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Archive for the ‘Social Justice and Empowerment’ Category


The likely implications of right to privacy verdict on policy and citizen’s rights are:

AADHAR: A seperate 5 judges bench is hearing pleas related to AADHAR and whether or not it infringes upon an individual’s privacy. This bench will now have to ensure that the AADHAR Act stands the touchstone of ‘compelling state interest’ as passed in the current ruling.(Just. K S Puttaswamy vs Union of India).

 Beef Ban: The verdict observed that an individual’s choice of food is protected under the Right to Privacy. The Government’s recent amendment that banned sale of livestock for slaughter will have to be modified accordingly.(State of Maharastra vs Shaikh Zahid Mukhtar).

Data Protection : The archaic IT Act, 2000 is not adequate protection for an individual’s Right to Privacy. The bench nudged the Government to introduce suitable legislation in this regard.

LGBTQ rights: The minority judgement in Naz foundation was implicitly reversed when an individual’s sexual orientation and choices were found to be part of the Right to Privacy. (Suresh Kumar kaushal vs Naz Foundation)

Whats App Case: Data sharing between Whatsapp and facebook is under judicial scrutiny. The Right to Privacy, now a FR, will have a bearing on this case as well.(Karmanya Singh Sareen vs Union of India)

The ruling is monumental as it recognises privacy as an integral part of our society and in identifying it as a ‘natural right’ the Court has paved the way for wider reform.

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Many have advocated the regulation by arguing that the problem should be tackled at the individual level through de-addiction and counseling, and states should not impose a blanket bans. They promptly write away support for prohibition as a gimmick to woo the women vote bank without bothering to ask why women demand prohibition in the first place.

State government dislike any interference in the assured, ever-increasing sale of liquor partly because of the revenue that it brings, and even more because of the close linkage between liquor and politics. Big politicians in the state either own breweries or are closely linked to one. Licenses are handed out to party karyakartas, many of whom get tickets as well. There are no population norms or area norms to restrict the issue of licenses — tiny hamlets of populations less than 500 persons can land up with four liquor shops and bars. The bottomline — politicians whose political and/or business interests are served through increase in liquor sales would rather use their power to increase such sales rather than think about regulation.

In this situation, the very talk of self-care, counseling and de-addiction as alternatives to prohibition ends up depoliticising the issue and directly helps the liquor lobby’s agenda. Regulationists add to the cacophony that asks women and families to “handle” their drunken men and resolve their personal health issues rather than demand any kind of accountability regarding the over-supply of alcohol in their communities.

Regulationists fear that banning good legal liquor will drive people towards the obnoxious illegal hooch. However, as the hooch tragedy of Mumbai which killed more than a hundred people shows, hooch and licensed liquor thrive side by side. In fact, licensed liquor is sold illegally as much as hooch and kills just as many people. The legal/illegal binary is blurred as licensed liquor shops set up well-knit networks to smuggle liquor outside their premises in blatant contravention of the law.

The messy process for closing liquor shops in rural areas goes roughly as follows: First, not less than 25 per cent of total women electorates in the gram sabha have to apply to the district collector to close the shop, against which the district collector seeks a preliminary report from the excise department. If the report is positive, the collector informs the excise department and block-level officials either to conduct a women’s gram sabha where women can show their preference through a show of hands or a secret ballot. The date for the gram sabha is announced 15 days in advance and women have to face violent opposition during this period. The license holder and his henchmen do everything in their power to prevent women from reaching the venue of the gram sabha. Even if the women succeed in getting the required numbers in the gram sabha/ballot and the district collector orders the closure of the shop, the farce of appeals starts almost immediately. The license-holder invariably obtains a a stay order from the excise commissioner or minister and the shop reopens almost as soon as it closes down. Even a failed appeal petition merely means that the shop in that particular village is closed and the license is used to open a shop in another village and the circle starts once more. The very law is structured to ensure that shops do not close, that smuggling is not checked and the supply of liquor is never regulated.

 

Therefore, if the politician-business-criminal triad can come together to protect their vested interests, why should the women not form a vote bank to break this nexus? Liquor is not a moral issue but a political one and therefore, more power to the women of Bihar who have shown the way, and hopefully, more politicians will take the cue from Bihar, such as Tamilnadu.

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Under sections 499 and 500 of the Indian Penal Code, defamation is a criminal offence. Defamatory acts can include “words either spoken or intended to be read”, signs or visible representations, which are published or put up in the public domain. The offence is punishable with up to two years imprisonment, a fine or both.

It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component. Article 19(2) of the Constitution permits only “reasonable” restrictions upon the freedom of speech. For a law to be reasonable, it must demonstrate a degree of proportionality between the restriction, and the goal that is sought to be achieved. Criminal defamation fails the proportionality test, in general terms, as well as in the specific legal regime set up by Section 499 of the Indian Penal Code.

In general, criminal defamation is disproportionate because it uses the criminal law to prosecute a wrong that is purely private in nature. A private wrong is one that is purely between the offender and her victim, and has no implications for the society at large. For example, if I fail to control my dog, and it bites you, then you may sue me for compensation in a civil court. Society, the state, and the criminal law have nothing to do with it. However, if I murder a person, then it is not just about one individual taking the life of another, but has ramifications for public peace, order and security. This is why murder is a criminal offence, involves a term in jail, and is prosecuted by the state.

When defamation was first criminalised in medieval England, it had a public purpose. People vindicated insults to their honour by fighting it out in a duel. It was to suppress this kind of self-help regime, and assure people that they did not need to ventilate their grievances with swords and pistols, that defamation was criminalised. But now things have changed.

Many countries, including neighbouring Sri Lanka, have decriminalised defamation, which should be a civil offence alone. The court has unfortunately accepted the self-serving argument by the Centre that criminal defamation does not have a chilling, inhibiting effect on the freedom of expression. In the Indian context, criminal defamation is not generally a dispute between two individuals. It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens.

Subramanian Swamy vs Union of India is a depressing moment for free speech lawyers and activists. It is also (yet another) depressing moment for civil rights lawyers and activists, since it marks a continuing trend – that arguably began with Koushal vs Naz regarding the criminalisation of homosexuality – where two-judge benches decide important civil rights cases. The challenge to the validity of Section 499 and 500 of the IPC was undoubtedly the biggest free speech issue to have arisen in recent times. The two-judge Bench could have referred the matter to a Constitution Bench(a bench of at least five judges).

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It is undeniable that the Supreme Court’s role as the Constitution’s sheet anchor has been weakened in recent times. This dilution, at least partly, owes to the court’s inability to devote itself substantially to the determination of important public questions. As Nick Robinson’s studies have demonstrated, the number of cases decided by constitution benches — benches comprising five or more judges — has steadily declined right from the Supreme Court’s inception. Between 1950 and 1954, almost 15 per cent of the total cases decided by the Supreme Court were decisions of constitution benches. By the time the 1970s came around, this figure had dipped below one per cent. Between 2005 and 2009, benches comprising five judges or more decided only a worryingly paltry 0.12 per cent of the court’s total decisions. This has meant that in spite of the specific precepts of Article 145(3) of the Constitution — which mandates that a minimum of five judges sit for the purpose of deciding any case involving a substantial question of constitutional law — division benches of two judges have increasingly decided important disputes requiring a nuanced interpretation of the Constitution.

For example, in December 2013, it was a bench of two judges, in Suresh Kumar Koushal v. Naz Foundation, which reversed the Delhi High Court’s momentous judgment declaring Section 377 of the Indian Penal Code, insofar as it criminalised homosexuality, as unconstitutional. Similarly, when last year in Shreya Singhal v. Union of India the Supreme Court struck down the pernicious Section 66A of the Information Technology Act, in the process paving the way for a refined thinking on the right to free speech, it was once again a bench of two judges that rendered the verdict.

What we have, therefore, is a quite unusual scheme of constitutionalism where any given pair of two individuals is vested with the enormous power of ruling conclusively on significant matters of public importance. This phenomenon — still relatively recent — of rulings by two-judge benches in noteworthy cases has coincided with the court’s mounting docket. What’s clearly evident is that this manner of functioning is far from what the Constitution’s framers envisaged of the Supreme Court.

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Does marital rape amount to sexual violence? It certainly is part of it, and when a woman says she is sexually violated, that is not the only thing happening to her – it is often coupled with the husband not giving money, or beating her. It sounds sensational to say that India must do something. But what must India do? In some cases, the wife who is facing abuse may not want a divorce; she may want a roof over her head. Criminalising does not give her this relief. Also, conviction in ordinary rape cases is very low. It is higher when victims are under 10 years of age. At ages 15-18, it gets low. After that, it gets worse. If a woman says she has been abused by her boyfriend, the conviction rate is abysmal.

If marital rape is criminalised then woman will have to present her case in the session’s court. She has to prove that on that particular night, sex was without consent, that she was not in the mood for it, or he had forced her after she had gone to sleep, or was ill. That will be a challenge.

Lawyers could abuse this too. They will expect huge amounts of money from the victim for filing such cases. That is what we are seeing happening today. This drains the woman economically. The lawyers also tell her that if she is filing charges for rape, the husband will choose to settle, but the husband often fights to try and prove her wrong.

Under 498(a), if the complaint is proved false, men’s groups are demanding that the woman has to pay compensation. That demand will come in the case of marital rape laws too. All this has not helped women at all.

So What alternatives their to help her in such a case?

In the Domestic Violence Act, cruelty is described in various ways- for example, economic violence of not giving money to the wife, physical violence like beating, and emotional violence like humiliating her body or her parents. Then, there is also sexual violence. Domestic violence is a civil law and it gives you remedy. Women can ask for protection and maintenance; they can ask for a restraining order against their husbands. Further, under 498(a) of the Indian Penal Code, any kind of physical or mental or emotional harassment is explained as cruelty. Under explanation ‘b’ of the same section, making demands for dowry is described as punishable. It leads to three years imprisonment, and is dealt with at the magistrate’s court. For the Domestic Violence Act too, the forum is the magistrate’s court.

Conclusion:

We don’t need a change in the law to criminalise it, while we need a change in perspective. It should be dealt with 498(a) and the Domestic Violence Act, so that it gives protection to women. If there is a woman being abused, file a case under those laws and let’s see how they progress. If it does not work, why is it not working? We need to focus on that.

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Practice of manual scavenging was banned in 1993 by the enactment of The Employment of Manual Scavengers and Construction of Dry Latrines Prohibition Act, 1993. Now the truth is that this practice of manual scavenging is still a forced occupation for several Dalit families after a law being passed 18 yrs ago. Members of scavenging community always wondered that what constitutional and legal rights are for them, except a broom in one hand and night soil on the head. People still threaten them from sharing the temple, common water well and their children are denied of education. Apart from facing caste discrimination, scavengers are at risk of contracting diseases.

Manual scavenging still persists because it derives “traditional legitimacy” from the patron-client system, which is firmly entrenched in the psyche of those who perform this degrading job. According to a scholar the patron-client system provides security of employment, given the nature of this job as there is no one to compete with.

It is in persistence due to failure of the rehabilitation programme such as Self-Employment Scheme for the Rehabilitation of Manual Scavengers (SRMS). Scheme envisaged the rehabilitation of manual scavengers by assisting them in finding alternative employment through term loans and micro financing. However, the rehabilitation schemes concentrated only on the financial aspect and ignored the social aspect, causing several “rehabilitated” people to eventually fall back to the practice.

Earlier act of 1993 recognised this as a sanitation problem. It is now that the centre government has looked into this as social issue (under union list) and have come up with new bill (The Prohibition of Employment as Manual Scavenger and their Rehabilitation Bill, 2012). This may force state governments to implement it in a better manner as compared to the 1993 Act, which was enacted under the state list. Second, it widens the ambit of the law by encompassing the sewage system, railway tracks, septic tanks etc. under the definition of manual scavenging. Finally, it also addresses labour welfare and rehabilitation. Yet, scepticism arose because the 2012 bill failed to define rehabilitation in the context of manual scavenging.

Dr. Bindeshwar Pathak, founder of Sulabh International says that it is a deep-rooted problem with social and attitudinal aspects and also found it gender biased as females are more engaged in such activities. It can be effectively addressed only by a comprehensive package plan, which includes education, job training, rehabilitation and social mainstreaming. Sulabh International’s Nai Disha initiative in Alwar district (Rajasthan) has really proved a great success. Thus I believe that involvement of such non state institutions with government willingness to implement the law will really be handy in realising the concept ramrajya of valmiki’s, where valmiki gave us a vision of classless society by a tale portraying Lord Rama as a model for Hindu virtue. Lord Rama knew no caste — he ate the fruits tasted by Sabari, an elderly woman from an oppressed caste.

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650 million people, roughly 10 per cent of the world’s population, live with a disability, according to the United Nations. In India alone, there are roughly 100 million people with disabilities, which is almost 1/6th of population of disabled people in the world.

                                                                     UNCRPD* is an international instrument that provides persons with disabilities the same human rights that everyone else enjoys. It marks a radical shift in defining and understanding disability – it moves from a medical/social perspective to a human-rights based approach. India signed UNCRPD on the first day that it was opened for signature (30th March, 2007), but did not ratify.Later India ratified UNCRPD on the 1st of October, 2007. India was the 7th country in the world and the first significant country to do so. The ratification of UNCRPD was a direct result of the advocacy by NCPEDP** and Disabled Rights Group (DRG). The UNCRPD has increased the gamut of rights, so the rights recognised in the Convention have already become available to persons with disabilities and can be enforced in the Indian Courts. Persons with disabilities should take up issues of violation on the basis of UNCRPD and file cases in the various Courts of India.

The Committee on the Rights of Persons with Disabilities  is the UNHR*** body of independent experts which monitors implementation of the Convention by the States Parties. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Convention and thereafter every four years.  India  is about to  place its first report,after a delay of more then one year. According to the report ,a new dedicated legislation to implement the CRPD is under preparation(proposed Person with Disabilities Act,2011),and meanwhile  the existing  Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and other relevant laws are the vehicle of implementation of CRPD.

There are four Laws pertaining to disabilities in India:

  • The Mental Health Act, 1987
  • The Rehabilitation Council of India Act, 1992
  • The Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
  • The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999

Apart from these laws, India also has the National Policy for Persons with Disabilities which was adopted in 2006.

Report also says that Central and State coordination committees have been established ,with central committee headed by Union minister of Social Justice and Empowerment  and also having five persons, differently abled  persons to represent the NGO which are concerned with disabilities. This committee is envisaged to “serve as the national focal point on disability matters,and is required to facilitate the continuous evolution of a comprehensive policy towards solving the problems”.Thus the country report only gives the legislative reform process under way in india.

*-The U.N. Convention on the Rights of Persons with Disabilities .

 **National Centre for Promotion of Employment for Disabled People.

***-United Nations Human Rights .

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