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A Sign of Obsoleteness: Marital Rape exception in the Bhartiya Nyaya Sanhita

by Guest Author 08/12/2024

written by Guest Author

By Lauren Prem

The marital rape exception (referred to as the ‘MRE’ by the Delhi HC) has been a contentious issue in the legal world. The introduction of new criminal laws, that have come into effect on 1^st July, have fuelled the debate further. The Bhartiya Nyaya Sanhita (hereinafter referred to as the ‘BNS’), as the ruling government claims, intends to wipe out archaic traces of the colonial era embedded in the IPC. However, marital rape being retained in the new law, as an exception to the rape offence, has attracted criticisms that question the very purpose of the criminal law overhaul in the country. This article aims to evaluate judicial views on this matter while making a strong case for deleting the MRE to uphold individual liberty.

What Does The BNS Say?

Clause 63 of the BNS provides for an exception to rape which states that ‘sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’ The corresponding provision in the IPC that also provides for MRE uses the term ‘the wife not being under fifteen years of age’ in place of ‘the wife not being under eighteen years of age.’ Hence, the only change in the BNS has been an increase in the wife’s age from fifteen to eighteen to avail the exception. Basically, the judgement in Independent thought v UOI, (AIR 2017 SC 4904) has been reaffirmed by increasing the wife’s age to eighteen. However, BNS still retains the crux of the provision in the IPC as regards MRE, that was a subject of heavy debate and criticism.

Judicial Opinions And The Test Of Constitutionality

The judicial views in this matter are divergent and rarely reflect any consensus. Due to this, the matter was raised before the apex court. The recent petition Hrishikesh Sahoo v. State of Karnataka (Case no. SLP(Cr.) 4063-4064 of 2022) challenging the MRE, to be heard by CJI DY Chandrachud and Justices J.B. Pardiwala and Manoj Mishra, is currently pending before the apex court. This part of the article aims to examine the previous arguments considered by the courts regarding the MRE and analyse the validity of judicial opinions in light of fundamental rights enshrined in the constitution.

The Supreme Court, has thus far, failed to settle the issue regarding the constitutionality of the MRE, even when the opportunity presented itself in the Independent Thought v. Union of India and Anr. case (AIR 2017 SC 4904). In this case, the Supreme Court limited itself to the question as to whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative. The Supreme Court held that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. However it refused to conside the issue of whether sexual intercourse with one’s wife, who is above 18 years of age, without her consent, amount to marital rape.

The Delhi High Court (2022) in a recent case, however, has delivered a split verdict after receiving four petitions challenging the constitutionality of the MRE as violative of articles 14, 19(1)(a) and 21. This case challenged the MRE provision in the IPC, which is slightly different from the corresponding BNS provision in the aspect of the wife’s age. In this case, while Justice Rajiv Shakdher held in favour of declaring Exception 2 to Section 375 of IPC as unconstitutional, Justice Hari Shankar ruled against striking down MRE. Justice Shakdher amongst many arguments he gave in favour of declaring MRE unconstitutional, also said – while sex workers have been invested with the power to say ‘no’ by law, a married woman has not. This petition is now challenged before the Supreme Court.

Two major contentions presented in the petition are relevant for the MRE provision in the BNS as well. Firstly, the MRE is violative of article 14 as it metes out different treatment to married and unmarried women as regards the offence of rape. Secondly, the MRE violates the right to bodily autonomy of a woman read under article 21 – right to life. Thirdly, the MRE is violative of the right to freedom of speech and expression under article 19(1)(a) as this right encompasses within itself, the right of a woman to assert her sexual autonomy. Justice Rajiv Shakdher ruled in favour of the Petitioners.

On the other hand, Justice Hari Shankar in this dissent relied on two major arguments. Firstly, the MRE is not violative of article 14 because there is a reasonable classification made under the said article. In other words, the distinction between married and unmarried women as regards the offence of rape, is a reasonable as well as a permissible classification.

The doctrine of reasonable classification consists of two ingredients – the classification made between two classes must be intelligible and there must be a nexus between the classification made and object sought to be achieved by such classification. Further elaborating the argument, he held that the classification between married persons and unmarried persons is intelligible and that the classification bears a nexus with the object of preserving the sanctity of marriage as an institution. In simple terms, he suggests that a husband cannot be termed as a ‘rapist’ as it would erode the sanctity of marriage as an institution, thereby indicating his inclination towards placing marriage at a higher pedestal.

Secondly, the Attorney General representing the state argued that the MRE is not violative of a woman’s right to bodily autonomy as there are other remedies like divorce, available to the affected wife (para 312). The Attorney General argued that the MRE is not violative of a woman’s right to freedom of speech and expression because consent for sexual intercourse obtains permanence through marriage itself.

The verdict passed by the judges reflect opposing views, representing two sides of the debate concerning the MRE.

Additional Arguments And Commentary

The arguments advanced by the Attorney General representing the state, reflects a tilt towards the institution of marriage and a failure to strike a balance between protecting state institutions and upholding individual rights. One of the broad arguments advanced by the Attorney General is that the husband acquiring consent for sexual intercourse is ‘not in conformity with the Hindu religion.’ Criminal laws in India are secular and are framed based on how a particular society views crime, rather than catering to the needs of any particular religion. Using religion as a means to propel state-sanctioned violence will destroy the secular fabric of our nation.

Justice Hari Shankar, in his judgement, mentions that judges must honour the legislature’s exclusive domain and refrain from meddling with the MRE as it was drafted with a purpose of protecting the institution of marriage. However, striking down the provision as unconstitutional, is well within the domain of the judiciary – an institution tasked with playing a watchdog role to protect the constitution.

Several judges have used the same reasoning regarding the ‘limits of judicial powers’ to refrain from addressing the MRE issue. The legislature, in drafting the BNS act, severely missed an opportunity to resolve this long-standing issue and uphold women rights.

Conclusion

This article has explored various facets to the Marital Rape Exception (MRE) debate – one that has erupted once again since the effectuation of the new criminal laws on July 1, 2024. There is a strong case for its deletion on grounds that it hinders women from completely exercising their rights. The MRE dilemma adds perplexity to the legal debate especially that the debate involves consideration of social perspectives, such as what social institutions like marriage mean. Additionally, debate sheds light on the need for stronger judicial voices – ones that uphold fundamental rights guaranteed under Part III of the Constitution, rather than being held back by obsolete societal norms that handicap women entering social institutions, from accessing justice.

08/12/2024 0 comments 32 views

मुस्लिम महिलाएं और हिजाब

by Rajesh Singh 08/12/2024

written by Rajesh Singh

By राजेश ओ.पी. सिंह

कर्नाटक के उड़पी जिले से उभरा हिजाब सम्बन्धी विवाद सही मायनों में हमारी सहिष्णुता और

धर्म-निरपेक्ष मूल्यों पर सवालिया निशान लगाता है।

‘हिजाब मुद्दे’ से संबंधित खबरें और उसके साथ जुड़ी राय , वाद-विवाद, समर्थन-आलोचना आदि हम सब के सामने है। किसी भी महत्वपूर्ण मुद्दे का विश्लेषण करते समय तथ्यों और विचारों के बीच अंतर करना हमेशा महत्वपूर्ण होता है। इसी प्रकार हिजाब के मुद्दे पर विचार-विमर्श करते समय, यह आवश्यक है कि हम पाक कुरान शरीफ के सभी पहलुओं को पढ़ें और समझें, मुस्लिम उलेमा और विद्वानों की व्याख्या विवेचना को भी देखें और साथ ही साथ भारतीय संविधान को भी ध्यान में रखें और केवल स्कूल विषय को ही ना देखते हुए, एक व्यापक कैनवास में अधिकारों व चयन के पहलुओं को रखें।

पाक कुरान शरीफ के हवाले से यदि हम बात करें तो आयात 24:31 में पुरुष को ‘मोडेस्टी’ का पालन करने को कहा गया है। साथ ही, महिलाओं की पोशाक के संदर्भ में हिजाब का पाक कुरान में कोई उल्लेख नहीं है। हिजाब को केवल ड्रेसिंग के कोड के रूप में देखना गलत होगा। इसका सही मतलब एक ‘कोड ऑफ मोडेस्टी’ है जिसका अर्थ आपके समग्र व्यक्तित्व से है। यदि हम पाक कुरान शरीफ की अन्य आयतों को भी पढ़ें और समझे जैसे 7:46, 33:53 आदि यहां पर स्पष्ट जाहीर है कि हिजाब के कई आयाम हैं, इसका महिलाओं के पहनावे से कोई लेना-देना नहीं है। साथ ही करुणा व सहनशीलता पाक कुरान शरीफ की महत्वपूर्ण शिक्षाएं हैं। फिर पूरे इस्लाम को हिजाब के मुद्दों तक सीमित रखना इन सब महत्वपूर्ण बातों की तौहीन होगी।

इसी सन्दर्भ में जब हम महिला के लिबास को ‘मोडेस्टी’ के पैमाने पर लेकर आते हैं, तो जैसे एक कार को चलने के लिए सभी टायरों के सही संतुलन की आवश्यकता होती है, इसी तरह यह मोडेस्टी की बात भी केवल महिलाओं के कपड़े पोशाक से अकेले नहीं आ सकती है। समाज के सभी वर्गों से सही सहयोग, सकारात्मक सोच और सुधार इसमें आवश्यक हैं।

निस्संदेह ‘चॉइस’ (विकल्प) का मुद्दा महत्वपूर्ण है, कि कोई महिला या पुरुष क्या पहने या क्या ना पहने। विकल्प के इस विचार को एक बड़े संदर्भ में समझना होगा कि कोई भी पुरुष या महिला द्वारा पहनने के लिए लिया गया निर्णय खुद की इच्छा से लिया जा रहा है या कुछ परिस्थितियों के कारण लिया गया है या किसी दूसरे की ओर से प्रतिक्रियाशील पहचान की भावना से लिया जा रहा है, आदि जैसे कई पहलुओं पर ध्यान देना होगा।

कुछ मुस्लिम देश जिन्होंने हिजाब प्रतिबंधित किया है या प्रतिबंधित नहीं किया है, का उदाहरण देना गलत है , क्योंकि राष्ट्रीय हित का विचार प्रत्येक देश के लिए अलग अलग है। इसके अलावा आधुनिकता के विचार को कभी भी कपड़ों से परिभाषित नहीं किया जाता है, यह अच्छे विचारों और सुधार से आता है।

महिलाओं से संबंधित मुद्दों का जेंडर व लिंग के दृष्टिकोण से विश्लेषण किया जाना चाहिए। यहाँ एक व्यापक विश्लेषण की आवश्यकता है कि क्या हिजाब या कोई भी पोशाक पारिवारिक परंपराओं, पुरुष वर्चस्व, पितृसत्ता या सामाजिक परिस्थितियों के आग्रह का परिणाम है।

इसी के साथ महिलाओं के खिलाफ भेदभाव और उनके अधिकारों और स्वतंत्रता पर प्रतिबंध के औचित्य के लिए पवित्र कुरान के संदेश का दुरुपयोग या गलत मायने बताने के मुद्दा को भी समझना चाहिए। इसी तरह, यह तर्क दिया जाता है कि यह महिला सशक्तिकरण के मुद्दे का उपयोग करके पूरे समुदाय को हाशिए पर डालने का प्रयास है।

थोड़ी हटकर बात करें, तो विभिन्न देशों के फैशन शो में व अंतराष्ट्रीय ब्रांड्स में हिजाब व स्कॉर्फ देखने को मिल सकता है। कई महिलाएं लड़कियां इसे पहनती हैं, कई नहीं। साथ ही वैश्वीकरण ने अरब दुनिया के अनुसार मुस्लिम कपड़ों का मानकीकरण (Standardization) भी किया। यही कारण है कि मुस्लिम महिलाओं के मुद्दों पर चर्चा को सिर्फ हिजाब तक सीमित नहीं किया जा सकता है।

मुस्लिम महिलाओं व लड़कियों के मुद्दे आज की दुनिया में विविध हैं। किसी भी अन्य महिला की तरह मुस्लिम महिलाओं व लड़कियों के सामने अन्य महत्वपूर्ण मुद्दे हैं जैसे तकनीकी प्रगति के अनुकूल होना, शिक्षा में वृद्धि, नौकरी, स्किल डेवलपमेंट, अच्छा स्वास्थ्य, घर पर मुद्रास्फीति का प्रभाव आदि। समाज के सभी वर्गों की ओर से उन्हें संबोधित करने का प्रयास होना चाहिए।

संस्थानों को ऐसी नीतियां बनानी चाहिए जो व्यक्तियों को सर्वोत्तम परिणाम उत्पन्न करने के लिए प्रोत्साहन दें। समावेश के समग्र दृष्टिकोण के माध्यम से महिलाओं को सर्वोत्तम शैक्षिक और अन्य विकास के अवसर सुनिश्चित करना आवश्यक है। यह विविधता और प्रगति की ओर बढ़ने का कारक होना चाहिए।

इन सभी तथ्यों के साथ साथ भारतीय संविधान के अनुसार सरकार व समाज का दायित्व बनता है कि किसी को भी उसकी इच्छा के खिलाफ कुछ भी करने के लिए मजबूर ना किया जाना चाहिए जब तक कि उसके उस कृत्य से किसी दूसरे को नुक्सान ना हो।

कपड़ों में लड़का या लड़की क्या पहनना चाहता है ये उनका व्यक्तिगत मत है, इस पर सरकार और समाज को जबरदस्ती नहीं करनी चाहिए ना ही लागू करने में और ना ही बैन करने में।

कर्नाटक सरकार द्वारा हिजाब पर जबरदस्ती प्रतिबंध लगाना अपने आप में मुस्लिम महिलाओं के साथ धक्का शाहाई है, जब जब ऐसी जबरदस्ती की जाती है तब तब लोग सड़कों पर निकलते हैं और इस से ना केवल बच्चों की शिक्षा का नुकसान होता है बल्कि अनेकों बार सरकारी संपति का भी नुकसान होता है।

इसलिए सरकार को ऐसे जबरदस्ती किसी भी समुदाय के पहनावे पर प्रतिबंध या अनुमति नहीं देनी चाहिए।

08/12/2024 0 comments 32 views

Glad tidings: Celebrating The Growing Scope of Posh Act, 2013

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

Introduction

Indian society has been patriarchal from its very inception giving rise to gender inequality as its root product. Among all other forms of gender inequalities, the instance of sexual harassment is the ugliest as they don’t just show the social backwardness and frivolous thinking but also affect sufferers’ physical and mental health; destroy their confidence hampering their psyche and reputation along with leaving a forever horrible mark. Undoubtedly, the hassle of women’s sexual harassment is not of a recent origin and has ever existed in society and with women stepping into formal professional space, the issue taking the shape of workplace sexual harassment entered there as well. The reports suggest that on average nearly 81 per cent of females have experienced some sort of sexual harassment and three-quarters among them were harassed in the capacity of an employee by someone senior to them.

Unveiling The Causes Behind Workplace Sexual Harassment

A large body of research suggests that workplace sexual harassment is a consequence of power differentials. It is not primarily a result of physical access rather a mirror reflecting male power over women. Many analysts argue that it is a tool used as an equaliser against women in power, rather than instigated by sexual desire. It is a way for men to dominate and control women, who are seen as non-conformists and have risen to positions that have been traditionally occupied by men. It is even argued that sexual harassment as an act is deeply embedded within organisational practices and policies and thus needs to be examined within the specific context and women employees with tentative tenure, economic vulnerability, or those who are self-directed are inclined to experience sexual harassment.

Unfortunately, despite earlier notoriously famous “the butt-slapping case” and other unreported incidents, it was only in 1997 when the Hon’ble Apex Court of India in the landmark judgment of Vishaka v. the State of Rajasthan considered the matter and recorded the instance as a clear breach of the right to equality and dignity. The Court went on to formulate legally binding guidelines as a helpful redressal mechanism established for safeguarding the said rights, popularly known as “Vishaka Guidelines”. This step was taken taking into account the fact that then-existing laws in India (penal and civil) were not sufficient to bestow special armour to women from sexual harassment in the workplace and that the ratification of a new enactment will require substantial time. These guidelines were in operation for almost thirteen years before being turned into well comprehensive legislation. Hopefully, at present, the country has full-fledged dedicated legislation in this regard, namely Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Crucial Definitions under the Act, 2013

sexual harassment: Sub-clause ii, iii, iv and v of section 2(n) which deals with the expressed or implied unwelcome acts or behaviour demanding or requesting sexual favours, making sexually coloured remarks, showing pornography and any other unwelcome verbal or non-verbal conduct of sexual nature, respectively, confirms that any “unwelcoming behaviour” can be construed as sexual harassment. In Apparel Export Promotion Council v. A.K. Chopra, the Judiciary had affirmed that “any act or gesture that intends for or has the appearance of modesty, whether explicitly or impliedly point toward or has the potential to affront the modesty of a female employee must fall under the broad definition of sexual harassment.” For instance, even “incessantly messaging an employee on her handset with unsuitable kinds of stuff, against her will, is Sexual Harassment inside the connotation of the Act.” Notably, the “intention” of the accused is immaterial for an act to be considered as sexual harassment.

‘Aggrieved Woman’: The territorial applicability of the Act extends to the whole of India and the personnel applicability of the Act is extended to cover ‘aggrieved woman’ as defined under Section 2 (a) that implies as “a woman, of any age” “whether employed or not” is within the purview of the Act. A few days back, in Pawan Kumar Niroula v. Union of India and others, the Court opined that the provisions of the Act will apply to the students of the school as well.

‘Workplace’: The Act covers both the organized and unorganized sectors and encompasses dwelling houses and various governmental and non-governmental organizations within the ambit of the ‘workplace‘ under sub-clause (o) & (p) of Section 2. In various cases, the Court interpreted that the definition of the workplace should be inclusive and non-exhaustive. Similarly, in Saurabh Kumar Mallick v Comptroller and Auditor General of India and Anr, the court highlighted the need to consider the development in technology in the sexual harassment arena. Likewise, in Sanjeev Mishra v. Bank of Baroda, the Court observed that “with the global shift to the work from home model owing to the on-going pandemic, more individuals and particularly women are finding themselves vulnerable to online sexual harassment,” thus workplace includes digital platforms as well.

Thus, it may be best to refer to the Internal Complaint Committee (ICC) all misconduct with sexual undertones. The ICC may then refer the matter to the regular disciplinary committee if, after analysis, it is of the view that the complaint does not relate to acts of a sexual nature, as suggested by Madras High Court in M Kavya v The Chairman, University Grants Commission (2014).

Other Constructive Judicial Precedents

Fortunately, the timely judicial review of the POSH Act by various High Courts and the Supreme Court has provided some clarity on its various provisions. The judiciary continues to bear the torch for women’s rights by upholding the right to dignity at work and has steadfastly refused to dilute some of the provisions of this law on grounds of hyper-technicality or procedural infirmities. In, Nisha Priya Bhatia v. Union of India, the two-judge bench of Hon’ble Apex Court remarked “We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties”,

Recent Initiatives

After more than 8 years of its enforcement, the Indian workspace has hopefully started unabashedly accepting the existing menace of workplace sexual harassment thereby facilitating moves to curb it. The recent years have shown some admiring initiatives in this regard. For instance, in 2017, the Ministry of women & child development has introduced the “SHe-Box“, a virtual complaint portal for all women workers making the mechanism of filing complaints easy and more accessible. In the same vein, by order dated January 7, 2022, Allahabad High directed to install several complaint boxes in the court premises to make the complaint filing process smoother for women employees of the High Court against instances of sexual harassment.

Conclusion

There is no doubt that we have come a long way in acknowledging, handling and curbing the widespread hurdle of workplace sexual harassment and the POSH Act has been instrumental in bringing out radical changes. Further, the role of the Judiciary in expanding the scope, ambit, and mandatory compliance scheme of the Act has been remarkable in particular. Nevertheless, to ensure satisfactory implementation strict compliance with the Act is essential. To conclude let us all “see gender as a spectrum instead of two sets of opposing ideals” as for fighting against such issues the mindset needs to be changed first.

08/12/2024 0 comments 25 views

Breastfeeding – An Inalienable Constitutional Right of a Mother

by Guest Author 08/12/2024

written by Guest Author

By Mahak Shinghal

Case – Husna Banu v. State of Karnataka

Bench – Justice Krishna S. Dixit

In a recent case, the Karnataka High Court on 24 September, 2021 observed that breastfeeding is an inalienable constitutional right of a lactating mother and the right of the infant needs to be assimilated with the mother’s right.

The present case of kidnapping is filed by the genetic mother of the child, Smt. Husna Banu [hereinafter, “genetic mother”] wherein she approached the Court for the custody of her child which landed on the lap of Smt. Anupama Desai [hereinafter, “foster mother”].

The child was born in a maternity home in Bengaluru in May 2020 but was stolen from the cradle by an unscrupulous person. The police traced the child to the foster mother’s home in Koppal town in May this year.

The foster mother sought to retain the child which she took care for a year or so. Another case was filed by the foster mother and her husband wherein they challenged the police notice dated 12.08.2021 whereby they were directed to produce the child before the Child Welfare Committee. Both the cases were clubbed before the Court.

The counsel for the foster mother argued that his client has pampered the child with abundant love and affection for all this time. A child who is well fostered for long cannot be parted away from the foster mother. The Counsel alleged to retain the custody of the child by sighting the episodes from Bhaagavatam in which Devaki, the genetic mother of Lord Krishna, permitted Yashoda, the foster mother, to retain custody of infant Krishna. The foster mother also pointed out that the genetic mother already has two children, however, she has none.

The genetic mother filed a habeas corpus writ petition in the High Court of Karnataka and traced the child with the foster mother. The counsel for the genetic mother contended that the genetic parents of the child have undergone severe agony for a year or so. The counsel also highlighted the difficulties of a lactating mother from whom the sucking infant is kept away.

The Court, after hearing both the parties, observed that the custody should be given to the genetic mother. Justice Krishna S. Dixit observed “breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.”

The Court also said that it is unfortunate that the child had to suffer for no fault of his and remained un-breastfed since the genetic mother had no access to him until now.

The argument on behalf of the foster mother that the genetic mother has two children while the foster mother has none, the Court said that “children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance.”

Later, the Court was told that the foster mother has delivered the custody of the child to the genetic mother, who in turn, agreed that the foster mother may see the child whenever she desires.

Noting this, the Court said that “such kind gestures coming from two women, hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”

With these observations, the Court directed that there shall be no cause of action against the foster parents concerning the alleged kidnapping of the child and freed the foster mother from all civil and criminal liabilities and disposed of the two writ petitions.

08/12/2024 0 comments 28 views

The Prevention Of Sexual Harassment At Workplace Act, 2013 Along With Its Amendment

by Guest Author 08/12/2024

written by Guest Author

By Meenu Padha and Aastha Sharma

With the advancement in the world, India has seen a change in its working culture. Today, men are not the only breadwinners. Women also walk shoulder-to-shoulder with men when we talk about their earning capacity in a family. However, statistics reveal that a lot of women remain subject to sexual harassment which hinders their professional, social and economic growth.

Sexual harassment at the workplace is a violation of fundamental right that is enshrined in the Constitution of India. It hampers the right to equality and the right to life for a woman, when she is suppressed due to sexual harassment at workplace. Therefore, to curb the same, the Parliament had passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal )Act, 2013 and there also have been amendments made under the Criminal Law (Amendment) Act, 2013. Earlier for this, the only option that women had was to file a complaint under Section 354 which amounts to sexual assault against women and Section 509 which stated about the punishment when an individual questions the modesty of a woman.

The case of Vishakha v. State of Rajasthan (AIR 1997 SC 3011) was the first case which started a discussion on sexual harassment at workplace and brought it into broad day light. In 1992, Bhanwari Devi, a Dalit woman employed with the rural development programme of the Government of Rajasthan, was brutally gang-raped on account of her efforts to curb the then prevalent practice of child marriage. This caught the eyes of women right’s activist and NGOs who then, filed a Public Interest Litigation in pursuance of the same in the Supreme Court of India. India had signed and ratified the Convention on Elimination of All Forms of Discrimination of United Nations, 1979 which has been adopted by the general assembly of the UN. Therefore, this convention was used for laying down the ‘Vishakha Guideline.’

What Amounts To Sexual Harassment?

The judgment passed by the Supreme Court in Vishaka, clearly explained what constitutes sexual harassment. According to the judgment – an unwelcoming sexual behaviour, direct or indirect, including physical contact or advancement, sexual remarks, showing pornography or other verbal or non-verbal sexual conduct would amount to sexual harassment. In furtherance to this, if any of this fear arises out of an employee-employer relationship then it will be regarded as sexual harassment at the workplace. This creates a sense of discrimination amongst the women as they feel that if they resist, it can hamper their position in the organisation.

Therefore, the main component of sexual harassment is linked with the concept of ‘Quid pro quo’ which means this for that. If we connect it with the topic that we are dealing with, it would mean that the woman will be benefitted professionally only if she accepts the sexual favours that are asked by the respondent. Usually, the respondent is the person in power. This definition also includes the creation of an intimidating and hostile environment. However, as there is a very thin line when it comes to explaining the hostile environment, the burden lies on the internal committee to decide.

The internal complaints committee is explained in section 4 of the POSH act, 2013. It includes a minimum of 4 members. The presiding officer has to be a woman who is at a senior level and has to be from the side of the employees. The next two members have to be from the employees and should be committed to working for the women along with having legal knowledge or experience in social work. There also has to be an external member who is associated with an NGO which works for the upliftment of women. However, according to the latest amendment, the Internal complaints committee is now known as the Internal committee. Similarly, under section 6 of the act the “local complaint committee” is replaced by “local committee”.

It is mostly seen that when it is a complaint filed for harassment at workplace, the respondent usually pleads that he did not have any intention to sexually harass the woman rather it was just a malarkey. Therefore, in the case of Dr. Punita K. Sodhi v. Union of India, (W.P. (C) 367/2009 & CMS 828, 11426/2009), the Supreme Court held that the view point of men and women have to be analysed deeply in such cases. Men might consider some comments to be unobjectionable although, they might be lewd for a woman. Men are rarely a victim to sexual harassment and therefore, it becomes tough for them to draw a line between harmless social interactions and sexual harassment at workplace.

What Constitutes To Be A Workplace?

Section 2(o) defines it as – anywhere an employee visits during its due course of employment and also includes any transportation facility that is provided by the employer for commuting purposes. There have been numerous cases where the respondents have argued that they were not at their workplace when they were alleged to do the act of sexual harassment.

One such case is Saurabh Kumar Mallick v. Comptroller & Auditor General of India, where the respondent was facing disciplinary actions for harassing a woman senior officer. He contended that he was not at his workplace when he was allegedly indulged in sexual misconduct and was in the officer’s mess. To this, the High Court held that to exercise the Vishakha guidelines to its true sense, it is important to realise that the meaning of workplace has to be understood with a wider ambit. With the development of technology, video conferences have also become an important portal for conducting business. Considering the above, there were a few points given for further explaining the meaning of ‘workplace’-

It is a place where there is –

The control of the management
Such an area/residence has to be the extension of the workplace
Its proximity with the workplace has to be considered.

Therefore, under this case, the court had held that it was sexual harassment at the workplace.

Punishment And Compensation

The reason for every act is to create a sense of deterrence in society. Section 25 of the Act mentions the punishment for both employees and employers who are indulged in sexual harassment at the workplace. It mentions that the organisation would depend on the service rules that they have created for the same. The compensation would be deducted the from respondent’s wage and given to the aggrieved woman. Here, the most important question is how is the compensation decided? For the same, section 15 has laid down a few pointers-

The amount of mental trauma, pain, suffering and emotional stress.
Loss in working opportunities caused by sexual harassment.
The medical expenses incurred
Income and status of the perpetrator
The practicability of paying capacity the amount of the respondent and it can be given in instalments too.

However, the process of conciliation cannot be used to make any monetary settlement.

Amendment In The POSH Act, 2019

The recent growth in the Act was when the Department of Women Development and Child Welfare issued a notice that any company in Telangana which has 10 members or more to have a State Shebox portal by July 15, 2019, to keep a closer eye on the regional issues. A similar note was launched by the Maharashtra government which asked for a detailed form stating the internal committee along with its compliance status by July 20, 2019.

The amendment made in May 2016 stated that the job of the IC is not only to handle the cases of sexual harassment but also to prevent any such activities from happening. The IC was asked to formulate an open-door policy where everyone to report the issues comfortably along with a no-tolerance policy for sexual harassment.

Cases After Bhanwari Devi Case

Medha Kotwal Lele & Ors. V. Union of India & Ors. (2012 STPL (Web) 616 SC )- In this case, Medha Kotwal wrote a letter to the Supreme Court stating that the Vishakha Guidelines are not implemented properly, after which the Supreme Court took cognisance and converted the letter into a petition. This showed that most of States did not take the steps that are needed to curb sexual harassment. Therefore, they said that in case of non-compliance of the complaint, the door of the High Court would open for the aggrieved woman. In its judgment, the Supreme Court observed that “the implementation of the Vishakha Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.”

Apparel Export Promotion Council v. A.K Chopra ( AIR 1999 SC 625 )- In this case, the definition of sexual harassment was expanded. They ruled that physical contact was not an essential when it comes down to sexual harassment at workplace. The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”

Mukesh & Anr. vs. State for NCT of Delhi & Ors. (2017) 6 SCC 1 – This case was the one after which the Criminal Law (Amendment) act, 2013 was passed. This act was used to widen the definition of rape and also look into the scope of capital punishment for the rape cases which caused the death of the victim or moved her in to the vegetative state.

Conclusion

“While a murder destroys the physical frame of the victim, sexual harassment degrades and defiles the soul of a helpless woman.”

The development in the POSH act has been new for the labour laws. The analysis of the judgement and the Act is necessary to spread legal awareness around it. The cases of harassment at the workplace are brought into light through the #metoo movement and other campaigns. This shows the awareness amongst the society. It is essential for the HR and the legal teams of the companies to be vigilant while dealing with such issues. As the companies organise camps and workshop to increase the awareness about sexual harassment at workplace. It is also important for the IC to be aware about the latest development in the sector. Therefore, the nation has come a long way to protect the women of the country. However, a longer stretch remains to be covered.

08/12/2024 0 comments 29 views

Gender Gap In Judiciary

by Avani Bansal 08/12/2024

written by Avani Bansal

By Avani Bansal & Radhika Ghosh

Introduction: An Intriguing Conversation

I was speaking to a colleague who trains judges. Reading one of my earlier pieces on the case for representative judiciary in India, she narrated to me an incident. She said all the judges of the Supreme Court had come for training and one could see that the two female judges were more or less by their own self. So even if a woman becomes a Supreme Court judge, should we assume that she will be treated alike and at par with male judges? She didn’t think so, having observed and worked closely with judges for a long time. But she probed me deeper – “why do you think that is the case? Why do most male judges have such a parochial view towards women judges?” While I was still thinking, she said – “One of the reasons could be that the wives of most of the judges, while educated they may be, do not work professionally. So judges are still accustomed to see women in a particular light.”

Now, I had never thought about the gender gap in Judiciary in this light. While we look at the statistics of the dismal number of female judges in India at subordinate judiciary level, High Courts and Supreme Court, we rarely investigate into how the subjective worldview of our own judges with a limited role for women in it, has a deep impact on promoting, and encouraging more women to join judiciary. While many judgements in India reveal the judges’ own view on the role of women, there is no basis to assume that the same male dominated judiciary will be encouraging of more women to sit next to them as colleagues.

Let’s Look At The Numbers

The Supreme Court was established in October 1935 and functioned as India’s federal court until it assumed its present form in January 1950. The initial strength of the judges was only eight — Chief Justice and seven puisne judges. As the number of cases increased, the number of judges also went up. Today, there are a total of 31 judges, including the Chief Justice of India. Since 1950, India’s Supreme Court has had 46 Chief Justices and 167 other judges.

There have been a total of eleven women judges in the Apex Court ever. Three of them sworn into the Supreme Court (SC) of India on Tuesday, August 31 2021. So along with J. Indira Banerjee there are now a total of four women judges in the Supreme Court who are currently serving. This constitutes to 11% of the strength of total Judges in Supreme Court.

In 17 states, between 2007 and 2017, 36.45% of judges and magistrates were women, researchers with the Judicial Reforms Initiative at Vidhi Centre for Legal Policy, a think tank, wrote in January 2020 in the Economic and Political Weekly (EPW). In comparison, 11.75% women joined as district judges through direct recruitment over the same period, according to data from 13 states.

The chart shows the serving women judges (in red), retired women judges (in lighter shade of red), serving men judges/Chief Justices (in grey) and retired men judges/Chief Justices (in light red) of the SC according to their year of appointment as of August 31. Only 11 of the 256 judges (4.2%) who have served/ are serving at the apex court were/are women. Four out of the 33 judges (12%) currently serving are women.

The share of women judges in High Courts was no better. The chart depicts the share of women among all HC judges as of August 1, 2021. Overall, women judges account for only 11% of HC judges. In five HCs, no woman served as a judge, while in six others, their share was less than 10%. The percentage of women judges at the Madras and Delhi High Courts was relatively high.

Women’s representation in the judiciary is slightly better in the lower courts where 28% of the judges were women as of 2017. However, it was lower than 20% in Bihar, Jharkhand and Gujarat. The map shows the State-wise % of women judges in the lower courts.

[Date available on: https://www.thehindu.com/data/only-11-women-supreme-court-judges-in-71-years-three-of-them-appointed-in-2021/article36272407.ece ]

And What About Trans Women, Dalit And Adivasi Women?

The gender gap in India is so wide that we are often talking of just ‘women’ representation without paying any attention to the inherent intersectionality debate. Women are not just one monolithic community in India. From all the eleven women who have made it as judges in the Supreme Court, there has been only one Muslim woman – J. Fathima Beewi and one practicing Christian – J. R Banumathi. There has been no dalit, or adivasi woman, and no woman representing the sexual minorities in India, including a trans woman. The intersectional representation has to be borne in mind because women representing different communities bring in perspectives which others cannot. As the International Commission of Jurists report – “Increased judicial diversity enriches and strengthens the ability of judicial reasoning to encompass and respond to varied social contexts and experiences. This can improve justice sector responses to the needs of women and marginalized groups.”

So What Explains Such A Gender Gap In Judiciary?

There are several systemic obstacles that prevent women from being equally represented in judiciary. First of all, there needs to be a clear vision of how much representation of women will be considered as adequate representation and given that women are half of the Indian population, unless there are 50 percent women judges at all levels of judiciary, we have no reason to be complacent. Having 11 percent women at HC and SC level and 36 percent women at district court level is just not good enough. We have to be convinced of raising this bar, before we start engaging in this debate.

Secondly, there is a need to revisit the rules that keep women out by appearing to treat them ‘equally’ without paying attention to the need for ‘equitable and not equal treatment.’ For example – an advocate must have a minimum of seven years of continuous practise to be eligible to be a district judge. “This could be a disqualifying criterion for many women advocates because of the intervening social responsibilities of marriage and motherhood that could be preventing them from having seven years of continuous practice,” said Diksha Sanyal, a researcher involved with the Vidhi Centre studies on this issue. While Article 233 of the Constitution provides that appointment as a district judge requires not less than seven years as an advocate, it is the Supreme Court that has interpreted it to mean ‘continuous practice’. Similarly, “the entire attitude towards women who work outside home must change,” said Justice Prabha Sridevan, a retired judge of the Madras High Court. For instance, she said that one of the reasons that reduces women to stay in power is the transfer of women magistrates every three years.

Third, we need to discuss the issue of reservation for women not just in Parliament but also in High Court and Supreme Court of India. “Reservation quota for women is perhaps just one among many factors that encourages and facilitates more women to enter the system. In states where other supporting factors are present in sufficient measure, women’s quotas perhaps help bridge the gap in gender representation,” noted the 2020 EPW special article.

Fourthly, we need to design the system in a way that incorporates the requirements of women who aspire to be judges. “A lot of female judges join the service very late, which makes their chance of making it to the high courts or Supreme Court bleak,” said Soumya Sahu, a civil judge in Madhya Pradesh. Women judges are not immune to the “leaking pipeline”, the term used to describe how many employed women quit the workforce mid-career when children face board exams and parents need additional care—jobs that fall to women. “A total reorientation of the way society thinks of family and marriage is needed,” said Justice Sridevan. “It becomes difficult if you think the woman is the sole nurturer.” To address these issues, we need to think of the challenges beyond conventional solutions that are discussed to reduce the gender gap. The gender gap in Judiciary is not separate from the gender gap that we see in all segments of society. So the need of the hour is to understand and address the requirements of women at all levels, which may require us to disrupt the current system of looking at things. Breaking the conventional ways may include more female voices at all levels of decision making and creating inclusive spaces where we don’t just engage in tokenism by appointment a few women.

Above all, what’s needed is self-reflection and being aware of our own mental barriers and perceptions regarding women and what they are capable of doing. Sometimes the attitude of judges towards female lawyers and judges may become apparent through small anecdotes that what statistics may reveal.

Justice Leila Seth, former chief justice of the Himachal Pradesh High Court and the first woman to become the chief justice of a state high court, said in a November 2014 interview with The Hindu – “In most cases, male lawyers or judges especially in upper Himachal had a feudal mentality. They were not used to a woman sitting on their head.”

Advocate Kiruba Munusamy shares an incident while in Madras High Court, where a judge commented about her short haircut, which she couldn’t tie. He said, “Your hairstyle is more attractive than your argument. Women having short hair and men having long hair, wearing studs have become a fashion these days but I don’t like it.” She replied that she has been keeping short hair since her school days. She also mentioned that she has migraine and can’t keep her hair tied for long, so she had it cut short. She then pointed out to him that there is no bar council rule or code that prescribes the hairstyle of women. His response was, “Of course, there are no rules. But I am just telling my opinion.” Kiruba was asked by other male lawyers who were present in the court room to apologise to the judge regardless of his comments. The advocate that day was insulted, mistreated and told to shut up by the judge even though she was the Petitioner’s counsel in a transwoman’s police appointment case.

While every female judge who makes it to the apex court serves as an inspiration for millions of young women, it is time that we think systematically about getting millions of girls as judges and lawyers in various courts and levels in our legal system. This will require shattering quite a few glass ceilings and setting examples through action, initiatives, policy, laws and attitudes, all of which begins with sombre reflection.

First Published here:

http://inspire.profcongress.com/inspireInside/?unique_id=perspectives_0001

08/12/2024 0 comments 33 views

Abortion Law in India: Not Quite There Yet

by Mani Chander 08/12/2024

written by Mani Chander

Why the amended abortion law in India restricts access and fails to grant pregnant (women, transgender and nonbinary) persons, complete control over their reproductive choices.

Mani Chander

The Medical Termination of Pregnancy (Amendment) Bill, 2020 was approved by the upper house of the parliament and received presidential assent in March, 2021. Some of the amendments brought in by the new Act were hailed by many for further liberalizing access to abortion in India. On the other hand, some leaders of the opposition had voiced concerns, demanding a detailed scrutiny of the Bill by a parliamentary standing committee. The Bill, however, was passed without any further deliberation or amendments.

One of the key amendments brought by the Act was in terms of easing the process of approval by doctors. While the earlier law required one doctor’s approval for pregnancies up to 12 weeks and two doctors’ for pregnancies between 12-20 weeks, the new law requires only a single doctor’s approval for pregnancies up to 20 weeks. The approval of two doctors is now needed only for the 20-24 timeline reserved for abortion seekers of special categories such as rape or incest survivors. The upper gestation limit for abortion in cases of foetal disability has also been removed.

The other significant change introduced by the new Act was the mandatory constitution of a medical board in every State and union territory (UT), which would decide on pregnancies beyond 24 weeks in cases of foetal abnormalities. As per the amended act, the board would have one gynaecologist, one radiologist or sonologist, one pediatrician, and other members as prescribed by the respective state or UT.

Nearly six months since the new act came into effect, several issues around the revised mandate have come up, showing that the new law, though well intended, continues to restrict reproductive rights.

The first obvious and fundamental drawback is that our lawmakers have failed to recognize that reproduction is not just a women’s issue. Seeing only women as natural mothers is exclusionary and deeply problematic as it ignores the fact that trans and non-binary persons can also become pregnant. It reinforces harmful stereotypes around reproduction and sexuality.

Furthermore, while the establishment of medical boards in every state and UT seems like a noble idea, ground reality points to its infeasibility. A recent report based on the Ministry of Health and Family Welfare’s Rural Health Survey, which analyzed district-wise availability of medical specialists, found that there is a severe shortage of doctors. As many as 82% of these posts for surgeons, obstetricians, gynaecologists, physicians and paediatricians lie vacant. In rural India, where 66% of the country’s population resides, there is a shortage of approximately 70%. While states like Arunachal Pradesh, Meghalaya, Mizoram and Sikkim revealed a 100% shortfall of pediatricians, others such as Tamil Nadu, Arunachal Pradesh, and Gujarat have recorded near-absolute absence of certain specialists in rural areas.

Besides, even if the state governments manage to set up the necessary medical boards, access will remain a challenge, particularly for those in remote areas. It is noteworthy that the new law fails to include any provision whatsoever for ensuring logistical or financial assistance to those who need to consult a medical board. Rather than ensuring access and convenience, forcing pregnant persons to run around in search of medical boards would create further hurdles for them.

Not to mention that these medical boards have no clear mandate, leaving the scope of their functions excessively wide. Absolute discretion when considering requests for abortion allows medical boards to venture into subjective issues such as viability of the foetus and possibility of corrective surgery.

Time and again, courts have reiterated the right of a woman to control her body and fertility. In 2016, the Bombay High Court in a suo moto public interest litigation held that “the right to autonomy and to decide what to do with one’s own bodies includes whether or not to get pregnant and stay pregnant”. It flows logically, that any encroachment of bodily autonomy would also amount to infringement of privacy, as observed in the Puttaswamy judgment of the Supreme Court.

While restrictions on the fundamental right to privacy may be imposed on account of larger interests, they ought to be “just, reasonable, and fair.” It appears, however, that the amended Act, if challenged, would fail to satisfy this constitutional mandate.

Contrary to their own precedents upholding bodily autonomy, courts have sometimes rejected petitions seeking approval for abortions. The reason is that courts ultimately rely on the decision of the medical boards, while ignoring the advice of the woman’s own gynaecologist. For instance, the Supreme Court rejected the termination of a 27-week pregnancy even though the foetus had severe physical abnormalities, because the medical board had found that there was no physical risk to the mother. The same fate was met by a 25-year-old woman whose foetus was diagnosed with Arnold Chiari syndrome, an abnormality that leads to underdeveloped brain and distorted spine.

Moreover, the process of setting up medical boards and delayed decision-making has forced women to carry their pregnancies to term. In one case, an HIV-positive rape victim from Bihar, who was denied abortion when she was 18 weeks pregnant, was forced to give birth as a result of delay. While awarding compensation to the woman, the Supreme Court remarked, that “the fundamental choice (of termination of unwanted pregnancy) which is available in law was totally curtailed and scuttled, ..the entire action has caused her immense mental torture”. In another case, after the Supreme Court allowed abortion of a 13-year-old rape survivor, she ended up giving birth two days later. Bureaucratic delays coming in the way of women’s reproductive rights can hardly be considered just.

In yet another striking suit, the top court refused to allow an abortion for a 10-year-old girl, allegedly raped by her uncle, because the medical board was of the opinion that termination would be “too risky”. What medical boards and courts seem to be ignoring is that in most cases involving children, the pregnancy itself is discovered too late because they are unaware of their condition. Yet, they are made to pay the price for no fault of their own.

The central argument is that medical boards and doctors continue to decide and make the final call. Leaving the decision to anyone other than the woman grossly undermines her dignity and agency, particularly when those assigned the task of decision-making are not bereft of their own personal and moral beliefs.

India is considered to have a fairly progressive abortion law when compared to other countries, yet it is regressive in more than one way. While we still have a long way to go, we mustn’t hesitate to learn lessons from the rest of the world. Texas’ recent law which effectively bans abortions is a painful reminder that hard-won rights can be stripped away all too easily.

We cannot be complacent, for we are not free until all of us are.

_______

*Views are personal. The author is a Delhi-based practicing lawyer who holds a special interest in gender justice. She holds a Master’s degree from the University of Virginia School of Law and is admitted to the Bar Council of India as well as the New York State Bar.

08/12/2024 0 comments 24 views

Right to Information – An Overview

by Guest Author 08/12/2024

written by Guest Author

By Mehreen Mander

Right to Information is perhaps one of the most effective tools to deepen democracy and actively seek accountability by enabling transparency. It gives the citizen the right to seek information held by public authorities which may be of public interest. This information can, among other things, be used as a basis for public interest litigation, and general means for justice.

For instance, in 2018, the Ministry of Women and Child Development released a report called ‘Women in Prison’ which studied the condition of women in prison and informed action for the improvement of the same. It found out that there was a severe lack of female staff, basic sanitation and hygiene facilities which meant that physical, sexual, reproductive and mental health needs of female prisoners was being severely compromised. Most of the prisons are overcrowded. There are barely any provisions for education or vocational training apart from those for basic literacy. It also found that physical and sexual violence at the hand of authorities and other prisoners was commonplace, and complaints were not taken seriously.

This report also gave suggestions taking into view National Model Prison Manual, recommendations of the Mulla Committee among others to improve the condition of such prisons and make arrangements for those women who live with their children. However, three years on, there has not been much reporting about the steps taken to implement these suggestions. A concerned citizen seeking to obtain information about the implementation of these suggestions in general, or the condition of a prison in particular, may do so by exercising their right to information.

This article discusses the procedure to obtain information under Right to Information Act, 2005. It also discusses some important judicial precedents related to the exercise of RTI.

How to exercise the right to information?

What Is RTI?

RTI means Right to Information. It was held to be a part of the fundamental right to freedom of speech and expression in the 1973 decision of Bennett Coleman and Co. v Union of India. The process and machinery to exercise this right is under the RTI Act, 2005. Citizens have the right to, among other things:

to ask any question to the government to seek any information
to take copies of any government documents
inspect any government documents
inspect any government works
take sample of material of any government work

Who can ask for the information under RTI?

Any citizen of India can ask for information under the RTI Act.
Overseas Citizen of India and Persons of Indian origin card-holders
Any functionary in their personal capacity
Any person representing a group of individuals like an association, HUF,

If you are out of India, then the RTI Application can be made with the Public Information Officer of the local Indian Embassy/Consulate/High Commission who will give you information regarding the amount of application fee and modes of payment.

Who Is Covered Under The RTI?

All bodies constituted under the Constitution or any other law or government notification and all public bodies. The president, the legislature, the judiciary, all related ministries, departments, agencies, any other body which is owned, controlled or substantially funded by the government.

However, security and intelligence organizations such as RAW, Intelligence Bureau, BSF, ARF, NCB etc. will not be covered under RTI. However, CBI and Directorate General of Central Excise Intelligence are not included in this exception.

Private bodies which are owned, controlled and substantially funded by the government are covered directly. Other private bodies are covered indirectly – that means if the government department is empowered to access the information from any private body, then the same can be accessed by citizens under RTI act, through that government department.

What Is the Fee?

There is an initial application fee. This varies from state to state. It is around Rs. 10/- as per Central RTI Rules. BPL citizens don’t need to pay this.

After that, there might be document charges which depend on the information you seek to obtain. As per Central RTI Rules, it is Rs.2 per A4 size page, Rs 50/- per CD and the actual cost in respect of printed publications, or Rs 2/- per page of A4 size extract copy. There is also a fee for inspection of documents. The first hour is free, however there is a fee of Rs. 5/- for every subsequent hour.

Normally, a Public Information Officer (PIO) is supposed to supply information within 30 days of receiving an RTI request. If the information is not supplied within 30 days, then the applicant is entitled to receive the information free of cost. However, if there are document charges, and the PIO has informed of such charges, then the days between intimation of charges and actual remittance of the document charges will not be calculated.

The fee can be deposited in cash, through demand draft or banker’s cheque or postal order, or even through stamps in some states.

Who do I approach to get the information?

You have to approach the concerned PIO in the department who holds the information that you seek.

A Public Information Officer is an officer designated by the public authority in every office whose job it is to provide information to citizens requesting for information under the Act.

Once you have identified which department, and or office holds the information you seek, then you have to identify who the concerned PIO in that office is. The list of PIO is available on the website of the public authority, or available physically on their premises. You can contact them or visit them to find out the list of PIOs.

There might also be multiple PIOs in one public authority who deal with different subject matter. You can find out which PIO is the one concerned with your subject matter from the list, or by contacting the office. The contact details of such a PIO can be obtained from the public authority.

How Do I Make The Application?

You can make the application online or offline.

Offline procedure:

Identify the RTI subject of the information you seek to obtain. Give it a clear and articulate “Topic Title.” This topic title is used for reference purposes, and to give the officer concerned a good idea.
Identify the department or public authority concerned with the subject matter of your information. Then, identify the particular office or unit which holds that particular document that you seek to obtain. Whether the department or office holds the information might be available on website under the RTI Caption, or can be sought directly by contacting or visiting the office.
Identify the concerned PIO who deals with the subject matter you are interested in. List of PIOs is available on the website or in office premises. The concerned PIO is the one who has direct access to the information held by or under the control of the public authority. Choosing the right PIO helps to expedite the process. If you want information held by Collector Office, then must not approach the Minister’s office.
Search for RTI procedure applicable to the public authority because it varies. There are different RTI Rules for Lok Sabha, Rajya Sabha, Supreme Court, High Courts and Legislative Assemblies.

The following things must be adhered to

Word Limit and Formats
Application Fee
Document Charges
Inspection charges
Mode of payment of fee
Identify the precise document that contains the decision-making process, or which conveys the decision or implements the decision of the authority. Mention that you need that particular document.

E.g., If you want to know why Mr. X was transferred from place A to place B, you have to find out on your own that that the reasons for the transfer are recorded on a document called Note Sheet. So, you request for “certified copy of note sheet containing notings of various officials and approval of competent authority for the transfer of Mr. X from place A to place B in the month of May, 2020”

Draft an RTI. An RTI can be drafted in English, Hindi, or official language of the state, if contacting State PIOs. The PIO is required to assist a disabled or illiterate applicant, and even an applicant facing trouble in reducing his query to writing.

The following things need to be mentioned: –

Address of the PIO
Name and Address of the applicant
Contact number of the PIO
Subject matter of the information
Information sought – the exact document, no need to mention reason for seeking it though. Don’t ask queries
Submit the RTI
1. Through speed post
2. Registered post
3. Hand delivery if the office is nearby
4. Through CAPIOs and Designated Post offices

Always get proof of submission of application for future use. Don’t use courier service or ordinary/book post for this use.

Online procedure:

If you are seeking information from authorities under Central Government, you can also make an RTI application online through rtionline.gov.in. You can do so by filling the form on the website. The word limit for this is 3000 characters (not words). If the text exceeds 3000 characters, then you can upload the application as a PDF as well.

You are then required to make the payment through online modes: (i) internet banking through SBI and its associated banks (ii) using atm cum debit card of SBI (iii)credit/debit card of Master/Visa. You get a unique registration number which you can use for future reference.

Can A PIO Refuse Information to An Applicant?

Yes, there are certain subjects listed in Section 8 in the RTI Act on which the PIO can refuse information. These subjects include: – confidential information received from foreign governments, information prejudicial to security, strategic, economic or scientific interest of the country, information which breaches the privilege of legislatures, or information related to any third party.

Further, when the information sought relates to a third party, the Central or State PIO is obliged under Section 11 to give such third-party notice that disclosure of such information is sought to be made. The third party can make representation as to why the information must not be disclosed. The discretion about whether or not to disclose the information rests with the PIO concerned.

What do I do if I don’t get a response from the PIO?

The applicant who has filed the RTI Application, or a third party whom the information sought relates to, or has been supplied and is treated as confidential, is entitled to a first appeal if

there is no response within the stipulated time i.e., 30 days, or
the decision of the PIO is found be not satisfactory, or
if the information provided is incorrect/misleading, or
if the fees demanded is exorbitant
or any other reason.

Then you can approach the First Appellate Authority (FAA) who is the officer higher in rank than PIO. Details about the FAA is available on the website or the office of the same public authority.

If you are not satisfied with the decision of the FAA, you can go file for a second appeal with the Information Commission at the Centre or respective states. The grounds on which this appeal can be made are provided under section 19 of the RTI Act.

Impact of 2019 Amendment Bill

The Right to Information (Amendment) Bill, 2019 was passed by the Parliament in July 2019. It proposes amendments to the term and salary of the Information Commissioners appointed under the Act.

Under the 2005 Act, the Chief Information Commissioners (CIC) and Information Commissioners (IC) were appointed by the State and Central level, for a term of five years. The Amendment Bill removes this provision giving power to the central government to notify the term of the office for both CICs and ICs. The Bill also brings the question of determination of salary, allowances, and other terms and condition of service for both state and central CICs and ICs under the authority of the central government. Further, the bill removes a provision of the 2005 Act which reduced the salary of a CIC or IC to the extent of pension or any other retirement benefit received by the virtue of having served in any government service.

These amendments are feared to compromise the autonomy and independence of information commissioners. They threaten the principle of federalism by vesting control exclusively in the hands of the Centre. It goes against the Supreme Court judgment in Anjali Bharadwaj v. Union of India wherein the court had stated that CICs and ICs shall be appointed on the same terms and conditions applicable to Chief Election Commissioner/Election Commissioner.

Important Judgments

One of the most contentious issue with respect to RTI Act has been the scope of definition of “public authorities.” Some judgments are examined hereunder.

Section 2(h) of the RTI Act states

““public authority” means any authority or body or institution of self- government established or constituted—

by or under the Constitution;
by any other law made by Parliament;
by any other law made by state legislature;
by notification issued or order made by the appropriate Government, and includes any—
1. body owned, controlled or substantially financed;
2. non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government”

Delhi High Court in National Stock Exchange of India Limited v. Central Information Commission stated that the mere establishment of a body under a statute does not by itself render it a public authority for the purposes of RTI Act. In Kribhco v. Ramesh Chandra Bawa, the Court stated the entity’s activities are also important in determining its status as a public authority.

In reference to the second part of the definition, it was held in Indian Olympic Association v. Veeresh Malik it was held that the aim is to bring bodies that may not have been established by or under a notification, but are still substantially financed owned or controlled by the government. In previous judgments such as Professional Assistant for Development Action v. The Jharkhand State Information Commission, it has been held that whether an authority is “substantial funded” must not necessarily be based on a determination of quantum of such funding, though it has been used as a basis in some decisions such as Indian Olympic Association. Benefits received by institutions, such as share capital contribution, subsidies, land allotment etc. were considered substantial funding in Hindu Urban Cooperative Bank Ltd. v State Information Commission. Registered societies, cooperatives, autonomous institutions like sports associations, schools and educational trusts have all been brought under the scope of “public authority” by various High Court decisions on the basis of substantial funding.

Similarly, in the interpretation of Section 8 of the RTI Act, which lists the information exempting from the application of Right to Information, there have been some landmark decisions.

In the case of CBSE v. Aditya Bandopadhyay, Supreme Court held that RTI Act will prevail over the bye-laws of examining bodies in context of all exams. A student had made request for inspection and reevaluation of answer books, which CBSE has rejected on the grounds that this information is exempted under Section 8(1)(e). The Supreme Court held that the examining body is bound to provide access to an examinee unless it is able to prove that it is exempt under the provision.

In the CPIO, Supreme Court of India v. Subhash Chandra Agrawal, the Supreme Court held that it is in public interest that the office of Chief Justice of India comes under “public authority” for the purpose of RTI Act. However, the details such as appointment letter, salary details, gifts, IT returns of an officer working at the Regional Provident Fund office were held to be personal information under Section 8(1)(j) in Girish Ramchandra Deshpande v. Central Information Commission. Similarly, in RK Jain v. Union of India the information related to charges, penalties and sanctions imposed on an employee were considered to be matter which did not have any public interest, so such disseminating such information would be an unwarranted invasion of privacy.

In Canara Bank v. CS Shyam, Supreme Court held that Section 11 which deals with information relating to third parties is not an exemption but a procedural provision. It provides notice to the third party about disclosure of any information relating to them, and even if such a third-party objects, the information can be released in larger public interest.

The process for filing an RTI application has been criticized for being a tad cumbersome, and critics believe that it can be simplified. There also seems to be a situation where a lot of citizens are not aware about this right and the manner to exercise it. Nevertheless, it remains that right to information is a powerful tool available to the common citizen to seek information from public authorities. As seen above, the courts have taken a rather expansive view of what falls under the ambit of public authorities and what is the information that is available under the Act. Effective exercise of the right will bring about more transparency in government functioning and deepen democracy in governance.

08/12/2024 0 comments 31 views

9-Year-Old Dalit Girl Raped and Murdered in Delhi

by Guest Author 08/12/2024

written by Guest Author

Author: Radhika Ghosh

On 1st August 2021, a 9-year-old Delhi girl was found to be allegedly raped, murdered and cremated without her family’s consent. The Delhi Police Crime Branch inspected the spot at the crematorium in Delhi Cantonment.

The incident gained national attention when hundreds of protestors were seen to have gathered and marched holding signs outside the Nangal cremation ground. They demand speedy justice for the minor and death penalty for the accused rapist.

The nine-year-old minor daughter of rag pickers hailing from southwest Delhi went to a crematorium near her house to fetch some drinking water for her father. She never returned. Around 6 pm, her mother was informed that a 55-year-old priest, Radhe Shyam wanted to talk to her. Upon going there, the mother found her daughter lying dead, allegedly all drenched, face paled, wounded all over, and her tongue blue and lips black.

Upon questioning, the priest informed the girl’s mother that the cause of her death was electrocution. When the grief-stricken mother wanted to see her body and inform the police regarding the death, the priest panicked and asked her not to involve the police. He said that the police would take her to the hospital for an autopsy where her organs would be sold off, and a legal case would go on for many years for which the family was not financially equipped. He rather offered money to stay silent on the matter and asked her to go away. The priest and his associates locked the gates of the crematorium thereafter and convincingly cremated the minor’s body despite her mother protesting. The helpless mother could only sight her daughter’s funeral pyre flames ablaze alone from a distance.

Infuriated neighbours and the girl’s father on reaching the spot later, witnessed the priest confess raping the 9-year-old after which the police took the accused to custody. The Delhi district police arrested the priest, Radhey Shyam (55), and three of his associates namely- Kuldeep (63), Laxmi Narain (48) and Saleem (49). Gang-rape, murder and sexual offences have been registered against the four accused men.

Activists, lawyers, politicians have been visiting their homes intending to console the parents and try hard to fast-track the hearing of the case.

Dalit groups have been facing such atrocities all over the country. Especially sexual offences against women and children. It is not uncommon to see them struggle for justice despite strict anti-rape laws in India. Speculating the recent heinous crimes on the Dalit class of the country, social equality and justice has many years to fight before it sees the light of day.

08/12/2024 0 comments 27 views

Devolution of Intestate Transgender’s Property

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

Where there exists a property, inheritance of the same shall always be a pertinent question. An heir is a person who is entitled to receive intestate deceased’s property under the laws in intestacy. Succession can follow only after death of a person. There are two forms of succession – [i] testamentary succession (by will), and [ii] intestate succession (in absence of will). A will is a declaration or a legal instrument which governs the inheritance on occasion of death to the person the deceased desired. In lack of a testament, the devolution of property is governed by the Hindu Succession Act, 1956 for Hindus, Sharia law for Muslims and The Indian Successions Act, 1925 for persons outside the scope of the preceding laws.

The inception of Hindu Succession Act, 1956, in the nascent independent India of 7 years was, and still is entrenched in cis-normativity. Its preamble observes that it governs and codifies succession of property of an intestate Hindu. Use of terms like “male” and “female” gives a nod to acknowledging genital and chromosomal composition and not self-determined gender identity. It wasn’t until recently that daughters were incorporated under Section 6 of the Act to be legal heirs along with sons of the deceased by way of Hindu Succession (Amendment) Act, 2005.

The Sharia law can be harkened to the Holy Quran, Sunna, Ijma, and Qiyas. The Islamic jurisprudence provides an elaborate scheme of devolution of property amongst the successors, and other issues of maintenance. However, the grand narrative essentially reduces to antagonistic behaviour and indifference towards queer persons. Particular mandates forbid crossdressing and sodomy biting away from sexual and gender autonomy.

Additionally, Part V of The Indian Successions Act, 1925 provides a consolidated guide to devolution of intestate succession. The legislation, even though secular, is not gender neutral. The legislation has explicit masculine notions by the way or pronoun “he”. It provides primacy to biological composition, and lineal parentage; something that is seldom seen in the trans community.

None of the governing laws provide any template for property devolution in trans communities. It discounts the factum that, for centuries, trans, intersex and gender queer/non-binary persons have been disenfranchised and driven away by families. NHRC in a study, first of its kind detailed that only 2% of trans persons stay with their parents while the rest are deprived from participating in any form of economic activity or compelled to take low-income adverse jobs causing a societal gender discrimination merging into many domains of the State.

The trans, intersex, and gender queer persons abandoned find home alternatively in a chosen ‘family’ and are initiated into the hijra or aravani community by the senior member/designated mother of the structure – the Guru. The Guru takes the responsibility of the structure and “chelas” and provides emotional support, financial clout and social standing. The Guru ties the house and provides parental guidance to the chelas. This adopted system has been nomenclatured as the Guru-chela pratha/parampara.

The proposition of devolution of property in such a customary practice was contemplated by a single judge bench of Himachal Pradesh High Court in the case of Sweety v. General Public. The appeal arose from a trial court judgement which held succession of intestate deceased trans person, Rajia alia Ratni Nani would be via Hindu Succession Act, 1956 on a prima facie assumption by the name that the deceased was a Hindu. Their Guru averred that she was the only successor of the property left behind since once initiated in the hijra community, the guru is the only person related to the chela, ergo the entitlement. The HC considered the issue of mode of succession of property of a kinnar in absence of a profession of religion. Sweety, the guru of the deceased led documentary evidence that she was the guru; such as, presence of guru’s name in the deceased’s ration card and bank account. The Court signified displeasure and reversed the judgement of the HC holding that succession would occur as per the customs of the guru-chela parampara and held Sweety to be the legal heir of the deceased. While the judgement was laudatory and took cognizance of the NALSA judgement, it had some serious shortcomings and major lacunae.

The first issue is the lack of gender sensitivity in the judgement. One consistency that is noted throughout the judgement is use of the word “eunuch”. There is no reasoning as to why that terminology is used. A eunuch is a castrated male who have historically been a part of the hijra community amongst many others. There was no evidence led on behalf of the deceased and their guru that they were, in fact, castrated. This actively demonstrates the Court’s lack of clarity as to whether it was referring to the deceased’s gender identity or a biological condition, ergo making derogatory assumptions. What had been positively averred was that the deceased and their guru were intersex persons. The Court’s lack of acknowledging gender identities is emblematic of its gender insensitivity and the progress required to be made.

The second issue is that the Court decided the succession of property of an intestate transgender in absence of religion. The glaring concerns the devolution in case of known religion. The Court in the matter had not indulged much into finding the religion of the deceased person. This necessity was further diluted by lack of any response to the notice. The principal argument made by the appellant was that once initiated into the kinner/hijra community, all ties to the external society is severed thereby waiving any religion. Furthermore, there was no evidence led to provide any sort of religious conversion or an initiation ritual. Therefore, it becomes unclear as to why the Court adopted the customary practices guru-chela parampara. Where arguments could be made in favour of such position to preserve indigenous practices of trans, intersex and gender queer practices, there is an obvious intersection with right to religion envisaged in the Constitution.

Adoption of one custom and renunciation of previous custom has not been considered as a question of law by the Courts of India. However, such an issue was considered by the Supreme Court of Nigeria in the case of Adeniyi Oluwo & Ors v. Olabowale Oluwo & Ors where the Court considered whether a person could renounce certain personal law and custom and adopt another and held:

“It follows therefore that by virtue of his change, his personal law changed to the Benin Customary Law; distribution of his estate on intestacy must necessarily be governed by Benin Customary Law. He married Benin women who had children for him; he carried on various business activities in and around Benin City. The change of his status endowed him with the rights and privileges of a Bini indigene and his change in status accords with Benin Customary Law”

This essentially meant that there can be a change of personal customary law by acculturation or assimilation. If the same standards are to be followed for devolution of property of intestate trans, intersex, and gender queer persons, the standard of evidence would be too high given the lack of resources, disenfranchisement and involuntary seclusion/ostracization. However, the burden would still need to be met as to renunciation of religion and ceremonious initiation into the community. Further, it must also be shown whether assimilation into the kinner/hijra community would automatically lead to loss of religion. Further, there are many literatures to support the claim of guru-chela relationship being exploitative, abusive and is contemplated as a form of bonded labour. Thusly, the customary practice isn’t a tenable for the long term.

Need for Gender-Neutral Language in Property Law

Lockean conception of property provides that property is an extension of self. This ipso facto provides a rationale that gender is an important variable in property governance. The property law, as explored above is highly cis and heteronormative. It is submitted that most legislations are entrenched in colonial ideations or predate independence itself. This often has resulted in predominant usage of masculine pronouns and predisposition resulting in disenfranchisement of other gender identities. This usage of gendered generics is a categorical medium of casual sexism; as has been proven by several empirical researches.

There have been several vedic references to the ‘third sex’ which includes a wide spectrum of genders and sexualities providing them with shelter, protection, amenities, provisions of sustenance and incorporation into the dharma. There is no reason that the present legislation must be read in a heteronormative lens excluding many. It was laudably noted by the Madras HC in Sushma v. Police Commissioner of Chennai that the LGBTQIA+ community spend majority of their lives adjusting to a social morality and “have to turn themselves inside out to suit our notions of social morality and tradition”.

This judgment while allotting rights to the trans appellant missed an opportunity of answering issues of a broader ambit, i.e., what happens to the property of a transgender whose religion is known. It can be submitted that incorporation and merging of the trans and gender queer community in Hinduism is emblematic of the fact dharmic tradition and gender have always been intertwined. There are several temples with patron deities for the hijra communities and temples with trans priestesses.

In Shivani Bhat v. State NCT of Delhi, the Delhi High Court declared that “Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals.” It is time these words are effectuated into creating a safer and inclusive legislation and interpretation with a queer lens.

08/12/2024 0 comments 31 views

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What Is RTI?

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Who Is Covered Under The RTI?

What Is the Fee?

Who do I approach to get the information?

How Do I Make The Application?

Can A PIO Refuse Information to An Applicant?

What do I do if I don’t get a response from the PIO?

Impact of 2019 Amendment Bill

Important Judgments

9-Year-Old Dalit Girl Raped and Murdered in Delhi

Devolution of Intestate Transgender’s Property

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