Bi-Monthly Legal News[Vol. No. 10(II) March-April, 2017]

 Resources

• Transformation of Women at Work in Asia, by ILO

  This book examines the drivers of, and barriers to, participation of women in the Asian labour market for its socio-economic development and structural transformation. It highlights challenges that women across Asia face in gaining access to more and better jobs. This publication also provides policy options for governments to promote work opportunities for women across social strata.

• Bearing Witness to Sexual Violence in South Chhattisgarh, by WSS

  Women against Sexual Violence and State Repression have released this book, ‘Bearing Witness to Sexual Violence in South Chhattisgarh.’ The book is a comprehensive compilation of the incidents of sexual violence in South Chhattisgarh, drawing upon independent investigations and joint fact findings by WSS.

  Source: http://bit.ly/2qRRVzl

• Towards a Better Future for Women and Work, by ILO and Gallup

  This study provides a first-ever account of global attitudes and perceptions of women and men regarding women and work, based on the 2016 Gallup World Poll. This touches upon norms and attitudes, which is a dimension of the promotion of gender equality that has not been explored enough, in order to understand motivations that can block or open doors and opportunities for women to have more and equitable opportunities in the labour force.

• Violence and Harassment against Women and Men in the World of Work, by ILO

  This report provides evidence of how trade unions can contribute to making real and positive changes in the workplace to protect workers, and particularly women, from violence and harassment. Through collective agreements, workplace policies and negotiations, campaigns and awareness-raising, trade unions have taken constructive steps to prevent violence and harassment in the world of work, often challenging institutional and structural forms of discrimination against workers.

• CEDAW and Nationality Laws Guide, by Global Campaign for Equal Nationality Rights

  This reference guide highlights key international human rights provisions found in CEDAW that are relevant to women’s nationality rights and individuals affected by gender discrimination in nationality laws, including stateless persons.

• Model Law for the Recognition and Protection of Human Rights Defenders, by International Service for Human Rights

  This Model Law is intended to guide and assist States and other actors to ensure the full and effective. The legal recognition and protection of defenders is crucial to ensuring that they can work in a safe, supportive environment and be free from attacks, reprisals and unreasonable restrictions. This resource will provide technical guidance to states to develop laws and policies, and protect them from reprisals and attacks.

• Women and ESCR Working Group briefing paper: intersection between work and women’s rights

  ESCR-Net’s Women and ESCR Working Group briefing paper series on work, health and land, focuses on the intersection between women and specific economic, social and cultural rights (ESCR) issues. The papers present specific and systemic challenges to the realization of women’s ESCR and explore progressive approaches to the application of a substantive equality perspective. The papers draw primarily upon ESCR-Net members’ work in different areas, and are further informed by and enhanced through dialogue with other experts in this field.

 International Updates

Beyond Asia

• Utah Repeals No Promo Homo Law

  Utah has repealed “no promo homo” laws restricting discussions of homosexuality in schools, recognising that the laws are discriminatory and harmful. The provision prohibiting “advocacy of homosexuality” in schools was vague in its description and was applied in many schools to silence any discussion of LGBT topics. The law discouraged school personnel from intervening to stop bullying and harassment, deterred teachers from providing basic information, and limited students’ ability to form and organize LGBT groups.
  Source: http://bit.ly/2qRXfn2

• UK Companies must Declare Gender Pay Gap

  New Regulations under the UK Equality Act make it compulsory for any organisation that has 250 or more employees to publish and report specific figures about their gender pay gap from 2017. Companies have been asked to submit their reports by 2018 and if they fail to do so they will be contacted by the Equalities and Human Rights Commission. Companies that discover they do have a gender pay gap will be encouraged to publish an action plan alongside the figures detailing the steps they plan to take to address the problem.

   

  Source: http://bbc.in/2o515d8

• Report on Women’s Rights in Africa launched

  The United Nations Human Rights office, together with African Union and UN Women, released a report on women’s rights in Africa. This is the first report in a series of analytical reports on the situation of women human rights on the continent that will be issued periodically and is to be read in conjunction with existing African Union reports on women’s human rights . The report assesses progress in relation to specific thematic areas such as sexual and reproductive health rights, albinism, violence, peace and security.  Among its recommendations, the report calls on African governments to encourage women’s full and productive employment, to recognize the importance of unpaid care and domestic work, and  take steps to reduce high maternal mortality rate, sexual violence, human trafficking, unsafe abortions, and HIV infections.

• European Union court allows religious symbol bans

  The European Court of Justice has ruled that companies may bar staff from wearing Islamic headscarves and other visible religious symbols under certain conditions, setting off a storm of complaint from rights groups and religious leaders. In its first ruling on a volatile political issue across Europe, the Court of Justice (ECJ) found a Belgian firm which had a rule barring employees who dealt with customers from wearing visible religious and political symbols may not have discriminated against a receptionist dismissed for wearing a headscarf. A campaign group backing the women said the ruling could shut many Muslim women out of the workforce.

   

  Source: http://bit.ly/2pVJLIZ, http://bit.ly/2pVJLIZ

  Link to Case: http://bit.ly/2qRMVM1 and http://bit.ly/2qIMhmu

• European Court of Human Rights ends Forced Sterilisation

  The European Court of Human Rights found that sterilisation requirement in legal gender recognition violates human rights. Setting the legal precedent for Europe, the decision will force 22 European countries using the infertility requirement from a person seeking legal gender recognition, to change their laws. This historic decision is delivered in three joined cases against France about the lack of self-determination of transgender individuals in the country. The court, however, denied that forced medical examinations ordered by the national court or a mental health diagnosis contradict the Convention, which has upset transgender activists.

   

  Source: http://bit.ly/2qgXpaL and http://bit.ly/2qRTq0m

• Sweden to Compensate Trans persons forced to undergo Sterilization

  The Swedish Minister for Public Health announced that the Swedish government has agreed to financially compensate forcibly sterilised trans people with the amount of $26000  each. The compensation will be available for anyone who was forcibly sterilised by the Swedish state from 1972-2013 in order to comply with the previous requirements in the Swedish legal gender recognition act. It’s believed that nearly 800 people were affected by the law. The decision was welcomed by Transgender Europe (an organizations working exclusively on Transgender rights in Europe), as the first time-ever when a state has recognized forced sterilization of transgender persons as a human right violation.

   

  Source: http://bit.ly/2mPZ31q

• African Union officially endorses Pan African Women’s Charter on Land Rights

  The 9th Annual African Union (AU) Gender Pre-Summit held in Addis Abba officially endorsed the charter of demands initiated from the mass assembly of rural women. The charter, which includes 15 specific demands addresses women’s access to use, control, own, inherit and dispose of their land and natural resources. The move has been welcomed by women’s rights activists who believe that although there is no binding element to political action for Governments of the AU, the historic endorsement is a step in the right direction to help organisations working on women’s land rights to continue their mobilisation efforts

   

  Source: http://bit.ly/2pqNWN5 and Charter: http://bit.ly/2pSBuF8

• US Court Of Appeals hold that Companies cannot discriminate Against LGBTI persons

  The full 7th U.S. Circuit Court of Appeals in Chicago recently ruled that Companies cannot discriminate against their LGBT employees because of their sexual orientation. The Court observed that discrimination on the grounds of sexual orientation amounts to sexual discrimination, and therefore is covered under existing federal law known as the Civil Rights Act. The judge observed “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.” The ruling has been termed as a game-changer and is a step forward in protecting persons on the basis of Sexual Orientation and Gender Identity (SOGI).
  Read more at: http://bit.ly/2oRcQFA and Judgment: http://bit.ly/2pmjTSN

Asia

• Nepal convicts army personnel for rape

  In a first of its kind conviction, a District Court in Nepal convicted three army officers of rape and murder of a 15 year old girl. This is the first time that a civilian court in Nepal has convicted army personnel for crimes committed during the 1996-2006 conflict. This judgment has come after persistent advocacy of the UN Human Rights Office and other human rights organizations. However, none of the officers were present in the Court and it still remains to be seen whether they will be arrested and serve their sentences.

  Source: http://bit.ly/2pmrUac

• Hindu Marriage Act, 2017 enacted by Pakistan

  A bill to regulate marriages of minority Hindu population has become a law in Pakistan after getting approval from the President and being unanimously passed by the National Assembly. The landmark law aims to protect marriages, families, mothers and their children while safeguarding the legitimate rights and interests of Hindu families. It provides for procedures relating to restitution of conjugal rights, judicial separation, void and voidable marriages, termination of Hindu marriage, financial security of the wife and children, alternate relief in termination of marriage and termination of marriage by mutual consent.

  Source: http://bit.ly/2pqp9ph

• Nepal Releases Draft Bill on Rights of LGBTI persons

  Nepal has constituted a five-member board to identify the issues and problems of gender and sexual minorities, and make the necessary recommendations to government. The draft bill has provisions for legally changing gender identity, same-sex marriage, adoption and enumeration in national census. It ensures the right to participate in political affairs, right to access, right to opportunity, right to employment, right to education, right to health, right to social security and other rights without any social discrimination. It also has provisions to safeguard the community from discrimination in all government services and facilities.

  Source: http://bit.ly/2qROrh7

 UN Updates

• USA cuts funding to UNFPA

  Continuing its crackdown on organisations that provide and facilitate access to abortion services, the USA administration announced that it would be substantially reducing the financial aid extended to the United National Population Fund (UNFPA) for 2017. This decision has been denounced by UN Women, in view of the UNFPA’s life-saving efforts to protect the health of women and girls and their families.

  Source: http://ind.pn/2nZwRII and http://bit.ly/2nBBANd

• FOAA Online! launched by UN Expert

  The Special Rapporteur on right to freedom of peaceful assembly and association announced the launch of FOAA Online!, which is an online legal research tool that hosts a compilation of legal arguments on assembly and association rights. These arguments are based on international law standards and principles, and will assist lawyers, activists and judges involved in furthering these rights.

• UNDP releases Human Development Report 2016

  The United Nations Development Programme has released the Human Development Report of 2016 titled ‘Human Development for Everyone,’ which addresses global human developmental challenges. The report’s five basic messages include: Universalism as a key to human development, various groups still suffer from basic deprivation, need to focus on analytical issues and assessment perspectives, need to implement policy options to achieve human development and need for reformed global governance with fairer multilateralism. Five countries with the highest level of human development, gender development and lowest amount of gender inequality are: Norway, Australia, Switzerland, Germany and Denmark.

• ECOSOC votes to webcast all open sessions of the Committee

  ECOSOC – the parent body of the NGO Committee that accredits NGOs to the UN, voted to webcast all open sessions of the Committee. This was in response to recommendations of some concerned NGOs regarding the practices followed by ECOSOC. This new move will enable several low revenue NGOs, whose representative’s cannot attend the sessions in New York to monitor it’s functioning, thus improving transparency and accountability.

  Source: http://bit.ly/2pmwtRR

• Special Representative on Sexual Violence in Conflict appointed

  Pramila Patten of Mauritius has been appointed as the Special Representative on Sexual Violence in Conflict at the level of Under‑Secretary-General, by the UN Secretary General. Having served since 2003 as Member of The Committee on the Elimination of all Forms of Discrimination Against Women, Ms. Patten brings solid and diversified judiciary expertise in sexual and gender-based violence as well as women, peace and security.

  The office of the Special Representative on Sexual Violence in Conflict has six priority areas, including ending impunity for sexual violence in conflict, protection and empowerment of civilians, increase recognition of rape as a war tactic, mobilize political and national ownership, and harmonize the UN’s response to sexual violence in conflict.

  Source: http://bit.ly/2pX32b6

• World Rankings for Representativeness of Legislative Bodies released by UN Women

  Releasing a world ranking of the number of women parliamentarians that placed India 148, Phumzile Mlambo-Ngcuka, the head of UN Women, has called for reservations for women. The rankings of all 193 UN member countries released here on Wednesday by the Inter-Parliamentary Union (IPU) and UN Women showed that women made up 11.8% of the Lok Sabha and 11 per cent of the Rajya Sabha. Source: http://bit.ly/2qIH3qS

• ICC Trial Chamber II awards victims individual and collective reparations in Katanga case

  Germain Katanga, former leader of an armed group in the Ituri Province of the Democratic Republic of the Congo had been found guilty of being an accessory to crimes against humanity and war crimes including rape and sexual slavery, in May 2014. The ICC Trial Chamber II has now awarded 297 victims individual and collective reparations in the form of symbolic compensation of USD 250 per victim, and collective support in housing, income generating activities, education aid and psychological support.

 National Updates

National Judgments/ Orders

High Courts and Tribunals

• Allahabad High Court holds Anti-Romeo Squads valid

  Two separate public interest litigations sought intervention of the Allahabad High Court in restraining the Anti Romeo Squads of the UP government from ‘moral policing,’ in face of reports and videos showing an over-reach of powers in the way they targeted and humiliated young couples in public places.

  The first PIL was dismissed on the grounds that government orders clearly prohibit moral policing, and that the name of the squads was not per se justiciable. Refusing to pass a direction on the issue of squad personnel uploading images and videos of young couples on social media, the court held that that surveillance can involve capturing of images and videos. Subsequently, another PIL was filed seeking directions to the state government to frame rules, laws and guidelines in respect of Anti-Romeo Squads, and to establish a monitoring authority for the squads. Reiterating its earlier decision, the court dismissed this petition.

  Gaurav Gupta v State of UP, P.I.L. (Civil) No.6779 of 2017

  Rituraj Mishra v Govt of UP, P.I.L. (Civil) No. 6907 of 2017

• Eating food of choice, be it meat, is an aspect of the Right to Food

  The Allahabad High Court has held that the right to choice of food falls within the fundamental right to food. This observation was made by the Court while granting relief to the petitioner, whose application for renewal of license for selling goat meat was not reviewed by the municipality.

  Criticising the lack of response to the Petitioner’s application, the Court noted that the State’s approach to cattle slaughter had the effect of prohibition on the trade of the Petitioner, and was in violation of his fundamental rights under Article 19 (livelihood) and 21 (life) of the Constitution of India. This decision is significant, given the crackdown of the State government on slaughterhouses in UP, and the ban on beef imposed by several state governments.

  Saeed Ahmed v State of U.P., Misc. Bench No.  6871 of 2017

• Compassionate appointment cannot be denied on the ground of marriage of the daughter of the deceased

  A cooperative bank refused to grant compassionate appointment to a woman on the ground that she was married at the time of her father’s death. This order of the Bank was challenged by the Petitioner as being violative of several fundamental rights, including the right to equality.

  Holding in favour of the Petitioner, the High Court of Madras held that appointment could not be denied on the ground of marriage of the petitioner. The Court highlighted the role that women play in managing both their natal and marital homes. Given that the petitioner and her husband had been caring for her mother, while her brothers were living separate lives, the Court ordered that the Petitioner be granted compassionate appointment.

  The Joint Registrar, Cooperative Bank Ltd v P Asothai and Ors, W.A.(MD) No.1042 of 2016 and 122 of 2017 and C.M.P.(MD).No.6078 of 2016

Supreme Court

• High Courts directed to Implement the POCSO Act

  Noting the non-implementation of Section 32 of the Protection of Children from Sexual Offences Act (POCSO), the Supreme Court has directed High Courts of 12 states and two Union territories to take suo motu action and appoint special public prosecutors to deal with cases of child sexual abuse. Section 32 of the POCSO Act requires State Governments to appoint Special Public Prosecutors for every special court under the Act, to ensure speedy and sensitive handling of cases under this Act.

   

  Gaurav Kumar Bansal v. Union of India and Ors, Writ Petition (Civil) No. 203 of 2017

• Court refuses permission to abort 27 week old foetus

  Developing a confusing jurisprudence on the right of women to terminate a pregnancy after 20 weeks, the Supreme Court refused to allow a woman who had been pregnant for 27 weeks to abort the foetus. The woman had petitioned to the Court seeking exemption from the 20 week rule under the Medical Termination of Pregnancy Act, 1971, on the ground that the foetus had been diagnosed with several deformities and disorders. Relying upon the medical board’s findings that the time period for which the baby would survive could not be ascertained, and because there was no threat to life of the petitioner, the Court dismissed her petition.

   

  Sheetal Shanker Salvi v. Union of India, Writ Petition (Civil) No.174 of 2017

• Divorced wife can claim maintenance despite desertion

  The Supreme Court, upholding an order of the Himachal Pradesh High Court, granted maintenance to a divorced wife who had deserted her husband. Her husband had obtained divorce on the ground of desertion, and opposed her maintenance petition on the strength of an exception under Sec. 125(4) of the Criminal Procedure Code. This subsection states that a woman is not entitled to maintenance if she refuses to cohabit with her husband without any reasonable cause. Reiterating its earlier position, the Court stated that a divorced wife also falls within the purview of Sec. 125 CrPC, and is thus entitled to maintenance.

   

  Manoj Kumar v. Champa Devi, Special Leave to Appeal (Crl.) No(s).10137/2015

• Supreme Court takes note of Law Commissions recommendations on death penalty, commutes sentence

  In a case of double murder of the accused person’s wife and child, the Supreme Court overturned the judgment of acquittal of the High Court. However, given the possibility of human error in investigation and appreciation of evidence, the Court refused to impose the death penalty upon the accused. The Court also noted that the Law Commission had recommended abolition of the death penalty in its 262^nd report..

   

  State of Maharashtra v Nisar Ramzan Sayyed, Criminal Appeal Nos. 865-866 of 2013

National News

• Mental Healthcare Act, 2017 enacted

  The Parliament has enacted the Mental Healthcare Act, 2017 which will replace the Mental Health Act, 1987. Enacted with a view to fulfilling India’s obligations under the United Nations Convention on the Rights of Persons with Disabilities, this Act takes a rights-based approach, and recognises the agency of mentally ill persons. The Act prohibits practices such as forced sterilisation, electro-convulsive therapy without muscle relaxants, and chaining of mentally ill persons. In addition, it enables persons suffering from mental illnesses to make advance directives about the nature of treatment that they may receive once incapacitated to make such decisions. Significantly, this Act also raises a presumption of ‘severe stress’ to safeguard persons who may have attempted suicide, from prosecution under Sec. 309 of the IPC.

• National Health Policy cleared by Cabinet

  The union cabinet has cleared the National Health Policy which puts forward a concrete framework for universal healthcare. The Policy also suggests policy directives to make drugs and diagnostic facilities available across the country. The Policy seeks to involve the private sector to make healthcare services widely available. Reducing maternal and infant mortality finds special mention in the policy. Highlighting the resource crunch in this sector, it also recommends raising the public health expenditure from 1.2% of GDP to 2.5%. Critics have pointed out some of the gaps in the policy, that include:  restricted capability of mandated agencies to deliver on any identified objectives, financial limitations of existing institutions to perform assigned roles and lack of a clearly-drawn, outcome-based action plan.

   

  Source: https://thewire.in/117774/national-health-policy-hype/

• Maternity Benefits (Amendment) Act, 2017 enacted

  The Maternity Benefits Act, 1961 has been amended to increase the duration of maternity leave entitlement from 12 to 26 weeks. However, the Act does not allow women with more than two children to avail of more than 12 weeks of maternity leave for subsequent pregnancies, thus furthering the two child norm of the government. Commissioning and adoptive mothers of children of less than three months are also entitled to maternity leave of 12 weeks. The Act requires every establishment with fifty or more employees to provide crèche facilities within a prescribed distance. It also makes provisions for ‘work from home’ projects. While these amendments are welcome, they leave out of their purview a majority of women who work in the unorganised sector, and are thus not covered by this Act.

• HIV AIDS (Prevention and Control) Act, 2017 enacted

  The Act prohibits discrimination against persons with HIV and AIDS in (i) employment, (ii) educational establishments, (iii) health care services, (iv) residing or renting property, (v) standing for public or private office, and (vi) provision of insurance, provides for informed consent and confidentiality with regard to their treatment, places obligations on establishments to safeguard their rights, and creates mechanisms for redressing their complaints. The Act prohibits the practice of compulsory HIV testing as a pre-requisite for obtaining employment or accessing healthcare and also seeks to prevent and control the spread of HIV and AIDS.

• Maharashtra PAC recommends making sex-determination compulsory

  The Maharashtra Public Accounts Committee, in its report tabled before the Legislative Assembly, has recommended that sex-determination be made compulsory in cases of all pregnancies. This recommendation was made in view of India’s low child sex ratio, and is premised in the belief that monitoring of pregnancies will make sex-selective abortions difficult. The committee also recommended that parents be brought within the purview of the PCPNDT Act.

   

  The PCPNDT Act regulates the use of medical technology, not women’s right to medically terminate a pregnancy, as this report proposes to do. As such, the PAC’s recommendation is inconsistent with women’s legally protected reproductive rights under the Medical Termination of Pregnancy Act, as well as the social realities that inform decisions related to pregnancy and abortion.

• Guidelines by Ministry of Drinking Water and Sanitation on gender aspects of sanitation

  The Ministry of Drinking Water and Sanitation has issued guidelines with the objective of promoting inclusivity in sanitation. Recognising the role of women in realising the goals of the Swachh Bharat Mission’s Open Defecation Free villages programme, the guidelines recommend ensuring the active involvement of women, especially in leadership positions. Significantly, the guidelines recognise that trans persons ought to have the choice to use the toilet of their choice. They also state that toilets should be designed for easy use by aged persons, persons with disabilities.

• Cabinet approves MoU between India and United Nations Entity of Gender Equality and Empowerment of Women (UN Women)

  The union cabinet has approved the signing of an agreement between India and the UN Women. The proposal seeks to provide technical support to the Ministry of Panchayati Raj in strengthening capacities of governance institutions including Panchayati Raj Institutions (PRIs) to ensure that opportunities created for women through legislation, policies and programmes are better leveraged at the grass-root level.

• Cabinet approves ratification of Minimum Age Convention, 1973 and Worst Forms of Child Labour Convention, 1999 of ILO

  The Union Cabinet has given its approval for ratification of two fundamental conventions of the International Labour Organisation, namely, Minimum Age Convention (No. 138) concerning minimum age for admission to employment and the Worst Forms of Child Labour Convention (No. 182) concerning the prohibition and immediate action for elimination of the worst forms of child labour such as slavery, prostitution, etc. While India has been in agreement with the latter convention in principle, it is one of only seven countries that have not ratified it. .

  Ratification of these conventions is likely to bring significant changes to the legal framework on child labour in India, as these conventions would obligate the government to set 15 as the minimum age for admission into employment, instead of the current 14. Furthermore, light work in family based establishments would be permissible only for 13-15 year olds.