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Indian Judiciary on Rape Cases

by Guest Author 08/12/2024

written by Guest Author

By Pooja Bhattacharjee

Rape has been defined under Section 375 of the IPC (Indian Penal Code, 1860), which states that rape is said to have been committed when a man has sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age. Rape is a form of gender-motivated violence in India. In the case of Sakshi v. UOI, the Supreme Court shed light on the definition of rape and held that only penial and vaginal penetration will be considered as rape within the purview of Section 375 of the IPC, thus narrowing down the scope of sexual intercourse as defined in the IPC. However, in 2012, a bench of justices Swatanter Kumar and Gyan Sudha Misra held that even if there is no penetration, it does not necessarily mean that there is no rape, while upholding the conviction of a man for raping a 11-year-old girl, despite there being no evidence of penetration. (The Hindu)

The Verma Committee had recommended that non penetrative acts against women, like stalking and groping, which are also a violation of woman’s bodily integrity and sexual autonomy, should be termed as sexual assault and be punished as rape. The legislature, however, did not accept the recommendation and retained the offence of ‘outraging the modesty of a woman,’ which is the provision under which all non-penetrative sexual acts continue to be prosecuted under Section 354 of the IPC. (THE WIRE)

To prove that consent was absent, the law’s aim should be to reduce ambiguity and alter definitions to mitigate the historic imbalance of credibility afforded to males but not to females. The most important factor to be determined in a rape is whether the woman consented to the sexual act. The law presumes that the accused is innocent. The burden is on the prosecution- victim to prove beyond reasonable doubt that consent was absent. Under Section 375, ‘willingness to participate in the specific sexual act’ can be conveyed ‘through words, gestures or any form of verbal or non-verbal communication.’ The focus is more often on if these ‘gestures’ occurred and not on what they meant.

Two recent cases shows that the Indian judiciary needs to be more sensitive in dealing with rape cases and not fall back on erstwhile sexist and misogynistic views that have emerged in numerous judgments.

In the Guahati Rape Case, the Gauhati High Court granted bail to Utsav Kadam, a 21-year-old accused of rape on the ground that the he is a talented student and is the state’s ‘future asset.’ The police had arrested the accused, a student of IIT Guwahati on April 3, for allegedly sexually assaulting a female student of the institute on March 28. The bench of Justice Ajit Borthakur in an order passed on 13 August granting bail to Utsav Kadam, observed, “as the investigation in the case is completed and both the victim and the accused are the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who are young in the age group of 19 to 21 years only and further, they are being hailed from two different states, a continuation of detention of the accused in the interest of trial of the case, if charges are framed, may not be necessary”. The order was passed despite the fact that the court noted that there is a clear prima facie case against Kadam.

Last year, it was reported that a Civil Court in the Araria district of Bihar had sent a gang rape survivor to jail on grounds of disrupting court proceedings. Her only crime was having an emotional outburst and a nervous breakdown that emanated from the Court’s request to repeat her trauma over and over again. What seems to be a natural reaction for any rape survivor was misconstrued as ‘contempt of court’. The judiciary’s response to rape cases, specifically, rape survivors seem to fluctuate between insensitive and thoughtless to sexist and misogynistic. (ThePrint 2020)

In India, the class, and caste of the victim are used as means to discredit the victim. The colonizers used caste or class to gauge the reliability of the version of events stated by survivors and this is being continued to date. The rape adjudication cases in India involving a breach of promise to marry are also revealing. In Kunal Mandaliya v. State of Maharashtra.

Justice Mridula Bhatkar observed that an educated woman could not have been deceived, and thus was not raped on the pretext of marriage. The judgement read:

The prosecutrix at the time of filing the complaint was 30 years old and was nearly 25 to 26 years old when the first incident of sexual intercourse took place. Thus, she was aware of the consequences of keeping sexual relations with a man and she was also aware that there may be differences between two persons and they may find each other compatible. The girl was highly educated and also 25 years old. Therefore, the consent cannot be said to have been obtained by fraud.

The court’s comment on consent shows how in the absence of an affirmative standard, a negative standard invalidates the experience of the woman and improperly shifts the responsibility of the assault away from the perpetrator and onto the victim.

Marital rape refers to sexual intercourse with one’s spouse without their consent. Recently, the Chhattisgarh High Court held that sexual intercourse by husband does not amount to rape, even if it’s by force. (Today 2021)

The law, as inhumane as it is, however, is being defended by some eminent jurists who are in favour of leaving the provision untouched in order to protect the ‘Indian family values.’ It is important to acknowledge, however, that those assigned the female sex at birth are not the only survivors of rape in India, often, nonconformity with gender boundaries not only functions as a basis for sex crimes, including rape but also makes it harder for survivors to seek help. Section 375 of the IPC only conceptualizes the perpetrator as male and the victim as female. Its exclusivity in nature leaves out a large section of society who are being violated and are left with no discourse of getting justice.

The status quo burdens victims and exonerates perpetrators of responsibility in sexual interactions. Indian statutes, legal decisions, and commentaries condemning rape primarily focus on it as a crime that lowers a woman’s dignity and scars her reputation, rather than a crime violative of a woman’s selfhood, individuality, or autonomy.

The accounting of traditional notions of what an ‘Indian woman’ is and their defined ‘behaviors’ are, should be discarded. Even though change is visible, an overturning of the current structures will be brought about through a normative reconstruction of our laws and our social rationality only when people realize why the current laws are problematic and ancient and understand why new amendments to these laws are necessary.

It is necessary to take legal recourse if you’ve been abused of sexual harassment or have witnessed someone getting abused. Consecutively, you can register your complaint at the National Commission for Women as investigations by the police will be expedited and monitored.

08/12/2024 0 comments 28 views

The War Against Afghan Women

by Guest Author 08/12/2024

written by Guest Author

By Pooja Bhattacharjee

Afghanistan, which was once a forward-thinking nation with so much potential, has now turned into a living nightmare. After the departure of the US forces from Afghanistan, the Taliban has taken control over most of Afghanistan in the last 1 week. Taliban’s rise to power in the nation means that the progress the nation had made in the last 20 years for democracy, girl’s education, women’s rights, and healthcare will be reversed. People will have to relive the harsh version of Islamic rule which persisted from 1996 to 2001. In the areas of the country where the Taliban have regained control, they have been executing people associated with government agencies, they have been lashing women, and shutting down schools. They have been blowing up hospitals and infrastructure. Many citizens are fleeing the nation, including the President of Afghanistan, Mr. Ashraf Ghani. Most of the countries including the US and UK have closed their embassy in Kabul and are evacuating their citizens.

Amid peace talks and negotiations with Taliban leaders and global outcry over the situation in Afghanistan, the most affected remain women & children. Previously, under the Taliban’s rule between 1996 and 2001, women could not work, girls were not allowed to attend school and women had to cover their faces and be accompanied by a male relative if they wanted to venture out of their homes. What is happening in Afghanistan is unimaginably terrible and this marks the destruction of everything Afghan citizens have tried to rebuild and work tirelessly for. Little girls who were brought up in an environment which nurtured their dreams of freedom and dignity are witnessing their future melting into the abyss in the Taliban regime.

While the United Nations Secretary-General Antonio Guterres urged the Taliban and all other parties to exercise the utmost restraint in order to protect lives and expressed particular concern about the future of women and girls in Afghanistan, the war crime on women is not likely to subside. Mehbooba Seraj, the Founder of Afghan Women’s Network has said, ‘What’s happening in Afghanistan today is going to put this country 200 years back.’

Afghan women working in journalism, healthcare & law enforcements have been killed in waves of attacks by the Taliban in the past few days. In the areas controlled by Taliban, women are being forced out of their jobs. Afghan women are now being told that they cannot leave their homes without a male escort (mahram), they cannot work, study or dress as they want. Although the Taliban officially state that they no longer oppose girl’s education, very few allow girls to attend school post puberty and many minor girls are being sexually enslaved in the pretext of ‘marriage’ to the Taliban militants. Taliban leaders who took control of the provinces of Badakhshan and Takhar issued an order to local religious leaders to provide them with a list of girls over the age of 15 and widows under the age of 45 for marriage with Taliban fighters.

While the whole of Afghanistan is experiencing this catastrophic tragedy, with every city collapsing, the hopes, dreams, and future of the country collapses. What started as a fight against terrorism has now become a fight against basic human rights and at this time of need, there is an urgent need for the world leaders and international bodies to intervene and assure a ceasefire between the parties involved. If quick measures aren’t taken, Afghanistan’s situation will worsen, and all the future generations will have to live in a regressive Taliban regime.

08/12/2024 0 comments 32 views

IPS Nina Singh becomes first woman to get DG Rank in Rajasthan

by Ashmi Sheth 08/12/2024

written by Ashmi Sheth

Ashmi Sheth

1989-batch IPS officer, Nina Singh became the first woman to earn a director general (DG) rank (civil rights and anti-human trafficking) in the state of Rajasthan on Sunday. Originally from Bihar, Patna, Nina Singh was posted as the additional director general (ADG) in the Rajasthan police force. Last year, in October, she had received Ati Utkrisht Seva Medal by the Union Ministry of Home Affairs for professional excellence and thus became the first ADG-level officer from Rajasthan to do so. She has also been awarded the Police Medal in 2005.

Nina Singh has worked as a Joint Director with the Central Bureau of Investigation (CBI), New Delhi, and has worked on various important cases including the PNB scam and Nirav Modi. Nina Singh has also been active in research and has co-authored two research papers with Nobel laureates Abhijit Banerjee and Esther Duflo, based on police reforms and evidence-based policing in the context of Rajasthan. In Rajasthan, she has also headed Jaipur and Ajmer police ranges as Deputy IG and IG respectively. IPS Nina Singh has a degree in Public Administration (MPA) from Harvard University, USA. In this major bureaucratic reshuffle, Rajasthan government transferred 13 IFS officers and promoted two IPS officers. IPS Umesh Mishra ADG (Intelligence) was also promoted to the rank of DG (Intelligence) along with IPS Nina Singh. According to a report, Rajasthan Chief Minister Ashok Gehlot had a major role in promoting IPS officer Nina Singh to the rank of DG (Intelligence). The report further states that Nina Singh’s term at various ranks throughout her career has been without a single glitch even though she has served in volatile and sensitive districts like Ajmer. This step by Gehlot is considered to be a pragmatic move toward woman empowerment and would be marked as a historical feat for Rajasthan Police Force.

08/12/2024 0 comments 27 views

Tribulation Of Innocent Hands

by Guest Author 08/12/2024

written by Guest Author

By Advocate Meenu Padha; Co- Authors – Tavleen Kaur & Vinayak Sonkar

India needs an instant nationwide awareness and campaigns against the child labour to protect and safeguard children from the economic and social consequences which has been faced due to Covid-19 crisis and lockdowns. Although some of us are practicing social distancing and actively working from home in the hope of a much better tomorrow, there are still a large number of children who may be victims of seemingly positive measures. One effect is the increase in the number of child labour. For many children, the Covid-19 crisis means little or no education due to poverty or less means of technology which will ultimately lead them to lag behind their peers. This will prompt a large number of children to stop learning even after we return to “normalcy” post COVID. Many children who are not in school will embroil themselves in child labour. In the two waves of Covid-19 in India, lakhs of men and women, many of whom did not have stable jobs and depended on daily wages, became unemployed or faced low income which had a spiralling effect on their children. Due to lockdown, the schools are unable to run physically and only a few people can access or receive online education. In the first wave of Covid19 in 2020, more than three-fourth of children did not have access to online learning facility and more than half of the children did not have access to any learning materials. The increasing anxiety of parents, shortage of learning material, low income and non-access to online education, all together has led to an increase in child labour.

The epidemic is clearly appearing to be a child rights crisis, which is increasing the risk of child labour, because more families are falling into extreme poverty. As stated by the United Nations Organisation, 160 million of child labour cases have increased to 8.4 million over the consecutive four years and Covid-19 has been a major contributor to this. Children from poor and disadvantaged families in India are now at a greater risk such as dropping out of school and being forced to work. Lakhs of families in emerging and developing countries are employed as daily workers in the informal sector (rickshaw drivers, construction workers, street vendors, workers in small factories, etc.). In particular, they have lost revenue due to the overwhelming effects of the global lockdown and the pandemic. The sharp decline in income means that families cannot afford basic necessities or money for children’s health care or education. In the formal sector as well, factory closures in countless countries have led to massive layoffs and loss of income, with major consequences being faced by lakhs of workers and their families. As adults are at a higher risk of contracting the coronavirus than children, the ultimate pressure is increasing upon children specially in poor families, to take the whole responsibility of family and bridge the gap of basic necessity. Since the production base is still looking for the cheapest labour, children are considered to be a very cheap option for such labours and work to meet their demands. Even before the epidemic, the figures for child labour in India were dismal. According to the Census 2011 statistics, the overall number of child labourers in India between the ages of 5 and 14 is 4.35 million (major workers) and 5.76 million (marginal workers), for a total of 10.11 million. Furthermore, there are 22.87 million teenage labourers in India, bringing the total (in the age bracket of 5-18 years) to about 33 million.

In addition to child labour, there are myriad facets of this problem which both result from child labour and also contribute to it. As per the National Crime Records Bureau, in India, one child disappears every eight minutes. India also has the highest child trafficking cases. Children are sometimes removed from their homes to be purchased and sold in the market. In other situations, youngsters are duped into falling into the hands of traffickers by being offered a job, only to be enslaved upon arrival. There are many children trafficked for a variety of causes, including work, begging, and sexual exploitation. Because of the nature of this crime, it is both difficult to trace these children and also prevent their exploitation effectively due to weak law enforcement. While we have an estimate of the issue, understanding its exact scope, and getting ascertainable numbers is very hard. Though the majority of child trafficking happens within the nation, a considerable number of children are trafficked from Nepal and Bangladesh.

Child trafficking is caused by a variety of factors, the most common of which are poverty, ineffective law enforcement, and a lack of high-quality public education. The traffickers that take advantage of children can be from another area in India, or could even know the child personally. Children who return home after being trafficked are typically shunned by their communities rather than welcomed. Poverty, a lack of education, and the need to financially support their family are some of the core causes of child trafficking in India. India’s unemployment rate is quite high, with the United Nations Development Programme estimating it to be 3.5 percent. Furthermore, there aren’t a lot of income opportunities. When youngsters are given the opportunity to labour, they are more likely to be exploited. Children in poverty are frequently compelled to trade sex in exchange for a place to live or food to eat. Some parents have even been compelled to sell their children to traffickers in order to get out of poverty or pay off debts. Gangs frequently traffic children and compel them to beg on the streets. Contemporary cases of begging can be seen in most of the metropolises. Not only are these children being forced to beg for money, but a significant number of those on the streets have had gang leaders forcefully remove their limbs or even pour acid into their eyes to blind them. Those children who are injured tend to make more money by invoking the empathy of the people, which is why they are often abused in this way. Organ trafficking is also widespread, with traffickers tricking or forcing minors to give up their organs.

As per UNICEF, over 300,000 children under the age of 18 are presently being exploited in more than 30 violent situations throughout the world. While the bulk of child soldiers are aged 15 to 18, some are as young as 7 or 8 years old. A huge number of youngsters are kidnapped and forced to serve as soldiers. Others work as porters, chefs, guards, servants, messengers, and spies. Many of these young soldiers have been sexually assaulted, which frequently results in unplanned pregnancies and sexually transmitted illnesses. Some youngsters have been coerced into carrying out crimes against their families and communities. A lot of children are also made to steal, snatch, kill with a mindset that it is an essential for their living .

Currently, 152 million youngsters, 64 million girls and 88 million boys, labour across the world. This represents nearly one-tenth of all children worldwide. There are about 10 million youngsters in India who are actively engaged in or pursuing employment. Despite considerable attempts done in recent years by the UN, ILO, and individual nations like India, this remains the case. Failure to minimize the number of minors exploited in job circumstances is due to the socio-cultural fabric that allows it to happen and condones the offence, as well as the enormous demand for inexpensive child labour in agricultural, mining, carpet-weaving, garment, brick kiln, and other sectors, as well as the pervasive poverty that continues to be both a cause and a function of child labour.

Selling of minor girls for prostitution is a big subject of concern. These minor girls are syndicated to enormous abuses one cannot even imagine. They are molested, harassed, raped, exploited, stalked, beaten and many more injuries are caused to those small teeny bodies which are sabotaged with cigars, burns, wounds and blood through their legs. While they feel the pain in the earlier years, in later years, girls come to accept it as their fate.

They perceive it as a way of living and consider sexual abuse as a necessary exchange for drugs, food, shelter, protection and other basics of life. Children who are exploited for commercial sex are subjected to child pornography and child prostitution transactions. Commercial sexual exploitation (CSE) of women and children earns around $400 million USD each year in Mumbai alone. According to the Ministry of Women and Child Development (MWCD), there are around three million prostitutes in the nation, with an estimated 40% of them being youngsters, since there is an increasing desire for extremely young girls to be initiated into prostitution according to customer preferences. Sexual exploitation has many serious implications for these youngsters.

Now the main question which comes up every now and then is – Will the government and general public take strong steps to prevent the abuse of the children and stop child labour and child trafficking?

On a national level, human trafficking is expressly prohibited in Article 23 of the Indian Constitution. To combat the issue of child trafficking, the Indian government has also passed further legislation and modified the Indian Penal Code (IPC). The Immoral Traffic (Prevention) Act of 1986 (ITPA) amends the Suppression of Immoral Traffic in Women and Girls Act of 1956. (SITA). Human trafficking for prostitution was deemed illegal by SITA, and legal action was detailed for anybody participating in human trafficking in any capacity. ITPA made laws friendlier towards the victim. ITPA also created a system to rehabilitate victims of trafficking and prevent them from bring trafficked again. In 2013, IPC was amended to create new provisions to address Trafficking in India that is more in accordance with the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Particularly Women and Children. State governments have also been observed taking steps to combat child trafficking by attempting to create systems and regulations at the state level. Non-governmental organisations that strive to solve various parts of this issue fill up any gaps in the execution of plans and regulations.

Although India is regarded as a centre for human trafficking, the Indian government places little emphasis on the issue. Hence the way in which the current legal system operates to address child labour in India can be considered as coming into direct conflict with the trend of independent child migration that is seen across the country. Therefore, legal measures are not enough. Every person needs to understand the gravity of this issue, make themselves aware, and keep their eyes and minds open, to help the government where ever possible in tracking the cases of child labour and preventing it.

08/12/2024 0 comments 25 views

Gender Implications of Pre-Nuptial Agreements

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

The sporadic distribution of persons, identity, culture, language has always been a part of the Indic civilization. This heterogeneity implied a myriad of personal laws; both codified and uncodified. Where such diversity is engrained in the social fabric of India, such diversity could also mean plurality of gendered injustices. Delhi High Court on this note grappled and encouraged the Centre to act on the idea of Uniform Civil Code such that it doesn’t “remain a mere hope”. However, the Courts’ activism is not recent. Kerala HC in Agnes Alias Kunjumol v. Regeena Thomas also highlighted the need for such a legislation for subsistence of marital institution.

The tapestry of Bharat and its consonance with debate of UCC is a stuck gramophone. Where one camp argues for uniformity and homogeneity of personal laws, another camp argues that it would bludgeon religious freedom. However, a fruitful discourse is impossible without a substance of the legislation or a bill to test the veracity of either of those camps. Notwithstanding that, what can be subjected to a litmus test is the Goan Uniform Civil Code which has been lauded by the former Chief Justice of India. The Portuguese Civil Code, 1867 has several peculiarities, gross gendered inequalities, and notions of cis-gendered male heteronormative superiority. To no extent can it be called uniform or civil. Nonetheless, a particular peculiarity that catches attention which is invisible in the Indian jurisprudence of personal laws finds home in the Goan UCC- pre-nuptial agreements.

Pre-nuptial agreements or “Ante-nuptial Conventions” as provided in Section V of the Code are agreements entered into by spouses to stipulate their assets for the purposes of protecting their wealth from the ‘economically inferior’ spouse. The general matrimonial sphere of India finds such agreements as void but may lend an evidentiary status. The Goan UCC contrarily finds such agreements valid as long as they are not in contravention with the Code and are recorded by way of a public deed (Article 1097 of the Code). The ensemble attempts to displace the state law with the contractual terms agreed upon in the event of divorce or dissolution by the death of a spouse. This practice is commonplace in the western legal system. In lieu of such an agreement, there is an obvious waiver of protections ordained by the state laws or customary practices.

The concept of pre-nuptial agreements is not alien to India. One of the first cases recording such a reality was the case of Hamidunnessa Biwi v. Zohiruddin Sheikh, (1890) and Tekait Mon Mohini Jemadai v. Basant Kumar Singh, (1901) where the Courts held agreements were invalid on grounds of public policy. However, there is a contrarian position held in cases like Nawab Khwaja Md. Khan v. Nawab Husaini Begam, (1910) where the Court found such agreements as valid and good in law. Section 40 of the Divorce Act, 1869 which governs the dissolution of Christian marriages requires the Court to look into the existence of any such pre-nuptial agreements. In any case, such validity of the agreement was not accorded to Hindu marriages where marriage isn’t viewed as a contractual relationship, but rather a sacrament. Supreme Court on several occasions has observed that “public policy” does not have an ascertainable form but rather, changes with the change in time. At this juncture, it becomes pertinent if the lens of public policy should change concerning pre-nuptial or post-nuptial agreements.

In the Indian matrimonial context, apart from the predilections of religion, customs, kinship, dowry, and class, the wealth distribution or the wealth gap always favours the man in the relationship putting the female counterpart in the ‘economically inferior’ and precarious position. More often than not, such economic vulnerability of the female counterpart is due to the lack of autonomy in matrimonial relations tinted with patriarchal notions of ‘bread-winners’ and ‘homemakers’ apart from the obvious lack of choices in making life decisions before or after marriage. Institutions of religion or customs do not seem to offer much reprieve either. Kerala HC set such a precedent in Ranjith P.C. v. Asha Nair where it was set that it is reasonable to expect household work and chores from a daughter-in-law.

Given this context parallel to societal import for the importance of marriage, women would always be, evidently, at a more vulnerable position. Since most pre-nuptial agreements are for wealth and asset protection in event of dissolution, they would always be in favour of the ‘economically superior’ spouse. Conventionally, that would be at the expense of the woman. It would always be the husband at a dominant position, given the interpretation to the husband’s position in the family unit; regardless of the financial situation to set the terms of the agreement and forgo the protection of laws and customs set in place. This adversely impacts the social and economic well-being of the woman in the relationship and contributes to financial vulnerability. Furthermore, it would also amplify the magnitude of the unequal distribution on the vectors of gender.

This sense of entitlement can be harkened back to the labour theory of value of Karl Marx. The doctrine simplistically argues that what is created by the labour of the person is to be owned by them due to the input of labour power. This was Marx’s blue-collar notion of work which now cannot be considered sound. What is pertinent herein is the feminist and the moral critique of the proposition which questions the narrow view of what is considered labour, power, and productivity. To analyse this, a divorce case of 1986 in New York can be taken into consideration. A man, who was pursuing his medical studies gets married to a woman in an arranged setting. As a commonly expected practice, the wife was expected to stay at home and take care of the household. While the wife carried out such duties, the husband was able to finish his education and build a successful practice of 14 years. Events occurred which resulted in a divorce. The husband argued that he does not owe anything to his wife considering his practice was built on independent labour power and participation in the market. The Court disagreeing held that the wife contributed value to his practice and thus, had ownership interests in his practice given her participation. The wife’s work was embedded in the successful medical practice. Thusly, she was awarded 40% interest in the medical practice as a divorce settlement.

Devaluation of a woman’s work in the household and entitlement of a man in the family over assets is the oldest, most sexist story of humankind. It is a story sewn so deep into the Indian social fabric that it seems and appears normal. It is the living embodiment of compelled subservience. In a marriage, especially in an Indian context, women are the minority in wealth holding, raising the balance of convenience in favour of men to negotiate and disenfranchise their spouses. Where superficially, it may seem like a move of empowerment, the ground reality screams a different story of exploitation. Sabina Martins, a women’s rights activist observed that “…women across religions being thrown out of their marital homes within months of marriage”. Adjunctively, the waiver of an equitable division of property, or “communion of assets” i.e., equal distribution of property leaves the woman at the mercy of her husband. The Government was recently considering the incorporation of such pre-nuptial agreements into personal laws for women empowerment. Whether such prerogative is right has been answered by the arguments abovementioned. The Courts, as the sole arbiter of truth, with the knowledge of historical injustices and jurisprudence must always consider gender as a variable, especially in the domain of marriage. A supposed reflection that such agreements could offer an ounce of equality is not sufficient cause for reconsideration of “public policy”. The terms of any premarital agreement will always echo the superior bargaining power and resources of the prospective husband.

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

08/12/2024 0 comments 25 views

Boyfriend Kills Girlfriend And Her Family To Avoid Marriage In Madhya Pradesh

by Satakshi Malaviya 08/12/2024

written by Satakshi Malaviya

By Satakshi Malviya

The Rajput boyfriend brutally murdered his Dalit girlfriend and her family to avoid marriage. After 48 days, five half-rotten bodies were recovered from 10 foot deep pit in a field of Nemawar village in Madhya Pradesh’s Dewas district, on 29^th June, 2021. The family members- Rupali Kaste (21 years), her mother Mamta Bai Kaste (45 years), younger sister Divya Kaste (14 years), her cousins Pooja Oswal (15 years) and Pawan Oswal (14 years) had gone missing from their home in Nemawar since 13^th May and two missing complaints were lodged, one by Rupali’s elder sister who lives in Pithampura and other by Pooja’s and Pawan’s mother who lives in Indore.

The Police arrested seven people involved in this case. Rupali’s boyfriend Surendra Chouhan and his accomplices Karan Korku and Rakesh Nimore are on remand and the other four Vivek Tiwari, Virendra Singh Chouhan, Manoj Korku and Rajkumar Kir have been sent to jail. The police informed that Surendra Chouhan with the help of his companions called Rupali and her family members to his field and brutally murdered them by slitting their throat with a rope and buried them in a 10 foot deep pit, covering their bodies with salt and urea. As in the past Surendra has been spotted at Rupali’s home every other day so as to immune himself from any suspicion, he and his accomplices, soon after the murder used Rupali’s phone to send text messages to create an illusion that she and her family members are alive.

The police further informed that Surendra had betrayed Rupali and got engaged with someone else and Rupali was unhappy with this as she wanted to marry him. So, out of revenge she has posted some stuff related to Surendra’s fiancé on social media and this enraged Surendra to kill Rupali and her family and to save his future marriage. The police suspects that the girls were raped before their murder as there were no clothes found on the bodies of Rupali and her sisters.

The Adivasi community is outraged by the incident and is demanding quick justice for Rupali and her family. Loving someone and expecting honesty is not a crime. Rupali had never imagined that her love story would be ended this horribly by her own dear lover. In such events, caste identity of the victim should not be overlooked as even now, ‘Dalit’ women suffer such atrocities and are treated as object of mental and physical pleasure. To top it, if the woman belongs to ‘Dalit’ community or so called ‘lower caste’, getting justice is even more difficult. The upper caste men get involve with Dalit women, take sexual pleasure and make fake promises of marriage. When the women, out of innocence and love, actually ask to marry then these men call them impure dirt that cannot be taken home, threaten them, assault them and even kill them. Had Rupali not been a Dalit, would Surendra have dared to do so?

It took forty eight days to find five people and that too dead; this clearly shows the inefficiency of the present administration. However, the demonstration by outraged Adivasi community – blocking Indore-Betul national highway for hours, raising slogans, marching on roads, demanding to hang the accused, seeking justice – led the case to be moved to fast track court, to ensure quick justice for Rupali and her family, at the behest of M.P.’s Chief Minister Mr. Shivraj Singh Chouhan. Former Chief Minister Kamalnath has demanded CBI enquiry on this case as he suspects that someone acted as a backbone of Surendra Chouhan, which let him to act with such impunity and commit such a gruesome murder of five persons. After sensing the heated temperature of the Adivasi community, authorities demolished the house and shops of the main accused.

Still, majority of the ‘leaders’ of the State are silent on the subject. Why? If they cannot speak up on a gruesome murder like this – isn’t this a signal enough that for them the life of a Dalit woman and her family is way less precious than the votes of the Rajput community in the state? A close scrutiny will reveal that the top leaders of the both the BJP and Congress party are either Rajputs themselves (same caste as the boyfriend) and or heavily reliant on the Rajput community for votes.

A further question is – every time such injustice happens to women, why does the discussion become about the caste-communities for politicians? Shouldn’t the Rajput community itself call for strict action if the offences are proved against the accused? Is this injustice only visible to Adivasi community and not to everyone else?

When will this impunity end? I am enraged and so are many of the women. The change is need for this hour.

08/12/2024 0 comments 21 views

In Conversation with Divija Bhasin, Counselling Pyschologist

by Shivangi Sharma 08/12/2024

written by Shivangi Sharma

With social media taking over the world, we have a myriad of content creators using their platform to raise awareness on various issues including mental health. While there is an influx of unqualified personnel, there are a few legitimate psychologists using social media to educate, bust myths about psychology, normalize the conversation around mental health and also raise their voice against ill-practices within the industry.

One of the most popular such pages in India is @awkwardgoat3 on Instagram, run by Divija Bhasin. Describing herself as your friendly neighborhood therapist, Divija is a psychologist, with an MSc in Clinical Psychology from the University of Bath. She creates fun, light and relatable content on mental health, focusing on overall wellbeing of people. She also actively speaks about unqualified, misinformation pages masquerading as psychological facts, which are absolutely false, misleading and do more harm to the already misunderstood science. The Womb in conversation with Divija, talked about her social media journey as a mental health practitioner, changing perception of people about mental health and the much needed changes in the study of psychology in India.

08/12/2024 0 comments 43 views

Censorship And Cinematograph Act of India – Will The Hammer Stop?

by Guest Author 08/12/2024

written by Guest Author

By Kanika Bhatia

A very hardened rule of any right wing political government lives upto to the hammer analogy. If all you have is a hammer, everything looks like a nail problem. The hammer, every strong armed government possesses is -censorship.

Unless you’re living under a rock, you have heard about the Cinematographer Amendment Bill, 2021. The new draft proposes to amend the Cinematograph Act of 1952 with provisions that will give the Centre “revisionary powers” and enable it to “re-examine” films already cleared by the Central Board of Film Certification (CBFC). It empowers the Centre to revoke a certificate granted to a film by the Central Board of Film Certification (CBFC), if it is found to violate Section 5 B (1) of the Cinematograph Act, 1952, which discourages certifying a film that is “against the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. In layperson terms, it allows the State to revisit certification already guaranteed to a film, truncating its existence. It gives the state absolute control, especially after the abolition of Film Certificate Appellate Tribunal which was the last place of appeal for filmmakers.

Termed as “super censor” by filmmaker Adoor Gopalkrishnan, the proposed draft raised questions and understated fury amongst the film fraternity. Nearly every big wig took to Twitter, leveraging their fellow directors and actors to raise support against it. Of course, like any bill, there are parts of it which either draw no or milder reactions. The draft Bill also includes provisions to penalise film piracy with jail term and fine, and introduce age-based certification. Currently, films are certified into three categories — ‘U’ for unrestricted public exhibition; ‘U/A’ that requires parental guidance for children under 12; and ‘A’ for adult films. The new draft proposes to divide the categories into further age-based groups: U/A 7+, U/A 13+ and U/A 16+. Somehow this age classification mirrors the intent behind the new IT rules announced in February this year: infantilising of the citizenry.

Censorship works on a basic belief system of the state, viz. ‘we know what is best for you’. It’s the state managed form of age old patriarchy, if I may stretch a tad bit. It’s based on the belief that citizens have no premise on how to decide what to consume in data. Anything can stir emotions against the ruling regime (whichever it maybe), and hence censorship remains an ideal way to propagate ‘control’. A very interesting article by LiveMint from 2018, titled “100 years of film censorship in India” discusses how narratives were controlled in different time periods based on different ideologies that were ruling at varied times. Whether it was the British who were vary of nationalistic themes in Indian movies; Amrit Nahata’s ‘Kissa Kursi Ka’ which stirred sensitivity amongst Congress leaders who eventually publicly burnt reels of the same; or modern day Padmavat which made a particular community sore. India is a country where offence taking is synonymous to religious and political ideologies – i.e. if you have one. If you don’t, a right wing form of art might offend some liberals, you can never say. Post emergency, revival of stifled art of that period was hoped for by Janta Party that came to power. However, no such thing happened because censorship is any governments strongest weapon.

However, is democracy really under attack with this proposed bill? Shyam Benegal begs to differ. “If a film is given a certificate, does it mean that it is forever,” he said in an interview. He believes cinema needs to adapt to changing times, and some movies will be redundant when they don’t adhere. The bill also faced criticism as it bypassed a basic law regarding bills. Any bill proposed should offer thirty mandatory days for public consultation. A mere 14 days till July 2nd were offered on the same. This authoritarian discrepancy in basic protocols is also brought into question when consulting the abrupt censorship we have seen since 2014, in nearly every sphere. Recently, Italy removed its 108 year old law on censorship because they believed they have advanced as a society to accept that censorship goes against the basic tenets of Democracy.

Resonating thoughts of the industry at large, an open letter written by 1400 filmmakers, including the likes of Shabana Azmi, Anurag Kashyap, Farhan Akhtar and others, has been addressed to the government demanding a withdrawal of this bill. The fate of the Bill remains in question as of now.

To close, here’s where I think I would leave you. With questions, like any good citizen. What is the end goal and where does it end? Is our citizenry so incapable of self-regulating and deciphering art that State control becomes imperative? For a government that proclaims to be pro-democracy, where does censorship and control on art lie on the scale of zero to masked dictatorship? Will filmmakers bank on International film festivals and OTT platforms to release their work? Is candy floss films the future of India’s large movie bank? And lastly, is it possible, at all, that released and approved cinema ahead of this bill being passed, will gain more renown in India and abroad once it passes the baton of our cultural gatekeepers? Because to quote Federico Fellini, a renowned director from Italy, “Censorship is advertising paid by the government.”

Image Courtesy: Racolblegal

08/12/2024 0 comments 20 views

A person of Pride- Joyita Mondal India’s first transgender Judge

by Guest Author 08/12/2024

written by Guest Author

By Muskan Rani

Achieving a position or being a first in any field would make anyone feel great, but no one sees the hardships faced to be the first.

Today we are talking about Joyita Mondal, a social changemaker, who broke all imposed norms of the society, by becoming India’s first transgender judge in India. Judge Mondal was born in a Hindu family in Kolkata,West Bengal.

She was biologically born with the body of a male, but growing up, she liked to dress like a girl. She had a hard time keeping this secret from everyone.

So she informed her parents that she has got a job in Dinajpur and left kolkata and moved to Siliguri in the year 2009.

In Dinajpur she started living her life the way she wanted to. She started wearing female clothes and started working as a hijra (eunuch) singing, dancing and so on.

On the other side she also started doing social work for the upliftment of her community. In the year of 2010 the National Election Commission added the category of ‘other’ in addition to male and female as gender identification to encourage transgender to register for voter cards.

Judge Mondal became first transgender to get voter card under category of “others” in Dinajpur. In the same year she started studying law.

She helped everyone who faced racial discrimination. Later she became founder of a NGO named “Dinajpur Notun Alo Society ” to help transgender of the same as well as different religions. At present the NGO is serving transgender community with more than 2000 transgender.

In the year of 2012, her NGO got a foreign project to provide legal aid to transgender community. Judge Mondal succeeded in giving legal aid to about 200 transgender. The work of her NGO and Judge Mondal was appreciated by the government. Later in 2015, Dinajpur Notun Alo Society built an old-age shelter house and helped many transgenders to make their Voter IDs.

In the year of 2017 the sub-divisional legal services committee of Islampur, Uttar Dinajpur district in West Bengal appointed her as a Judge.

Now she is serving as a judge but she never left her fight for Transgender community. She says “A handful of us becoming judges, principals won’t bring a change as long as transgenders are working as sex-workers and begging in trains. Individual successes mean nothing. Even if they don’t have much qualification, they can at least be appointed as Group D staff where physical labour is involved. I have not come from Kolkata to Uttar Dinajpur just for my fight. I cannot ignore my community because of whom I have reached this position. I would request the government to first start government jobs for transgenders so that our community gets dignified work. I consider work of coolies, peons or other Group D work as dignified”

Her journey of becoming India’s first transgender judge was not easy but she never gave up. She kept on working for her rights and also for her community. She is a person, we should all br so proud of.

08/12/2024 0 comments 34 views

Shattering the Glass Ceiling in Corporate Workplaces: Six Progressive Policies Every Organisation must Adopt

by Mani Chander 08/12/2024

written by Mani Chander

By Mani Chander

Women aren’t just good for a company’s image. There is overwhelming evidence that enhancing gender diversity and equality at the workplace has a massive upside for any organisation’s growth. However, employers continue to underpay women despite having the same deliverables and educational qualifications as their male counterparts. To this day, few women find place in leadership roles, particularly on boards and in executive positions in companies. Even those who do, earn significantly less than males in the same leadership roles.

In the United States and United Kingdom, women still make up fewer than 30% of board members and 10% of CEOs among the biggest companies. The numbers are much worse in India. An analysis of the annual reports of 1,747 companies listed on the National Stock Exchange showed that the gender pay gap between male and female directors doubled in FY19 from what it was a year ago. It was also found that women executive directors earned 45% less than their male counterparts in the last fiscal year as male CEOs and CXOs took home bigger salary increments. Moreover, salaries of women Executive Directors remained almost stagnant. This persisting lack of recognition and lower pay scales disincentivises women to join the workforce.

So, what must organisations do to bridge the gap?

Conduct Gender Parity Audits

Organisations, at regular intervals, should conduct both pay and diversity audits. Conducting pay audits would help organisations identify where any conscious or subconscious pay gaps exist and bring in policy interventions to taper them. For example, Iceland, the only country that has ever come close to bridging the gender pay gap, has adopted the Equal Pay Standard which requires companies with over 25 employees to have their accounts audited every three years to obtain a government certification. While India may not have any such legislation, this change should be driven by organisations voluntarily. Right from recruiting to promotions and appraisals, diversity audits must also be conducted. Successful ventures such as Accenture, Barclays, Credit Suisse UK and KPMG have all set gender targets, broken down by business segments and functions. Having clearly defined interim targets enables them to continually measure themselves against their goals. Some organisations have even gone so far as to ensure diversity amongst temporary workers. Take Coca-Cola India for instance, which conducts audits to ensure that half of its interns are women. Diversity and inclusion shouldn’t just be the buzzwords that make your business sound good, instead employers must make honest internal assessments to identify the gaps accurately and execute ideas to narrow down the disparities.

Nurture Women in Leadership Roles

Having women in leadership roles can contribute significantly to the growth of an organisation. This makes sense for two reasons: first, women make close to 80 percent of household purchasing decisions, and second, and they account for a projected $18 trillion in spending worldwide. Leading employers have started to recognise that it is not only important to give women a seat at the table, but also nurture their talents. A worldwide study of 22,000 companies concluded that having at least 30 percent of women in the C-suite (a firm’s most senior executives and members of corporate boards) results in adding additional 6 percent to the overall net profit margin. Similarly, a 2020 McKinsey report found that companies which score highest on executive-level gender diversity have a 48 percent likelihood of outperforming industry peers on longer-term value creation of economic-profit margin than those who rank lowest in executive-level gender diversity. Having a woman’s perspective when making business decisions, therefore, is not only necessary but critical for any business.

Enforce Measures to Prevent Workplace Sexual Harassment

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandates companies that have over 10 employees to report the number of sexual harassment cases as well as the steps taken for redressal. However, many companies continue to disregard mandatory compliance of the provisions of the Act and those who “comply” have been found to do the bare minimum. Companies must recognise that timely redressal of workplace sexual harassment is of paramount importance, for non-compliance can lead to massive litigation costs and reputational risks. Research indicates that sexual harassment at workplace has adverse psychological effects on women which often results in distraction and poor performance at work. A pro-active approach towards raising awareness about sexual harassment will not only ensure a safe and enabling environment for women, but also enhance productivity of women at work.

Include Paid Paternity or Parental Leaves

Unfortunately, questions as to whether you are married, have kids or plan to have kids are important considerations for most employers when hiring. It is also for these reasons that women are typically the first casualties when employees are being laid-off. This must change. Organisations should shift their mindset to assessing performance based on achievements and deliverables. Rather than penalising women for choosing to have a family, employers must facilitate them. One effective way of doing this is by adopting paid paternity leave policies so that men can shoulder some caregiving responsibilities that women are often solely burdened with. With a little extra help at home, women’s productivity levels at work could increase substantially, resulting in better economic outcomes for businesses.

Adopt “Blind-screening”

Employers should focus on promoting meritocracy rather than placing reliance on indicators that have little to no correlation on performance and deliverables, such as gender. In an interesting research, women software coders were found to be of higher quality, but only if evaluators did not know their gender. One effective way of doing this is by employing a “blind-screening” strategy when considering candidates at the time of hiring, promotions and appraisals. Efforts should be made to remove any gender-coded language even in job descriptions and during interviews. Besides, the management should actively and periodically engage with hiring managers and HR teams to chalk out formal diversity and inclusion objectives. When HR and recruiters genuinely believe that this is a top priority for the organisation, they are more likely to make deliberate efforts to deliver such outcomes. Encouraging employees involved in hiring and performance reviews to undergo unconscious bias training would also help build a culture of inclusiveness.

Implement Flexible Working Arrangements

One thing the pandemic has changed is the customary perception of productivity being directly proportional to office hours spent. With work from home being tried and tested across most industries, it is not surprising that the productivity of people has in fact gone up. Be it telecommuting, remote working, flexible working hours, condensed work weeks – employers may tailor and adopt these strategies to engage talent and enable more women, particularly mothers and women in their mid-careers, to participate more efficiently. However, employers must ensure that privacy and work-life balance are maintained.

More than anything, women at work deserve equality and neutrality, a seat at the table where decisions are made, a place where the viewpoints they put forth are well-taken without interruption. This is not a big ask, yet after 73 years of independence, the women’s fight for independence continues. Although the legislature has brought in a slew of policies to bridge the gap, a lot more needs to be done. It is time for India Inc. to come out of oblivion and lead the gender diversity and inclusion drive through adoption of progressive internal policies. If this is done, it won’t be long before companies begin to realise that enabling and bringing more women to the workplace is a profitable prospect which is sure to have long-term social and economic benefits.

* Views are personal. This piece is the fourth in the series “Bridge the Gap” presented by The Womb. The author of the series is a Delhi based practicing lawyer who holds a special interest in gender justice. She is also admitted to the New York State Bar and holds a Master’s degree from the University of Virginia School of Law, United States.

08/12/2024 0 comments 24 views

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