Detention procedures applicable to Khobragade, US clarifies

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In the case of the senior Indian diplomat, Deputy Consul General Devyani Khobragade, arrested in New York last Thursday, the U.S. Marshals Service (USMS), the “police” of the Department of Justice (DoJ) answered multiple media queries confirming that she had been “strip-searched.”

While it was also clear that she had been handcuffed, the USMS however shied away from providing further details surrounding the conditions of her detention between around 9.10am and 4pm that day, saying only that she was “was subject to the same search procedures as other USMS arrestees in accordance with USMS Policy Directives and Protocols.”

To understand these protocols better, The Hindu identified the specific protocol documents – known as Prisoner Operations Service Directives – that determine what actions the USMS can take against an inmate of the sort that Ms. Khobragade was considered to be.

The documents separately address three USMS protocols, respectively for “body searches,” “restraining devices,” and “DNA sample collection.”

According to the body searches protocols, there are four types of searches that the USMS is authorised to conduct: pat-down search, in-custody search, strip-search and digital cavity search. Of these the USMS and other sources have indicated that the strip-search was performed on Ms. Khobragade.

Defined as a “complete search of a prisoner’s attire and a visual inspection of the prisoner’s naked body, including body cavities,” the strip-search is typically ordered depending on the circumstances surrounding the prisoner’s detention, specifically whether the is a pre-trial detainee, which the diplomat was.

The USMS protocol mandates that when such a search is conducted Marshals should ensure they have “a private location that prevents all but designated personnel from viewing the prisoner,” and “all attempts to protect the modesty of the prisoner will be made to include modifying viewing and recording of CCTV.”

It also requires that only a deputy of the same-sex can conduct a strip-search unless the person conducting the search is a physician or nurse, and a witness of the same-sex as the person being searched must be present during the search.

The use of “reasonable force” is allowed if the prisoner refuses to cooperate in removing any article of clothing or otherwise impedes the deputy; however Marshals are called upon to do the search “in a professional manner, causing the prisoner as little embarrassment as possible.”

When conducting a strip-search, the deputy will instruct the prisoner to remove all loose articles and conduct “a thorough visual examination of the prisoner’s body, from the top of the head to the bottom of the feet,” the protocol says.

The deputy then moves on to inspect behind each ear and look inside the prisoner’s ear canals, nostrils, and mouth, checking under the tongue, roof of the mouth, and between the lips and gums.

They are also required to visually inspect down the front of the body, paying close attention to areas such as armpits, breasts, and genital area, the protocol says, including directing the prisoner to “spread her legs and bend forward at the waist [to] observe the anus area and genitals from the rear.”

“Conclude with an observation of the bottoms and between the toes of both feet,” the protocol advises.

In terms of the restraints that may have been used on Ms. Khobragade, USMS protocols firstly mandate that “All persons in the operational custody of the USMS will be fully restrained during transportation,” and the definition of “fully restrained” is that “handcuffs, waist chains, and leg irons (shackles) are required.”

Ms. Khobragade was undoubtedly in transit while under custody on Thursday, as it was initially the State Department’s Diplomatic Security Service that arrested near her daughter’s school, then handed over to USMS custody and finally she was produced in a courthouse later that day.

This implies that she is likely to have been “fully restrained” at several points during the day, as defined by the protocol.

Additional protocol-recommended restraints that may have been used include “padlocks, flex cuffs and security boxes.”

Finally, the protocols also call for DNA sampling for all prisoners facing criminal summons by a U.S. District Court for the purpose of facing federal charges “regardless of which federal law enforcement agency is the investigative agency.”

To this end USMS personnel are required to DNA sample collection kits and techniques as provided and advised by the FBI respectively.

Here too the use of “non-lethal force” is allowed within the protocols “as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who is unwilling to submit to DNA collection.”

According to DoJ documents the most common DNA “reference samples” collected from prisoners are “blood, oral/buccal swabs, and/or plucked hairs (e.g., head, pubic).”

 

Kerala HC confirms death sentence for Soumya murder accused

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Kochi, December 17, 2013 A division bench of the Kerala High Court on Tuesday confirmed the death sentence awarded by the Thrissur Fast Track Court to Govindachamy, the sole accused in the Soumya murder case. The murder took place on February 1, 2011. The prosecution case was that, Govindachamy had pushed Soumya, a passenger, out of the Ernakulam-Shoranur passenger train after attempting to rob her. He had raped the seriously injured woman after she fell down in woods nearby the railway track at Vallathole Nagar. She later succumbed to injuries at the Thrissur Government Medical College Hospital on February 6. The bench comprising Justice T.R. Ramachadran Nair and Justice B. Kemal Pasha while upholding the sentence observed that it did no find any reason to interfere with the conclusions of the fast track court. . The fast track court had observed that the brutal rape was one of the reasons for the death of Soumya. There was no legal or moral justification

‘When I tried to move away, he kissed my arm, repeated he loved me… Asked me to share room’

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‘Is this how you would treat your daughter, My Lord?’ The Additional Solicitor General asks as she shares what the law intern who has accused ex-SC judge A K Ganguly of sexual harassment told a court panel

Following the allegations of sexual harassment against a retired judge of the Supreme Court of India, the Attorney General filed a petition on the same day asking for an investigation into the matter. When the matter was mentioned at 2 pm, the Chief Justice announced that he had set up a committee in his administrative capacity, of three judges, two being incumbent chief justices and a woman judge, to investigate and give a report to the Chief Justice.

The intern gave her statement to the committee, provided the affidavits of witnesses to whom she spoke immediately after the incident, gave all the mobile phone numbers of witnesses and of Justice Ganguly, and stood by her statement. Justice Ganguly was also called and his statement was video recorded. Apart from denying the allegations, he said the new law of 2013 making sexual harassment an offence did not apply to him as the alleged incident was of 2012, forgetting that outraging the modesty of a woman was always an offence, a law under which K P S Gill was prosecuted successfully by Rupan Deol Bajaj.

The committee gave its report in which it concluded: “We have carefully scrutinised the statement (written as well as oral) of the intern, the affidavits of her three witnesses and the statement of Mr Justice (Retd) A K Ganguly. It appears to the committee that in the evening on 24.12.2012, the intern had visited hotel Le Meridien where Mr Justice (Retd) A K Ganguly was staying to assist him in his work. This fact is not denied by Mr Justice (Retd) A K Ganguly. Further the committee is of the considered view that the statement of the intern, both written and oral, prima facie discloses an act of unwelcome behaviour (unwelcome verbal/ non-verbal conduct of sexual nature) by Mr Justice (Retd) A K Ganguly with her in the room in hotel Le Meridien on 24.12.2012 approximately between 8 pm and 10.30 pm.”

Rajya Sabha to take up Lokpal Bill today

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Amidst uncertainty over the continuation of the Winter Session, Parliamentary Affairs Minister Kamal Nath announced on Thursday that the Lokpal Bill will come up in the Rajya Sabha on Friday.

“Our priority is the Lokpal Bill,” Nath told reporters. The Lokpal Bill has to be taken up by the Rajya Sabha in the light of the report of the select committee. “It will then come up in the Lok Sabha (for consideration of the revised version of the Bill),” he said.

When asked if there was a move to adjourn Parliament sine die ahead of the schedule, he said, “There is no plan at the moment to curtail the session. We have allocated time for other businesses and we have a list of priorities.”

In the meanwhile, the Supplementary Demands for Grants (General) and Demands for Grants (Railways) were passed amidst din in the Lok Sabha though both Houses remained dysfunctional on Thursday.

With the government under pressure to pass the Lokpal Bill due to the fast undertaken by Anna Hazare, Leader of Opposition in the Lok Sabh Sushma Swaraj said the government is running away from Parliament by trying to cut the session short and in the process blocking the anti-graft legislation.

Her Rajya Sabha counterpart Arun Jaitley said, “The government should bring the Bill with 15 amendments suggested by the select committee, and not 13 amendments, and the BJP will support it along with the UPA. The Rajya Sabha can pass it on Friday and the Lok Sabha on Monday.”

Swaraj said she had told Nath in the morning that “if you can pass supplementary demands for grants in the din, then pass the Lokpal Bill too”.

The Samajwadi Party, however, vowed to oppose the Bill. “There is no question of supporting it,” SP leader Ram Gopal Yadav said. When asked to spell out the reason for this stand, he said, “This is a hypothetical question. First let it come and then we will tell you.”

India’s Deputy Consul general in New York Devyani Khobragade held for visa fraud

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India’s Deputy Consul general in New York Devyani Khobragade who was arrested for allegedly presenting fraudulent documents in support of a visa application for an Indian national employed by her, has been released on Friday from custody on a USD 250,000 bond.

She pleaded not guilty in federal court in New York to charges of visa fraud.

Khobragade was arrested on Thursday morning by law enforcement authorities after Manhattan’s top federal prosecutor Preet Bharara announced the charges against her.

Khobragade appeared before a federal judge for her arraignment.

The Indian embassy in Washington released a statement saying that it has immediately conveyed its strong concern to the US government over the action taken against Khobragade.

Khobragade, 39, was held on charges that she allegedly caused a materially false and fraudulent document to be presented, and materially false and fraudulent statements to be made, to the US Department of State in support of a visa application for an the Indian national employed as a babysitter and housekeeper at her home in New York.

Khobragade is currently employed as the Deputy Consul General for Political, Economic, Commercial and Women’s Affairs at the Consulate General of India in New York.

Khobragade was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively.

According to the allegations in the criminal complaint in Manhattan federal court, Khobragade prepared and electronically submitted an application for an A-3 visa, which is a US visa for domestic workers and servants, through the website for the US Department of State’s Consular Electronic Application Center for an Indian national who was to be the personal employee of Khobragade beginning in November 2012 in New York.

The Visa Application stated that the Indian worker employed by Khobragade was to be paid USD 4,500 per month.

Section 377 verdict today: LGBT community pins hopes on SC

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Members of the lesbian, gay, bisexual and transgender (LGBT) community all over India have their fingers crossed as the Supreme Court is scheduled to give its verdict on Section 377 of the IPC on Wednesday.

Section 377, which criminalises “unnatural offences”, had been declared unconstitutional by the Delhi High Court in 2009. However, the decision was later challenged in the Supreme Court.

The community hopes the apex court will uphold the HC verdict and decriminalise homosexual relationship between two consenting adults.

LGBT activists had termed the Delhi High Court’s decision as a “historic first” in India in their effort to fight for their rights. “Now, we are waiting with bated breath and keeping our fingers crossed for the SC verdict,” Ashok Row Kavi, a prominent LGBT rights activist, told The Indian Express.

Row Kavi is believed to be the first person to openly talk about homosexuality and gay rights in India. His first ‘coming out’ interview appeared way back in 1986.

“The judgment will be extremely important and the mood really is quite expectant,” said Row Kavi, adding that the momentum had been building for several years now.

Petitioners, including NAZ Foundation, parents of LGBT persons and others, had challenged the constitutional validity of Section 377. The verdict will decide the legality of homosexuality.

“Our level of excitement is unbelievable,” said Bidhumadhav Khire, president of the Sampathik Trust that works with men who have sex with men in the city. Khire’s mother Shakuntala is among the petitioners who feels the SC verdict will be an important one as it will give a direction on how the future laws will evolve. “If it (the SC) is not in favour, my gay son will not get the respect that a first class citizen commands,” she said.