Author: Explains

Note4Students

The Mental Healthcare Bill aims to provide for the right to better healthcare for mentally ill patients and decriminalises suicide. It is important to know its provision and the challenges India faces in providing better mental health care.

Introduction

The Parliament has passed the Mental Healthcare Bill, 2016 that decriminalizes suicide attempt by mentally ill people and guarantees the right to better healthcare for people with mental illness.

What is mental illness?

“Mental illness” as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life.

As per the National Mental Health Survey 2015-16 conducted by NIMHANS, 5.2% of the Indian adult population suffers from depression in some form or the other.

Key Features of Bill

Rights of persons with mental illness:

1. It gives every person right to access mental healthcare from services operated or funded by the government. It also includes good quality, easy and affordable access to services.
2. It also provides right to equality of treatment, protect such persons from inhuman treatment, access to free legal services, medical records and right to complain in case of deficiencies in provisions.
3. It also includes mental conditions associated with the abuse of alcohol and drugs.
4. It assures free treatment for homeless or people Below Poverty Line, even if they do not possess a BPL card

Right to confidentiality: A person with mental illness shall have the right to confidentiality in respect of his mental health. No information regarding the person can be released to the media without his consent.

Advance Directive: It empowers a mentally-ill person to have the right to make an advance directive that explains how they want to be treated for the requisite illness and nominate their representative.

Mental Health Establishments:

1. Every mental health establishment must register with the respective Central or State Mental Health Authority.
2. For registration, the concerned establishment must fulfill different criteria as mentioned in the Bill.
3. Procedure and process: It also outlines the procedure and process for admission, treatment and subsequent discharge of mentally ill persons.
4. Community based treatment: It focuses on community based treatment and special provisions for women and health.

Mental Health Review Commission and Board:

• 1. It will be quasi-judicial body responsible for reviewing procedure for making advance directives.
  2. It will advise the government on the protection of rights of mentally ill persons’. It will constitute Mental Health Review Boards in states’ districts will help of state governments.

Decriminalizing suicide:

1. It effectively decriminalizes suicide attempt under the section 309 IPC(attempt to commit suicide) by mentally ill persons by making it non-punishable

Prohibits electro-convulsive therapy:

• 1. It prohibits the use of electroconvulsive therapy (ECT) to mentally ill adults without the use of muscle relaxants and anesthesia

Challenges

1. India urgently needs to make a transition from old-fashioned approaches to providing care for those suffering from mental illnesses. Something that China, for example, has achieved through state-led policy reform.
2. Lack of professionals
3. India has ratio of 0.3 psychiatrists for 100,000 people (with marginally higher numbers taking independent private practitioners into account), compared to China’s 1.7.
4. Lack of availability of trained clinical psychologists and psychiatric social workers.
5. The National Mental Health Programme has not been sufficiently funded within the health budget; neither has capability been built in most States to absorb the meagre allocation.

Criticism

1. Global Burden of Disease Study shows that in 2013, 50% of all disease burden in India was caused by non-communicable diseases, while mental disorders accounted for about 6% of the total disease burden.
2. There are only 43 government-run mental hospitals across all of India to provide services to more than 70 million people living with mental disorders.
3. At the macro level, the proposed health expenditure of 1.2% of GDP in the Budget for 2017-18 is among the lowest in the world.
4. In real terms, public health expenditure has consistently declined since 2013-14. Of the total health budget, a mere 1-2% is spent on mental health.
5. Treatment gap (the difference between those suffering from mental illnesses and those seeking medical/psychiatric care) is widened because of the social stigma attached to such illnesses.

Way forward

1. Raising effective primary and district-level coverage of mental health services for the general population, without requiring people to travel long distances to see a specialist and get medicines, should be a priority.
2. There should be use of trained general practitioners as the first line of contact.
3. With a concerted effort, primary care physicians can be trained to help people with mild and severe problems, ranging from anxiety disorders to depression, psychoses and conditions arising from alcohol and substance abuse.

Professional counselling

1. Being able to get professional counselling will reduce the complications arising from extreme stress, often the trigger for suicide.
2. Modern treatment approaches rely more on family and community support.
3. The new Central and State regulatory authorities should speedily weed out shady non-governmental rehabilitation organisations in this field.

Questions

Q.) Discuss the features of Mental Healthcare Bill, 2016 and the challenges it could face in its implementation

Q.) Analyse the objectives of and concerns raised against the Mental Health Care Bill 2016

Note4students

Parliament has passed a crucial Bill to ensure equal rights to the people infected with HIV and AIDS in getting treatment and prevent discrimination of any kind. It’s important to study its various provision and flaws involved in the bill.

Introduction

Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Bill, prohibits discrimination against people living with HIV (PLHIVs) on grounds of treatment, employment and workplace. It provides for complete confidentiality, helps in safeguarding patients’ rights, and also creates a proper grievance addressing mechanism

Status

Key highlights of the bill

1. Prohibition of discrimination against HIV positive persons:It prohibits any kind of discrimination against affected people in terms of employment, admission to educational institutes, renting property, insurance (unless based on actuarial studies) and standing for public or private offices.
2. People affected with HIV are entitled to access public facilities such as shops, restaurants, hotel, public entertainment venues, public facilities and burial ground, without any sort of discrimination.
3. This bill aims to provide the affected people with proper treatment and access to good health.
4. The bill prohibits anyone to publish information or promote hatred against those who are HIV positive.
5. It gives provision to the affected person to safeguard his/her property. He/she can live in a shared household without any bias and utilise all the shared facilities.
6. Informed consent and disclosure of HIV status:Any HIV test, medical treatment or research would be conducted only after the person’s informed consent. The HIV status would be kept completely confidential, if required, by court’s order.
7. Role of the central and state governments: All the HIV affected people to have right to prevention, testing, treatment and counselling services. Therapies such the Anti-Retroviral Therapy (ART) and infection management to be provided. The State and the Central Government will also provide welfare schemes especially for women and children.
8. The bill also states that priority should be given to cases related to HIV positive persons, at the same time maintaining complete confidentiality.
9. Role of the Ombudsman: An ombudsman will be appointed in every state to enquire about complaints regarding violations of the act.
10. Court proceedings: Cases relating to HIV positive persons shall be disposed off by the court on a priority basis.  In any legal proceeding, if an HIV infected or affected person is a party, the court may pass orders that the proceedings be conducted by suppressing the identity of the person, or in camera, and to restrain from revealing the identity of the person.

Pros

1. HIV/ AIDS bill passed by the parliament is in alignment with goal of AIDS free world by 2030 of SDGs.
2. Social Security: Under the bill, it is a legally punishable offence to deny a person living with HIV/AIDS insurance on the ground of the disease that lowers the immunity.
3. It also guarantees protection against discrimination in the field of education, employment, access to housing and healthcare.
4. States are given responsibility to implement the law and an ombudsman need to be appointed to look in to the progress of its implementation.
5. The most crucial step is that it recognizes the right of a person to keep his health status confidential so that he will not be judged based on his disease.
6. It is based on the tenet of stopping the spread of the disease and at the same time helps the infected get antiretroviral therapy
7. A person between 12-18 years of the age with sufficient maturity can be at the helm of affairs and can take guardianship of a sibling below 18 years of age.

Cons

• 1. The biggest lacuna is that insurance company is allowed to use actuarial calculations to limit access to products to people living with HIV.
  2. It fails to address the lack of awareness among masses regarding HIV/AIDS
  3. No step up in funding in healthcare sector to address the medical woes.
  4. Lack of promise on right to access to anti retro viral drugs and treatment for opportunistic infections.
  5. It doesn’t guarantee work opportunities for many, especially for families where there’s an ailing working member, no provision to help the family
  6. There is a lack of political will.
  7. There is a regional variations in the medical facility available.
  8. It does not guarantee HIV treatment as the legal right of the patient
  9. It doesn’t address constitutional ambiguity in this case where in some judgments the SC ordered that the movement of HIV Patients /Sex workers can be restricted, thus forming a basis for discrimination for the HIV affected.

Conclusion

HIV/AIDS bill is a progressive step in fight against the disease. Its effectiveness depends on implementation by the states.

Questions

Q. Discuss the features and significance of HIV and AIDS (Prevention and Control) Bill.

Q. Critically analyse the provisions of the HIV Bill

 

Note4Students:

Recently union cabinet has approved the draft Surrogacy (Regulation) Bill 2016. This bill has been debated vigorously in newspapers. Many op-eds have come in the newspaper since the bill has been drafted.

Context

Recently union cabinet has approved the draft Surrogacy (Regulation) Bill 2016. The bill aims to protect the woman from victimization at the hands of those whose need for a child may tempt them to overlook the exploitation rampant in the current commercial surrogacy ecosystem. The draft surrogacy Bill aims at regulating commissioning of surrogacy in the country in a proper manner. The situation demands such a bill so urgently because by 2012, India had become the ‘surrogacy capital’ of the world.

What is surrogacy?

When an another woman carries and gives birth to a child for a couple who want to have a baby but are unable to do so, because of infertility or some other reasons, it is called surrogacy. When the couple is medically unfit to conceive then the surrogate mother is artificially inseminated. Such case is called Biological Surrogacy. Whereas in gestational surrogacy the fertilised egg is placed into the uterus of the surrogate mother.

Background:

India is the first country to legalise commercial surrogacy in 2002. By 2012, India had become the ‘surrogacy capital’ of the world with surrogacy tourism valued at approximately $500 million annually. In India it became a way of earning livelihood and are often abused. It has been done usually for a payment with help of agents and doctors in the market. Currently there is no proper regulation on surrogacy in India. While estimates of the size of the surrogacy market vary wildly, it is one in which the woman carrying an embryo has been in a grey zone, with uncertain legal and compensatory protection. Compensation is not the only situation where surrogate mothers are exploited. For instance, A Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split and there were no takers for the child. Another instance in 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that was born. In the light of these experiences, the 228th report of the Law Commission of India recommended prohibiting commercial surrogacy. In Jan Balaz vs. Anand Municipality & Ors., the Gujarat high court had to adjudicate upon a case relating to the issue of citizenship of twin children who were born out of surrogacy in India when the commissioning parents’ home state of Germany had refused to grant citizenship to the children.

Key features of the Legislation

1. The Bill will regulate surrogacy in India establishing a National Surrogacy Board at the Central level and State Surrogacy Board and appropriate authorities in the state and Union Territories to ensure effective regulation.
2. It prohibit commercial surrogacy and allow for altruistic surrogacy to the needy infertile couples.The Bill bars foreigners, homosexual couples, people in live in relationships and single individuals from becoming surrogacy.
3. Only childless, straight Indian couples married for a period of 5 years, having proven fertility problems are eligible for surrogacy. (Between the age group 23-50 years for women and 26-55 years for men who do not have a surviving child are eligible for surrogacy.)NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy Eligible couples will have to turn to “close relatives”, not necessarily related by blood for altruistic surrogacy – no exchange of money between the commissioning couple and the surrogate mother. (The Bill, which borrows heavily from UK’s altruistic surrogacy Bill).
4. Women acting as surrogates can do so only once in her life time.
5. All Assisted Reproductive Technology clinics will have to be registered with the Authorities.10 months during which pregnancies underway now can be seen through and babies delivered.
6. The child born through surrogacy will have the rights of a biological child.
7. Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh.
8. It promises to ensure parentage of children born out of surrogacy is legal and transparent.

Merits of the Legislation

• 1. The proposed Bill will help in preventing exploitation of women especially those from rural, poor and tribal belts.
  2. The rights of both surrogate mother and child are ensured by the new legislation.
  3. By bringing in altruistic surrogacy model and allowing a woman to be a surrogate only once in her lifetime, the government aims to ensure better health and life of the surrogate mother.
  4. It proposes punishment with imprisonment of not less than 10 years along with a fine up to Rs.10 lakhs in case of exploitation and other irregularities.
  5. Adoption is an underutilized option will be promoted along with the couple’s happiness.

Demerits of the Legislation

1. The right to life includes the right to reproductive and right to parenthood. So the state should not decide the modes of parenthood.
2. Sudden interruption would just pushed the $500 million industry underground. Thus the very purpose of the bill- to protect surrogate mothers from exploitation would be defeated. The bill is will affect the thriving medical tourism in the country and people associated with it.
3. Restricting limited, conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age does not appear to qualify the test of equality (article 14 and 21), or of being a reasonable classification, satisfying the objective sought to be achieved. This plausibly violates the ‘right to reproductive autonomy’ as laid down in B.K. Parthasarathy vs Government of Andhra Pradesh.
4. The Indian Council for Medical Research (ICMR), working under the ministry of health and family welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005. In that it had not been mentioned such prohibitions.
5. Due to less opportunity Doctors migrate to foreign countries. This legislation may further push the situation.
6. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies.
7. The proposed provisions in the Bill might act as a ground that breeds underground surrogacy. It is not necessary that all the medical clinics will adhere to law. There will be corruption and unethical practices and exploitation of poor women.
8. But it lacks in addressing different medical conditions like a women has medical problem to conceive. It is illogical to make her wait for 5 years.
9. The surrogate mother must be a ‘close relative’ of the intending couple.  The Bill does not define the term ‘close relative’. Restricting only a blood relative to be a surrogate mother is illogical and unreasonable. Restricting only a blood relative to be a surrogate mother is illogical and unreasonable.
10. For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required.  The Bill does not specify a time limit for granting such an approval.  Further, the intending couple has no say in the consent to abort.

Way Forward/Conclusion

1. A blanket ban on such medical tourists makes no sense at all especially when we issue visas to them for other forms of medical tourism. Many countries including the UK that have experimented with altruistic surrogacy have realized that this only tends to push the whole transaction underground. A woman who bears a child for another one is actually performing a service and needs to be compensated for it.
2. It has to be understood that a woman who enters into surrogacy is not out of will but because she is pushed towards it for a decent livelihood. Therefore, altruistic surrogacy will lead them to look for other means of living to sustain themselves.
3. The law should respect the rights of the citizens.
4. The economic aspects and scientific aspects should be considered along with the social and legal aspects.
5. The need of the hour is to regulate the unregulated surrogacy market to ensure and protect the rights of surrogates by ensuring the rights of the commissioning parents and children born as a result of such arrangements. The government should rethink the proposed law on surrogacy to safeguard the constitutional rights of the stakeholders considering the social, legal and ethical dynamics of this sensitive subject for the formation of a progressive regulatory framework

Questions

Q) What is the significance of the proposed Surrogacy Bill in India? Explain the challenges still remaining in the sector.

Q) Surrogacy is an Altruistic work. It cannot be made commercial as it will be unethical and it is against the values of the Indian society and exploitative nature of the commercial surrogacy industry. Express your views with arguments (PAPER IV- Ethics).

Q) Recently the government has proposed a legislation on Surrogacy. Due to many reasons it gave rise to mixed response. Analyse the provisions of the bill and explain its suitability in the present situation of Indian society.

Sources:

PRS India Website

Big Picture Discussion

The Hindu News

Ministry of Health and Family Welfare

The Wire

 

Note4Students

Demand for separate states is not new. Recent agitation by gorkhaland activists brought the issue again into the lime light. So this topic is important.

Introduction

The last few years have seen a constant tug of war between the champions of smaller states and larger states. The centre has received demands for India have at least 50 states including a separate Mithilanchal in Bihar, Saurastra in Gujrat, Coorg or, Kodagu in Karnataka, Gondwana in Madhya Pradesh, Mahakosal in Orissa, Bodoland in Assam, Gorkhaland in West Bengal, Vidharba in Maharashtra, Bundelkhand in U.P. and M.P., Haritpradesh and Poornanchal in U.P. Mayawati even proposed to divide Uttar Pradesh into four smaller states – Purvanchal, Bundelkhand, Awadh Pradesh and Pashchim Pradesh.

Analysis

Gorkhaland Issue

1. Darjeeling and Kalimpong districts, particularly the hill portion excluding the southern tehsils of Phansidewa, Kharibari, Siliguri and Matigara, have been in a politically driven near-total civic upsurge since June 12.
2. The provocation was the May 16 decision by West Bengal government to institute a three-language formula in school education throughout the state.
3. Under the formula, Bengali will be compulsorily taught up to Class X, although students would not have to take an examination in the subject.
4. The Bimal Gurung led Gorkha Janamukti Morcha (GJM), which wields substantial political influence over the nearly five lakh Nepali-speaking Gorkha people inhabiting the two districts, is spearheading the ongoing protests. It considers the West Bengal government’s decision a threat to the Gorkha ethno-cultural identity and socio-economic interests.
5. Although the West Bengal government has now withdrawn the controversial order, the GJM has revived an earlier demand for statehood for the Gorkha people.
6. Further, GJM members have not only resigned from the Gorkhaland Territorial Administration (GTA) but the party along with 12 other Gorkha outfits has also decided to render the institution of the GTA non-functional by preventing the holding any further elections to the body.
7. The present Gorkhaland movement is a search and a fight for this lost IDENTITY.
8. Only a separate STATE can give them this IDENTITY and nothing less.

Why there is a demand for smaller sates

1. The issue of language and culture-which had shaped the earlier process of reorganization– shifted to those of better governance and greater participation, administrative convenience, economic viability in the developmental needs of sub regions.
2. There are of course emotional considerations such as culture, language, religion and a sense of economic and regional deprivation.
3. The lack of industry, an agrarian crisis and a low level of infrastructural facilities push such States into adopting a model of development where growth can be achieved in spite of these handicaps.
4. This, as we witnessed with the examples of the three smaller States, results in an unprecedented exploitation of raw materials such as the mining of minerals instead of the creation of industry,
5. wanton land deals, a boost to the construction industry and the conversion of fertile agricultural land into speculative real estate transactions, since agriculture in any case was untenable and non-profitable.
6. Smaller State the only key for better development It’s a well-known fact that creation of smaller state in India had experiences the betterment of Indian economy. The growth of GDP, better governance and development. Therefore, creation of smaller states is the immediate needs for the development of Indian democracy
7. Small states are better in administration and regional differences are not an issue
8. Regional issues such as a, person belonging to another sect may not be in confrontation with a person the resident of the same state but different province and prejudices will decrease and more people of the same small state and same province will have a say in their state affairs.

Arguments Against

1. Creation of smaller state will divide India.
2. The feeling of nationalism would diminish in the cries of regional autonomy. Creation of smaller states will take India to Pre- British era.
3. As for Jharkhand is concerned – worst politics have been going on and as a result it has not able to achieve the desired growth as promised prior to its formation.
4. Bihar on the other hand with its minimal natural resources has been able to achieve second highest GDP after bifurcation.
5. Small states depend to a substantial extent on central government for financial aid.
6. It will not be economically prudent to set up new states as it would incur expenditure to set up state machinery.
7. A new state may find itself lacking in infrastructure, which requires time, money and efforts to build. On the political front too there are many challenges that smaller states have to face, as the dream of new smaller states was ushered in by the leaders need
8. Diversity is too inextricably linked
9. The idea of a modern nation state derives from the idea that its people all have a common identity like a religion or culture. The English inhabit England and the French inhabit France, each one having a multitude of cultural stereotypes.
10. Those countries are used to being a homogeneous society governing the same land for hundreds of years.
11. With India however the diversity and multiculturalism is so connected in Indian culture that the idea of separate sovereign nation states wouldn’t be viable as all Indian states have such a diverse mix of Indians. To create a nation state based on the idea of culture or language in such a diverse society would cause hatred of the outsiders who the natives felt didn’t belong in that state

Way Forward

1. The situation demands that the government needs to handle the issue by better political governance, fiscal management and rule of law.
2. Rather, division of states calls for a thorough evaluation of physical features like land equality and topography, agro-climatic conditions, socio-cultural factors, natural and human resource availability, density of population, means of communication, existing administrative culture and effectiveness of its district and regional administrative units and so on
3. It is a time for a Second States Reorganization Commission that can redraw Indian Federal map, creating many smaller states and keeping in mind economic viability. The current demand for the breaking up of larger states needs to be examined seriously and dispassionately in its historical and contemporary context
4. A more effective autonomous institution could also be considered in the form of an empowered body statutorily on par with 6th Schedule areas and assigned, say, all the functional areas under the State List except law and order, maintenance of infrastructure like national and state highways, power transmission networks and disaster relief establishment.
5. Concomitant revenue raising powers may also be devolved to such an autonomous institution to avoid its undue financial dependence on the state government.
6. Another issue would be the provision of legislative authority to this entity vis-a-vis its functional and territorial jurisdiction. If such a provision existed, the state government would not have been able to implement its controversial decision on the Bengali language in the school curriculum.

Questions:

Q.) Do you think lack of development is the only reason for the demand of new states?

Note4Sstudent

1. Transgender communities in India are facing issues like discrimination, unemployment, lack of educational facilities, homelessness, lack of medical facilities. Transgender Persons (Protection of Rights) Bill, 2016 attempts to bring the community into the mainstream. It is important to know the bill provisions and various concerns expressed against the bill.

Introduction

1. Transgender community is among one of the most marginalized communities in the country because they don’t fit into the stereotypical categories of gender of ‘men’ or ‘women’.
2. Consequently they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities and so on.
3. Through this Bill the Government has evolved a mechanism for their social, economic and educational empowerment.

Who is a Transgender?

Transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male.  In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.

Key provisions:

1. Certificate of identity: A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill. Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee.  The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
2. Rights of transgenders and duties of government: The central and state governments must take steps to ensure that transgender persons enjoy right to equality, and protection from discrimination. The government must also ensure that transgender persons have accommodation, protection from torture, etc.
3. Health: The central and state governments must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, free of cost sex reassignment surgeries, etc.
4. Education: Educational institutions funded or recognised by the government will have to admit transgender students without discrimination, provide accommodation and necessary support.
5. Employment: Public or private establishments (including companies, unions, factories, etc.) will be prohibited from discriminating against transgender persons in matters related to employment including recruitment and promotion.
6. Further, transgender persons may be declared a Backward Class so that they can be entitled to reservation under the ‘Other Backward Class’ category.

Limitations of the bill

1. No rights and reservations are promised to the transgenders.
2. It failed to differentiate between interstate and transgender
3. No amendment of other operating laws related to marriage, property rights for transgenders is undertaken.
4. The bill is silent on the issue of section 377 of IPC that criminalizes unnatural sex from same sex individuals.
5. Absence of provisions to recognize the violence committed by the natal family.
6. The inadequate budget assigned by the Centre for this matter.
7. Absence of awareness programmes to sensitize the general population.
8. Lack of a clear mechanism through which transgender communities can access existing welfare schemes.

Key Issues and Analysis

1. The Supreme Court has held that the right to self-identification of gender is part of the right to dignity and autonomy under Article 21 of the Constitution. However, objective criteria may be required to determine one’s gender in order to be eligible for entitlements.
2. The Bill states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity.  However, it does not provide for the enforcement of such a right.  A District Screening Committee would issue a certificate of identity to recognise transgender persons.
3. The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by international bodies and experts in India. 
4. The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons.  However, these terms have not been defined.
5. Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and ‘woman’.  It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders.
6. The bill does not talk of reservations in educational institutions for members of the transgender community who do not belong to the Scheduled Castes or Scheduled Tribes
7. Avoids discussing major issues including on personal law like the right to marriage, inheritance and adoption etc.
8. It is silent on the count of police violence against the community, which serves as an important reason why the community is relegated to the margins in India.

Conclusion

Government needs to amend some of the provisions that would realize the true objective of mainstreaming the marginalized community

Questions

Q. What are the important provisions of the Transgender Persons (Protection of Rights) Bill, 2016

Q. Examine the various concerns expressed against the Transgender Persons (Protection of Rights) Bill, 2016

Q. “Transgender Rights Bill 2016 is grossly ignorant of the very issues it is attempting to address” Critically comment

Note4Students

Indian health sector is meddled with a host of issues. Poor strata of population have denied proper health care. NHP policy tries to achieve over all development of health sector with private sector as an active partner. So NHP is very important for coming mains exam.

Introduction

1. The main objective of the National Health Policy 2017 is to achieve the highest possible level of good health and well-being, through a preventive and promotive health care orientation in all developmental policies,
2. to achieve universal access to good quality health care services without anyone having to face financial hardship as a consequence.
3. The broad principles of the policy are centred on professionalism, equity, affordability, universality, patient centred quality care, accountability and pluralism.

Analysis

Objectives

Major Highlights of National Health Policy, 2017

1. Assurance Based Approach– Policy advocates progressively incremental Assurance based Approach with focus on preventive and promotive healthcare
2. Health Card linked to health facilities– Policy recommends linking the health card to primary care facility for a defined package of services anywhere in the country.
3. Patient Centric Approach– Policy recommends the setting up of a separate, empowered medical tribunal for speedy resolution to address disputes /complaints regarding standards of care, prices of services, negligence and unfair practices. Standard Regulatory framework for laboratories and imaging centres, specialized emerging services, etc.
4. Micronutrient Deficiency- Focus on reducing micronutrient malnourishment and systematic approach to address heterogeneity in micronutrient adequacy across regions.
5. Quality of Care– Public hospitals and facilities would undergo periodic measurements and certification of level of quality. Focus on Standard Regulatory Framework to eliminate risks of inappropriate care by maintaining adequate standards of diagnosis and treatment.
6. Make in India Initiative- Policy advocates the need to incentivize local manufacturing to provide customized indigenous products for Indian population in the long run.
7. Application of Digital Health- Policy advocates extensive deployment of digital tools for improving the efficiency and outcome of the healthcare system and aims at an integrated health information system which serves the needs of all stake-holders and improves efficiency, transparency, and citizen experience.
8. Private Sector engagement for strategic purchase for critical gap filling and for achievement of health goals.
9. It aims to allocate major proportion of resources to primary care and intends to ensure availability of two beds per 1,000 population distributed in a manner to enable access within golden hour [the first hour after traumatic injury, when the victim is most likely to benefit from emergency treatment].

Key Targets

1. Achieve the global 2020 HIV target (also termed 90:90:90; 90 per cent of all people living with HIV know their HIV status, 90 per cent of all people diagnosed with HIV infection receive sustained antiretroviral therapy and 90 per cent of all people receiving antiretroviral therapy will have viral suppression)

Why NHP is Important

1. With a fifth of the world’s disease burden, a growing incidence of non-communicable diseases such as diabetes, and poor financial arrangements to pay for care, India brings up the rear among the BRICS countries in health sector performance. Against such a laggardly record, the policy now offers an opportunity to systematically rectify well-known deficiencies through a stronger National Health Mission.
2. Among the most glaring lacunae is the lack of capacity to use higher levels of public funding for health. Rectifying this in partnership with the States is crucial if the Central government is to make the best use of the targeted government spending of 2.5% of GDP by 2025, up from 1.15% now.

Concerns

NHP failed to make health a justiciable right in the way the Right to Education 2005 did for school education.

Investement

1. There is no correlation between the ambition in the text and public investment proposed – from the current level of 1.15% of GDP to 2.5% of GDP by 2025. This level of public investment is inadequate for achieving the goals, targets and approaches proposed to achieving them
2. In the primary healthcare space, the policy commits itself to strengthening the public health infrastructure in underserved areas in accordance with the Indian Public Health Standards (IPHS). Estimates of the ministry indicate a financial requirement of 1.4 lakh crores (2014 prices) for meeting the gaps in IPHS. Of this, over 75% is required in just the 300 districts that would qualify as underserved. Against such a huge deficit in capital investment, over the last ten years not more than Rs 10,000 crores may have been incurred and that too by the better off states.
3. The health sector has faced chronic underfunding. Be it in times of 3% or 9% growth rate, public health spending has always been in the range of 0.9-1.2% of the GDP. These meagre funds are then responsible for the under performance and dysfunctionalism of the public health sector that struggles with poor infrastructure, obsolescent equipment, understaffed and overworked personnel and so on. Optimising this infrastructure to achieve the quality standards that the policy proposes will require substantial investments again.

Strategic purchasing

1. The policy envisages that strategic purchasing will be in the short term, though it nowhere defines how short the term is likely to be.
2. Evidence shows that public and private sector cannot coexist in the same space given the highly competitive environment. Evidence also shows that in such environments, the public sector has always lost out, more in the area of perception and non-provision of level playing fields. We have seen this in all sectors of development where the private sector has been co-opted under the public-private partnership mode. In all these frameworks, the risk is borne by the government with little liability on the private provider and necessitating action for non-compliance entailing elaborate litigation.

Institutional Capabilities

1. The NHP is silent on establishing an autonomous, independent drug regulator and more importantly dealing with the long pending and contentious issue of bringing drug regulation under the central control. State drug controllers are playing havoc with the licensing and drug quality assurance aspects and in oversight of pharmacies, contributing to the rampant misuse of antibiotics.
2. A serious omission is the strengthening of the Clinical Establishment Act to make it mandatory for the display of prices by private hospitals.
3. The National Pharmaceutical Pricing Authority has recently done yeoman service in capping the price of stents. How does this get enforced? In other words, making regulations is one aspect; enforcement is another that calls for substantial expenditures in establishing trained inspectorates and close monitoring. Similar regulations and enforcement are required for ensuring the proper maintenance of the diagnostic equipment, timely calibrations and utilisation. This too requires frequent inspections and monitoring by trained manpower and the co-option of technical institutions. The NHP is silent about this aspect as well, focusing only on the domestic manufacture of medical devices.

Conclusion

1. A policy is only as good as its implementation.” The next steps may not lie in creating yet another document called an implementation framework.
2. It would be better served by the creation of a number of multi-stakeholder implementation task forces or working groups around some of these new ideas and priorities – with the secretariat of these task forces housed in a corresponding division of the ministry- so that the ministry gets down to the implementation without any further time lost. It is a pragmatic policy- but only if work on implementation begins at once.

Questions

Q. National health policy is a panacea for the all challenges of Indian public health sector, critically comment

Note4Students

Medical termination of pregnancy has many dimensions. Indian legal system had considered the women’s right to choose her pregnancy as a moral and ethical problem. Legal system often took narrow stand regarding the abortion of pregnancy under special circumstances. Social mentality also doesn’t recognize the women’s autonomy over her own body. MTP amendment trying address all these issues. So this topic is important in the backdrop of union government’s decision of introduction the amendment bill.

Introduction

• In India, the 1971 Medical Termination of Pregnancy Act, while allowing abortions under a broad range of circumstances, can be considered a conservative law from a feminist perspective.
• The Act allows healthcare providers rather than women seeking abortion to have the final say on abortion, and creates an environment within which women are made dependent on their healthcare providers.
• The draft Medical Termination of Pregnancy (Amendment) Bill of 2014 seeks to amend Section 3 of the principle The Medical Termination of Pregnancy Act of 1971 to provide that “the length of pregnancy shall not apply” in a decision to abort a foetus diagnosed with “substantial foetal abnormalities as may be prescribed”.
• The Medical Termination of Pregnancy (MTP) Act in India was amended in 2003 to facilitate better implementation and increase access for women especially in the private health sector. However, unsafe abortions are widely prevalent even 40 years after the Act came into force.

Analysis

Recent Developements

1. On more than one occasion, the court has rejected abortion petitions on the ground that its hands are tied by the MTP Act.
2. In January, it did allow a rape victim to abort a 24-week old foetus that had severe abnormalities, but only after a panel of doctors ruled that the pregnancy could put her life in danger
3. The Supreme Court declined a woman’s plea to abort her 26-week-old foetus detected with Down’s syndrome. The women argued that it was the woman’s constitutional right to terminate her pregnancy.
4. It was contended that the congenital abnormality found in her foetus and the woman’s anguish about the future were the reasons for her decision.
5. The court refused permission for abortion, calling the foetus “a life”. It said the Medical Termination of Pregnancy Act of 1971 places a 20-week ceiling on termination of pregnancy.

Social aspects of abortion

1. Abortion is seen as a complex and thorny socio-political subject with religious and moral dimensions in almost all countries.
2. LEGALITY: Its legality is like a double-edged sword because of the misuse it can and does unleash.
3. CULTURALLY: An issue of feminist and humanist rights, it also gets invariably mixed with cultural attitudes, family superstitions and moral tugs of war.
4. SOCIAL ATTITUDE: Even women who wish to abort (within the legally allowed 20 weeks) are not viewed kindly. They are stalked by judgement even if the decision to abort stems from the husband’s choice. India has perhaps the highest number of abortions related to female foeticide and sex determination, but making an elective choice to abort a baby (considered God’s own blessing) for the mother’s comfort and readiness or a couple’s financial situation is eyed with scepticism, even seen as sin.
5. Many Indian couples hide abortions from family elders for fear of moral judgement. very few Indians discuss abortion openly even today.

Analysis of MTP Act 1971

1. MTP Act 1971 does not allow abortions above the gestational age of 20 weeks.
2. However, legal experts have argued that medical science and technology have made the 20-week ceiling redundant and that conclusive determination of foetal abnormality is possible in most cases after the 20th week of gestational age.
3. Under the 1971 Act, even pregnant rape victims cannot abort after 20 weeks, compelling them to move court.

Important Feature of proposed Bill

1. FOCUS: Proposed changes could initiate a shift in the focus of the Indian abortion discourse from healthcare providers to women.
2. Such a shift would decrease the vulnerability of women within the clinical setting and free them from subjective interpretations of the law.
3. HEALTHCARE PROVIDERS: The Bill also expands the base of healthcare providers by including mid-level and non-allopathic healthcare providers. While the medical community has resisted this inclusion.
4. The Bill amends Section 3 of the principle Act of 1971 to provide that “the length of pregnancy shall not apply” in a decision to abort a foetus diagnosed with “substantial foetal abnormalities as may be prescribed”.
5. They do away with the need for the court’s sanction for aborting a more than 20-week old pregnancy
6. Increasing the legal limit for abortion from 20 weeks to 24 weeks,
7. AUTONOMY IN THE DECISION: The draft Bill allows a woman to take an independent decision in consultation with a registered health-care provider, if the pregnancy involves substantial risks to the mother or child, or if it is “alleged by the pregnant woman to have been caused by rape”.
8. RAPE VICTIMS: Significantly, the draft recognises that “rape may be presumed to constitute a grave injury to the mental health of the pregnant woman, and that such an injury could be a ground for allowing abortion
9. CAPACITY DEVELOPMENT: The draft law also takes into account the reality of a massive shortage of both doctors and trained midwives, and seeks to allow Ayurveda, Unani and Siddha practitioners to carry out abortions, albeit only through medical means, and not surgical ones.

Why Medical Termination Amendment Bill Is Required

1. Haresh and Niketa Mehta case, the Bombay high court observed that only the legislature could address the demand for change in the legal limit.
2. Unanimity among medico-legal experts : the MTP act has failed to keep up with changes in science. They argue that foetal abnormalities show up after 18 weeks and a two-week window after that is too small for the parents to take the difficult call on keeping their baby. The growing number of sexual crimes against women and the need to empower them with sexual rights have also made it imperative that the MTP Act be changed.
3. According to data from The Registrar General of India, Sample Registration System (2001-03), unsafe abortions contribute to 8% of the total maternal deaths. Making out a strong case to amend the Act to increase the availability of safe and legal abortions in India, all stakeholders argue that unsafe abortions still continue to outnumber safe and legal abortions in the country.
4. At least 3% of the 26 million births annually in India involve severe foetal abnormalities.
5. SC AS LAST RESORT: With the 2014 Bill in limbo, the Supreme Court is the last resort of the affected people. The Court has agreed to look into whether a wider interpretation ought to be given to phrases like “risk to the life of the pregnant woman” and “grave injury to her physical and mental health”.
6. ETHICAL ASPECT :Even though the apex court remarked that it was a matter of “life versus life”, its decision in favour of the woman is a pragmatic, life-affirming verdict—instead of one based on moral and sentimental considerations.
7. in the face of the high rates of unsafe abortion, such a step is both ethical and necessary
8. Legal and medical experts feel that a revision of the legal limit for abortion is long overdue. Foetal abnormalities show up only by 18 weeks, so just a two-week window after that is too small for the would-be parents to take the difficult call on whether to keep their baby. Even for the medical practitioner, this window is too small to exhaust all possible options before advising the patient to take the extreme step.
9. Again, the 45 years since the enactment of the law has seen technology break new grounds — from ultrasound to magnetic resonance imaging to a range of high-end foetal monitoring devices that have taken prenatal diagnosis far beyond the illegal sex determination tests that have refused to die out completely.
10. The rising incidence of sex crimes, and the urgent need to empower women with sexual rights and choices both in their own interest and for the sake of reducing the fertility rate as a whole, have made it imperative that the law be changed. In any case — and what is far more worrying — is the fact that the lack of legal approval does not prevent abortions from being carried out beyond 20 weeks. And they are done in shady, unhygienic conditions by untrained, unqualified quacks, putting thousands of women at risk probably every day.

Conclusion

1. The Bill recognise a woman’s right to self-determination and autonomy (although such recognition is limited to the first trimester),
2. It also represents something of a shift in the focus of the abortion law in India from the healthcare provider to the woman undergoing abortion.
3. Such a shift decreases the vulnerability of women within the clinical setting and frees them from subjective interpretations of the abortion law.

Questions

Q)“Medical termination of pregnancy bill recognizes the autonomous right of a woman to abort the foetus under special circumstances.”  analyse

Note4Students:

The bill has been in news since it is considered a revolutionary step towards maternity leave provisions in India. So, a probable question may be asked on this.

Context

The Maternity Benefit (Amendment) Bill, 2016 that seeks to amend the old Maternity Benefit Act, 1961 that entitles women to receive maternity benefits has been passed by the Parliament.

Main features of the bill

1. Expecting mothers who are working in the organised sector can now avail 26 weeks of paid maternity leave instead of 12 weeks.
2. Bill allows 12 weeks of paid maternity leave to mothers who are adopting a child below the age of three months and also to commissioning mothers who opt for surrogacy.
3. This entitlement is applicable only upto first two children. For third child, the entitlement will be for only 12 weeks. The leaves further reduce to six weeks if the woman wants to become a mother for the fourth time.
4. It makes it mandatory for employers with 50 or more employees to provide crèches in close vicinity of the workplace, and by allowing women up to four daily visits to the crèche.
5. It applies to establishments employing 10 people or more
6. The organisations must communicate these rights to female employees via writing.
7. An employer can permit a woman to work from home, if the nature of work assigned permits her to do so. This option can be availed of, after the period of maternity leave, for a duration that is mutually decided by the employer and the woman.

Comparison between Maternity Benefit Act, 1961 and Maternity Benefit Amendment Bill, 2016

Maternity Benefit Act, 1961	Maternity Benefit Amendment Bill, 2016
12 weeks maternity leave	26 weeks maternity leave
Leave not prior to 6 weeks from due date	Leave can be taken 8 weeks prior to due date
Adoptive and Commissioning mothers: No provision	Adoptive and Commissioning mothers: Provides for 12 weeks leave
Flexible work options: No provisions	Flexible work options: It allows for option to work from home based on mutual agreement between employer and women.

Analysis

Benefits of the bill

1. The enhancement of paid maternity leave for women is a progressive step and would benefit about 1.8 million women in the organised sector.
2. It would allow a woman to take care of her infant in the most important, formative months of a child and provide her with much needed work-life balance.
3. It will make India at third place, only after Canada and Norway, in the level of maternity benefits such as paid time off work extended to women.
4. The amendment is in line with several expert recommendations including that of the World Health Organisation, which recommends exclusive breastfeeding of children for the first 24 weeks.
5. It will make for a milestone legislation on the road to reducing gender inequality at work and bringing down maternal and infant mortality in India.

Criticism of the bill

1. An increase in maternal leave and a mandate to provide crèches might result in adverse incentives for employers to hire women.
2. The Bill ignores roughly 90 per cent of the Indian women who are employed in the unorganised sector which includes domestic workers, agricultural labourers, seasonal and construction workers.
3. The Bill continues to reinforce the stereotype about childcare being exclusively a woman’s responsibility and excludes paternity leave from its ambit.
4. It discriminates against almost all adoptive mothers, particularly those who adopt older babies or children. It also discriminates against adoptive fathers and transgendered persons who may adopt, as it does not recognise their right to parental benefits.

Status in other countries of world

1. Once the amendment to the Maternity Benefit Act, 1961, comes into effect, only Canada and Norway will be ahead of India, with 50 and 44 weeks of paid leave.
2. Suriname and Tonga have no provisions for any leave following childbirth.
3. US and Papua New Guinea offer unpaid leave.
4. China offers 14 weeks, Australia 18 weeks, Norway 36-46 weeks (pay varying from 100 to 80 per cent of wages) and Denmark gives 52 paid weeks.

Conclusion

1. The long list of barriers that women face in accessing employment opportunities, such as the risk of exploitation particularly in the informal sector, the lack of wage parity, concerns regarding safety and security, etc., need to find a solution.
2. India’s problem is not just about ensuring women return to the workforce after childbirth but in bringing women into the workforce in the first place. Resolving this will require more than just maternity leave

Sources

http://www.livemint.com/Opinion/BDf3gCUIYOmmXv5stkbhII/The-economics-of-maternity-leave.html

http://indianexpress.com/article/india/what-is-maternity-benefit-bill-how-does-it-affect-working-women-who-will-benefit-all-your-questions-answered-4563124/

http://indianexpress.com/article/explained/amended-maternity-law-goes-a-long-way-but-has-a-long-way-to-go-still-4570686/

http://www.livemint.com/Opinion/wsvYFn0yr2I6TB0yvfPykK/The-welcome-idea-of-more-maternity-leave.html

http://www.thehindu.com/news/national/key-highlights-of-maternity-benefits-amendment-bill-2016/article17441168.ece

Question

Q.1) Discuss the salient features of the Maternity Benefit (Amendment) Bill, 2016? It is considered that the bill will provide women with much needed work life balance. Critically analyse. (200 Words)

Q.2) Critically comment on the recent changes made to the Maternity Benefit (Amendment) Act (MBA), 2017.

Q.3) Though the bill is a step in right direction, it still falls short of addressing various issues related to pregnancy and maternity. Examine in light of the Maternity Benefit (Amendment) Bill, 2016 passed by parliament.

Note4Students:

Child labour is one of the most debated topics. After a long time, amendment bill to the Child Labour (Prohibition and Regulation) Act, 1986 has been passed. The topic is important as despite making stricter norms for regulating child labour, the bill suffers from many flaws.

Context

The Parliament has amended the Child Labour (Prohibition and Regulation) Act, 1986 and passed Child Labour (Prohibition and Regulation) Amendment Bill, 2016 in July, 2016.

 

What is Child Labour?

1. The term “child labour” is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development (International Labour Organization).

 

Constitutional Safeguards for Children

1. The constitution provides various safeguards for children which are as follows:
2. Article 15(3) gives the power to the State to enact laws to protect children.
3. Article 21A provides free and compulsory education to all children between the ages of 6 and 14.
4. Article 24 prohibits employment of children under the age of 14 years in hazardous industries.
5. Article 39 (e) provides that the State shall direct its policy to ensure that the tender age of children is not abused.
6. Article 45 provides that State shall endeavour to provide early childhood care and education to children below the age of six years.
7. Article 47 provides that it is the duty of the State to raise the level of nutrition and standard of living and to improve public health.

Salient features of the Bill

1. The Bill proposes a ban on employment of children below 14 years in all occupations except in family business and in entertainment industry provided education of child does not get hampered.
2. It prohibits employment of adolescents (a person between 14 and 18 years of age) in hazardous occupations as specified (mines, inflammable substance and hazardous processes).
3. The central government may add or omit any hazardous occupation from the list included in the Bill.
4. It enhances the punishment for employing any child in an occupation and for employing an adolescent in a hazardous occupation. For the first time, the fine has been increased from 20000 to 50000 Rs and 6 months to 2 years imprisonment. For repeat offenders the offence is cognizable and proposes a punishment of 1-3 years.
5. The Bill proposes relaxed penal provisions for parents. In case of parents being repeat offenders, it proposes a fine of 10000 rupees.
6. It empowers the government to make periodic inspection of places at which employment of children and adolescents are prohibited.
7. It also sets up a Child and Adolescent Labour Rehabilitation Fund to be set up under the Act for rehabilitation of children and adolescents.

 

Analysis

Positives

1. The amendments intend to preserve Indian art and craft by enabling parents with traditional skills to pass them on to their children.
2. The setting up of a Child and Adolescent Labour Rehabilitation Fund will help to improve the condition of the children and sponsor education for them.
3. It prescribes more stringent penalty for Violators and high term of jail and fine with non bailable charges.
4. It gives more autonomy to various institutions involved in child labour protection rehabilitation and redevelopment y empowering the government to make periodic inspection of places.

Criticism:

Reversing the gains:

In 1986, the Child Labour (Prohibition and Regulation) Act had after much discussion and expansion included 83 occupations. The new amendment reverses the gain by bringing down the list of hazardous occupations for children to include just mining, inflable substances and explosives.

Open discretion of government authorities:

Further, the occupations listed as hazardous can be removed, according to Section 4 — not by Parliament but by government authorities at their own discretion. This leaves it to open discretion.

Promoting family labour:

It allows child labour in “family or family enterprises” or allows the child to work in entertainment industry. Most of child labour is in work with family members. Not defining the nature and time limitation will act as an main obstruction to their educational endeavour.

Non-uniform implementation :

List of hazardous factories can be amended by the state government, thus, leading to non-uniform implementation of this act.

Making lawful what was unlawful earlier:

It allows that the children may work after school hours or during vacations, thus, actually making lawful a large part of child work that was earlier unlawful.

Roughly defined purpose of Fund:

Funding from child rehabilitation fund is not directly linked to education and development rather it aims towards these goals without any mentioned method thus not giving any specific list of objectives.

 

Way forward

1. Child are future of a country and their holistic development must be the sole aim of a country and this requirement becomes more important for a developing country like India which has a significant part of its population  in the working age. It is essential that the loopholes in the act are be removed and sufficient steps are taken for effective prohibition and rehabilitation of child stuck in various industries as workers.

Conclusion

1. In the context of the socio-economic realities of India and the preservation of the social fabric and learning of traditional occupations, the new Act tweaked the law in such a way that children are readily available for employment. It will push more children into labour and make them subjects of exploitation at the labour market.
2. Though the increased penalty and rehabilitation fund are welcome inclusions which will act as deterrent and provide relief to child labour. However, the amended Act, display a lack of national commitment to abolishing all forms of child labour and do not resonate with the constitutional objective of elimination of child labour in India.

References

http://www.hindustantimes.com/india-news/everything-you-need-to-know-about-child-labour-amendment-bill/story-2PkGT4hs1Vsp1IXji6KsdP.html

http://www.thehindu.com/opinion/columns/A-law-that-allows-child-labour/article14560563.ece

http://indianexpress.com/article/opinion/columns/child-labour-india-laws-ban-allowed-in-family-enterprises-education-suffers-2948482/

http://indianexpress.com/article/opinion/columns/child-labour-bill-unequal-childhood-family-workers-free-education-2941209/

http://indianexpress.com/article/explained/why-activists-are-worried-about-proposed-changes-to-indias-child-labour-law/

Questions

Q.1) What are the merits of the Child Labour (Prohibition and Regulation) Amendment Act, 2016 over the previous child labour regulations. Do you think it will act as a deterrent to child labour?

Q.2) Though, the Child Labour (Prohibition and Regulation) Amendment Act, 2016 is a step in right direction, but, by institutionalising child labour in family-based occupations under the age of 14 years and reducing the number of hazardous occupations, India has failed its children. Do you agree? Discuss.

Note4Student

Section 498A, which is made to contain violence against women within the family has been widely misused. Supreme Court in the recent Rajesh Sharma and Ors v State of UP and Anr case delivered a judgment, announcing a set of guidelines to prevent the misuse of Section 498A of the IPC. So there is high probability that a question could be asked from this.

Introduction

In order to contain violence against women within the family, the operation of Section 498A of the Indian Penal Code was weighted against husbands and their birth families, and automatically presumed the complainant to be an innocent victim. Progressive discrimination was deemed necessary in a country which recorded a dowry death every hour, on average, and where violence against women has been regarded as normal.

What is Section 498-A?

In 1983, ‘Section 498-A of the IPC was introduced with the objective to combat the menace of harassment to a woman at the hands of her husband and his relatives.

Why it is needed?

1. A total of 24,771 dowry deaths have occurred in India from 2012 to 2014, averaging more than 20 dowry deaths every single day.
2. Thus, Section 498A is not only relevant but also vital for the protection of genuine victims.

What are the issues involved?

1. Operation of IPC was weighted against husbands and their birth families, and automatically presumed the complainant to be an innocent
2. Both the Supreme Court and the Women and Child Development Ministry have acknowledged that the law has been misused too often to be ignored, and moved to ensure that innocent men and their relations are spared the threat of summary arrest.
3. There were opinions that complaints under section 498A were being filed on the basis of personal vendetta.
4. Prevalence of misuse, is reflected in the data of the National Crime Records Bureau — less than one in five charge sheets filed has resulted in conviction.
5. The SC Bench said Section 498A (dowry harassment) of the IPC had come under much abuse and dowry complaints were being filed in the heat of the moment over trivial issues.

New procedure under 498A

1. The Supreme Court on July 27 2017, in the matter of Rajesh Sharma and Ors v State of UP and Anr, delivered a judgment, announcing a set of guidelines to prevent the misuse of Section 498A of the IPC.
2. Family Welfare Committees 
3. In order to prevent the perceived misuse of the criminal law of cruelty against women, welfare committees, have been put in place to scrutinise a complaint by a woman
4. Welfare Committees in every district: It includes paralegals, volunteers, social workers, retired persons, wives of working officers and other citizens, who are found suitable and willing
5. The police must ensure that every complaint under Section 498A is referred to the welfare committee
6. Then committee within one month will prepare a report, give its opinion and send it back to the police. Till the report of the committee is received there will be no arrest . .                                             Critical analysis of the verdict
7. Establishment of family welfare committess can be seen as virtual privatisation of the policing function. That the members of the committee will be given remuneration makes it a parallel justice dispensation system. Only after the report of the welfare committee is submitted, can the police perform the policing function.
8. By creating the Family Welfare Committee, the court creates one more layer between the victim and the justice system, and as a result, her access to justice is compromised.
9. Welfare committees drawn from the civil society has the potential to become non-state vigilante groups.
10. Low conviction rates exist across the board, in relation to all crimes. To isolate crimes against women is to miss the point that the criminal justice system is in need of serious repair.
11. The judgment has relied upon the data of the National Crime Record Bureau (NCRB) of 2005, 2012 and 2013 to arrive conclusion that since the conviction rate is low, most of the cases registered under 498A are “false”. This data does not give a clear picture as there can be a number of reasons for acquittal, such as poor investigation by the investigating officer, settlement through mediation, or intimidation of witnesses and the complainant herself.
12. Given that the woman in question may fear severe bodily harm, the period of one month seems to be far too liberal.
13. Besides, the court has prescribed that bail applications must be decided on the date of application. Since bail is a right, courts may be more inclined to grant rather than withhold, which could again increase the risk to the complainant.
14. Minister Maneka Gandhi has asked the National Commission for Women to be accessible to men who claim to be falsely accused.
15. Maneka Gandhi has recommended a more stringent filing process which insists on identity proof, and has warned that while opening a window to the victims of false claims, the NCW should not open the door wide to false counter-claims

Conclusion

While the working of Section 498A was tilted in favour of women as a progressive intervention, a course correction is seen to be required in the interest of equality before the law and the prevalence of misuse.

However, the law must retain its progressive bias in favour of wronged women, without inadvertently wronging men.

In practice, it will prove to be a tough balancing act — an impossible feat, in the absence of police reform and progressive change in societal mind-set where women are still made to feel inferior to men at every step.