Human Trafficking in India (Project Report)
Submitted to: Dr. Avinash Samal (Faculty, Political Science)
Submitted By: Ankita Singh B.A. LLB (Hons.) Semester-III, Sec-B, Roll No. 30
Submitted on: 16.08.2016
Hidayatullah National Law University Uparwara post, Abhanpur, New Raipur (C.G)
Declaration I hereby declare that the project work entitled “Human trafficking in India” submitted to HNLU, New Raipur, is a record of an original work done by me under the guidance of Dr. Avinash Samal, Faculty Member, HNLU, Raipur.
Ankita Singh Semester III Roll No: 30 Section-B
Date - 16.08.2016
Acknowledgements First & foremost, I take this opportunity to thank Dr. Avinash Samal, Faculty, Political Science, HNLU, for allotting me this topic to work on. She has been very kind in providing inputs for this work, by way of suggestions. I would also like to thank my parents, dear colleagues and friends in the University, who have helped me with ideas about this work. I would also like to thank all the authors, writers, columnists and social thinkers whose ideas and works have been made use of in the completion of this project. Last, but not the least I thank the University Administration for equipping the University with such good library and I.T. facilities, without which, no doubt this work would not have taken this shape in correct time.
Ankita Singh Semester-III, B.A. LL.B. (Hons.) Roll no - 30
Contents Declaration......................................................................................................i Acknowledgements...................................................................................................ii 1.
Introduction………………………………………………….………..........……….1 i.
Objectives …………...…………………………………….……………..3
ii.
Scope of study………………………………………………….………...3
iii.
Methodology and database.…………………………………..................4
2.
Origin of the Japanese Constitution........................................................
3.
Position of Emperor of Japan under Meiji Constitution.......................
4.
Position and Powers of Emperor under Shova Constitution................
5.
Succession to the Throne.........................................................................
6.
Powers of Emperor.................................................................................. Executive Powers Legislative Powers Judicial powers
7.
Conclusions................................................................................................
Introduction Before Japan modernized and opened up to the rest of the world, the emperor was quite irreverent with the real power divided among regional oligarchs. As such, the emperor was irrelevant in terms of governance. The role of the emperor only became important after Japan unified, modernized and engaged the rest of the world in the 1860s. His role is important to solidify the concept of Japan as a Nation-State and the Japanese people as a Nationality which were new and modern concepts at the time. The Meiji Constitution of 1889 was Japan's first modern constitution and first attempt to remodel Japan into a modern constitutional monarchy as well as a modern Nation-State after centuries of decentralized feudalism. Based on the Prusso-German, the constitution gave tremendous power to the emperor as a modern head of state and statesman similar to the German Kaiser.
The Meiji Constitution was the fundamental law of the Empire of Japan, propagated during the reign of Emperor Meiji (r. 1867 – 1912). It provided for a form of mixed constitutional and absolute monarchy, based on the Prussian and British models. In theory, the Emperor of Japan was the supreme ruler, and the cabinet, who’s prime minister was elected by a privy council, were his followers; in practice, the Emperor was head of state but the Prime Minister was the actual head of government. Under the Meiji Constitution, the prime minister and his cabinet were not necessarily chosen from the elected members of the Diet. Pursuing the regular amending procedure of the "Meiji Constitution", it was entirely revised to become the "Post-war Constitution" on 3 November 1946. The Post-war Constitution has been in force since 3 May 1947.
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Objectives
The basic objective of this project is to study; 1.
To study about Meiji and Shova constitution
2.
To study position of emperor of Japan before 1947
3.
To study position and powers of emperor of Japan after 1947
4.
To comparatively analyse changes in position and power of Emperor of Japan before and after 1947
Scope of study
This project “human trafficking in India” will give a contextual outline of human trafficking in India. It also focuses on the causes & methods of human trafficking and laws to combat such problem. This topic will cover the details about ‘right against exploitation’ as fundamental right in Indian Constitution, main established law to deal with this problem including the recent development in this field. It is largely based on article against human trafficking, forced labour and child labour. Also, at the same time efforts have been made to study the laws themselves, analyse them from neutral viewpoint and look at their implementation with the help of few landmark cases on the topic.
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Methodology of study
It has focused on qualitative methods of research. Secondary and published documented data has been collected through various sources and analyzed accordingly. To make the study more meaningful and policy oriented available literature and studies have been consulted and reviewed apart from this field observations and open ended discussion have also been equally considered and incorporated in the present study. Various documents have been collected through different websites, and different books have been analyzed accordingly, so as to reach to a particular conclusion.
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ORIGIN OF THE JAPANESE CONSTITUTION Before the present constitution was promulgated in November 1946 and then came into force in May 1947, Japan was governed under the Imperial Constitution of 1889, often known as the‘Meiji Constitution’ after the era (1868– 1912) of its birth. Sovereignty then was plainly in the hands of the Emperor, who claimed to rule by divine right. He held supreme power, while all popular rights were circumscribed and the duty of people to serve and obey him was absolute, despite periods when in practice a government responsible to Diet elected on a limited franchise managed most of the affairs of state. In sharp contrast, the post-war constitution of 1947 proclaimed the sovereignty of the people, defined set of unequivocal rights, established formal separation of powers and also a strict separation of state and religion and declared pacifism to be a central policy of the Japanese state. The constitution was born of a week’s intensive brainstorming by a specially appointed panel at the direction of General MacArthur1.None of the Japanese were on this committee. The guidelines under which it operated were clear: the Emperor must be retained—he had been assigned an especially important role in United States planning and therefore was to be given immunity from prosecution as a war criminal; Japan must not be allowed to possess any armed forces and ‘feudalism’ had to be abolished2.
Once drafted, the document was handed to the Japanese Cabinet of Prime Minister Shidehara Kijūrō and published in March 1946. Paradoxically for a document which was to establish democracy in Japan, it came accompanied by a special script from the Emperor ordering change, commanding that ‘the constitution of our empire be revised drastically upon the basis of the general will of the people and the principle of respect for fundamental human rights.’ Significantly, the Meiji Constitution was therefore not rejected, but revised. The process was characterized 3 by continuity rather than rupture, something that would have been inconceivable in post-war Germany
or
Italy.
The responsibility for passing the Constitution Bill into legislation was
assumed by Prime Minister Shidehara in the unreformed wartime (militarist) Diet. The bill was subsequently in some respects revised, and then, after the first post-war, that is, democratic, elections in April 1946, adopted in the Diet i June. Certain territories remained outside the purview of the constitution, however,
most notably Okinawa, which
was only returned
administration in 1972.
1
A Gordon (ed), Postwar Japan as History (Berkeley, University of California Press, 1993 Koseki, ., 1997, p. 79 3 Dower, ibid., p. 384 2
to Japanese
POSITION OF EMPEROR OF JAPAN UNDER MEIJI CONSTITUION The Meiji constitution laid emphasis on the institution of the emperor. The very first article read, “The empire of Japan shall be reigned over and governed by a line of emperors unbroken for ages eternal.” Article 1-17 enumerated the powers of emperors. The emperor was made source of all authority. All laws were to be sanctioned by him. He called the session of the Diet and dissolved the Lower House. He could issue ordinances. He was the head of the executive, as such he appointed all the officers. He was the Supreme Commander of the army and navy with power to declare war, conclude treaties and make peace. The ministers were responsible not to the Diet but to him. The Emperor use to appoint the Prime Minister and other ministers were appointed by him on the recommendation of the Prime Minister. The Emperor of Japan had more powers than the king of Britain. The Emperor had vast powers and combined in himself all sovereignty. Still the Emperor reign but did not rule. He exercised his powers in consultation with the ministries and the Privy Council. All the functions were not performed by the Emperor himself but were done in his name. The Emperor had little hand in the formulation of policy and execution of public affairs. Emperor could hardly take steps against the ministers. However, it can’t be denied that the Emperor had a far greater moral power an influence. The people worshiped and considered his person as sacred and inviolable. He represented and symbolised the whole nation. He was in a position to give admonition, encouragement, or warning as the occasion arose without actually involving himself as a mediator.
Key provisions with respect to the powers of the Emperor (paraphrased for brevity) under Meiji Constitution: Article 1: Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal. Article 3: The emperor is sacred and inviolate Article 4: The emperor is head of the Empire, combining in Himself, the rights of sovereignty. Article 8: The emperor can issue Imperial Ordinances as necessary to maintain public safety or to avert public calamities in place of the law. Article 11: The emperor has supreme command of the Army and Navy. Article 13: The emperor declares war, makes peace, and concludes treaties.
Thus Sovereignty was vested in the person of the emperor by virtue of his divine ancestry, he was legally the supreme commander of the Empire as well as the military and held the sole right to wage or end a war. Also the Meiji constitution had given rights to the people but they were not real. The Emperor could impose restriction on their enjoyment and the judiciary had no power to declare his decrees unconstitutional even if these violated the rights of the people. In fact the rights were given by the Meiji constitution were not rights as they were not constitutionally safeguarded.
POSITION AND POWERS OF EMPEROR UNDER SHOVA CONSTITUTION The monarchy is the oldest institution in Japan. The Emperor has been and still is the living symbol of the nation’s history, heritage and achievement. He is the incarnation of history and religion. He is epitome of nation’s hopes, aspirations and promises. Before 1945, the military leadership was supreme in Japan. The Emperor was only figurehead and his real powers were exercised by his ministers. The Constitution of 1947 constitutionally recognised the nominal position of the Emperor and gave to it constitutional recognition. The dualism was abolished and the real power were conferred on the Diet and the Cabinet was made responsible to it. The constitution-makers has humanised the personality of Emperor whereas formerly his personality was regarded as divine and inviolate. Now the sovereignty belongs to the people and not to the Emperor. He is merely constitutional head of the state and a legalised figurehead.
Succession To The Throne
Article 2 of the Shova Constitution declares that the Imperial throne shall be dynastic and be succeeded in accordance with the Imperial House Law enacted by the Diet. Under the Meiji Constitution Diet could not make amendments to the Imperial House Law. It could be amended only by the Emperor with the advice of the Royal Council and Privy Council. The 1947 Constitution has changed the system and now the Diet is empowered to amend the Imperial House Law.
Now under the new rule of 1947, the Imperial throne will be succeeded by male offspring in the main line belonging to the Imperial lineage. Primogenitor is the rule with the succession running through the main line. No adoption is permitted under this rule. A regency is established in case the Emperor has not come of the age i.e. 18 years. If there is no member in the Imperial family in the main line of succession, the Throne is passed to the member of the Imperial family next nearest in the lineage where precedence being given to the senior member in the senior line. The throne has not so far gone to the other dynasty. In no other country has the throne been possessed by a dynasty for so long a time.
POWERS OF EMPEROR
During the Meiji period, the Emperor was the head of the empire and all the powers were concentrated in his hands. All the legislative and executive powers belonged to him. On the basis of these powers he reign the government of the country. The Diet at the time used to merely record his wishes. It was not sovereign as the British Parliament is. The Emperor was the epicentre of the government. The Meiji constitution had restored divinity on him and he was made to look as a divine person. Although the Meiji constitution has given him wide powers, yet he did not exercise them. His position was like the British king who reigned but does not govern. After the end of World War 2 there were two different views on the question of retaining of monarchy. Some people were of the view that monarchy has been retained but it’s power has become limited, on the other hand others were of the view that office of the Emperor has been abolished for establishing a peaceful and democratic government in the country because the Emperor had promoted militarism and Imperialism. Ultimately it was agreed that the office be retained but the powers of the emperor should be limited. Consequently, under the new constitution he was deprived of his powers and made a nominal head of the nation. Another change that was made regarding the position of Emperor was that all his private property was declared to be property of state and his expenses were appropriated annually by the vote of the Diet. Article 1 of the Shova Constitution declares that the Emperor shall be the symbol of the state and shall derive his powers from the people because sovereignty resides with them. The Emperor will perform all his acts on the advice and approval of the cabinet.
Articles 1 - 7 clearly define the symbolic and ceremonial role of the emperor and make it clear that sovereignty resides in the people of Japan
Article 1. The Emperor shall be the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power. Article 3. The advice and approval of the Cabinet shall be required for all acts of the Emperor in matters of state, and the Cabinet shall be responsible therefor. Article 4. The Emperor shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government. The Emperor may delegate the performance of his acts in matters of state as may be provided by law. Article 6. The Emperor shall appoint the Prime Minister as designated by the Diet. The Emperor shall appoint the Chief Judge of the Supreme Court as designated by the Cabinet. Article 7. The Emperor, with the advice and approval of the Cabinet, shall perform the following acts in matters of state on behalf of the people
Shova Constitution has enumerated following powers to the Emperor: A. EXECUTITIVE POWERS OF EMPEROR
The Emperor appoints the Prime Minister as the designated by the Diet
He attests the appointment and dismissal of ministers of the state and other officials as provided for by law.
He also attests the full power and credentials of ambassadors and ministers
The emperor is the fountain of honour
He attests the instrument of ratification and the other diplomatic documents as provided by law
He receives foreign ambassadors and ministers accredited to Japan
B. LEGISLATIVE POWERS
All the national laws, constitutional amendments, cabinet orders and treaties are promulgated by the Emperor.
He convenes the sessions of the Diet
He dissolves the house of representative after the expiry of it’s term or on the recommendation of the Prime Minister.
He issues proclamation od general election of members of the Diet
C. JUDICIAL POWERS
The emperor attests general and special amnesty, communication of punishment, reprieve, and restoration of rights
He appoints the Chief Judge of Supreme Court as designated by the cabinet.
CONCLUSIONS
Politically, Japanese emperor does not have any power and he never had the true power at least in last few centuries (though one emperor did try to gain power and failed). While it is true that historically emperor has been an influential character and that wherever he lived became the capital, it is also true that military leaders of Japan held all of the power. Emperor never held any power and he probably never will hold any power.
The actions of the emperor are ceremonial and require the consent of civilian government. As such, he has no legal powers of government and any residual power would only come from the sheer force of his personality.
The constitutional position of the emperor has changed considerably in the post-war period. He is no longer the source of all authority, political and moral. He has been reduced to a symbol and sovereignty is now deemed to lie in the people. He has certain ceremonials under the constitution but he has no powers related to government.
The main reason behind fall in powers of Emperor of Japan is actually quite simple. When the US defeated the Empire of Japan, we didn't remove Emperor Hirohito or his title but rather changed the Constitution of Japan to basically diminish any power he has. It is explicitly stated in Article 1:“The Emperor is the symbol of the State and of the unity of the people.”
So in short, the Emperor lost power due to the American occupation of Japan, but we kept the Emperor in place to add legitimacy to our rule for he was respected by the Japanese people.
REFERENCES Books Referred:
Websites Referred:
