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supreme court

Time To Recognize And Monetize The Services Of Homemakers In India

by Guest Author 08/12/2024

written by Guest Author

By Manisha Soni
(Gujarat National Law University)

159.85 million women in India, according to a 2011 census, state “household work” as their primary occupation compared to only 5.9 million men. The same gender disparity in household work is emphasized in a report by the National Statistical Office titled “Time Use in India 2019”. The survey also found that women do 299 minutes of unpaid work per day as opposed to men, who only do 97 minutes.

Economists do not include a housewife’s services while calculating the national income due to the perceived reason that her services cannot be estimated in monetary terms. In the contemporary world of fast pacing technologies and big economies, a man’s worth is defined by the amount of time and effort he dedicates to a corporate job or business. While the sheer amount of time and effort put by a housewife into her work currently has no economic value and in most cases, no societal respect, even though her work generally revolves around taking care of children and in-laws, doing household chores and fulfilling her duties towards the husband.

The demand for monetisation of domestic work by women is not just an issue exclusive to India. Instead, it is an international issue. In 1991 The United Nations Committee on the Elimination of Discrimination against Women adopted General Recommendation No. 17 on the “Measurement and quantification of the unremunerated domestic activities of women and their recognition in the gross national product.” It is relevant to note that this recommendation was adopted through Article 11 of the ‘Convention on the Elimination of All Forms of Discrimination against Women’, of which India is part.

Even though India has failed to adhere to the convention, the apex court of the country has taken steps in the direction of achieving social equality and equity for not just men and women working in the corporate workforce but also for individuals who are more likely to a woman than man, who takes care of the children and elders at home.

Last year Supreme Court recognised the majority of Indian women’s unpaid and underappreciated labour while deciding an insurance claim case of “Kirti v Oriental Insurance Co Ltd Civil Appeal Nos 19-20 of 2021 [Judgment dated 5 January 2021]”,

where the insurance company refused to apply future prospects to the insurer female deceased on the ground of her being a housewife thus not employed while quantifying compensation to be given to her dependents on account of her death in a motor vehicle accident. This is not the first time the apex court has emphasised the economic value of homemakers’ multifarious gratuitous services rendered to the entire family. The Supreme Court has, in multiple cases, reiterated its stand to recognise the monetary value of a housewife’s gratuitous services.

In the case of “Lata Wadhwa v. State of Bihar (2001) 8 SCC 197” the Supreme Court accentuated the problem of not calculating the unprejudiced monetary value of services rendered by housewives for managing the entire family, similarly in the case of “Arun Kumar Agrawal v. National Insurance Co. Ltd., (2010) 9 SCC 218”.

The court opinioned that the gratuitous services rendered by the housewife out of love and care for her family are incomputable. Still, the term “service” here needs to be given an economical value to signify to the society that the law of this land recognises and values the hard work and labour of women. The same pronouncement was followed in another supreme court case, “Rajendra Singh v. National Insurance Co. Ltd., 2020 SCC OnLine SC 521.”

The call for monetisation of homemakers’ work is not limited only to the Supreme Court of India but also in politics of states such as Tamilnadu, where last year, during the elections, Kamal Haasan promised a salary to homemakers as part of his election mandate. Later, the parliamentarian from the opposition Shashi Tharoor appreciated the promise of Kamal Haasan in a tweet. The announcement started a discourse in the media on whether the gratuitous service of homemakers needs to be monetised or not.

Many people supported the view of homemakers being paid a certain amount per month, considering the plethora of activities women do as homemakers in urban areas. At the same time, women in rural areas also engage in work other than household chores, such as farming and tending cattle. But there were people with a dissenting opinion on the same, for they believe that whatever the woman does for her family is a sign of love that has no price tag. The idea of women being paid for domestic work institutionalises and strengthens the notion as men are “Providers.” Although the discussion and discourse on the said issue have not reaped any fruits for homemakers, but it helped to bring the matter to the light and struck a conversation and social consciousness. It signals to society at large that the law and the Courts believe in the value of the services and sacrifices of homemakers. Hopefully, they might as well take a step in the right direction to accomplish equality in the true sense.

08/12/2024 0 comments 19 views

Sexually Provocative Dress: Another essential for Sexual Harassment?

by Guest Author 08/12/2024

written by Guest Author

By Meenu Padha (Advocate and Women and Child Rights Activist) and Lavanya Bhatt (Third-year law student at DME Law School, GGSIPU)

As practitioners/students of law and justice, we are all well aware of Section 354A of the Indian Penal Code (IPC). Even those who are from the non-legal areas of society are aware of the term “sexual harassment”. The basic definition of sexual harassment comes from the United States Equal Employment Opportunity Commission (EEOC): “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”

It makes us both sad and angry at the insensitive approach of the bench of the Hon’ble Kozhikode Sessions Court towards such sensitive issues. The Session Court order passed by Judge S Krishna Kumar held that to draw in the offense under Section 354A, there should be some sort of unwanted sexual gesture. However, in the present case, the photos of the complainant showed her “exposing herself in provocative dresses”. “In order to attract this Section, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be sexually colored remarks. The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one (sic). So Section 354A will not prima facie stand against the accused,” were the exact words of the Bench.

The learned counsel for the victim alleged that Chandran made sexual gestures toward the de facto complainant, who is a young female writer, and attempted to outrage her modesty in a camp meeting at Nandi beach in the Kozhikode locale in February 2020. The Koyilandi police registered the case and charged the offenses under Sections 354A(2) (Sexual Harassment and Punishment), 341(Punishment for Wrongful Restraint), and 354 (Assault of criminal force to a woman with intent to outrage her modesty) of the Indian Penal Code.

This wasn’t the first case where the 74-year old accused was granted bail. Earlier, on August 2, he had obtained anticipatory bail in another sexual harassment case filed against him. The court likewise observed that the dissident is old and physically debilitated and he could never have constrained himself upon the lady. Referring to Section 354, the court additionally observed that it is exceptionally certain that there should be an intention on the part of the accused to outrage the modesty of a woman: “While granting bail to Chandran, the court also expressed disbelief that the 74-year-old physically disabled accused, Chandran, could forcefully put the de facto complainant in his lap and press her breasts.”

The citizens of India, from all genders, have raised their voices, expressing their anger and disappointment with the court for giving out such a judgement. Everyone has the same question for the Bench- “What is a sexually provocative dress?” Time after time, women have to face these atrocities. Article 19 of the Indian Constitution provides the right to each and every citizen to express themselves in whatever way they want. But, after such incidents, all these “Freedoms” seem to be gender-based. Confining women’s freedom and versatility won’t diminish the crimes against them. It will only minimize women further, slant the overall influence further towards men, and debilitate society. Would the victim have anywhere to turn to obtain justice if the courts, which we as citizens consider to be our source of justice, made such biased statements? It has been said numerous times, and we feel the need to say it again- If women’s dressing was the reason, no infant in diaper, no senior-citizen in saree, no un-married girl in a kurta-salwar or a lady in a burqa would have been assaulted. The problem lies solely in the eyes and actions of those people who objectify women and see them as a sexual-being only. In addition, somewhere down all these years, it can be observed that the judgements by some courts and the imprecise laws related to offences against women have also resulted in the increase of these crimes against women. However, as pleasantly as these opinions are phrased, they are regressive. It endeavors to fault women for the sexual assaults against them and to expect that women adjust to a way of life that makes them protected in a male-ruled society. Such retrogressive advances have never worked, and won’t work in the future.

08/12/2024 0 comments 26 views

Ancestral Property and Women

by Guest Author 08/12/2024

written by Guest Author

By Priya Rathi

Behind every ancestral property now stands women with equal rights as men. It is commonly misunderstood that the property is devolved to the son(s) of the family and not the daughter(s). Hindu Undivided Family (HUF) is one such prominent practice to understand inheritance which is created by Hindu, Jains, Sikhs and Buddhists family. The group of individuals must share common roots. According to the Hindu Succession Act 1956, any individual born in Hindu Undivided Family (HUF) becomes a coparcener by birth. Hence both sons and daughters qualify as coparceners in the family and share equal rights and liabilities over the property. To understand this better – Coparcener has a right to demand partition, acquire property upon division, or any such significant right and entitlement is only provided to the Coparceners of the HUF. Earlier, as per Section 6 of the Hindu Succession Act 1956, only male members of the HUF were considered as coparceners and the same status was not given to females. Back then, females were only members in the HUF. The Hindu Succession (Amendment) Act, 2005 effective from September 9, 2005 is designed to ensure that women are treated as equal to men in inheritance rights. After this amendment, daughters are also considered as coparceners. Further are a few more interesting facts about the rights of woman in ancestral property.

Females are Coparceners by birth. This right rules out all the doubts related to the existence of the HUF before or after 2005; whether daughter was married before or after 2005; and demise of the father before or after 2005 etc. The amended law clearly ensures the right of daughters as coparcener in the HUF. In the case of (Vineeta Sharma vs Rakesh Sharma, 2020), the Supreme Court decided that coparcenary is a birth-right. Although the law came explicitly into force in 2005, daughters are legitimately entitled to the same rights as sons in the HUF. For instance, a married daughter is coparcener with equal rights even though married before 2005; daughters are entitled to HUF’s property as son, even if the father died before 2005. Law emphasizes on birth in HUF as a qualifier.

She along with her husband can also create a HUF. It is not that after her marriage, she is parted away from her father’s HUF and becomes part of her husband’s HUF only. Married daughters are entitled to her share after her marriage also. Even if she wants to gift her share in the HUF to any other member, she cannot do so, while she is alive, except by way of a will. In case of her death and when no will was documented, her legal heirs are entitled to the shares and it is not that her share will be distributed amongst other members of the HUF. In case, none of her children are alive at the time of her death, grandchildren can also be granted the share but in no circumstance, can she be deprived of her share.

After the Hindu Succession (Amendment) Act, 2005, it was clear that a woman can be Karta of the HUF as decided in (Mrs. Sujata Sharma vs Shri Manu Gupta & Ors, 2015). The Delhi high court held that female coparcener may become Karta of the family. The eldest coparcener irrespective of the gender is the Karta of the HUF. Karta manages legal and financial affairs of the HUF. Wife is member in the HUF hence she cannot become Karta. Wife can act as a guardian of the minor coparcener after the death of her husband till kids attain the age of majority. A member cannot demand partition of the HUF but this does not deprive the wife from her share. The Hindu Succession Act has to be read for such claim over the share, which defines what property is within disposing capacity of the HUF.

When it comes to distribution of the income of the HUF, the share is equivalently allocated irrespective of age and gender. Daughters are entitled to an equal share. Such allocation is not taxable in the hands of members when taxed in the hands of HUF.

The Supreme court bench of Justices S Abdul Nazeer and Krishna Murari made a significant judgement on January 20, 2022. In Arunchal Gounder (Dead) by LRS. V. Ponnusamy and Ors. (Civil Appeal No. 6659 of 2011), the SC held that the daughters of a male Hindu dying without forming a will would be entitled to the properties of the father. The properties could be self-acquired or received at partition by the father. The daughters will get preference over other collaterals. The judgement dealt with the property rights of women and widows under the Hindu Succession Act and is the latest in the series on inheritance rights of women.

08/12/2024 0 comments 23 views

Marriage, Sex and Consent : The Split Verdict By Delhi High Court In Marital Rape Case

by Avani Bansal 08/12/2024

written by Avani Bansal

By Adv. Avani Bansal

Nothing that is ‘imposed’, survives for too long. Marriage as an institution continues to exist, around the world, because a large majority of people ‘choose’ to opt for it. But it is also true that world over, many people are now questioning the institution of marriage and opting instead to remain life-long companions without the shackles or protection of the law.

In India, while many young men and women are choosing to get married late in their lives and some opting for live-in relationships as well, there is still a large majority of boys and girls, whose families do not leave them with an effective choice as regards marriage. The law steps in aiding this choice by providing an entire ecosystem – a web of laws to ensure protection of the rights of married partners, especially for women.

But the exception for ‘marital rape’ as per Section 375 of the Indian Penal Code (IPC), 1860 creates a logical bind – it excludes non-consensual sexual intercourse between married partners from the definition of rape. The recent split verdict from a division bench of the Delhi High Court in the RIT Foundation v. Union of India case, has once again brought to light an age old debate in India as regards the role of consent and the recognition of the agency of women in marriage. It throws open a bigger question – does allowing for marital rape actually protect the institution of marriage or does it harm it?

While Justice Rajiv Shakdher held that the marital rape exception under Section 375 IPC is violative of Article 14, 15, 19 (1) (a) and 21 of the Constitution and should be struck down; Justice Hari Shankar dissented with him and held that non-consensual sex within marriage cannot be termed as rape.

The fear writ large in Justice Hari Shankar’s legal view that – ‘if non-consensual sex by a husband is classified as ‘rape’, it will affect the very institution of marriage’, needs cross examination. The legal opinion of judges expressed in lengthy judgments need to be deconstructed to see what part of their thinking is visible on the face of it, but what is the underlying fear that a judge may or may not spell, but shapes his thinking on a particular issue – like the hidden part of an iceberg.

This line of reasoning that – marriages are so sacred, that when two people decide to get married, they somehow are signing for a lifetime of sex, and that spouses need not obtain consent, every single time, they are about to engage in a sexual act, is fraught with challenges.

First, it is important to see the role of law in the institution of marriage for what it is i.e. a web of protection for facilitating entry and exit into the institution. Law cannot by itself grant ‘marriage’ some holy veil, that the concept of marriage itself does not have. By allowing for violence in any shape or form, within marriage, by the instrument of law, amounts to over-interference by the law in an institution.

Secondly, the institution of marriage , especially as viewed in India, is a mix of a sacrament and a contract. In India, while there are different personal laws governing marriage, the dominant cultural view is that marriage is not a pure contract. Nor is it an institution to satisfy one’s lust. It is seen as a spiritual union of two people. Therefore allowing for non-consensual and forced sex within marriage tantamounts to eroding away at the very foundation of this spiritual union/institution. So the logic offered by Justice Hari Shankar, that criminalising marital rape will somehow protect the institution of marriage, stands falsified by his own logic. If marriage is a sacred institution – there cannot be any space for violence in it. If you allow for marital rape to be legal – than marriage cannot be held as a sacred institution.

Thirdly, marriage requires two adults who are equal partners. Allowing any room for non-consensual sex, takes away the agency of the woman within the relationship. To think that the husband can impose himself on his own wife, suggests that somehow the wife is less of a woman, less than the whole, than she was before marriage. Such a view of marriage is more likely to dent how the coming generations view marriage. Also, law cannot give or take away any agency from both the partners, even in the name of marriage. Laws are meant to step in when one partner in any way, violates the agency of another partner – not to automatically erode away the agency of the wife, as soon as she decides to get married.

Fourthly, we really need to have an open conversation about how do we view ‘sex’ as a society. Will our laws protect non-consensual sex in any case/situation? Should they? Sex has to be based on the mutual consent of two adults – marriage or no marriage. Marriage is neither for sex nor equivalent to it. Marriage is a promise to take care of the well-being of each other, to be there for each other in thick and thin. How does this even sound logical – “you married me, so you got to have sex with me, every time, I want it, whether or not you want it.” This logic is contrary to everything that’s sacred about marriage.

Fifthly, let us unwrap the concept of ‘Consent’ as it has wide ramifications than just the marital rape debate in India. One question that’s often asked is – “do we need to understand consent based on cultural context?” So, is it logical to say that while in America, a woman saying ‘no’ should be understood as such, in India, somehow, even when a woman is saying ‘no’, it can be understood as ‘yes’? This suggestive argument that somehow – thanks to the cultural context, even a woman’s no is not an actual no, lays the foundation of perpetration of major crimes against women. By treating ‘consent’ as having different shades of grey, we not only reduce the agency of women, but we impliedly attempt to veil the refusal of men to take ‘no’ for an answer by giving a cultural justification for the same.

India is certainly not alone in debating the definition of consent. We are in the midst of a global movement, that’s pushing for a legal framework and universal definition of ‘consent’. The Council Of Europe Convention On Preventing And Combating Violence Against Women And Domestic Violence, better known as the Istanbul Convention adopted in May, 2011, was signed by 45 countries and the European Union. States who have ratified the Convention are required as per Article 36 of the Convention to declare as a crime – “sexual violence, including rape, explicitly covering all engagement in non-consensual acts of a sexual nature with a person.” Similarly in 2019, the Platform of 7 independent United Nations and regional expert mechanisms on violence against women jointly called upon all States and relevant stakeholders worldwide to act against rape as a ‘form of gender based violence and a human rights violation, and, to ensure that the definition of rape is based on the absence of consent, in line with international standards.’

While we now wait to see how the Supreme Court will weigh in on this issue in Appeal, let us hope that India will not be left behind in ensuring that Women remain equal partners and whole individuals in Marriage, Sex and Consent. Clearly, while allowing marital rape to be criminalised, we will be saving the institution of marriage, instead of eroding it, assuming that the institution needs saving at all, which ofcourse is an arguable proposition for another day.

(Avani Bansal is a practicing Advocate in the Supreme Court and can be reached at advocateavanibansal@gmail.com’; Tweet @bansalavani)

First published here :
https://www.outlookindia.com/national/sex-in-marriage-criminalising-marital-rape-will-save-institution-of-marriage-magazine-202759

08/12/2024 0 comments 34 views

Stand of The Supreme Court on Rights of Sex Workers: The Story so far.

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

The Indian sex workers case is making the top headline these days. The recent order dated 19-05-2022 given in the case of Budhadev Karmaskar v. State of West Bengal And Ors., popular as the sex workers case the Hon’ble Apex Court has categorically recognized that the basic protection of human decency and dignity under Article 21 of the Constitution of India extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children. Reliance has been placed on the earlier landmark judgments of the Court to emphasize & expound on the scope of the right to life under Article 21. Notably, this is not the first time when the Indian judiciary has held the dignity of the community of sex workers in its ruling. Two years back the Bombay High Court has held that “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.” A few years back the Delhi High Court also ruled that “simply because the victim worked as a sex worker before the incident in question doesn’t confer any right upon anyone to violate her dignity.”In a significant ruling, the Gujarat High Court has also observed that “Section 370 of the Indian Penal Code will have no application in a case wherein sex workers are engaged in prostitution of their own volition and not according to any inducement, force or coercion.” But the factor that is making the recent Budhadev Karmaskar v. State of West Bengal and Ors. Case super buzzing is the fact that this time the Court has issued significant binding guidelines to ensure that the community is being treated with dignity and not being abused. Further, to understand the depth of the case it is important to know about the history of the case along with some categorical development that has taken place in this case which is summarized right beneath.

BACKGROUND

This case was originally filed as an appeal before the Hon’ble Apex Court against the conviction order given by the Calcutta High Court in a case of the brutal murder of a sex worker living in a red light area in Calcutta in 1999. The factual matrix of the case highlights that the accused battered the head of the deceased again and again in a hideous and barbaric manner leading to putting a period on her breath, thus the Court naturally decided against the accused and the accused chose to file the criminal appeal before the Apex Court. Considering the heinous nature of the alleged crime the Hon’ble Apex Court straightforward dismissed the appeal however it later converted the case into a Public Interest Litigation suo motu by its order dated 14th February 2011 to address the problems of sex workers in the country. In its earlier orders the Bench consisting of Hon’ble Mr Markandey Katju, and Hon’ble Ma’am Gyan Sudha Misra, JJ. equivocally stated that their aim was “to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty”. The Bench observed that: “Sex workers are also human beings and no one has a right to assault or murder them. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution.’

REMARK ON PREVIOUS SIGNIFICANT ORDERS

The Apex Court has passed several orders issuing directions to the Central Government and the State Governments in this case. In its very initial order dated February 2014 the Apex Court directed the Central and the State Governments to prepare schemes for rehabilitation all over the country for prostitutes through Social Welfare Boards along with preparing schemes for giving technical/vocational training to them considering their right to live with dignity under Article 21 of the Constitution of India.

Subsequently, by another order, the Court constituted a panel headed by Mr Pradip Ghosh, Senior Advocate as the Chairman to discuss various aspects of the problems relating to sex workers and submit its report. It also directed the States/Union Territories and the Union of India to carry out surveys to ascertain the number of sex workers who want rehabilitation and who would voluntarily continue in the same profession. The Apex Court categorically stated that “it is important to educate the public to present the situation of sex workers in the country in the correct light, as it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.”

Thereafter the constituted panel identified three core areas for consideration including prevention of trafficking, rehabilitation of sex workers who wish to quit sex work and conditions conducive for sex workers to live with dignity under the provisions of Article 21 of the Constitution of India and submitted various reports time to time. The Panel subsequently gave many suggestions. The emphasise was given to the point that sex workers face great difficulty in getting ration cards, voter’s identity cards or opening bank accounts thus the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others. The Court confirmed that the suggestions made by the Panel shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. On 14.09.2016 a final report along with recommendations of the Committee was placed on record. Meanwhile, also by its various orders the Court emphasized the gravity of the matter and urged the Government to place the draft legislation before the Parliament at the earliest. In the wake of the Covid-19 outbreak that has caused severe disruption in normal life, it was realized that the class of sex workers fall under the list of vulnerable classes being adversely hit by the pandemic. Thus, the Court issued a direction for the supply of dry rescue so that the sex workers who are in dire straits can be rescued. Similarly, by order dated 10.01.2022, the Court had directed the State Governments/Union Territories to complete the process of issuance of ration cards/voter cards to all sex workers expeditiously.

PECULIARITY OF THE RECENT ORDER

By its very recent order, the Court has taken note of the periodical adjournments so taken by the Union of India in laying down a dedicated Bill. Thus, to fulfil the existing gap in the legal framework exercising its particular powers conferred under Article 142 of the Constitution of India the Court has passed six binding directions to be in force till the legislation finally comes up. Notably, the directions so issued relate only to the rehabilitation measures in respect of sex workers and other connected issues. These directions can be summed up as follows:

Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance and proper medico-legal care.
The State Governments were directed to survey all ITPA Protective Homes so that cases of adult women, who are detained against their will, can be reviewed and processed for release in a time-bound manner.
The police and other law enforcement agencies were directed to be sensitised towards the rights of sex workers and were directed to treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
The Press Council of India was directed to issue appropriate guidelines to protect the identities of sex workers, during arrest, raid and rescue operations. Besides, the strict enforcement of newly introduced Section 354C, IPC which makes voyeurism a criminal offence, was directed to be extended against electronic media as well.
Measures that sex workers employ for their health and safety such as the use of condoms, should neither be construed as offences nor seen as evidence of the commission of an offence.
The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, are directed to carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. It was also directed that the sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

Notably, it was directed to the State Governments/ UTs to act in strict compliance with the above recommendations made.

HAS THE APEX COURT RECOGNIZED SEX WORK AS A PROFESSION?

The Apex Court in its recent order has categorically held “that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21. The constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act, 1956”. Now, the controversial question here is whether the use of the term “profession” here implies recognition of sex work as a profession. Notably, the term profession has been used time and again in the earlier order of the Apex Court as well. But this cannot be termed as recognition of sex work as a profession. In this regard, the Court has clarified in one of its orders stating that “this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner.” Reportedly, on this issue, Tripti Tandon, advocate for the Durbar Mahila Samanwaya Committee and Usha Cooperative, which are parties fighting for the rights of sex workers, stated that the order “does not recognise or have the effect of recognising sex work as a ‘profession’”. Here, it needs to be clarified that from one perspective recognition of prostitution as legitimate work reinforces women’s position as subordinate or sexual objects for men. Having said this, one also needs to be mindful of the fact that the judiciary of this Country in a plethora of judgements has affirmed the stand that voluntary sex is not illegal. Thus, no reason exists to regard prostitutes as criminals and maltreat them.

THE WAY AHEAD

Notably, the matter is yet pending before the Hon’ble Apex Court and is listed on 27.07.2022. The Court has strictly directed that the Union of India file its response to the recommendations made by the panel within six weeks. Let us hope that the Government come up with some positive response and the class of sex-worker get dedicated legislation for the protection of their life and dignity super soon. May the current discussion of the law eliminate the moral hypocrisy and class discrimination surrounding the class of sex workers.

08/12/2024 0 comments 24 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

What is the Applicable Law if an Indian Marries a Foreigner : An Analysis

by Guest Author 08/12/2024

written by Guest Author

by Mahak Singhal

What are the laws in India if a foreigner marries an Indian? Does that entitle him to claim permanent residence in India or even a passport?

Special Marriage Act, 1954, [“SMA”] and Foreign Marriage Act, 1969, [“FMA”] govern the foreign marriages in India. Therefore, the client can register the marriage in either one of them.

Indian Laws

Since the legal age for marriage in India for girls is 18 years and for boys, 21 years, the same rule extends to marriage with a foreign national, even though their country’s domestic law may prescribe a higher or lower age for marriage.

According to SMA and FMA there exists a 30-day notice requirement to be given in India if one partner is permanently and the other partner is temporarily residing in India.

Section 5 of FMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the First Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has so resided.

Section 5 of SMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

Procedure

The parties have to provide a notice to the Marriage Officer of the district in which at least one of the parties has resided for a period of not less than thirty days.

The form provided in the second schedule of the Special Marriage Act is to be provided as the notice.

The notice will be published by the marriage officer by affixing it to the place in his office and will keep the original copy of the notice in the Marriage Notice Book. (Sec 6 of SMA)
If a person has an objection to the marriage, he/she is allowed to raise the objection within 30 days from the date of publication of notice by the marriage registrar. (Sec 7 of SMA)
During the court marriage, a declaration is to be signed by the parties along with three witnesses declaring that the parties are doing the marriage with their free consent. (Sec 11 of SMA)
The marriage can be solemnized at any place at a reasonable distance in the Marriage Officer’s district. However, it will not be considered valid unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-“I, (A), take the (B), to be my lawful wife (or husband)”. (Sec 12 of SMA)
After the marriage is solemnized, the Marriage Officer will enter a certificate in a book that is kept by him, called the Marriage certificate Book and the certificate is to be signed by the parties to the marriage and the three witnesses. The certificate is deemed conclusive evidence of marriage being valid in India. (Sec 13 of SMA)
The whole process of registration of marriage has to be completed within 3 months from the date of the notice was served. (Sec 14 of SMA) WHEREAS the time period is 6 months if the marriage is registered under FMA (Sec 16 of FMA). Otherwise, new notice will have to be submitted after the lapse of time.

Citizenship

The Court observed that any person who is married to a citizen of India and has resided in India for the past seven years can make an application for citizenship by registration. Section 5 of the Citizenship Act, 1955 deals with citizenship by registration which allows the central government to register someone as a citizen of India.

Citizenship of India by registration can be acquired by-

A person who is married to a citizen of India and is ordinarily resident of India for seven years before making an application for registration; or
A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.

Alternate – Overseas Citizen of India Cardholder [“OCI Cardholder”]

https://ociservices.gov.in

https://www.mha.gov.in/sites/default/files/OCIBrochure_23072021.pdf

If an Indian citizen or OCI Cardholder has a spouse of foreign origin then that foreign origin spouse can apply for registering as OCI Cardholder (under section 7A of the Citizenship Act, 1955), if the marriage has lasted for two or more years.

Benefits of having an OCI Card –

Grants the permanent residency in India.
A person will not lose his/her citizenship of their home country.
Multiple entry lifelong visa for visiting India for any purpose.
Exemption from registration with Foreigners Regional Registration Officer (FRRO) or Foreigners Registration Officer (FRO) for any length of stay in India.
Registered Overseas Citizen of India Cardholder shall be treated at par with Non-Resident-Indians in the matter of inter-country adoption of Indian children.

https://www.mea.gov.in/images/pdf/oci-faq.pdf

Point 40 in this link states that an Indian Passport cannot be issued to an OCI Cardholder. It is only issued to a citizen of India.

Documents Required for a Marriage under the Act from the Parties:

The notice signed by both parties.
Receipt of fees paid along with the notice.
Date of birth proof of both the parties.
Residential address proof.
Affidavit – one each from both the bride and groom.
A statement affirming that the parties are not related to each other under the prohibited degree of relationships.

Additional Or Alternative Documents Required Only From Foreigners:

Proof of residency and address in India.
A valid passport
Original birth certificate
Visa
Certificate of single status
Letters of no objection through the home country’s embassy regarding the free consent of the parties
Death certificate or divorce papers, if required by the parties

08/12/2024 0 comments 30 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

Medical Termination Of Pregnancy (Amendment) Act, 2021: Progressive But Restrictive

by Guest Author 08/12/2024

written by Guest Author

By Atulendra Rathour

The Medical Termination of Pregnancy (Amendment) Act, 2021 has become operative from the 24^th of September 2021. The amendment alters the parent legislation i.e., Medical Termination of Pregnancy Act, 1971 (MTP Act 1971) which provides a legal framework regarding abortions in India. The amendment increases the gestation limit for abortions by amending Section 3 of the act. The Amendment act further widens the ambit of the legislation by replacing “any married woman or husband” with “any woman or her partner”. This piece of writing is an attempt to draw a parallel between the Amendment act and the restrictive women’s reproductive autonomy.

Abortion in India is a penal offense under Section 312 of the Indian Penal Code, 1860 (IPC, 1860) which provides imprisonment for three years. The MTP Act, 1971 provides with certain exceptions under which a woman can undergo pregnancy termination while escaping liability prescribed in IPC, 1860. With the Amendment Act, the gestation period has increased up to 24 weeks from 20 weeks. The woman can undergo an abortion within this period with the advice of medical practitioners.

The Amendment Act is praiseworthy but still fails to regard woman’s reproductive autonomy. Instead of being a “right-based legislation” the act ends up being a “Doctor centric legislation”. Opinion of Medical Practitioner remains mandatory to undergo abortion as stated in Section 3. This infers that even if a woman wants to undergo an abortion she can’t if Medical Practitioners are of a contravening opinion. Additionally, vulnerable groups such as Sex Workers fall outside the scope of legislation as “Partner” remain a decisive factor, hence restricting their rights.

The amendment seeming progressive fails to regard the precedent set by the landmark Puttaswamy Judgment in which the Hon’ble Supreme Court recognized that the ‘Right not to Procreate’ forms a part of Rights provided under Article 21 of the Constitution. The Hon’ble Supreme Court in Suchitra Shrivastava v. Chandigarh Administration observed, “There is no doubt that a woman’s right to make a reproductive choice is also a dimension of ‘Personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating… there should be no restriction whatsoever on the exercise of reproductive choices such as Woman’s right to refuse participation in sexual activity or alternatively on the insistence on use of contraceptives method.”

Other than this, health infrastructure followed by orthodox society possesses a serious challenge to the provisions of the amendment. India ranks 145 out of 194 countries according to World Health Statistic Report, 2018. NITI Ayog has already informed about the shortage of about 6 lakh Doctors and 20 lakh Nurses. The situation is even more alarming in rural parts; according to Rural Health Statistics Report, there is a shortage of about 80% of Surgeons, Pediatricians, and Physicians, 70% of Obstetricians and Gynecologists. Apart from medical Practitioners, lack of equipment also possesses a serious problem. It would not be surprising to know that India’s Health budget is the fourth lowest in the entire world.

Conclusively, the amendment act is progressive enough to widen the scope of Women’s reproductive autonomy with regards to abortion by increasing the time limit but still, the autonomy of women is not absolute as the Medical Practitioner has a final say about it. On the other hand, poor health infrastructure further remains a serious concern while undergoing an abortion.

08/12/2024 0 comments 36 views

‘Skin-To-Skin Contact Not Necessary To Prove Sexual Assault’ Under POSCO, SC Sets Aside Bombay HC’s Bizarre And Controversial Judgement

by Guest Author 08/12/2024

written by Guest Author

By Neha Bhupathiraju

Case: Attorney General for India v. Satish and Anr

Bench: Bela M. Trivedi. J, Uday Umesh Lalit. J, S Ravindra Bhat. J

The Apex Court set aside a Bombay HC judgement which held in January this year that skin-to-skin contact is necessary to claim sexual assault under the Protection of Children from Sexual Offences 2012 (POSCO). The SC’s latest judgement is trivial to the rights of minors, whose cases of sexual assault are already severely under-reoprted.

The Single Judge Bench at the Bombay HC had to decide whether attempting to remove the salwar and touching the breast of a 12yr old comes within the meaning of sexual assault under Sections 7 and 8 of the POSCO Act. The accused took the minor girl into his house on the pretext of giving her guava, and attempted to remove her clothes and touched her breast. The minor’s mother found her daughter locked inside the accused’s house, and she soon filed an FIR. A witness also heard the minor yell for her mother.

The Bombay HC earlier noted that “...in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’….as such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.” This verdict was heavily criticized, and rightly so, for it tries to instill sexual assault to a box – that you can only be assaulted in one manner, and not in any other.

Senior Advocate Karuna Nundy said that “the judge said that because the sentence was too high, she felt that the crime should be interpreted in such a way that somehow the accused would then get a lower sentence…(in doing so) the judge did violence to the statute and basically made a whole slew of crimes under POCSO legal”. While expressing disappointment, Senior Advocate Rebecca John said “When you use logic that is questionable and when you use language that is highly avoidable, then it has a ripple effect, because it actually gives a message of sorts to society and the subordinate courts, that this is the way you should appreciate evidence……that, to me, is very problematic.” Attorney General Venugopal noted that the judgement set a dangerous precedent, creating a “devastating effect on pending cases before subordinate courts.”

Saying that skin-to-skin contact is necessary to prove sexual assault completely invalidates the minor’s experience. The provision says “whoever touches”, and pressing the breast passes that test. To interpret physical contact as skin-to-skin contact is outside the intent of the law. It also has a devastating impact on minor boys, as the accused can now roam scot free. While the Bombay court held that it amounts to outraging the modesty of a woman, the apprehension that comes from a grown man trying to undress you and touch you with ghastly sexual intent comes nowhere close to that. This analogy is from the same family as somebody trying to define how a sexual assault or rape victim can behave, that there is an ideal behaviour that such victims must adhere to, and if you don’t meet them, then you weren’t probably violated (enough).

Chairperson of the National Commission for Protection of Child Rights, Priyank Kanoongo, had written to the Maharashtra government to appeal the judgement. Soon the SC stayed the Bombay court’s verdict, after hearing separate pleas filed by Attorney General, National Commission for Women and Maharashtra Government.

The SC criticized the Bombay verdict and held that restricting the definitions of such terms would lead to absurd results, also defying the legislative intent of protecting children from sexual offences. It held “...if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” The Court convicted the accused to three years rigorous imprisonment with a fine of INR 500.

Sexual offences amongst children are generally underreported. In majority of the cases, the children’s offenders are known to them: they’re either family, a neighbor or acquaintance. Many might not be able to differentiate between good or bad touch, and even if they do report it to someone, there is a high chance their story is brushed under the rug – only for the child to recover from it years later. The National Crime Record Bureau found that at least 109 children were assaulted everyday when it recorded 1,41, 674 cases in 2018. An alarming study found that every second child is exposed to such abuse, and one amongst five face critical forms of it. The SC’s verdict is a step in the right direction under such dire circumstances.

08/12/2024 0 comments 26 views

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