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

 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.

 Resources

• Towards victim-friendly responses and procedures for prosecuting rape: a study of pre-trial and trial stages of rape prosecutions in Delhi by PLD

  This report by Partners for Law in Development (PLD) has monitored compliance with gender sensitive procedures in rape prosecutions. Conducted under the aegis of Department of Justice and UNDP, the report draws upon trial monitoring of 16 cases of rape across four fast-track courts in Delhi, victim interviews, examination of case records and comparative and domestic law research. Full report is available here: http://bit.ly/2u0PFYT

• Women’s Labour, Women’s Voices: Release of Thread and Tension: a PUCL and WSS fact-finding report

  Women against Sexual Violence and State Repression, and PUCL, have conducted a fact-finding study on the garment workers’ protest in Bangalore and its effects which compelled the central government to concede to their demands. The report specially focuses on human rights violations committed by the police against citizens, including garment factory workers, during spontaneous demonstrations that took place on April 18th and 19th, 2016.

   

• ILGA’s State Sponsored Homophobia Report, 2017

  International Lesbian, Gay, Bisexual, Trans and Intersex Association has released its annual survey on sexual orientation laws across the world. The report gives a country-wise analysis of laws related to LGBTI persons across the world and also represents it on maps.

• A Four-State Report on Women & Burns in India by PCVC

  The International Foundation for Crime Prevention & Victim Care (PCVC), a Chennai-based non profit organization, has published a report based on a 4-state study (Tamil Nadu, Telangana, Delhi & Maharashtra) to understand the incidence and prevalence of burns among Indian women and the existing support mechanisms to provide physical, psychosocial & economic rehabilitation.

  Along with the report, PCVC also published “Beyond Burns“, a good practice guide for practitioners and policy makers in India to incorporate psychosocial care in order to empower women burn survivors in their journey of recovery and discovery of life beyond violence.

 International Updates

Beyond Asia

• Egypt enacts law to regulate civil society, continues crackdown on foreign funded NGOs

  The Egypt has enacted a law to regulate civil society organisations, requiring them to seek permission from “a state appointed administrative entity” to carry out their operations. The administrative entity will have the power to determine whether an NGO’s work is in line with the Government’s development and social welfare plans. Civil society groups will be required to report on information about their funding, activities and programmes and seek permission from the authorities for activities, including conducting surveys. NGOs will require government permission before working with foreign organisations. Non-compliance with some provisions of the law can result in criminal prosecution. The law is likely to result in the closure of several CSOs, despite growing need for essential services delivered by them, including education and health care.

  In a parallel but related development, the Cairo Criminal Court passed an interim order for freezing assets of Nazra for Feminist Studies, a  women’s human rights organisation, in the ten year old case “NGO foreign funding”. Several cases that had been instituted against pro-democracy NGOs in 2011 post the Arab Spring. Some of these cases  lying dormant were revived by the Cairo Criminal Court in 2016 at the instance of the state, illustrate the global trend in authoritarianism that seeks to stifle independent voices and information on human rights.

  Source: http://bit.ly/2sFFFmF; http://bit.ly/2tyf8L8

• German parliament and New York state enact law prohibiting child marriage

  The state of New York has enacted a new law prohibiting  marriage for 14-16 year olds, while permitting 17 year olds to marry with parental and judicial consent. Under the previous law, the minimum age for marriage in New York was 18, but the law allowed children of 16 and 17 to marry with parental approval, and children of 14 and 15 to marry with permission from a judge and their parents.

  Adopting a different position, German legislature has enacted a new law which completely prohibits marriage of those below 18 years of age. Earlier, adolescents in the age group of 16-17 could marry with court permission. This legislation also nullifies existing marriages involving minor parties who were under the age of 16 at the time of marriage. Commentators believe that this is intended to target marriages solemnised outside of Germany, particularly in immigrant communities. The law allows for exceptions in cases of “hardship” in which the initially underage spouse has since reached adulthood and confirms that they want to remain married.

  Source: http://bit.ly/2rH6nO3; http://bit.ly/2sQ2SUn

• Chad: Special Tribunal convicts Hissène Habré of war crimes

  A special tribunal in Senegal sentenced the former dictator of Chad to life imprisonment for crimes against humanity, war crimes, and torture, including sexual slavery, sexual violence, and rape, from 1982 to 1990. During his tenure, Habréused the police and the army to spread terror among the population. Thousands were tortured and murdered, and great numbers of women and girls were subjected to sexual torture, and sexual slavery.

  Significantly, this is the first time that a court in Africa not set up by the United Nations has found that rape and sexual violence committed against women and girls constitute a form of torture.

  Source: http://bit.ly/2v1kagP

• Canada’s new foreign aid policy puts focus on women, rights

  Canada has released a new International Assistance Policy, which aims to direct 15 percent of all Canadian aid to gender equality programs, compared to 2 percent in 2015-2016.The new policy focuses ongender equality, human dignity, inclusive growth, environment and climate action, inclusive governance, and peace and security.

  Significantly, all projects, regardless of sectors, will have to integrate a gender equality and women’s empowerment component, and Canada’s implementing partners will have to consult with women locally and include them in the decision-making process when launching new programs.

  Source: http://bit.ly/2rgCOzX

• Turkey: Disallowing married women from using just their maiden name is discriminatory, rules ECHR

  In the case of Leventoğlu Abdulkadiroğlu v. Turkey, the European Court of Human Rights has unanimously held that disallowing married women from using their maiden name alone amounts to a violation of the right to respect for private and family life, and the right against discrimination enshrined in the European Convention on Human Rights. Turkish laws compel women to adopt their husband’s surname, while men can continue to use their original surnames after marriage. In this case, the ECHR awarded damages to each of the affected women, who had approached the court seeking relief.

  Source: http://bit.ly/2tF6Nn2

• Hungary enacts law to regulate foreign-funded NGOs

  The Hungarian parliament has approved a law that imposes strict regulations on foreign funded NGOs in the country. Ostensibly passed to curb money laundering and terrorism funding, it is believed that the law will be used to stifle dissent, discriminate, and delegitimize NGOs.

  The new law requires that organisations that receive more than €24,000 a year as foreign funds should register as “foreign-supported organisation.” They will be required to list any foreign sponsors providing them with more than about $1,800 a year. Such NGOs will be labelled as “foreign-funded” in every public appearance.  The reporting requirements for foreign funded NGOs have been enhanced, and the Rules provide for closure in case of non-compliance.

  Source: http://reut.rs/2s6cwSb

• Russia’s law against promotion of non-tradition sexual relations breaches human rights, rules ECHR

  In a landmark judgment of Bayev and Others v. Russia, the European Court of Human Rights has ruled that a Russian law banning the “propaganda of non-traditional sexual relations aimed at minors” breached European treaty rules. This law was often invoked to refuse permission for LGBTI parades, and harass LGBTI rights activists.

  Noting that the law reinforces stigma, and encourages homophobia, The ECHR held that it was violative of the right to freedom of speech, and prohibition against discrimination under the European Convention on Human Rights.

  Source: http://bit.ly/2u35mkU

• US Court issues landmark ruling in favour of a trans student

  In the case of Ashton Whitaker v. Kenosha Unified School District, the Seventh Circuit Court of Appeals unanimously ruled that a school district violated the rights of a trans student, when it refused to let him use the restroom comporting with his gender identity. The school staff and security had been instructed to prevent him from using the boys’ restroom, according to his complaint. The Court unanimously upheld a preliminary injunction against the school, in the absence of any evidence that such an injunction would inconvenience the school district authorities.

  Source: http://bit.ly/2v1qsx9

• SCOTUS partially upholds Trump’s ban on refugees from Muslim countries

  The Supreme Court of the United States revived parts of a travel ban imposed by the President Trump on people from six Muslim-majority countries. Although patently discriminatory, Trump defended the travel ban on grounds of national security. The travel ban had been completely stayed by a lower court earlier. The Fourth Circuit Court of Appeals had upheld a preliminary injunction on Trump’s travel ban. In doing so, the Court had heavily drawn from the often polarising statements made by Trump in his TV appearances and public speeches.  Citing his interviews published in the media, where he’d made comments about the ‘horrible treatment’ of Christian refugees, and had categorically stated his intention to help Christian refugees, the Court had held that the travel ban was intended to disfavour followers of Islam while giving preference to Christian refugees.

  In appeal, the SCOTUS partially reinstated the ban with respect to persons who did not have strong ties with any person or entity in the USA.

  Source: http://bit.ly/2rWWcWs

• Texas enacts law shielding discriminatory child welfare services providers

  Texas has enacted a law that enables child welfare agencies that discriminate on the basis of sexual orientation, gender identity, marital status, or religion of prospective parents, on the grounds of ‘sincerely held religious beliefs’, to continue to receive state financial support. The law additionally shields service providers that refuse to help youth find contraception or abortion services. The bill has been criticised not only because it legitimises discrimination against qualified prospective parents, but also because it jeopardizes the best interests of children who would benefit from a stable, loving home. Similar laws have been passed in South Dakota and Alabama in 2017.

  Source: http://bit.ly/2uGPsuj

• Bermuda Supreme Court upholds legality of same-sex marriage

  The Bermuda Supreme Court has ruled that same-sex couples are entitled to be married under the Marriage Act of the territory. The notice of intended marriage of the petitioner and his fiance had been rejected by the Registrar. The court held that such rejection amounted to unlawful discrimination on the basis of sexual orientation. Terming the perspective of marriage being predicated upon heterosexual procreation and marriage being the main and most effective means of rearing healthy, happy, and well-adjusted children as “insular,” the court opined that it was out of step with the Bermuda of the 21st century.

• New SOGIE guidelines announced by Canadian Immigration and Refugee Board

  Canada’s Immigration and Refugee Board (IRB) has published guidelines on screening asylum seekers who have fled their countries for reasons involving sexual orientation, gender identity, and gender expression. The guidelines also emphasise the need to respect the specific cultural variability among sexual and gender minorities seeking asylum, that may make furnishing proof of sexual orientation and gender identity difficult.

  Source: http://bit.ly/2pdsHKx

• Guardianship system marginally relaxed in Saudi Arabia

  Saudi Arabia’s King Salman has issued an order to all government agencies that women should not be denied access to government services on the ground of lack of a male guardian’s consent. While this order provides some respite from the restrictive guardianship system for women in Saudi Arabia, it appears to keep in place regulations that explicitly require a guardian’s approval, such as obtaining a passport, travelling abroad, or getting married. It also does not address areas where private entities seek a guardian’s consent before providing employment or medical services to women.

  Source: http://bit.ly/2sFQVzu; http://bit.ly/2qUN3cL

• Law privileging transmission of citizenship by unwed mother to child, as compared to fathers unconstitutional, rules SCOTUS

  In its judgment in the case of Sessions, Attorney General v. Morales Sanatana, the Supreme Court of USA (SCOTUS) has held that the provisions The Immigration and Nationality Act, which privilege unwed mothers who are US citizens over unwed fathers who are US citizens in determining whether their children may claim citizenship, are discriminatory. Under this law, children of unwed fathers are required to prove that their father lived in the U.S. for at least 10 years, five of them after the age of 14, in order to claim American citizenship. However, children of unwed mothers are only required to show that their mother lived in the US for one continuous year at any point in her life. The court stated that the law was rooted in overbroad generalisations about gender roles. However, the Court denied relief to the respondent, by holding that the standard applicable to unwed fathers should also be applicable to unwed mothers, thus tightening the citizenship laws.

  Source: http://nyti.ms/2sW24g7

• Canadian Parliament to criminalise hate propaganda against gender variant persons

  Canadian Parliament has cleared the bill C-16, which amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination. It also amends the Criminal Code to extend the protection against hate propaganda to any persons who are distinguished by gender identity or expression. The bill also states that offences motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance for the purposes of sentencing.

• Chile Senate approves gender identity bill

  The Senate of Chile has approved the Gender Identity Bill, which lays down the procedure for amending the name and gender markers directly in the Civil Registration Office. The Bill also reaffirms gender identity among the prohibited grounds for discrimination. However, the bill has been criticised as it does not recognise the right of children and adolescents to change their gender markers. Moreover, the provisions require a medical certificate to prove  psychological and psychiatric conditions before change of name/ gender marker is approved.

  Source: http://bit.ly/2tEMTZJ

Asia

• Nepal SC stays impeachment motion against country’sfirst womanChief Justice

  In a welcoming move, the Supreme Court of Nepal has issued an interim order against an impeachment motion against Chief Justice Sushila Karki and directed the Legislature-Parliament to put the motion on hold, allowing the first female head of the judiciary to return to the bench. Ms Karki had been accused of being partisan, breaching the principles of separation of power, influencing her fellow Justices and failing to fulfil her duties in judiciary efficiently. Civil society activists in Nepal and all over Asia strongly condemned the suspension, given Ms. Karki’s strong stance against corruption and criminal activities during her tenure. This has been considered as another instance of political interference in the judiciary, given Nepal’s history of political interferences in civil positions. It is suspected that the motion was intended to attack judicial independence.

  Source: http://bit.ly/2u8idDg

• Taiwan legalises same-sex marriage, becomesfirst country in Asia to do so

  In a landmark case filed by gay rights activist Chia-Wei Chi, Taiwan’s Court of Grand Justices has held that the provisions of the Civil Code relating to family that do not allow two persons of the same sex to marry are in violation of both the people’s freedom of marriage emanating from the right to sound development of personality and the right to human dignity, and the people’s right to equality under of the Constitution. The court directed the Taiwanese legislature to make statutory provisions for same sex marriage within two years, failing which same sex couples will be able to register their marriages anyway.

  This decision makes Taiwan the first state in Asia to permit same sex marriage. However, concerns remain about the manner in which ‘marriage’ has been interpreted by the Court, i.e. as a permanent union of “two persons of the same sex … of intimate and exclusive nature for the committed purpose of managing a life together.” Given the conspicuous absence of any reference to children in the definition, commentators argue that it accords considerable leeway to the legislature to develop a civil partnership regime for same-sex couples, while reserving the ‘privilege’ of marriage for heterosexual couples.

  Source: http://bit.ly/2qcpgcs

• Indonesian court convicts politician under blasphemy law

  Jakarta’s Governor Ahok Tjahaja Purnama was sentenced to two years of imprisonment for violating the country’s discriminatory blasphemy law. A Christian politician,  was  charged with  blasphemy in 2016, after he made a reference to a Quranic verse which was perceived as disrespectful. This prosecution was extensively used by militant Islamist groups to polarise the electorate in the run up to the gubernatorial election, which Ahok lost.

  The Indonesian law against blasphemy, contained in article 156A of the Indonesian Criminal Code, punishes deviations from the central tenets of the six officially recognized religions with up to five years in prison. The blasphemy law has been used to target members of religious minorities and traditional religions.

  Source: http://bit.ly/2pBUaWl

• Kyrgyzstan enacts new Domestic Violence Law

  The Kyrgyzstan legislature has enacted a Law on the Prevention and Protection against Family Violence, which replaces the 2003 law on domestic violence. It includes measures for protecting victims, and strengthening police and judicial response to domestic violence. It has been welcomed as a progressive piece of legislation, as it takes into account reports of implementation gaps, including CEDAW Concluding Observations of 2015 and UN Women report on “Access to Justice” (2015).

  The law recognizes ‘economic abuse’ in addition to physical and psychological abuse. It also requires police to register a domestic abuse complaint from anyone, not just the victim. The process for obtaining a protective order has been made simpler. The statute also states that domestic violence offenders will no longer be eligible for a permit to purchase or possess weapons, and the existing permits of convicted offenders will be revoked. Significantly, the law lays special emphasis on behaviour correction programmes for perpetrators.

  Source: http://bit.ly/2piVz94; http://bit.ly/2r7hmjW

 UN Updates

• Human Rights Council appoints fact-finding mission on Myanmar to investigate abuse against the Rohingya Muslims

  The  Human Rights Council appointed Ms. Indira Jaising (Chair), Ms. Radhika Coomaraswamy, and Mr. Christopher Dominic Sidoti as members of the fact finding mission on Myanmar. The mission has been tasked with establishing the facts and circumstances in which the alleged human rights violationsagainst the Rohingyas in the Rakhine State, at the instance of the military and security forces, including arbitrary detention, torture and inhuman treatment, sexual violence, forced displacement, and so on.

  While the Council had encouraged the government of Myanmar to cooperate with the fact finding mission, the government has publicly dissociated itself from the resolution. The visa requests of all the members of the mission have also been subsequently rejected.

• Report of the Independent Expert on protection against violence based on SOGI

  The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity has prepared his first report. The report looks at the legal framework, identifies multiple, intersecting and aggravated forms of violence and discrimination; and recommends support for international cooperation to assist national efforts. It contains recommendations to to help prevent and overcome protection gaps that exacerbate  violence and discrimination, namely, decriminalization of consensual same-sex relations; effective anti-discrimination measures; legal recognition of gender identity; depathologization; sociocultural inclusion; and promotion of education and empathy.

• UN human rights report maps 13 years of violence and impunity in the Central African Republic

  This mapping report by the UN Human Rights Office and the UN Mission in the Central African Republic (MINUSCA) has documented patterns of serious violations of international human rights law and international humanitarian law by successive government forces, various local and foreign armed groups, as well as international and foreign defence forces. The report, mandated by the UN Security Council, documents 620 incidents, including multiple accounts of gang rapes of women and girls as young as five. While the report recognizes the challenging security situation in the Central African Republic, it recommends that some steps be taken immediately to initiate transitional justice processes, including the development of a national approach to human rights vetting of security and defence forces.

• UN Human Rights Committee rules against Australian law that bars married trans persons from officially changing their sex

  In its first decision on official gender markers, the UN Human Rights Committee declared that the NSW Births, Deaths and Marriages Registration Act of 1995, which does not permit married persons to change their sex on their birth certificates, is in violation of international human rights law. The case was brought before the Committee by a trans woman, whose request for change of sex on her birth certificate was rejected repeatedly on the grounds that she was married. The Committee held that this resulted in arbitrary interference in her private life and also noted that a law that differentiates between married and unmarried persons who have undergone a sex affirmation procedure is discriminatory in nature. 

• ICC Appeals Chamber confirms the Court’s jurisdiction over two war crimes in the Ntaganda case

  As reported in PLD’s Jan-Feb newsletter 2017, the ICC’s Trial Chamber IV had affirmed it’s jurisdiction over war crimes of rape and sexual slavery of child soldiers committed by an armed force member against members of the same armed force in the case of The Prosecutor v. Bosco Ntaganda. This decision has been affirmed by the ICC Appeals Chamber. The Appeals Chamber also noted that International Humanitarian Law not only governs actions of parties to the conflict in relation to each other, but also with protecting vulnerable persons during armed conflict, including those who do not take an active part in the hostilities. The Chamber highlighted that the application of its jurisdiction only requires that the conduct in question “took place in the context of and was associated with an armed conflict.”

   

   

• UNHCHR publishes report on the gender digital divide

  The United Nations High Commissioner for Human Rights has published a report on the ‘Promotion, protection and enjoyment of human rights on the Internet: ways to bridge the gender digital divide from a human rights perspective.’ The report outlines  complex  barriers to women’s online access including economic, socio cultural, and legislative barriers. In a special reference to online violence against women, the report calls for urgent state action for the removal of unlawful content.

  The report stresses the need for  overcoming these barriers including through addressing the underrepresentation of women in STEM sectors, embedding gender equality and diversity as core values in employment policies, integrating information and communications technology in the curricula for girls, and combating online violence against women.

• UNHCHR publishes report on racial discrimination and its impact on women and girls

  The United Nations High Commissioner for Human Rights has published a report on the ‘Impact of multiple and intersecting forms of discrimination and violence in the context of racism, racial discrimination, xenophobia and related intolerance on the full enjoyment of all human rights by women and girls.’ This report analyses the ways in which several grounds of discrimination intersect and the impact that they have on the full realisation of women’s and girls’ human rights.

• Special Rapporteur on trafficking in persons releases report

  The SR on trafficking in persons, especially women and children has released a report on the efforts of multi-stakeholder initiatives and industry coalitions to address trafficking in supply chains. The recommendations are aimed at strengthening voluntary standards on trafficking in persons, the assurance processes used by multi-stakeholder initiatives to improve detection and remediation of cases of trafficking in persons, and domestic legislation on business transparency regarding efforts to combat trafficking in persons in their supply chains.

• Report of the Working Group on discrimination against women in law and in practice released

  The Working Group on discrimination against women in law and in practice released its report on good practices for the elimination of discrimination against women in law and in practice. In face of profound backlash posed to women’s equality by fundamentalism and misogynistic populist voices including those of Governments, manifested by the attacks on women’s movements, lawyers, human rights defenders by State and non-State actors alike, the report emphasises the value of identifying good practices to uphold human rights. Among these, the report highlights that international human rights standards and constitutional standards for women’s equality be incorporated into legal framework, and laws inconsistent with these be repealed or modified, without exceptions based on cultural grounds. It also recommends that gender analysis of existing and draft laws through the input of diverse stakeholders, and reiterates the importance of fulfilling rights.

• UN SR on freedom of religion or belief submits report highlighting gender-specific abuses against women and girls

  The report of the Special Rapporteur on freedom of religion or belief outlines efforts to   mainstreaming gender in the mandate’s approach by focusing on discrimination based on gender and gender identity, as well as instances where gender based discrimination is justified on the grounds of religious liberty. The report cites examples such as violence against women or members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, forced marriage, female genital mutilation, forced conversion, honour killing, enforced ritual prostitution, sexual slavery, all of which get justified on the basis of religious traditions. However, it clarifies that it would be erroneous to assume incompatibility between the right to freedom of religion and women’s right to equality, as individuals, not religions are the holders of the right to freedom of religion or belief.

• Call for submissions on online violence against women

  The Special Rapporteur on violence against women has called for submissions on online violence against women from different stakeholders, including States, National Human Rights Institutions, non-governmental organizations, as well as members of academia. She noted that while the use of information and communications technology has contributed to the empowerment of women and girls, there was a need to examine this recent phenomenon, and the applicability of national laws to it, and to make recommendations for States and non-State actors to fight online violence against women and girls while respecting freedom of expression. Last date of sending submissions is 30th September, 2017.

 National Updates

National Judgments/ Orders

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]

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

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

  In March 2017, the Uttar Pradesh (UP) government had issued orders for the closure of illegal slaughterhouses in the state, following the electoral victory of Bharatiya Janata Party (BJP) in the state. Given that trade in cattle meat in UP is largely carried out by unregulated small establishments, implementation of this order effected a near prohibition on slaughter of cattle. In a writ petition titled Mohd. Mustafa and Ors. v. Union of India and Ors (MB No. 8923/2017) in which the manner of implementation of the order was challenged, the Allahabad High Court directed the state government to issue new licenses and renew those that had expired. Directing the state government to undertake consultation and awareness, the Court observed that a near-ban situation could have been avoided by the government by creating awareness about the legal compliances necessary for obtaining/renewing licences instead of withdrawing itself from an activity that is essential for enjoyment of basic fundamental rights such as the right to choice of food and freedom of trade and occupation.

  In another instance of indirect ban on cattle slaughter, the Central government notified new rules on sale and transport of cattle under the Prevention of Cruelty to Animals Act, which if implemented, would completely prohibiting trade in buffalo and cattle, depriving farmers and cattle traders of their livelihood. These legal developments cause serious concern in the wake of increasing cow vigilantism who target cattle traders and transporters as ‘slaughterers’, including through lynch mobs. In view of a stay order of the Madras High Court on these rules, protests by the agriculturist lobby which has filed a PIL to challenge them in the Supreme Court, as well as opposition from some state governments including those of Kerala and West Bengal, the central government has agreed to review the proposed rules.

  Source: http://bit.ly/2u2OOJw; http://bit.ly/2uHDvnZ