A REPORT & RECOMMENDATION ON SPECIFIC AND COMPREHENSIVE LAW FOR PROTECTION OF NORTH
EASTERN PEOPLE (INDIA) AGAINST RACIAL DISCRIMINATION, 2014
SUBMITTED TO GOVT. COMMITTEE
(BEZBARUAH COMMITTEE), MINISTRY OF HOME AFFAIRS (GOVT. OF INDIA)
BY
DR.
TOPI BASAR
CHAPTER
I
I.
INTRODUCTION
CHAPTER I
Cases
|
Total
|
2005-08
|
2009
|
2010
|
2011
|
FIR
|
NO FIR
|
|
Violence
against women
|
||||||||
Molestation
|
35
|
36.46%
|
17
|
9
|
7
|
2
|
15
|
20
|
Rape
|
4
|
4.17%
|
2
|
1
|
1
|
4
|
0
|
|
Beating Girls
|
7
|
7.29%
|
2
|
3
|
1
|
1
|
5
|
2
|
Girls
Trafficking
|
8
|
8.33%
|
5
|
2
|
1
|
8
|
||
Attempt Rape
|
2
|
2.08%
|
1
|
1
|
1
|
1
|
||
Total crime against
women
|
56
|
58.33%
|
||||||
Beating Boys
|
25
|
26.04%
|
20
|
2
|
3
|
5
|
20
|
|
Murder
|
5
|
5.21%
|
1
|
3
|
1
|
4
|
1
|
|
Non Payment
Salary
|
6
|
6.25%
|
4
|
2
|
0
|
6
|
||
Rent Non
Refund
|
2
|
2.08%
|
1
|
1
|
0
|
2
|
||
Media Bias
|
1
|
1.04%
|
1
|
0
|
1
|
|||
Missing Person
|
1
|
1.04%
|
1
|
1
|
||||
Total
|
96
|
100.00%
|
34
|
39
|
16
|
7
|
35
|
61
|
Percentage
|
35.42%
|
40.63%
|
16.67%
|
7.29%
|
36.46%
|
63.54%
|
||
*Data from North
East Support Centre & Helpline, Delhi. It comprises only those cases
reported to NESCH. This is only data of one organization. It may be noted that
complete data is not available since many cases of racial discrimination are
not registered or reported, therefore not documented.
CHAPTER
II
WHY AN ANTI-RACIAL LAW FOR THE NORTH
EAST PEOPLE SPECIFIC IS RECOMMENDED?
As noted in the previous chapter, the
Northeast people are primarily STs besides many other communities grouped as
SC, OBC and General. And among tribes the predominant group is from “mongoloid
stock” with few exceptions while the inhabitants of valleys and plains are a
mixture of several racial stocks, principally, the Mongoloids, the Indo-Aryans
and the Australoids or Austrics. In most of the cases reported, the victims of
racial discrimination and related offences happen to be people from North
Eastern States belonging to mongoloid stock. But, this does not mean that
non-mongoloid north east people are not subjected to discrimination. Their
looks and appearance may not be the basic reason for discrimination but
distinct language, accent, food habits and the fact that they hail from north
east become main ground of discrimination which is nothing but racial
discrimination in an indirect way. In case of mongoloid looks, features and
appearance become the direct cause of racial discrimination and in case of
others it is not mainly looks per se but other reasons as cited earlier. No
matter what race one belongs to, but the people of north east as a whole are
subjected to racial discrimination either directly or indirectly on the ground
of race. Only the degree or manner in which it is committed may differ on a
case to case basis. The fact is that in case of mongoloid looks, it is more
rampant and severe.
A very pertinent issue is that the moment a
northeasterner with mongoloid features is come across by other
members of Indian society a pre-conceived bias and prejudice creep up their
mind. They immediately form an opinion that the northeasterner eats all sorts
of things, are dirty, cheap and easily available, misconstruing the frankness
if they are a female member, characterless, fools and can easily be cheated
mistaking the non fussy attitude for naivety, westernized etc. This state of mind is deeply
indoctrinated. Otherwise a Meitei of Manipur or Ahom of Assam who are mostly
Hindus, strictly follows Hindu religion and rituals yet they are also victim of
racial discrimination because of their looks, physical features owing to
Mongoloid stock.
The discrimination faced by other people is
not necessarily on the ground of race or ethnicity linked to physical
attributes but mainly on regional, linguistic and other grounds. Racial
discrimination crimes and offences are by and large meted out to the PNEI only
and they are the main target and victims of the perpetrators. Therefore, only a
specific anti-racial law for PNEI is recommended. Most of the victims happen to
be NE tribal and moreover the terms of reference issued by Ministry of Home
Affairs to the committee constituted are mainly to look into problems of
discrimination faced by the PNEI.
CHAPTER
III
MAIN
PROBLEMS AND CONCERNS
1.
Increasing number of crimes targeting
PNEI in Delhi & other parts of India. Serious crimes like sexual
molestation, rape, robbery, physical injury, death, ill treatment, harassment,
discrimination etc are faced at the workplaces, residential localities, at
institutions both public and private. Eve teasing by calling chinki, Nepali,
Chinese, Tibetan (connoting as a foreigner, thereby hurting the sentiment of
being“Indian”) etc are common.
2.
Biases, misconceptions, stereotype,
prejudices are at large against the PNEI. Economic exploitation by the
employers, house owners, traders, middlemen etc is common problems of the
people. Language barrier due to difficulty in conversing in Hindi fluently
compounds the problem. Our food habits, dressing style and way of life are not
accepted by the others and regarded as inferior and looked down upon.
3.
Many instances of nonpayment of
salary/wages to large number of NE employees by the private employers are
rampant as per the report of North East Support Centre and from various sources.
4.
Reluctance to give rented accommodation
to the PNEI in certain areas and usually the house/room rent charged is
exorbitant compared to others. The landlords evict them at their free will
despite the lease agreement signed. Whenever the house owners want to raise the
rent, the NE tenant is forcefully evicted as commonly faced by the students
mainly. The middlemen or property dealer also exploit by overcharging, forcing
advances and usurping the money without providing any house at times, inflated
electricity bills are the common woes. Harassment and all kinds of restrictions
by the landlords during the rent period is a major concern which most experience.
5.
Police apathy and inaction. Complaints
are not registered by the Police unless there is any political or media
pressure involved. Even after cases are registered the conviction rate is very
low. In many cases, the victims themselves are slapped with false cases by the
locals in connivance with the Police. This has eroded the faith of the PNEI in
the police and due to this reason many crimes are not reported to the police by
the victim and if proper survey is made in this regard by the government it
will be found out that many offences have not been reported or registered by
the police.
6.
Crimes or offences against body/property
are easier to establish due to presence of direct
evidences. Other discriminations affecting mind, dignity, reputation and
hurting emotions and feelings are rampant but difficult to prove or establish
in law and whereas the injury caused to mind and reputation is equally heinous
so the inclusion of such injury as an offence is indispensible.
7.
Currently, there is no anti racial
discrimination law in India in place which can deal with the specific problems
of discrimination on racial ground faced by the PNEI.
Although the Constitution of India prohibits
discrimination on the basis of race and ethnic origin but it is not supported
by any specific laws to deal with issues of racial discrimination. The only
legal protection given is in the form of SC & ST Prevention of Atrocities
Act, 1989 (hereinafter referred to as POA) and Rules therein which is not
adequate in addressing distinct offences in the nature of racial discrimination
faced by the PNEI. The POA Act had been enacted primarily to protect dalits and
harijans in India from the kinds of atrocities they were subjected to. But, the
problem of racial discrimination and crimes associated with it requires
different set of laws and treatment. There is a need to amend the existing
criminal law and procedures also in the light of these complexities.
8. Lacunae in the SC & ST (POA) Act, 1989
a. The
main intent of enacting this law was to prevent caste based atrocities against
any member of SC or ST, to prevent offences based on Untouchability primarily
keeping in mind the plight of dalits and harijans of India.
b. The
nature of racial discrimination committed against the PNEI is of different kind
and nature which probably the legislators could not visualize at the time the
law was enacted.
c. The
biggest lacunae in the Act and Rules are that it does not cover all sections of
PNEI under it. The essential condition being that the victim of atrocities must
be a member belonging to SC or ST category. What about PNEI for instance
Meithei and Assamese who belong to a general or OBC category having either a
mongoloid or Caucasoid features who are also subjected to such racial based
discrimination and atrocities? A sizable segments of PNEI who face similar kind
of discrimination are left outside the purview of the Act.
d. The
Act only defines offences amounting to atrocities (Section 3) but doesn’t
define the term “atrocities” and is silent on racial discrimination and
offences originating from racial biases and prejudices. For instances offences
of atrocities identified are namely, force feeding inedible or obnoxious
substance, forcibly removing clothes, parading naked or with painted face,
dispossession of land etc.
e. But
the POA makes no mention of racial slur, remarks, gestures and many other forms
of express and implied racial manifestation used commonly against the PNEI. The
Act has not used the term “race or racial” anywhere.
f. The
main Section defining offences under POA is Section 3. The section inevitably
requires intention and knowledge of the accused to prove the offence that the
victim is a member of SC & ST thereby putting too much emphasis on doctrine
of mens rea. Therefore it becomes
extremely difficult to prove in the court of law that the accused committed the
offence intentionally and with knowledge. The requirement of intent is the main
impediment to any conviction under this Act. Requirement of knowledge on the
part of offender that he knew the SC or ST identity of the victim weakens the
case. What if the accused succeeds in proving the absence of knowledge or
intention regarding the identity of the victim before the court? He goes scot
free if he did not violated any other provisions of IPC in conjunction.
g. Further,
the Act makes it a condition that the offender should have committed the
atrocities against the member of a SC or ST on the ground that he was a member
of a SC or ST and the offences are committed in public view which is only covered
but what about offences committed in private domains?
h. The
condition that the offender should not be a member of a SC or a ST can also be
a lacuna in a way. It means if a member of SC or ST in other parts of India
commits racial discrimination against the fellow north eastern SC or ST, they
cannot be convicted under the Act. Such as a North Indian SC committing a
racial offence against PNEI, the former cannot be prosecuted under the POA.
i.
Under Section 4, a public servant
who belongs to SC or ST category is excluded from punishment for willful
neglect of duties required to be performed by him under the Act. This leaves a
big question mark on the commitment and accountability of the public servant.
j.
Procedural hurdles such as
non-registration of cases.
k.
Procedural delays in investigation,
arrests and filing charge-sheets.
l.
Delays in trial and low conviction rate.
m.
Procedural delays in providing relief
and rehabilitation to victims, and inadequate rates of compensation.
9. Section 153A under IPC provides punishment
for promoting enmity between different groups on grounds of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of harmony. However,
this provision is also inadequate in dealing with racial discrimination
offences. The court observed through various judgments requiring and relying
heavily on mens rea in establishing
the offence under this section. Moreover, the cases mostly decided under this
section falls under the ground of religion and not on race.
CHAPTER
IV
Analysis of some cases:-
Case
analysis is done on select few cases out of many just to depict instances of
racial discrimination and the manner in which the law agencies deal with it.
1.
Nido Tania case:-
Brief
Facts-
A 17 year old student (boy) of engineering, Chandigarh
University hailing from state of Arunachal Pradesh came to Delhi on the fateful
day of 29th January 2014. He came to attend to his sick friend and
as a stranger to the city asked for direction of his friends address from a
shopkeeper. The shopkeeper instead of guiding him started commenting on his
hair color and made racial remarks rudely which infuriated the young boy which
lead to an argument. Thereafter the shopkeeper along with his acquaintances
assaulted the boy with lathi’s etc. Police were called and they picked up the
boy, put him in the lock up for hours together and made him pay Rs. 7000/- to
the shopkeeper who’s glass he broke in the altercation. Thereafter the police
dropped him exactly to the place from where he was picked up in a police motor
cycle. The shopkeepers again assaulted him and he somehow escaped to his
friends place. Later in the night he had suffered immense chest pain and
vomited the milk he drank. He succumbed to his injuries the next day.
Seven
people chargesheeted in the Nido Tania racial killing case will face charges of
culpable homicide not amounting to murder, illegal confinement, and offences
under the POA 1959, but not murder. CBI, which took over the investigation, dropped
the murder charge pressed by Delhi Police on the ground that the fatal assault
on Tania was not premeditated but resulted from an altercation over the
breaking of a glass counter. (Times of India)
Comment-
The
starting point of argument which consequently took the life of the victim was
the uninvited and unsolicited comment on the hair color, looks which were
racial in nature. At the first instance the reason seems trivial. Had it been
made by a friend or by any known person or even otherwise an unknown person
innocently such comments would be laughed away. But in this case the boy
reacted knowing fully the manner and intent with which the shopkeeper had made
the remarks. Naturally the makers of such remarks mind are prejudice with
superior complex indoctrinated with a sense that the victim would or should
take it without any resistance. Otherwise the shopkeeper would have apologized
for his remarks but instead he got offended at the reaction of the boy and
assaulted him. So, from such incidence an inference can be drawn as a natural
corollary that “every racial remark has a potential to kill someone”. Generally
such comments are often made in a mocking way to have fun at the cost of
hurting the sentiments of NE people who come across such incidents in varied
situations that further lead to confrontational situations.
The
reaction of the Police is always discouraging and causes serious doubt on their
intention to deal with such offences. In every case Police tries to defend that
the offence was not on account of racial discrimination. CBI has dropped the
charges of murder and charge sheeted the accused for Culpable Homicide on the
ground that the fatal assault on Tania was not premeditated but resulted from
an altercation over the breaking of a glass counter as per Times of India
report. The reasons for dropping charges of murder is appalling and untrue as
the fatal assault which lead to death of the victim was not breaking of glass
but racial remark made on the victim.
HIGH COURT OF DELHI INTERVENTION
The honorable High
Court while taking suo moto cognizance
of media reports about the death of Nido Tania directed the police commissioner
to undertake massive drive to sensitize its 83,000 strong police force about
preventing such crimes. It observed, “You know as to how the persons hailing
from northeast are being referred to? We are not worth being called a
constitutional democracy. This is racial profiling, nobody can claim any title
over any territory on the ground of caste, creed, region or religion. Forget
common people, you need to first sensitize your police force,” the bench
remarked. Further observed only education and the fear of being “caught,
punished or prosecuted” will work in stemming racial profiling of the
community.(Times of India, 6 March 2014)
Comment:
Thus, the Judiciary of the country has also acknowledged the problems of racial
discrimination faced by the NE citizens although a much milder term
“racial-profiling” has been used. The court strongly rapped the Delhi Police to
file a status report and was of the view that more is required to be done.
2. Kotla
Case
On
25 January 2014 two young women from Manipur were thrashed in full public view
by some local goons at Kotla Mubarakpur. Tharmila Jajo and Chonmila who works
at a local mall, had gone to a local shop managed by Tharmila to buy some
Manipuri herbs. On spotting them, the goons first hurled racial abuses at them.
When they didn't react, one of them tied the leash of his pet dog to Chonmila's
boots. She got so scared that she started kicking the dog away, afraid that it
would bite her. First, the men were just doubling up in laughter. But when they
saw the woman trying to get away from the dog, they suddenly started beating
her, accusing her of ill-treating the animal. When Tharmila intervened, two men
dragged her out by the hair, virtually pulling her over the counter. There
were many shops in the same lane but none of the shopkeepers came out to help.
When
three of the women's friends, also from northeast, rushed to their help, the
goons didn't spare them either. “The whole lane was full as people in the
neighbourhood came out after hearing the girls' scream. But no one came to
help," said Lungshim Shaiza (27), a Naga. Shaiza was badly beaten up as he
tried to stop the men from kicking the woman. He apparently fractured two
fingers of his left hand. His friend, Phungreingam Jajo (22), from Manipur lost
his mobile phone and wallet in the clash. This wasn't the end of
the women's nightmare. When they went to the Kotla Mubarakpur police station,
the cops first refused to register an FIR, alleged the women. "From
10:30pm to 6 in the morning, we sat at the police station waiting to get the
complaint registered. We called some of the northeast association members who,
in turn, called up joint commissioner of police Robin Hibu and the FIR was
finally registered," said Mungreiwung W. Mungrei (20), a student. It was,
in fact, his statement that was recorded but no arrests were made. He explained
that the cops kept telling him how he and his friends were wasting the police's
time as they will go back to the hills and not pursue the case.(Source North
East Support Centre & helpline, New Delhi)
Accused
has been charged with molestation and voluntarily causing hurt, while
a case under Prevention of Atrocities against SC and STs has been added to the
complaint.
Delhi Police sources, however, denied it was a 'hate crime', and termed it a case of molestation and assault on women.
Delhi Police sources, however, denied it was a 'hate crime', and termed it a case of molestation and assault on women.
Comment:
The starting point of the offence here is ostensibly the prejudicial mind. The
only provocation was that the girls didn’t react to the racial remarks hurled
at them. The incident depicts clearly that how an innocent passerby can be
victim of serious offences. The accused further got infuriated when help came
from the same sort of persons against whom he had prejudice. The reaction of
the police is more surprising by denying that the offence was not a hate crime.
3.
REINGAMPHY’S
CASE
Miss
Reingamphy Awungshi, aged 26 years, from village, Ukhrul district (Manipur),
who had worked in a spa company was found death under mysterious condition on
29th May 2013 at her rented room, 424, ground B-Block, Chirag Delhi. Reingamphy
was found lying dead on a pool of blood with multiple injuries; while her nose
was bitten off and her leg bore big cut mark, her eyelids scratched, and eyes
bleeding. The police had taken over the body, her mobile phone, photo albums,
cloths and mattress and etc into their custody. Relatives and
friends of Reingamphy suspected rape and murder but the police termed it a
suicide. Relatives suspected the brother-in-law of the landlord who had made
frequent approach to waive off rent to gain acquaintance and intimacy with
Reingamphy despite her disapproval. The landlord had first noticed Reingamphy
lying suspiciously when he had peeped through the ventilator above the door. He
had alarmed the police who subsequently broke open the front door. Though the
room was locked from the front door, the backdoor of the room was found to be opened.
The room was also vertically connected to the rooms on the first floor. These
rooms are accessible to one another by scaling the iron grilled wall. The
victim's relatives at Malviya Nagar police asked police to lodge an FIR under
section 302 (murder) of the Indian Penal Code. But the police lodged an FIR
under Section IPC 306 (abetment of suicide). After strong protest by the
students the police added section of IPC 302. Re-post mortem done at AIIMS also
could not establish the causes of death. (Source North East Support Centre
& helpline, New Delhi)
Comment:
This case is a classic example of landlords, their relatives and neighbors
harassing north eastern tenants which are rampant and also the usual apathy of
Police. In the first instance, police refused to register a case of murder
holding it to be a suicide without any pre investigation. After pressure from
student’s organization the police reluctantly added the section 300/302 for the
offence of murder. The inaction of police has compounded the issue of racial
discrimination which is needed to be addressed immediately.
CHAPTER
V
“The
purpose of Criminal Law is to express a formal social condemnation of forbidden
conduct, buttressed by sanctions calculated to prevent it”
W. Friedman.
SUGGESTIONS AND RECOMMENDATIONS
The Legal Committee constituted by
the NEIFAR is not presenting a detailed draft on anti-racial law or a model
draft law for enactment but only outlining broad features and key elements to
be incorporated in the proposed new law.
A. DRAFT LEGAL FRAMEWORK
1.
The
proposed law must stipulate clear Objective,
Purpose and Definition. The definition of
Racial Discrimination should be broad and inclusive. It should include all
kinds of act or omission,
gesture, words written and spoken which injures or is likely to injure a person physically & mentally and which
inflicts humiliation and mental agony.
2.
Identification and inclusion
of certain acts and omission covert or overt as specific offences which is not yet covered in
the current laws such as: a) Racist or discriminatory verbal aggressions, b) denigrating actions, c) Vilification
(character Assassination), d) Racially
colored remarks, insults, e) unwelcome gestures
etc.
3.
Stricter penal provisions
for racially motivated crimes and offences under the new law to act as a deterrent.
Reason: The present
laws do not include the offences of racial discrimination or hate crimes based on racial or ethnic
differences of NE people. The IPC 1860 and POA 1989 do not penalize the racial crimes or hate crimes as it is
not one of the offences defined therein.
Such offences which explicitly undermines the dignity of an individual and which invariably erode and violate
rights of a human being should be dealt with strictly to infuse confidence in the people thereby creating safe
and conducive society.
4.
Acknowledging
several kinds of discrimination identified, the offences should be classified as criminal discrimination and restrictive
or negative discrimination. Negative
discrimination would include all such denials and deprivations which would impede economic empowerment, political
opportunity, restricting freedom of religious
practices or which would impair the development of an individual which is done with dishonest intention.
5.
The
definition of offences should be broadly
framed to include all kinds of discrimination
faced by the PNEI.
Reason: Offences
defined under the IPC and POA does not specify race/ethnic and other discrimination based crimes. Offences of
IPC and POA committed on the north eastern people
based on racial, regional, linguistic, religious, ethnic & cultural grounds
should be regarded as an
offence of discrimination in the new law. Offences should include racial slur or comment like “chinki”, calling a NE
people a foreigner of any other country, unwelcome
gestures or comments to cause injury,
insult, showing or displaying private parts
both in public and private place.
6.
All
the offence defining provision of IPC should be made applicable to the new law excepting in the cases where specific
offences are defined in the new law. In other words the new law should include all the offences of the IPC and the
punishment should be enhanced by 1/3 of the maximum punishment
provided in IPC in the cases of offences
triable under the new law.
7. The principle
of mens rea (mental intention)
should not be made applicable in the new law.
Explanation:
The knowledge or intention of the perpetrator that he committed the offence against the victim because of his
/her north east identity or origin should not be made essential to establish the guilt. Acts of racial
discrimination and offences committed under
the law should not require knowledge or intention to commit the offence. Presumption of knowledge and the principle
of strict liability should be applied.
8.
Police
shall presume the commission of offence
under the new law if a report/complaint is
been made by person from the north east India. The Police shall register a case
on such report/complaint and any
non compliance should be liable to be prosecuted for dereliction of duty.
Reasons:-
The discrimination against PNEI is persistently in recurrence. Despite
indiscriminate incidence of discrimination the PNEI avoid making complaints to
the police. The underlying reason for not preferring police report is due to
apathy and hostile treatment of police to such complainant. They are put in uncomfortable
situation by unreasonable questions and putting them into utter discomfort. The
police mostly resort to unexplained delay and make them relay from desk to desk
and from one officer to other clearly indicating their reluctance. Another aspect is that the PNEI are non fussy,
evade complication and sometime abdicate their right over petty matters. So
until the assault becomes extremely intolerable the matter is not reported to
police. Therefore, the presumption of offence committed under the law would
address and prevent prospective offences to a great extent.
9.
Onus of proof should be on the accused.
Reasons:
Proving an offence is very crucial for conviction. But it has been noted that
the offence of racial discrimination
mostly effecting mind and reputation becomes extremely difficult to prove in the present realm of criminal
jurisprudence wherein the benefit of doubt
is given to the accused. So as per the essence of the present law the evidence required to prove guilt is beyond
reasonable doubt and therefore the possibility of production of such evidence is very remote.
B. PERMANENT INSTITUTIONAL & PROCEDURAL
MECHANISMS
1. The Judicial Officer should be bestowed
with more supervisory power.
Reason:
As earlier discussed above in this context that evidence to the commission on racial discrimination offence may be
scarce. Therefore early detection and collection of evidence without losing crucial time is paramount. In most of
the cases the crucial piece of
evidence is lost by police delay and inaction. So in order to avoid such laxity
the Judicial Officer may be given
such powers to supervise proper investigation on the police. Therefore suitable amendment of Cr. P. C 1973 to
incorporate the said provision is
recommended in this regard. It should be notwithstanding anything contained in
Cr. P. C. 1973, the Judicial
Officer be bestowed with supervisory power on police investigation while clearly specifying the powers
of the Judicial Officer.
2. Classification of offences in to
cognizable and non cognizable cases.
. It
is recommended that offences by which no serious bodily injury is inflicted but
is done with
some overt act or omission or abetting overt act or omission, the presence of
high degree of mens rea be presumed and should be made a cognizable offence.
3. It is recommended that there should be
creation of special cell in every police station and an apex cell at the state level (existing North east cell of Delhi
Police be revamped and made the Apex
cell for the state of Delhi). Police Officers who are well trained in sensitive cases and having good understanding
of the sensitivities of the NE people be appointed
as Special Police Officers.
4. It is recommended that the following
provisions be inserted in Section 154 clause 1 of Cr.P.C 1973 namely:
a)
“Provided that if the information is
given by the NE Indian against whom an offence is alleged to be committed or
attempted under the proposed new law then such information shall be, as far as
possible be recorded by Special Officer. Thereafter such special officer shall
immediately inform the Judicial Officer and Officers of Counseling &
Rehabilitation (C&R) centre for victims of racial discrimination.
Reasons and
further recommendation: Immediate and verbatim recording
of statement of the victim is sine quo
non in providing crucial evidence to prove the crime. Any delay might
affect the quality of evidence. At the same time it is important that the
victim of such offence be counseled and rehabilitated to mitigate the trauma
the victim had undergone. Therefore it is further recommended that a Counseling
and Rehabilitation (C&R) centre with detailed objective and guidelines be
established as soon as possible.
b)
The recording of such information may be
videographed.
c)
The special police officer shall get the
statement of the person recorded by a Judicial Magistrate as soon as possible
under clause A of sub-section 5B of sec.154 Cr.P.C (amendment proposed).
5. In sec. 164 of Cr.P.C. after
sub-section 5A, following sub-section may be inserted:
5 B (a)- In
cases punishable under the new law the Judicial Magistrate shall record the
statement of the person against whom such offences has been committed under the
new law, as soon as the commission of the offence brought to the notice of the
police.
Provided that if the person making the
statement is temporarily or permanently, physically or mentally disabled, or does
not have a knowledge of Hindi or English, the Magistrate shall take the
assistance of an interpreter or special educator in recording the statements
and such statement made by the person may be videographed.
5 B (b)- A
statement recorded under clause (a) shall be considered a statement in lieu of
examination-in-chief, as specified in Section 137 of Indian Evidence Act, 1872
such that the maker of the statement, can be cross examined on such statement
without the need for recording the same at the time of trial.
6. Amendment recommended in IPC 1860
and they are as follows:
Insertion: The words “offences
under the proposed new law” should be added in Sec.166 A clause (c) after
the words section 376E. The inclusion of offences of the proposed new law into
the aforesaid section in IPC will considerably compel public servants to comply, who are bestowed with powers in
containing such offences.
7. It is recommended that the new
law should contain adequate compensation
to the victim due to injury caused by racial discrimination. As in most of the
cases, the victims of racial violence suffer economic loss in the form of loss
of employment and other avenues.
8. In
offences committed under the new law against PNEI, there should be a
presumption of racial intent or knowledge that the act committed amounts to
racial offence not only at investigation as earlier mentioned above but also at
enquiry.
CHAPTER
VI
OTHER
RECOMMENDATIONS
These
recommendations are equally important as remedial or precautionary measures to
address/ameliorate the problem of racial discrimination.
1. 1. Panel of lawyers should be constituted
for providing free legal aid to the victims of racial discrimination offences.
The services of such lawyers should be sought even the preliminary stage of
investigate and thereafter to assist the court.
2. 2. Panel of Docters should also be
constituted as the MLC can be understood and interpreted only by them so as to
detect any manipulation or lacunae.
3. 3.Massive Awareness and sensitization
programme should be launched at all levels
4. 4. Right not to be discriminated at the
work places both public and private in matters of all employment conditions
through appropriate governmental orders derived from the law.
5.
Freedom from harassment by the land
lords and exploitation by the brokers and property dealers.
Suggestion: The government may allocate land in Delhi earmarked for north eastern people where NE people could build/own
house. This step will lead to integration in the long run.
5. 5. Right
to equal political participation and representation.
Suggestion:
Provision for a political representation of/from NE people in Delhi Legislative
Assembly either elected/nominated.
6. 6.Right
to religious and cultural freedom, namely right to worship at religious places,
to congregate for religious and cultural practice and adequate State support to
be ensured for enjoyment of these rights.
7. 7.Right
to freedom of education and equal educational opportunities without any
discrimination and bias. Educational & security interests of the NE students
coming from far flung areas of NE to Delhi and NCR needs prime focus of the
government. This may be taken up at the appropriate level with the respective
State governments of NE states considering large population of student
migration for education outside the NE states steadily growing every year.
8. 8. Creation
of database of working people and students by a designated nodal agency in
collaboration with the respective State Governments through the Resident
Commissioners of the States. Maintaining detailed information of the working
address and residential address of the employees and students will be very
useful for security reasons.
9. 9. Media,
cinema and other form of mass communication should play a very proactive role
in bridging the cultural gap, feeling of alienation that exists by highlighting
positive aspects and contribution of NE states to the rest of India.
10. 10.Inclusion
of history and culture of PNEI in the national curricula for fostering better
understanding of the region.
CHAPTER VII
CONCLUSIONS
1. It
is not only inadequacy of law but lack of social and cultural understanding of
north east by the rest of India. Many a times certain biases and prejudices are
due to ignorance of history and culture of north east India to large an extent.
2. There
is a lack of proper policies to address the problem comprehensively from
social, legal, political, economical and educational perspective. The question
is not only of providing legal security but need for ensuring security and
empowerment in all possible ways.
3. Long
term measures based on integrated and holistic approach is required. The
permanent mechanisms should be put in place to address and remedy the problem
just a “safety valve” approach will not solve the problem. Both legal policies
and permanent mechanisms must go hand in hand. Just a short term measure or
action to diffuse the problem temporarily will not cure the problem as it will
again occur after the matter cools down. There is a need for legal protection
as well as permanent institutional mechanisms which will function continuously.
4. More
crimes are being committed against the PNEI as per several reports because the
perpetrators know that they can easily get away from the law and police.
5. PNEI
lives in extremely hostile and insecure environment in Delhi, NCR and other
areas..
6. The
objective should be protection as a short term measure and integration in long
run.
CONVENOR LEGAL COMMITTEE
Dr. Topi Basar, Mizum
Nyodu
Assistant
Professor Assistant
Professor,
Faculty of Law,
Delhi University. Faculty
of Law, Delhi University
Mobile:
8586033550 Mobile:
9899358711
E-mail:
topibasar@gmail.com Email:
miijumxodu@gmail.com
MEMBERS LEGAL
COMMITTEE
ID GIL LL.B
EDMUND HUNGSHI LL.B
FRANCIS LL.B
KOJ YASUNG LL.B
BZ LL.B
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