Bi-Monthly Legal News[Vol. No. 10(I) January-February, 2017]

 Resources

• Musawah publishes ‘Musawah Vision for the Family,’ and resources on Islam, Women, Family Laws and Reform

  The series titled “Musawah Vision for the Family” outlines a model of family relations that uphold equality and justice for family members in the Muslim family. The document questions notions of male authority and guardianship over women, and advocates for values and principles based on love and compassion and consultation. It can be accessed here. The General Resources on Islam, Women, Family Laws and Reform can be accessed here. Musawah has also released its second knowledge building brief which can be accessed here.

• Engaging Men in Sexual & Reproductive Health & Rights by UNFPA

  The publication, issued by UNFPA and “Engender Health”, seeks to provide guidance for those developing a project/programme to engage men in sexual health and reproductive rights. The guide emphazies the utilization of a gender lens and is premised on the notion that gender roles and norms affect sexual and reproductive health. It can be accessed here.

• Human Rights Watch ‘World Report 2017’ warns rights to association and speech under threat

  The latest report by the Human Rights Watch called the World Report 2017 has shown that the rise of populist leaders in the United States and Europe represent a dangerous threat to basic free speech protections all over the world. The report points out that the wave of authoritarian populism threatens the post-war human rights system. It can be accessed here.

• Resource kit on Gender-based violence in global supply chains by Fair Wear Foundation and International Training Centre

  The Fair Wear Foundation along with International Training Centre has published a resource kit on gender-based violence in global supply chains. The toolkit is divided in three parts: (A) Gender-based violence in global production (covering issues faced by women in global supply chains) (B) Practical strategies to prevent and address sexual harassment and violence in the workplace (covering role of various stakeholders and practical workplace initiatives to address sexual harassment) and (C) Learning and Information Resources Repository (covering case studies, information sheets and graphic charts). It can be accessed here.

• No Sexual Harassment – The Fight against Sexual Violence at Work by Mondilaal FNV and India Committee of the Netherlands

  Mondiaal FNV and the India Committee of the Netherlands (ICN) recently published the booklet ‘No Sexual Harassment – The fight against sexual violence at work,’ to dispense information about the problem. It contains interviews with four women, and suggests various strategies to tackle sexual harassment. The booklet can be accessed here.

 International Updates

Beyond Asia

• US reinstates global ‘gag rule’

  The President of the United States in January signed into law an executive order reviving a policy that prohibits US aid to groups which engage with abortion, be it providing, offering counseling, advocating for abortion law reform or providing referrals. Under this rule organizations will be disqualified from receiving US assistance if they use their own funds to provide abortion-related information and services that are legal in their own country. This damaging policy has far-reaching implications and affects women’s choices regarding their reproduction and sexuality rights. Source: http://bit.ly/2kl9zIw

• Finland legalizes same-sex marriages

  Finland in March joined 13 European countries which have marriage-equality laws. Same-sex couples in the country will now be able to marry and adopt children. The move was opposed by far-right groups but the Parliament voted with a large majority to uphold the law.  Source: http://bit.ly/2lSewMF

• US withdraws guidance instructing schools to respect gender-identity of queer students

  The Trump administration in February revoked guidance issued by the previous administration which affirms legislation prohibiting discrimination against transgender students. The earlier guidance had specified that schools receiving federal funding must ensure students can access bathrooms and locker rooms freely. Students in schools without the guidance had expressed how they face verbal, physical and sexual harassment. Source: http://bit.ly/2lIYLaY

• British heterosexual couple loses battle over the right to have a civil partnership instead of ‘patriarchal’ marriage

  A British couple lost their Court of Appeal battle for the right to enter into a civil partnership instead of marriage, which they consider to have patriarchal baggage. As per the Civil Partnership Act of 2004, only same-sex couples are eligible to enter civil partnership in the UK. A government representative said that a decision had not yet been taken whether to extend civil partnerships to opposite-sex couples, abolish them or phase them out. After a couple of public consultations and a debate in Parliament, it was decided to see the effect of extending marriage to same-sex couples had on civil partnerships before making a final decision. He described the judge’s decision as “unimpeachable”. Source: http://ind.pn/2m74Sn8

Asia

• Pakistan approves Hindu Marriage Bill

  A parliamentary panel in Pakistan unanimously approved a Hindu Marriage Bill which included provisions on fixing the minimum marriageable age of girls and boys at 18 years and the introduction of conditions of divorce. The clause providing grounds of divorce is one of the more controversial provisions because upper-caste Hindu men fear increased agency for women and a likelihood of conversions whereas women and lower-caste marginalized groups welcome the law as it resolves a number of problems relating to documentary proof and property transfer.

  Source: http://bit.ly/2qaBwcF, http://bit.ly/2ky82U5, http://bit.ly/2j1Mzkt

• Philippines introduces sexuality education in schools but blocks condom distribution

  In January, the President of the Philippines issued an executive order to implement gender-sensitive sexuality education in schools. However, while health ministers recognize that HIV is prevalent among younger people who indulge in risky clandestine sexual behavior, certain senators felt that distributing condoms among the youth would only encourage sex between them. Accordingly, they chose to block the much-needed public health initiative. Source: http://bit.ly/2posrvM

• Russia relaxes laws on domestic violence in favour of perpetrators

  In February, the Russian Parliament passed law reducing criminal liability for ‘moderate’ domestic violence towards women and children. As per the new law, exceptions have been provided to offences of family violence for incidents that do not include broken bones or require hospitalization, as long as they are not repeated within a year. The penalties are minimal, such as 15 days of administrative arrest or compulsory community service. Source: http://bit.ly/2jUeweH

 UN Updates

• UN Mission to Ukraine releases report on sexual violence

  The United Nations Human Rights Mission to Ukraine released its report on the impunity in widespread sexual violence in Ukraine, committed in the context of armed conflict. The report documents cases of conflict-related sexual violence committed against both men and women who were detained by either Government forces or armed groups. The report states that sexual violence is severely under-reported, and medical and state institutions lack the knowledge and skills to provide assistance to survivors of sexual abuse.

• Public Consultation launched by new UN Expert on LGBTI rights

  The first Independent Expert on elimination of discrimination based on sexual orientation and gender identity held a public consultation on January 25 in Geneva. The expert’s mandate and basic activities were discussed at the consultation. The consultation was boycotted by the 57 member Organisation of Islamic Cooperation and the 54 member African Group.

  Sources: bit.ly/2jdHaIf, http://bit.ly/2p4vlCd

• Sexual violence against own armed force qualifies as a war crime, holds ICC

  Trial Chamber VI of the International Criminal Court (ICC), in the case of The Prosecutor v. Bosco Ntaganda, found that it has jurisdiction over counts 6 and 9 (alleged war crimes of rape and sexual slavery of child soldiers). Rejecting the Defence argument that war crimes do not include crimes committed by members of an armed force against members of the same armed force, the ICC Trial Chamber VI found that limiting the scope of protection is contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict.  The Chamber concluded that “there is never a justification to engage in sexual violence against any person.”

• OHCHR team interviews Rohingya victims of violence, highlights atrocities

  In a Flash Report issued by a four member team who visited Bangladesh to interview Rohingya people who had entered the country in the aftermath of the 9^th October 2016 attacks, interviews with 204 people reveal killings, rape and all manner of violence committed by Myanmarese security forces in an area isolated from the world in the northern Rakhine State. The stories that emerged included slaughter of babies, gang-rape and exclusion and segregation. The report details other crimes against humanity including enforced disappearances, suspension of medical services, murder and extended detention.

• Special Rapporteur in the field of cultural rights submits second report, calls for contributions for a study on fundamentalism and cultural rights

  In her second report to the Human Rights Council, the Special Rapporteur in the field of cultural rights considers how the rise of fundamentalism and extremism threatens the enjoyment of human rights worldwide. She argues that cultural rights can play a key role in combating fundamentalism and extremism and argued against State austerity measures that often affect only education and culture. Special note was made of the systematic international efforts to thwart the rights of women and queer persons – be it through organized religions or ultranationalists.

  She has indicated her intention to study this issue further for her upcoming report to the General Assembly, and aims to focus on the cultural rights of women. All stakeholders have been invited to submit their contributions.

• OHCHR and UNMISS jointly release report on human rights violations in South Sudan

  The report by the UN Mission in South Sudan and OHCHR found that throughout the fighting that occurred in July 2016 between the Sudan People’s Liberation Army (SPLA) and the Sudan People’s Liberation Movement/Army in Opposition (SPLM/A-IO), both sides ignored international human rights and humanitarian law. The report lays special emphasis on the violation of women’s and children’s rights. According to the report, SPLA and SPLM/A-IO continue to target women and children, and in particular, Nuers with tribal markings on their foreheads. The report emphasises the need for accountability and justice for those human rights violations, and urges that the Hybrid Court for South Sudan be operationalised by the African Union.

• Special Rapporteur on extreme poverty and human rights submits report to the UNHRC

  In a report submitted to the UNHRC by the Special Rapporteur on extreme poverty and human rights, socio-economic rights received strong support. The historical negligence of socio-economic rights was linked to the failure of sustainable development in a heavily capitalized world economic structure. The Special Rapporteur called for the legal recognition of these rights at the domestic level, the creation of institutions, and the creation of structures of accountability. Re-orienting legal and institutional focus towards socio-economic rights has implications for women and other groups that have been marginalized by the existing situation.

• UN Special Rapporteur on the rights to freedom of peaceful assembly releases annual report on the status of these rights in 2016

  The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has submitted a report to the UNHRC on the status of assembly and association rights in the year 2016. The report started with a note of caution from the Special Rapporteur about the global struggle that has been witnessed through the increased clamping down on civic freedoms and a push for assembly and association rights to promote these values.

  In discussing India’s restrictions on foreign funding, the report states that the FCRA legislation does not comply with international law in the aspect that its restrictions on funding are not minimal and necessary. The Special Rapporteur in fact submitted a legal analysis to the government of India arguing for better compliance with international law.

 National Updates

National Judgments/ Orders

High Courts and Tribunals

• Divorce granted by Islamic Clerics holds no legal validity, holds Madras HC

  The Madras High Court ruled that the certificates issues by Kazis (Islamic Clerics) are not valid for purposes of the courts and legal proceedings. These certificates are only an opinion and have no legal sanctity as per Section 4 of the Kazis Act, 1880 which does not confer the Office of Kazi any judicial or administrative power. The write petition was supported by the Women Lawyers Association who has prayed before the court to restrain the Kazis from issuing Talaq (divorce) certificates as they are causing immense confusion in matrimonial proceedings. Source: http://bit.ly/2jrtu9p

• Gujarat HC grants girl’s custody to female friend given their desire to stay together

  In a case where two girls approached the Gujarat High Court through a Habeas Corpus petition expressing their desire to live with each other, the judges granted one of the girls’ custody rights over her friend. The Muslim girl from Ahmedabad alleged being sexual harassed and intimidated by her family, after which she had moved into the shelter home where she met the other petitioner who was Hindu. The shelter home staff had objected to the latter girl bringing her gifts, so the two filed a habeas corpus petition with the Gujarat High Court to get the Ahmedabad girl released. Laudably, the judges placed priority on the fact that the girls were adults of sound mind and thus free to decide on their own.

  Citation: Charmiben Gajanandbhai Vyas vs State of Gujrat, Special Criminal Application (Habeas Corpus) no. 9851 of 2016

• Kerala HC rules prohibition of women from working in liquor shops unconstitutional

  Responding to a petition challenging the constitutional validity of provisions of the Kerala Abkari Shops Disposal Rules, 2002 which prohibit women from being employed in liquor shops, the Court ruled that such rules were violative of Article 14 and 15 of the Constitution. The petitioners had claimed that they had participated in the selection process and had been ranked as well, after which they were dis-entitled merely on the ground of gender.

  Citation: Sanuja. B v. Kerala State Beverages Corporation Ltd., 2016 SCC OnLine Ker 28105

• Retraction of the woman’s complaint insufficient ground for quashing rape allegations, holds Delhi HC

  In a case where a woman prosecutrix had consistently alleged sexual assault by an employer in her statement to the police and the magistrate, the Delhi High Court chose to ascertain whether her statement was subsequently withdrawn under threat or pressure. The Court said that it would be unsafe to quash FIR proceedings on the basis of a retraction and that it would have to be ascertained during trial as to how and in what circumstances the statement was retracted.

  Citation: Dilip Kumar Gupta v. State (NCT of Delhi), 2017 SCC OnLine Del 6576

• ‘Desertion’ cannot itself be a valid ground of divorce, ‘constructive desertion’ a better indicator, holds Delhi HC

  In a case where the legality of a divorce decree was being scrutinized, the judges noted that desertion by itself was not enough reason to grant divorce because many times one spouse is forced to leave by the conduct of the other. The Delhi High Court set aside the decree of a lower court which had granted divorce on a misreading of the evidence submitted by the husband claiming that the wife had left the matrimonial home without his consent and had refused to return upon multiple requests.

  The Court further acknowledged that the wife never wished to bring the matrimonial ties to an end but was in fact forced by the conduct of the husband to leave the matrimonial home. Therefore, it was the husband who was responsible for constructive desertion. The court went on to observe that desertion was not a withdrawal from a place but rather from a state of things and was a repudiation of all obligations of marriage and so could not be tested by merely ascertaining which party left the matrimonial home first.

  Citation: Nisha Rani v. Sohan Singh Nehra, 2017 SCC OnLine Del 6404

• Punjab and Haryana HC decrees that a husband cannot deny maintenance to wife on the basis that she earns more

  In a case where a husband petitioned the High Court to reduce the maintenance he was required to pay his wife by a lower court, the grounds were that the wife was already earning more than him. The High Court however found that the wife was entitled to enjoy the same amenities of life as she would have been had she been staying in the matrimonial home, and took into consideration the inflating prices of daily needs and also the costs of educating children. Mention was also made of the challenges of societal pressure that she would be facing.

  Citation: Amit Kumar v. Navjot Dubey, 2016 SCC OnLine P&H 12523

Supreme Court

• Abortion in the 24th week of pregnancy permitted

  In a case where the petitioner apprehended danger to her life after recognizing that her fetus was diagnosed with ‘anencephaly’, which leaves foetal skull bones unformed, the Supreme Court relied on the report of a medical board to warrant the conclusion that continuing the pregnancy posed a risk to the life of the pregnant woman. Although the pregnancy was into its 24^th week, the bench decreed that the woman was allowed to terminate her pregnancy in light of these circumstances. The decision is significant as it places value on the autonomy of women to make decisions about their reproductive health, instead of the moral argument of preserving life regardless of consequences.

  Case citation: Meera Santosh Pal v. Union of India, 2017 SCC OnLine SC 39

• Regulation of advertisement relating to sex-selection directed

  In ongoing hearings before the Supreme Court pursuant to the discussion on sex-selection, the Union government had submitted that despite auto-blocking a list of words, one could still avail of information pertaining to gender-tests on the internet. The respondent companies suggested that such searches ought to be protected under the right to freely access information. However, the Supreme Court perceived the issue as a choice between enjoying the right to freely access information and being a catalyst in depleting the sex-ratio in the country. Pending further deliberations, the Court passed interim orders requiring the constitution of a nodal agency to take cognizance of any reports of anything in the nature of advertisement of or having any impact on identification of gender.

  Citation: Sabu Mathey George vs Union Of India (2017 ) 2 SCC 514

• Governments directed to enforce provisions of SC/ST Act strictly

  Responding to a petition by voluntary organizations lamenting the non-implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Supreme Court took cognizance of the fact that no special officers, nodal officers or protection cells had as yet been set up for the protection of members of the SC and ST communities. The Court found that the State governments are responsible for ensuring that the provisions of the Act are carried out. The order also required that the special benefits of the Legal Services Authority Act, 1987 be extended to persons from the SC and ST communities.

  Citation: National Campaign on Dalit Human Rights v. Union of India, (2017) 2 SCC 432

• Constitution of all-India birth database to check female foeticide ordered

  A Supreme Court bench has passed 16 directions to ensure effective implementation of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act and rules under it. All states and the Union Territories in the country have been asked to maintain a centralized database of civil registration records so that information can be made available on the number of boys and girls being born in the country. It has also directed them to implement incentive schemes for the girl child. Source: http://bit.ly/2pBU9Gt

• Notice issued to social media sites on inaction over availability of rape videos

  The Supreme Court has asked search engine and social media websites like Google and Facebook to explain why their platforms have been hosting illegal activities like rape videos. A notice has been issued to service providers to not allow subscribers to circulate objectionable material on their websites. The reported cases of cyber crimes have surged by nearly 300 per cent between 2011 and 2014 in the country and the court has favored setting up of an exclusive cyber cell to probe such cases. Source: http://bit.ly/2qhj0vy

• Government asked to review its position on conjugal relations involving a minor

  The Supreme Court has asked the central government to examine the need to amend a provision in the Indian Penal Code (IPC) that provides immunity to a man from being prosecuted for having sexual intercourse with his minor wife. This exception to Section 375 in the IPC grants immunity to a man for having sexual intercourse with his wife who is at least 15 years old. However, the Protection of Children of Sexual Offences (POCSO) prohibits such sexual relations. The petition filed by a child rights NGO has now been sent to the Women and Child Development Ministry.  Source: http://bit.ly/2p6tC2o

National News

• Lok Sabha clears amendments to Maternity Benefits Act, 1961

  The Bill increases maternity leave to six months, and requires private sector to have a crèche at the workplace if they employ more than 50 women employees. Promoting the ‘two child norm’, the Bill reduces leave in the case of a third child to 12 weeks. These benefits are available only to women in the organized formal sector, leaving out the informal and unorganized sectors where the largest number of India’s women workforce exists. Source: http://bit.ly/2pkVsXh

• MWCD requires Aadhar cards for all street children

  The Ministry of Women and Child Development released a Standard Operating Procedure which takes swift steps towards linking street children with Aadhar cards. Postmen would be incentivised for identifying and registering street children with Aadhar card, while a certified insurance agent will link them with health insurance.

  Portraying this as a positive move for the financial inclusion of children with no proof of identity, the Ministry claimed that Aadhar would help get them access to loans, insurance schemes and other benefits. However, critics have indicated that this would only heighten the process of profiling and breach of privacy. Source: http://bit.ly/2pC5S7L

• Rape survivors to be compensated for travel for criminal trial

  Responding to a request by a US-based citizen who was raped in December, the Delhi State Legal Services Authority (DSLSA) has decided to provide air fare to victims to facilitate their timely appearance in court. Other reasonable expenses like lodging would also be reimbursed, against the Victim Compensation Fund or the Legal Aid Fund. Source: http://bit.ly/2qaEAFp

• WCD working on a mechanism to ‘lock’ child pornography websites

  Women and child development ministry is working on a mechanism to lock websites containing child pornography and is also developing standard operating procedures (SOPs) to curb abusive material online. As part of its efforts to check circulation of child pornographic content online, the ministry also plans to look into the role of social media websites like Facebook, Twitter and YouTube and that of mobile service providers. Source: http://bit.ly/2p6Pvi5

• Health Ministry releases gender-sensitive resource material for adolescents

  The Ministry of Health has made attempts to reach out to adolescents across the country, especially those in rural areas, on health issues through the engagement of 1.65 lakh peer educators called “Saathiya” under the Rashtriya Kishor Swasthya Karyakram. In this resource material, prepared by the Ministry in collaboration with United Nations Population Fund for these adolescent peer educators, the topics of same-sex attraction, contraception and gender-based violence are addressed with sensitivity and wisdom. Source: http://bit.ly/2kTkWqX

• Expert panel recommends portability of welfare benefits for migrant workers

  A working-group panel on migration has recommended, through a report to the Ministry of Housing and Urban Poverty Alleviation, that food security and other benefits ought to be made portable for migrant workers, since they often lose access due to inter-state and intra-state migration. The expert panel’s suggestions pertain to benefits conferred under the affirmative action lists for Dalits and Adivasis, and suggest a special focus on healthcare, education and housing policies as well as the removal of domicile requirements for jobs. Source: http://bit.ly/2qhwOpZ

• Acid attack survivors to be included under the Persons with Disabilities Bill

  Acid attack survivors have been added to the Persons with Disabilities Bill (PWD) along with persons afflicted with Parkinson’s disease, increasing the list of infirmities listed in the bill from 19 to 21. The amended bill entitles every child between 6 and 18 years with “benchmark disability” the “right to free education”. It has also increased reservation in higher educational institutions and government jobs from 3% to 4%. The bill has proposed a fund to provide financial support to the disabled. Source: http://bit.ly/2fRCEIF

• Union Budget increases allocations for women’s development and healthcare

  The Union Budget has allocated a tremendous increment for Delhi Police’s share of the Nirbhaya Fund, from 3.4 crore rupees in 2016-17 to 28.9 crore rupees in the 2017-18 period. The allocation was welcomed by the Delhi Police, who had written to the Home Ministry about requirements like CCTVs, police infrastructure and women empowerment activities.

  The Delhi Commission for Women has received an increment from 7 crore rupees to 20 crore rupees. At the Central level, the Ministry for Women and Child development has received a 20% increase in budget allocation and The Indira Gandhi Matritva Sahyog Yojana scheme also saw an increase from 634 crore rupees to 2700 crore rupees. The Beti Bachao Beti Padhao program has also been given an overall budget of 200 crore rupees this year.

  The National Health Mission which covers most primary healthcare centres also got a hike of 3000 crore rupees.

  Sources: http://bit.ly/2oz7KhM , http://bit.ly/2qhA1pr , http://bit.ly/2kuWsYv

• Central and Delhi government increase compensation for acid-attack victims

  The Delhi state government has undertaken before the Delhi High Court to increase the compensation provided to acid attacks victims from Rs. 3 lakh to Rs. 7 lakh. This submission came as part of court proceedings on a plea by acid-attack survivors to increase the cap on compensation. Furthermore, in a bid to provide immediate relief to victims, additional assistance of Rs. 1 lakh under the Prime Minister National Relief Fund (PMNRF) has been approved. Source: http://bit.ly/2ozrphp and http://bit.ly/2qhzljU

• Expert Panel suggests pension for widows from 18 years instead of the current 40

  An expert panel headed by former finance secretary Sumit Bose recommends that widows be elligible for a one-time grant for remarriage and waivers for education fees and skill development. The group suggests that widows should receive pension from age 18 instead of the current 40. The proposal has welfarist implications as it calls for the universal coverage of pension schemes and also the annual revision of the amount based on a calculation of Consumer Price Index. The group also notes that extending widow pensions to the 18-39 year age group would also assist those women with young children. Source: http://bit.ly/2poFNIJ

• NHRC finds at least 16 women prima facie victims of rape by security forces in Chhattisgarh

  The National Human Rights Commission made an observation in January that 16 women were prima facie victims of rape, sexual and physical assault by State police personnel. The alleged atrocities were brought to light by a fact-finding team of a group called the Women Against Sexual Violence and State Repression (WSS). The NHRC passed interim directions asking Chhattisgarh government to show cause why it should not recommend monetary relief of 37 lakh rupees for the victims and also directed the relevant authorities to record the statements of the remaining victims who had yet to depose. Following the findings, journalists struggled to get news from the very dangerous Bijapur area, while the group WSS alleged that women were under pressure to remain silent and asked the government to ensure the security of the victims and villagers.