Governance · Law

The Big Legal Lax of 21st Century

With the recent arrest in Delhi of BSP MP Dhananjay Singh and his wife Jagriti Singh in relation to a crime of a most brutal description, comes the need to evaluate a shocking reality which has resurfaced in the public fore. Rakhi, the 35 year old maid who was working for the couple, was found murdered and her body bore burn marks on the chest, stomach, arms and legs.

According to reports, she had been tortured everyday for the past 10 months leading up to that fateful night of November 1st when she finally succumbed to her injuries and died the morning after. The police had also discovered another domestic help, working in the same house, who was a minor but was nevertheless beaten in a similar fashion over a continuous period of time. Both girls are believed to have been brought to the city through a trafficking trail that was traced back to Bangladesh. Singh is facing charges of murder, extortion and other offences under the Gangster’s Act. He has also been charged with destruction of evidence, not informing about the maid’s death immediately, and employing a juvenile as domestic help. Jagriti has been charged with the offences of murder, attempt to murder and wrongful confinement under sections 302, 307 and 344 of the Indian Penal Code respectively. She has also been booked under provisions of the Juvenile Justice Act. This incident adds to the already existing spate of domestic abuse cases which have been registered in the last one year. Abuse of labour is a common occurrence in this present day and age and yet, trafficking, which appears to be the medium through which such labour is procured, remains largely undetected.

The Justice Verma committee in its report on the recommendations towards amendments in criminal law had made the same observation in relation to the prevalence of trafficking, the primary victims of such practice being women and children. Numbers prove this and several statistical analyses carried out by different bodies, governmental or non-governmental, confirm this fear, but the numbers only recognize exploitation for the purpose of sex work with the exclusion of other abusive uses of forced labour. A second point which was made in the report that needs to be revisited in light of this recent incident is the one relating to an observation that the committee had made in the course of their study that the police too have a considerable role to play in silencing the victims of trafficking in order to requite their own stakes which they personally vest in this business. The brazenness with which the police have apprehended a Member of Parliament alongside a string of similar arrests which have been made in recent times shows that the police may finally be ready in acting outside the political influence which is widely believed to affect their steed. This definitely signifies some major change in the realpolitik of our police force. Trafficking in India is legally regulated by a myriad set of laws that are usually used in the process of incarcerating the perpetrators, but most of the laws are either scarcely implemented or are insufficient to govern the range of circumstances that arise from trafficking incidents.

For instance, we have the Child Labour (Prohibition and Regulation) Act, 1986 which prohibits employment of children in certain specified occupations only, such as construction work in the railways, plastics factories, automobile garages, as well as beedi making, tanning, soap manufacture, brick kilns, etc., leaving outside its purview the other employment areas where children are being continuously hired for their services. The same problem lies with Article 24 of our constitution which prohibits employment of children below 14 years of age in factories, mines or other hazardous employment. In laying down conditions for the work of children the Act, despite being acknowledged for the far reaching views it has taken on the maintenance of health of children, exposes to us the lack of severity with which our legal framework operates in that it fails to give us the full reassurance that the engagement of young children in any form of work shall one day stand permanently abolished in our country. This only seems like a distant dream which is unlikely to be fulfilled in the near future.

Furthermore, the language as contained in this Act is directly in contravention of Article 21 (a) of the constitution of India which guarantees the fundamental right to education of children between the 6 and 14 years of age as it is common knowledge that if a child is engaged in labour that eliminates any good chances of him receiving a proper education. However, even Article 21 (a) does not do enough for the supremacy of education over forced labour because in keep the age group as being restricted to 6 to 14 years of age it has inevitably decided to abandon the rights of other minors from the protection of legal coverage. A child between the age of 14 and 18 is still a minor and deserves equal protection against the hegemonic evasiveness that takes away the possibility of a life premised on productive education. The most prominent tool we have against the spread of trafficking networks is the Immoral Trafficking Prevention Act. However, this act is not defined in a wholesome manner and only criminalizes trafficking for the purpose of prostitution, again a suggestion made by the Justice Verma Committee.

With the enactment of the new Criminal Law Amendment Act, 2013 Section 370 of the Indian Penal Code has assumed a new definition which criminalizes trafficking for the purpose of sexual exploitation. Now, two contentions arise against this. First, in doing so it has omitted in its definition the inclusion of forced labour for the purpose of eliciting services other than those which are of sexual in nature, and so it does not provide any protection against the rampant trafficking that is being perpetuated in other sectors. Second, it has virtually ignored the provisions of Article 23 of our constitution which guarantees a fundamental right against exploitation, prohibits traffic in human beings and forced labour and makes their practice punishable under law. Thus, these are some of the wider implications of this tragic news incident that we hope will provide some food for thought to our legislators and judiciaries.

About the Author

dipayanDipayan Chowdhury

He is a student of Symbiosis Law School in Pune. An  optimist at heart with a penchant for public speaking  he had decided to join law school out of an intensive interest to make significant contribution in the area of  human rights work in the country. He is currently pursuing a diploma in the field of Human Rights   Jurisprudence which involves a comprehensive study of the interface between International law and Human rights law. Having been a science student he also holds a special interest in the field of Intellectual Property Rights and particularly in exploring the human rights aspect in it. His other interests include Criminal Justice and Feminist Jurisprudence. An avid dreamer, Dipayan hopes to go a long way in the fight for the realization of his vision and also hopes for the right people to join him in this effort.

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