Thus Spake They of Law, Lawyers and Judges

 

(Compiled by V.K. Babu Prakash, Munsiff Thrissur)

 

G.K. Chesterton talked about lawyers as:

 

"They fight by shuffling papers

They have dark, dead alien eyes

And they look at our love and our laughter

As a tired man looks at flies."

 

Lord Gifford, Qc in   "Where's the Justice" said that "British Judges are ignorant and biased, the bias being the product of their education and social position". He further observed that "a male dominated judiciary is unable to understand the problems of women."

 

Judge learned Hand said "As a litigant I should dread a law suit beyond almost anything else, short of sickness and death."

 

Justice Douglas addressed the American Bar Association as follows: "The harsh truth is that we may be on our way to a society over run by hordes of lawyers, hungry as locusts, and brigades of Judges in numbers never before contemplated. The notion, that ordinary people want robed Judges, well dressed lawyers and fine panelled court rooms as the setting to resolve their disputes, is not correct. People with legal problems, like people with pain, want relief and they want it as quickly and inexpensively as possible."

 

Nani Palkivala said "Justice has to be blind but I see no reason why it should also be lame, here in India it just hobbles along, barely able to walk."

 

Dean Swift said about lawyers as men who prove that white is black or black is white according as they are paid.

 

Tulliver in the Mill on the Floss said that the law's made to take care of raskills.

 

Charles Reade said caustically, "The truth will out even in affidavit."

 

Lord Justice Knight Bruce cynically observed in an administration suit that, "The estate will be divided in the usual way among the solicitors."

 

Voltaire said that he was ruined twice in his life, once when he lost the suit and once when he won another suit."

 

Lord Tennyson lamented as follows:

 

"Mastering the lawless science of our law

That codeless myriad of precedent

That wilderness of single instances

Thro' which a few, by wit or fortune led

May beat a pathway out to wealth and fame."

 

Jermey Bentham said "Ignorance of the law excuses no man except the lawyers".

 

Justice Macardie said about legal profession as follows:

 

"It may be regarded as a pursuit which yields, if success be gained, a reward of fees and emoluments. But it may also be looked upon as a vocation which offers the joy of intellectual achievement which claims the allegiance of unswerving honour, which asks for the guardian of high tradition and which affords a wide field for loyal and governess service to community."

 

Lord Hewart said "Hold your tongue as a Judge, your silence is what you are paid for."

 

Francis Bacon said "An overtalking Judge is not a well tuned symbol".

 

Learned Hand said "When you go to a court with a litigation, Please execute a will as to who will enjoy the benefit of the decree".

 

Shakespeare lamented as follows:

 

"In case of defence it is

best to weigh

the enemy more mighty

than he seems —

So the proportions of defence are filled

which of a weak and niggardly projection

Doth like a miser spoil

his coat with

scanting a little cloth".

 

Henry Peter said " The sealed book of law must be transformed into a living letter."

 

Chief Justice Warren Burger of U.S. Supreme Court said "The court is not a platonic guardian where one can always expect the court to become an omnipotent and omniscant problem solver".

 

Chief Justice Pathanjaili Sasthri held that "The Judiciary in the country is a seminal on the qui-vive.

 

Shakespeare said:

 

'Is not the winding up of witnesses

and nicking more than

half the business

for witnesses like watchers go

just as they are set --too fast or slow

and where in conscience

they are straight laced

lis lin to one that side

is that

In law what plea

so tainted and corrupt

but being seasoned with a

gracious voice

observes the show of evil".

 

Chinese proverb says: "Going to law is like losing a cow for the sake of a cat".

 

S.T. Coleridgein Devils Walk Sang

"He saw a lawyer

killing a viper on a dunghill

hard by his stable

And the devil smiled

for it put him in mind

of Cain and his brother Abel.

 

Shakespeare again said about lawyers as

"And do as adversaries do in law

strike mightly but eat

and drink as friends".

 

Anatole France said: "Justice is the means by which established injunctions are sanctioned".

 

Justice Benjamin Cordoso said "The work of a Judge was in one sense enduring and in another sense ephemeral. What is good in it endures and what is erronous is pretty sure to perish".

 

Nani Palkivala homaged Justice M.C. Chagla in the following kind words of James Russel Lowell.

 

"His magic was not far to seek --

He was so human, whether strong or weak

Far from his kind, he neither sank nor soared

But sat an equal guest at every board

No begger ever felt him condescend

No prince presume, for still himself he bore

At manhood's simple level, and wherever

He met a stranger, there he left a friend".

 

STRIKE BY JUDGES; A STROKE TO JUDICIARY

 

(By Kauser Edappagath, Advocate, Kannur)

 

Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigant or counsel. Judicial process must run its even course unbridled by any boycott call of the bar or tactics of filibuster adopted by member thereof — said Justice K.T. Thomas in a landmark verdict on lawyers right to strike in Mahabir Prasad Sing v. Jacks Aviation Pvt. Ltd. (1999 (1) KLJ 530 (SC). This pondering words has to be rewritten as to include Judges also in view of the recent episode of mass boycott by the Judges of the Punjab & Haryana High Court. The wisdom of the twenty six Judges of the Punjab & Haryana High Court to go on mass leave, in response to the disciplinary action taken against two of their colleagues for having accepted ex-officio membership of a golf club that was itself the subject matter of litigation, has brought the judiciary into ridicule. It has also aggravated the public disenchantment with the judiciary.

 

The Constitution of India has delineated distribution of sovereign power between the legislature, executive and the judiciary. Under a controlling Constitution like ours, the role of judiciary is vital. To maintain the scheme of separation of functions as delineated by the Constitution it is necessary that the judiciary exercise utmost self-restraint. Members of the judicial service perform exclusively judicial functions and are responsible to the administration of justice in the State. The judicial service is not in the sense of employment. Nor are the judges employees. They are the indispensable servants of the society. As members of the judiciary they exercise sovereign power of the State. They are holders of public office. Their office is an office of public trust. To quote Justice V.R. Krishna Iyer (Legally Speaking, page 259, Justice V.R. Krishna Iyer), "a Judge is a social engineer and people's sentinel and fulfills himself not merely adjudicating on the list he tries but by catalyzing moral material transformation, not as a blinked professional but as dignified surrogate constitutional daring to catalyze public opinion when evil forces hold to ransom progressive values". The Court is for the people and therefore its credentials are based on dispensation of justice. The primary function of the Court is to administer justice to and in between the parties approaching the Court. The Courts would be failing in its duties in not performing such a function on the ground that the Judges chooses to abstain from sitting in Courts. The functions of the Court in the matter of administration of justice should not be allowed to be stalled by such incredulous methods.

 

Mass leave or boycott virtually paralyzing the administration of justice is no doubt an act come within the ambit of "strike". The Apex Court of India in two recent land mark decisions (Harish Uppal v. Union of India, 2003 (1) KLT 192 (SC) & Rangarajan v. State of Tamilnadu, 2003 (3) KLT 86 (SC) held that the lawyers and Government employees have no legal or statutory right or moral or equitable justification to go on strike. Then what is the moral authority of a striking Judge to judicially condemn unjustified strikes? In the case of K. John Koshy & Ors. v. Dr. Thrakshwar Prasad Shaw (1998 (8) SCC 624) one of the questions before the Supreme Court was whether the Court should refuse to hear and pass an order when counsel for both the sides were absent because of a strike call by Bar Association. The Supreme Court held that the Court could not refuse to hear the matter as otherwise it would tantamount to court becoming a privy to the strike. The Supreme Court reiterated the same view in Mahabir Prasad Sing's case (supra) and held that no court is obliged to adjourn a case because of the strike call given by any association of advocates or a decision to boycott the Courts either in general or any particular one. In Rajinder Singh v. Union of India (1993 (1) KLT 657) the Division Bench of the Punjab & Haryana High Court took the view that even when the lawyers call the strike Judges cannot treat day of strike as a paid holiday. It is quiet unfortunate that Judges themselves now have indulged in strike. No body or authority, statutory or not, vested with the powers can abstain from exercising their powers. Every powers vested in public authority is coupled with the duty to exercise it. Judges, who are responsible to uphold the dignity of the Court and majesty of law, are duty bound to see that administration of justice is effectively done. Since strike interferes with the administration of justice and infringes the fundamental right of litigant for speedy trial of their case, strike by Judges can never be accepted as mode of protest.

 

Judiciary is the only organ in India in which the public faith still persists. The common man inspite of the delays and hassles of litigation still respect the judiciary. The incident like Punjab & Haryana should not be repeated in order to maintain the public confidence in the judiciary. This type of incident could not have been taken place had there been a legally sanctioned method for disciplining judges. There is urgent need to set up credible machinery to investigate into the charges against Judges. It is high time to enact suitable law for investigating misconduct of Judges and disciplining them,

 

Order of Ombudsman Relating to Destruction of Stray Dogs

 

(By Justice K.P. Radhakrishna Menon, Ombudsman)

 

O.P. No.676/2004

25th August, 2004

 

ORDER

 

The editorial in the Malayala Manorama dated 7th August, 2004 under the caption “\nba¯n\v hepXv \mbtbm a\pjyt\m”?the English rendering of which "Under law who is more important. Man or Dog", and the letter of Dr. Vincent Panikulangara dated 12th August, 2004,highlighting the predicament of the citizens who are inhabitants of either the Municipal Corporations, the Municipalities or the Panchayats, brought about by the stray dogs crisis crossing the length and breadth of Kerala, prompted me to initiate this Suo Motto proceedings.

 

It is stated in the letter of Dr. Vincent Panikulangara thus: "West Cochin has become a haven of stray dogs. On 3.8.2004 stray dogs bit Nashik (9 years) and Amal Deo (8 years) in Government Hospital, Mattancherry. In that area 56 persons were bitten by stray dogs during the period from 1st to 11th August 2004", The editorial aforesaid as also various items of news on the 2nd, 4th, 10th and 11th of August, 2004, with photographs of children, one of them having the tooth mark of the dog, 1/4 of an inch in depth on the left side of his cheek, and the complaints the Ombudsman is receiving from various places, highlight the gravity and the seriousness of the menance caused by the stray dogs, of which some are rabid dogs, freedly moving about in the State.

 

The situation was brought about because the local bodies were disabled by the order of the State Government dated 2.8.2002, canceling the notification dated 3.7.2002, empowering the local bodies to take action for the destruction of the stray dogs in terms of S. 11 (3)(b) of The Prevention of Cruelty to Animals Act. for short, The Act.

 

This was the state of affairs when one N. Bhaskaran moved W.P. (C) No. 23543 of 2003 (S), seeking a direction to the Government to restore the notification dated 3.7.2002 empowering the local bodies to take immediate action for the destruction of stray dogs. The issue in the Writ Petition was contested by the Central Government. The Counsel for Central Government relied on The Animal Birth Control (Dogs) Rules for short. The Dogs Rules, and argued that destruction of stray dogs, the local bodies shall not resort to, Considering the scope of The Dogs Rules, the Division Bench held as follows:

 

"We therefore dispose of the Writ Petition with a direction to respondents Nos.2 to 6, to implement The Rules (The Dogs Rules) strictly in letter and spirit and in case they are short of funds they should apply to the Government of India for the grant for the implementation of the aforesaid scheme."

 

The learned Judges have also made the observation that

 

"It is clear that Rules have been framed for implementing The Animal Birth Control & Immunisation of Stray Dogs Scheme. We have perused some of the provisions of these Rules and are satisfied that adequate provisions have been made therein to deal with the stray dogs, particularly those which are sick and dangerous to human beings. Provision has been made for their elimination as well".

 

Be that as it may. The question however arise whether "The Dog Rules" sets at naught S.9(f), S.11(3)(b) read with S.38(1)(2)(e-a) of the Act. For easy reference these provisions are reproduced:

   S.9(f)                 :     To take all such steps as the Board may think fit to

                                          ensure that unwantedanimals are destroyed by local

                                          authorities, whenever it is necessary to do so, either

                                          instaneously or after being rendered insensible to

                                    pain of suffering.

 

   S.1 l(3)(b)          :     The destruction of stray dogs in lethal chambers or

                                    (by such other methods as may be prescribed).

 

   S.38 (1)             :     The Central Government may, by notification in the Official

                                    Gazette, andsubject to the condition of previous publication,

                                    make rules to carry out the purposes of this Act.

 

            (2)             :     In particular, and without prejudice to the generality of the

                                    forgoing power,the Central Government may make

                                    rules providing for all or any of the following matters, namely:

 

   S. 38(2)(e-a)     :     The other methods of destruction of stray dogs referred to in

                                    clause (b) of sub-s. (3) of S. 11;

 

The originals words in bracket in S.11(3)(b) namely "by other methods with a minimum of suffering" were substituted "by such other methods as may be prescribed: with effect from 30.07.1982. By the same Amending Act clause 38(2)(e-a) namely "the other methods of destruction of stray dogs referred to clause (b) of sub-s.3 of S.11" was added. These Sections do establish beyond doubt that the representatives of the people (the sovereign) in the Parliament were determined to save the citizens from the fatal disease, rabies transmitted to humans by dogs, particularly stray dogs.

 

S. 38(1) empowers the Central Government to make Rules to carry out the purposes of The Act, Sub-s.2 thereof provides that in particular, and without prejudice to the generality of the foregoing power, (highlighted in sub-s.1). The Central Government can make Rules providing for all or any of the matters enumerated therein. It is relevant in th is context to note that the subject matter of "The Dog Rules" namely The Animal Birth Control (Dogs), is not one of the matters enumerated in sub-s.(2), nor for that matter is this, one of the purposes of The Act. There is no doubt, an omnibus clause, Clause (1) namely, any other matter which has to be, or may be, prescribed. It shall in this connection be remembered that this omnibus clause does not empower the Central Government to travel out of the four walls of The Act and make Rules. If it does it will be a colourable exercise of jurisdiction and may even tantamount to, legislation which is not permitted under law.

 

From the forgoing discussion it can be inferred without fear of contradiction that the Parliament has re-emphasized the need to take effective steps forthe destruction of stray dogs, which, going by the newspaper reports and complaints. The Ombudsman is regularly getting from people generally and particularly from the students of even 1st and 2nd standards and the morning and evening strollers, are causing serious health hazards to human beings.

 

Instead of making Rules in exercise of the power under S.38(2) (e-a), The Central Government has made "The Dog Rules", which, from the discussion above is clearly not a matter enumerated under sub-s.2 of S.38 or meant to carry out any of the purposes of The Act mentioned in Clause (1) thereof. It therefore shall be declared that by promulgating "The Dog Rules", The Central Government have arrogated the exclusive authority of The Parliament to legislate upon the subjects catalogued in List 1 and List 3 of the Seventh Schedule of the Constitution. Rule 3 of "The Dogs Rules", provides that all dogs shall be classified in one of the following two categories (1) Pet dogs (2) Street dogs. The words "Street Dogs" do not find a place in The Act, The Parliament made with respect to the matter, shown as item 17 in the 3rd list "Prevention of Cruelty to Animals". I do not want to make any more comment on this aspect, especially in view of the fact that "The Dog Rules" was the subject matter of discussion before The Hon'ble High Court, as discernable from the Judgment mentioned supra.

 

An incidental question however arises as to how far 'The Dogs Rules' shall be permitted to operate in the field occupied by S.11(3)(b) of The Act. To get an answer to this question it is necessary to refer to the principles of law governing the scope and effect of The Rules vis-a-vis substantive provisions of The Act under which The Rules are made. The fundamental principles have once and for all been settled by The Supreme Court. In Re Pratap Singh, AIR 1956 SC 140 the Supreme Court has declared that "The Rules cannot travel beyond The Act and must be read subject to the provisions". Similarly in Re --News Papers Ltd. AIR 1957 SC 532 the Supreme Court has restated the principle thus: The Executive cannot under the power of framingRules and Re gulations. clothe itself with power which the statute itself does not give................The cardinal Rules in regard to promulgation of Bye Laws or making Rules is that, they must be legi fidei rationi consona. and therefore all Regulations which are contrary or repugnant to statute under which they are made are ineffective. To put it briefly, it is a well established principle of law that a Rule can never contravene a provision of The Act, not can it curtail nor add anything to the statutory power under The Act, and if ever The Rule ever reaches the provisions of The Act or tantamount to be a piece of legislation, the said Rule will be ineffective, without any consequence and consequently a dead letter.(Emphasis supplied).

 

On a perusal of the Judgment of The Hon'ble High Court it can be seen that the High Court has had no opportunity to consider the validity of 'The Dog Rules' in the light of the provisions of The Act discussed supra. The High Court has only construed to interpreted The Rules. In such circumstances, what will be the value of such Judgment as a precedent, has in clear terms been stated by Krishna Iyer (J) in Mamaleshower Prasad AIR 1975 SC 907 thus:

 

"Certainty of the law, consistency of ruling and comity of Courts -- all flowering from the same principle --coverage to the conclusion that a decision once rendered must later bind like cases. We do not intend to destract from the Rule that in exceptional instances, where by obvious inadvertence or over sight a Judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents".

 

These principles laid down by the Supreme Court, are law declared by the Supreme Court and therefore under Articlel41 of The Constitution they are binding on all Courts, Tribunals and Statutory Forums and all Government Authorities within the territory of India.

 

"The Dog Rules", therefore is of no consequence, for that matter it shall not interfere with the power conferred on the local authorities for the destruction of stray dogs, intended to save the citizens from the fatal health hazard namely rabies, caused by them. It shall in this connection be remembered that rabies is transmitted to human beings by dog bite. It is an incurable disease; and the preventive treatment is highly expensive, When once affected by this disease death is certain. On a detailed study of "The Dogs Rules", one would certainly form the opinion that the Central Government is more concerned with the life of the stray dogs than the life of the human beings, for the welfare of whom the framers of the Constitution have made provisions guaranteeing their Human Rights by incorporating 'Fundamental Rights' chapter in the Constitution. 'The Dog Rules' has elevated the stray dogs to a place above the place allotted to human beings among God's creations: The power conferred on the local authorities by S. 11 (3)(b) therefore shall not be feltered by 'The Dog Rules'.

 

The following directions therefore are issued:

 

1) The Corporations, The Municipalities and The Panchayats at all levels are directed to take effective steps for the destruction of the stray dogs methods with a minimum of suffering on a war footing and save the inhabitants of their respective areas from the fatal health hazards caused by these stray dogs.

 

2) The Local Authorities, if found necessary, can requisition the assistance of Police in case any animal lower or Animal Welfare Organizations, more concerned with the human rights of the dogs than that of the human beings, cause any obstruction in the discharge of their duties under S. 11 (3)(b) of the Prevention of Cruelty to Animal Act, and on such requisition being made, the Police shall render all assistance to the authorities.

 

The Petition is closed.

 

The Secretary, Ombudsman shall forward acopy of this orderto the Government, to enable the Government to issue appropriate instructions to the local authorities in regard to the implementation of the order.

 

Voluntary Retirement (V.R.S.) and Tax Benefits

 

(By P.K.R. Menon, Senior Advocate, Kerala High Court)

 

- A view point -

 

The availability of tax benefits and the extent to which tax benefits are available to those who retire under V.R.S. is a very live controversy and Courts, Tribunals, authors and writers have expressed differing views on the issue.

 

This Article proposes to highlight various aspects of the issue.

 

Sub-s.10(C) of S.10 excludes any amount received by an employee at the time of his voluntary retirement in accordance with any scheme or schemes of voluntary retirement, to the extent such amount does not exceed five lakh rupees.

 

S.10(10C) comes under Chapter III of the Income Tax Act. And Chapter III deals with Incomes, which do not form part of total income.

 

S.10(10C), as it stood before 1.4.2001, took into consideration voluntary retirement in accordance with any scheme or schemes of voluntary retirement, to the extent such amount does not exceed five lakhs rupees. And with effect from 1.4.2001, S.10(10C) took into consideration voluntary retirement or termination of service, in accordance with any scheme or schemes of voluntary retirement or in the case of a public sector company referred to in sub-clause (1), a scheme of voluntary separation, to the extent such amount does not exceed five lakhs rupees.

 

Second proviso to S.10(10C) which has got bearing reads thus:

 

Provided further that where exemption has been allowed to an employee under this clause for any assessment year, no exemption there under shall be allowed to him in relation to any other assessment year".

 

"Voluntary retirement" before 1.4.2001 and both "voluntary retirement and termination of service" after 1.4.2001 contemplated are in accordance with any scheme or schemes of an institution or a company.

 

The meaning of the proviso to S.10(10C) is reasonably clear. It only says that once an employee has availed of the benefit, he is not entitled to the benefit again. To put the same differently, once an employee on his voluntary retirement from an institution or company avails of the benefit of S.10(10C) and joins some other institution or company and if he is to voluntarily retire from the second job he is not entitled to the benefit under 10(10C) on his second retirement. And the circular of the Board (circular No.657 dated 30.8.93) is in accordance with law. The circular reads:

 

"The guide lines prescribed by the Board for framing the schemes of voluntary retirement further specify that the employee should not have availed of the benefit of any other voluntary retirement scheme in the past. It may be difficult for the employers to comply with this requirement where the employees do not disclose the fact of their having availed of such benefit in the past. It has, therefore, been provided that where exemption has been allowed to an employee under S.10(100 for any assessment year, no exemption shall be allowed to him thereunder in relation to any other assessment year".

 

The Board's letter dated 23.4.2001, relied on by writers, apart from being not a circular under law, is against the circular referred to above. The letter of the Board is not binding on the officers who are to administer the statute.

 

As noted in S.10(10C) five lakhs is not included in the total income. Whether the amount in excess of Rs.5,00,000/- is entitled to be considered under S.89 is the question to be considered now.

 

89 reads:

 

"Relief when salary, etc., is paid in arrears or in advance.- Where an assessee is inreceipt of a sum in the nature of salary, being paid in arrears or in advance or is in receipt, in any one financial year, of salary for more than twelve months or a payment which under the provisions of clause (3) of S. 17 is a profit in lieu of salary, or is in receipt of a sum in the nature of family pension as defined in the Explanation to clause (iia) of S.57, being paid in arrears, due to which his total income is assessed at a rate higher than that at which it would otherwise have been assessed, the Assessing Officer shall, on an application made to him in this behalf, grant such relief as may be prescribed".

 

The payment in excess of Rs.5,00,000/- does not come under the first three categories, namely (1) salary paid in arrears (2) salary paid in advance (3) receipt of salary in one financial year for more than twelve months.

 

The only category under which the present amount could be considered is the fourth category, that is whether the amount is a profit in lieu of salary as contemplated under S.17(3) of the I.T. Act.

 

Under S.17(3) "profit in lieu of salary" includes-

 

(i) the amount of any compensation due to or received by an assessee from his employer or former employer at or in connection with the termination of his employment or the modification of the terms and conditions relating thereto;

 

(ii) (not typed)

 

*(iii) any amount due to or received, whether in lump sum or otherwise, by any assessee from any person--

 

(C) before his joining any employment with that person; or

 

(D) after cessation of his employment with that person.

 

"Termination of employment" found in S. 17(3) right from the beginning cannot be equated with "termination of service in accordance with any scheme or schemes" introduced in S. 10(10C) with effect from 1.4.2001.

 

"Termination of employment" obtained in S. 17(3) apart from the context and the company of words in which it occurs may not take in voluntary retirement under a scheme contemplated under S.10(10C).

 

S.17(3) contemplates termination of employment by the management either under the Industrial Disputes Act, Labour Law or under the Standing Orders or under an agreement between the employer and employee. Employees who do not come within the purview of statutes are governed by the standing orders of companies or agreement between parties.

 

In this context it is apposite to note the observation of the Supreme Court

 

"Except where there is a specific provision of the Income Tax Act which derogates from any other Statutory Law or Personal Law, the provision will have to be considered in the light of the relevant branches of law". (55 ITR 660 at 664).

 

Hence "termination of employment" has to be understood in the manner it is understood under the Industrial Law/Labour Law.

 

17(3)(iii) introduced by Finance Act, 2001, with effect from 1.4.2002 takes in any amount received after cessation of his employment. Hence S.89 may have application to the excess amount with effect from 1.4.2002. Notes on clauses to the amendment reads:

 

"sub-clauses (b) seeks to insert a new sub clause (iii) in clause (3) of the said section so as to include any amount due to or received, whether in lump sum or otherwise, by any assessee from any person before joining any employment, or after cessation of such employment as income of that person under the head "Salaries".

 

This amendment will take effect from 1st April, 2002, and will, accordingly, apply in relation to the assessment year 2002-2003 and subsequent years".

 

Retrenchment is defined in S.2(oo) of the Industrial Disputes Act. "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

 

(j) voluntary retirement of the workmen; or

 

(k) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in the behalf; or

 

(l) termination of the service of a workman on the ground of continued ill health;).

 

In the light of the above the amount in excess of Rs.5,00,000/- could not be considered under S.89 before the amendment of S.17(3) of the I.T. Act by Finance Act, 2001 with effect from 1.4.2002.

 

Prior to 1.4.2002 the entire amount received under V.R.S. did not form part of 'salary'; whereas subsequent to 1.4.2002, the amount did form part of salary. And hence not entitled to S.89 relief prior to 1.4.2002 for the amount in excess of Rs.5,00,000/-.

___________________________________________________________________

*Inserted by Finance Act, 2001 with effect from 1.4.2002.

 

Children at the Crossroads of the New Milleneum:

An Analysis in Human Rights Perspective

 

(By Rathin Bandhyopadhyay & Hemantika Sundas, Lecturers, Department of Law, University of North Bengal, Darjeeling)

 

The children are the most beautiful and important assets of all. They are tiny apostles of peace and happiness. But what is so hard for us to grasp is the unpleasant reality that the whole of society from literates to illiterates, richest to poor, liberal to conservative, seems ferociously cruel to the children. It seems that fact is been forgotten by all that the development of a country depends on how its children are developed or protected. We must therefore, always remember that the children are the ultimate goal for development and also the most important tool for development. Thus, protecting the health and development. Thus protecting the health and education of today's children is their first and foremost right but it is also the most basic and wisest of all investments and therefore, in the interest of social and economic development of society.

 

But the fact remains same that the children of today are much more exploited and they are the main victims of violation of human rights whether in the form of child labour or child prostitution or child abuse or bonded labour or using child as beggars by criminals. There seem no end to such human rights violation.

 

CHILD AS VICTIMS OF LABOUR

 

The world is a witness that today the most of the children have been deprived of their life and liberty. Instead of playing and studying at their tender stage, they are working as newspaper seller, cobbler, domestic help, beggar and sexual worker for their living. They are engaged in factories and industries and that too hazardous industry. They have no time for developing their self-personality.

 

There is a general consensus that India has the largest child labour force in the world where little hands and nimble fingers are constantly occupied in a variety of chores, binding over tasks they are incapable of performing. These are major child labour centers where they are brutally exploited.

 

The cramped, unhygienic and unsafe surroundings of factories where children are forced to work, compromise a world of terror. Sivakasi is a classic example. Some 50,000 children comprising half the number of employed liberally play with fire every minute of their lives. Their ages range from 3l/2 to 15 years and they work for as long as 12 hours continuously at wages as low as Rs.2/- to Rs.8/- per day depending on the individual output.

 

In the glass factories of Ferozabad in Uttar Pradesh which produces blubs, glass, jars and containers, chandeliers, beads and bangles the children at works total 50,000. Barefoot, the labour are close to the furnace maintained at a temperature of 14000°C. In the pollution of soot fumes and dust, they look like machines with movements that are mechanical. They are potential victims of lung disease.

 

Bhiwandi is another area of child exploitation. The 15,000 children employed in the local power looms work in 12 hours shifts and some even for a 24 hour stretch. The diamond industry in Surat employs nearly 50,000 child labourers.

 

The export-oriented carpet industry in Palamau, Mirzapur, Varanasi and Allahabad employ some 1.5 lakh children and an undetermined number of children also work in bidi-making in Uttar Pradesh, Tamil Nadu, Karnataka, Kerala and Andra Pradesh. The list in both organized and unorganized sectors is endless1.

 

CHILD AS VICTIM OF SEXUAL ABUSE & PROSTITUTION

 

The ugly phantasm of sexual abuse haunts the children the world over. India has no law on child sexual abuse. If a child is abused and the overwhelming cultural bias for denial is overcome then a case can be filed for statutory rape, or 'outraging the modesty of the women', in the case of girls and for 'unnatural sexual offence in the case of boys2'.

 

Now, coming to define what sexual abuse exactly means, Sussman & Goham have defined the term 'abuse' as the infliction of serious physical harm or sexual molestation of a child. According to Black's Dictionary the word 'abuse' means everything which is contrary to a good order established by usage. Departure from reasonable use: immoderate or improper use physical or mental maltreatment, misuse, deception (female child). An injury to genital organs in an attempt of carnal knowledge, falling short of actual penetration. It is notable that in present perspective any case of sexual exploitation or abuse of persons for commercial purposes falls under the act of prostitution. That is to say that prostitution includes sexual exploitation or abuse of a person for commercial purposes3.

 

Well, from the very definition itself it means some inhuman treatment which the human beings as the most intelligent creatures do not bother in committing. It is heartening fact that the children of tender years who is too young to understand the nature of offence often falls victim of same.

 

The sexual offence that is perpetrated on them is in form either of incestuous abuse, or sexual assaults by stranger and child prostitution. Incestuous abuse means that child is sexually abused by a parent or an elder person in similar position of trust such as brother, relative, babysitter or step parents. Such incest or of abuse may be more traumatic than a child rape by strangers, because such behaviour may be continued over a period of time and the victim may find helpless to protect herself from such abuses4. This often leads to long term psychological effects and they cannot develop their personality in the long run, which might compel them to leave parental home or commit suicide. On the other hand the criminals are not even hurt by a pinch as because the matter remains subdued due to social prestige and reputation.

 

There is yet another group of sexual offenders, known as pedophiliac or child lovers who use immature children as the choice of their sexual object. Usually in the age group from thirty to fifty pedophiliac lurk around playgrounds, parks, schools and vacant lots where children wander. Then, they drag their victims to a secluded place and sexually molest or misuse them. In most cases, the offenders are usually a friend, relative or neighbour of the child. Sexual intimacy may consist of fondling, manipulation of the child's genitals, oral genitals contacts and partial or complete penetration of the child. Very often the child is induced to manipulate the sex organs of the offender. Coercive force is rarely used to obtain sexual favours. The offender's usual approach is based on the child's interest in some new and unusual thing or things which may have been denied to him. Most of these offenders are psychosexually immature, deviant and unable to establish and maintain normal sexual relations with adult5. In this context they find children as the most easiest victim for their sexual satisfaction.

 

RAPE, SEXUAL ASSAULT AND DISCRIMINATION AGAINST GIRL, CHILD

 

It is a known fact that a girl child in Indian Society is a curse to her parents. She is denied of love, physical care, proper nutrition, opportunity for education and advancement in life and sometimes killed to avoid financial burden. In other words they were denied of most basic and fundamental rights. In most of the families they are engaged in domestic work like washing, cleansing and even taking care of her brother. Nothing but the conservative thought of this society is the sole factor in degrading their status. They are more or less condemned in prison like environment.

 

An analysis of crime statistics both here and abroad indicates that no age group, social status or blood relationship can guarantee a girl child that she is safe from sexual assault6. She falls the victim of rape at the age of even two months old. In a Bombay's case reported in the year 1993, the rape victim was the age of four months old baby and was killed in the process. In another a father was convicted under S.376 IPC for having sexual intercourse with his eight-year-old daughter. Isn't it then a blood-boiling report that we are digesting in the so called age of human rights? All these indicate that every child is at high risk today.

 

The police statistics reveal the national capital as the center for sex crimes against children. In 1991, there were 167 cases of rape of minors below 16 years of age. By 1994 this number rose upto 319. In the 286 cases registered in 1992 only three were convicted, 42 were cancelled and 11 were acquitted. In 1993 only two were convicted, seven acquitted and 70 were cancelled. In 1994, there were no conviction7.

 

Child prostitution is yet another inhuman and degrading treatment that is being practiced world-wide. Lamentably, the young girls, some as young as seven, are forced in various parts of the country to become prostitutes. When a girl is gangraped if she refuses to entertain clients, the suffering encountered is definitely of a sufficient level of severity for it to fall within the scope of the definition of torture or inhuman treatment. So does the case of a girl kept in the brothel, alone, without being allowed to leave the room, given no food or drink until she complies with the rules of the brothel. Later, once the child has given up trying to oppose her oppressors, the 'entertaining' of several adult customers a day falls within the scope of inhuman treatment. Moreover, the treatment by which a child is forced to have sex with strangers for money, falls within the scope of a "degrading" treatment.

 

According to UNICEF report, one million children are drawn into commercial sexual exploitation every year in the world. The defence of Child International, an NGO had cited 1000 children working as prostitutes in the Netherlands. In a study published in 1996 it underlined the alarming growth of prostitution among the Polish, Romanian, Russian, Czech and Hungarian children. The report also said mostly poor children between the ages of 13 to 18 years are involved in the trade and that very young children are also not spared in this inhuman trade. According to a rough estimate 4,00,000 children in India are engaged in the flesh trade9.

 

Thus the problem of the girl child is another long neglected area, marked by deep-rooted gender bias prevailing in the country which calls for immediate attention. Despite the existence of various constitutional safeguards and a National Policy for Children 1974 to support the girl-child, she is never recognized as separate entity. Naturally, special attention is needed to assure her the right to develop to her full potential. In the action plan for SAARC, emphasis has been laid on survival and protection of the girl child and safe motherhood, overall development of the girl-child and special protection for vulnerable girl children placed in difficult circumstances and belonging to special grounds.

 

For the prevention of female foeticide and infanticide widely prevalent in the country an Act has been passed and efforts are being made to reduce infant morality rate to less than 60 per thousand live births and under 5 morality rate to less than 10 by the year 2000 and to virtually eliminate the gender disparities in morality rate.

 

But all these efforts pale into insignificance when we look at the enormity of the problem of exploitation of the girl-child in flesh trade10.

 

CONTRIBUTORY FACTOR

 

The economic degradation and condition is the main factor responsible for the child abuse and exploitation. The population explosion coupled with economic stagnation has led to more and more people competing for fewer and fewer resources. Struggling families send their very young children out to supplement income and for these children literally every encounter with an adult carries the risk of violence or exploitation.

 

Broken marriages or remarriages are other contributory factors in giving rise to child abuse and exploitation. Step parents seems, in most of the cases merciless on the child and are beaten and abused to death.

 

Only 23 percent of the neglected children, 32 percent of the emotionally abused and 39 percent of the physically injured were living with their natural parents. Marital discord and the 'inability to deal with normal behaviour' are factors often mentioned by social workers as reasons for child abuse11.

 

Commercial sexual exploitation or prostitution of children is promoted and largely encouraged by criminals and criminal networks and that inadequate laws and poor sensitivity of law enforcement personnels also contribute much. Besides the female or girl child of a prostitute finds no other alternative due to social bindings but to join in the trade carried on by her mother. The traditional and conservative thought of society is another important factor for denial of education and giving to an early marriage of girl child.

 

INTERNATIONAL & NATIONAL SAFEGUARDS

 

The problem of child abuse and exploitation is being faced by whole world. In order to tackle the problem various legislation were enacted to safeguard the children from such abuses. An attempt is being made in this paper to have an insight into those legislative measures very briefly.

 

1. International Laws & Protection of Children

 

Being guided by the principle "first call for the children" i.e., the essential needs for children should be given highest priority in the allocation of resources at all times, an International Convention on the 'Rights of the Child" was held in the year 1989 in furtherance of the recognition of the principles enshrined in the Charter of the U.N. which states that "inherent dignity and the equal and inalienable right of all members of the human family is the foundation of freedom, justice and peace in the world". In that Convention a set of international standards and measures intended to protect and promote the well being of the children in society was adopted by United Nations General Assembly on 20th Nov. 1989, which was drafted by the U.N. Commission of Human Rights12.

 

(i) Convention on the Rights of Child, 1989

 

It provides that in all actions concerning children, the best interest of child shall be a primary consideration. A child is provided with the most important and inherent right to life under the convention13. Moreover, the right not to be subjected to arbitrary or unlawful interference with privacy, family, home and correspondence and the right to enjoyment of the highest attainable standard of health is also provided14. State parties are required to take all appropriate measures to protect the child from all forms of physical and mental violence15 and also from economic exploitation16 and performing hazardous work. State parties are also under an obligation to protect the child from all forms of sexual exploitation and sexual abuse17. For these purposes, State parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

 

a) the inducement or coercion of a child to engage in any unlawful sexual activity,

 

b) the exploitive use of children in prostitution or in other unlawful sexual practices,

 

c) the exploitive use of children in pornographic performances and materials18.

 

State parties failing also to protect children against inhuman and degrading treatment or to provide children with remedies against it would therefore, be in breach of its obligation19.

 

Prior to this Convention several other Conventions were also held which stressed to protect the rights of the child. Geneva Declaration of the Rights of the Child, 1924 which was organized under the auspices of the League of Nations is perhaps the first of its kind to discuss the rights of the child. This was followed by Universal Declaration of Human Rights in 1948 which was adopted by the U.N. incorporating with it certain basic rights for the children. The principles mentioned in the "Declaration of the Human Rights" were incorporated in the "Declarations of the Rights of the child" adopted by the General Assembly of the U.N. on 20th November 195920. Some of the rights conferred under this Declaration are right to protection and to opportunities given by law,21 right to grow and develop in health,22 right to education and care,23 right to protection against all forms of exploitation, cruelty and neglect24 etc.

 

A concern for the welfare of the children also finds a place in Arts. 23 and 24 of the "International Convention on Civil and Political Rights", 196625 and in Art. 10 of the "InternationalConvention on Economic, Social and Cultural Rights", 196626. The "U.N. Standard Minimum Rules for the Administration of Juvenile Justice" otherwise known as "Beijing Rules", 1985 also had specific provisions relating to the rights of the child.

 

2. National Laws and Protection of Children

 

In India, large bodies of legislation exist to protect children from cruelty, exploitation, corruption, indulgence in smoking or alcohol, and regulate their employment in various capacities. Before discussing, the legislative measure it is also important to know what provisions are provided under the Indian Constitution for the protection and welfare of children.

 

With the adoption of the Constitution, the Governmental policies directed against the abuse of children. Part IV of the Constitution which deals with Directive Principles of State Policy clearly stipulates in Art.39 that the State shall in particular direct its policy towards securing "the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength27. The Article further directs the State "the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment28. Besides Art. 15(3) under Part III of the Constitution also urges the State to make special provisions for women and children. The rights of a child is also covered under the provisions of Art.21 which deals with right to life which includes right to live with human dignity and free from exploitation. Right against traffic and forced labour is provided under Art.23 of the Constitution and similarly right against hazardous employment is guaranteed under Art.24.

 

Now coming to the legislative measures, as regards procuration of minor girls, for the purpose of sexual exploitation the Indian Penal Code provides that whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, shall be punished29. Further whosoever sells, lets to hire or otherwise disposes of any person under eighteen years of age with the intention that such person to be employed for the purpose of prostitution or illicit intercourse, shall be punished30. Similarly buying minor for the purpose of prostitution etc. has also been declared offence and punishable31.

 

The Juvenile Justice law provides that whoever, having the actual charge of or control over, a juvenile, assaults, abandons, exposes or wilfully neglects or cause to them unnecessarily mental or physical suffering shall be punishable32. The cases of prostitution is attracted under S.44 of the Juvenile Justice Act, 1986. However this Act was amended in the year 2000.

 

For the protection of children against sexual exploitation Immoral Traffic (Prevention) Act, 1986 was also enacted and provides for the rigorous punishment in case a child is procured, induced or taken away for the sake of prostitution33. It also provides for the punishment to anyone who is found with a child in a brothel on the presumption that such person intends to have sexual intercourse with such child34. There are several other punishable provisions under the Act for the purpose of safeguarding the children against sexual exploitation and prostitution.

 

The Child Marriage Restraint Act, is another important legislation which aim at protecting the children from early marriage. It set forth the age of 18 in case of a girl child and 21 in case of a boy child as marriageable age. Besides Hindu Marriage Act, Hindu Minority and Guardianship Act, Hindu Adoption and Maintenance Act are other important legislation.

 

As for the protection of children against labour, there are several prohibitory laws starting from Children (Pledging of Labour) Act, 1933 to the latest Child Labour (Prohibition and Regulation) Act, 1986 which was enacted to prohibit the engagement of the children in certain employment and regulate the conditions of work of children in certain other employment.

 

CONCLUSION AND SUGGESTIONS

 

Despite all the protective measures, the world today has failed to give recognition to the children to a greater extent. India is no exception to it. It has been facing the problem regarding exploitation of children since the time immemorial. The challenge has been accepted by way of making provisions under the Constitution as well as by enacting various laws but has failed for the reasons of lacuna in it. Unfortunately, there is much more violation of rights also by those who have to safeguard the rights, e.g., the State and its regulatory personnel such as the police and those in charge of remand homes. Moreover even parents are guilty of this, perhaps even in the name of protection. Sometimes law perpetuates more injustice than justice. Thus, where the problem lies is the lack of proper education and economic strength. They are so much inter­related that without one the other cannot be achieved.

 

As against the child labour, the State must enforce compulsory education, the only instrument by which the children are removed from labour force. A campaign should be launched to see that no parents neglect their responsibility of sending their children to schools. It is not their right to live at the earnings of their children. What could be more inhuman treatment than this!

 

And as against child sexual abuse and prostitution, legal intervention may not be helpful especially in cases of child beating and incestuous abuses. To prevent these violences, a non-punitive approach is required. With proper social and psychotherapeutic treatment methods most assaultive parents and child victims can be helped. Besides a separate institution may be established mainly for the children who work as sexual labourers or prostitution and give proper guidance, safe custody ie., of women having high morale and dignity and human rights education.

 

Thus considering all the circumstances the following suggestions are being made in order to fight with child sexual abuse and exploitation:

 

1. Government's concentration on increasing the economic strength of the country.

 

2. Immediate and effective laws against the culprits and proper rehabilitation of victim.

 

3. A sub-divisional campaign to be launched to inspect that no parents are neglect in sending their children to school and giving it power to pick up the children from any street or workplace and giving them in rehabilitation centers.

 

4. Heavy compensation to the victims of sexual abuse, as of their right.

 

5. Criminals should not be set free unless the case of child abuse is pending and speedy trial of the matter should be given more and more importance.

 

6. A full fledged National Commission should be set up to implement the rights of the child giving it power to decide the matter suo motu.

 

7. Laws to protect the children should be effectively and strictly implemented and administration should take up stringent measures to punish the violators.

___________________________________________________________________________

1. Dr. M. Sammaiah, "Children as Victims of Crime -- The Denial of Justice", Crl. L.J.,2001 (Journal), p.52

2. Aravind Narain, "Child Sexual Abuse: Issues relating to Disclosure and Best Interest of the Child", Lawyers. Collective, 2000 April p.15

3. Shriniwas Gupta, "Sexual Violence on Children - A socio-legal Assessment," CILQ 1996 Vol.IX:IV.p.433

4. Subash Chandra Singh, "Growing Problem of Child Abuse and Neglect", Crl. L.J. 1994 (Journal) p.83

5. Subash Chandra Singh "Growing Problem of Child Abuse and Neglect", Crl. L.J. 1994 (Journal) at p.83

6. Ibid, at p.84

7. Supra note 3 at p.429

8. Caroline Lalon, 'Child Prostitution & Rights of the Child", Lawyers Collective, 1995 Vol. 10.p.15

9. Supra note 7 at p.430

10. Supra note 1 at p.53

11. Supra note 9 at p.434

12. Sukanta Ku.Nanda, "Right of the Child -- An Assessment", IBR 1998. Vol.25 (4) p.l46

13. Under Art.6 of the Convention

14. Under Art.24 of the Convention

15. Under Art.19 of the Convention

16. Under Art.32 of the Convention

17. Under Art.34 of the Convention

18. Ibid

19. Art.37 of the Convention

20. Supra note 12. p.147

21. Principle 2 of the Declaration of the Rights of the Child

22. Principle 4 Ibid

23. Principle 5 Ibid

24. Principle 9 Ibid

25. Art.23(4) of ICCPR provides that state parties shall take appropriate steps to ensure equality of right and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Art.24 provides that every child shall have without any discrimination, the right to measures of protection as well as right to acquire a nationality

26. Art.10(3) ICESCR provides that special measures of protection and assistance should be taken on behalf of all children and young persons and be protected from economic and social exploitation. Their employment in work harmful to their health or morals or dangerous to life should be punishable by law.

27. Art.39(e) of the Constitution of India

28. Art.39(f), Ibid

29. Section 366-A Indian Penal Code

30. Section 372, Ibid

31. Section 383, Ibid

32. Section 41 of Juvenile Justice Act, 1986

33. Section 5, Ibid

34. Section 6(2) and (2A), Ibid