Legal

By Shikhar Gupta

The central government has recently promulgated the Ordinance to amend the Epidemic Diseases Act, 1897 (“EDA”) to punish those guilty of attacks on doctors and health workers. President gave his assent to the Ordinance on 23^rd April. The said Ordinance was a necessary response considering the daily reports coming about the attacks on doctors and health-care workers including the female health workers who are engaged in COVID-19 related work keeping their lives at risk. The news of an on-duty female doctor being harassed and abused in Hyderabad attracted the attention of the government and a need to make such law was felt. Other than the Disaster Management Act, 2005, EDA is one of the two principal legislations currently used by both the Central and State governments to fight the pandemic.

The Ordinance defines a “health care service personnel” as a person who, while carrying out or her duties in relation to pandemic work, may come in direct contact with affected patients and therefore is at risk of being impacted by such disease. The Ordinance includes any public or clinical health care worker such as a doctor, nurse, paramedical worker and community health worker.

The Ordinance inserts Section 1-A, which defines an “act of violence” against a health care service personnel serving during an epidemic as an act of harassment impacting his or her living or working conditions and preventing him or her from discharging duties.

Another provision, Section 2B is inserted, which says that no person shall indulge in any act of violence against a health care service personnel or cause any damage or loss to any property during an epidemic.

In addition, the Ordinance seeks to punish anyone causing grievous hurt to health-care service personnel with imprisonment for a term that shall not be less than six months, but which may extend up to seven years. The guilty shall also have to pay a fine, which shall not be less than Rs. 1 lakh, but which may extend up to Rs. 5 lakhs.

The Ordinance makes these new offences under the Act cognizable and non-bailable. It also requires that any case registered under these new provisions shall be investigated by a police officer, not below the rank of an Inspector, and that such investigation shall be completed within a period of 30 days from the date of registration of the First Information Report.

The Ordinance makes it mandatory for inquiry or trial of such cases to be held as expeditiously as possible by ensuring day-to-day hearing, so as to complete it within one year, which could be extended by six months only for reasons to be recorded in writing.

The contentious part of the ordinance is Section 3C of the Act, which reverses the presumption of innocence, which is the basis of our criminal jurisprudence, by shifting the burden of proving the innocence on the accused. Section 3D also enables the court to presume intention, motive, knowledge, on the part of the accused to commit the violent act, and the burden lies on the accused to rebut it. It empowers the court to declare a fact to have been proven only when it believes it exists beyond a reasonable doubt, and not merely when its existence is established by a preponderance of probability.

The speed with which the Centre has promulgated the ordinance might have been considered necessary in the light of various attacks which took especially upon the female doctors and health care workers, to  reassure them that the government has taken reports of attacks on them seriously and that those found guilty would not go unpunished merely for want of sufficient legal framework.

However, the Ordinance, insofar as it clothes the government with draconian powers without any accountability during a pandemic may be viewed with concern for its potential to be misused against political opponents or civil rights activists.

The whole text of Ordinance can be downloaded here.

Shikhar Gupta

What is Virginity Testing?

The society has different ways to detect whether a female is a virgin or not. This differentiates “pure” females from “impure” females. This is unfortunately the society we live in where purity of a woman is decided on the basis of whether she had sexual intercourse or not. If a female didn’t have sexual intercourse and is a virgin, then she is worthy of getting respect otherwise she is not considered worthy enough of being respected by the society. The test is mainly done on unmarried females, often without consent or in situations where they are unable to give consent. Countries where it is practiced include Afghanistan, Bangladesh, Egypt, India, Indonesia, Iran, Jordan, Palestine, South Africa, Sri Lanka, Swaziland, Turkey, and Uganda.

This test is done by the doctor when he inserts two fingers into the vagina of the victim. The test helps in determining laxity and the sexual activity of the victim i.e. whether the victim is sexually active or not. This test would help in verifying whether the hymen is broken or not. Insertion of one finger with strain into the vagina shows that the victim is a virgin whereas easy or smooth insertion of two fingers in the vagina shows that the female is habituated to sexual activity.  The reports of these kinds of tests were usually submitted by the doctors to the lawyers who used them as evidence to defend their clients.

Gujarat High Court’s Decision

In the case titled State of Gujarat v. Rameshchandra Ramabhai, delivered on 29 Januray 2020the courtheld this practice as “archaic and outdated”. It was held violative of the right of the victim to privacy, physical and mental integrity and dignity. The Court found the practice to be in direct conflict with the provisions to Section 146 of the Indian Evidence Act, which stipulates that “in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the victim as to her general immoral character.”

The Court did remind the State of its obligations and duties in view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, apart from its statutory and constitutional obligation.

Also the Supreme Court in 2013 had observed in the case of Lilu @ Rajesh v State of Haryana  that the ‘two-finger test’ will violate the woman’s right to privacy and dignity.

A test like the Two-Finger test is yet another inhuman and irrational process that attacks the right to privacy and is a serious blow to the mental, physical and ethical conditions of the victim. The test should be condemned and should be strictly prohibited by enacting amended laws that apply uniformly throughout the country. While the Supreme Court has clearly banned this practice, its implementation remains a challenge. Therefore a law in this regard, providing for strict punishment for anyone who engages in this test is very much required to put an end to this practice.

Shikhar Gupta

The Supreme Court in January this year rolled off the process of deciding on the tricky matter of how various religions in India treat women. A nine-judge bench of the Supreme Court headed by Chief Justice S.A. Bobde gave the directions in a reference made during the Sabarimala review petition, pertaining to the rights of women to worship in religious institutions. It said it will consider issues related to essential religious practices and the interplay between fundamental rights & faith, judicial review and other aspects. A reference is made by a court when there is a reasonable doubt about a question of law.

Bobde J., however, said the bench will not decide anything on the Sabarimala review petition that seeks to overturn the court’s order upholding the rights of women of menstruating age to offer prayers at the Sabarimala temple in Kerala. Instead, the court will deliberate on the larger issues pertaining to the matter.

On 14 November, a five-judge bench had asked a larger bench to examine various religious issues, including women’s entry to Sabarimala temple, mosques and other religious places, and the practice of female genital mutilation in one particular community. The same bench had given a 3:2 split verdict on petitions seeking a review of the apex court’s September 2018 order, which allowed women of all ages to enter the Sabarimala shrine.

The bench while referring the matter to a larger bench, broadly mentioned several questions of law to be examined. Which are related to the interplay between Article 25 & 26 of the Constitution; the need to delineate the expression ‘constitutional morality’ or ‘morality’; whether ‘essential religious practices’ of a denomination or section are protected under Article 26; the extent to which courts can enquire into religious practices; the meaning of the expression ‘public order, morality and health’; and the permissible extent of judicial recognition to public interest litigations in matters calling into question religious practices at the instance of people who do not belong to the particular religious denominations.

The majority verdict had decided to keep the pleas pending seeking a review of its decision regarding the entry of women into Sabarimala, saying restrictions on women in religious places was not restricted to Sabarimala and was prevalent in other religions as well. Therefore, the apex court can’t limit such material question to the issue of Entry of women into Sabarimala temple only but its ambit should be increased to the similar questions in other religions as well. Whether the Supreme Court has the power under ‘Review Jurisdiction’ to allow for a discussion on this broader question of religious practices against women is yet a debatable proposition.

Shikhar Gupta

“Each time a woman stands up for herself, she stands up for all women”- Maya Angelou

Nirbhaya’s mother said with glittering pride and tears in her eyes “Today’s dawn will be new dawn for the daughters of India, as my daughter gets justice today”. This case needs no introduction. The biggest fight India has ever seen for delivering justice to rape victims. The four rapists and killers of Nirbhaya were hanged at the Tihar Jail, New Delhi.

Nirbhaya’s mother Asha Devi was surely on upfront every single day running from one court to another. She wanted justice for Nirbhaya from day one. But there was this another woman who fought as a true warrior to get the justice delivered. Media stories did not appreciate her selfless fight. This article is an ode to a brave, courageous woman Seema Kushwaha (Nirbhaya’s lawyer), the iron lady who fought a painful fight of 7 long years.

On December 16, 2012 a paramedical student aged 23 was gang raped and mercilessly left to die in a bus. The incident shook the country badly and turned into protests demanding justice for the girl who fought heroically for her last breath. Seema was pursuing her post graduation and training in lower courts when the incident happened. She aspired to be an IAS officer and stayed in a hostel in Mukherjee Nagar. She witnessed how worried parents called back other girls of the hostel after the incident. She too participated in the protests held outside Rashtrapati Bhawan in a hope that justice would be delivered soon and kept a close watch on the case. But such is the delayed justice delivering system of our country, the convicts used the loopholes of the system to delay justice.

After completing her graduation in 2014, she became Asha Devi’s lawyer. With zero experience of fighting cases, she went on fighting from trial court hearings to mercy petitions before the President. The case took various painful turns. There were times during the struggle when things didn’t work for her but she hanged on her nerves, learned and moved on. Her fight was not against a crime or justice, but to change the mindset that exploits the vulnerable and less powerful mass of the community. With strong belief and faith in law, she maintained a dignified silence while A.P. Singh (convict’s lawyer) was making remarks questioning the character of the deceased.

There came hundreds of failures in her way but none could stop her resilience, integrity and empathy. The pre dawn execution of the convicts highlights her courage to break free from personal motives and economic security. It’s because of her that Nirbhaya could finally find her peace. She is presently working with Nirbhaya Jyoti Trust, an NGO that helps women who have been oppressed and left out due to domestic violence providing them with shelter and legal assistance. She continues to struggle for voices that are unheard, fighting for the victims and serves as an inspiration for others to follow.

Shikhar Gupta

Until the Hindu Succession amendment Act, 2005 was brought, the property rights of sons and daughters were different. While sons had complete right over their father’s property if he dies intestate, daughters enjoyed this right only till they got married. After marriage, a daughter was supposed to become part of her husband’s family. Under the Hindu succession law, a Hindu Undivided Family (HUF) is a group comprising more than one person, all lineal descendants of a common ancestor. A HUF can be formed by people of Hindu, Jain, Sikh or Buddhist faith.

Following are the rights that married daughters now have in their fathers’ properties as per Hindu Succession Act, 2005:

Daughters’ Rights In Hindu Succession Act, 2005

Earlier, once a daughter was married, she ceased to be part of her father’s HUF. Many saw this as curtailing women’s property rights. But in 2005, the Hindu Succession Act, 1956, which governs the succession of property among Hindus, was amended. According to the Amendment Act, every daughter, whether married or unmarried, is considered a member of her father’s HUF and can even be appointed as ‘karta’ (who manages) of his HUF property.

According to the ruling, the previous position was that a daughter could avail the benefits granted by the amendment only if her father passed away after September 9, 2005 and the daughter was eligible to be a co-sharer only if the father and the daughter were alive on September 9, 2005. However, on February 2, 2018, Supreme Court made a general rule that a daughter, living or dead, on the date of amendment will be entitled to share in father’s property, thus making her children eligible to claim this right.

Equal Right To Be Coparceners

A coparcenary comprises the eldest member and three generations of a family. It could earlier comprise, for instance, a son, a father, a grandfather, and a great grandfather. Now, women of the family can also be a coparcener.

• Under the coparcenary, the coparceners acquire a right over the coparcenary property by birth. The coparceners’ interest and share in the property keep on fluctuating on the basis of the number of members according to the birth and death of the members in the coparcenary.
• Both ancestral and self-acquired property can be a coparcenary property. While in case of ancestral property, it is equally shared by all members of the coparcenary, in case of self-acquired, the person is free to manage the property according to his own will.
• A member of the coparcenary can also sell his or her share in the coparcenary to a third party. However, such a sale is subject to the Right of Pre-emption of the remaining members of the coparcenary. The remaining members, however, have the “right of first refusal” over the property, to stop the entry of an outsider.
• A coparcener (not any member) can file a suit demanding partition of the coparcenary property but not a member. Thus, the daughter, as a coparcener, can now demand the partition of her father’s property

Shikhar Gupta

In September, 2018, a five-judge bench of the Supreme Court of India (“Supreme Court“) struck down another colonial law, Section 497 of the Indian Penal Code (“IPC”) that prescribed a maximum imprisonment of five years to men for adultery.

Unlike India’s other sexual assault laws, which are linked with consent of the woman, the 158-year-old adultery law did not consider the woman’s will. Though women couldn’t be punished under the provision, a husband could prosecute the man who had any kind of sexual relations with his wife, even if the wife was a voluntary participant in the act.

Joseph Shine, a 41-year-old Indian person living in Italy, petitioned the Supreme Court to strike down the law. His argument was that it discriminated against men by only holding them liable for extra-marital relationships, while treating women like objects. All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional. The Court however clarified that adultery will be a ground for divorce.

Dipak Misra, the then CJI said that “It’s time to say that husband is not the master of wife. Women should be treated with equality along with men“. Justice Nariman who wrote a separate judgment to concur with the judgments of Justice Misra and Justice Khanwilkar, stated that Section 497 was an archaic provision which had lost its rationale. “Ancient notion of man being the perpetrator and woman being victim of adultery no longer holds good“, observed Justice Nariman. Justice Chandrachud in his separate but concurring opinion said that Section 497 was destructive to woman’s dignity and also emphasized that “Respect for sexual autonomy must be emphasized“. “Section 497 perpetrates subordinate nature of woman in a marriage“, were his concluding remarks. Justice Indu Malhotra noted in her judgement that the Section institutionalized discrimination.

This was the second colonial-era law struck down by the Supreme Court after it struck down the 157-year-old law which criminalized sexual relations between homosexuals under section 377 of the Indian Penal Code. This shows that the approach of the apex court of the country is towards equality and personal liberty for all genders. The judgment however was applauded by the majority of Indians, some criticized it on the ground that it shall severely harm the institution of marriage. The arguments of the opposing side is that by this judgment the Supreme Court is actually promoting people to go and have sexual relationships outside their marriages which shall destroy the institution of marriage which is a crucial pillar of Indian culture. However, Chandrachud J. in his judgment has expressly addressed this concern and said that a balanced approach towards personal liberty and the importance of institution of marriage has been taken. And while it is important to save the institution of marriage, it is equally important to protect the personal liberty of the citizens.

Shikhar Gupta

“Today, when looking up, doesn’t it seem like the sky is the limit” says a woman Army officer, a Lieutenant Colonel in her early 40s.

Justice D.Y. Chandrachud on 17 February 2020, dismissed the Union Government’s submissions that women are physiologically weaker than men as a “sex stereotype” and declared that Short Service Commission (SSC) women officers are eligible for permanent commission and command posts in the Army irrespective of their years of service.

BACKGROUND

The induction of women officers in the Army started in 1992. They were commissioned for a period of five years in some selected streams such as Army Education Corps, Corps of Signals, Intelligence Corps, and Corps of Engineers. Recruits under the Women Special Entry Scheme (WSES) had a shorter training period than their male counterparts who were commissioned under the Short Service Commission (SSC) scheme.

In 2006, the WSES was replaced with the SSC, which was extended to women officers. They were commissioned for a period of 10 years, extendable up to 14 years. Serving WSES officers had option to move to the new SSC scheme, or to continue under the erstwhile WSES. While male SSC officers could opt for permanent commission at the end of 10 years of service, this option was not available to women officers. They were kept out of any command appointment, and could not qualify for government pension, that starts only after 20 years of service as an officer. The first batch of women officers under the new scheme entered the Army in 2008.

LEGAL BATTLE

2003- PIL was filed before the Delhi High Court for grant of permanent commission (PC) to women SSC officers in the Army.

2006- Another writ petition was filed by Major Leena Gurav, to challenge the terms and conditions of service and to seek PC for women officers.

2008- Defence Ministry passed an order saying PC would be granted prospectively to SSC women officers in the Judge Advocate General (JAG) department and the Army Education Corps (AEC).

2010- Delhi High Court collectively heard the challenges and said Women officers of the Air Force and Army on SSC would be entitled to PC at par with male SSC officers. However, this benefit was only available to women officers in service who had instituted proceedings before the High Court, and had retired during the pendency of the writ petitions.

The government challenged the order in the Supreme Court. Defence Ministry did not implement those directions. While the proceedings were on, the government passed an order in February 2019 for the grant of PC to SSC women officers in eight streams of the Army, in addition to the JAG and AEC, which had been opened up in 2008. But they would not be offered any command appointments, and would serve only in staff posts.

SUPREME COURT’S VIEW

The apex court in [The Secretary, Ministry of Defence v. Babita Puniya & Ors.] rejected these arguments, saying they are “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women”. It has also said that it only shows the need “to emphasis the need for change in mindsets to bring about true equality in the Army”.

The SC has done away with all discrimination on the basis of years of service for grant of PC in 10 streams of combat support arms and services, bringing them on a par with male officers. It has also removed the restriction of women officers only being allowed to serve in staff appointments, which is the most significant and far-reaching aspect of the judgment.

EFFECT OF THE JUDGMENT

With this approval of the Apex Court, women officers will now be eligible to tenant all the command appointments, at par with male officers, which would open avenues for further promotions to higher ranks for them. If women officers had served only in staff, they would not have gone beyond the rank of Colonel.

It also means that in junior ranks and career courses, women officers would be attending the same training courses and tenanting critical appointments, which are necessary for higher promotions.