadhar Digal paid the price for taking matters of religion in a communally troubled part of the state too lightly. He was born a Hindu and died a Hindu, but in between he proclaimed his liking for Christianity. This cost him his life at his native Kasinipadar village in Phiringia block of Kandhmal district.On Tuesday afternoon, Sangh Parivar men, enraged over the killings of senior VHP leader Swami Laxmananda Saraswati and his disciples, attacked his house. Gayadhar, with his wife and son, ran for safety only to be hacked one km away in the field. Gayadhar succumbed. Raimati and Baisnab, a school student, are battling for lives in hospital. Attackers set ablaze many of the 350 houses in the village, with the Digals suffering the most: losing their breadwinner.

Why was the family targeted? The reasons offered by their relatives and villagers would shock even the stoic. “My uncle was a Hindu. I don’t know why they attacked him and his family. Possibly, it was due to confusion over his religious identity,” said niece Malati. Saroj Kumar Digal tried to clear the air. “All the Christians had left the village and moved into the jungle, fearing violence. The attackers perhaps mistook Gayadhar to be a Christian and vented their ire on him.”

Why him? And a villager whispered: “He practiced Christianity for sometime, but was back to the Hindu-fold later. Maybe those in the mob who were from nearby areas, didn’t know about his reentering Hinduism.”

“The situation in Kandhmal is such that Christians have started claiming to be Hindus to escape communalists’ rage. As such, it’s difficult to ascertain religious affiliation of people. Many people, even after embracing Christianity, choose to remain Hindus in official records for SC/ST benefits,” said a police officer.

 

 

Source: The Times of Inida, 29 Aug 2008, 0245 hrs IST, Sandeep Mishra,TNN

 

Flight for life: Nuns forced to take shelter in forests

The stench of burning tyres, walls coloured black with soot, glass splinters strewn across the streets, broken furniture and people hiding in the forests — Orissa is again caught up in communal rage.”We have been running to the forest now and then. We are terribly scared to remain inside the convent and be burnt alive, so we thought the forest would be a better option,” said Sister Ramya, who along with 11 nuns and school girls is now hiding in a Christian-run school in Phulbani district.

“It’s raining and we had to take shelter in the school. It is better to die together,” she said. Running for life since Saturday after the killing of VHP leader Swami Laxmanananda Saraswati, Sister Ramya said they have been surviving on bananas. “We are too scared to even go to the convent and cook.”

Sister Ramya’s plight is shared by several others belonging to the Christian community, at the receiving end of the latest onslaught by saffron mob on the prowl to avenge the killing of their leader who had once said, “The sooner Christians return to the Hindu fold, the better it would be for the country.” Though communal flare-ups are quite common in southern Orissa where Hindu groups and Christians are posed on either sides of a war over conversions, people working in the churches — taking care of the poor and orphaned — are the worst-hit. Aware of the possibility of being attacked, they are now living in fear.

Father Paulraj, who tops the hitlist of VHP activists and has been repeatedly threatened, runs an orphanage in Phulbani district. They have 200 children under their care. In Baligura, mob destroyed the property of Mount Carmel Convent, which was running a dispensary, hostel and computer centre for tribals. The dispensary was the only source of first-aid for villagers.

Angry activists also attacked a hostel run by the

Church of North India which housed 40 poor children. The pastor who ran the hostel fled to a nearby forest with the children to avoid a mob and the group is still hiding there. Sister Ramya, who’s with Carmel Convent in Phulbani, said they are running an English-medium school and teaching in it. They also have a hostel for students of classes XI and XII. “Nobody had any complaints. We didn’t even have Catechism classes for the students. We’ve done no harm. I don’t know why we have to suffer like this. I feel there’s no one to help me now,” she said, her voice choking with emotion.A pastor whose church was attacked in

Bhubaneswar said, “A mob of about 70-80 people came with tyres, kerosene, petrol and axes. Many of them were drunk. They flung burning tyres into our prayer room and even injured the cops who tried to resist.”As various districts were convulsed by the faith divide, Sister Ramya said, “We long to be let out of this place and at least breath free,” adding that the allegations are all made up stories. “Christians here are not equipped to kill such a prominent leader,” she said.

 

                                                    

Source: The Times of India, 27 Aug 2008, 0039 hrs IST, Joyce William John,TNN

Legality of Truth Commission challenged in HC

 

Staff Correspondent

The legality of the Truth and Accountability Commission, formed on July 30 to let people voluntarily admit to their corruption and get mercy depositing ill-gotten wealth to the state exchequer, was challenged in the High Court on Monday.
   Supreme Court lawyer Adilur Rahman Khan, women’s organisation Nari Grantha Probartana executive director Farida Akhter, physician-turned-politician Dipu Moni and rights organisation Odhikar’s acting director ASM Nasiruddin Elan filed a writ petition challenging the constitutionality of the Voluntary Disclosure Ordinance 2008, under which the commission was set up.
   The petitioners sought a stay order on the functioning of the commission as an interim measure and finally cancellation of the ordinance and termination of the commission.
   The High Court bench of Justice Khademul Islam Chowdhury and Justice Mashuque Hossain Ahmed posted the hearing of the petition, moved by the petitioners’ counsel Taufique Newaz and Asaduzzaman, for today.
   The preamble and some other clauses of the ordinance said the government had promulgated the ordinance [on June 5] to ‘remove corruption’ by means other than criminal trial and to reduce the burden of trials upon the state.
   The writ petition said that the objective of the ordinance was contrary to the constitutional provisions.
   According to the constitution, an alleged offender can be handed punishment after a fair trial by a competent court or tribunal and there can be no alternative to the courts or tribunals for holding trial of a criminal offence, the petition said.
   The commission set up under the ordinance is neither a court nor a tribunal established by any law, the petition stated adding, ‘Even the Supreme Court has ceased to have its supervisory authority, granted by the constitution, over the decision of the commission.’
   The petition said that the ordinance was made in violation of the constitutional provision of ‘equality before law’, as the ordinance empowered the commission to pick and choose the graft suspects for awarding its mercy.
   Discrimination against individuals is contrary to the article 27 of the constitution that guarantees equal rights before law, the petition pointed out.
   The ordinance empowers the commission to order confiscation of money commensurate to the amount earned illegally and such confiscation results in barring the person concerned from contesting election to a public office or companies, the petition said adding, ‘This is, for all purposes, a conviction and sentence and such authority to punish a person by the commission is inconsistent with constitutional provisions for trying an offender by a court of law.’
   Section 29 of the ordinance says that the commission can seek assistance of the judiciary in consultation with the Supreme Court and the judiciary is under legal obligations to assist the commission.
   Referring to the section, the petition said that it was against the basic structure of our constitution as an independent judiciary was to ensure a fair trial and not to follow the instruction of or to assist any statutory body.
   According to the constitution, an ordinance requires to be placed in the immediate next session of parliament, while the Voluntary Disclosure Ordinance has been made and the commission launched for a five-month period and that will expire before the next general elections.
   The ordinance and the commission are ‘illegal’, as the ordinance cannot be placed before parliament for ratification, the petition said.
   The petition also challenged the authority of the interim government to promulgate such an ordinance, as it had provisions relating to policy decisions of the government beyond the jurisdiction of a caretaker government and the ordinance was neither related to holding of elections nor to the regular functioning of the government.

Source: New Age (Bangladesh) on 26 August,2008.

INDIA: Manual scavenging, a shame on the nation

ALRC

Mr. Nagin Ranchod Solanki (40) and Mr. Harish Magan Solanki (49) were manual scavengers employed by the Vadodara Municipal Corporation in India’s Gujarat State. At about 8:00 pm on 26 May 2008, Nagin and Harish were asked to work inside a foul sewer to assist the repairing of a damaged valve. At around 10:30 pm, both of them were found dead inside the manhole near the Kalaghoda sewer pumping station. An autopsy conducted on the bodies revealed that Nagin and Harish had died from suffocation after inhaling toxic gasses in the sewer.

Men, women and children – particularly from the Chuhar, Mehathar, Halalkhor, Lalbaghi, Bangi, Thotti and Jamadar lower castes – are commonly employed as manual scavengers in India. These caste subgroups are generally referred to as Valkimi in India. The Valmiki is considered to be the lowest among the lowest in the caste hierarchy.

Upper-caste Hindus consider the Dalits as being untouchable. The presence, touch or even the mere reference to a lower caste is considered to be polluting by the upper caste. The Dalits employed as manual scavengers are considered to be untouchable even by other Dalits.

As the lowest in the caste hierarchy and due to the perceptions of pollution and impurity imposed upon them, the members of these communities are forced to live in isolated and remote corners within the cities and municipal corporations where they are employed. These places are often a corner in the municipal burial ground or a reclaimed garbage ground. The living conditions in these places are very poor.
 
Facilities like schools and health centres do not exist for these families. Being numerically low in the area these families reside, the government does not provide any such facilities for these families. Perceived as the lowest of the castes and due to the prejudices that exist in the Indian society, the children from these families are often prevented from attending schools and the members of these communities are denied medical treatment even in government facilities. This probably explains the large ratio of deaths in the manual scavenging community.

For example, within the past eight months in the Pune Municipal Corporation of Maharashtra State, 40 manual scavengers died from various diseases acquired at work. In the past three years about 327 manual scavengers died out of 6826 persons employed by the Pune Municipal Corporation. Though it is extremely rare for an employer to compile and publish data of this nature in India, the above information was published by the Pune Municipal Corporation.

Manual scavenging is carried out without any form of protective gear. Even simple equipment like a face mask is not provided. A scavenger who enters a sewer without any protective gear is exposed to many forms of toxic chemicals and disease-causing bacteria.

Manual scavenging is not limited to clearing clogs in sewers. It is common in India to find dry latrines (non-flush) across the country. Dry latrines are constructed and maintained by villages, municipalities and even the Indian railways.

Dry latrines are walled enclosures with open ceilings and empty floors made of concrete or stone where people can defecate. Manual scavengers are employed to clean these latrines. Their work begins in the early hours and continues past midnight. Such work in large municipal corporations is completed in two shifts. The human faeces is manually collected into buckets or baskets using brooms and spades and carried away to an area where the waste is discarded. Often the scavengers carry this nauseating waste on their heads.

The Asian Legal Resource Centre (ALRC) and its sister-organisation, the Asian Human Rights Commission (AHRC), have conducted studies that prove that the practice of manual scavenging is associated with caste-based discrimination. Scholars like Ms. Sita Agarwal and Dr. Romila Thapar agree that the practice existed at the advent of the caste system itself. It was during the British rule that the practice of manual scavenging was legitimised in India. Railway stations and military establishments during the British colonial rule had dry latrines. This practice was later conveniently adopted by the government and other agencies after 1947.  

The Indian Railways, the largest rail network in the world, employs the largest number of manual scavengers. Unofficial surveys conducted by various non-governmental organisations and research groups project that about 1,200,000 persons are employed as manual scavengers in India. These surveys also project that among the manual scavengers, 98% are Dalits, of which 95% are females. Manual scavenging is however prohibited by law in India.

In 2003, the Ministry of Social Justice and Empowerment of India admitted that there are about 9,200,000 dry latrines in India as of 2002. In the absence of any specific government schemes to rehabilitate manual scavengers during the past four years, the number of persons employed as manual scavengers has in fact increased. The rapid expansion of urban areas and the scarcity of water has increased the number of dry latrines.

The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, prescribes punishment to an employer who employs manual scavengers and also to those who construct dry latrines. The punishment prescribed is imprisonment for up to one year and/or a fine. In cases where the employees are the members of the Scheduled Caste or the Scheduled Tribe, the employers are also liable to prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, these laws are poorly implemented in India. Not all states in India have ratified this central law.

It took about four years for the central government to even notify the law in the government gazette. Not all states in the country have implemented this law. According to a study conducted by the Safai Karamchari Andolan about 33% of Indians still use dry latrines. Another 33% of the population do not have toilets in their houses and find it convenient to defecate in open spaces. In spite of express provisions in the law, nobody has yet been punished in India for employing manual scavengers or for the construction and maintenance of dry latrines in India.

Mainstream Dalit organisations like the Navsarjan, the National Council for Dalit Human Rights (NCDHR), and Drishti-Media, Arts and Human Rights (DMAHR), are actively engaged in reporting cases and campaigning against manual scavenging. Asian regional organisations like the AHRC and the ALRC, and international organisations like Human Rights Watch (HRW) and the International Dalit Solidarity Network (IDSN), are engaged in reporting and campaigning against manual scavenging in India.

UN agencies like the ILO, the Committee of Economic Social and Cultural Rights and the CERD Committee have expressed their concern about the continuing practice. The ILO also has expressed further concern about the meagre wages paid to manual scavengers.

The ILO report on India concerning the ILO Declaration of Fundamental Principles and Rights at Work, released in May, 2007, in New Delhi, also expresses concern about the continuing practice of manual scavenging in India. In this report, the ILO not only expresses its concern about the practice of manual scavenging as a form of caste-based discrimination and an inhuman form of labour that is often underpaid, but also further states that manual scavenging is also a form of bonded labour.

The CERD Committee in its recommendation CERD/C/IND/CO/19, dated May 5, 2007, has expressly opined that the continuing practice of manual scavenging in India is a form of racial discrimination. The Committee, after reviewing India’s periodic reports in 2007, in its concluding observations requested the government of India to take steps to end the practice of manual scavenging.

Since 1949, several committees and commissions were set-up by the government to study manual scavenging and to recommend to the government measures to end manual scavenging. The Barve Committee of 1949, the Scavenging Conditions Enquiry Committee of 1957, the National Commission of Labour Committee of 1968 and the National Commission for Safai Karmacharies have all recommended to the government various means to prevent manual scavenging in India.

The National Human Rights Commission (NHRI) of India in its 2007 annual report also expressed its concern about the practice of manual scavenging. In the same year the National Planning Commission of India declared that it would initiate actions to eradicate manual scavenging by the end of 2007. However none of these recommendations or resolutions were implemented in actual practice in India.

Manual scavenging in India was recently brought to the limelight at the UN. 28 women manual scavengers from India participated in a cultural programme organised at the UN to celebrate the 2008 – International Year of Sanitation. The government that took the trouble to send these women to the UN, however, has thus far failed to do anything to prevent the practice of manual scavenging in India.

The Minister for Social Justice and Empowerment, Ms. Meira Kumar, in March 2008 urged the Union Rural Development Minister, Mr. Raghuvansh Prasad Singh, and Minister of State for Housing and Urban Poverty Alleviation, Ms. Selja, to ensure that all dry latrines in rural areas of India are converted into water-seal latrines by March 2009. March 2009 is also set to be the target date for rehabilitation of all manual scavengers in India.

Other than all these rhetoric, nothing is visibly being done on the ground to prevent manual scavenging. A typical example is the families of Nagin and Harish. Their deaths were reported to the State Government of Gujarat, the Government of India and to UN agencies within days. The Vadodara Municipal Corporation denied that Nagin and Harish had died from suffocation and refused to admit that both men were employed as manual scavengers.

Manual scavenging in India can only be prevented if the law prohibiting the practice of manual scavenging is fully enforced. But the enforcement of this law cannot be achieved in isolation. A multi-faceted approach for the rehabilitation of manual scavengers, the prevention of the construction of dry latrines and the employment of manual scavengers has to be carried out across India. Along with this, the law against caste-based discrimination has to be strictly enforced. Heads of municipal corporations and other local bodies like panchayats must be prosecuted for any breach in the domestic law against manual scavenging.

For all this to materialise the law enforcement agencies in the country must function well. The functioning of these agencies is currently in such a state that the common person’s perception about these agencies, particularly the police, is that the law enforcing officer is a criminal in uniform. As a result, it is feared that practices like manual scavenging will continue unabated for years to come.

It is therefore vital for the Human Rights Council to take note of this problem and monitor the Indian authorities’ actions to ensure that it halts this practice and meets the needs of manual scavengers in India.

About ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at local and national levels throughout Asia.

Baby Manji’s case throws up need for law on surrogacy

Dhananjay Mahapatra

 

Baby Manji, or ‘Baby M’, was born to a surrogate mother through invitro fertilization — using a Japanese man’s sperm and an egg from an unknown donor — at Anand in Gujarat on July 25.In less than a month, ‘Baby M’ has already seen fierce legal battles in two constitutional courts, Rajasthan High Court and now in Supreme Court, where an NGO has raised questions on legal propriety of surrogacy and the child’s nationality. Anxious for the outcome are her Japanese father and grandmother.

Surrogacy, worldwide, spins a web of emotional, social and legal issues. Its dictionary meaning — ‘a woman who bears a child for another person, often for pay, whether through artificial insemination or by carrying until birth another woman’s surgically implanted fertilized egg’ — itself sounds complicated.

Mythological surrogate mothers are well known. Yashoda played mother to Krishna, though Devki and Vasudev were biological parents. Gandhari made Dhritarashtra the proud father of 100 children, though he had no biological relation with them. Voluntary surrogacy is tolerated by society. But, the moment the element of commerce — payment to the surrogate mother for bearing the child — crops up, it cries foul terming it as “baby selling”.

If India’s very own ‘Baby M’ is kicking up legal dust, 20 years ago, the famous ‘Baby M’ case in New Jersey in US made the world sit up and take note of the issue of surrogacy.

In the US, the first formal agreement between a couple and a surrogate mother was signed in 1976. Probably, it was voluntary. Soon, brokers entered the scene and commercial exploitation followed. In 1984, a New Jersey couple — William Stern and Elizabeth Stern — contracted to pay Mary Beth Whitehead $10,000 to bear a child using artificial insemination of William’s sperm. The baby was born, but Whitehead decided to keep the child and refused the money.

In 1987, New Jersey Superior Court held the surrogate contract valid, tore the baby away from Whitehead and allowed the Sterns to adopt it. Stripped of parental and visitation rights, Whitehead appealed in NJ Supreme Court, which in 1988, except allowing the Sterns to keep the baby, reversed much of the decision (‘Baby M’, 109 NJ 396, 537 A.2d 1227).

It termed surrogacy contracts unenforceable, voided the adoption by Sterns and allowed parental and visitation rights to Whitehead. ‘Baby M’ decision spurred most US states to enact legislation on surrogacy. By 1995, as many as 19 states had laws designed to prevent or discourage surrogacy, 13 barred enforcement of paid surrogacy contracts and 10 prohibited a third party, such as a lawyer or physician, from collecting compensation for arranging surrogacy agreements.

In UK, surrogacy arrangements, not agreements, are legal. But they must be shorn of commercial element. However, agreements between a surrogate mother and intended parents is not legally enforceable, which means the agreeing parties must rely on each other’s promise to honour the word.

The UK law does not recognize surrogate baby’s biological father. If a British surrogate mother gives birth to a child for a foreign couple, then she alone would be treated as the legal mother. If she is married, her husband would be the legal father. A foreign couple, intending to take legal parenthood of a surrogate baby, must necessarily be domiciled in UK. If not, then they could take the complication fraught adoption route.

If the 1988 ‘Baby M’ case in the US forced many to put on legal thinking caps, then that year saw Australia battling with societal eruptions over the Kirkman sisters case in Victoria, popularly known as ‘My sister’s baby’. Linda Kirkman agreed to gestate the genetic child of her older sister Maggie. The baby girl was handed over to Maggie and her husband at birth. This had sparked much community and legal debate and soon Australian states attempted to settle the legal complications in surrogacy. Now, commercial surrogacy is illegal, contracts in relation to surrogacy agreement unenforceable and any payment for soliciting of a surrogacy arrangement is illegal.

Surrogacy in US, UK and Australia costs between $55,000 to $65,000. Does it make India, where medical and living costs are much cheaper, a hot destination for childless couples from around the globe? No one knows, for there is no law to regulate or no system even to gauge the extent of surrogacy incidents in the country.

Baby Manji’s case, pending in the Supreme Court, presented a stalemate with the judges asking “which law prohibits surrogacy” and the NGO countering it with “which law permits surrogacy”.

If the ‘Baby M’ case in the US gave birth to a global renaissance on surrogacy laws, hopefully the Indian ‘Baby M’ case will be the catalyst for an Indian legislation on the issue. The sooner, the better.

 

 

 

Source: The Times of India, 25 August, 2008.