GS Paper: Laws, Institutions & Bodies Constituted For The Vulnerable Sections

The National Commission for Protection of Child Rights (NCPCR) has come up with draft guidelines on the preliminary assessment of whether certain minors are to be tried under law as adults in particular cases, under the Juvenile Justice (Care and Protection of Children) Act.

Juvenile Justice Act, 2015 and Adults

• The JJ Act, 2015 replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000.
• It allows for juveniles in conflict with Law in the age group of 16–18, involved in Heinous Offences, to be tried as adults.
• The Act also sought to create a universally accessible adoption law for India.
• It came into force from 15 January 2016.

Preliminary assessment as per the JJ Act

• Assessment of the offender child: The Act directs that the Board shall consider the mental and physical capacity of the child for committing the alleged offence, the ability to understand the consequences of the offence, and the circumstances in which the offence was committed.
• Psychological ‘trial’: It states that the Board can take the assistance of experienced psychologists or psychosocial workers or other experts. The Act also gives a disclaimer that the assessment is not a trial, but is only to assess the capacity of the child to commit and understand the consequences of the alleged offence.
• Arriving at conclusion: After the assessment, the Board can pass an order saying there is a need to try the said child as an adult and transfer the case to a children’s court with the relevant jurisdiction.
• Penalty: If tried as a minor, the child could be sent to a special home for a maximum of three years. If tried as an adult, the child can be sentenced to a jail term, except being sentenced to death or life imprisonment without the possibility of release.

Why has the NCPCR come up with draft guidelines now?

• The Supreme Court is hearing a case related to the murder of a Class 2 student in Haryana, allegedly by a 16-year-old.
• The task of preliminary assessment under the JJ Act is a ‘delicate task’, concluded SC.
• It said that the consequences of the assessment on whether the child is to be tried as an adult or a minor are “serious in nature and have a lasting effect for the entire life of the child”.
• It said that the assessment requires expertise and directed that appropriate and specific guidelines be put in place.
• It had left it open to the Central government and the National and State Commissions for the Protection of Child Rights to consider issuing the guidelines.

Major draft guidelines by NCPCR

The draft relying on already existing provisions in the Act says that the preliminary assessment has to determine following aspects:

• Physical capacity of the child: To determine the child’s ‘locomotor’ abilities and capacities, particularly with regard to gross motor functions such as walking, running, lifting, throwing…such abilities as would be required to engage in most antisocial activities.
• Mental capacity: To determine the child’s ability to make social decisions and judgments. It also directs assessments pertaining to mental health disorders, substance abuse, and life skills deficits.
• Circumstances in which the offence was allegedly committed: Psychosocial vulnerabilities of the child. This is to include life events, any trauma, abuse, and mental health problems, stating that the offence behaviour is a cumulative consequence of a lot of other circumstances.
• Ability to understand the consequences of the alleged offence: To determine the child’s knowledge or understanding of the alleged offence’s social, interpersonal and legal consequences. These include what others will say or perceive him, how it might affect his personal relationships and the knowledge of relevant laws, respectively.
• Building a rapport: It also states that the experts must be given an optimal opportunity to interact with the child to build a rapport. Experts can be from the field of child psychology and psychiatry. It also states they must undergo regular training.
• Others: Other reports that the Board is to rely on include the Social Investigation Report, Social Background Report an Individual Care Plan, statements of witnesses and interaction with parents, guardians, school staff, peer groups and neighbours.

Way forward

• Government should amend JJ Act 2015.
• Such an amendment would go a long way in providing the requisite balance between the rationales underlying the juvenile justice system and the criminal justice system and realizing the objectives professed by both.

 

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The National Commission for Women (NCW) has asked all States to ensure strict implementation of the sexual harassment at workplace law (POSH Act, 2013) by coaching centres and educational institutes.

Why in news?

• NCW is concerned over incidents of sexual harassment at coaching centres.
• It seeks to give instructions to all coaching institutes to ensure effective steps are taken for prevention of sexual harassment of female students.

What is the POSH Act?

• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013.
• It defined sexual harassment, lay down the procedures for a complaint and inquiry, and the action to be taken.
• It broadened the Vishaka Guidelines, which were already in place.

What are Vishakha Guidelines?

• The Vishakha guidelines were laid down by the Supreme Court in a judgment in 1997. This was in a case filed by women’s rights groups, one of which was Vishakha.
• In 1992, she had prevented the marriage of a one-year-old girl, leading to the alleged gangrape in an act of revenge.

Guidelines and the law

• The Vishakha guidelines, which were legally binding, defined sexual harassment and imposed three key obligations on institutions :

1. Prohibition
2. Prevention
3. Redress

• The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.

The POSH Act broadened these guidelines:

• It mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees.
• It lay down procedures and defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.
• This meant that the rights of all women working or visiting any workplace, in any capacity, were protected under the Act.

Definition of Sexual Harassment

Under the 2013 law, sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:

• Physical contact and advances
• A demand or request for sexual favours
• Sexually coloured remarks
• Showing pornography
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The Ministry of Women & Child Development has published a Handbook on Sexual Harassment of Women at Workplace with more detailed instances of behaviour that constitutes sexual harassment at the workplace. These include, broadly:

• Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life
• Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
• Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
• Unwelcome social invitations with sexual overtones, commonly seen as flirting
• Unwelcome sexual advances.

Unwelcome behavior

• The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem.
• It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.

Back2Basics: National Commission for Women The NCW is the statutory body generally concerned with advising the government on all policy matters affecting women. It was established on 31 January 1992 under the provisions of the Indian Constitution as defined in the 1990 National Commission for Women Act. The first head of the commission was Jayanti Patnaik. Constitutional provision The Indian Constitution doesn’t contain any provision specifically made to favor women intrinsically. Article 15 (3), Article 14 and Article 21 protect and safeguard women. They are more gender-neutral. Objectives The objective of the NCW is to represent the rights of women in India and to provide a voice for their issues and concerns. The subjects of their campaigns have included dowry, politics, religion, equal representation for women in jobs, and the exploitation of women for labor.

 

 

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A Parliamentary panel has pulled up the Centre over the “very slow” process to categorize over 260 Denotified, nomadic and semi-nomadic tribes (DNTs) under either the SC/ST/OBC lists.

Why in news?

• The government officials also pointed ‘delay’ in the approval of benefits under the SEED (Scheme for Economic Empowerment of DNTs) scheme launched in February this year.
• There is a scheme in place with proper budgetary outlay, but there is no whereabouts of targeted beneficiaries for it. Imagine how ironical this is.

Who are the DNTs?

• The term ‘De-notified Tribes’ stands for all those communities which were once notified under the Criminal Tribes Acts, enforced by the British Raj between l87l and I947.
• These Acts were repealed after Independence in l952, and these communities were “De-Notified”.
• The DNTs (of whom most are the medieval period Banjaras) are the most neglected, marginalized, and economically and socially deprived communities.
• Most of them have been living a life of destitution for generations and still continue to do so with an uncertain and gloomy future.
• More than 10 crore Indians from over 1,400 communities are either denotified, nomadic or semi-nomadic.

About SEED Scheme

• It has been formulated for families having income from all sources of Rs.2.50 lakh or less per annum and not availing any such benefits from similar Scheme of Centre Government or the State Government.
• The Scheme will be implemented through a portal, developed by the Department of Social Justice & Empowerment.
• Post verification, the funds will be transferred directly to the beneficiaries in their account.
• The other implementing agencies are Ministry of Rural Development, National Rural Livelihood Mission (NRLM) and National Health Authority (NHA).

Components of the scheme

The Scheme will have the following four components:

• Free Coaching: A component of free Coaching for DNT Students has been envisioned for the educational empowerment of these communities. It seeks to enable them to appear in competitive examinations/ admission to professional courses like medicine, engineering, MBA, etc. for obtaining an appropriate job in the Public/Private Sector.
• Health Insurance: Members of these communities are likely to have little or no access to medical facilities and other benefits available under the mainstream health policies.This would ensure a health insurance cover of Rs.5 lakhs per family per year for families as per norms of “Ayushman Bharat Pradhan Mantri Jan Arogya Yojana.
• Livelihood Initiatives: The decline of traditional occupations of DNT/NT/SNT communities has exacerbated their poverty. A focus to support livelihood generation for these communities was required.
• Financial support for Housing: Considering the shortage of houses for DNTs, it has been proposed to earmark a separate outlay for PMAY to support specific importance in providing houses only for DNTs living in rural areas.

Why was such scheme launched?

• DNTs are ignored communities: They escaped the attention of our developmental framework and thus are deprived of the support unlike Scheduled Castes and Scheduled Tribes.
• Most deprived section: Historically, these communities never had access to private land or homeownership.
• Ecological contribution: These tribes used forests and grazing lands for their livelihood and residential use and had “strong ecological connections.

Status of DNT’s identification

• Anthropological Survey of India study: AnSI had submitted reports on categorisation of 48 DNT communities so far. Further, the AnSI is finalising studies on 161 communities and is expected to finish studying the remaining communities (about 70) by the end of 2022.
• Idate Commission: It had categorised 1,262 communities under SC/ST/OBC lists and 267 communities were left uncategorised.

Why is there such delay?

• Slow response from states: Officials cannot begin processing the applications for the SEED scheme unless the State and district-level reviews are completed.
• Duplication of communities: There is inaccurate categorization/duplication of communities which leading to hiccups in the approval process.

 

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The official death toll from the latest hooch tragedy in “dry” Bihar has mounted to 38. Bihar has completely prohibited alcohol.

Alcohol Ban in India

• India has a long history of banning alcohol, with prohibition a part of the Directive Principles of State Policy in the Constitution and also among the key Gandhian principles.
• Gandhi wrote, “Alcohol makes a man forget himself and while its effects last, he becomes utterly incapable of doing anything useful. Those who take to drinking, ruin themselves and ruin their people.”

How the Indian constitution views alcohol?

• One of the DPSP mentions that “in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
• While DPSPs are not in themselves legally enforceable, they set goals that the state should aspire towards to establish conditions under which citizens can lead a good life.
• According to the Seventh Schedule, alcohol is a state subject, i.e. state legislatures have the right and responsibility to draft laws regarding it.
• This includes “the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.
• Thus, laws regarding alcohol differ from state to state, falling in the whole spectrum between prohibition and private sale.

Why do all states not have prohibition?

Ans. Huge Liquor Revenues

• While the Constitution sets prohibition on alcohol as a goal, for most states, it is very difficult to declare a ban on alcohol.
• This is primarily because liquor revenues are not easy to ignore and have consistently contributed a large share of state governments’ revenue.
• For instance, in Maharashtra, state liquor revenues amounted to Rs 11,000 crore in April 2020 (during the nationwide Covid lockdown), compared with Rs 17,000 crore in March.
• The state government attributed much of this drop to the closure of liquor stores, later categorising them as an essential service, in part due to the industry’s contribution to tax revenues.
• The day liquor stores were reopened, the Maharashtra government collected Rs 11 crore revenue from liquor sales in a single day.

States with complete ban

• All states have some regulations with regards to alcohol consumption and sale (like age requirements or dry days).
• Currently, there are five states with total prohibition and some more with partial prohibition:

(1) Bihar

• Both the sale and prohibition of liquor was completely banned by the Nitish Kumar government back in 2016, in keeping with a promise made to the women of Bihar ahead of the Assembly polls.
• Severe punishments were imposed on those found to be flouting the ban, including heavy fines and prison sentences.
• Earlier this year, the Bihar government passed an amendment to its prohibition laws, which dials down on punishment to first-time “drinkers” and lets them get away with a fine rather than face arrest.
• This was done to unclog Bihar’s already overcrowded jails and focus the government’s attention on sellers and distributors rather than consumers of liquor.

(2) Gujarat

• Gujarat has had prohibition since it came into existence as a state in 1960.
• In the 62 years since prohibition has been around in Gujarat, the Act has seen several amendments.
• Notably, in 2009, then CM introduced the death penalty for sellers/producers if their spurious alcohol caused deaths.
• However, Gujarat has provisions for special alcohol licences for hospitality establishments as well as individuals.

(3) Lakshadweep

• The Union Territory bans both the consumption and sale of alcohol keeping in mind the culture and sentiments of its predominantly Muslim population.
• However, the island of Bangram has a resort with a bar which is allowed to legally serve liquor.

(4) Mizoram

• In 2019, Mizoram became a “dry state” once again after the new government reintroduced prohibition that was repealed in 2015.
• Previously, Mizoram had seen prohibition for 18 years.
• The Mizo National Front (MNF) government had prohibition as one of its most important pre-poll promises.
• Here, the loss of revenue is much less than the loss of human life and suffering. Larger societal benefit is considered more vital.
• Only military personnel and those with “medical needs” are allowed to consume alcohol.

(5) Nagaland

• Nagaland introduced total prohibition in 1989 due to “moral and social” reasons, for the greater good of its citizens.
• However, in recent times, the Naga government has mulled partially lifting prohibition due to various reasons.

Partial prohibitions in some states

• Some states with partial prohibition are Karnataka, which specifically banned country-made arrack in 2007.
• In Maharashtra, the districts of Wardha and Gadhricholi have banned on production and sale of liquor.
• In Manipur, districts of Bishnupur, Imphal East, Imphal West and Thoubal have prohibition.
• In 2014, then CM Oomen Chandy announced that Kerala would implement prohibition in a phased manner.
• However, the state has since gone back on this promise.

Reason behind Bihar tragedy: Alcohol Ban

• Critics have claimed that one of the reasons behind the tragedy is the state’s prohibition policy.
• An official ban on alcohol leads to a thriving underground economy where such spurious alcohol is produced and sold.

Does prohibition really work?

• Creates no deterrence: There is evidence to show that, prohibition creates opportunities for a thriving underground economy that distributes liquor, outside the regulatory framework of the state.
• Rise of mafias: This creates its own problems, from strengthening organized crime groups (or mafias) to the distribution of spurious liquor.
• No evidence of progress: In the case of Bihar, a year after prohibition was enforced, there was a spike in substance abuse.
• Anti-poor: In the case of Bihar, a majority of cases registered under its prohibition laws are on the less privileged.

Limited benefits

• Prevented crime against women: Various studies have provided evidence linking alcohol with domestic abuse or domestic violence. In India, prohibition has often been framed as a “women’s rights” issue.
• Prevented domestic violence: Prohibition might have some limited benefits as well. Various studies have provided evidence linking alcohol with domestic abuse or domestic violence.

 

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An acid attack in in Delhi has once again brought back to focus the heinous crime of acid attacks and the easy availability of corrosive substances.

What is Acid Attack?

• An acid attack, also called acid throwing, vitriol attack, or vitriolage, is a form of violent assault involving the act of throwing acid or a similarly corrosive substance onto the body of another.
• It intends to disfigure, maim, torture, or kill.
• Perpetrators of these attacks throw corrosive liquids at their victims, usually at their faces, burning them, and damaging skin tissue, often exposing and sometimes dissolving the bones.
• The most common types of acid used in these attacks are sulphuric and nitric acid.
• Hydrochloric acid is sometimes used but is much less damaging.

How prevalent are acid attacks in India?

• Though heinous, acid attacks on women are not as prevalent a crime as others against women.
• According to data compiled by the National Crime Records Bureau (NCRB), there were 150 such cases recorded in 2019, 105 in 2020 and 102 in 2021.
• West Bengal and UP consistently record the highest number of such cases generally accounting for nearly 50% of all cases in the country year on year.
• The charge-sheeting rate of acid attacks stood at 83% and the conviction rate at 54% in 2019.
• In 2020, the figures stood at 86% and 72% respectively.
• In 2021, the figures were recorded to be 89% and 20% respectively.

What is the law on acid attacks?

• Until 2013, acid attacks were not treated as separate crimes.
• However, following amendments carried out in the IPC, acid attacks were put under a separate section (326A) of the IPC.
• Such attacks made punishable with a minimum imprisonment of 10 years which is extendable to life along with fine.
• The law also has provisions for punishment for denial of treatment to victims or police officers refusing to register an FIR or record any piece of evidence.
• Denial of treatment (by both public and private hospitals) can lead to imprisonment of up to one year and dereliction of duty by a police officer is punishable by imprisonment of up to two years.

Creating deterrence against acid attack

(1) Clear rules

• In 2013, the Supreme Court took cognizance of acid attacks and passed an order on the regulation of sales of corrosive substances.
• Based on the order, the MHA issued an advisory to all states on how to regulate acid sales and framed the Model Poisons Possession and Sale Rules, 2013 under The Poisons Act, 1919.
• It asked states to frame their own rules based on model rules, as the matter fell under the purview of states.

(2) Regulation of acid sale

• In 2015, MHA issued an advisory to all states to ensure speedy justice in cases of acid attacks by expediting prosecution.
• According to the MHA’s directions and the model rules, over-the-counter sale of acid was not allowed unless the seller maintains a logbook/register recording the sale of acid.
• This logbook was to also contain the details of the person to whom acid is sold, the quantity sold, the address of the person and also specify the reason for procuring acid.
• The buyer must also prove he/she is above 18 years of age.

(3) Effective monitoring

• Sellers are also required to declare all stocks of acid with the concerned Sub-Divisional Magistrate (SDM) within 15 days and in case of undeclared stock of acid.
• The SDM can confiscate the stock and suitably impose a fine of up to Rs 50,000 for a breach of any of the directions.

Rules for victim compensation and care

• Free treatment: States are supposed to ensure that treatment provided to acid attack victims in any hospital, public or private, is free of cost.
• Aftercare and rehabilitation: Based on Supreme Court directions, the MHA asked states to make sure acid attack victims are paid compensation of at least Rs. 3 lakhs by the concerned State Government/UT.
• Funding to NGOs: MHA suggested states should also extend social integration programs to the victims for which NGOs could be funded to exclusively look after their rehabilitative requirements.

Preventing such attacks

• Still on rise: The regulations on acid sales largely help in tracking the accused and not so much in prevention.
• Regulatory bottlenecks: Acid is still easily available in many places. Then these are crimes of passion. In a majority of cases the accused is not even thinking about consequences.

Way forward

• Things improve as social attitudes are changing and the focus of the police in dealing with crimes against women can cause some deterrence.
• But the key to solving this problem will always remain in society.
• We must create more awareness. Parents must teach their children the importance of boundaries and consent.

 

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