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

by Guest Author 08/12/2024

written by Guest Author

By Meenu Padha and Aastha Sharma

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

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

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

What Amounts To Sexual Harassment?

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

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

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

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

What Constitutes To Be A Workplace?

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

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

It is a place where there is –

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

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

Punishment And Compensation

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

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

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

Amendment In The POSH Act, 2019

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

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

Cases After Bhanwari Devi Case

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

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

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

Conclusion

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

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

08/12/2024 0 comments 29 views

Gender Gap In Judiciary

by Avani Bansal 08/12/2024

written by Avani Bansal

By Avani Bansal & Radhika Ghosh

Introduction: An Intriguing Conversation

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

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

Let’s Look At The Numbers

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

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

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

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

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

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

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

And What About Trans Women, Dalit And Adivasi Women?

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

So What Explains Such A Gender Gap In Judiciary?

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

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

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

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

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

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

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

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

First Published here:

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

08/12/2024 0 comments 34 views

In Conversation with Ms. Prachi Mehta, Founder TAG – The ADR Group

by Avani Bansal 08/12/2024

written by Avani Bansal

The Womb Team spoke to Ms. Prachi Mehta, who is an internationally accredited Mediator and is the Founder of TAG – the ADR Group, a venture which provides mediation services to clients. Prachi started her career 15 years ago in New York ad a lawyer and became a dispute resolution expert. After graduating from St. Stephen’s College, Delhi she studied law from University of Delhi and the New York University. She is certified by Harvard Law School for mediating complex disputes. She has also worked as a visiting Researcher at the Stanford Law School to research and develop mechanisms for Indian industries and companies to effectively use mediation for resolution of disputes. Ms. Avani Bansal spoke to Ms. Prachi Mehta about her experiences with Mediation, how couples involved in family matters can approach Mediation before court based litigation. She also spoke to her about Prachi’s career trajectory and interesting experiences she had along the way. Join us for this riveting conversation. Do subscribe to our channel for more videos.

08/12/2024 0 comments 26 views

Abortion Law in India: Not Quite There Yet

by Mani Chander 08/12/2024

written by Mani Chander

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

Mani Chander

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_______

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

08/12/2024 0 comments 24 views

Three Woman Judges Elevated to the Supreme Court!

by Guest Author 08/12/2024

written by Guest Author

By Neha Bhupathiraju

President Ram Nath Kovind has cleared nine names for alleviation to the Supreme Court recommended by the collegium, including three women judges:

Justice Hima Kohli, Chief Justice of Telangana High Court
Justice B.V Nagarathna, Judge, Karnataka High Court
Justice Bela Trivedi, Judge, Gujarat High Court

This is refreshing, because the judiciary has long been criticized for lack of representation. At present, Justice Indira Banerjee is the lone serving woman judge at the Apex Court set to retire in 2022, and she is among the 8 women judges who have served there since 1989. It is also for the first time in history that we’re witnessing three woman judges appointed at the sametime. India has never seen a woman chair the Chief Justice of India.

Justice Hima Kohli is the first woman Chief Justice of the Telangana HC. She was a Delhi HC judge before her appointment to Telangana. She began her practice at Delhi in 1984. She has made stellar progress in her 7 month office at Telangana HC.

Justice B.V Nagarathna began her practice in 1987. She was appointed as an Additional Judge at Karnataka HC in 2008 and as a permanent judge in 2010. Justice Nagarathna might also become the first Chief Justice of India in 2027.

Justice Bela Trivedi was elevated as an Additional Judge at the Gujarat HC in 2011. She was also transferred to Rajasthan HC and received a permanent Judge status at Gujarat HC in 2016.

Why does it matter?

The world has long been androcentric, and it has not left any stone untouched – whether it is how we understand rights and morality or issues of policy, an androcentric worldview can only be challenged by someone who does not belong to it. Women and queer persons have a hard time navigating the justice system, whether they’re a complainant or a practicing advocate. Minority representation at an office like judiciary opens several avenues for those who need judicial intervention to live a safe and secure life. They bring fresh and crucial perspectives to the table that would’ve otherwise been ignored if it weren’t for their seat at the table. It is not unknown that several laws, including language of the law, are based on incorrect notions of gender and/or sexuality. Appointments like these challenge just that. A seat at the table is the fuel for a better tomorrow. But we have a long way to go.

Out of 1079 judges at the HCs, only 82 are women. The Collegium is also known to prioritize geographical diversity over ethnic/gender/caste/other minorities and it doesn’t bode well for future appointments either. The situation at lower judiciary is however slightly better, with a 36% women representation between 2007- 2017 in 17 states.

08/12/2024 0 comments 23 views

Right to Information – An Overview

by Guest Author 08/12/2024

written by Guest Author

By Mehreen Mander

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

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

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

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

How to exercise the right to information?

What Is RTI?

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

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

Who can ask for the information under RTI?

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

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

Who Is Covered Under The RTI?

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

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

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

What Is the Fee?

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

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

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

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

Who do I approach to get the information?

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

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

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

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

How Do I Make The Application?

You can make the application online or offline.

Offline procedure:

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

The following things must be adhered to

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

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

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

The following things need to be mentioned: –

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

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

Online procedure:

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

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

Can A PIO Refuse Information to An Applicant?

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

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

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

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

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

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

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

Impact of 2019 Amendment Bill

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

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

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

Important Judgments

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

Section 2(h) of the RTI Act states

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

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

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

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

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

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

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

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

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

08/12/2024 0 comments 31 views

SC allows Women candidates to appear before the NDA exam

by Guest Author 08/12/2024

written by Guest Author

By Neha Bhupathiraju

Case: Kush Kalra v. Union of India

Bench: Justice Kishan Kaul and Justice Hrishikesh Roy

The Supreme Court removed the bar for women to appear before the NDA exam scheduled on September 5. The Court passed an interim order in Kush Kalra v. Union of India pending before the Court since earlier this year, and pointed out that the admission into the Army would however be subject to the decision in the petition.

This petition was filed on the grounds of violation of fundamental rights protected by Articles 14, 15 and 16 by denying women an opportunity to be eligible for the National Defence Academy. The only ground for the ineligibility is the sex of the applicant without any reasonable justification.

Justices Kishan Kaul and Hrishikesh Roy slammed the Army for its decision to exclude women from the exam, despite the Court’s ruling in Babita Puniya last year, which allowed women to be eligible for Permanent Commission just like their male counterparts. Justice Kaul pointed out “Why are you continuing in this direction? Even after Justice Chandrachud’s judgment expanding the horizons and extending Permanent Commission in the Army to women? This is unfounded now! We are finding it absurd!….Will the Army only act when a judicial order is passed? Not otherwise? We will do that if that is what you want! This has been my impression right from the High Court that till a judgment is passed, the Army doesn’t believe in doing anything voluntarily!’

When ASG Aishwarya Bhati appearing for the Government submitted that it is a policy decision, the Court said “The policy decision is based on gender discrimination. We direct the Respondents to take a constructive view of the matter in view of judgment of this court (Babita Puniya)”. The Court also expressed discontentment for compelling judicial intervention time and again.

Babita Puniya i.e The Permanent Commission Case

In 2008, the Ministry of Defence authorized Permanent Commissions (PCs) for women but only in selective and prospective cases, which was not the case for their male colleagues. In a verdict dated 2010, the Delhi High Court allowed PCs to women on par with men, which was challenged in the Supreme Court. The submissions made by the Government at the Apex Court were based on deeply sexist notions. It argued “…to take into account the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care.”

Justice Chandrachud noted that, “Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas”.

While the judgement allowed women to be equally eligible for PCs, financial incentives, pension etc, the reality post the verdict is disappointing. Data revealed that only 45% were commissioned out of eligible 75% – whereas 90% male officers were commissioned. Further, women are subjected to blanket policies unlike their male counterparts. Women, including those above 40, must pass the The SHAPE-1 category demand, passing the Battle Physical Efficiency Test (BPET), and undertaking an AE (Adequately Exercised) tenure for a minimum of two years. When Challenged before the Supreme Court, the Army contended that women are seeking special treatment and it will threaten the nation’s security. ‘This raises pertinent questions — are all men who have PCs but are not currently in SHAPE-1 category undermining the nation’s security? It is worth debating how or to what extent women would undermine national security, considering they are still not allowed to take up combat roles.’

All hope however is not lost. There is a massive shift in the way these institutions perceive women. Women’s entry into the armed forces began in 1992, and it has evolved since. The judiciary appears to be a beacon of hope in this case.

08/12/2024 0 comments 21 views

Kerala HC Declares Marital Rape as a Ground for Divorce

by Guest Author 08/12/2024

written by Guest Author

Mehreen Mander

Last week, a Division Bench of the Kerala High Court in Mat. Appeal No. 151 of 2015 held that marital rape is a good ground to claim divorce. The Bench comprising Justice Muhamed Mustaque and Justice Kauser Edappagath dismissed a set of appeals filed by the husband challenging the decision of the Family Court, recognizing that “a husband’s licentious disposition disregarding the autonomy of the wife is marital rape” which amounts as physical and mental cruelty. The appeals were preferred by the husband seeking against a judgment of the Family court granting a divorce on grounds of cruelty. The husband’s petition seeking restitution of conjugal rights had also been dismissed.

Facts

The facts of the case were as follows: The appellant-husband upon failure of a business started subjecting the wife to constant harassment demanding money from her family, and on various occasions the father of the wife has given him approximately 77 lakhs. Further, the respondent had been subjected to physical harassment and sexual perversion. The appellant husband has committed forceful sex on numerous occasions – when she was sick and bedridden, when his mother expired and even in front of their daughter. She had also been subjected to unnatural sex against her will. Further, the husband was in an illicit relationship with the caretaker of the apartment. The family court had granted divorce on grounds of mental and physical cruelty.

Observations of the Court

The Division Bench while rendering its judgment observed that “sex in married life must reflect the intimacy of the spouse”, and in the present case, the sexual perversions the respondent was subject to was in disregard of her wishes and feelings. Further, the Division Bench observed that marital rape is premised on the patriarchal notion of the husband that the wife of the body owes to him. Such a notion, has no place in a modern social jurisprudence which insists on treating the spouses in marriage as equal partners.

The court recognized that “marital privacy” is connected to individual autonomy and any intrusion into this space would diminish this privacy. That a violation of bodily integrity is a violation of individual autonomy, which is protected as a fundamental right. Thus, the court recognized that “treating wife’s body as something owing to husband and committing sexual act against her will” is marital rape which is to be construed as an invasion of marital privacy. The Bench acknowledged that while marital rape is not criminalized in the Indian penal jurisprudence, that by itself does not deter the court from recognizing it as a ground for divorce. Marital rape essentially constitutes physical and mental cruelty, which is a ground for divorce under section 13(1)(i-a) of Hindu Marriage Act,1955 and Section 27 (1) (d) of Special Marriage Act, 1954.

Thus, the appeal was dismissed.

The Position of Law on Marital Rape

The Indian state is one among only 36 countries that refuse to bring marital rape under the purview of penal consequences. Section 375 of the Indian Penal Code, 1860 that defines rape categorically excludes instances of sexual intercourse by a husband with his wife who is aged above 15 years. The age of consent was later raised to eighteen years by the Criminal Amendment Act of 2013. The Supreme Court in Independent Thought v. Union of India also held that a girl child below 18 years of age was incapable of giving consent for sexual intercourse. The courts have however refrained from getting into the question of illegality of marital rape. This implies that adult wives can still be legally raped by their husbands under the current penal law in India.

The Justice Verma Committee set up in the aftermath of the 2012 Nirbhaya case recommended criminalization of marital rape. In 2017, a parliamentary panel set up to consider the Committee’s recommendations observed that criminalizing marital rape would bring the entire family system under great stress. Thus, it has refused to remove the exception in Section 375 which allows the husband to legally rape his major wife. The government has repeatedly insisted the sacrosanct nature of the institution of marriage to justify the exception.

It is pertinent to juxtapose such conceptions of marriage against cases where rapists are asked to marry rape survivors. Recently, while hearing a case against Mohit Subhash Chavan, a public servant who was accused to repeatedly raping a minor girl was asked by former Chief Justice of India SA Bobde if he intended to marry her. This is not an isolated instance. Rapists often marry the survivors to escape penal consequences under the persuasion of village elders or relatives. Judges too are persuaded by the arguments of stigma and honor. In some cases, rapists have deserted the survivor after marriage.

The apex court in judgments like Lillu Rajesh and others v State of Haryana has observed that a women’s supreme honor is “her dignity, honour, reputation and chastity.” That this supreme honor is defiled and degraded by the act of rape and thus renders the victim helpless and unmarriageable, is repeated in many judgments such as Deepak Gulati v. State of Haryana. Courts routinely advise marriage between the rapist and the survivor as a compromise – to save the woman from the resultant stigma and social rejection, and the man from punishment, especially in those cases where the victim has become pregnant.

Conclusion

It is very telling about the Indian jurisprudence that considers marital rape is essential to preserve the sanctity of the institution of marriage on one hand, and makes the rape survivor marry her rapist on the other. The jurisprudence at some level recognizes that a woman must suffer the worst form of degradation and harassment as a part of the regular course of marriage. The cost of preserving the institution of marriage must be the woman’s autonomy, and such cost must be paid by what the court itself recognizes as the worst form of defiling of her “supreme honour.” The only way to contradict this inference is to consider the married woman as the chattel of her husband, which is an understanding grossly violative of the fundamental right of equality.

In light of this, the Kerala High Court judgment becomes important. It recognizes autonomy as a part of privacy which is a fundamental right, and extends it to the private sphere of marriage and household which state has often refused to do. It in fact goes a step further in acknowledging the legal heteronomy and paternalism in the family and divorce laws of the country. Recognising marital rape as grounds for divorce opens the door for many women who suffered without recourse so far.

08/12/2024 0 comments 24 views

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

by Guest Author 08/12/2024

written by Guest Author

Author: Radhika Ghosh

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

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

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

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

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

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

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

08/12/2024 0 comments 27 views

Devolution of Intestate Transgender’s Property

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

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

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

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

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

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

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

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

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

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

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

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

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

Need for Gender-Neutral Language in Property Law

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

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

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

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

08/12/2024 0 comments 31 views

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

Gender Gap In Judiciary

In Conversation with Ms. Prachi Mehta, Founder TAG – The ADR Group

Abortion Law in India: Not Quite There Yet

Three Woman Judges Elevated to the Supreme Court!

Right to Information – An Overview

How to exercise the right to information?

What Is RTI?

Who can ask for the information under RTI?

Who Is Covered Under The RTI?

What Is the Fee?

Who do I approach to get the information?

How Do I Make The Application?

Can A PIO Refuse Information to An Applicant?

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

Impact of 2019 Amendment Bill

Important Judgments

SC allows Women candidates to appear before the NDA exam

Kerala HC Declares Marital Rape as a Ground for Divorce

Facts

Observations of the Court

The Position of Law on Marital Rape

Conclusion

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

Devolution of Intestate Transgender’s Property

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