Human Shield (Mains/prelims), Rich get Bail and poor get jail

*HUMAN SHIELD*
(PDF available if anyone want can ask) 
25-May-2017

*Why in news?*

On April 9, during the elections for Srinagar parliamentary seat, Major Nitin Leetul Gogoi used Farooq Ahmed Dar, a civilian as a human shield at gun point against a mob to secure a booth in Budgam district.
Major Gogoi tied Dar to a jeep and paraded him through at least 9 villages dehumanizing him as a toy and exhibiting him as a lesson for stone pelters.
Amongst others, Capt. Amrinder Singh applauded Major Gogoi for his presence of mind and timely action, recommended him for the coveted Services Medal.
The significant voices of support from the establishment including the cue from Defence minister was followed by the announcement of Commendation for Major Gogoi while the verdict of Army’s court of Inquiry on the same issue is still awaited.
*What is a human shield?*

Human shield is a military and political term describing the deliberate placement of non-combatants in or around combat targets to deter the enemy from attacking these combat targets. It may also refer to the use of persons to literally shield combatants during attacks, by forcing them to march in front of the combatants.
Using this tactic is considered a war crime by nations that are parties to the 1949 Geneva Conventions, the 1977 Additional Protocol I to the Geneva Conventions, and the 1998 Rome Statute
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war.
It has extensively defined the basic rights of wartime prisoners (civilians and military personnel); established protections for the wounded and sick; and established protections for the civilians in and around a war-zone; also the rights and protections afforded to non-combatants.
Budgam Incident is therefore a violation of the Geneva Convention, also violation of the Constitution of India and the military code.
*Who is Farooq Ahmed Dar?*

A civilian, part of the 7 odd % who choose to come out and vote against all odds in the conflict ridden state.
The presumption that Dar was a “stone-pelter” and deserved this was blindly accepted.
According to Dar and some local reports he had cast his vote the same morning before the incident.
Even if he had been a stone-pelter, the army resorting to using an Indian citizen as a human shield is a moral and legal question that needs to be answered in congruence with the fundamental rights enshrined in our constitution.
The State Human Rights Commission (SHRC) has highlighted his alarming state of mental and Doctors revealed his traumatized state.
*Why support for Major Gogoi then?*

The reason stated is, the unusual action has helped saved lives and avoided an imminent bloodshed in that area.
The significance of a Jawan’s life their innumerable and unimaginable sacrifices, and the importance of saving their lives.
*What is the response of the State (J&K)?*

While the CM has condemned the incident, she has not ensured her own alliance partner support her on the basic premise of upholding the civil liberties of her people.
The fundamental question in Kashmir is that of alienation that has led to the unprecedented rise in the number of local boys joining militant ranks, local militants outnumbering foreign militants.
Presuming this surge in alienation can be dealt with, and reversed, by using an “iron fist” is a tried, tested and failed response.
*What is the Way forward?*

A subversion of fundamental rights and a violation of the Constitution of India, validated by no less an authority but the Union Defence minister and the army chief, calls into question the very legitimacy of the government in J&K, not to speak of its non-existent writ.
The test of the “idea of India” lies in the ability of the state and its institutions to be good in Kashmir regardless of the circumstances.
In fighting armed militancy or any form of internal conflict, the state cannot abdicate its responsibility to uphold the fundamental rights of its citizens

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*Rich Get Bail, Poor Get Jail*

Important for 

*Prelims level:* Information about Law commission, its mandate and legal status

*Mains level:* Statistics and recommendations given by Law commission can be quoted while writing answers to the questions related to criminal justice reforms in GS paper 2 or essay paper.

 

*News*

Context

It has become norm for the rich and powerful to get bail with ease while the commoner and the poor languish in jail, the Law Commission of India said in its latest report

The Commission recommended to the government amendments to the bail provisions in the Criminal Procedure Code with emphasis on the early release on bail of undertrials

*Recommendations*

Undertrials who have completed one-third of the maximum sentence for offences up to seven years be released on bail

Those who are awaiting trial for offences punishable with imprisonment of more than seven years, should be bailed out if they have completed one-half of their sentence

The Commission said new legal provisions for remission should be included to cover those undertrials who have already endured the full length of the maximum sentence

Prolonged periods in prison where undertrials and convicts were not segregated would only make hardened criminals of the former

Statistics

A majority of them (70.6%) are illiterate or semiliterate

They belong to socio-economically marginalised groups

67% of the prison population is awaiting trial

Over 60% arrests were unnecessary and such arrests accounted for 42.3% of jail expenditure

*Basics*

Law Commission of India is an executive body established by an order of the GoI

Its major function is to work for legal reform

Its membership primarily comprises legal experts, who are entrusted a mandate by the Government

The Commission is established for a fixed tenure and works as an advisory body to the Ministry of Law and Justice

The first Law Commission was established during the British Raj era in 1834 by the Charter Act of 1833

The first Law Commission of independent India was established in 1955 for a three-year term

The present Law Commission was established in 2015, and has tenure till 2018