Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

Madras High Court’s Interpretation of POSH Act, 2013

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Right to Report, POSH Act ,2013

Why in the News?

Madras HC upheld the ‘Right to Report’ serious incidents of sexual harassment a time, rejecting the 3-month deadline under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act (POSH), 2013.

  • Long-term emotional and psychological damage on victims underscored the need for a broader application of the law.

Right to Report under POSH Act, 2013

  • Case Background: The decision came while addressing a police officer’s petition to quash an enquiry report for alleged sexual assault against a female colleague.
  • Madras HC Reasoning: Serious allegations leading to “grave mental trauma” and “stress” constitute a “continuing offence” under POSH, allowing victims to report and investigate at any time.
  • Notable Observations: the Madras HC distinguished between isolated incidents and serious allegations like assault or molestation.
  1. Isolated Incidents: Must adhere to strict deadlines under POSH.
  2. Serious Allegations: Treated as continuous misconduct until addressed, allowing flexibility in reporting timelines due to fear of victimisation.

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, laid down the procedures for a complaint and inquiry, and the action to be taken.
  • It broadened the Vishakha Guidelines, which were already in place.

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 lays down procedures and defines 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 moreof the followingunwelcome 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 a sexual nature.

The Ministry of Women & Child Development has published a Handbook on Sexual Harassment of Women at the 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 behaviour

  • 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”.

Circumstances amounting to SHW

The Act mentions five circumstances that amount to sexual harassment implied or explicit:

  1. The promise of preferential treatment in her employment
  2. The threat of detrimental treatment
  3. Threat about her present or future employment status
  4. Interference with her work or creating an offensive or hostile work environment
  5. Humiliating treatment likely to affect her health or safety

Procedure for complaint

Description
Filing a complaint The aggrieved victim has the option to file a complaint with the ICC, but it is not compulsory for the ICC to act.
Assistance in filing a complaint Any member of the ICC must provide reasonable assistance to the victim in filing a written complaint.
Filing a complaint on behalf of the victim If the victim is unable to file a complaint due to incapacity, death, or other reasons, her legal heir may file it on her behalf.
The time limit for filing a complaint The complaint must be made within 3 months from the date of the incident
Extension of time limit ICC has the authority
Monetary settlement and conciliation Yes. It is possible.
Forwarding complaint or initiating an inquiry Must be completed within 90 days.
Confidentiality of information The act ensures the confidentiality of the woman’s identity, respondent’s identity, inquiry details, recommendations, and actions taken

Requirements imposed on employers

Description
Internal Complaints Committee (ICC) Employers with more than 10 employees must establish an ICC to address sexual harassment complaints.
Composition of ICC The ICC must include women employees, another employee, and a third-party member familiar with sexual harassment issues.
Local Committee (LC) for smaller organizations Organizations with fewer than 10 employees must create an LC to receive complaints from the informal sector.
Complaint filing process Women can file written complaints to either the ICC or LC within three to six months of the incident.
Resolution methods The Act provides two resolution methods: conciliation between the parties involved or conducting an inquiry by the committee.
Annual audit report Employers must file an annual audit report on sexual harassment complaints and take responsibility for conducting workshops, awareness programs, and orientation for ICC members.
Non-compliance penalties Non-compliance with the Act can result in penalties, including fines.

 

PYQ:

[2019] What are the continued challenges for Women in India against time and space?

[2014] We are witnessing increasing instances of sexual violence against women in the country. Despite existing legal provisions against it, the number of such incidences is on the rise. Suggest some innovative measures to tackle this menace.

[2010] Two of the schemes launched by the Government of India for Women’s development are Swadhar and Swayam Siddha. As regards the difference between them, consider the following statements:

  1. Swayam Siddha is meant for those in difficult circumstances such as women survivors of natural disasters or terrorism, women prisoners released from jails, mentally challenged women etc.,whereas Swadhar is meant for holistic empowerment of women through Self Help Groups.
  2. Swayam Siddha is implemented through Local Self Government bodies or reputed Voluntary Organizations whereas Swadhar is implemented through the ICDS units set up in the states.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

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Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

A look at how Article 361 provides immunity.

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Artile 361

Mains level: What are the provisions related to the Governor in the Indian Constitution?

Why in the News? 

Even as a complaint alleging sexual harassment has been filed in Kolkata against West Bengal Governor C V Ananda Bose, Constitutional immunity bars the police from naming the Governor as an accused or even investigating the case.

What is Article 361? 

Article 361 of the Constitution that deals with immunity to the President and the Governors states that they “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.

The provision also has two crucial sub-clauses: 

(1) that no criminal proceedings whatsoever shall be initiated or continued against the President, or the Governor of a State, in any court during the term of his office.

(2) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.

Immunity power of the Governor:

  • Ceases to be in office: The police can act only after the Governor ceases to be in office, which is when either the Governor resigns or no longer enjoys the confidence of the President.” 
  • Rameshwar Prasad v Union of India: In the landmark 2006 ruling in Rameshwar Prasad v Union of India, that outlined the immunity enjoyed by the Governor “even on allegation of personal malafides,” the Supreme Court held that “the position in law, is that the Governor enjoys complete immunity.”
  • In 2017, criminal conspiracy in the 1992 demolition of the Babri Masjid case: The trial did not take place for former UP Chief Minister Kalyan Singh since he was then the Governor of Rajasthan.

Constitutional Provisions:

  • Appointment: The Governor is appointed by the President of India and holds office during the pleasure of the President (Article 155).
  • Qualifications: The Governor must be a citizen of India, must be at least 35 years old, and must not hold any office of profit (Article 157).
  • Powers and Functions: The Governor is the constitutional head of a state and performs various functions including:
    • Executive Functions: The Governor appoints the Chief Minister and other Council of Ministers, and allocates portfolios among them (Article 164).
    • Legislative Functions: The Governor summons and prorogues the state legislature, addresses it, and lays down its policy. He/she also has the power to dissolve the Legislative Assembly (Article 174).
    • Financial Functions: The Governor causes to be laid before the State Legislature the Annual Financial Statement (budget) and has powers related to money bills (Article 202).
  • Discretionary Powers: The Governor has discretionary powers in certain matters, such as appointing the Chief Minister when no party has a clear majority after elections (Article 164).
  • Relation with the Union: The Governor is appointed by the President and acts as a link between the state and the Union. He/she can send reports to the President regarding the administration of the state (Article 356).
  • Oath or Affirmation: Before entering office, the Governor must take an oath or affirmation according to the form set out in the Third Schedule of the Constitution (Article 159).

Conclusion: 

Article 361 of the Indian Constitution provides immunity to the President and Governors from court proceedings and arrest during their term. Police action against a Governor can only occur after they cease office.

Mains PYQ 

Q Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature.

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Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

Financial Relief in Domestic Violence Cases

Note4Students

From UPSC perspective, the following things are important :

Prelims level: DV Act 2005 and its key provisions

Mains level: NA

Why in the news?

  • A recent question before the Supreme Court compelled it to deliberate on whether damages for domestic violence should be determined based on the injuries sustained by the victim or the perpetrator’s ability to pay.
  • The petitioner contested orders from the Bombay High Court and a trial court directing him to pay Rs 3 crore to his wife under Section 22 of the Protection of Women from Domestic Violence Act, 2005.

Domestic Violence Law: An Overview

  • The DV Act, 2005 aims to safeguard women’s rights by addressing violence within the family.
  • Key Features of the DV Act:
Details
Background Introduced in 2005 to address limitations in civil and criminal courts regarding domestic violence (under Section 498A of the Indian Penal Code).
Definitions of Violence
  • Includes physical, sexual, emotional, verbal, psychological, and economic abuse (Section 3).
  • Even a single act of harm or injury qualifies as domestic violence.
Beneficiaries
  • Any woman in a domestic relationship (Section 2).
  • Children can also file complaints, and any person can file on their behalf (Section 2).
Respondents
  • Adult male members in domestic relationships (Section 2).
  • Relatives of the husband or male partner can also be respondents (Section 2).
Rights to Residence Women cannot be denied access to resources during legal proceedings (Section 17).
Other Rights
  • Access to police, shelter, medical aid, and legal assistance.
  • Can obtain various court orders, including protection, residence, and compensation orders (Section 18).
Remedial Measures
  • Victims entitled to medical facilities, counseling, and shelter (Section 12).
    • Both parties may receive counseling as directed by the court (Section 14).
  • Respondents required to provide compensation for losses incurred by the victim (Section 20).
  • Courts to order respondents to pay damages for injuries, including mental and emotional trauma, resulting from domestic violence (Section 22).
Protection Officers Appointment of officers in each district, preferably women, with necessary qualifications (Section 8).
Fixed Timeline All complaints must be heard and disposed of within 60 days (Section 12).

 

PYQ:

[2022] Explore and evaluate the impact of ‘Work From Home’ on family relationships.

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Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

[pib] NCW-RPF Collaboration to prevent Women Trafficking

Note4Students

From UPSC perspective, the following things are important :

Prelims level: National Commission for Women (NCW): Powers and Functions

Mains level: NA

What is the news-

NCW-RPF MoU: Key Objectives

 

  1. Prevention and Rescue: The MoU aims to prevent human trafficking and facilitate the rescue of trafficked women through joint efforts.
  2. Role of RPF Personnel: RPF personnel stationed at railway stations are crucial in preventing trafficking and addressing crimes against women.
  3. Expanding Collaboration: NCW, which established an Anti-Human Trafficking Cell on April 2, 2022, has already been working with the Central Industrial Security Force (CISF) to combat the trafficking of women.

 

About National Commission for Women (NCW)

  • 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 National Commission for Women Act, 1990.
  • The first head of the commission was Jayanti Patnaik.
  • 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.
  • They have also discussed police abuses against women.

Composition of the NCW

The Commission shall consist of:

  • Chairperson: To be nominated by the Central Government.
  • Five Members: To be nominated by the Central Government from amongst persons of ability, integrity and standing who have had experience in law or legislation, trade unionism, management of an industry potential of women, women’s voluntary organizations (including women activists), administration, economic development, health, education or social welfare;
  • Special Representations: At least one Member each shall be from amongst persons belonging to the Scheduled Castes and Scheduled Tribes respectively;

Powers of NCW

  • Provide consultation on all major policy matters that affect women.
  • Issuing summons for the examination of documents and the witnesses.
  • Requisitioning any public record or copy thereof from any court or office.
  • Receiving evidence on affidavits
  • Discovery and production of documents
  • Summoning and enforcement

Functions of the NCW

  • Submission of Annual Reports: Table reports should be submitted to the Central Government every year, when deemed appropriate by the commission. These reports focus on the functioning and working of the safeguards.
  • Investigation and Examination: Proper investigation and examination are conducted under the Constitution and other laws, primarily aimed at protecting the rights of women.
  • Review and Scrutiny of Laws: Constant review and scrutiny of all laws are undertaken, with necessary amendments and alterations made to meet the needs of the current world.
  • Prevention of Violations: Ensuring there is no violation against women and taking due care of such cases to protect their rights.
  • Handling Complaints and Suo Motu Matters: Handling complaints and addressing suo motu matters about the deprivation of rights of women, with a focus on implementing laws favoring women’s welfare.
  • Assessment of Development and Progress: Assessing the development and progress of the women community at both the Center and State levels.
  • Identification and Mitigation of Systemic Limitations: Understanding the limitations in the system and devising strategic plans and mechanisms to address them effectively.

Issues faced by NCW

  • Limited Enforcement Power: The NCW is only recommendatory and lacks the power to enforce its decisions, often taking action only when issues are brought to light.
  • Lack of Constitutional Status: The Commission lacks constitutional status, resulting in no legal powers to summon police officers or witnesses.
  • Dependency on Grants: NCW’s functions are heavily dependent on grants offered by the central government, with insufficient financial assistance to cater to its needs.
  • Limited Autonomy in Member Selection: The Commission does not have the power to choose its own members, impacting its autonomy and effectiveness.

PYQ:

Q.Is the National Commission for Women able to strategize and tackle the problems that women face at both public and private spheres? Give reasons in support of your answer. (2017)

 

Q.According to the Constitution of India, it is the duty of the President of India to cause to be laid before the Parliament which of the following?

  1. The Recommendations of the Union Finance Commission
  2. The Report of the Public Accounts Committee
  3. The Report of the Comptroller and Auditor General
  4. The Report of the National Commission for the Scheduled Castes

Select the correct answer the using the codes given below:

  1. 1 only
  2. 2 and 4 only
  3. 1, 3 and 4 only
  4. 1, 2, 3 and 4

Practice MCQ:

Which of the following does not constitute to the powers of National Commission for Women (NCW)?

  1. Issuing summons
  2. To make any record public
  3. Receiving evidence on affidavits
  4. Enforcing legal action against individuals

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700 One Stop Centres to be set across India

Note4Students

From UPSC perspective, the following things are important :

Prelims level: One Stop Centre Scheme

Mains level: Read the attached story

Introduction

  • In a significant move towards women’s safety and empowerment, the Union Minister for Women and Child Development recently announced the establishment of One Stop Centres (OSCs) in over 700 districts across the nation.

About One Stop Centre Scheme

  • Central Sponsorship: The One Stop Centre scheme is a Centrally Sponsored Scheme developed under the aegis of the Union Ministry of Women and Child Development (MWCD).
  • Inception: The scheme has been in operation since April 1, 2015, with a primary focus on addressing Gender-Based Violence.
  • Universal Reach: The One Stop Centre Scheme is committed to aiding all women, including girls below 18 years, who have suffered violence. Regardless of caste, class, religion, region, sexual orientation, or marital status, all women are eligible for support.
  • Protection for Minors: For girls below 18 years of age, the scheme collaborates with institutions and authorities established under the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Protection of Children from Sexual Offenses Act, 2012.

Objectives of the One Stop Centre Scheme

  • Holistic Support: The core objective is to provide comprehensive and integrated support to women who have endured violence, whether in private or public spaces. All assistance is conveniently accessible under one roof.
  • Immediate Access: These centres ensure immediate access to a wide array of services encompassing medical, legal, psychological, and counseling support. This collective approach stands resolute against all forms of violence targeting women.

Funding and Administration

  • Financial Backing: The Scheme receives its funding through the Nirbhaya Fund, with the Central Government providing 100% financial assistance.
  • Local Administration: Day-to-day implementation and administrative responsibilities rest with the District Collector/District Magistrate.

Services Offered by OSCs

The One Stop Centres serve as a lifeline for women in need, offering an array of essential services:

  • Emergency Response and Rescue Services
  • Medical Assistance
  • Assistance with lodging FIR/ NCR/DIR
  • Psycho-social Support and Counseling
  • Legal Aid and Counseling
  • Shelter
  • Video Conferencing Facility

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Delhi HC upholds Ban on Sapinda Marriages: Legal Insights

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Sapinda Marriages

Mains level: Read the attached story

Introduction

  • The Delhi High Court recently dismissed a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which prohibits sapinda marriages among Hindus unless custom permits.
  • The court’s decision affirms the legal restrictions on such marriages and emphasizes the importance of regulating marital choices.

For Aspirants with Sociology Optional, this article is of immense importance under: “Systems of Kinship- Family, household, marriage” in both Paper I and Paper II.

Understanding Sapinda Marriages

  • Definition: Sapinda marriages involve individuals closely related within specified degrees, as per Section 3(f)(ii) of the HMA.
  • Prohibition: The HMA prohibits sapinda marriages within a certain range of lineal ascent, ensuring that marriages do not occur between individuals with a common lineal ascendant within the defined limits.

Legal Framework

  • Void Marriages: Sapinda marriages that violate Section 5(v) and lack an established custom permitting them are declared void, meaning they are considered invalid from the outset.
  • Customary Exception: The sole exception to this prohibition arises when both parties’ customs permit sapinda marriages, as defined in Section 3(a) of the HMA.
  • Custom Criteria: To qualify as a custom, it must be continuously observed, uniform, reasonable, and not opposed to public policy, gaining legitimacy among Hindus in a particular area or community.

Grounds for Challenging the Law

  • Constitutional Challenge: The petitioner contended that Section 5(v) violated the right to equality under Article 14 of the Constitution by requiring proof of custom for sapinda marriages.
  • Lack of Proof: The woman argued that sapinda marriages exist even without documented custom, and the consent of both families validated the marriage.

High Court’s Decision

  • No Established Custom: The Delhi HC found no stringent proof of an established custom supporting sapinda marriages, which is crucial under the law.
  • Regulation of Marriages: The court upheld the idea that the choice of a marriage partner can be subject to regulation.
  • No Violation of Equality: The petitioner failed to provide compelling legal grounds to challenge the prohibition against sapinda marriages on grounds of violating the right to equality.

International Perspectives

  • European Laws: In several European countries, laws related to incestuous relationships are less stringent compared to India, allowing marriages between consenting adults.
  • Examples: France, Belgium, Portugal, and Italy have different laws regarding incestuous relationships and marriages.
  • US Laws: In the United States, incestuous marriages are banned in all 50 states, but some states allow incestuous relationships between consenting adults.

Conclusion

  • The Delhi HC decision reaffirms the legal framework regulating sapinda marriages in India and emphasizes the importance of established customs in permitting such unions.
  • It also highlights the differing legal approaches to incestuous relationships and marriages in various countries.

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Supreme Court Overturns Remission in Bilkis Bano Case

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Remission of Sentences

Mains level: Bilkis Bano Verdict

bilkis bano

Introduction

  • Supreme Court’s Ruling: The Supreme Court struck down the remission granted to 11 men convicted in the 2002 Bilkis Bano Gangrape Case.
  • Gujarat Government’s Action Deemed Illegal: The court declared the Gujarat government’s decision to release the convicts as illegal, citing jurisdictional issues.

Remission of Sentences: Constitutional Analysis

Details
What is Remission? Complete ending of a sentence at a reduced point;

Nature of the sentence remains unchanged, but the duration is reduced;

Conditional release; breach of conditions leads to cancellation.

Constitutional Provisions Article 72: President’s pardoning powers

Article 161: Governor’s pardoning powers

President’s pardoning power >>> Governor’s

Statutory Power of Remission Provided under the Code of Criminal Procedure (CrPC)

Sections 432 and 433 allow suspension, remission, or commutation of sentences

Background of Remission System Defined under the Prison Act, 1894;

Observed in Kehar Singh vs. Union of India (1989) and

State of Haryana vs. Mahender Singh (2007) cases

Latest MHA Guidelines Special Remission Guidelines to commemorate 75th year of Independence as part of the Azadi Ka Amrit Mahotsav celebrations.
Eligibility for Special Remission Women and transgender convicts aged 50+

Male convicts aged 60+, having completed 50% of their sentence

Physically challenged convicts with 70% + disability, having completed 50% of their sentence

Terminally ill convicts who have completed 66% of their sentence

Poor prisoners detained due to non-payment of fines

Young offenders aged 18-21 with no other criminal involvement, having completed 50% of their sentence

Exclusions from the Scheme Convicts with death sentences or life imprisonment;

Convicts involved in terrorist activities or convicted under specific acts like TADA, POTA, UAPA, etc.

Convicts of offences like dowry death, counterfeiting, rape, human trafficking, POCSO Act violations, etc.

Core Issue before the Court

  • Question of Authority: The central issue was whether the Gujarat government had the authority to issue remission orders for the convicts.
  • Jurisdictional Clarification: The crime occurred in Gujarat, but the trial was held in Mumbai. The Supreme Court clarified that the appropriate government for remission decisions is where the sentencing occurred, not where the crime was committed.

Understanding Remission of Sentences

  • Constitutional and Legal Provisions: Articles 72 and 161 of the Constitution and Section 432 of the CrPC empower the President, Governors, and state governments to remit sentences.
  • Restrictions Under Section 433A of the CrPC: This section imposes limitations on remission for life imprisonment cases, requiring a minimum of 14 years of imprisonment.

Grounds for Remission

  • Sentence Review Board’s Role: States have a Sentence Review Board to exercise powers under Section 432 of the CrPC.
  • Supreme Court Guidelines: The court mandates due process in remission decisions, considering factors like the crime’s seriousness, co-accused status, and jail conduct.
  • Criteria Established in ‘Laxman Naskar v. Union of India’ (2000): The Supreme Court outlined five specific grounds for considering remission:

(a) Whether the offence is an individual act of crime that does not affect society.

(b) The likelihood of the crime being repeated in the future.

(c) Whether the convict has lost the potentiality to commit a crime.

(d) The purpose served by keeping the convict in prison.

(e) Socio-economic conditions of the convict’s family.

The Bilkis Bano Case Specifics

  • Convict’s Appeal for Remission: A convict appealed to the Supreme Court for premature release under Gujarat’s 1992 remission policy.
  • Supreme Court’s Initial Directive: The court initially directed the Gujarat government to consider Shah’s application as per the 1992 policy.

Gujarat’s Remission Policy and Its Implications

  • 1992 Policy vs. 2014 Policy: The 1992 policy, under which remission was sought, was invalidated by the Supreme Court in 2012.
  • Gujarat Government’s Argument: The state argued that the 1992 policy was applicable as the conviction occurred in 2008, before the 2014 policy with stricter guidelines was formulated.

Aftermath of the Remission Grant

  • Public Outrage: The release of the convicts sparked widespread outrage and was perceived as a miscarriage of justice.
  • Bilkis Bano’s Appeal: Bilkis Bano challenged the remission in the Supreme Court, highlighting the heinous nature of the crime and its impact on society.

Conclusion

  • Restoration of Legal Integrity: The Supreme Court’s decision to overturn the remission restores faith in the legal system’s commitment to justice.
  • Reaffirmation of Jurisdictional Authority: The ruling clarifies the jurisdictional authority in remission cases, reinforcing the importance of due process and legal consistency.
  • Broader Implications: This judgment sets a precedent for future remission cases, emphasizing the need for careful consideration of the crime’s nature and societal impact in such decisions.

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Are Crimes against Women on the Rise?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Crimes against Women

Central Idea

  • Despite a decline in overall crime rate in 2022, the National Crime Records Bureau (NCRB) report highlights a 4% rise in crimes against women.
  • The crime rate dropped to 258.1 per lakh population in 2022 from 268 per lakh in 2021, but crimes against women increased.

Nature of Crimes Against Women

  • Major Categories: The majority of crimes included:
  1. Cruelty by husband or relatives (31.4%),
  2. Kidnapping and abduction (19.2%),
  3. Assault with intent to outrage modesty (18.7%), and
  4. Rape (7.1%).
  • Dowry Prohibition Act: 13,479 cases were registered under this act.

Societal and Legal Perspectives

  • Patriarchal Society: Activists and lawyers attribute the rise to deep-rooted patriarchal mind-sets in Indian society.
  • Legal Framework: Key laws for women’s safety include The Immoral Traffic (Prevention) Act, The Dowry Prohibition Act, The Commission of Sati (Prevention) Act, Protection of Women from Domestic Violence Act, and others.
  • Implementation Challenges: Despite strong laws, their effective implementation remains a challenge.

Interpretation of Increased Crime Registration

  • NCRB Report Findings: Over 4.45 lakh cases of crimes against women were registered in 2022, indicating a high rate of 66.4 crimes per lakh population.
  • Charge Sheet Filing Rate: The rate of filing charge sheets in such cases was 75.8%.
  • Views on Increased Registration: Some experts view the rise as indicative of women’s increased confidence in approaching police, while others see it as a reflection of persistent inequality and societal attitudes.

Regional Variations in Crime Registration

  • Delhi’s High Crime Rate: With 14,247 cases, Delhi recorded the highest rate of crimes against women at 144.4 per lakh.
  • Contrast with Other Regions: In many parts of India, especially rural areas, crime registration is low, and fear of police is high.

Challenges in Law Enforcement and Judiciary

  • Policing Issues: There is a lack of trained police officers for investigations, leading to poor charge sheet preparation.
  • Judicial Delays: Cases take years in trial courts, with appeals extending the duration further.
  • Fast-Track Courts: Despite their existence, fast-track courts for grievous crimes are as slow as regular courts.

Representation of Women in Police Force

  • Low Proportion: Women police officers’ representation in the force is low, leading to disproportionate workloads and slower charge sheeting and convictions.
  • Ministry of Home Affairs Data: As of January 1, 2022, women constituted only 11.7% of the total state police force.

Conclusion

  • Need for Strong Political Will: Effective policies and programs are required to elevate women’s status and address the root causes of gender-based violence.
  • Improving Law Enforcement and Judiciary: Enhancing police training, increasing women’s representation in the force, and expediting judicial processes are crucial steps.

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Bharatiya Nyaya Sanhita (BNS), 2023 on False Promise of Marriage

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: False Promise of Marriage

Central Idea

  • The proposed Bharatiya Nyaya Sanhita (BNS), 2023, seeks to address a specific issue concerning sexual relationships based on false promises of marriage.
  • Section 69 of this Bill introduces significant changes in this regard.

Section 69 of BNS – Sexual Intercourse on False Promise of Marriage

  • Creation of Two Offenses: Section 69 within Chapter 5 of the BNS, titled “Offences against Women and Children,” defines ‘sexual intercourse by employing deceitful means etc.’ and includes two violations: one by deceitful means and one by a ‘false promise to marry.’
  • Deceitful Means: The first violation involves employing deceitful means, such as a false promise of employment, promotion, or marriage, with the intent to induce sexual relations. If a person uses such means, they could face penalties of up to ten years of imprisonment.
  • False Promise to Marry: The second violation pertains to making a false promise to marry a woman with the intention of breaking that promise, solely to obtain her consent and exploit her sexually. This offense is also subject to a penalty of up to ten years of imprisonment.

Why Section 69 Is Introduced?

  • Historical Context: In the absence of a specific provision, cases of sexual intercourse based on false promises of marriage were previously addressed using other sections of criminal law, causing ambiguity.
  • Prevalence of Cases: Cases of sex under the “false promise of marriage” had been reported frequently, with victims often unable to seek legal remedy effectively.
  • Legal Ambiguity: The existing legal framework did not clearly distinguish between a ‘false promise’ and a ‘breach’ of promise to marry, creating complications in determining consent and intention.

Courts’ Handling of ‘False Promise of Marriage’ Cases

  • Judicial Interpretation: Courts had traditionally relied on existing laws like Sections 375 and 90 of the Indian Penal Code (IPC) to address such cases.
  • Consent Examination: Section 375 defines consent as an unequivocal voluntary agreement, and Section 90 considers consent given under “misconception of fact.” Courts examined cases based on these provisions.
  • Distinguishing Factors: Courts differentiated between a ‘false promise’ made with the intent to deceive and a ‘breach’ of promise made in good faith but not fulfilled.
  • Crucial Judgments: The Supreme Court’s judgment in ‘Pramod Suryabhan Pawar vs. State of Maharashtra’ (2019) highlighted the importance of the promise-maker’s intent to deceive. Another significant case, ‘Dileep Singh vs. State of Bihar,’ underscored the need for establishing a lack of intention to marry for the offense to be considered rape.

Implications and Critiques of Section 69

  • Endogamy Promotion: Critics argue that Section 69 may promote endogamy by shifting the focus from real harm and abuse to whether the man intended to marry, disregarding the complex social context in which such relationships occur.
  • Ambiguity and Discretion: The Bill’s vagueness and discretionary nature could perpetuate uncertainty and reliance on gender norms, potentially re-victimizing women.
  • Cycle of Consequences: While the Bill specifies the consequences of the crime, it may overlook the harm suffered by women, contributing to a cycle where justice remains elusive.

Conclusion

  • Section 69 of the proposed BNS, 2023, addresses a crucial issue related to sexual relationships based on false promises of marriage.
  • However, the Bill’s implementation and interpretation will require careful scrutiny to ensure justice is served without perpetuating harmful gender norms or social biases, as indicated by crucial judgments in relevant cases.

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Supreme Court questions selective Remission

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Remission, Pardoning Power

Mains level: Political use of Pardoning Power

remission

Central Idea

  • The Supreme Court bench handling petitions related to the early release of convicts in the Bilkis Bano case raised concerns about the selective application of remission policies in Indian jails.
  • Justices on the two-judge bench questioned why the policy is not uniformly implemented and sought clarifications from the Additional Solicitor General representing the Gujarat government.

Also read:

What is Bilkis Bano Case?

Bilkis Bano Case and Remission

  • Background of the Case: Bilkis Bano was a victim of gangrape during the 2002 riots in Gujarat, where her three-year-old daughter was also killed by a mob. She was pregnant at the time.
  • Remission and Release: All 11 convicts in the Bilkis Bano case were granted remission by the Gujarat government, leading to their release on August 15, 2022.
  • Justification for Release: The Additional Solicitor General defended the state’s decision, explaining that remission is distinct from sentencing and that guidelines are being considered to address concerns about its application.

Inquiry into Remission Policy Application

  • Selective Implementation Query: The Supreme Court inquired why the policy of remission, aimed at granting convicts early release, is applied selectively across jails and states.
  • Overcrowding and Undertrials: The court raised concerns about the overcrowding of jails, especially with undertrials, and questioned the reasons behind the policy not being consistently applied.
  • Justice Nagarathna’s Query: Justice B V Nagarathna, leading the bench, emphasized that state-wise statistics are needed to understand the extent to which the remission policy is applied and whether every eligible prisoner is given an opportunity to reform.
  • Relevance of Rudul Sah Case: Referring to the Rudul Sah case, where an individual remained in jail for 14 years despite acquittal, the court highlighted extreme cases where the prison system failed to provide justice. The court emphasized that fairness should prevail in both conviction and acquittal scenarios.

What is Remission?

  • Stay of Execution: Remission involves suspending or postponing the execution of a sentence.
  • Reduced Duration: It reduces the sentence’s duration while maintaining its original nature.
  • Unchanged Sentence Nature: The sentence’s fundamental characteristics remain intact; only the duration is shortened.
  • Release Date Determined: Remission sets a specific date for the prisoner’s release, marking their legal freedom.
  • Conditional Release: Any breach of remission conditions cancels it, necessitating the completion of the original sentence.

Constitutional Framework for Remission:

  • Prisons as State Subject: Prisons fall under the State List of the Seventh Schedule of the Indian Constitution.
  • Pardoning Power: Article 72 (President) and Article 161 (Governor) grant pardoning, suspending, remitting, or commuting powers for sentences issued by courts.

New Norms for Remission:

(A) Eligibility Criteria

  • Women and transgender convicts aged 50 and above
  • Male convicts aged 60 and above, completing 50% of their sentence (excluding general remission period)
  • Physically challenged convicts with 70% or more disability, completing 50% of their sentence
  • Terminally ill convicts
  • Convicts serving two-thirds (66%) of their sentence
  • Indigent prisoners completing their sentence but detained due to unpaid fines
  • Offenders aged 18-21 with no criminal involvement, completing 50% of their sentence

(B) Exceptions

  • Excluded: Death sentence convicts, life imprisonment convicts, and those convicted under specific acts.
  • Prohibited Acts: Terrorism-related offences, acts under anti-terror and security legislation, explosives, national security, official secrets, and anti-hijacking.

Implications and Benefits

  • Justice and Equity: The new norms aim to provide justice to certain categories of prisoners and address their specific circumstances.
  • Overcrowding Mitigation: By releasing eligible convicts, the policy seeks to alleviate prison overcrowding.
  • Reformation Focus: Remission offers prisoners an opportunity to reform, especially those who demonstrate good behaviour or require medical attention.
  • Humanitarian Approach: The policy recognizes the needs of the physically challenged, terminally ill, and aged prisoners.
  • Respecting Youth: Young offenders with no further criminal engagement are given a chance for early rehabilitation.

Back2Basics: Pardoning Powers in India

  • Pardoning powers in India, enshrined in Article 72 for the President and Article 161 for Governors, provide a mechanism for granting leniency, reducing sentences, or offering reprieves to convicted individuals.
  • These powers play a crucial role in the justice system, allowing for the reconsideration of punishments in specific cases.

Presidential Pardoning Powers

  • Scope and Authority: Article 72 empowers the President to grant pardons, respites, reprieves, or remissions of punishment, or to suspend, remit, or commute sentences.
  • Types of Pardoning:
  1. Pardon: Complete exoneration, restoring the person’s status as a normal citizen.
  2. Commutation: Reducing the severity of punishment, e.g., converting a death penalty to life imprisonment.
  3. Reprieve: Delaying execution to allow time for further legal remedies or evidence presentation.
  4. Respite: Reducing the punishment’s degree due to specific circumstances.
  5. Remission: Altering the punishment’s quantum without changing its nature.

Cases Covered by Article 72

  1. Cases tried by court-martial.
  2. Cases involving offences under Union’s executive power.
  3. Cases with a death sentence.

Governor’s Pardoning Powers

  • Governor’s Authority: Article 161 grants the Governor the power to pardon, commute, suspend, or remit sentences.
  • Scope and Limitation: Pardoning authority extends to offences within the state’s executive jurisdiction.
  • Exclusion: Governors lack the authority to grant pardons in cases of death sentences.

Nature of Pardoning Power

  • Presidential Advice: Though not explicitly mentioned in the Constitution, the President exercises pardoning powers based on the Council of Ministers’ advice.
  • Governor’s Power: The Governor’s pardoning power is also guided by the principle of seeking advice.
  • Judicial Review: The Epuru Sudhakar case highlighted the possibility of limited judicial review over the pardon powers exercised by the President and Governors. This review aims to prevent arbitrariness.
  • Judicial Retained Power: Despite these powers vested in the Executive, the judiciary retains a measure of authority for judicial review, ensuring fairness and constitutionality.

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Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

Marital Rape Case hearing soon: SC

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Marital Rape

marital rape

Central Idea

  • CJI DY Chandrachud has agreed to list a series of petitions seeking the criminalisation of marital rape for an early hearing.
  • The petitions, triggered by decisions from the Karnataka and Delhi High Courts, aim to challenge the exception in Section 375 of the Indian Penal Code (IPC) that currently decriminalises marital rape.

What is Marital Rape?

  • Marital rape is the act of sexual intercourse with one’s spouse without her consent.
  • It is no different manifestation of domestic violence and sexual abuse.
  • Sex and sexual violence are different altogether irrespective of the person in intercourse.

Why discuss this?

  • Historical Perspective: Marital rape was historically considered a right of spouses, but it is now recognized as a form of sexual abuse and domestic violence in many societies worldwide.
  • Indian Penal Code: Marital rape is not explicitly recognized as a criminal offense under Section 375 of the Indian Penal Code (IPC).
  • Exception: Exception Two of Section 375 decriminalizes marital rape, stating that sexual intercourse by a man with his own wife, who is not under 18 years of age, without her consent is not considered rape.
  • Non-Criminalization: India is one of the fifty countries that have not yet outlawed marital rape.

Background and High Court Decisions

  • Karnataka HC: It had in April 2022 held that a husband could be charged with rape if he had forcible sexual intercourse with his wife.
  • Delhi HC: A Division Bench delivered a split verdict in May 2022 on the issue of marital rape. It struck down ‘exception two’ as unconstitutional, while another judge rejected the plea to criminalise marital rape, suggesting that any changes in the law should be addressed by the legislature.
  • Gujarat HC: Before this ruling, in 2018, the Gujarat High Court also called for a relook at the marital rape immunity but quashed the charge of rape against the married man.

marital rape

Justice J.S. Verma Committee Recommendations (2013)

  • It recommended the removal of the exception for marital rape.
  • It proposed that the law should specify that the “marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.”

Key observations by Delhi High Court

  • Spousal Intimacy: The court highlighted that consent within a marriage is often given as a part of spousal intimacy, even when the will to engage may be absent.
  • Written Agreements: The court suggested that treating every such case as marital rape could result in partners having to draft detailed written agreements for survival in a marriage.
  • Burden of Evidence: The court expressed concerns about creating a detailed evidentiary record of every act of intimacy or involving a third party as a witness.
  • Marriage Obligations: The court emphasized that marriage entails obligations, including conjugal expectations, financial responsibilities, and duties towards progeny.
  • Sexual Liberty: The court noted that signs of injury on a partner may not necessarily indicate non-consensual sex but could be a result of passion in the age of sexual liberation.
  • Cruelty vs. Rape: The court stated that forced sexual intercourse between spouses cannot be treated as rape and, at most, could be considered sexual abuse under the Domestic Violence Act.

Reasons against Criminalization

  • Traditional Views: The reluctance to criminalize non-consensual sex between married couples is attributed to traditional views of marriage.
  • Religious Doctrines: Interpretations of religious doctrines often influence the perceptions of marital relationships.
  • Gender Norms: Societal expectations of male and female sexuality and the subordination of wives to their husbands contribute to the resistance against criminalization.
  • Subjectivity: Determining consent in marital rape cases can be subjective and intricate.
  • Potential Misuse: Without adequate safeguards, criminalizing marital rape could be misused by dissatisfied wives to harass their husbands, similar to the misuse of dowry laws.
  • Judicial Burden: Criminalizing marital rape could increase the burden on the judiciary, diverting resources from other important cases.

Arguments for Criminalization

  • Associated Violence: Marital rape is often accompanied by physical violence, making it a more dangerous form of sexual abuse.
  • Mental Harassment: Research indicates that marital rape can cause more emotional and physical harm than rape by a stranger.
  • Abusive Relationships: Marital rape is frequently part of an abusive relationship rather than a one-time event.
  • Violation of Rights: Criminalizing marital rape is seen as a violation of fundamental rights, including the right to privacy and bodily integrity guaranteed under Article 21 of the Indian Constitution.

Challenges in Prosecuting Marital Rape

  • Lack of Awareness: Limited public awareness and reluctance of authorities to prosecute are common challenges globally.
  • Gender Norms: Societal norms that subordinate wives to their husbands make it difficult for women to recognize and report marital rape.
  • Acceptability: Prevailing social norms often prevent the acceptance of the concept of marital rape.

Present Regulations in India

  • Indian Penal Code: The IPC criminalizes rape in most cases, but marital rape is not illegal when the woman is over 18 years of age.
  • Age of Consent: Until 2017, men married to women between 15 and 18 years old could not be convicted of rape.
  • Separated Wives: Marital rape of an adult wife who is separated, officially or unofficially, is a criminal offence punishable by imprisonment.
  • Domestic Violence Act: The Protection of Women From Domestic Violence Act (2005) provides married women subjected to marital rape with the right to demand financial compensation and seek shelter or aid homes.

Way forward

  • Recognition of Rights: Sanctioning marital rape acknowledges a woman’s right to control her body and self-determination.
  • Need for Concrete Law: The absence of a clear law makes it challenging for the judiciary to decide domestic rape cases without solid evidence.
  • Balancing Rights and Duties: The judiciary should consider the rights and duties of both partners before providing a final interpretation.

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Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

Kerala HC Quashes POCSO Charges for Contextual Nudity

Note4Students

From UPSC perspective, the following things are important :

Prelims level: POCSO Act

Mains level: Read the attached story

nudity kerala hc pocso
PC: The Quint

Central Idea

  • Kerala High Court’s Ruling on POCSO Case: Quashing of a case filed against a Kerala actor/activist accused of subjecting her children to an obscene act.
  • Emphasis on Contextual Consideration: The court highlights the need to consider the context in which the act was performed and challenges the notion of default sexual interpretation.

Nudity and Obscenity Charges against the Accused

(1) POCSO Case

  • Video Incident and Allegations: A women’s rights activist posted a video on social media showing her children painting on her semi-nude torso with the hashtag “Body Art and Politics”.
  • Outrage and Accusations: Public outcry ensues, and the activist is accused of subjecting her children to an obscene act.
  • Charges Filed under POCSO Act: The police register a case and charge her under various sections of the Protection of Children from Sexual Offences (POCSO) Act.

(2) IT Act and JJ Act Charges

  • Additional Charges: The activist also faced charges under Section 67B (a), (b), and (c) of the Information Technology (IT) Act and Section 75 of the Juvenile Justice (JJ) Act.
  • IT Act Charges: The charges relate to publishing or transmitting obscene material involving children.
  • JJ Act Charge: The charge pertains to cruelty towards children.

Court’s Ruling on POCSO Charges

  • Absence of Sexual Intent: The court examined the video and concludes that there was no sexual intent on the part of the mother.
  • Dismissal of POCSO Charges: The court dismissed charges under relevant sections of the POCSO Act, as sexual intent and use of children for pornography were not established.
  • Contextual Consideration: The court emphasizes the importance of considering the context in which the video was published.
  • Discharge from IT and JJ Act Charges: The court discharged the activist from charges under the IT and JJ Acts, finding no sufficient grounds for proceeding against her.

Significance of the Judgment

  • Bodily Autonomy as Human Dignity: The court emphasized women’s autonomy as an integral aspect of human dignity.
  • Importance of Bodily Autonomy: The court highlighted the significance of bodily autonomy in making choices about one’s own body.
  • Legal Interpretation of Obscenity: The court explained the definition of obscenity based on legal precedents.
  • Comparison of Standards: The court compared the Hicklin Test with contemporary community standards to determine obscenity.

 

Hicklin Test

The Hicklin Test is a legal standard used to determine obscenity in various jurisdictions. It originated from the 1868 ruling in the UK case of ‘Queen vs. Hicklin.’ According to the Test, material is considered obscene if it has the potential to “Deprave and Corrupt” individuals whose minds are open to immoral influences. This test focuses on the impact of the material on vulnerable individuals rather than considering its overall artistic or social value. This Test has been subject to reinterpretation and revision in subsequent legal decisions.

 

Nudity and Cultural Context

  • Nudity beyond Obscenity: The court asserted that nudity and obscenity are not always synonymous.
  • Cultural Examples: The court cited cultural and artistic depictions of nudity in temples and festivals to demonstrate the acceptance of nudity in certain contexts.

Challenging Double Standards and Promoting Equality

  • Critique of Double Standards: The court criticized the double standards that sexualize women’s bodies while allowing men’s bodies to be exposed.
  • Activist’s Intent: The court acknowledged the activist’s intention to challenge these double standards.
  • Importance of Individual Freedom: The court concluded that societal norms and morality should not dictate legal prosecution, emphasizing individual freedom and equality before the law.

Balancing Individual Autonomy and Societal Morality

  • Delicate Balance: We must consider the delicate balance between individual autonomy and societal morality in cases involving nudity and obscenity.
  • Need for Contextual Consideration: Reiteration of the importance of considering the specific context and intentions behind an act before passing judgment about someone is crucial.

Navigating Obscenity Standards: Hicklin Test and Beyond

  • Exploring the Hicklin Test: Explanation of the historical significance and limitations of the Hicklin Test in determining obscenity.
  • Evolving Standards: Reflection on the evolving legal standards and the shift towards contemporary community standards in assessing obscenity.

Way forward

  • Promoting Education: Implement comprehensive educational programs to raise awareness about the nuances of nudity, artistic expression, and individual autonomy.
  • Addressing Stereotypes: Challenge societal stereotypes and misconceptions surrounding nudity, promoting a more inclusive understanding of diverse forms of artistic expression.
  • Cultural Sensitivity: Encourage respectful discussions that acknowledge and respect different cultural perspectives on nudity and artistic expression.
  • Review of Obscenity Laws: Conduct a comprehensive review of existing obscenity laws to ensure they align with contemporary community standards and protect freedom of expression and individual autonomy.
  • Contextual Consideration: Introduce legal provisions that mandate contextual considerations when assessing charges related to nudity and obscenity, emphasizing artistic intent and cultural significance.
  • Support Artistic Expression: Provide platforms, grants, and resources to support artists exploring nudity as a form of artistic expression, fostering creativity, and challenging societal norms.

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Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

10 Years of Sexual Harassment Law

Note4Students

From UPSC perspective, the following things are important :

Prelims level: SHW Act

Mains level: Women saftet at workplace

Central Idea

  • The Supreme Court of India has identified “serious lapses” and “uncertainty” in the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act).
  • It has directed the Union, States, and UTs to verify the formation of Internal Complaint Committees (ICCs) in government bodies and ensure strict adherence to the Act’s composition requirements.

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 Vishakha 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”.

Circumstances amounting to SHW

The Act mentions five circumstances that amount to sexual harassment implied or explicit:

  1. Promise of preferential treatment in her employment
  2. Threat of detrimental treatment
  3. Threat about her present or future employment status
  4. Interference with her work or creating an offensive or hostile work environment
  5. Humiliating treatment likely to affect her health or safety

Procedure for complaint

Description
Filing a complaint Aggrieved victim has the option to file a complaint with the ICC, but it is not compulsory for the ICC to act.
Assistance in filing a complaint Any member of the ICC must provide reasonable assistance to the victim in filing a written complaint.
Filing a complaint on behalf of the victim If the victim is unable to file a complaint due to incapacity, death, or other reasons, her legal heir may file it on her behalf.
Time limit for filing a complaint Complaint must be made within 3 months from the date of the incident
Extension of time limit ICC has the authority
Monetary settlement and conciliation Yes
Forwarding complaint or initiating an inquiry Must be completed within 90 days.
Confidentiality of information Act ensures the confidentiality of the woman’s identity, respondent’s identity, inquiry details, recommendations, and actions taken

Requirements imposed on employers

Description
Internal Complaints Committee (ICC) Employers with more than 10 employees must establish an ICC to address sexual harassment complaints.
Composition of ICC The ICC must include women employees, another employee, and a third-party member familiar with sexual harassment issues.
Local Committee (LC) for smaller organizations Organizations with fewer than 10 employees must create an LC to receive complaints from the informal sector.
Complaint filing process Women can file written complaints to either the ICC or LC within three to six months of the incident.
Resolution methods The Act provides two resolution methods: conciliation between the parties involved or conducting an inquiry by the committee.
Annual audit report Employers must file an annual audit report on sexual harassment complaints and take responsibility for conducting workshops, awareness programs, and orientation for ICC members.
Non-compliance penalties Non-compliance with the Act can result in penalties, including fines.

Hurdles to the Act’s Implementation

Description
Inadequate constitution of ICCs Improper constitution of Internal Complaint Committees (ICCs) with inadequate members or absence of mandatory external members.
Lack of accountability Unclear specification of responsibilities for ensuring compliance with the Act, leading to ineffective enforcement.
Inaccessibility for informal sector workers Limited accessibility of the law for women in the informal sector, comprising a significant portion of the female workforce.
Underreporting of sexual harassment cases Significant underreporting of cases due to fear of repercussions, power dynamics, and lack of awareness about the process.
Reliance on evidence and due process Excessive reliance on concrete evidence, discouraging victims from coming forward and potential penalties during inquiries.
Lack of clarity in conducting inquiries Lack of clarity in inquiry procedures, resulting in confusion and inefficiency in addressing sexual harassment cases.

Recent concerns and directions from the Supreme Court

Description
“Serious lapses” and “uncertainty” in implementation Supreme Court expressed concerns about the implementation of the PoSH Act, citing serious lapses and uncertainty in its enforcement.
Verification of Internal Complaint Committees (ICCs) It directed to verify the formation of ICCs in government bodies.
Strict adherence to composition requirements Emphasis was placed on ensuring strict adherence to the Act’s composition requirements for ICCs.
Inadequate constitution of ICCs The Court highlighted the issue of improperly constituted ICCs, including the absence of mandatory external members.
Proactive approach for enforcement A proactive approach from both State and non-State actors was called for in enforcing the Act.
Publication of committee details Directions were given to publish committee details on websites within a specified timeframe.
Ensuring a safe and respectful workplace The importance of providing a safe and secure workplace, ensuring the dignity and respect women deserve, was emphasized.
Accountability and effective enforcement The Court’s directions aimed to ensure accountability and effective enforcement of the PoSH Act.

 

 

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Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

What is Bilkis Bano Case?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Pardoning Powers of president / governor

Mains level: Violence against women

bilkis bano

The Supreme Court has indicated it will primarily focus on the question of Gujarat’s jurisdiction to prematurely release 11 men sentenced to life for the gang rape of Bilkis Bano and the murder of her family during the 2002 riots.

Central idea

  • The Bilkis Bano case is a landmark case of gangrape and mass murder that occurred during the 2002 Gujarat riots in India.
  • Bilkis Bano, then a 21-year-old pregnant woman, was raped and her family members were murdered during the riots that followed the Godhra train burning incident.
  • The case was initially left unnoticed, but after persistent efforts by Bano and her supporters, the case was reopened and the perpetrators were brought to justice.

Initial investigation and cover-up

  • No proper investigation: Despite the gravity of the crime, the initial investigation was not conducted properly.
  • Evidence tampered: The medical examination of Bano was conducted after several days, by which time crucial evidence had been lost.
  • No FIR registered: The police refused to file a First Information Report (FIR) initially, and when they did, they left out crucial details of the incident.

Reopening of the case

  • Bano and her supporters continued to fight for justice, and in 2004, the case was transferred to the Central Bureau of Investigation (CBI) on the order of the Supreme Court.
  • The CBI conducted a thorough investigation and filed a charge sheet against 19 accused persons, including police officers and doctors who had tried to cover up the crime.
  • In 2008, the trial began in a Mumbai court.

Conviction and sentencing

  • In 2017, after a long legal battle, a Mumbai court convicted 11 accused persons, including one police officer, for gang rape and murders.
  • The police officer, who was the main accused, was sentenced to life imprisonment, while the others were given seven years’ imprisonment.
  • The court also acquitted seven other accused persons due to lack of evidence.

Key issue: Release of convicts

  • In February 2021, the Bombay High Court acquitted five of the convicted persons, citing lack of evidence.
  • The court also upheld the life imprisonment of the police officer and reduced the sentence of the other convicts to three years.
  • The convicts were released from prison after serving their sentence.

What are the laws on remissions?

  • Prisoners are often granted remission of sentences and released on important occasions such as birth and death anniversaries of prominent leaders.
  • The President and the Governors have the power to pardon, suspend, remit, or commute a sentence passed by the courts under Articles 72 and 161 of the Constitution.
  • Under Section 432 of the Code of Criminal Procedure (CrPC), the state governments also have the power to remit sentences as prisons are a state subject.
  • However, the powers of remission of the state government are restricted by Section 433A of the CrPC.
  • It mandates a person serving a life imprisonment sentence for an offence where death is a punishment or where a death sentence has been commuted, cannot be released until they have served at least 14 years in prison.

Critical reception of the judgement

  • Justice vindicated: Bano and her family members expressed disappointment with the decision of the court to acquit some of the convicts, and they plan to challenge the verdict in the Supreme Court.
  • Communal angle to the release: Bano has been a symbol of courage and determination for survivors of sexual violence in India, and her case has highlighted the need for justice and accountability for crimes committed during communal riots.

Significance of the case

  • The Bilkis Bano case is significant as it highlights the issue of communal violence in India and the failure of the authorities to provide justice to the victims.
  • The case also underscores the need for the protection of the rights of women and minorities in India.
  • The long legal battle fought by Bano and her supporters shows that justice is possible, but it requires persistence, courage and the support of civil society.

 

 

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Back in news: Criminalization of Marital Rape

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Marital Rape

rape

The Supreme Court has agreed to hear a series of petitions seeking to criminalise marital rape.

What is Marital Rape?

  • Marital rape is the act of sexual intercourse with one’s spouse without her consent.
  • It is no different manifestation of domestic violence and sexual abuse.
  • It is often a chronic form of violence for the victim which takes place within abusive relations.

Status in India

rape

  • Historically considered as right of the spouses, this is now widely classified as rape by many societies around the world.
  • In India, marital rape is not a criminal offense (as protected under IPC section 375).
  • India is one of fifty countries that have not yet outlawed marital rape.

Recent observations by Delhi HC

  • Spousal intimacy: In a marriage, conjugal expectation is a two-way street, where “consent is given as a part of spousal intimacy although the will to engage may be absent”.
  • Need for written agreement: If every such case is treated as marital rape, then the only way partners in a marriage may survive would be by drawing up a detailed written agreement.
  • Burden of evidentiary record: This would lead to creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness.
  • Defying marital obligations: The HC said that marriage was accompanied by obligations that the partners had to bear, including conjugal expectations, financial obligations and, finally, duty towards progeny.
  • Sexual liberty of spouses: The bench also underlined the signs of injury on a partner need not necessarily mean there had been non-consensual sex as “in the age of sexual liberation”, injuries could be a sign of “passion”.
  • Cruelty not rape: Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse found in Section 3 of the Domestic Violence Act.
  • Clash of ego: A wife cannot prescribe a particular punishment that can be imposed on the husband ‘to satisfy her ego’,” the HC said.

Reasons for rebuttal of this concept

  • The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to:
  1. Traditional views of marriage
  2. Interpretations of religious doctrines
  3. Ideas about male and female sexuality
  4. Cultural expectations of subordination of a wife to her husband
  • It is widely held that a husband cannot be guilty of any sexual act committed by himself upon his lawful wife their on account of their mutual matrimonial consent.

Why it must be a crime?

  • Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
  • Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
  • Compulsive relationship: Marital rape may occur as part of an abusive relationship.
  • Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
  • Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Violation of fundamental rights

  • Marital rape is considered as a violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
  • By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.

Problems in prosecuting marital rape

  • Lack of awareness: A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute is common globally.
  • Gender norms: Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize such rape.
  • Acceptability of the concept: Another problem results from prevailing social norms that exist.

Present regulations in India

  • Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
  • However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
  • Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
  • According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
  • They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

However, marital rape is still not a criminal offence in this case and is only a misdemeanour.

Arguments against criminalization

  • Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
  • Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
  • Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.

Way forward

  • Sanctioning marital rape is an acknowledgement of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
  • In the absence of any concrete law, the judiciary always finds it difficult to decide the matter of domestic rape in the absence of solid evidence.
  • The main purpose of marriage is procreation, and sometimes divorce is sought on the ground of non-consummation of marriage.
  • Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.

 

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Supreme Court to hear petitions for Criminalization of Marital Rape

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Marital Rape

marital rape

The Supreme Court is set to begin hearing a series of petitions seeking to criminalize marital rape from March 14.

What is Marital Rape?

  • Marital rape is the act of sexual intercourse with one’s spouse without her consent.
  • It is no different manifestation of domestic violence and sexual abuse.
  • It is often a chronic form of violence for the victim which takes place within abusive relations.

Status in India

  • Historically considered as right of the spouses, this is now widely classified as rape by many societies around the world.
  • In India, marital rape is not a criminal offense (as protected under IPC section 375).
  • India is one of fifty countries that have not yet outlawed marital rape.

Reasons for disapproval of this concept

  • The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to:
  1. Traditional views of marriage
  2. Interpretations of religious doctrines
  3. Ideas about male and female sexuality
  4. Cultural expectations of subordination of a wife to her husband
  • It is widely held that a husband cannot be guilty of any sexual act committed by himself upon his lawful wife on account of their mutual matrimonial consent.

Why it must be a crime?

  • Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence and sexual mutilation.
  • Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
  • Compulsive relationship: Marital rape may occur as part of an abusive relationship.
  • Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
  • Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Violation of fundamental rights

  • Marital rape is considered as a violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
  • By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.

Problems in prosecuting marital rape

  • Lack of awareness: A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute is common globally.
  • Gender norms: Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize such rape.
  • Acceptability of the concept: Another problem results from prevailing social norms that exist.

Present regulations in India

  • Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
  • However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
  • Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
  • According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
  • They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

However, marital rape is still not a criminal offense in this case and is only a misdemeanor.

Arguments against criminalization

  • Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
  • Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
  • Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.

Way forward

  • Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
  • In the absence of any concrete law, the judiciary always finds it difficult to decide the matter of domestic rape in the absence of solid evidence.
  • The main purpose of marriage is procreation, and sometimes divorce is sought on the ground of non-consummation of marriage.
  • Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.

 

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NCW seeks to ensure POSH Act implementation by coaching institutes

Note4Students

From UPSC perspective, the following things are important :

Prelims level: POSH Act, 2013

Mains level: Not Much

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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Acid Attack in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Women safety and dignity issues

acid attack

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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What is the Recusal of Judges?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Recusal of Judges

Mains level: Read the attached story

A Supreme Court judge recused herself from hearing a writ petition filed by Bilkis Bano against the decision to prematurely release 11 men sentenced to life imprisonment for gang-raping her during the 2002 riots.

What is the Recusal of Judges?

  • Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
  • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
  • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
  • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
  • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

Rules on Recusals

  • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
  • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not.
  • Some explain the reasons in their order. The decision rests on the conscience of the judge.
  • At times, parties involved raise apprehensions about a possible conflict of interest.

Issues with recusal

  • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
  • In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
  • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.

Back2Basics: Bilkis Bano Case

  • Bilkis Bano is a gangrape survivor of the 2002 riots in Gujarat. Rioters brutally attacked Bilkis and her family, raped the women and killed many of them.
  • Her case was taken up by the National Human Rights Commission (NHRC) and Supreme Court. Later, the Supreme Court transferred the investigation to the CBI and the case to Mumbai to facilitate a free and fair trial.
  • Eleven men were convicted by the trial court and sentenced to life. The Bombay High Court confirmed their life terms in 2017.
  • In 2019, the Supreme Court awarded compensation of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.
  • The convicts were later released after the state government’s remission to them for spending more than 15 years in jail.

Issues with this remission

  • Causality of a heinous crime: The remission runs contrary to the spirit of contemporary thinking on treating crimes against women and children as so heinous that the perpetrators should not be considered for remission.
  • Whimsy release: The CrPC does permit premature release in the form of remission or commutation in life sentences, but it should be based on a legal and constitutional scheme, and not on a ruler’s whimsy.
  • Political considerations: It would be unjustified if given for political considerations merely because of elapse of the minimum number of years they have to serve.

 

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What are in-camera proceedings, when are they conducted?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: In-Camera Proceedings

Mains level: Not Much

The Supreme Court has rejected a plea by a rape case accused for an in-camera hearing.

What are in-camera proceedings?

  • In-camera proceedings are private, unlike open court proceedings.
  • It is conducted as per the court’s discretion in sensitive matters to ensure protection and privacy of the parties involved.
  • The proceedings are usually held through video conferencing or in closed chambers, from which the public and press are excluded.
  • In an open court or open justice system, which is the usual course of proceedings, the press is allowed to report on the matter being heard.

In-camera trial in rape cases

  • Section 327 of the Code of Criminal Procedure (CrPC) has detailed the types of cases that should be recorded on camera, including inquiry into and trial in rape case.
  • The said section states that if the presiding judge or a magistrate thinks fit, she can order at any stage of the proceedings that the public generally, or any particular person, shall not remain present in the courtroom or the court building.
  • The said provision says that the inquiry into and trial be held in camera for various offences punishable under section 376 (rape) of the IPC.
  • The law also prescribes that in such cases, the trial be conducted as far as possible by a woman judge or a magistrate.

Other cases where in-camera proceedings are held

  • In-camera proceedings are usually conducted at family courts in cases of matrimonial disputes, including judicial separation, divorce proceedings, impotence, and more.
  • In-camera proceedings are also conducted during the deposition of witnesses of terrorist activities as per the court’s discretion, so as to protect them and maintain national security.

What about publishing of such a hearing?

  • Section 327 of the CrPC states that it shall not be lawful to publish any matter in relation to in-camera proceedings except with the previous permission of the court.
  • It adds that the ban on publishing of trial proceedings for offence of rape may be lifted subject to maintaining confidentiality of name and address of the parties.

 

 

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Domestic violence: Why women choose to remain silent?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Domestic violence and the laws in protection of women

Domestic violence

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Context

  • Just ahead of the International Day for Elimination of All Forms of Violence against Women (November 25), the brutal murder and mutilation of a young woman by her partner has drawn attention to intimate partner violence, also recognized under the Protection of Women from Domestic Violence Act 2005 (PWDVA) as a kind of domestic violence.

Background

  • Due to prevalence of patriarchy women have been discriminated not only in India but in most parts of the world.
  • According to The United Nations, one out of every three women experience domestic violence. The same UN report suggests that the most dangerous place for women is their home.
  • Gender equality and women’s empowerment are essential for the development and well-being of families, communities and nations.

Domestic Violence

  • Domestic violence is any pattern of behavior that is used to gain or maintain power and control over an intimate partner. It encompasses all physical, sexual, emotional, economic and psychological actions or threats of actions that influence another person.

Domestic violence can include the following

  • Physical violence: Use of Physical force or hurting or trying to hurt a partner .it also includes denying medical care.
  • Sexual violence: Forcing a partner to take part in a sex act when the partner does not consent.
  • Psychological violence: Psychological violence involves causing fear, threatening physical harm or forcing isolation from friends, family, school or work.
  • Economic violence: Making or attempting to make a person financially dependent by maintaining total control over financial resources.
  • Emotional violence: Undermining a person’s sense of self-worth through constant criticism; belittling one’s abilities; verbal abuse. 

Domestic violence

Analysis of Domestic violence cases and protection of women in India

  • Punishable offence: Domestic violence is a punishable offence under Indian law. It is a violation of human rights.
  • According to NFHS-5: yet, National Family Health Survey-5 (2019-21) reveals that we live in a society where violence against women persists to such an extent that 32% of ever-married women aged 18-49 years have ever experienced emotional, physical, or sexual violence committed by their husband, with more rural than urban women reporting experiences of domestic violence.
  • Protection of women from domestic violence Act 2005: Over 17 years ago the PWDVA, a progressive legislation, was passed, promising a joined-up approach, involving civil and criminal protections, to support and protect women from violence within the household, not just from husbands.
  • Unable to access the law: Despite the law existing on paper, women are still largely unable to access the law in practice. Its promise and provisions are unevenly implemented, unavailable and out of reach for most Indian women.
  • Very less percentage of women who seek help: The most disheartening reality is that despite almost a third of women being subject to domestic violence, the National Family Health Survey-5 (2019-21) reports that only 14% of women who have experienced domestic violence have ever sought help; and this number is much lower in the rural areas.
  • Despite of multiple laws, most women choose not to seek help: In a country where domestic violence is a crime, where there are multiple laws explicitly designed to protect women against violence, most women survivors of domestic violence never seek help.

Domestic violence

An interesting first-hand case study on “why women choose to remain silent”?

  • Subject: Research in Maharashtra, West Bengal and Tamil Nadu aims to better understand ‘help seeking’ and the everyday realities, obstacles, prejudices and fears that women experience around sharing and reporting experiences of violence.
  • Questions: Simple and well-meaning questions, “Why didn’t you leave earlier?” “Why didn’t you tell someone about the violence earlier?”
  • Thoughts and Response:
  1. Women were hopeful that things would change, that they could change their husband’s behaviour, that he would listen to them.
  2. Crucially women did not want to be a ‘burden’ on others, in particular their families. ‘My mother has a lot of worries, she has her own life so I didn’t want to add to her own worries, with mine.’
  3. By naming the violence they experienced, women believed that they would become ‘a problem’ or a source of ‘tension’ for their families, in bringing them shame and dishonor, irrespective of the survivor’s level of education, caste, or class.
  4. For migrant women, transpeople or those with several sisters, or ill, older or deceased parents, it was felt even more acutely that the perpetrator’s violence was their individual responsibility to manage.

Domestic violence

Findings of the case study on seeking help

  • Majority of parents asks to accommodate: The first group of women mainly turned to their parents who, in a majority of cases, insisted on their daughter preserving the family environment which they should do by ‘adjusting’ to, or accommodating their husband’s (and his family’s) needs better.
  • Minority cases where daughters’ welfare is prioritized: In a minority of cases, the daughter’s welfare was prioritized over the well-being of the ‘the family’ and steps were taken to help mediate or exit the relationship, and much more infrequently approach the police and lawyers.
  • Accepted as patriarchal norm mostly by women themselves: So ingrained are social norms about gender inequality that NFHS-5 data reports that women are more likely than men to justify a scenario in which it is acceptable for a husband to beat or hit his wife.
  • Sharing experience gives relief: For instance, one interviewee explained, ‘the way we are conditioned, it was hard to complain about any suffering’. Though survivors who did (finally) confide in relatives and friends about domestic violence described feeling a ‘sense of a relief’ and that a ‘burden had been lifted’, giving them new ‘hope’ that things might change.
  • Confession is powerful step, seek for help comes with mixed emotions: Whilst sharing experiences of violence was an incredibly powerful step for women, actually transforming their violent domestic experiences and accessing services and support provided by the state and non-state actors proved to be an arduous roller coaster of emotions, promises, uncertainty, fear and disappointment.
  • Financial dependence stops women form accessing legal justice: With few safe houses across India, the simple reality was that many women have nowhere else to go, and access to legal justice through the courts was a material possibility only for women with independent wealth and connections or those supported by specialist non-governmental organizations. So, for many survivors, transforming their situation depended on securing their economic self-sufficiency by pursuing new skills and livelihood opportunities.

Role of the police

  • Police were the part of problem than the solution: Women who reported experiences of violence to the police were cynical about the outcome. Though a small minority had positive experiences, for the majority of those we interviewed, the police were part of the problem rather than a solution to violence.
  • Police more likely to send women back to reconcile: Across the States, that the police were more likely to send women back to violent households to reconcile with the perpetrator or use violence against perpetrators as a deterrent instead of filing an official complaint or connecting women to protection officers and other service providers, as the PWDVA outlines they should.
  • Absence and under resourced Protection officers: Several States are yet to implement Protection officers. And where they are in post, they are under resourced, under-skilled and overworked, making their remit impossible.

Domestic violence

Conclusion

  • Even whilst its legislature recognizes that domestic violence is a crime, and civil remedies exist through protection orders, managing the fallout of domestic violence is still being subcontracted to survivors and the family. That is the biggest crime being committed against women today. Women empowerment without social justice is a futile exercise, State must take appropriate social empowerment steps in this direction.

Mains question

Q. What is the status of women facing domestic violence in India? Despite many laws and a country where domestic violence is a crime, most women prefer to remain silent and do not seek help. Discuss.

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Two finger test: Undermining the dignity of women

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Read the attached story

finger test

Context

  • On October 31, a two-judge bench of the Supreme Court noted that the two-finger test is a sexist medical practice that re-victimizes and re-traumatizes rape survivors. The Court also issued directions to the Union and state governments to implement the 2014 guidelines of the Ministry of Health and Family Welfare for health providers in sexual violence cases.

What is two finger tests?

  • The two-finger test involves the medical examiner inserting their two fingers into the vagina of a survivor to note the presence or absence of the hymen and the so-called laxity of the vagina.

finger test

What is the expert doctor’s opinion?

  • Misogynistic belief: While a hymen can be torn and its orifice may vary in size for many reasons unrelated to sex, the origin of the two-finger test lies in the misogynistic belief that a torn hymen is an indication that the survivor is habituated to sex and therefore, cannot be raped or is more likely to make false claims about being raped.

What is the law against such infringement of bodily privacy?

  • SC prohibited test in Rajesh v. State of Haryana 2013 case: “Medicalization of consent” where women’s bodies are given precedence over their voices. Recognizing this as an invasion of privacy and a violation of a survivor’s dignity, the Supreme Court prohibited the test in Lillu at Rajesh v. State of Haryana (2013).
  • Guidelines for medico-legal care for survivors of sexual violence: Shortly after, in March 2014, taking forward the recommendations of the Justice J S Verma Committee Report, the Ministry of Health & Family Welfare issued guidelines for medico-legal care for survivors of sexual violence. These guidelines explicitly prohibited the two-finger test and discussed the need for training medical examiners to respond to the needs of the survivors in a sensitive and non-discriminatory manner.

Why the practice of two finger tests still persists?

  • Lack of political will: Nearly eight years since the guidelines were issued, the two-finger test still remains a reality. Its prevalence is a reflection of the complete lack of political will to address the issue.
  • No pan-India comprehensive review: While fragmented pieces of narratives and research indicate that the two-finger test continues in rape cases to date, it is incumbent upon the executive to undertake a comprehensive pan-India review to assess the nature and extent of the problem.
  • Change in format and unclarity: The changed format (introduced after the passing of the Criminal Law Amendment Act, 2013) of the medico-legal certificate used by doctors in rape cases did not require them to make a note of the finding of the two-finger test. However, according to the lawyers, this did not mean that the test was not happening anymore. Some says they it was no longer being recorded as such but was still being conducted.
  • Poor medical infrastructure: The continued existence of the two-finger test is a result of the overall poor state of forensic medicine infrastructure in India.
  • Lack of awareness: Lack of awareness amongst the medical community about the unscientific nature of the two-finger test.

finger test

What is the opinion of the court?

  • Government must enforce the protocol: The Court commenting on the sorry state of affairs and issuing directions to the government on enforcement of the protocol including the emphasis on workshops and the medical school curriculum is significant.
  • Holding a person, a guilty of misconduct: The Court took a step further by holding a person conducting the two-finger test on a rape survivor guilty of misconduct. It is unclear if the Court was making a reference to professional misconduct on part of the medical examiner.

finger test

What should be the way forward?

  • Caregiving to victim: Medical practitioners must see themselves as caregivers when handling sexual violence cases.
  • Awareness about legal system: Medical practitioners should be made to understand as their role in the criminal legal system, specifically towards rape survivors.
  • Training of medical examiners: The training in medical school must prepare medical examiners for their role in the justice system.
  • Police should play an active role: The institution of police should be sensitized on the continued use of the two-finger test in rape cases.
  • Modules on sexuality: Training and workshops designed for doctors needs to include modules on sexuality and discrimination.

Conclusion

  • Two finger test is further traumatizing the victim of rape. Despite the directives of courts years ago and unscientific nature, two finger test continues. Women empowerment is not only about the earnings and livelihood its also about the right to privacy and dignity of life.

Mains Question

Q. What is two finger tests? what is the law against the two-finger test? give the reasons for continuation of two finger test?

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Why the SC slammed the two-finger test on rape and sexual assault victims?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Regressive laws for rape victims

finger

The Supreme Court has declared that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct.

What is the two-finger test?

  • The test is conducted to check whether the victim has had recent sexual intercourse.
  • It includes an inspection of the hymen.
  • The hymen is inspected as it can be torn only if the woman has had any sexual intercourse.
  • This test was performed on rape or sexual assault survivors.

What did the Verma Committee say on the two-finger test?

  • The committee under former Chief Justice JS Verma, formed soon after the 2012 Nirbhaya Gangrape case had recommended tougher laws for such cases and ban of the two-finger test.
  • This test has no bearing on a case of sexual assault.
  • On the basis of this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law.
  • Yet, the test continues to be conducted in India and other countries despite rape test kits are being provided by the government to all medical institutions after the committee recommendations.

Is the two-finger test scientifically accepted?

  • Of course NOT.
  • According to medical experts, science has proved that the hymen is not a reliable source of proving vaginal penetration.
  • The hymen, which is a thin membrane in the vagina, can rupture not just during sexual activity but also during day-to-day work or any physical activity, including playing sports.

What has the Supreme Court said previously?

  • Violation of privacy: In May 2013, the Supreme Court banned the two-finger test on rape victims on the grounds that it violated their right to privacy.
  • Alternative procedures: The court asked the government to provide better medical procedures in order to confirm sexual assault.
  • Painful for women: The test is medically unnecessary, often times painful, humiliating and a traumatic practice that must end.

Way ahead

  • Workshops should be held for health providers to prevent the test from being conducted on rape survivors.
  • The curriculum in medical schools should be revised.
  • The court ordered copies of the judgment to be handed over to the Health Ministry, which should be circulated to the health and home departments of the States.
  • The home departments should circulate the judgment to the Director Generals of Police in the States.

 

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Are there anti-superstition laws in India?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: prevalence of superstitions, associated problems and preventive laws

superstition

Context

  • The brutal murders of two women as part of “ritualistic human sacrifices” in the Pathanamthitta district of Kerala have left the country in shock. Chilling details of the killings have sparked a debate about the prevalence of superstitious beliefs, black magic and sorcery in Kerala. In the absence of a comprehensive law to counter such acts, the call for a strict anti-superstition law has grown louder.

superstition

What is Superstition?

  • Superstition is an irrational belief usually founded on ignorance or fear and characterized by obsessive reverence for omens, charms etc. It is a notion, act or ritual that derives from such belief.

What is Witchcraft?

  • Black magic is also known as Witchcraft is usage of supernatural power for evil and selfish purposes and to perform malicious practices to destroy someone physically or mentally or financially.
  • Black magic makes humans victims of baseless fears, reverses fortunes and confusions.

superstition

What is the status of such killings in India?

  • As per the 2021 report of the National Crime Records Bureau (NCRB), six deaths were linked to human sacrifices, while witchcraft was the motive for 68 killings.
  • In 2020, India saw 88 deaths due to witchcraft and 11 died as part of human sacrifices.
  • The maximum number of witchcraft cases were reported from Chhattisgarh (20), followed by Madhya Pradesh (18) and Telangana (11). Kerala saw two cases of human sacrifice, the NCRB report states.

What are the laws over superstition in India?

  • No central law: In India, there is no central law that exclusively deals with crimes related to witchcraft, superstition, or occult-inspired activities. In the absence of a nationwide legislation, a few States have enacted laws to counter witchcraft and protect women from deadly ‘witch-hunting’.

superstition

Anti-superstition Laws enacted by the states

  • Bihar: Bihar was the first State to enact a law to prevent witchcraft, identification of a woman as a witch and “eliminate torture, humiliation and killing of women.” The Prevention of Witch (Daain) Practices Act came into force in October 1999. Anyone who identifies a person as a “witch” and acts to aid this identification can face a jail term of up to three months, or a fine of ₹1,000, or both.
  • Jharkhand: A similar law was passed in Jharkhand in 2001 the Prevention of Witch (Daain) Practices Act.
  • Chhattisgarh: Even though Chhattisgarh is one of the worst-affected States in terms of witchcraft-related crimes, the State enacted the Chhattisgarh Tonahi (witch) Pratadna Nivaran Act only in 2005. As per the law, a person convicted for identifying someone as a witch can be sentenced to up to three years of rigorous imprisonment with a fine
  • Odisha: Following the directions of the Odisha High Court to frame a law to deal with rising cases of witch-hunting in the State, the Odisha Prevention of Witch-Hunting Bill was passed by the Assembly in 2013. The bill provides penalties for a witch doctor, or a person claiming to be a black magician
  • Maharashtra: In Maharashtra, the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 was passed after the murder of anti-superstition activist Dr. Narendra Dabholkar.
  • Rajasthan: The state of Rajasthan enacted the Rajasthan Prevention of Witch-Hunting Act in 2015 to “provide for effective measures to tackle the menace of witch-hunting and prevent the practice of witchcraft.
  • Assam: The Assam Witch Hunting (Prohibition, Prevention and Protection) Act, 2015, which received the President’s assent in 2018, prohibits witch hunting completely. The law states, no person shall identify, call, stigmatize, defame or accuse any other person as witch by words, or by signs or indications or by conducts or actions or any other manner or instigate, aid or abet such an act or commit witch hunting.
  • Karnataka: The latest law was passed in Karnataka where the Karnataka Prevention and Eradication of Inhuman Evil Practices and Black Magic Act, 2017 came into effect in January 2020. The law bans several practices related to black magic and superstition, like forcing a person to walk on fire at religious festivals and the practice of piercing rods from one side of the jaw to the other.

Conclusion

  • States governments are doing their best to criminalize the rituals of human sacrifices by enacting stringent laws. There is need to have a concrete nationwide anti-superstition law and as a society every individual should be made a stakeholder in awareness against human sacrifices based on witchcraft and rituals.

Mains Question

Q. What is Superstition? Are there any anti-superstition laws in India that criminalizes the rituals such as human sacrifices and witch-hunting? Discuss.

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Marital rape, MTP Act and the Society

Note4Students

From UPSC perspective, the following things are important :

Prelims level: MTP Act.

Mains level: Abortion rights,Persistence of marital rape and need for its criminalization

Marital rapeContext

  • The recent Supreme court judgment expands the definition of rape to marital rape for the MTP Act. Marital rape is still not criminalised. If society does not accept “marital rape” as even a moral offence, how will a woman convince doctors to terminate her pregnancy based on the exception provided by the SC’s verdict.

Background

  • The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP).

What is Medical Termination of Pregnancy (MTP) Act?

  • Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971
  • The Act was amended in 2003 to enable women’s access to safe and legal abortion services.

Marital rapeWhat are the Changes in Medical Termination of Pregnancy (MTP) Act, 2021?

  • The gestation limit: The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
  • Doctor’s approval: All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies up to 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
  • Contraceptive failure: Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
  • In case of fetal disability:  There is also no upper gestation limit for abortion in case of fetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

What is marital rape?

  • Marital rape is the act of sexual intercourse with one’s spouse without her consent.
  • It is no different manifestation of domestic violence and sexual abuse.
  • It is often a chronic form of violence for the victim which takes place within abusive relations.

Marital rapeStatistics on Marital rape in India

  • The NFHS-5 survey (2019-21):
  • The survey said that 32% of ever-married women have suffered spousal physical, sexual, or emotional violence, and 27% have suffered at least one form of violence.
  • Twenty-nine percent of ever- married women have experienced spousal physical violence and 14% have suffered emotional violence.
  • The form of sexual violence most commonly reported by women is that their husband used physical force to have sexual intercourse when they did not want to (5%).
  • Four per cent reported that their husband forced them with threats or in other ways to perform sexual acts they did not want to and 3% of them reported that their husband forced them to perform any sexual acts they did not want to.
  • Women in rural areas are more likely (34%) than women in urban areas (27%) to experience one or more forms of spousal violence.

Why modern India still not accepting marital rape as a rape?

  • Definition: The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman.
  • Non-Criminalization: Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
  • Exemption: Section 375 defines rape and lists seven notions of consent which, if vitiated, would constitute the offence of rape by a man. However, the provision contains a crucial exemption, Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
  • Marriage as perpetual consent: As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering marital relations. The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse, and it cannot be otherwise.

What is the link between marital rape and MTP Act?

  • The distinction and the cultural ethos: Married women have a different world attire, jewellery, rituals compared to widows or unmarried or deserted women .So is the right to sexual intercourse. In contrast, unmarried women do not have a right to sex. So what does the right to terminate pregnancy mean for them
  • Ownership of women’s sexuality: Unmarried women cannot have sex, married women cannot say no to sex because men own women’s sexuality. Husbands can use the legal remedy of restitution of conjugal rights against runaway wives. Ownership is integral here
  • Cause of Disharmony: An unmarried woman does not have an owner. It causes confusion and disorder. Women’s sexuality is seen as a cause of disharmony.

Marital rapeWhy marital rape must be a crime?

  • Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
  • Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
  • Compulsive relationship: Marital rape may occur as part of an abusive relationship.
  • Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
  • Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Present regulations in India

  • Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
  • However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
  • Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
  • According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
  • They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

Way forward

  • Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control of all matters relating to her body.
  • The recent judgment on the MTP Act has extended the definition of rape to marital rape which is a big step in the right direction.
  • However in a society with strong social norms and value systems every stakeholder should have more than a legitimate motive. It has to play an important role.

Mains Question

Q.While abortion is available under legal regulations in the country, Discuss the relationship between the Medical Termination of Pregnancy Act and Marital Rape.

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SC seeks Centre’s reply on issue of Marital Rape

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Persistence of marital rape and need for its criminalization

The Supreme Court has sought a response from the government on appeals to criminalize marital rape.

Split opinions on Marital Rape

rape

  • This follows a split decision from the Delhi High Court on whether or not to prosecute husbands for non-consensual intercourse with their wives.

What is Marital Rape?

  • Marital rape is the act of sexual intercourse with one’s spouse without her consent.
  • It is no different manifestation of domestic violence and sexual abuse.
  • It is often a chronic form of violence for the victim which takes place within abusive relations.

Status in India

  • Historically considered as right of the spouses, this is now widely classified as rape by many societies around the world.
  • In India, marital rape is not a criminal offense (as protected under IPC section 375).
  • India is one of fifty countries that have not yet outlawed marital rape.

Reasons for disapproval of this concept

  • The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to:
  1. Traditional views of marriage
  2. Interpretations of religious doctrines
  3. Ideas about male and female sexuality
  4. Cultural expectations of subordination of a wife to her husband
  • It is widely held that a husband cannot be guilty of any sexual act committed by himself upon his lawful wife their on account of their mutual matrimonial consent.

Why it must be a crime?

  • Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
  • Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
  • Compulsive relationship: Marital rape may occur as part of an abusive relationship.
  • Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
  • Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Violation of fundamental rights

  • Marital rape is considered as the violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
  • By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.

Problems in prosecuting marital rape

  • Lack of awareness: A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute, is common globally.
  • Gender norms: Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize such rape.
  • Acceptability of the concept: Another problem results from prevailing social norms that exist.

Present regulations in India

  • Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
  • However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
  • Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
  • According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
  • They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

However, marital rape is still not a criminal offence in this case and is only a misdemeanor.

Arguments against criminalization

  • Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
  • Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
  • Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.

Way forward

  • Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
  • In the absence of any concrete law, the judiciary always finds it difficult to decide the matter of domestic rape in the absence of solid evidence.
  • The main purpose of marriage is procreation, and sometimes divorce is sought on the ground of non-consummation of marriage.
  • Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.

 

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SC moots verdict for ‘Bodily Autonomy’

Note4Students

From UPSC perspective, the following things are important :

Prelims level: MRTP Act

Mains level: Global abortion debate

The Supreme Court has said it may loosen the restrictive grip of a 51-year-old abortion law that bars unmarried women from terminating pregnancies up to 24 weeks old.

What is the news?

  • The Medical Termination of Pregnancy Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks and 24 weeks pregnant to abort with the help of registered medical practitioners.

What did the Court say now?

  • In a very significant move, the court said that the prohibition was manifestly arbitrary and violative of women’s right to bodily autonomy and dignity.
  • The danger to life is as much in the case of an unmarried woman as in the case of a married woman said Justice Chandrachud.
  • The danger of suffering a mental breakdown is much more prominent for unmarried women, said the court.

Earlier observations

  • A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution.
  • She has a sacrosanct right to bodily integrity, the court quoted from precedents.
  • The court said forcing a woman to continue with her pregnancy would not only be a violation of her bodily integrity but also aggravate her mental trauma.

Indispensable clause of safety

  • The court ordered a medical board to be formed by the AIIMS to check whether it was safe to conduct an abortion on the woman and submit a report in a week.

What is the case?

  • A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
  • The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
  • This was since the pregnancy arose from a consensual relationship outside wedlock.

What was the last amendment?

  • The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.

Reiterating the live-in recognition

  • Chastising the lower court, the Bench said live-in relationships had already been recognized by the Supreme Court.
  • There were a significant number of people in the social mainstream who see no wrong in engaging in pre-marital sex.
  • The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.

Back2Basics: Medical Termination of Pregnancy (MTP) Act

  • Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
  • The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
  • Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.

The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:

  1. If continuation of the pregnancy poses any risks to the life of the mother or mental health
  2. If the foetus has any severe abnormalities
  3. If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
  4. If pregnancy is a result of sexual assault or rape

These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

  1. The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
  2. All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
  3. Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
  4. There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

 

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Back in news: Non-Resident Indians (NRIs)

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Overseas Indians

Mains level: Issues faced by Overseas Indians

A national helpline for women deserted in Non-Resident Indian (NRI) marriages and the need for a dedicated fund to provide assistance to them are among the recommendations made at a consultation organized by the National Commission for Women (NCW).

What are the issues faced by NRI wives?

  • Abandon after marriage
  • Inconclusive divorces filed abroad
  • Child custody disputes

Classification of Overseas Indians

Overseas Indians, officially known as Non-resident Indians (NRIs) or Persons of Indian Origin (PIOs), are people of Indian birth, descent or origin who live outside the Republic of India:

(A) Non-Resident Indian (NRI)

  • Strictly asserting non-resident refers only to the tax status of a person who, as per section 6 of the Income-tax Act of 1961, has not resided in India for a specified period for the purposes of the Act.
  • The rates of income tax are different for persons who are “resident in India” and for NRIs.

(B) Person of Indian Origin (PIO)

Person of Indian Origin (PIO) means a foreign citizen (except a national of Pakistan, Afghanistan, Bangladesh, China, Iran, Bhutan, Sri Lanka and/or Nepal), who:

  • at any time held an Indian passport OR
  • either of their parents/grandparents/great-grandparents were born and permanently resident in India as defined in GoI Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizen of any of the aforesaid countries OR
  • is a spouse of a citizen of India or a PIO.

(C) Overseas Citizenship of India (OCI)

  • After multiple efforts by leaders across the Indian political spectrum, a pseudo-citizenship scheme was established, the “Overseas Citizenship of India”, commonly referred to as the OCI card.
  • The Constitution of India does not permit full dual citizenship.
  • The OCI card is effectively a long-term visa, with restrictions on voting rights and government jobs.

 

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On marital rape, regressive notions undermine autonomy of women

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Paper 2- Marital rape issue

Context

On 11 May, two judges of the Delhi High Court handed down separate judgments in RIT Foundation v Union of India.

Background

  • Section 375 of the IPC defines “rape” as when a man has sex with a woman without her consent.
  • Exception to Section 375 of IPC:  An exception to Section 375 provides that it is not rape for a husband to have sex with his wife, regardless of consent.

The two judgements

1] Violation of rights:

  • In his judgment, Justice Rajiv Shakdher concluded that the marital rape exception violated the rights to life, equality, non-discrimination, and freedom of speech and expression under the Constitution.
  • There is no reasonable basis to distinguish between married and unmarried women.
  • Marriage is a relationship of equals, and women do not forfeit their agency and sexual autonomy upon marriage.

2] Issues with Constitutional validity of exception

  • Justice C Hari Shankar took a different view, concluding that the marital rape exception is constitutionally valid.
  • First, the judge held that it is the wrong starting point to assume that a husband who has sex with his wife without her consent “commits rape”.
  • 1] Exclusion from definition argument: The judge noted that the effect of the exception to Section 375 of the IPC is that any sex between a husband and wife, whether or not consensual, is excluded from the definition of rape.
  • That analysis does not bear scrutiny.
  • It makes little difference whether the starting point is that non-consensual sex within marriage should be characterised as rape or, for example, sexual assault.
  • The critical question is whether it is unconstitutional to exclude non-consensual sex from the definition of rape.
  • 2] Preservation of marital institution argument: The judge held that the marital rape exception was “aimed at preservation of the marital institution, on which the entire bedrock of society rests”.
  • The difficulty with that proposition is obvious — is it the policy of the law that marriage is to be preserved at all costs?
  • If so, does that withstand constitutional scrutiny?
  • 3] Impact argument: the judge rejected the challenge to the martial rape exception based on the right to equality on the spurious assumption that the impact on a woman who is raped by her husband cannot “be equated with the impact of a woman who is raped by a stranger”.
  •  No evidence is cited in support of those claims.
  • They also defy logic. Being raped by someone in whom you have reposed trust is likely to have an indelible emotional impact.
  • 4] Reluctance to file complaint: The judge concluded that, as a practical matter, a “majority of Indian women” would be reluctant to file a complaint of rape against their husbands in any event.
  • Even if that were true, it is no reason to disempower, by the operation of the law, women who do have the resolve to make a rape complaint against their husbands from doing so.
  • 5] Creation of new offence: Justice Shankar held that it is not within the court’s power to create a new offence, and striking down the marital rape exception would have that effect.
  • There is no question of creating a new offence — the court would simply be striking down an exception carved out of an existing offence.
  • The only principled basis for the judge’s objection is that it may be unfair to punish someone for rape for conduct that was excluded from the definition of rape when it was undertaken.
  • But that is not a reason to avoid striking down the marital rape exception.
  • The easy solution is for the court to declare that its judgment will apply only to conduct after the date of the judgment.

Conclusion

Whether the marital rape exception violates fundamental rights under the Constitution is a question that falls within the Court’s core competency. There is only one reasonable answer to that question.

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Delhi HC gives split verdict on Marital Rape

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Persistence of marital rape and need for its criminalization

Two judges of the Delhi High Court gave a split verdict on the question of criminalising rape within marriage, leaving the law unchanged.

Seems like the matter will now be referred to a larger bench.

What is Marital Rape?

  • Marital rape is the act of sexual intercourse with one’s spouse without her consent.
  • It is no different manifestation of domestic violence and sexual abuse.
  • It is often a chronic form of violence for the victim which takes place within abusive relations.

What is the news?

  • One of the Judge struck down as unconstitutional the exception to Section 375 of the IPC, which says that sexual intercourse by a man with his wife aged 18 and above is not rape even if it is without her consent.
  • However, another Judge said that issue requires consideration of social, cultural and legal aspects.

Outcome of the split verdict: Preserving the institution of marriage

The Centre’s concern that criminalising marital rape may destabilise the institution of marriage is a “legitimate” one, said the HC.

  • Spousal intimacy: In a marriage, conjugal expectation is a two-way street, where “consent is given as a part of spousal intimacy although the will to engage may be absent”.
  • Need for written agreement: If every such case is treated as marital rape, then the only way partners in a marriage may survive would be by drawing up a detailed written agreement.
  • Burden of evidentiary record: This would lead to creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness.
  • Defying marital obligations: The HC said that marriage was accompanied by obligations that the partners had to bear, including conjugal expectations, financial obligations and, finally, duty towards progeny.
  • Sexual liberty of spouses: The bench also underlined the signs of injury on a partner need not necessarily mean there had been non-consensual sex as “in the age of sexual liberation”, injuries could be a sign of “passion”.
  • Cruelty not rape: Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse found in Section 3 of the Domestic Violence Act.
  • Clash of ego: A wife cannot prescribe a particular punishment that can be imposed on the husband ‘to satisfy her ego’,” the judge said.

Then what is the remedy for such ‘Marital Rapes’?

  • Section 3 of the Protection of Women from Domestic Violence Act, 2005 provides a definition for domestic violence, which includes physical, sexual, verbal and emotional abuse.

General reasons for disapproval of this concept

  • The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to:
  1. Traditional views of marriage
  2. Interpretations of religious doctrines
  3. Ideas about male and female sexuality
  4. Cultural expectations of subordination of a wife to her husband
  • It is widely held that a husband cannot be guilty of any sexual act committed by himself upon his lawful wife their on account of their mutual matrimonial consent.

Why it must be a crime?

  • Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
  • Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
  • Compulsive relationship: Marital rape may occur as part of an abusive relationship.
  • Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
  • Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Violation of fundamental rights

  • Marital rape is considered as the violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
  • By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.

Global examples

  • Marital rape immunity is known in several post-colonial common law countries.
  • Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape.
  • The UK in 1991 arrived at a consensus that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.
  • However, in 2003 marital rape was outlawed by legislation in the UK.

Problems in prosecuting marital rape

  • Lack of awareness: A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute is common globally.
  • Gender norms: Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize such rape.
  • Acceptability of the concept: Another problem results from prevailing social norms that exist.

Present regulations in India

  • Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
  • However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
  • Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
  • According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
  • They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

However, marital rape is still not a criminal offence in this case and is only a misdemeanour.

Arguments against criminalization

  • Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
  • Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
  • Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.

Way forward

  • Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
  • In the absence of any concrete law, the judiciary always finds it difficult to decide the matter of domestic rape in the absence of solid evidence.
  • The main purpose of marriage is procreation, and sometimes divorce is sought on the ground of non-consummation of marriage.
  • Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.

 

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Marital Rape

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Paper 2- Marital rape

Context

On May 10, 2022, a two-judge bench of the Delhi High Court gave a split ruling on marital rape, thus ensuring a future hearing in the Supreme Court.

Why rape and marriage were seen as mutually exclusive

  • The concepts of rape and marriage were seen as mutually exclusive – they could not be brought together.
  • Across the world, and till very recently, marriage has been explicitly treated as being outside the purview of rape.
  • Even in the Western countries that we associate with the more “advanced” practices of gender equality, marital rape was treated as an exception to the crime of rape till the early 1990s.
  • In the absence of a universal definition, several scholars take marriage to be an institution where a man and a woman live together, have sexual relations and engage in cooperative economic activity.
  • Link between marriage and property: Others have emphasised the link between marriage and property.
  • The dominant form of marriage in the modern West became quite distinctly patriarchal, visible in late 18th-century British law, for instance, whereby a wife became the property of her husband upon marriage.
  • Husbands, therefore, had the right to access their wives sexually, without the question of coercion or consent being on the horizon in the first place.
  • As property, wives had to be protected from the (illegal) sexual access of other men, and here too, their consent was irrelevant.

Introduction of marital rape

  • If what distinguishes the relationship of husband and wife from other relations between men and women is the legitimate expectation of sexual relations, then the introduction of marital rape signals the entry of a new and equally legitimate expectation: A wife’s consent to sexual relations is essential, and in this, she is no different from other women.
  • Husbands no longer enjoy unquestioned rights over the bodies of their wives — this is what it means for a wife to be a person with bodily integrity.

Conclusion

It is strange, indeed, that most parts of the world, India included, became modern while continuing to believe that wives are the property of husbands.

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Rape laws are being misused today: Justice BN Srikrishna

Note4Students

From UPSC perspective, the following things are important :

Prelims level: NA

Mains level: Efficay of laws for womens safety

Retired Supreme Court judge Justice BN Srikrishna has said that there is a blatant misuse of rape laws in the country.

What did Justice BN Srikrishna say?

  • Lesser convictions: Statistics show that even after the amendment of rape laws, there have been less number of convictions.
  • Need for objective analysis: It is time that rape cases be looked at in a very objective manner.
  • Authencity of women’s claims needs to be checked: We need to question — is the woman really subjected to cruelty and atrocities? Otherwise, in the general course of things, the accused is presumed to be innocent unless proven guilty should apply.
  • Tilt of such laws is always against the men: However, in rape cases, whatever the woman says is treated as the gospel truth. But that is not the intention of the law. It is not the way to empower women.

Various laws for the protection of women

  • Various special laws relating to women include:
  1. Protection of Women from Domestic Violence Act, 2005
  2. Dowry Prohibition Act, 1961
  3. Indecent Representation of Women (Prohibition) Act, 1986
  4. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  5. Prohibition of Child Marriage Act, 2006

 Alleged rape cases these days

  • False accusations: Justice BN Srikrishna said that, sometimes some innocent men are being falsely accused of rape and later getting acquitted.
  • Consensual sex is later cried as rape: There are many cases either in a consensual relationship or in co-habitation for a long time, there is a disagreement and the woman cries rape.
  • Tool to preserve honour: There are instances where a secret affair is going on, people get to know of it and in order to come out of the ignominy of it, she cries rape, Justice Srikrishna said.

Issues with such alleged rape cases

  • Whenever the man is accused of rape, he gets arrested, newspapers carry it on the front page.
  • But when there is an acquittal, it is not carried in the same way. This is terrible.
  • The balance is always tilted in favour of women in such cases.

Various sexual crimes in India

  • Sexual Abuse/ Molestation/ Rape: Rape is one of the most common crimes in India. According to the National Crime Records Bureau, one woman is raped every 20 minutes in India.
  • Marital Crimes: In India, marital rape is not a criminal offense.  India is one of fifty countries that have not yet outlawed marital rape.
  • Forced Marriage: Girls are vulnerable to being forced into marriage at young ages, suffering from a double vulnerability: both for being a child and for being female.
  • Trafficking and forced prostitution: Human trafficking, especially of girls and women, often leads to forced prostitution and sexual slavery.
  • Online abuse: Women are regularly subject to online rape threats, online harassment, cyber-stalking, blackmail, trolling, slut-shaming and more.
  • Harassment at the workplace: Sexual harassment at workplace, mostly comprising of indecent remarks, unwanted touches, demands for sex, and the dissemination of pornography.

Various initiative to protect women

The Government has taken a number of initiatives for the safety of women and girls, which are given below:

  • Nirbhaya Fund for projects for the safety and security of women
  • One-Stop Centre Scheme to provide integrated support and assistance to women affected by violence, both in private and public spaces under one roof
  • Online analytic tool for police called “Investigation Tracking System for Sexual Offences” to monitor and track time-bound investigation in sexual assault cases in accordance with Criminal Law (Amendment) Act 2018.
  • National Database on Sexual Offenders (NDSO) to facilitate investigation and tracking of sexual offenders across the country by law enforcement agencies.

Way ahead

  • Breaking the cycle of abuse will require concerted collaboration and action between governmental and non-governmental actors including educators, health-care authorities, legislators, the judiciary and the mass media.
  • Gender-based violence, an especially violent crime like rape, is a multifaceted problem.
  • Although the incorporation of stringent laws and stricter punishments are important to deter people from committing such crimes, the solution to this is much more than just promulgation.
  • Education of both men and women will lead to change in attitudes and perceptions.
  • It is a mammoth task. We are just doing bits and pieces. A way ahead is obscure but in our sphere with concrete and pronounced steps.

 

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What is POSH Act?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: POSHA Act

Mains level: Preventing SHW

The Kerala High Court has asked organizations associated with the film industry to take steps to constitute a joint committee to deal with cases of sexual harassment of women, in line with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013.

Why in news?

  • During the #MeToo movement, a number of women in India called out influential men — actors, standup comics, senior journalists — for alleged sexual harassment.
  • Hence the HC underlined that film production units must comply with the law against sexual harassment, commonly known as the prevention of sexual harassment at workplace (SHW) or POSH Act.

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”.

Circumstance amounting to SHW

The Act mentions five circumstances that amount to sexual harassment implied or explicit:

  1. Promise of preferential treatment in her employment
  2. Threat of detrimental treatment
  3. Threat about her present or future employment status
  4. Interference with her work or creating an offensive or hostile work environment
  5. Humiliating treatment likely to affect her health or safety

Procedure for complaint

  • Technically, it is not compulsory for the aggrieved victim to file a complaint for the ICC to act.
  • The Act says that she “may” do so — OR any member of the ICC “shall” render “all reasonable assistance” to her to complain in writing.
  • If the woman cannot complain because of “physical or mental incapacity or death or otherwise”, her legal heir may do so.
  • Under the Act, the complaint must be made “within three months from the date of the incident”.
  • However, the ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”.
  • It provides that “no monetary settlement shall be made as a basis of conciliation”.
  • The ICC may either forward the victim’s complaint to the police, or it can start an inquiry that has to be completed within 90 days.
  • The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, the Act states, should not be made public.

After the ICC report

  • If the allegations of sexual harassment are proved, the ICC recommends that the employer take action “in accordance with the provisions of the service rules” of the company.
  • These may vary from company to company.
  • It also recommends that the company deduct from the salary of the person found guilty, “as it may consider appropriate”.

Compensation is determined based on five aspects:

  1. Suffering and emotional distress caused to the woman;
  2. Loss in career opportunity;
  3. Her medical expenses;
  4. Income and financial status of the respondent;
  5. Feasibility of such payment.

Appeal in Court

  • After the recommendations, the aggrieved woman or the respondent can appeal in court within 90 days
  • Section 14 of the Act deals with punishment for false or malicious complaint and false evidence.
  • In such a case, the ICC “may recommend” to the employer that it take action against the woman, or the person who has made the complaint, in “accordance with the provisions of the service rules”.
  • The Act, however, makes it clear that action cannot be taken for “mere inability” to “substantiate the complaint or provide adequate proof”.

 

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How to prevent another Bulli Bai or Sulli Deals

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Paper 2- Preventing targeting of Muslim women online

Context

The auctioning of Muslim women first on Sulli Deals and now through Bulli Bai is shocking and it is our collective responsibility to make sure it never happens again.

How to prevent such incidents from happening?

  • Even a good system of blocking this app from mainstream online platforms is a short-term technical solution.
  • We have on our hands a problem of a few active bad actors and many passive ones.
  • Systems to identify and remove content on Social media: For over a decade, Facebook, Twitter, WhatsApp, and YouTube have been at the center of controversy.
  • Over time, they have developed elaborate systems through which harmful content can be identified and removed.
  • What is key is that this content is usually legible to a wide range of people. 

How GitHub is different?

  • GitHub’s content is code.
  • GitHub is a specialist platform that is not accessible or legible to everyone.
  • It is, however, working towards more sophisticated content moderation.
  • There is great value in a platform that shares code.

Challenges in finding and punishing perpetrators

  • US laws: The United States of America’s laws require companies not to share private information unless the request is made through an onerous process.
  • Delay in sharing information: This is a pre-internet process for law enforcement requests from other countries.
  • After the internet made American platforms intermediaries of communication worldwide, the number of requests for information from these companies escalated dramatically.
  • The system does not have the resources to cope with the increased demand and there is a delay before requests can be processed.
  • This is why it is a waste of time calling for GitHub to hand over the names of the authors of the code.

Suggestion

  • Automated detection system: To address non-consensual sexual media, platforms maintain a shared database of reported videos and images which they remove the instant they are re-published or shared.
  •  At least in the short term, GitHub needs to work with the group being targeted towards an automated detection system that will restrain this new disturbing trend in targeting Muslim women.

Conclusion

Our focus in the short term should be on finding a way to make sure that any recurring versions of this code are blocked proactively by GitHub.

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Criminalizing Marital Rape in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level: IPC section 375

Mains level: Persistence of marital rape and need for its criminalization

The Delhi High Court has told the Centre that it will continue hearing the petitions challenging the legal exception to marital rape and not wait for the government’s ongoing process of initiating reform in the criminal laws.

What is Marital Rape?

  • Marital rape is the act of sexual intercourse with one’s spouse without her consent.
  • It is no different manifestation of domestic violence and sexual abuse.
  • It is often a chronic form of violence for the victim which takes place within abusive relations.

Status in India

  • Historically considered as right of the spouses, this is now widely classified as rape by many societies around the world.
  • In India, marital rape is not a criminal offense (as protected under IPC section 375).
  • India is one of fifty countries that have not yet outlawed marital rape.

Reasons for disapproval of this concept

  • The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to:
  1. Traditional views of marriage
  2. Interpretations of religious doctrines
  3. Ideas about male and female sexuality
  4. Cultural expectations of subordination of a wife to her husband
  • It is widely held that a husband cannot be guilty of any sexual act committed by himself upon his lawful wife their on account of their mutual matrimonial consent.

Why it must be a crime?

  • Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
  • Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
  • Compulsive relationship: Marital rape may occur as part of an abusive relationship.
  • Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
  • Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Violation of fundamental rights

  • Marital rape is considered as the violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
  • By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.

Problems in prosecuting marital rape

  • Lack of awareness: A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute is common globally.
  • Gender norms: Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize such rape.
  • Acceptability of the concept: Another problem results from prevailing social norms that exist.

Present regulations in India

  • Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
  • However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
  • Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
  • According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
  • They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

However, marital rape is still not a criminal offence in this case and is only a misdemeanour.

Arguments against criminalization

  • Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
  • Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
  • Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.

Way forward

  • Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
  • In the absence of any concrete law, the judiciary always finds it difficult to decide the matter of domestic rape in the absence of solid evidence.
  • The main purpose of marriage is procreation, and sometimes divorce is sought on the ground of non-consummation of marriage.
  • Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.

Must read:

[RSTV Archive] Sexual Crime – Fast-tracking Justice

 

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Punishing Online Abusers of Women

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Online abuse of Women

Taking cognizance of multiple complaints that photographs of women had been posted on a mobile app (with a very informal slang name) for fake auctions, the police in Delhi and Mumbai have registered cases.

What is the controversy?

  • Hundreds of women in India including journalists, social workers, and other prominent personalities found their images and derogatory content about them on a new app.
  • The app was created on hosting platform Github, offered an online “auction” of women (esp from a particular community).
  • This controversy is part of the routine harassment women faced on social media in an increasingly polarized communal environment.

Online Abuse of Women

  • Online abuse includes a diversity of tactics and malicious behaviors ranging from:
  1. Sharing embarrassing and cruel content about a person to impersonation
  2. Stalking and electronic surveillance
  3. Nonconsensual use of photography
  4. Violent threats and hate speech
  5. Defamation
  6. Flaming- use of vitriolic and hostile messages including threats, insults
  7. Trolling
  • The online harassment of women, sometimes called Cybersexism or cybermisogyny, is specifically gendered abuse targeted at women and girls online.
  • It incorporates sexism, racism and religious prejudice.

Recent controversy: A critical case of abuse

  • The app is clearly an example of online trolling where the dignity and modesty of a woman is highly downgraded.
  • This has not been the very first time. Earlier, no arrests were ever made showing Police inaction.
  • The authorities were using the Mutual Legal Assistance Treaty (MLAT) to obtain information about the creators of such apps from California-based GitHub.

Legal provisions against such Crimes

For making arrests, the police have invoked Sections 153A, 153B, 295A, 354D, 500 and 509 of the Indian Penal Code (IPC) and Section 67 of the Information Technology Act.

  • Section 153A pertains to the offence of promoting enmity between different groups on grounds of religion, etc., and doing acts prejudicial to the maintenance of harmony
  • Section 153B relates to imputations, assertions prejudicial to national-integration
  • Section 295A provides punishment for deliberate and malicious acts intended to outrage religious feelings
  • Section 354D provides that any man who monitors the use by a woman of the internet, email or any other form of electronic communication with malintent, commits the offence of stalking.
  • Section 500 defines the punishment for defamation
  • Section 509 addresses the offence of word, gesture or act intended insulting the modesty of a woman
  • Section 67 of the IT Act lays down the punishment for publishing or transmitting obscene material in electronic form

Penalty for such crime

  • The first conviction attracts imprisonment up to three years and fine up to ₹5 lakh and the second or subsequent conviction may lead to imprisonment up to five years and fine that may extend to ₹10 lakh.

What are the other provisions related to cybercrimes?

  • Section 66E of the IT Act prescribes punishment for violation of privacy.
  • Also, sections 354A (sexual harassment and punishment for sexual harassment) and 354C (voyeurism) of the IPC were introduced along with sections 354B and 354D in 2013.
  • These may also be applied in conjunction with the relevant IT Act provisions, based on the nature of the offence.

What are the responsibilities of intermediaries like social media platforms?

  • As of now, the intermediaries are not liable for any third-party data or communication link hosted or stored by them.
  • They are required to retain the requisite data for duration as prescribed by the Government and supply the same to the authorities concerned, as and when sought.
  • Any contravention attracts punishment as prescribed under the IT Act.

Additional steps been taken

  • The Ministry of Electronics and Information Technology notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
  • Its provision —“Due diligence by intermediaries and grievance redressal mechanism” —requires them to inform their users not to host, display, upload, modify, publish, transmit, store, update or share any illegal information.
  • They include contents that are defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, etc.
  • The intermediaries, on the direction of the court or appropriate government agency, are prohibited from hosting, storing or publishing any information declared unlawful.
  • Within 24 hours from the receipt of a complaint from, or on behalf of, an individual about any offensive content, they are required to take all reasonable and practicable measures to remove or disable access to it.

Way forward

  • The government can take action beyond passing and enforcing platform regulations.
  • It can promote digital education to recognize and report inappropriate online conduct and to communicate respectfully online.
  • Social media companies have the primary responsibility to prevent the amplification of online abuse and disinformation.

Conclusion

  • Gender-based harassment is marked by the intent of the harasser to denigrate the target on the basis of sex.
  • But this proliferation of online harassment of women has now incorporated religious polarization.
  • This is very harmful for the existing communal harmony of the nation in the long run.

 

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Supreme Court clarifies on abuse linked to Dowry Deaths  

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Dowry deaths in India

Dowry death can be presumed if the wife was harassed, mentally and physically close before her death in the marital home, the Supreme Court has held.

Section 304B, IPC

  • A Bench led by Chief Justice of India N.V. Ramana was interpreting Section 304B of the Indian Penal Code (dowry death).
  • The provision mandates that the death of a married woman could be linked to the crime if she had been harassed for dowry “soon before her death”.

What is the recent judgment?

Ans. Bridges the gap between extreme Harassment and Death

  • The cruelty has to be proved during the close proximity of time of death. It should be continuous.
  • Such continuous harassment, physical or mental, by the accused should make life of the deceased miserable which may force her to commit suicide, ruled Justice Hima Kohli.
  • The court said the expression “soon before her death” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question.
  • In other words, there exists a proximate and live link between the effect of cruelty based on dowry demand and the death concerned.

Other takeaways

  • Frequent incidents of cruelty disturb the mental equilibrium of the women concerned, ruled the court.
  • However, the presumption of dowry death was also rebuttable, observed the court.

Dowry System : A Backgrounder

  • The dowry system in India incorporates payments in the form of capital, durable goods, real estate among others, made to the bridegroom from the family of the bride as a condition for marriage.
  • The abuse for the demand for dowry can be in the form of verbal and the most serious can take the shape of death of the victim or dowry death.

Dowry Deaths in India

  • Dowry deaths are deaths of married women who are murdered or driven to suicide by continuous harassment and torture by their husbands and in-laws.
  • This is mainly over the demand of dowry, making the women’s homes the most dangerous place for them to be.

What numbers reveal?

  • In 2020, reported dowry death cases in India amounted to nearly seven thousand.
  • This was a gradual decrease from the 2014, in which this number was approximately 8.5 thousand.

Why is dowry so much prevalent?

  • Bride pricing: There exists a system of “bride price”, whereby the family of the groom had to give some gifts to the family of the women before marriage.
  • Property inheritance: Until its amendment in 2005, the Hindu Succession Act of 1956 was biased towards the male next of kin when it came to property inheritance.  The amendment stated that women had the right to their parents’ property irrespective of being married.
  • Financial dependency: In practice, the inheritance of the woman is socially imparted to her as dowry in marriage leading to financial dependence on the husband or the in-laws.

Factors contributing to its continuance

  • Traditions and historicity: It has been a preconceived notion of the people that the dowry system has been existing since centuries back and it is quintessential to be followed by the two families.
  • Social status associated with Dowry: It is a belief among people that dowry giving or receiving gives a lot of merit in reputation and honor within the society.
  • Illiteracy: Although dowry is something that is even practiced by the literates of our society, it becomes a lot difficult to make them understand the laws.
  • Bridegroom coercion: The demand for the well-earned bridegroom in prestigious workplaces often encourages brides families to pay hefty dowries leading to the continuance of such evil customs.

Legal measures against dowry

  • Code of Criminal Procedure, 1973: Dowry death is a non-bailable offence and the person cannot be acquitted without court’s order.
  • Dowry Prohibition Act of 1961: It was passed by the government which prohibits the giving or taking of dowry in India.

Dysfunctions created by the Dowry system

  • Defamation: There have been many instances where these laws have been used to defame or slander one’s name.
  • Fights for property inheritance: This go ugly when the girl involves into interfaith marriage. This often leads to honor killing.

Way forward

  • The dignity, modesty and safety of women must be prioritized by all. Abusing them just for dowry or any other financial favour is a shameful act in itself.
  • To prevent such heinous crimes stringent provisions and measures need to be undertaken by the government.

 

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Maharashtra govt.’s Shakti Bill

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Need of stringent laws for women safety

The Maharashtra government’s Shakti Criminal Laws (Maharashtra Amendment) Bill, 2020, on crimes against women and children has recommended capital punishment in rape cases.

Why have stringent laws have consistently failed to instill any fear in rapists? Discuss.

Shakti Act: Key Provisions

  • Capital punishment: It proposes stringent punishment including the death penalty and heavy fines for the culprits.
  • Fast-track trial: Special police teams and separate courts will be set up for investigation and trial of cases against women and children.
  • Jail term: The perpetrators if found guilty will be punished with imprisonment for life for not less than ten years but may extend to the remainder of natural life or with death in cases which have characteristics of being heinous in nature.
  • Compensation: A sum of Rs 10 lakh will be given to an acid attack victim for plastic surgery and facial reconstruction and the amount will be collected as fine from the convict.
  • Rapid investigation: The investigation shall be completed within a period of 15 working days from the date of registration of an offence. This can be extended by 7 days.
  • In-camera investigation: Some cases will be tried in-camera for the recording of evidence of victims and witnesses who are vulnerable.

Why in news?

(1) Covering acid-attacks

  • Politicians in Maharashtra have recommended increasing the quantum of punishment for acid attack cases under section 326A of IPC to at least 15 years that may extend to the remainder of a convict’s natural life.
  • The expenditure of plastic surgery and face reconstruction operations for the victim will be taken care of from the monetary fine to be charged on the accused.

(2) Social media accountability

  • The panel has also increased the punishment under the IPC section 175A for failure to share data for probe by social media platforms, internet providers.
  • Also, under Pocso Act, the data must be within three days at the pain of penalty.

(3) Curb on false complaints

  • Punishment will be increased for false complaints and for giving wrong information to a public servant.
  • The provisions under the bill are being made more stringent to punish the culprits and set deterrence.
  • However, it is also necessary that the innocent are saved and so severe punishment is required against people filing false or wrongful complaints.
  • The committee has also scrapped the provision of not giving anticipatory bail to people making wrongful or false complaints.

(4) Covering trans-persons

  • Under section 354E, which provides for punishment for any act of intimidating woman and insulting her modesty, the category of offenders has been increased to cover men, women and even transgender persons.

Limitations of stringent laws

  • Despite several laws, incidences of rapes continue unabated.
  • In fact, now we hear cases of extreme brutality.
  • The general perception is that since the laws have been made more stringent, so the rapists resort to extreme measures in a bid to destroy the evidence.

Way forward

  • What we need is better policing, making public spaces safer for women, ensuring round-the-clock surveillance of isolated areas, and deployment of police at all strategic points.
  • Prevention and not punishment is the solution and that requires concerted efforts on part of all the stakeholders.
  • It is not harsher punishments that will deter. It is the fear of being caught and not being spared.

 

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Karnataka’s Anti-Conversion Legislation

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Articles 25, 26

Mains level: Religious conversions isses

Amid opposition, the Karnataka Protection of Right to Freedom of Religion Bill, 2021, was introduced in the Assembly.

What is the Bill about?

  • The Bill envisages stringent provisions for forced or induced conversions.
  • The government wants to prohibit conversion by:
  1. Misrepresentation
  2. Force
  3. Allurement
  4. Fraudulent means
  5. Marriage
  6. Coercion and undue influence

Key features of the Bill

(1) Filing of Complaints

  • Complaints of conversions can be filed by family members of a person who is getting converted, or any other person who is related to the person who is getting converted, or any person associated with the person getting converted.

(2) Punishment and fines

  • The offense of conversion is cognisable and non-bailable and will attract a jail term of three to five years and a fine of ₹25,000 for people found violating the law.
  • There is a jail term of three to 10 years, and a fine of ₹50,000 for people converting minors, women and persons from the SC and ST communities.
  • The Bill also envisages a compensation of ₹5 lakh to victims of forced conversions.

Do you know?

Odisha was the first State to enact anti-conversion legislation, the Orissa Freedom of Religion Act, 1967. Madhya Pradesh enacted the same the following year.

What about willful conversion?

  • Prior information: After the law comes into force, any person intending to convert to another religion will have to inform the district magistrate at least thirty days in advance.
  • Due inquiry of purpose: The person executing the conversion must also give a notice one month in advance, following which an inquiry will be conducted by the district magistrate through the police to establish the real intent of conversion.
  • Defying the conversion: Not informing the district magistrate will lead to the conversion being declared null and void.

Impact of non-conformance

  • Not informing authorities will carry a prison term of six months to three years for persons who are converted and one year to five years for the persons carrying out the conversions.
  • After getting converted, the person has to again inform the district magistrate within 30 days after conversion and must appear before the district magistrate to confirm his/her identity.

What happens once the Conversion is held valid?

  • Post conversion, the district magistrate has to inform revenue authorities, the social welfare, minority, backward classes and other departments of the conversion.
  • These authorities will, in turn, take steps with respect to the entitlements of the person in terms of reservations and other benefits.

How many states have enacted the legislation?

  • Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Uttar Pradesh and Uttarakhand have laws restricting religious conversion.
  • Penalties for breaching the laws can range from monetary fines to imprisonment, with punishments ranging from one to three years of imprisonment and fines from ₹5,000 to ₹50,000.
  • Some of the laws provide for stiffer penalties if women, children, or members of Scheduled Castes or Scheduled Tribes (SC/ST) are being converted.
  • Some other States, including Manipur, are reportedly “considering similar laws.”

How has Parliament handled anti-conversion bills?

After independence, Parliament introduced a number of anti-conversion bills which were not enacted for want of majority approval.

  • In post-Independent India, the first Indian Conversion (Regulation and Registration) Bill, 1954, which sought to enforce “licensing of missionaries and the registration of conversion.”
  • This was followed by the introduction of the Backward Communities (Religious Protection) Bill, 1960, “which aimed at checking conversion of Hindus to ‘non-Indian religions’ .
  • Non-India religions included Islam, Christianity, Judaism and Zoroastrianism,.
  • The Freedom of Religion Bill in 1979, which sought “official curbs on inter-religious conversion.”

Religious conversion: A Constitutionality check

  • Indian Constitution aspires toward tolerance of all religions and guaranteed that each person was “equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion” (Article 25).
  • This formulation did not come without dispute; the word “propagate” was one of the most contested in the whole of Indian Constitution.

Core issue: Prevalence of Inter-faith Marriage

  • India has the Special Marriage Act, 1954, which can be used by inter-faith/inter-community couples to get married.
  • The Act, however, requires an advance notice of 30 days to the magistrate before a couple is able to register their marriage.
  • When the parties are from different faiths, communities or castes, such a public notice can be, and has been, a great source of danger and harm from their family/community members.
  • Consequently, the only option exercised by the inter-faith couples is for one of them to convert to the religion of the other and get married.

Issues with such laws

The anti-conversion laws have been challenged on the ground that innocent persons were being booked under these Acts.

  • Patriarchal dominance: It is widely presumed that such conversions involve ‘coercion’ or ‘deceit’, and hence, Hindu women ought to be ‘protected’ from the danger of conversion.
  • Targeting minorities: These laws target Muslims and quoted instances of such inter-faith couples having been harassed by militant activists and state government authorities.
  • Freedom of Conscience: Women, it is clear, are being treated in a paternalistic way which assumes that they need protection at the cost of their right to make reasoned decisions about changing faith or choosing a friend or life partner.

What about Incentivised Conversions?

  • There are many cases of incentivized conversions for the poor sections of society in exchange for a dignified social life.

For them, the solution lies in addressing the root issues:

  1. Ending discrimination
  2. Providing high quality and free education to the poor and disenfranchised
  3. Improving access and quality of free health facilities and medicines
  4. Improving nourishment and
  5. Providing adequate employment opportunities to all

Conclusion

  • Clearly, anti-conversion laws amount to discrimination and a violation of the right to equality.
  • However, inter-faith marriages should not be pre-conditioned with religious conversion. This certainly raises concerns for the majority of society.
  • Instead of pursuing this disastrous course, the government could work towards removing impediments to inter-faith marriages and eradicating the social stigma attached to such marriages.
  • The couples who wish to enter into an inter-faith alliance are enabled and protected.

 

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Explained: Conjugal rights before Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Conjugal rights

The Supreme Court is expected to begin hearing a fresh challenge to the provision allowing restitution of conjugal rights under Hindu personal laws.

What is the provision under challenge?

  • Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights.

What are conjugal rights?

  • Conjugal rights are rights created by marriage, i.e. the right of the husband or the wife to the society of the other spouse.
  • The law recognizes these rights— both in personal laws dealing with marriage, divorce etc and in criminal law requiring payment of maintenance and alimony to a spouse.
  • The concept of restitution of conjugal rights is codified in Hindu personal law now, but has colonial origins and has genesis in ecclesiastical law.
  • Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which governs Christian family law.
  • Incidentally, in 1970, the United Kingdom repealed the law on restitution of conjugal rights.

How can a case under Section 9 be filed?

  • If a spouse refuses cohabitation, the other spouse can move the family court seeking a decree for cohabitation.
  • If the order of the court is not complied with, the court can attach property.
  • However, the decision can be appealed before a High Court and the Supreme Court.
  • Normally, when a spouse files for divorce unilaterally, the other spouse files for restitution of conjugal rights if he or she is not in agreement with the divorce.
  • The provision is seen to be an intervention through legislation to strike a conciliatory note between sparring spouses.

Why has the law being challenged?

  • The law is being challenged now on the main grounds that is violative of the fundamental right to privacy.
  • The plea argues that court-mandated restitution of conjugal rights amounted to a “coercive action” on the part of the state, which violates one’s sexual and decisional autonomy, and right to privacy and dignity.
  • In 2019, a nine-judge Bench of the Supreme Court recognised the right to privacy as a fundamental right.
  • The verdict in the privacy case set the stage for potential challenges to several laws such as the criminalization of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape investigations.

Question over gender-neutrality

  • Although the law is ex-facie (‘on the face if it’) gender-neutral since it allows both wife and husband to seek restitution of conjugal rights, the provision disproportionately affects women.
  • Women are often called back to marital homes under the provision and given that marital rape is not a crime, leaves them susceptible to such coerced cohabitation.
  • It will also be argued whether the state can have such a compelling interest in protecting the institution of marriage that it allows legislation to enforce the cohabitation of spouses.

What has the court said about the law earlier?

Supreme Court:

  • In 1984, the Supreme Court had upheld Section 9 holding that the provision “serves a social purpose as an aid to the prevention of break-up of marriage”.
  • Leading up to the Supreme Court intervention, two High Courts — those of Andhra Pradesh and Delhi — had ruled differently on the issue.

AP High Court:

  • In 1983, AP High Court had for the first time struck down the provision and declared it null and void. It cited the right to privacy among other reasons.
  • The court also held that in “a matter so intimately concerned the wife or the husband the parties are better left alone without state interference”.
  • The court had, most importantly, also recognised that compelling “sexual cohabitation” would be of “grave consequences for women”.

Delhi High Court:

  • In the same year, a single-judge Bench of the Delhi High Court took a diametrically opposite view of the law and upheld the provision.
  • From the definitions of cohabitation and consortium, it appears that sexual intercourse is one of the elements that go to make up the marriage.
  • But it is not the summum bonum (the ultimate aim). As if marriage consists of nothing else except sex.

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Corrective voice from Supreme Court against stereotyping of women

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not Much

Mains level: Gender sensitization of Judiciary

A judgment by the Supreme Court forbidding judges from making gender-stereotypical comments came as a corrective voice from within the highest judiciary.

Q.Discuss the need for gender sensitization of the judicial institutions.

What is the news?

  • The judgment came days after the CJI, during a virtual hearing reportedly asked an alleged rapist’s lawyer to enquire whether his client would marry the survivor.
  • His statement coincided with International Women’s Day.
  • Days later, a Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat urged courts to avoid using reasoning/language which diminished a sexual offence and tended to trivialize the survivor.

What did the Court say?

  • The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.
  • Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence.
  • This judgment is one among a series of interventions with which the apex court has clamped down on abuse and sex stereotyping of women.

No institution is mightier than the modesty of a woman.

SC against stereotyping

Some of the notable judgments which have lashed out at sex stereotyping include:

  1. The framing of the Vishaka Guidelines on sexual harassment of women in working places, and
  2. Justice D.Y. Chandrachud’s historic judgment giving women Armed Forces officers’ equal access to Permanent Commission while debunking the establishment’s claim that women were physiologically weaker than men
  3. In the Anuj Garg case, the Supreme Court had rebuked “the notion of romantic paternalism”, which, “in practical effect, put women, not on a pedestal, but in a cage”

Avoid gender stereotypes such as:

The courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that

  • women are physically weak and need protection;
  • men are the “head” of the household and should take all the decisions relating to family;
  • women should be submissive and obedient according to our culture;
  • “good” women are sexually chaste;
  • motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother;
  • being alone at night or wearing certain clothes make women responsible for being attacked;
  • lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

Conclusion

  • Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the re-victimization of complainants.
  • Often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to these stereotypes.

There should be gender sensitization

  • The court-mandated that a module on gender sensitization is included, as part of the foundational training of every judge.
  • This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.

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Ramani Judgement

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Paper 2- Sexual harassment at workplace

 

Why the Ramani judgement matters

  • The verdict went beyond a mere refusal to convict Ramani for criminal defamation.
  • The verdict vindicated Ramani by accepting Ramani’s truth as a defence to the charge of defamation.
  • The verdict urged society to “understand that sometimes a victim may for years not speak up due to mental trauma,” and underlined that a woman has a right to speak up about the abuse, even after decades.
  • It pointed out that since sexual harassment typically takes place in private, women’s testimonies cannot be dismissed as untrue or defamatory simply because they are unable to provide other witnesses to back their allegations.
  • Institutional mechanisms have systemically failed to protect women or provide justice, the verdict reasoned.
  • Therefore, survivors are justified in sharing their testimonies on media or social media platforms as a form of self-defence.

Right to dignity

  • The Ramani verdict points out that sexual abuse violates the constitutionally recognised rights to dignity (Article 21) and equality (Articles 14 and 15), and that (a man’s) right to reputation cannot be protected at the cost of (a woman’s) right to dignity. 
  • The Ramani verdict is a huge moral vindication of the #MeToo movement and will serve to deter powerful men from using the defamation law to silence survivors.

Problem of institution

  • Sexual harassment is a problem of institutions rather than of individuals alone.
  • The world over, employers deploy sexual harassment as a means to discipline and control women workers.
  • In India and Bangladesh, at least 60 per cent of garment factory workers experience harassment at work.
  • In Guangzhou, China, a survey found that 70 per cent of female factory workers had been sexually harassed at work, and 15 per cent quit their jobs as a result.
  • For factory workers, domestic workers, street vendors, sanitation and waste workers, construction workers, sex workers, labour laws or laws against sexual harassment exist only on paper.

Conclusion

The women who spoke were unanimous that individual complaints were not an option, they needed unions to fight collectively. Women workers fighting sexual harassment, need more support and attention.

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#MeToo and Defamation Cases

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Criminal Defamation

Mains level: Women safety issues

The Delhi High Court has dismissed former Union Ministers’ criminal defamation complaint against a famous journalist over her tweets accusing him of sexual harassment.

What is the #MeToo Movement?

  • The #MeToo movement, with variations of related local or international names, is a social movement against sexual abuse and sexual harassment towards women, where people publicize allegations of sex crimes.
  • The phrase “Me Too” was initially used in this context on social media in 2006, on Myspace, by sexual harassment survivor and activist Tarana Burke in the US.
  • It is aimed at demonstrating how many women have survived sexual assault and harassment, especially in the workplace.

You must know this!

The Vishaka Guidelines were a set of procedural guidelines for use in India in cases of sexual harassment. They were promulgated by the Indian Supreme Court in 1997 and were superseded in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

What did the court say?

  • Women have the right to put their grievances at any platform of their choice and even after decades.
  • The court also rejected the argument that the former union minister was a man of a stellar reputation.

What is the case?

  • The former minister had filed a criminal defamation case against the person in October 2018 since she did not produce any proof.
  • The criminal case was initiated to create a chilling effect against women who spoke out about their experience of sexual harassments.

Legal backing of the acquittal

  • Criminal defamation is defined in Section 499 of the IPC as making or publishing any imputation about a person intending to harm, or knowing it will harm the reputation of a person.
  • Any statement or article criticizing a person or accusing them of any sort of problematic behaviour will obviously lower their reputation.
  • Hence this is always emphasised in legal notices and complaints to courts alleging defamation.
  • However, the law recognizes that a person’s reputation can’t be a shield against their own bad behaviour and that there can be various circumstances when outing this bad behaviour is in the public interest.
  • This is why Section 499 of the IPC also prescribes several exceptions to claims of defamation.

Is it a win for the survivors?

  • It should be noted that this does not necessarily mean that a corresponding criminal case for sexual harassment against the man would be successful.
  • This is because the allegations of harassment would have to be proved against the man beyond all reasonable doubt.
  • Therefore even though the present defence of truth was accepted by Delhi HC, this would not guarantee that the former minister would be convicted, as the standard of proof is different.

Conclusion

  • This judgement will set an example for the reluctant or other ousted women who are willing to revisit the cases of sexual misconduct against them.

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Issues with Harsher Punitive measures for the sexual violence

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Paper 2- Issues with punitive response to sexual violence

Harsher punishment for sexual violence

  • Recently, the Maharashtra cabinet approved the Shakti Bill, enlarging the scope of harsher and mandatory sentences — including the death penalty — for non-homicidal rape.
  • The Shakti Bill comes amid the recent legislative trend to invoke the death penalty for sexual offences.
  • In 2020, the Andhra Pradesh government passed the Disha Bill, pending presidential assent, that provides the death penalty for the rape of adult women.

Issues with the Bills

1) Focus on reporting of police complaint

  • The most severe gaps in the justice delivery system are related to reporting a police complaint.
  • The focus of the criminal justice system needs to shift from sentencing and punishment to the stages of reporting, investigation and victim-support mechanisms.
  • The bill does not address these concerns.

2) Impact on rate of conviction

  • Harsh penalties often have the consequence of reducing the rate of conviction for the offence.
  • A study published in the Indian Law Review based on rape judgments in Delhi shows a lower rate of conviction after the removal of judicial discretion in 2013.
  • Introducing harsher penalties does not remove systemic prejudices from the minds of judges and the police.

3) Harsher punishment would deter complainants

  • Studies on child sexual abuse have shown that in the few cases of convictions, the minimum sentence was the norm and the award of the maximum punishment was an exception.
  • Crime data from the National Crime Records Bureau shows that in 93.6 per cent of these cases, the perpetrators were known to the victims.
  • Introducing capital punishment would deter complainants from registering complaints.
  • The Shakti Bill ignores crucial empirical evidence on these cases.

4) Moving away from standard of affirmative consent

  • An affirmative standard of consent is rooted in unequivocal voluntary agreement by women through words, gestures or any form of verbal or non-verbal communication.
  • In a sharp departure, the bill stipulates that valid consent can be presumed from the “conduct of the parties” and the “circumstances surrounding it”.
  • The vaguely worded explanation in the bill holds dangerous possibilities of expecting survivors to respond only in a certain manner, thus creating the stereotype of an “ideal” victim.
  • It also overlooks the fact that perpetrators are known to the survivors in nearly 94 per cent of rapes, which often do not involve any brutal violence.

Conclusion

Punitive responses to sexual violence need serious rethinking, given the multitude of perverse consequences and their negligible role in addressing the actual needs of rape survivors.

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Give adequate time for investigation

Note4Students

From UPSC perspective, the following things are important :

Prelims level: CrPC provisions

Mains level: Paper 2- Reduction in the time for investigation and issues with it

Andhra Pradesh’s Disha Bill of 2019 seeks to reduce the time period for investigation of some crimes to seven days. Such a move could have several consequences. The article deals with that issue.

State governments reducing the period of investigation

  • The proposed Maharashtra Shakti Act of 2020 will have a provision to complete the investigation within 15 days.
  • Maharashtra has taken cur from the Andhra Pradesh’s Disha Bill of 2019.
  • Disha mandated completion of investigation within seven working days for offenses such as harassment of women, sexual assault on children, and rape, where “adequate conclusive evidence” is available.
  • The interpretation of “adequate conclusive evidence” by the police shall remain a problem.

What are the CrPC provisions?

  • The Criminal Procedure Code (CrPC) provides that investigations relating to offenses punishable with imprisonment up to 10 years must be completed within 60 days.
  • For offenses with higher punishment (including rape) the time limit is of 90 days of detaining the accused, else he or she shall be released on bail.
  • To speed up the process, the CrPC was amended in 2018 and the period of investigation was reduced from 90 to 60 days for all cases of rape.

Factors that decide the time required

  • Generally, the time of investigation depends on several factors like the severity of the crime, the number of accused persons and agencies involved.
  • This is besides the fact that in many cases of rape, the victim remains under trauma for some time and is not able to narrate the incident in detail.
  • The speed and quality of investigation also depend on whether a police station has separate units of investigation and law and order.[ a long-pending police reform]
  • It also depends on the number of available IOs and women police officers, and the size and growth of the FSL and its DNA unit.

Consider the question “Examine the reasons for the high crime rate in India? Recently, some state governments have reduced the duration for the investigation of crime. How such move could impact the investigation?” 

Conclusion

Setting narrow timelines for investigation creates scope for procedural loopholes that may be exploited during the trial. Therefore, instead of fixing unrealistic timelines, the police should be given additional resources so that they can deliver efficiently.

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What is Shakti Act?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Shakti, Disha Act

Mains level: Women safety

In a bid to curb crimes against woman and children in Maharashtra, the state cabinet unveiled the ‘Shakti Act.’ The Act is modelled on the lines of Andhra Pradesh’s Disha Act, which was brought last year after a veterinarian was raped and murdered in Hyderabad.

Why have stringent laws have consistently failed to instill any fear in rapists?

Shakti Act: Key Provisions

  • It proposes stringent punishment including the death penalty and heavy fines for the culprits.
  • Special police teams and separate courts will be set up for investigation and trial of cases against women and children.
  • The perpetrators if found guilty will be punished with imprisonment for life for not less than ten years but may extend to the remainder of natural life or with death in cases which have characteristics of being heinous in nature.
  • A sum of Rs 10 lakh will be given to an acid attack victim for plastic surgery and facial reconstruction and the amount will be collected as fine from the convict.
  • The investigation shall be completed within a period of 15 working days from the date of registration of an offence. This can be extended by 7 days.
  • After a charge sheet is filed trial shall be conducted on a day-to-day basis and completed within a period of 30 working days.
  • Some cases will be tried in-camera for the recording of evidence of victims and witnesses who are vulnerable.

Enforcement, not the law

  • Despite several laws, incidences of rapes continue unabated.
  • In fact, now we hear cases of extreme brutality.
  • The general perception is that since the laws have been made more stringent, so the rapists resort to extreme measures in a bid to destroy the evidence.
  • One thing is very clear, Laws alone cannot provide a solution to this problem.

What should be done?

  • Law provides for speedy investigations and fast track of trials in rape cases.
  • What we need is better policing, making public spaces safer for women, ensuring round the clock surveillance of isolated areas and deployment of police at all strategic points.
  • Prevention and not punishment is the solution and that requires concerted efforts on part of all the stakeholders.
  • It is not harsher punishments that will deter. It is the fear of being caught and not being spared.
  • The message should go out loud and clear that no one is above the dignity and safety of women in our country.

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Right to Marriage is a Fundamental Right

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Art. 21

Mains level: Interfaith marriage and associated issues in India

An individual’s right to marry a person of his or her choice is a fundamental right that cannot be denied on the basis of caste or religion by anybody, re-iterated the Karnataka High Court.

Discuss the various ethical and rights issues involved in interfaith marriages.

Right to Marriage

  • The right to marry is a part of the right to life under Article 21 of the Indian Constitution.
  • The right to marriage is also stated under Human Rights Charter within the meaning of the right to start a family.
  • The right to marry is a universal right and it is available to everyone irrespective of their gender.
  • Various courts across the country have also interpreted the right to marry as an integral part of the right to life under Article 21.
  • A forced marriage is illegal in different personal laws on marriage in India, with the right to marry recognized under the Hindu laws as well as Muslim laws.

Other laws that lay down a person’s right to marry in India are:

  1. The Prohibition of Child Marriage Act, 2006
  2. The Guardians and Wards Act, 1890
  3. The Majority Act, 1875
  4. The Family Courts Act, 1984
  5. The Protection of Women from Domestic Violence Act, 2005

Back2Basics: Scope of Article 21

  • Article 21, considered the heart and soul of the Constitution, states, ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law.

It has a much more profound meaning that signifies the:

  • Right to live with human dignity
  • Right to livelihood
  • Right to health
  • Right to pollution-free air
  • Right to live a quality life
  • Right to go abroad
  • Right to privacy
  • Right against delayed execution,

And anything and everything that fulfils the criteria for a dignified life.

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UP Law against Forceful Inter-Faith Marriage and Conversions

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Art. 21 and 25

Mains level: Freedom of Religion

The UP Cabinet has cleared a draft ordinance against forceful inter-faith conversions for marriage, amid similar steps by other states.

Try this question:

Q. In a world where religiosity is rising, the contemporary liberal ideas seem outdated and incapable of handling dangerous issues of religious bigotry. Critically comment.

What is the proposed UP law on ‘love jihad’?

  • The proposed law defines punishment and fine for three different cases.
  1. Conversion done though “misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means” would face jail term of one to 5 years, and a minimum fine of Rs 15,000.
  2. Conversion of a minor, a woman from the SC or ST would have to face a jail term from three to 10 years, with a minimum fine of Rs 25,000.
  3. If such conversion is found at the mass level, then those guilty would face jail term from three to 10 years, with a minimum fine of Rs 50,000.
  • It proposes among other things that a marriage will be declared “shunya” (null and void) if the “sole intention” of the same is to “change a girl’s religion”.

Who can convert and how can they do it under the proposed law?

  • Under the new proposed law, anyone wanting to convert into another religion would have to give it in writing to the District Magistrate at least two months in advance.
  • The government is supposed to prepare a format for the application and the individual has to fill the application for conversion in that format.
  • However, under the new law, it would be the responsibility of the one going for the religious conversion to prove that it is not taking place forcefully or with any fraudulent means.
  • In case, any violation is found under this provision, then one faces a jail term from 6 months to 3 years and fine of minimum Rs 10,000.

Need for such law

  • The state of UP is witnessing rising incidents of forced religious conversions or conversions through fraudulent ways.
  • The extreme right wing politicians in the state were quiet vocal against alleged religious conversions.
  • There are cases of being allegedly lured and honey-trapped by men and those girls now seeking their help to free themselves.

Interfaith marriages and the Constitution

  • The right to marry a person of one’s choice is a guarantee under Article 21.
  • At the same time, freedom of conscience, the practice and propagation of a religion of one’s choice, including not following any religion, are guaranteed under Article 25.
  • One set of rights cannot invalidate the other.

What do critics say?

  • Such law to regulate matrimonial relationships between two consenting adults is simply against the constitutional guarantees.
  • The right to marry a person of one’s choice flows from the freedom of individuality, naturally available to any individual.
  • Hence, interfaith marriages and religious conversions should not be the matter of concern for social watchdogs.
  • Hence, the mere statement of two consenting adults about the existence of their matrimonial relation is sufficient.

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Interfaith marriages and religious conversions

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Special Marriages Act

Mains level: Interfaith marriage and associated issues in India

Forced religious conversions for interfaith marriages cases are widely seen in news these days. And many states are attempting to ban religious conversion for the sole purpose of marriage.

Try answering this:

Q. The recent withdrawal of a TV commercial advertisement showing an interfaith marriage has led to an astonishing blowback. In light of this, discuss the various ethical and rights issues involved in interfaith marriages.

Context

  • Though the Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths, and preferring a civil wedding.
  • However, some practical problems arise in registering such marriages.
  • The law’s features on prior public notice being given and objections for the safety and privacy of those intending to marry across religions.
  • To overcome this, many settle for marriage under the personal law of one of them, with the other opting for religious conversion (accusingly termed as Love-Jihad).

What are the features of the SMA?

  • Age: The marriage of any two persons may be solemnized under the SMA, subject to the man having completed 21 years of age and the woman 18.
  • Consent: Neither should have a spouse living; both should be capable of giving valid consent, should not suffer from any mental disorder of a kind that renders them unfit for marriage and procreation.
  • Liability: They should not be within the degrees of prohibited relationship — that is, they should not be related in such a way that their religion does not permit such marriages.
  • Registration: Parties to an intended marriage should give notice to the ‘marriage officer’ of the district in which one of them had resided for at least 30 days.
  • Objections: Any person can object to the marriage within 30 days of the publication of the notice on the ground that it contravenes one of the conditions for a valid marriage.
  • Publication: The notice will have to be entered in a ‘Marriage Notice Book’ and a copy of it displayed at a conspicuous place in the office. The Notice Book is open for inspection at all reasonable times without a fee.
  • Inquiry and approval: The marriage officer has to inquire into the objection and give a decision within 30 days. If he refuses permission for the marriage, an appeal can be made to the district court. The court’s decision will be final.
  • Severance from family: Also, the Act says that when a member of a Hindu undivided family, gets married under SMA, it results in his or her “severance” from the family.

Threats after such marriages

  • The provisions relating to notice, publication and objection have rendered it difficult for many people intending to solemnize inter-faith marriages.
  • Publicity in the local registration office may mean that family members objecting to the union may seek to stop it by coercion.
  • In many cases, there may be a threat to the lives of the applicants.
  • There have been reports of right-wing groups opposed to inter-faith marriages for communal propaganda.

Issues with the publication of notices

  • In July, the Kerala Registration department decided to discontinue the practice of uploading marriage notices on its websites following complaints that these were being misused.
  • However, the notices will be displayed on the notice boards of the offices concerned.
  • These provisions have been challenged in the Supreme Court recently on the grounds that they violate the privacy of the couples, their dignity and right to marry.
  • In the case of Hindu and Muslim marriage laws, there is no requirement of prior notice and, therefore, such a requirement in the SMA violates the right to equality of those opting for marriage under it.

States against conversion for the sake of marriage

  • Even though Uttar Pradesh (U.P.) and Karnataka have spoken about a separate enactment, at least two States have legal provisions to the effect.
  • The Himachal Pradesh Freedom of Religion Act, 2019, and the Uttarakhand Freedom of Religion Act, 2018, both prohibit conversion by misrepresentation, force, fraud, undue influence, inducement, allurement and ‘by marriage’.
  • There is a separate section in both laws under which, not conversion for the purpose of marriage, but marriage has done solely for the purpose of conversion, may be declared null and void by a family court based on a suit by either party.
  • The U.P. State Law Commission has recommended a similar Freedom of Religion law in the State and favours a provision under which marriages solemnized solely for the conversion of one of the parties may be nullified by a family court.

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Himachal Pradesh’s law against religious conversion

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not Much

Mains level: Freedom of Religion

Haryana government is considering a law against forced religious conversions and has sought information about such a law already in force in Himachal Pradesh.

Try this question

Q. How forced or misguided religious conversions pose a grave threat to the secular fabric of the Indian Society? Discuss.

The Himachal anti-conversion law

  • The state had already enacted a law in 2007 which prohibited conversion from one religion to another by force or fraud. Last year it introduced a more stringent version of the legislation.
  • There was a rise in conversions by fraudulent means and unless checked well in time.
  • Such practice may erode the confidence and mutual trust between the different ethnic and religious groups in the state.

What does the law say?

  • According to the Act, “no person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use of misrepresentation, force, undue influence, coercion, inducement or by any fraudulent means or by marriage; nor shall any person abet or conspire such conversion”.
  • The Act does not cover a person re-converting to his “parent religion”.
  • It further says that any marriage done for the sole purpose of religion conversion may be declared null and void by a court on a petition by either party.

What happens if anyone wants to convert to any other religion?

  • As per the Act, anyone who wishes to convert to any other religion will give a declaration to the district authorities at least one month in advance, specifying that one is doing so as per his/her “own volition or free consent”.
  • In fact, even the religious priest who performs the conversion ceremony has to inform the authorities at least one month in advance.
  • The district magistrate will then conduct an inquiry regarding the “intention, purpose and cause of proposed conversion”.
  • The conversion will be rendered illegal if the authorities are not informed in advance.

The burden of proof

  • The Act says that the burden of proof as to whether a religious conversion was not effected through force or fraud lies on the person so converted, or the person who has facilitated the conversion.

Penal provisions

  • All offences under the Act are cognizable and non-bailable. The violator can be punished with a prison term ranging from one to five years, along with a fine.
  • In case the victim is a minor, woman or member of a Scheduled Caste or Tribe, the imprisonment may extend upto seven years.
  • Failure to declare the conversion in advance can also result in imprisonment of upto two years.

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[pib] Meri Saheli Initiative

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Meri Saheli Initiative

Mains level: Women safety

Indian Railways has launched “Meri Saheli” initiative for focused action on the security of women across all zones with an objective to provide safety and security to lady passengers.

Such a feedback-based initiative can be replicated in unsafe cities while addressing distress situation.

Meri Saheli Initiative

  • The initiative was started as a pilot project in South Eastern Railway in September 2020 and after getting encouraging response from lady passengers.
  • An initiative of RPF, the strategy entails interaction with lady passengers especially those travelling alone by a team of lady RPF personnel at the originating station.
  • These lady passengers are briefed about all precautions to be taken during the journey and told to dial 182 in case they face or see any problem in the coach.
  • The RPF team collects only the seat numbers of the ladies and conveys them to stoppages en-route.
  • RPF/RPSF escort onboard also covers all the coaches/identified berths during its duty period.

Based on feedbacks

  • RPF teams at the destination collect the feedback from the identified lady passengers.
  • The feedback is then analysed and corrective action, if any, is taken.
  • If some distress call comes from a train covered under “Meri Saheli” initiative, the disposal of the call is monitored at the level of senior officers.

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[op-ed of the day] The many problems of delayed data

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much.

Mains level: Paper 2- Delays in NCRB data release, Increasing crime reporting, role played by the media.

Context

Delay in releasing the crime data by NCRB reduces the utility of the data for the policymakers.

Formidable challenges faced by NCRB

  • The First-Casual approach of the States: The first is the lackadaisical approach of some of the States in providing data.
    • The NCRB merely assembles the figures it receives from the State police forces and does not tinker with them to reach a predetermined conclusion.
    • States’ irregularity: Data collection hits a roadblock when a few States either don’t bother to send the figures or send them much after the volume is published.
  • The second-Utility of the released data: The second problem is that questions are raised over the utility of the data.
    • There was a two-year delay in releasing the crime statistics for 2017.
    • Just two months after it was published, the ‘Crime in India’ (CII) 2018 report was released.
    • Reduced utility from a policy point of view: These numbers are only relevant to researchers, not policymakers as it does not carry us far in understanding what is happening on the ground.
    • A fossilised CII is meaningless.
  • The third- Third problem lies with the police and the public.
    • The Reluctance of the police to register the complaint: The police are notorious the world over for not registering complaints.
    • They do this so that they can present a false picture of a decline in crime.
    • The reluctance of the public: The public is also not very enthusiastic about reporting crimes to the police.
    • Catch-22 situation: Public is fearful of being harassed at the police station or do not believe that the police are capable of solving the crime. This is a Catch-22 situation.

Crimes difficult to bury

  • The positive role played by the media: However, the problem has declined slightly over the years due to public awareness and intense media scrutiny.
    • There are a few classes of offences which are becoming increasingly difficult to bury. This is attributable to the extraordinary interest evinced by the media in reporting crime.
  • The crimes which are difficult to bury: The following cases of crime are becoming difficult to bury.
    • Homicide: The first category of crimes that is difficult to bury is of homicides.
    • Matter of distress: India reports an average of 30,000 murders every year (29,017 were registered in 2018). Every murder is a matter of distress.
    • Nevertheless, the stabilisation of the figure at 30,000 is a mild assurance.
    • The corresponding figure for the period in the U.S. was around 16,200.
    • Need to study the US decline: Though the U.S. has about one-third of India’s population, the reported decline in murders in many major U.S cities is worth studying.
    • Crime against women: The common man in India does not lag behind others in reacting strongly to attacks on hapless women and men.
    • The growth of the visual media possibly explains this welcome feature in Indian society.
    • The hope of a decrease in crime: The nationwide outrage over the gang-rape in Delhi and the subsequent tightening of laws on sexual crimes generated the hope that attacks against women would decrease.

The issue of under-reporting

  • Under-reporting of crime in rural areas: In 2018, there were 33,356 rapes, a higher number than the previous year.
    • But these figures do not fully reflect realities on the ground.
    • There is still the unverifiable suspicion that while in urban areas sexual violence cases are reasonably well-reported, the story is different in rural India.
    • The role played by money and caste: Money power and caste oppression are believed to play a significant role in under-reporting.
    • What is more significant is that a substantial number of such crimes are committed by the ‘friends’ and families of victims.

Conclusion

  • To be fair to the NCRB, we must concede that the organisation has more than justified its existence. The CII is used extensively by researchers.
  • Need for educating the people on realities of crime and its reporting: There is scope for more dynamism on the NCRB’s part, especially in the area of educating the public on the realities of crime and its reporting.
  • Greater pressure on the States to stick to a schedule: The NCRB will also have to be conscious of the expectation that it should bring greater pressure on States to make them stick to schedules and look upon this responsibility as a sacred national duty.

 

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Private: NCRB: Annual Crime in India Report 2018

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not Much

Mains level: State of Crime in India

The National Crime Records Bureau (NCRB) published the annual Crime in India Report 2018.

Crimes against women

  • According to the report, 3,78,277 cases of crime against women were reported in the country, up from 3,59,849 in 2017.
  • Uttar Pradesh topped the list with 59,445 cases, followed by Maharashtra (35,497) and West Bengal (30,394).
  • The conviction rate in rape-related cases stood at 27.2% even though the rate of filing chargesheets was 85.3% in such cases.
  • Cruelty by husband or his relatives (31.9%) followed by assault on women with intent to outrage her modesty (27.6%) constituted the major share of crimes against women.

Suicides report

  • The NCRB also released the Accidental Death and Suicides in India 2018 report, which said that 10,349 people working in the farm sector ended their lives in 2018, accounting for 7.7 % of the total number of suicides in the country.
  • There were 5,763 farmers/cultivators and 4,586 agricultural labourers among those who ended their lives.
  • The total number of people who committed suicide in 2018 was 1,34,516, an increase of 3.6% from 2017 when 1,29,887 cases were reported.
  • The highest number of suicide victims were daily wagers — 26,589, comprising 22.4% of such deaths.
  • The majority of the suicides were reported in Maharashtra (17,972) followed by Tamil Nadu (13,896), West Bengal (13,255), Madhya Pradesh (11,775) and Karnataka (11,561)

More murder cases

  • The incidents registered under the Scheduled Caste and Scheduled Tribes related Acts saw a decline from 6729 incidents reported in 2017 to 4816 in 2018.
  • A total of 29,017 cases of murder were registered in 2018, showing an increase of 1.3% over 2017 (28,653 cases).
  • A total of 76,851 cases of offences against public tranquillity were registered in 2018, out of which rioting, 57,828 cases, accounted for 75.2% of total such cases, the report said.
  • As many as 27,248 cases of cyber crimes were registered in 2018, up from 21796 cases in 2017.

Data on Rioting

  • In 2018, 76,851 cases were registered under the category “Offences against Public Tranquillity”.
  • This was a decline from 2017 which saw 78,051 such cases.
  • Almost 90% of all such offences were associated with rioting while the rest were under “Unlawful Assembly” (popularly known as Section 144).
  • Compare this with riots for other reasons such as communal, students agitation, political and agrarian. According to the NCRB, political riots fell by almost 25% in 2018 over 2017.
  • Communal riots fell by almost 30% in the same period.
  • Caste conflicts too declined by almost 20%. Student conflicts marginally fell by about 10%, while agrarian riots recorded a decline of over 35%.
  • Cases of rioting during “andolan/morcha” too have registered a decline of 25%.
  • While cases of communal riots are down, cases of attempts at inciting passions and stoking hatred have risen.
  • The data show offences promoting enmity different groups have been constantly rising and have in fact more than doubled over 2016.

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