Delhiites being the greatest sufferer and victim of Dharna by one, Drama by other , Said Dr. Anthony Raju, advocate , Supreme Court & Expert of the Constitution of India
Special Status to Delhi under Article 239AA of the Constitution of India:
I personally applause and appreciate the words of my freind Mr. Vivek Narayan Sharma, advocate
Dharna by one, Drama by other; that’s the way Delhi political system is oozing venom on each other. It won’t be hard to fathom Collateral Damage here, Delhiites being the greatest sufferer and victim of such acts due to policy paralysis and repeated logjams in the executive machinery under the Chief Minister and his cabinet as also due to complete non-cooperation among various agencies coming under different political parties followed by constant mudslinging.
All of this is happening in the National Capital of India the Heart of Delhiites. Perceptively, a capital should have the model governance system, which could inspire all other States to follow suit in a democracy and semi-federal governance system like India. The moot question is, “Whether the Laws are made to fit to People or the People are tailored to fit Laws?” The answer to this shouldn’t be as difficult as it once was to answer which came first: Chicken or Egg!
Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through 69th constitutional amendment by the Parliament, thereby providing Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concerns to common man. That’s when Delhi was named as National Capital Region (NCT) of Delhi.
There is no doubt that common men of Delhi are the sufferer and become victim on various counts; but we need to examine whether there is a role of Article 239AA of the Constitution in such suffering. What we see today, is it an outcome of Article 239AA? With no political axe to grind, relevant provisions of Article 239AA must be understood in true sense.
As per Article 239AA – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters. For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have power to make laws for NCT of Delhi.
Further, for Offences against laws, Jurisdiction & powers of Courts (except SC) and Fees (except court fees) so far as they relate to Public Order, Police & Land in NCT of Delhi; Central Government would have power to make laws.
Further, (Very important to understand), the Council of Ministers (i.e. CM and his Ministers) are elected to aid and advise the LG in the exercise of his functions in relation to matters with respect to which the Legislative assembly has power to make law. Therefore, in respect of Public Order, Police & Land – LG would not need aid and advise from the Council of Ministers. For other matters enumerated in the State List, this arrangement would work.
On making analysis of the prevalent circumstances in Delhi and future possible potential abuse of powers, in derogation to other, along with the legal provisions contained in Article 239AA; I can say that arrangements of governance as provided under Article 239AA appears to have failed to fulfil the objective, i.e. “to deal with matters of concern to the common man”.
I am intentionally refraining myself from analysing the propositions, meaning and interpretation of Article 239AA for the same is pending decision by the Constitution Bench of Supreme Court (SC). Whatever interpretation SC could bring, my primary test would always be to see, “whether a law fulfils the purpose for which it is created?”
On the current scale of governance, Delhi is divided into 3 pieces and each piece is controlled by 3 different elected bodies.
First, areas under control of elected Central Government (through selected LG being the Administrator); Two, areas under the control of elected representatives (MLAs) in Delhi Assembly; & Three, areas falling under elected representatives (Mayor & Corporators) of municipal bodies, of which administrative control is in the hands Commissioners appointed by Central Government.
At the time of First Assembly Election of Delhi in 1993, Delhi had 58.5 lakh Voters. In the 2015 Elections, Delhi had 133.1 lakh Voters. So, an increase of 74.6 lakh voters (227%) in 22 years.
Today, the estimated population of Delhi is 2.5 Crore. Delhi has problems of high magnitudes – highest polluted air, water crisis, water borne diseases, sanitation, electricity, traffic, jams, roads, unauthorised construction, encroachments, lack of moral and civic sense, road rage, crime against women and children etc. and to tackle the menace, as Delhi is in today, we need a cohesive approach, best policy framework and advance & objective planning. If different legs of governance in Delhi would keep on fighting among themselves, Delhiites would be loser as ever.
In the past, problems, such are being faced today, were not that critical especially when same parties ruled at the Centre and in Delhi. However, different parties are at the helm today and they are at loggerheads, for each’s own political gains. But to my mind worst is yet to come. Now consider a situation, when 3 different political parties are in control at the Centre, Delhi State & MCDs. I bet that would be the worst ever time, Delhiites would ever imagine.
So I wonder should there be Article 239AA of Constitution of India, at all, as the same has failed to achieve the objective for which it was created and has only brought more mess than correcting a situation. And it appears to me, future stores ‘havoc’, when 3 different political parties would be elected at the helm of affairs, as aforesaid.
We need to model our laws as per our needs. Worldwide it is a usual phenomena that Capitals of countries are under the control of Central Government in a Federal Structure.
So be it, why to waste so much of money in electing 70 MLAs, their salaries, infrastructure expenses etc. They don’t need to be showcased for doing nothing or doing bizarre things. To govern the Capital of country in effective ways, either the State Government should be empowered fully or there should be no State Government, at all.
Being in Delhi for last two decades, I have seen different pictures of Delhi. When CNG buses & taxis were forced on the then Delhi Government by the Supreme Court in 2001, delhiites thought the pollution would be killed. But what we see today, is only more of it. So new measures are at place to deal with pollution hazards.
Though it is another question as to whether such measures would be able to arrest pollution, but at least an objectivity is attached to the whole process to see things as they are and finding new and effective solutions.
Similarly, Art.239AA appears to me as a failed experiment; which needs to be re-examined vis a vis need, and either suitable amendments should be incorporated in it to make it work fruitfully for Delhiites or it should be struck off. In its present form, it has only brought pain to the common man of Delhi.
DISCLAIMER : Views expressed above are the author's own.
Prisons in India, and their administration, is a state subject covered by item 4 under the State List in the Seventh Schedule of the Constitution of India. The management and administration of prisons falls exclusively in the domain of the State governments, and is governed by the Prisons Act, 1894 and the Prison manuals of the respective state governments. Thus, states have the primary role, responsibility and authority to change the current prison laws, rules and regulations. The Central Government provides assistance to the states to improve security in prisons, for the repair and renovation of old prisons, medical facilities, development of borstal schools, facilities to women offenders, vocational training, modernization of prison industries, training to prison personnel, and for the creation of high security enclosures.
The Supreme Court of India, in its judgments on various aspects of prison administration, has laid down 3 broad principles regarding imprisonment and custody. Firstly, a person in prison does not become a non-person. Secondly, a person in prison is entitled to all human rights within the limitations of imprisonment. Lastly, there is no justification for aggravating the suffering already inherent in the process of incarceration.
Prison establishments in India comprise 8 categories of jails. The most common and standard jail institutions are Central Jails, District Jails and Sub Jails. The other types of jail establishments are Women Jails, Borstal Schools, Open Jails and Special Jails.
The criteria for a jail to be categorised as a Central Jail varies from state to state. However, the common feature observed throughout India is that prisoners sentenced to imprisonment for a long period (more than 2 years) are confined in the Central Jails, which have larger capacity in comparison to other jails. These jails also have rehabilitation facilities.
Maharashtra and Tamil Nadu have the highest number of 9 Central Jails each followed by Karnataka, Bihar, Madhya Pradesh, Rajasthan and Delhi with 8 each. Arunachal Pradesh, Meghalaya, Andaman & Nicobar Islands, Dadra & Nagar Haveli, Daman & Diu and Lakshadweep do not have any Central Jails.
District jails serve as the main prisons in States/UTs where there are no Central Jails.
States which have considerable number of District Jails are Uttar Pradesh (53), Bihar (30), Maharashtra and Rajasthan (25 each), Madhya Pradesh (22), Assam (21), Jharkhand (17), Haryana (16) and Karnataka (15).
Sub jails are smaller institutions situated at a sub-divisional level in the States.
Ten states have reported comparatively higher number of sub-jails revealing a well-organized prison set-up even at lower formation. These states are Maharashtra (172), Andhra Pradesh (96), Tamil Nadu (94), Madhya Pradesh (92), Karnataka (74), Odisha (66), Rajasthan (60), West Bengal (31), Kerala (29) and Bihar (16). Odisha had the highest capacity of inmates in various Sub-Jails.
8 States/UTs have no sub-jails namely Arunachal Pradesh, Haryana, Manipur, Meghalaya, Mizoram, Sikkim, Chandigarh and Delhi.
Borstal Schools are a type of youth detention center and are used exclusively for the imprisonment of minors or juveniles. The primary objective of Borstal Schools is to ensure care, welfare and rehabilitation of young offenders in an environment suitable for children and keep them away from contaminating atmosphere of the prison. The juveniles in conflict with law detained in Borstal Schools are provided various vocational training and education with the help of trained teachers. The emphasis is given on the education, training and moral influence conducive for their reformation and prevention of crime.
Ten States namely, Andhra Pradesh, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Maharashtra, Punjab, Rajasthan and Tamil Nadu have borstal schools in their respective jurisdictions. Tamil Nadu had the highest capacity for keeping 667 inmates. Haryana and Himachal Pradesh are the only states that have the capacity to lodge female inmates in 3 of their Borstal Schools. There are no borstal schools in any of the UTs.
Open jails are minimum security prisons. Prisoners with good behaviour satisfying certain norms prescribed in the prison rules are admitted in open prisons. Prisoners are engaged in agricultural activities.
Fourteen states have functioning Open Jails in their jurisdiction. Rajasthan reported the highest number of 23 open jails. There are no Open Jails in any of the UTs.
Special jails are high security facilities that have specialized arrangements for keeping offenders and prisoners who are convicted of terrorism, insurgency and violent crimes. Special jail means any prison provided for the confinement of a particular class or particular classes of prisoners which are broadly as follows:
Kerala has the highest number of special jails - 9. Provision for keeping female prisoners in these special jails is available in Tamil Nadu, West Bengal, Gujarat, Kerala, Assam, Karnataka and Maharashtra.
Jails that do not fall into the categories discussed above, fall under the category of Other Jails. Three states - Goa, Karnataka & Maharashtra - have 1 other jail each in their jurisdiction. No other state/UT has an other jail.
The capacity of inmates (male & female) reported by these three States in such jails was highest in Karnataka (250) followed by Goa (45) and Maharashtra (28).
All states and UTs in India had a combined sanctioned budget of ₹32751.22 million (US$490 million) in 201-13 for prison related expenditure.
Prison expenditure is broadly categorised as Plan Expenditure and Non-Plan Expenditure. Expenditure on specific planned activities under the Five Year Plan is termed as Plan Expenditure. Expenditure made for meeting day-to-day expenses and running establishments like payment of salaries, wages, rent, etc. come under the Non-Plan Expenditure. Non-Plan Expenditure may also include activities for development of existing infrastructure and bringing about improvements in the prisons.
Expenditure on prison inmates is categorised as Food, Clothing, Medical, Vocational/Educational facilities, Welfare and Other expenses. Food expenses account for more than half the total expenditure on prison inmates.
As of 31 December 2014, there are 1387 functioning jails in India having a total capacity to house 356,561 prisoners. As of the same date, there were 418,536 inmates in jails across in India. Males at 400,855 make up 95.8% of prisoners while females at 17,681 represent 4.2%.
Prison inmates lodged in Indian jails are categorised as Convicts, Undertrials and Detenues. A convict is "a person found guilty of a crime and sentenced by a court" or "a person serving a sentence in prison". An undertrial is a person who is currently on trial in a court of law. A detenu is any person held in custody.
Prison inmates lodged in Indian jails in relation to non-Indian Penal Code (IPC) crimes are classified as civil prisoners. They consist of Convicts and Undertrials.
The following table gives the population and occupancy rate of prisons in India annually:
|Year||No. of Inmates||Occupancy Rate[a]|
Amnesty International has reported on torture or other ill-treatment in 141 countries over the past five years
• New global survey of more than 21,000 people in 21 countries across every continent reveals fear of torture exists in all these countries
• Nearly half of respondents fear torture if taken into custody
• More than 80% want strong laws to protect them from torture
• More than a third believe torture can be justified
In a number of Asia-Pacific countries the use of torture and other cruel, inhuman or degrading treatment or punishment is routine – and accepted by many as a legitimate response to high levels of crime.
The Survey found that support for international rules against torture is weakest in India, Argentina, Mexico, Nigeria and Peru – less than three quarters of people agree that international rules are necessary.
Shockingly, 74 per cent respondents in India (with China - the highest numbers in any of the countries polled) feel that torture can sometimes be justiﬁed to gain information that may protect the public.
Torture is rife across the Asia-Pacific region, with China and North Korea among the worst offenders and a host of other governments betraying promises to stamp it out, Amnesty International said as it launched its latest global campaign, Stop Torture.
“Torture is a fact of life in countries across Asia. The problem isn’t limited to a few rogue states, but is endemic throughout the region,” said Richard Bennett, Amnesty International’s Asia-Pacific Director.
“Asian countries must stop paying lip service to their commitment to end torture. Signing up to the international treaties is important but not enough. It must be backed up with concrete action.”
The two-year campaign, Stop Torture, launches with a new media briefing, Torture in 2014: 30 Years of Broken Promises, which provides an overview of the use of torture in the world today.
“The shocking fact that so many people fear torture – in some countries the majority of those polled - should spur authorities across Asia-Pacific into meaningful action by taking concrete steps to eradicate this horrific human rights violation,” said Richard Bennett.
Amnesty International has reported on torture or other forms of ill-treatment in at least 141 countries from every region of the world over the past five years – virtually every country in which it works.
In 2014, thirty years after the UN adopted the 1984 Convention Against Torture – which commits all states parties to combating the abuse - Amnesty International observed at least 23 Asia-Pacific countries still torturing or ill-treating. Given the secretive nature of the abuse, the true number is likely to be higher.
Torture is used by governments against a range of individuals across Asia-Pacific. It is used to force confessions or to silence activists in countries such as China, India, Indonesia, Malaysia Pakistan, Sri Lanka and Vietnam. Torture is used to extort money in places such as Myanmar and Nepal, where poor and marginalised people are unable to bribe their way out of being tortured.
A worldwide Globescan survey commissioned alongside the briefing for the launch found nearly half (44%) of respondents – from 21 countries across every continent - fear they would be at risk of torture if taken into custody in their country.
Measures such as the criminalisation of torture in national legislation, opening detention centres to independent monitors, and video recording interrogations have all led to a decrease in the use of torture in those countries taking their commitments under the Convention Against Torture seriously.
Very few countries in Asia-Pacific, however, have putin place effective mechanisms to prevent the use of torture, and others are failing to implement the mechanisms properly.
Amnesty International has documented various forms of torture and other ill-treatment used in different countries across the Asia Pacific region, ranging from North Korea’s brutal labour camps, to Australia’s off-shore processing centres for asylum seekers, or Japan’s death rows – where prisoners are kept in isolation, sometimes for decades. Impunity for torturers and denial of justice and reparations to victims are the norm across the region.
• Justice is out of reach for most torture survivors in the Philippines. A secret detention facility was recently discovered where police officers abused detainees “for fun”. Police officers reportedly spun a “wheel of torture” to decide how to torture prisoners. Media coverage led to an internal investigation and some officers being dismissed, but Amnesty International is calling for a thorough and impartial investigation which will lead to the prosecution in court of the officers involved. Most acts of police torture remain unreported and torture survivors continue to suffer in silence.
• Torture and other ill-treatment are officially illegal in China, but in practice beatings, electrocutions, forced injection of drugs and the denial of medical treatment are regularly used to intimidate and punish dissidents or ordinary criminals. China last year announced the closure of its notorious “Re-education Through Labour” camps, but the change has been mostly cosmetic with authorities simply using new forms of detention to arbitrarily hold and torture dissidents.
• In Pakistan torture is frequently practiced by police, intelligence services and the army, in particular in the conflict-ridden Tribal Areas or Balochistan. Amnesty International has received report of torture used on human rights defenders, lawyers and journalists among others. Reporter Ali Chishti is one such case – he was picked up on 30 August 2013 by a police mobile team and driven to a house where he was repeatedly beaten, before simply being dumped in the road. He registered a complaint with police but no one has been brought to justice for his abduction or torture.
• Authorities in Sri Lanka still routinely torture detainees. In 2012 at least five people died as a result of torture and police brutality; Sri Lanka’s National Human Rights Commission registered 86 complaints of torture in the first three months of 2013 alone. The government makes liberal use of a draconian anti-terror law to detain people arbitrarily for long periods.
Amnesty International is calling on governments in Asia-Pacific to put in place protective mechanisms to prevent and punish torture – such as impartial medical examinations, prompt access to lawyers and courts, independent checks on places of detention, effective investigations of torture allegations, the prosecution of suspects and proper redress for victims.
“Thirty years after the adoption of the UN Convention against Torture, it is well overdue that governments in Asia Pacific stepped up to their responsibilities to stop torture. Systemic legal and practical safeguards to prevent and punish torture must be put in place and adhered to consistently across the region,” said Richard Bennett.
COMPILED BY AICHLS , NCNB , INBN
PESHAWAR: Al-Qaida's regional branch on Sunday said its hearts were "bursting with pain" over the Taliban's massacre at a Pakistan school and urged the militants to target only security forces.
The attack on Tuesday killed 149 people - mostly children - in the northwestern Pakistani city of Peshawar.
"Our hearts are bursting with pain and grief over this incident," Osama Mehmood, spokesman for al-Qaida South Asia chapter said in a four-page emailed statement.
"There is no doubt that the list of crimes and atrocities of the Pakistani army has crossed the limit and it is true that this army is ahead of everyone in America's slavery and genocide of Muslims ... but it does not mean that we should seek revenge from oppressed Muslims," Mehmood said.
"The guns that we have taken up against Allah's enemy America and its pet rulers and slave army should not be aimed towards children, women and our Muslim people," he added.
Al-Qaida chief Ayman al-Zawahiri announced the creation of the new South Asia branch in September to "wage jihad" in Myanmar, Bangladesh and India.
The Afghan Taliban, who are loosely affiliated with Tehreek-e-Taliban Pakistan (TTP), have also condemned the attack, saying killing innocent children was against Islam.
Pakistan described the bloody rampage as its own "mini 9/11", saying it was a game changer in its fight against terror.
The army has been waging a major offensive against longstanding Taliban and other militant strongholds in the restive tribal areas on the Afghan border for the last six months.
NEW DELHI: An 18-year-old girl has alleged that two friends, one of them a minor, raped her after her birthday party on Friday night. The girl, a resident of South 24 Parganas in West Bengal, had come to Delhi with the older friend and worked as a cook at a house in east Delhi.
Police caught the youth as well as the minor after she called Police Control Room from a bus stop near RK Puram around 7.30am on Saturday. In her complaint, she said the youth had called her to his house in Moti Bagh to celebrate her birthday. After their other friends left, he and the boy raped her while she was drunk. Her medical examination at AIIMS confirmed rape, and a case under Section 376 IPC was registered based on her statement.
The girl is an orphan and was brought up by relatives. She had been staying in east Delhi but visited the youth sometimes as he had promised to get her a better job. On Friday, the party went on till late, so she decided to stay back till the morning.
Police found both accused at the house in Moti Bagh. The minor, who is 17 years old, was apprehended and produced before a juvenile justice board. On Saturday, Delhi Commission for Women chairperson Barkha Singh visited the RK Puram police station and met the girl who was later sent for counselling to an NGO.
RANGIYA (Assam): A powerful bomb, weighing more than seven kg, was recovered from a train compartment in Assam's Kamrup (Rural) district o Monday, police said.
Security personnel on duty in Up Lumding-Kamakhya Intercity Express spotted a plastic bag covered with a towel and wires sticking out in front of the compartment toilet near Kendukona Railway station under Rangiya sub-division.
They immediately informed Kendukona station master and the train was halted there.
The passengers were asked to disembark for checking the train thoroughly and senior police, civil and railway officials along with a dog squad of the Assam Police rushed to the spot and removed the bomb.