Section 29 of POCSO Act applicable only after trial begins
Paper:
Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
Why in news?
The Delhi High Court has ruled that the presumption of guilt engrafted in Section 29 of the Protection of Children from Sexual Offences (POCSO) Act gets triggered and applies only once trial begins, that is after charges are framed against the accused.
Section 29 of the POCSO Act
Section 29 of the POCSO Act says that when a person is prosecuted for committing an offence of sexual assault against a minor, the special court trying the case “shall presume” the accused to be guilty.
Key details
- The reverse burden on the accused to prove his innocence was incorporated in the POCSO Act keeping in view the low conviction rate of sexual offences against children.
- If a bail plea is being considered before charges have been framed, Section 29 has no application.
- ‘Trial’ commences when charges are framed against an accused and not before that.
- Only at the stage when charges are framed does the court apply its judicial mind to whether there is enough evidence on record to frame a precise allegation, which the accused must answer.
POCSO ACT, 2012
- To deal with child sexual abuse cases, the Government has brought in a special law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012.
- The Act has come into force with effect from 14th November, 2012 along with the Rules framed thereunder.
- POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
- The Act was amended in 2019, to make provisions for enhancement of punishments for various offences so as to deter the perpetrators and ensure safety, security and dignified childhood for a child.
- The Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
- The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
- People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
Who is a child?
- According to United Nations Convention on Rights of the Child (UNCRC), “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”. This gives the various countries freedom to fix the age limit in determining that who is a child.
- In India, different laws define the words ‘child’ and ‘minor’ differently.
- The POCSO Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
- The Juvenile Justice (Care and Protection of Children) Act, 2000: The most important impact of the Juvenile Justice Act of 2000 was that it shifted the age criterion for the legal definition of a child from 14 years and below to 18 years and below.
- After the passing of the 2000 Act, a revamped Juvenile Justice Bill was passed in the Lok Sabha on 7 May 2015 in the aftermath of the Delhi Rape Case of December, 2012 in which a minor was found guilty.
- Juvenile Justice (Care and Protection of Children) Act, 2015has been passed by Parliament allows minors in the age group of 16-18 to be tried as adults if they commit heinous crimes. The crime will be examined by the Juvenile Justice Board to ascertain if the crime was committed as a ‘child’ or an ‘adult’.
- The Child Labour (Prohibition and Regulation) Act, 1986 – a child is defined as a person who has not completed 14 years of age.
- The Plantation Labour Act 1951 has separate definitions for child, adolescent and adult. According to it ‘child’ means a person who has not completed his fourteenth year. ‘Adolescent’ means a person who has completed his fourteenth year but has not completed his eighteenth year whereas ‘adult’ means a person who has completed his eighteenth year.
- The Motor Transport Workers Act 1961, and the Beedi and Cigar Workers (Conditions of Employment) Act 1966, both define a child as a person who has not completed 14 years of age.
- The Prohibition of Child Marriage Act, 2006: “Child”means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.
Protection of community land sought in Odisha
Paper:
Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
Why in news?
Residents in Dhinkia village in Odisha’s Jagatsinghpur district have opposed laying of pipelines by Indian Oil Corporation using their common land — a space earmarked for community use.
Background
- A few years ago, villagers of Kharkhari Patharkata village in Dhenkanal district had lodged a complaint with public authority that their playground was demarcated as plot under Forest Rights Act.
- There were innumerable grievances against government which was accused of acquiring community land for creating land bank for future industrial use in the State.
- With community land gradually vanishing under development pressure, villagers in Odisha have understood the danger of community being stripped off the important resource and started protesting the move.
- Both company officials and government had surreptitiously planned to use village common land without seeking permission from land owners.
Industrial land bank
The State government has created over one lakh acre land bank across the State for allocation to the industries after dispute over land acquisition proved stumbling block for setting up of projects. Villagers allege most of these land patches were common land.
What is ‘Common land’
- Common land or common property resources are meant for collective use of community.
- Commons, or Common Property Resources (CPR) are used interchangeably to understand areas that are under use or ownership of groups of people.
- These land patches are either used as playing ground or grazing ground for livestock.
- Marginal farmers and landless people heavily depend on this critical resource.
- It owned by village panchayats.
- These areas can have a variety of uses including community pastures, community forests, fish drying and processing, lands used for agricultural foliage, burial grounds, watershed drainages, village ponds, rivers, rivulets as well as their banks and beds.
- Legally CPRs have been referred to as private property for a group, in contrast to an individual.
- Till the time common areas were in possession of communities and in use, the rights to these were clearly defined.
- However, over a period of time these use or ownership rights could have eroded, acquired or extinguished due to government policy.
- As a result, today commons or CPRs are being viewed in general parlance as a “category on which ambiguous rights exist”, that would need to be clarified or defined.
Forest rights Act 2006
- The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, is a key piece of forest legislation passed in India on 18 December 2006.
- It has also been called the Forest Rights Act, the Tribal Rights Act, the Tribal Bill, and the Tribal Land Act.
- The law concerns the rights of forest-dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India.
- The act recognizes and vest the forest rights and occupation in Forest land in forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD)who have been residing in such forests for generations.
- The act also establishes the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance of FDST and OTFD.
- The Act provides forest dwellers with the right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood.
- Right of ownership, access to collect, use, and dispose of minor forest produce (includes all non-timber forest produce of plant origin) which has been traditionally collected within or outside village boundaries;
- According to Section 2(c) of Forest Rights Act (FRA), to qualify as Forest Dwelling Scheduled Tribe (FDST) and be eligible for recognition of rights under FRA, three conditions must be satisfied by the applicants, who could be “members or community”:
- Must be a Scheduled Tribe in the area where the right is claimed; and
- Primarily resided in forest or forests land prior to 13-12-2005; and
- Depend on the forest or forests land for bonafide livelihood needs.
- To qualify as OTFD and be eligible for recognition of rights under FRA, two conditions need to be fulfilled:
- Primarily resided in forest or forests land for three generations (75 years) prior to 13-12-2005, and
- Depend on the forest or forests land for bonafide livelihood needs.
SC against involuntary Narco tests
Paper:
Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
Why in news?
Involuntary administration of Narco or lie detector tests is an “intrusion” into a person’s “mental privacy,” a Supreme Court judgment of 2010 has held.
Key details
- The consequences of such tests on “individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice” can be devastating.
- It may involve future abuse, harassment and surveillance, even leakage of the video material to the Press for a “trial by media.”
- Such tests are an affront to human dignity and liberty, and have long-lasting effects.
- “An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy,” the apex court had held.
Background
- A spokesperson for the Uttar Pradesh government said that polygraph and narcoanalysis tests would be conducted as part of the investigation into the alleged gangrape and murder of a 19-year old Dalit woman by four men of the Thakur caste in Hathras last month.
What are polygraph and narcoanalysis tests?
- A polygraph test is based on the assumption that physiological responses that are triggered when a person is lying are different from what they would be otherwise.
- Instruments like cardio-cuffs or sensitive electrodes are attached to the person, and variables such as blood pressure, pulse, respiration, change in sweat gland activity, blood flow, etc., are measured as questions are put to them.
- A numerical value is assigned to each response to conclude whether the person is telling the truth, is deceiving, or is uncertain.
- A test such as this is said to have been first done in the 19th century by the Italian criminologist Cesare Lombroso, who used a machine to measure changes in the blood pressure of criminal suspects during interrogation.
- Narcoanalysis, by contrast, involves the injection of a drug, sodium pentothal, which induces a hypnotic or sedated state in which the subject’s imagination is neutralised, and they are expected to divulge information that is true.
- The drug, referred to as “truth serum” in this context, was used in larger doses as anaesthesia during surgery, and is said to have been used during World War II for intelligence operations.
- More recently, investigating agencies have sought to employ these tests in investigation, and are sometimes seen as being a “softer alternative” to torture or “third degree” to extract the truth from suspects.
- However, neither method has been proven scientifically to have a 100% success rate, and remain contentious in the medical field as well.
Narco Analysis Test Concerns
Narco-analysis, just like other scientific techniques such as brain-mapping and lie-detector tests, is a tool to get a person to incriminate himself during the course of a trial.
These techniques thus violate the fundamental right guaranteed under Article 20(3) which states that no person who is accused of an offence shall be compelled to be a witness against himself, also referred to as the right against self-incrimination.
Right against self-incrimination
- The right against self-incrimination is not guaranteed under the Constitution only but also in the Code of Criminal Procedure (CrPC).
- In the CrPC, the legislature has protected an individual’s right against self-incrimination.
- 161 (2) of the CrPC says that every person “is bound to answer truthfully all questions, put to him by a police officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture”.
- Narco-analysis is also widely believed to be an intrusion of the right to privacy of an individual, a right that is guaranteed as a part of the right to life & personal liberty given under Article 21.
Narco Analysis Judgements
- The most significant judgement in this regard came in the case of Selvi v. State of Karnataka, where the accused challenged the constitutional validity of certain scientific techniques of interrogation in criminal cases.
- These techniques included Narco-Analysis, Polygraphy and Brain Fingerprinting, and the petitioners argued that using these techniques are softer alternatives to the use of third-degree methods by the investigators and violates right against self-incrimination in Article 20(3) of the Constitution.
- A three-judge bench of the Supreme Court unanimously held that these tests are testimonial compulsions and are prohibited by Article 20(3) of the Constitution. In addition, the Court laid down the following guidelines in this respect:
- No Lie Detector Test should be administered except on the basis of the consent of the accused.
- An option should be given to the accused whether he wishes to avail such a test.
- The consent should be recorded by a judicial magistrate if any of these tests are to be done.
- During the hearing before the magistrate, the person who has given the consent must be duly represented by a lawyer.
- The person in question should also be informed clearly at the hearing that the statement that is made will not be a ‘confessional’ statement to the Magistrate but shall have the status of a statement made to the police.
- The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
- A complete factual and medical narration of the way in which the information was received should be taken on record.
EC announces new rules for postal ballot
Paper:
Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
Why in news?
Seeking to make the procedure to opt for postal ballot more convenient for those above 80 years of age and people with disabilities, the Election Commission (EC) has come out with a set of new instructions.
Key details
- The form required to opt for the postal ballot would be delivered at the residence of all those above 80 years of age and people with disabilities by the booth level officer under his polling station.
- It would be up to these two category of voters to opt for postal ballot
- If he/she opts for postal ballot, then the booth level officer will collect the filled-in form 12-D from the house of the elector within five days of the notification and deposit it with the returning officer forthwith.
- These instructions have been issued based on the feedback the poll panel received from civil society and media during its visit to poll-bound Bihar last week.
- The EC said the fresh instructions would be applicable to all elections and by-elections, including the bypolls announced to 56 assembly and one Lok Sabha seat.
- As per the instructions, the returning officer would deploy polling teams, who will deliver and collect the postal ballot on pre-informed dates and thereafter deposit it with the RO.
Background
Recently, the Election Commission of India (ECI) announced that people above the age of 65 years and those under home or institutional quarantine will be allowed to vote by postal ballots during the Bihar elections as they are at a higher risk of contracting Covid-19 infection.
What is postal ballot system
It is also called Electronically Transmitted Postal Ballot Papers (ETPB) and under this ballot papers are distributed electronically to electors and are then returned to the election officers via post.
Who can avail this facility?
Currently, only the following voters are allowed to cast their votes through postal ballot:
- Service voters (armed forces, the armed police force of a state and government servants posted abroad),
- Voters on election duty,
- Voters above 80 years of age or Persons with Disabilities (PwD),
- Voters under preventive detention.
- Special voters such as the President of India, Vice President, Governors, Union Cabinet ministers, Speaker of the House and government officers on poll duty have the option to vote by post. But they have to apply through a prescribed form to avail this facility.
A new category of ‘absentee voters’ was introduced in which they can also opt for postal voting.
These voters are employed in essential services and unable to cast their vote due to their service conditions. Currently, officials of the Delhi Metro Rail Corporation, Northern Railway (Passenger and Freight) Services and media persons are notified as absentee voters.
What is ECI?
- The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
- The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
- Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
- The Election Commission was established in accordance with the Constitution on 25th January 1950.
- Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc of the commission and the member.
Crucial GST meeting
Paper:
Mains: General Studies-III: Technology, Economic Development, Bio diversity, Environment, Security and Disaster Management
Why in news?
Kerala has decided to stick to its stance to reject the two alternatives presented by the Union government for paying out this year’s compensation to States on account of the implementation of the Goods and Services Tax (GST).
Key details
- Finance Minister Nirmala Sitharaman will chair the Council’s upcoming 42nd meeting, where possible solutions are expected to be discussed to resolve the impasse over compensation.
- The Centre has estimated a ₹2.35-lakh crore shortfall in cess collections used to recompense States, while compensation payments of ₹3 lakh crore are due this year.
- It has argued that only ₹97,000 crore of this shortfall can be attributed to GST implementation, while the rest is due to the unprecedented economic stress arising from the pandemic and the lockdowns.
- Ten Opposition-ruled States, including Kerala, are yet to agree to the proposals which envision States raising ₹97,000 crore via a special borrowing window to be created by the central bank, or borrowing the entire ₹2.35 lakh crore shortfall in compensation cess collections from the market.
- Kerala, the first State to speak out against the Centre’s proposals, will stick to the stance that both the options infringe upon the above two cardinal principles and are not acceptable.
Background
- In the current fiscal, the states are staring at a staggering ₹ 2.35 lakh crore Goods and Services Tax (GST) revenue shortfall.
- Of this, as per Centre’s calculation, about ₹ 97,000 crore is on account of GST implementation and rest ₹ 1.38 lakh crore is the impact of COVID-19 on states’ revenues.
- The Centre in August gave two options to the states to borrow either ₹ 97,000 crore from a special window facilitated by the RBI or ₹ 2.35 lakh crore from market and has also proposed extending the compensation cess levied on luxury, demerit and sin goods beyond 2022 to repay the borrowing.
- Chief Ministers of six non-BJP ruled states — West Bengal, Kerala, Delhi, Telangana, Chhattisgarh and Tamil Nadu — have written to the Centre opposing the options which require states to borrow to meet shortfall.
GST Council
- It is aconstitutional body under Article 279A. It makes recommendations to the Union and State Government on issues related to Goods and Service Tax and was introduced by the Constitution (One Hundred and First Amendment) Act, 2016.
- The GST Council is chaired by the Union Finance Minister and other members are the Union State Minister of Revenue or Finance and Ministers in-charge of Finance or Taxation of all the States.
- As per Article 279A (1) of the amended Constitution, the GST Council has to be constituted by the President within 60 days of the commencement of Article 279A.
- As per Article 279A of the amended Constitution, the GST Council which will be a joint forum of the Centre and the States, shall consist of the following members: –
- The union finance minister- chairperson;
- The union minister of state in charge of revenue or finance- member;
- The minister in charge of Finance or Taxation or any other Minister nominated by each State Government- Members.
- A decision comes into effect when it has the majority of 3/4th of GST council which comprises of
- 2/3rd votes of States
- 1/3rd Votes of the Centre
- Each state has 1 vote.
- Note: 50% of the GST Council must be present while taking any important decision.