Bi-Monthly Legal News [Vol. No. 10(IV) July-August, 2017]

 UN Updates

  • CEDAW makes general recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19

    The CEDAW committee has, through general recommendation no. 35, reiterated general recommendation no. 19 on gender-based violence against women, and provided further guidance to State parties in accelerating the elimination of gender based violence against women. Through this recommendation, the Committee has urged state parties to strengthen the implementation of their obligations in relation to gender based violence, ratify the Optional Protocol to the Convention and examine all remaining reservations to the Convention with a view to their withdrawal. The Committee has also recommended that State parties take measures in the areas of law reform, prevention, protection, prosecution, reparations, punishment and redress; data collection and monitoring and international cooperation to accelerate elimination of gender-based violence against women.

  • Human Rights Council (UNHRC) adopts resolution on child, early and forced marriage

    The Human Rights Council has adopted a resolution to prevent through prohibitory legislation, respond to, and eliminate child, early and forced marriage, including in humanitarian settings. The resolution underscores the need to support already married girls, adolescents and women through education, and catch-up education for those who may have dropped out of school, as well as through the establishment of shelters, among other measures. The resolution also emphasises the importance of universal access to sexual and reproductive health-care services, information, and education in preventing and responding to child, early and forced marriage.

  • United Nations appoints first UN advocate for the rights of victims of sexual exploitation and abuse

    Jane Connors, an Australian law professional and a long-time human rights advocate, has been appointed as the first United Nations advocate for the rights of victims of sexual exploitation and abuse.As Victims’ Rights Advocate, she will support an integrated strategic response to victim assistance in coordination with relevant UN system actors.She will work with government institutions, civil society, and national and legal human rights organizations to build networks of support to help ensure that the full effect of local laws, including remedies for victims, are brought to bear.

  • UNHCHR releases report on best practices to promote women’s equal nationality rights in law and practice

    The United Nations High Commissioner for Human Rights has published a summary workshop report to showcase good practices for the promotion of women’s equal nationality rights in law and in practice, which serves as a proposal to the 36th session of the Human Rights Council. Based upon the inputs received from participants at the workshop, the report outlines the various manifestations of gender discriminatory nationality laws, and states that reform of nationality laws, and other discriminatory laws, is required to ensure the enjoyment by women of equal nationality rights.

    To this end, the report suggests strategies for governments to ensure successful law reform, such as, aligning nationality laws with other non-discriminatory domestic laws, a multi-sectoral approach led by strong political leadership, stakeholder consultations, and so on. The report emphasises the importance of effective implementation, and outlines the factors that may restrict the same.

  • UNHRC Advisory Committee, UN Migration Agency highlight the gendered nature of adolescent migration

    The Human Rights Council Advisory Committee has submitted its report on the issue of unaccompanied migrant children, and the threats to their human rights, to assist State parties in fulfilling their commitments under the Convention on the Rights of the Child and other related human rights treaties. The report recognises that international migration has a differential impact by gender in most countries, and emphasises the gender considerations that heighten the vulnerability of girls, LGBT children, and adolescents to sexual exploitation and other gender-based violence. The report also highlights the gendered nature of migration itself, such as the high demand for female migrants for domestic work. The International Organisation for Migration, in its recent report, has alsohighlighted that mostsex-trafficking victims who arrive in Europe are underage girls from Nigeria.

    Source: http://reliefweb.int/report/italy/un-migration-agency-issues-report-arrivals-sexually-exploited-migrants-chiefly-nigeria

    http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf

    http://www.italy.iom.int/sites/default/files/news-documents/RAPPORTO_OIM_Vittime_di_tratta_0.pdf

     

  • UNHRC adopts resolution on protection of family & role of family in supporting protection & promotion of human rights of older persons

    The Human Rights Council has adopted a resolution on the protection of the family, and the role of the family in supporting the protection and promotion of human rights of older persons. This resolution has been critiqued for its definition of family, as it reinforces ageist stereotypes by assuming all older people live within families, and thatfamilies everywhere provide critical support to their older members. The resolution also fails to take into account violence within family, and does not address the issue of control and harm, including of a gendered nature, perpetuated within the family.

     

    Source: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/L.21

    http://wunrn.com/2017/08/un-resolution-does-not-provide-diverse-definition-of-family-rights-of-older-persons-beyond-stereotype/

  • Al-Bashir case: ICC Pre-Trial Chamber II decides not to refer South Africa’s non-cooperation to the ASP or the UNSC

    The International Criminal Court has held that South Africa failed to comply with its obligations by not arresting and surrendering Omar Al-Bashirto the Court while he was on South African territory, as his immunities as head of state did not apply in a State that is a signatory to the Rome statute. However, the violation was not referred to the Assembly of States Parties or the Security Council of the United Nations.

    Omar Al Bashir has been accused of five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape), two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging), and three counts of genocide against the Fur, Masalit and Zaghawa ethnic groups in Darfur, Sudan.

    Source: https://www.icc-cpi.int/Pages/item.aspx?name=pr1320

  • UN entities release joint statement on discrimination in healthcare settings

    Several entities of the UN have released a joint statement on ending discrimination in health care settings. The statement calls for review of laws that criminalize or otherwise prohibit gender expression, same sex conduct, adultery and other sexual behaviors between consenting adults; adult consensual sex work; drug use or possession of drugs for personal use; sexual and reproductive health care services, and calls upon all stakeholders to support States in putting in place guarantees against discrimination in law, policies, and regulations; support measures to empower health workers and users of health services through attention to and realization of their rights, roles and responsibilities; support accountability and compliance with the principle of non-discrimination in health care settings; and implement the United Nations Shared Framework for Action on Combating Inequalities and Discrimination.

    Source: http://sxpolitics.org/wp-content/uploads/2017/07/ending-discrimination-healthcare-settings_en.pdf

  • UN Committee on Economic, Social and Cultural Rights issues General Comment No. 24 on human rights and business activities

    The UN Committee on Economic, Social and Cultural Rights has issued a new General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities. Emerging from the belief that business activities, especially those of multi-national corporations, can have a significant and often adverse impact on human rights of local communities, the comment calls for state control over activities of corporations across nationals borders. The Committee expects home States of transnational corporations to establish appropriate remedies, guaranteeing effective access to justice for victims of business-related human rights abuses.

    Sources:http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E/C.12/GC/24&Lang=en

    http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21798&LangID=E

  • First-ever Opinion Tribunal set up on Myanmar

    The Rome based Permanent People’s Tribunal (PTT) has set up its first Opinion Tribunal on Myanmar. The people’s tribunal was set up in response to the requests made by Myanmar’s Rohingya and Kachin victims who have alleged genocide, war crimes and crimes against humanity by the troops of Myanmar government. The Tribunal on Myanmar is coordinated by a steering committee made up of Rohingya, Kachin and Burmese human rights campaigners in cooperation with the PTT Secretariat in Rome.

    Earlier this year, the government of Myanmar had refused to grant visa to members of the fact finding mission set up by Human Rights Council to enquire into similar allegations. The tribunal will be held at the University of Malaya in Malaysia in September.

    Source: https://tribunalonmyanmar.org/about/

 International Developments

Asia

  • South Korea Supreme Court upholds LGBT Rights

    The Supreme Court of South Korea has directed the government to allow an LGBT rights organisation ‘Beyond the Rainbow Foundation’ to legally register itself as a charity, ending the organisation’s three-year struggle against discriminatory rejection by government agencies on the ground that the foundation’s main purpose of promoting LGBTI rights was different from and opposed to the object of permission for incorporation. Each agency of the government involved, including the Seoul Metropolitan Government, the National Human Rights Commission, and the Ministry of Justicemaintained that LGBT rights were not within their purview.

    As denial of permission severely curtailed the ability of the Foundation to receive tax-deductible donations and operate in full compliance with the law, it filed a lawsuit with the Seoul Administrative Court.

    Source:https://www.hrw.org/news/2017/08/04/south-korea-supreme-court-affirms-lgbt-rights

     

  • Maldives set to reintroduce death penalty

    Maldives is set to reintroduce death penalty despite international criticism after a 60 year-moratorium, on the ground that severity of punishment might have an impact on the rising number of murder cases and help the law enforcement agencies in controlling drug trafficking in the country. The UN and international non-governmental organizations have urged the government not to reintroduce the death penalty by hanging, citing concerns over fair trials of some inmates.

     

    Source: https://thewire.in/169942/maldives-reintroduce-death-penalty-despite-criticism/

     

  • Qatar adopts new law on Domestic Workers

    The Emir of Qatar ratified Law No.15 on service workers in the home (“Domestic Workers Law”), thus adopting a law on labour rights for domestic workers for the first time in the country. The law guarantees workers a maximum 10-hour workday, a weekly rest day, three weeks of annual leave, and an end-of-service payment of at least three weeks per year. The lack of an enforcement mechanism in the law, however, is likely to impede the implementation of the law.

     

    Source: https://www.hrw.org/news/2017/08/24/qatar-new-law-gives-domestic-workers-labor-rights

  • Transgender Chinese man wins first-of-its-kind labour discrimination case

    A Guiyang court has ruled that the gender of an employee could not be treated as a ground for terminating their employment. In this case, a transgender man was fired from his job at a health services firm, after several of his colleagues told him that he “looked like a lesbian” and might damage the company’s reputation. The Court held that termination of his services solely on the ground of his gender orientation was in violation of the litigant’s equal employment rights, and directed his former employer to pay damages equivalent to $297 to him.

    Source:https://www.washingtonpost.com/news/worldviews/wp/2017/07/27/transgender-chinese-man-wins-first-of-its-kind-labor-discrimination-case/?utm_term=.8f60f97403a2

  • Nepal criminalises isolation of menstruating women

    Nepal’s Parliament has voted unanimously to criminalise the practice of chhaupadi, which entails banishment of menstruating women, including after childbirth, from their homes. Practicing this custom will now invite a prison sentence of three months, or a fine of NPR 3,000.

    Rooted in the belief that menstruating women are unclean, the custom of chhaupadi affects not only the physical mobility of menstruating women, but also their right to choice in food, thus increasing their susceptibility to various diseases including diarrhoea, pneumonia and respiratory diseases. Banishing new mothers and infants also leads to higher rates of maternal and child deaths.

    Source: http://www.aljazeera.com/news/2017/08/nepal-criminalises-isolation-menstruating-women-170809153456935.html

Beyond Asia

 National Developments

National Judgments/ Orders

Supreme Court

  • Citing rampant misuse of Section 498A, Supreme Court renders it non-cognizable, directs setting up of ‘Family Welfare Committees’

    The Supreme Court has directed that for a period of six months, no arrests will be made in cases registered under Section 498A of the Indian Penal Code unless evidence of tangible physical harm and injury is produced by the complainant wife. 498A is a cognizable and non-bailable offence. Surmising that most such cases are filed in the heat of the moment by women who seek to harass their husbands, the SC has directed the establishment of ‘Family Welfare Committees,’ that will oversee and clear every such case for prosecution by examining the facts of each case. It is pertinent to note that the members of the committee will not be drawn from a pool of legally trained professionals, but will comprise of retired persons, wives of officers, etc, thus severely compromising the ability of such a committee to assess the legal aspects of any complaint.

    The judgment perpetuates the myth that most women jump into matrimonial litigation impulsively, and file false criminal cases against their husbands and in laws to harass them and extort hefty alimony amounts. This decision has also been widely criticised for diluting legislative mandate and the principles of the criminal procedure code.

    Rajesh Sharma v. State of U.P., 2017 SCC OnLine SC 821

    http://blog.scconline.com/post/2017/07/27/rising-misuse-of-section-498-a-ipc-supreme-court-formulates-remedial-measures/

  • Instant triple talaq invalid, declares SC

    In the landmark judgment of Shayara Bano and Ors v Union of India and Ors, the Supreme Court by a 3:2 majority has held that divorce through talaq e-bidat, or instant triple talaq, is invalid in law. The Court upheld the settled view that personal law cannot be tested against the Constitution, and the validity of a particular practice must therefore be drawn from the source of a particular religion, in this case, the Quran. This understanding of personal law thus continues to hold that un-codified personal law is above the Constitution, and cannot be declared unconstitutional/ invalid for violating fundamental rights.

    Yet, this judgment is celebrated as its an outcome of mulitiple petitions by Muslim women’s rights groups, and has had declared yet again, instant triple talaq as unconstitutional.

     

    Judgment: http://supremecourtofindia.nic.in/pdf/LU/Supreme%20Court%20of%20India%20Judgment%20WP(C)%20No.118%20of%202016%20Triple%20Talaq.pdf

    Shayara Bano and Ors v Union of India and Ors[Writ Petition (C) No. 118 of 2016]

  • Right to privacy is a fundamental right, holds SC

    A nine judge constitutional bench of the Supreme Court has unanimously held that the right to privacy is a fundamental right and finds recognition in Articles 14, 19, and 21 of the Constitution. The issue of whether an inalienable right to privacy is recognized in the Constitution was referred to this bench by a smaller bench before which the question of validity of the ‘Aadhar card scheme’ is pending.

    While the main issue has been decided unanimously by the bench, the issue of contours of the right to privacy has been dealt with differently in each of the six opinions rendered by the Court. The court has explicitly recognized the feminist critique of the separation of public and private spheres in law, and has thus construed the right to privacy as not only privacy of one’s physical body, but also informational privacy, and the right to privacy of choice and autonomy over fundamental personal choices. Significantly, in a detailed opinion, the Court has expressed its disagreement with the reasoning in the case ofSuresh Kumar Koushal v Naz Foundation which recriminalized homosexuality, underscoring the importance of recognising the privacy rights of all individuals regardless of their sexual orientation.

    While the exact components of the right to privacy can only be determined on a case to case basis, the Court has set forth a strong framework that may have wide ranging implications, not only on data privacy laws, but also in areas such as mandatory reporting of offences, criminalization of non peno-vaginal sexual intercourse, reproductive and sexual health rights, matrimonial laws, the right to choice of food, and so on.

    For full judgment document, click here.

    http://www.livelaw.in/breaking-right-privacy-fundamental-right-sc/

  • Ten year old mother granted compensation for delay in legal proceedings seeking permission for abortion

High Courts and Tribunals

  • Sikkim High Court declares all orders under Sikkim Succession Act 2008 null and void

    As reported by PLD in its May-June newsletter, several Sikkimese women had filed a petition in High Court challenging the Sikkim Succession Act, 2008 for being discriminatory as it denies equal property rights to women married to non-Sikkimese men, or those who have acquired foreign citizenship. The Sikkim High Court has declared all orders arising from the application of the said Act as null and void on the ground that it has not yet been notified by the State government. The Court did not rule on the constitutionality of the statute, as it has not yet been brought into force.

    http://highcourtofsikkim.nic.in/drupal/hg_orders/202600000052017_4.pdf

  • Kerala High Court denies plea of parents for custody of adult daughter, but restricts her freedom of movement and autonomy

    Following the Hadiya case, the Kerala High Court has, in another case of a young adult women eloping with her partner with the intention of marrying him, ruled in favor of the girl’s choice while continuing to exercise severe restrictions over her movement and autonomy.

    In this case, the parents of the adult woman registered a case of kidnapping and sexual assault against her partner, and filed a writ petition seeking her custody, on the ground that the accused had a criminal background and their daughter was incapable of choosing a partner. Despite the girl’s statement that she was in a relationship with her partner and intended to marry him, the High Court directed her to undergo a psychiatric evaluation. While the court ultimately held that she, as an adult, was entitled to marry a person of her choice, it nevertheless directed that her to remain in a shelter home until the solemnization of her marriage as the Court did not consider it possible to send her along with her partner as an unmarried woman. During her stay at the shelter home, the Court directed that her parents alone would be allowed to interact with her.

    Sentencing the young woman to house arrest sets a dangerous precedent for the legal rights of women in the country. The recent order of the Supreme Court to investigate the marriage of Hadiya in the case of Asokan K.M. vs The Superintendent Of Police also treats the woman solely as patriarchal property while denying basic fundamental rights to her.

    T.M. Shareef and Anr. v Abdulla K.B. and Ors. WP(Crl.).No. 213 of 2017 (S)

    http://www.livelaw.in/major-girl-may-opt-criminal-convict-person-different-religioncaste-marry-court-cant-resist-choice-kerala-hc/

National News

  • New Parliamentary report on Transgender Rights finds crucial gaps in draft law

    The Social Justice and Empowerment Committee has released its report on the draft Transgender Persons (Protection of Rights) Bill. Since the introduction of the draft bill in August last year, various human rights organizations and activists had raised concerns over some of its provisions.

    The new report addresses the concerns raised, noting the bill’s failure to properly define discrimination, its silence on penalties for those who violate transgender rights, and the absence of an option for transgender people to bring a complaint if they are mistreated or abused. The report concludes that the draft law fails to properly protect transgender people from rape and sexual assault, as transgender persons remain at risk of arrest and prosecution because section 377 of the Indian Penal Code criminalizes same-sex sexual relations. The report slams the bill’s definition of transgender people as “unscientific and primitive,” and one which “completely misunderstands trans identities” and severely restricts their right to self-identify.

    Source: https://www.hrw.org/news/2017/07/25/making-transgender-rights-reality-india

  • Parliamentary Panel releases report on Surrogacy (Regulation) Bill, 2016

    The Parliamentary Panel released a report critiquing the Surrogacy (Regulation) Bill, 2016. While the report suggested that surrogacy in India must be regulated, referring to the socio-economic differences and power differential between the surrogates and the intending parents, it criticized the Bill on many counts. The bill limits the availability of surrogacy services to couples who had been married for more than five years within a certain age group, and allowed only ‘altruistic’ or uncompensated surrogacy by close family member, which the report notes can lead to oppression of vulnerable female relatives in the context of unequal gender relations within the family. According to the Parliamentary Panel Report, the option to avail of the services of a surrogate must not be limited to married couples or to close family members. Further, a national database of surrogacy cases is to be maintained and tracked in order to ensure compliance with regulations on surrogacy.

    Source: https://thewire.in/166918/surrogacy-bill-parliamentary-committee-report/

  • SHe-Box: Sexual Harassment electronic box launched for registering Sexual Harassment at Workplace complaints

    The Ministry of Women & Child Development has launched an online complaint management system titled Sexual Harassment electronic–Box (SHe-Box) for registering complaints related to sexual harassment at workplace, purportedly, to ensure effective implementation of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (the SHW Act), 2013 by encouraging reporting through ease of access to an online portal. Currently, the facility has been provided to Central government employees only. Concerns over confidentiality have been raised, given that the Act envisages a safe and confidential process of redressal through an Internal Complainants Committee. The portal can be accessed at http://www.wcd-sh.nic.in/

     

    Source:http://blog.scconline.com/post/2017/07/24/sexual-harassment-electronic-box-she-box-for-registering-complaints-related-to-sexual-harassment-at-workplace-launched/

     

 Resources

 Obituary

  • 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.

  • 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.