Bi-Monthly Legal News [Vol. No. 10(III) May-June, 2017]

 UN Updates

 International Updates

Asia

Beyond Asia

 National Updates

National Judgments/ Orders

Supreme Court

  • Set up care centre for children who face sexual abuse: SC

    A Supreme Court bench has said that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2000 is not exhaustive. Although a child victim of sexual abuse under Protection of Children from Sexual Offences Act, 2012is a child in need of care and protection, the court cautioned against consigning every such child to the care of child care institution. Instead, it recommended that alternatives such as adoption and foster care also be considered by the concerned authorities.

    Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India, 2017 SCC OnLine SC 534 [Supreme Court of India].

    Source: http://bit.ly/2pNdce7

  • Inconsistencies in award of death penalty re-opens debate on capital sentence: convictions in Jyoti Singh and Bilkees Bano cases

    In an appeal against the death penalty by the four convicts in Jyoti Singh’s gang rape, the Supreme Court has upheld the death penalty. The homicidal gang rape of a 23-year old girl in Delhi led to momentus public outrage, propelling the enactment of longstanding reforms in criminal laws relating to sexual assault in March 2013. Unfortunately, the demand for harsh punishments and death penalty has persisted in public and judicial discourse despite evidence showing that certainty of prosecution rather than harsh punishments is the best form of deterrence. The Trial Court in awarding capital punishment to the accused justified it on grounds that the brutal gang rape was an affront to the “collective conscience” of the country. The Delhi High Court and now the Supreme Court have upheld the death sentences.

    The case of Bilkees bano gang rape (where several murders were also committed) brings out the inconsistencies in award of dealth penalty. The gang rape occurred as part of the rioting in 2002 in Gujarat, when Bilkis was five months pregnant. A truck in which she and her family members were travelling was attacked by an armed mob. That killed fourteen family members including her daughter and mother, gang raped her, and left her for dead.

    The case was successfully prosecuted only on National Human Rights Commission’s petitioning the Supreme Court that directed the CBI to probe the matter, shifting the case to Maharashtra in 2004 to ensure an unbiased trial. This case is significant, being not only being only ever conviction for gang rape in communal riots, but also one where state officers were convicted for tampering with evidence. Bombay HC has upheld the conviction of eleven accused in the Bilkis Bano gang rape case, and has overturned the acquittal of seven others – five policemen and two doctors, who have been convicted of tampering with evidence and not performing their duties. .

    While it is laudable that the Bombay HC rejected death penalty upon the accused persons, this case brings out inconsistencies in the legal rationale for ‘rarest of rare’ case on which dealth penalty is justified.

    Mukesh and Ors v State of NCT of Delhi 2017(5)SCALE506 [Supreme Court of India]

    Jaswantbhai Chaturbhai Nai and Ors. v. State of Gujarat and Ors. MANU/MH/0889/2017 [High Court of Bombay]

    Source: http://bit.ly/2pMQJxH; http://bit.ly/2ty8p3G; http://bit.ly/2tYVyIZ

High Courts and Tribunals

  • Hindu law does not confer any property rights upon “illegitimate” children, holds Bombay High Court

    The Bombay high court has ruled that an “illegitimate” child must provide evidence of marriage between her biological parents to claim protection conferred by Sec. 16 of the Hindu Marriage Act. In this case, the petitioners, children from the second ‘marriage’ of the deceased, sought a share in his property. However, the first wife of the deceased contested their claim on the grounds that Sec. 16 of the Hindu Marriage Act, which confers legitimacy upon children born in void or voidable marriages, can be invoked only if evidence of solemnisation of marriage is produced.

    While the court accepted this argument, it considered the fact of prolonged cohabitation between the biological parents of the petitioners, and the fact that the petitioner’s birth certificates bore the name of the deceased as sufficient evidence of his ‘marriage’ with their mother. The decision of the court is significant, in that it broadens the scope of section 16 by relaxing its evidentiary requirements, thus bringing within its fold intimate relationships in the nature of marriage.

    Indubai Jaydeo Pawar v. Draupada @ Draupada JaydeoReview Petition No. 19 of 2016 in First Appeal No. 577 of 2015 [High Court of Bombay]

  • Kerala HC separates inter-religious married couple, rejects choice of woman to marry

    The High Court of Kerala handed over the ‘custody’ of an adult woman of sound mind to her father, and nullified her marriage to a Muslim man. The father of the 24 year old woman had filed a writ petition to seek her custody, after she left her parent’s home and converted to Islam. The marriage was solemnised during the pendency of the case. Constantly referring to the woman as ‘detenue,’ and treating the woman’s choice of marrying a Muslim man as unfavourable, the court granted her custody to her father, nullified her marriage, ordered an enquiry into the background of her husband, and ordered the an investigation into the activities of an organisation that had allegedly forcibly converted the woman in question to Islam.

    This judgment has rightly been criticised for dismissing an adult woman’s agency through statements such as, “a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways”, and in implicitly accepting the communal theory of ‘love jihad.’ This decision has been challenged by the husband of the woman in a special leave petition before the Supreme Court.

    Asokan K.M. v. The Superintendent Of Police [WP(Crl.).No. 297 of 2016]

  • Benefits under the Maternity Benefits Act must be extended to contractual workers, holds MP HC

    The Madhya Pradesh High court has ruled that maternity leave should be granted to contractual employees at par with regular employees. In this case, the state was denying maternity leave relying on the contract of appointment which stated that maternity leave can be granted to contractual workers only upon the completion on one year of service. The judge noted that as per Section 27 of the Maternity Benefits Act, irrespective of the nature and tenure of employment, the employer is legally bound to provide all benefits and facilities which are required by a woman for childbirth.

    Smt. Archana Pandey v. State of Madhya Pradesh, Writ Petition No. 15523 of 2016, [High Court of Madhya Pradesh at Jabalpur]

  • Additional Sessions Judge has jurisdiction to award compensation under POCSO, holds Chhattisgarh High Court

    The Chhattisgarh High Court has noted that an Additional Sessions Judge trying cases under the Protection of Children against Sexual Offences (POCSO) Act, 2012 would have the same power as a Special Judge to award compensation to a child victim of sexual offences. The Court placed reliance on Section 33(8) of the POCSO which confers power on the Special Judge to direct payment of compensation to the victim for rehabilitation or the mental trauma caused.

    State of Chattisgarh v. Dilip Verma and Anr., Cr.M.P.No.528 of 2017 [High Court of Chhattisgarh]

  • Victims of sexual harassment must be provided case information within 48 hours, holds CIC

    The Central Information Commission has ruled that information on sexual harassment cases should be provided to the victims within 48 hours under the Right to Information (RTI) Act, as it pertains to their “life and liberty” under Section 7 (1) of the Act. The Appeal under consideration by the CIC was filed by a woman who had complained of an instance of sexual harassment at workplace and had filed an RTI application to know the status of the same, was denied information on the grounds that the case was still under investigation. The Commission opined that the complainant was deprived of her right to information, as guaranteed to her under two Acts i.e., Right to Information Act, as well as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

    Dr. Kirti N. Borkar v. PIO, ESIC, New Delhi CIC/BS/C/2014/000265 [Central Information Commission]

  • Occurrence of harassment immediately before death not necessary to prove offence of murder for dowry, rules Delhi HC

    Delhi High court refused to set aside the conviction of a man in a case of dowry death merely on the ground that no harassment had occurred immediately before the incident. Justice Gupta noted that the essential ingredients for prosecution under Section 304B are: (i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred seven years of her marriage; (iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband; (iv) such cruelty or harassment must be for, or in connection with, demand for dowry.

    The court notes that the accused had demanded gifts from the deceased’s brother two days before the incident as dowry. This demand was sufficient to satisfy the third ingredient of the offence, and harassment “soon before” was not anonymous with “immediately” before the death of the victim. The Court therefore upheld the sentence of seven years of rigorous imprisonment imposed upon the husband of the deceased.

    Ashok v. State of NCT of Delhi CRL.A. 433/2013 [High Court of Delhi]

National News

  • India presents third UPR at Human Rights Council

    India presented its third Universal Periodic Review (UPR) at the UN Human Rights Council in Geneva on 4th May, 2017. The Government of India received recommendations on a number of gender and sexuality issues, including sexual violence, LGBT rights, girls’ education, child marriage, forced sterilisation, domestic violence and marital rape. In its reply, the government of India cited facts and figures as well as legal and policy level steps taken to improve the situation of these various issues. The government of India has opted to report in September, 2017 on the recommendations that it finally decides to accept.

  • Sikkim High Court to consider the unconstitutionality of the Sikkim Succession Act, 2008

    Several Sikkimese women have filed a petition in High Court challenging the Sikkim Succession Act, 2008 for being discriminatory. Although the Sikkim Succession Act, 2008grants daughters and wives equal rights to hold and inherit property, it denies these rights to women married to non-Sikkimese men, or those who have acquired foreign citizenship. Immovable assets of Sikkimese women married to non-locals cannot be transferred to their legal heirs. Rooted in the system of patrilocal marriages, the same rule is not applicable to Sikkimese men who marry non-Sikkimese women.

    The High Court of Sikkim has issued notice to the state government in this case.

    Source: http://bit.ly/2tYNWWL

  • MWCD’s reader on safe childhood asks parents to monitor children’s texting

    The Ministry of Women and Child Development (MWCD) has developed advisory guidelines for parents, teachers and the community , on “Raising Happy Children and Providing Safe Childhoods”,. It recommends parental monitoring of children’s conversations on phone as a means of tackling sexual abuse and inappropriate behaviour, advising greater privacy once children reach 16-17 years of age. The reader draws upon global best practice standards and ensures that detention or institutionalization is a measure of last resort, in accordance with the UN Convention on the Rights of the Child.

    Source: http://bit.ly/2u3odfD

  • Ill-conceived affirmative action forces transgender persons to give up employment with Kochi metro

    In a widely advertised move, Kochi Metro’s employment of 23 transgender persons for various jobs including housekeeping, ticket vending, customer relations, etc, exposed identities of many who were not ready to ‘out’ themselves. In the absence of providing housing facilities, the opportunity backfired as most of the transgender employees were unable to find rented accommodation due to stigma and discrimination. The partially visualised affirmative action did not factor in the deep rooted social stigma that would impact housing for the transgender employees causing many to give up their hard won jobs. Their demand from the Kochi Metro is to ensure housing to enable them to avail these jobs.

    Source: http://bit.ly/2tFa9q8; http://bit.ly/2tFfX3e

  • India ratifies key ILO conventions to end child labour

    India has ratified two key conventions on child labour at the International Labour Conference in Geneva, a step towards complete prohibition of child labour. This has been done months after amendment to the Child Labour Act and includes Convention 138, which sets minimum age for admission to employment and Convention 182, which penalises and prohibits the worst form of child labour. National Sample Survey Office’s survey of 2009-10 puts the number of child workers at 4.98 million. With ratification of these two ILO conventions, India has ratified six out of eight core ILO conventions, with the other four core International Labour Conference conventions relating to abolition of forced labour, equal remuneration and no discrimination between men and women in employment and occupation, thus reaffirming its commitment for promoting and realising fundamental principles and right at work.

    Source: http://bit.ly/2t3UP4x

  • Legal obstacles to slaughter of cattle assume new forms in the wake of cow protection discourse

 Resources

 Obituary

  • Justice Leila Seth (retd.)

    We are deeply saddened by Justice Leila Seth’s demise. She will always be remembered for her contribution to gender justice through her work with the Justice Verma Committee and her writings about legal recognition and non-discrimination to same sex desiring persons. She donated her body to science and has been an exemplar of human rights through her personal and professional contributions.

  • Neelabh Mishra

    Neelabh Mishra, founder and editor-in-chief of National Herald, and former editor of Outlook Hindi passed away last month. Mishra started off his over three decades of journalistic career as a reporter with Navbharat Times and later moved to Rajasthan. Throughout his career, he was associated with human rights movements in different parts of India, especially the movement for right to information spearheaded by the Mazdoor Kisan Shakti Sangathan, and was closely involved in the revival of the People’s Union for Civil Liberties. He was also a part of the process of the World Social Forum for building an alternative global movement from the largest democracy in the world. In 2016, Mishra steered the re-launch of National Herald as a digital news website.

  • Asma Jahangir

    We are deeply saddened by the untimely demise of Asma Jahangir, renowned lawyer and women human rights defender. A founding member of the Asia Pacific Forum on Women, Law and Development (APWLD), co-founder if Human Rights Commission of Pakistan, and co-chair of South Asia Forum for Human Rights, she was recognized both nationally and internationally for her contribution to the cause of human rights, and was the recipient of major human rights awards. She served as the UN Special Rapporteur in the fields of summary executions, and freedom of religion or belief. She leaves behind an invaluable legacy of initiating and building people to people solidarity in South Asia, as part of a peoples initiative towards forging peace, especially between India and Pakistan. At the time of her passing, she held the position of UN Special Rapporteur on the situation of human rights in Iran.

  • Gauri Lankesh

    55-year-old Gauri Lankesh was murdered by gunmen outside her Bengaluru residence on the night of 5th September, 2017. She was the editor of Gauri Lankesh Patrike, a Kannada weekly and was a fierce critic of hard line Hindu groups in Karnataka. She was widely regarded as an independent and outspoken journalist and activist.

    She came up against the establishment in multiple ways, as she sought to bring Naxalites to the mainstream, take up the cause of Dalits and farmers, raise consciousness on the creeping influence of Hindutva groups and give moral support to progressive campaigns. As an uncompromising journalist who was never afraid to speak the truth, her death seems to have only amplified her voice around the world – but also signals a well-orchestrated backlash that seeks to silence voices like Dhabolkar, Pasare, Kalburgi and now Lankesh.

  • Vijay Nagaraj

    Vijay Nagaraj, human rights activist, grassroots worker and researcher, and friend to a large number of people, died in a car accident on August 25, 2017, in Sri Lanka ​at a young age of 44.

    With his passion for work, wider political understanding, meticulousness in research and irreverence to structures of power, he was ahead of many in his generation. He began his work on the right to information campaign with the Mazdoor Kisan Shakti Sangathan in Rajasthan, moving on to become the India Director of Amnesty International, followed by Deputy Director at TISS, Mumbai, and as a researcher on human rights based earlier in Geneva and then in Colombo. In his public life of 2 decades, his work spanned many geographic spaces, thematic concerns, engaging withplayfulnessand ​compassionthat won him many hearts.

  • Preet Rustagi

    The sudden and untimely demise of Preet Rustagi, professor at the Institute for Human Development (IHD), on 21 August 2017 in New Delhi came as a shock to many after a brief illness leading to a multiple organ failure. She was to shortly join the International Centre for Research on Women (ICRW), in New Delhi.

    Preet distinguished herself in her scholarship, with significant contributions in economics, women’s studies, employment and labour. Preet served for some time as the joint director of IHD, also served at the Indian Society of Labour Economics (ISLE), in various capacities. She is missed not only for her work but also for her warmth, gentleness and smile that endeared her to academic and activist networks she was associated with.

  • Justice Leila Seth (retd.)

    We are deeply saddened by Justice Leila Seth’s demise. She will always be remembered for her contribution to gender justice through her work with the Justice Verma Committee and her writings about legal recognition and non-discrimination to same sex desiring persons. She donated her body to science and has been an exemplar of human rights through her personal and professional contributions.