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Denis Giles

29 May 2014

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- Dr S Chakraborty

Entrepreneurs or self employed persons are slowly but surely getting the respect that they deserve for choosing the path less travelled and I am sure just like  rest of India, islanders will also see young people with audacious ideas capturing the attention and imagination  of the society. Yes it sounds glamorous and fun but the journey that every entrepreneur embarks on, is far from that. As an entrepreneur myself, I must confess the road to fame and success is tough with lots of insecurity and criticism thrown in, one has to to brave the storm and move on.  Here I would like to present some qualities that I feel, a entrepreneur must have to achieve, what he is set out for;

1) You must be emotionally invested in your project completely.  You should have the passion and must feel stongly about it or else its very difficult to withstand the ups and down of any project.

You will realize soon that money just like a drug, fails to give the kick that you always need to have sustained enthusiasm. Only innate interest and total emotional involvement will give you the endless supply of energy to carry on and on. 

2) Don’t chase somebody else dream.  Instead of having a herd mentality and just doing what everybody else are doing, have your own unique project and give it all you have got. Do you want to be a stinking rich but unhappy and unsatisfied person or a relatively well off person with a great sense of fulfilment because of a unique product?

3) Constraints inspire creativity. All success stories started from constraints right from facebook, twitter, apple etc. So don’t give up your million dollar idea just because you don’t have much money. Persevere with it and things will happen.

4) Your first idea need not be always the best idea. So never mind about your previous failed ventures. Harness your experiences from that and start afresh. And yes you can always call yourself a serial entrepreneur rather than a person with past failures.

5) Get yourself a high altitude view of your project. Review it periodically so that mid course correction if needed, could be done and desired outcome could be manufactured. Never leave your project on auto pilot mode once it took off or else it will derail.

6) Completely immerse yourself in the project to the point of no return. Don’t have a escape plan or else 100% commitment and absolute creativity won’t come. On seeing a mightier and bigger enemy, a king once ordered to burn all its boat so that nobody including him can think of backtracking. Needless to say, he conquered.

7) To succeed spectacularly, you must be prepared to fail spectacularly as well. So practice DWAVANDWA, a Sanskrit word which means alike in success and failure. Can you conclude from Dhoni’s expression, whether he has lost or won? If you are very much pleased with success then failure will also hurt you more.

8) Every success story is backed up by a good team of committed workers with shared values and principles. Cultivate a culture of leadership in your organization so that you have more heads to get ideas from. Henry Ford of Ford motors once famously said; take away all my factories and wealth but just give me my team. I can make all the factories again.

9) Get yourself a rhino skin. Criticism will come thick and fast more often than applause. So don’t lose sight of your end product, shrug off the flies and march on.

10) Past performance does not guarantee future results; never mind your past success or reputation, every day you have got to crush your ego and start with a zero.

It must be a win win deal for you and for yor service user or else it won’t stand the test of time. Never try to make a quick buck at somebody’s expense. You will face the same music, its just a matter of time.   

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Denis Giles

07 May 2014

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Police Reforms in India

- BhuneshwariDevi, Adv.

The first ever attempt to find out what was wrong with the policing system in India took place in 1977. However nothing much has happened since then.  In the year 2006, in Prakash Singh case, the Supreme Court commented that considering the far reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861 and absence of any comprehensive review at the national level of the police system after independence despite radical changes in the political, social and economic situation in the country, the government of India, on 15th November, 1977, appointed a National Police Commission. The commission was appointed for fresh examination of the role and performance of the police both as a law enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution. The terms and reference of the Commission were wide ranging. The terms of reference, inter alia, required the Commission to redefine the role, duties, powers and responsibilities of the police with special reference to prevention and control of crime and maintenance of public order, evaluate the performance of the system, identify the basic weaknesses or inadequacies, examine if any changes necessary in the method of administration, disciplinary control and accountability, inquire into the system of investigation and prosecution, the reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity, examine the nature and extent of the special responsibilities of the police towards the weaker sections of the community and suggest steps and to ensure prompt action on their complaints for the safeguard of their rights and interests. Supreme Court issued the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations:

State Security Commission

(1) The State Governments were directed to constitute a State Security Commission in every State to ensure that the State Government do not exercise unwarranted influence or pressure on the State police. The Commission was also required for laying down the broad policy guidelines so that the State police always act according to the laws of the land and the Constitution of the country. This watchdog body, the Court directed,should be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officioSecretary. The other members of the Commission should be chosen in such a manner that it is able to function independent of Government control. For this purpose, the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee. Such recommendations of this Commission should be binding on the State Government. The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the police, evaluation of the performance of the State police and preparing a report thereon for being placed before the State legislature.

Selection and Minimum Tenure of DGP:

(2) The Court also directed that the Director General of Police of the State should be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. Once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by theState Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminaloffence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

Minimum Tenure of I.G. of Police & other officers:

(3) Similarly, the Court also directed that Police Officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge district and Station House Officer in-charge of a Police Station should also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer.

Separation of Investigation:

(4) The Supreme Court suggested that the investigating police should be separated from the law and order police toensure speedier investigation, better expertise and improved rapport with the people.It must, however, be ensured that there is full coordination between the two wings.The separation, to start with, may be effected in towns/urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also.

Police Establishment Board:

(5) For decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police, the Court also suggested to have a Police Establishment Board in each State. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so. The Board should also be authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion/transfer/disciplinaryproceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.

Police Complaints Authority:

(6) In order to address the complaints against the Police Officers of and up to the rank of Deputy Superintendent of Police, there must be a Police Complaints Authority at the district level, the Court suggested. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district level Authority may be headed by a retired District Judge while the State level Authority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State level Complaints Authority should be chosen by the State Government out of a panel of names proposed by the Chief Justice.The head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State HumanRights Commission/LokAyukta/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them. The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilize the services of retired investigators from the CID, Intelligence, Vigilance or any other organization. The State level ComplaintsAuthority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, both at the district and State levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority.

National Security Commission:

(7) The Court directed the Central Government also to set up a National Security Commission at theUnion level to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the Central Police Organisations (CPO), who/should also be given a minimum tenure of two years. The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf.

Implementation of the these orders of supreme court orders is yet to be seen though these suggestion were made in the year 2006 but till today most of the recommendation has to see the light of the day.

The author is an Advocate based in Port Blair and is also the founder of the Human Rights Foundation, a unit of Wooden House Society, which works for the benefit of women, tribal and unprivileged class of the Society.

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Denis Giles

15 May 2014

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Rape laws - A comparative look at different countries laws

Adv Bhuneshwari Devi

Rape is a kind of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, or where the person is under threat or influence, or with a person who is incapable of valid consent. It is the name of a statutory crime in jurisdictions such as England and Wales, Northern Ireland, Scotland, California, and New York.

Definitions of rape vary, and though rape is usually dependent upon whether or not consent was present during the act, the term "consent" varies as well. Minors, for example, are often considered too young to consent to sexual relations with older persons. Consent is also considered invalid if obtained under duress, or from a person who does not have the ability to understand the nature of the act, due to factors such as young age, mental disability, or substance intoxication.

Many jurisdictions, such as Canada, and several US and Australian states, have abandoned the term 'rape' in favour of other terms such as 'sexual assault', 'sexual intercourse without consent', 'criminal sexual conduct' etc.

Two different changes have been made in recent decades in many jurisdictions in regard to the criminal offense of rape as it relates to marital status.The removal of the stipulation that, if after the act of rape the victim and the perpetrator get married to each other, the prosecution ends and the criminalization of rape between spouses. Throughout much of the history, rape in marriage was not a crime. Most cultures subscribed to the idea of the existence of 'conjugal rights' to sexual intercourse with one's spouse, and, until well into the 20th century, most legal systems generally accepted, overtly or tacitly, that such 'rights' could be taken by force, against the will of the wife. Traditional understanding and views of marriage, rape, sexuality, gender roles and self-determination have started to be challenged in most Western countries during the 1960s and 1970s, which has led to the subsequent criminalization of marital rape during the following decades.In countries like BhutanPenal Code of Bhutan outlaws rape and other sexual offenses.Under the criminal code, there are several categories of rape, which are punished differently, depending on factors such as the age of the victim, the relationship between the victim and the perpetrator, the number of participants (gang rape), whether the victim was pregnant, whether injury occurred. Marital rape is also recognized as an offense under the 2004 laws, being classified as a petty misdemeanour. The most serious form of rape is Gang rape of a child below twelve years of age, classified as a felony of the first degree. Marital rape is illegal in Bhutan. In Canadathe word rape is not used in the Canadian Criminal Code. Instead the law criminalizes "sexual assault". Sexual assault is defined as sexual contact with another person without that other person's consent. Consent is defined as "the voluntary agreement of the complainant to engage in the sexual activity in question".

The mere fact that a person allows sexual connection to be performed on them, does not automatically mean that they are legally consenting. If that person allows sexual connection due to coercion, then he/she is not legally consenting.

In addition, many states define sexual crimes other than male-on-female penetration as sexual assault rather than rape. There are no national standards for defining and reporting male-on-male, female-on-female or female-on-male offenses, so such crimes are generally not included in rape statistics unless these statistics are compiled using information from states which count them as rape.

Writer is a Human Right Activist and founder of Human Rights Foundation, Babu Lane, Port Blair,ANI

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Denis Giles

30 April 2014

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History of Right to Information Act in India

By Divya Jyoti Jaipuriar, Adv.

The Right to Information movement has begun in India when the activists in in Rajasthan to get accountability in the functioning of the state government in early 1990s. People started to question the expenditure by the government and also sought explanation for their non-functioning. This movement, then spread over to other parts of the country and became a massive movement whereby demand from all quarters started to emerge for transparency in Governance.

The movement of Right to information also got impetus from various Supreme Court judgments.  The Hon’ble Supreme Court of India has also interpreted fundamental rights incorporated in articles 19 (1) (a) and 21 of the Constitution of India and said that the Right to Information is the fundamental right of the citizens of India. Supreme Court also took a view that in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary when secrecy is claimed for transactions, which can at any rate have no repercussion on public security. But the legislative wing of the State did not respond to it by enacting suitable legislation for protecting the right of the people for long.

It was only in 1996, Justice P B Sawant, Chairman of the Press Council of India at that time, drafted a bill in this regard. This bill took all governmental and non-governmental entities, which perform public functions, into the purview of the Right to information. On 2nd January 1997, Government of India set up a working group on Right to Information and Promotion of Open and Transparent Government’ under the chairmanship of Mr. H D Shouri. The committee came up with detailed report and Draft Freedom of Information Bill on 24th May 1997. This draft provided that not only the Central and the State Ministries, but also public sector undertakings, municipal bodies and panchayats and other bodies substantially funded by Government, would come within the purview of the Act. Later the Consumer Education Research Council (CERC) draft also came up. It was by far the most detailed proposed freedom of information legislation in India. In 1997, a conference of chief ministers resolved that the central and state governments would work together on transparency and the right to information. Following this, the Centre agreed to take immediate steps, in consultation with the states, to introduce freedom of information legislation, along with amendments to the Official Secrets Act and the Indian Evidence Act, before the end of 1997. The central and state governments also agreed to a number of other measures to promote openness. These included establishing accessible computerised information centres to provide information to the public on essential services, and speeding up on-going efforts to computerise government operations. In this process, particular attention would be placed on computerisation of records of particular importance to the people, such as land records, passports, investigation of offences, administration of justice, tax collection, and the issue of permits and licences.

For the first time in 2000, the Freedom of Information Act was passed by the parliament of India. This enactment never came into force as the appointment the officers to execute the act and the modalities to enforce the act were never notified. This act was a weak legislation and was not at all operational. This enactment was replaced by Right to Information Act, 2005 which came into force from 12th October 2005. Prior to this date modalities like appointment of Public Information Officers (PIOs) and other modalities were completed. Now this act is in force and can be used in every state of India.

Now Right to Information Act is completing a decade next year. In last ten years, various people have achieved a lot by using Right to Information Act and in future also, it will be helping many in getting desired information from government functionaries and in making them transparent.

The author is a Supreme Court Advocate and has also authored a book on Right to Information titled Leading Cases on Right to Information.