Bi-Monthly Legal News[Vol. No. 10(V) Sept-Oct, 2017]

 Resources

• Sahiyo releases Global Survey Report on FGM among Dawoodi Bohra Community

  Sahiyo has released a Global Survey Report on female genital cutting (also known as female genital mutilation and female genital circumcision) among Dawoodi Bohra Community. The survey report attempts to understand the views, beliefs and rationales of the practice followed by women belonging to the Dawoodi Bohra community. According to the report, the findings demonstrate that FGC is deeply rooted in the Bohra community. The United Nations data records at least 200 million women in 30 countries who have been subjected to FGM/C. Furthermore, the UN has prioritized the elimination of FGM/C under the goal of achieving gender equality as part of the Sustainable Development Goals (SDG).

  Access report here

• ICRW releases report on intimate partner violence in South Asia

  The International Centre for Research on Women has released a report on addressing intimate partner violence (IPV) in South Asia. The review seeks to identify past or current IPV interventions in South Asia implemented at a systemic level using the public health system, local governance systems, or women’s collectives, to gather, synthesize and analyze existing evidence from these programs to identify key implementation challenges and understand how to design more responsive programs, especially in India.

  Access report here.

• Musawah releases a paper on ‘Islam and the Question of Gender Equality’

  Musawah released a paper titled ‘Islam and the Question of Gender Equality’ which focuses on gender justice within the philosophy of law in Islam. It highlights how the earlier notions of justice within Qur’an did not include the idea of equality between men and women, nor did it exist in the Muslim social, economic and historical thought. However, changes at local, national and global levels and contemporary interpretations of Islamic sacred texts, based on ethics and values, allow for gender equality in laws, policies and practices today. The paper expands up on gender equality, broad approaches to gender justice and key aspects of gender equity in contemporary Muslim family laws and gender norms.

  Access paper here.

• New Zealand Ministry of Education releases LGBTIQA+ education guide

  The Ministry of Education released a guide to ensure the safety and wellbeing of students and to promote an education program inclusive of those who identify as sex, gender, or sexuality diverse (SGSD). The guide contains four main strategies: “understanding sex, gender, and sexuality diversity”, “creating inclusive school-wide systems and processes”, “addressing immediate environmental, physical and social needs”, and “developing an inclusive classroom and curriculum”. The curriculum program was created after consulting with several civil society organizations.

  Access guide here.

• ‘Everyone Blames Me’: A Human Rights Watch report on barriers to justice and support services for sexual assault survivors in India

  Human Rights Watch, with the assistance of Jan Sahas, has published a report on the barriers to justice and support services for sexual assault survivors in India. The HRW report brings out valuable findings, complimenting other reports on rape of Dalit girls in Haryana, or of tribal girls in Chhattisgarh by the WSS (Women Against Sexual Violence and State Repression). Among other findings, the report highlights the high levels of impunity enjoyed by perpetrators, resulting in routinised sexual violence against girls and women. The experiences of women disadvantaged by gender, caste, minority or migrant status in social relations and in law – are vastly different from those of urban upper class women.

  Sources:http://bit.ly/2yI391B;  http://bit.ly/2jqeD31

 International Updates

Beyond Asia

• Tunisia lifts decade-old ban that prohibited Muslim women from marrying non-Muslim men

  Tunisia recently abolished an archaic law which prohibited a Muslim woman from marrying a non-Muslim man. The move comes as part of a larger movement to empower women by enabling them to freely choose a spouse. Before this amendment, non-Muslim men wishing to marry a Muslim woman were required to convert to Islam prior to the union for it to be legally recognized.

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

• Married persons can change gender identity without divorce, rules Western Cape High Court

  The Western Cape High Court has ruled that individuals in legally-recognized marriages may amend their gender identification and update all legal documents without dissolving their marriage. The case centered on three women and their female spouses who pursued the department of Home Affairs in court after having their applications to change their gender identities rejected. The couples were married under the 1961 Marriage Act, which pertains to heterosexual unions, while same-sex marriages are only recognized under the 2006 Civil Union Act.

  Prior to this ruling, married individuals who wished to legally change their gender identity were required to divorce their spouse in order to avoid same-sex marriage. The Western Cape High Court Judge emphasized on the importance of the Alteration of the Sex Description Act that should be implemented in a manner compliant with the Constitution of South Africa to respect the lives and ensure the right to identity of transgender persons.

  Sources: http://bit.ly/2iLbiLN; http://bit.ly/2gMNnHj

• Botswana Court directs the National Registrar to change the identity from female to male to reflect applicant’s chosen gender identity.

  The Lobatse High Court passed a ruling in a case against the Registrar of National Registration for the refusal to change a gender marker on a man’s official documentation. The judge declared that the refusal held no ground and violated the individual’s right to expression, legal protection, dignity, and freedom from discrimination. As such, it was ruled that the gender identity marking on the man’s official documentation be changed immediately from female to male to reflect his personal expression. The judge held that the failure of the state to formally recognize the man’s gender identity is a denial of his fundamental right to protection and respect by the state and has caused significant trauma.

  Source: http://bit.ly/2iLyb1m

• Tunisia and Kenya move towards abolishing forced anal examinations to determine sexual orientation

  At the 36^th session of the Human Rights Council, Tunisia accepted the recommendation to ban forced anal examinations as means of determining sexual orientation. The State Minister declared that authorities will no longer be permitted to impose these examinations without consent of the individual involved. While judges and authorities may still recommend the examination, ‘suspects’ are entitled to reject such directions without the inviting aspersions of homosexuality. Following the revolution against dictatorship in 2011, the country has been moving towards democracy and with that, enhanced respect for and protection of the LGBT community. However, same-sex activity remains punishable by three years of incarceration.

  In a similar move, the Kenyan Medical Association (KMA), issued a statement in support of the Gay and Lesbian Human Rights Commission (NGLHRC) campaign against forced anal examinations in Kenya. The statement comes in the wake of a Governing Council Meeting wherein the NGLHRC concerns were voiced. The KMA statement resolved to condemn and discourage any form of forced examination of clients, advice practitioners to adhere to the Code of Ethics and Professional Conduct in all client interactions, call on the National Government to ensure safe and secure health-care environments, and organize a forum on the health needs of the LGBTIQ community.

  Sources:  http://bit.ly/2gM58qe; http://bit.ly/2zPYzdU

• USA enacts Women, Peace and Security Act

  The USA has enacted the Women, Peace and Security Act, 2017, which seeks to strengthen efforts to prevent, mitigate, and resolve conflict by increasing women’s participation in negotiation and mediation processes. The Act mandates the creation of a government-wide strategy towards this end. It also requires training for diplomats, development professionals, and security personnel to support the inclusion of female negotiators, mediators, and peace builders. To promote accountability, it imposes reporting requirements on several federal agencies, including the Departments of State, Defense, Homeland Security, and USAID.

  Sources: http://bit.ly/2ydf6uS; http://on.cfr.org/2ylZ4P1

• United States formulates rules to jeopardize women’s access to contraception

  The US administration issued two rules endangering women’s access to affordable contraception. The first rule offers an exemption to employers to facilitate access to contraception based on religious beliefs (an allowance already instated for religious employers); the second provides a similar allowance to both for and non-profits organizations and universities for “moral convictions”. These rules essentially reverse the Affordable Care Act (ACA) established under the previous President’s administration, which required insurance coverage to include contraception. The interim final rules become effective immediately upon publication.

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

• Child sex offenders to be named as such in US passports

  Registered child sex offenders in the US will now have to acquire passports that would identify them for their previous crimes when travelling overseas. The US State Department will revoke the passports of registered sex offenders; they will then be required to apply for a new passport which would carry a “unique identifier” of their status.The State Department said the language in the passports “will not prevent covered sex offenders from departing the United States, nor will it affect the validity of their passports.”  The move has drawn severe criticism as this change will limit the ability of those affected to lawfully travel abroad.

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

• The United States Court of Appeals refuses to reconsider anti-LGBT law

  The 5^th United States Circuit Court of Appeals refused a recommendation to reconsider challenges to bill HB1523, also known as the Religious Beliefs Accommodations Act, which was passed in Mississippi and advocates for increased legal protection for three religious beliefs: marriage is between a woman and a man, non-heterosexual relations should be condemned, and gender identity must correspond to birth-given sex indicator.The law grants special rights to individuals who hold these convictions and explicitly permits discrimination against LGBTQ people should their religion demand. The court upheld the law on the grounds of respecting the right to freedom of religion, and lack of standing as the plaintiffs could not show any real incidents of discrimination based upon the bill.  The plaintiffs who initially sought Court of Appeal reconsideration of the bill will now move to the Supreme Court to rule on the bill’s constitutionality. Should the Supreme Court deny review, HB1523 will come into effect.

  Barber v. Bryant No. 16-60477, No. 16-60478

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

• 7th Circuit Court upholds Chicago’s public-nudity law against bare-chested women

  The Seventh US Circuit Court of Appeals has preliminarily dismissed an appeal against the public-nudity law of Chicago, which bans women from exposing their breasts in public, except when breastfeeding. The plaintiff, woman who had gone topless during a protest, had been fined $100 for violating the law. Her challenge to the law was dismissed by a 2:1 majority on the grounds that going topless by itself did not communicate protest, and thus was not protected by freedom of speech laws. The law was not considered discriminatory, as according to the judges in majority, it merely prevented the exposure of body parts traditionally considered intimate and erogenous. That the list of such body parts was longer for women than for men did not by itself make the law discriminatory. The dissent in this judgment is significant for decrying sexualisation of women’s body’s and using tradition and moral values in support of a law that discriminates on the basis of sex and gender, even though it was technically limited to the court’s decision to prematurely dismiss the suit.

  Tagami v City of Chicago et al, 7th U.S. Circuit Court of Appeals, No. 16-1441

  Source:http://bit.ly/2hyGw8q

• Quebec passes Bill 62 that bans face veil

  The province of Quebec in Canada has passed a contentious law that would make it illegal for Muslim women, and other individuals, who cover their faces to receive public services, including riding public buses. The legislation on religious neutrality also known as Bill 52 was passed with a margin of 65-51 and will require citizens to uncover their faces in order to avail or give public services. It applies to all provincial and municipal employees including doctors, nurses, teachers, daycare workers and public transit workers. The law has received serious criticism from Muslim women living in the province who feel “targeted” by the establishment.

  Source: http://bit.ly/2yqFO3x

• President of Chile introduces bill to legalize same-sex marriage

  On August 28^th, 2017, the President of Chile introduced to Congress a bill which will legalize marriage between same-sex partners. This legislation is a development from the 2015 congress approval of same-sex civil unions. The President advocated for the bill stating that it is,“not ethical nor fair to put artificial limits on love”. The President has further pledged to bring a fully-drafted marriage bill to legislators by the end of 2017. It is not clear if the gay marriage bill will pass through congress before the end of her term in March 2018.

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

• Brazilian Court overrules resolution that prohibited ‘conversion’ therapy on LGBT individuals

  A Brazilian court has overturned the 1999 decision by the Federal Council of Psychology to prohibit “conversion” therapies intended to ‘cure’ LGBT individuals. The court ruled in the favour of an action brought by a psychologist who was stripped of her license in 2016 for describing homosexuality as a “disease” and for offering discredited and inhumane treatments for LGBT people. The ruling approves “conversion therapy” and advocates for further research into the practice. The Federal Council of Psychology released a statement confirming that they will legally contest this decision as it “opens the dangerous possibility of the use of sexual reversion therapies”.

  Sources: http://bit.ly/2yWYtlq; http://bit.ly/2hgzvVM

• Minors can officially change their gender, holds Columbia Constitutional Court

  In a case of a 17 year old trans male, the Constitutional Court of Columbia ruled that a minor may update their gender identification on official documents, under certain circumstances. The individual in focus resides in the United States with his family and sought to change his gender marker to correspond with his gender identity for his US citizenship applications. The Supreme Court responded to the request stating that gender transition changes applied to official documentation can only be done at the legal age. In contrast, the Constitutional Court acknowledged the gender transition and approved the individual’s request for updated sex markings on his certificates. This was the first case of gender identity change by a transgender in the country.

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

• Mexico formulates “code of conduct” to mitigate discrimination based on SOGI

  Mexico’s Ministry of Health recently established specific guidelines for all health care providers across the country to ensure respectable and equitable treatment of the LGBTI community. The code of conduct is the product of a broad participatory process that incorporated government health structures as well as representatives of civil society and the LGBTI community. The code of conduct mandates a zero-tolerance policy for discrimination in health centers and for the promotion of LGBTI-focused sexual and reproductive health campaigns. It also provides training programs for health care providers in public health facilities in order for them to provide respectful and anti-discriminatory treatment to LGBTI patients.

  Source: http://bit.ly/2yeJu9g

• Tasmania votes to expunge historical convictions of same-sex and transgender activity

  The Upper House of Tasmanian Parliament unanimously passed legislation to expunge the record of those convicted of same-sex activity and ‘cross-dressing’ under historical laws. Many in the chamber offered apologies to the individuals and families impacted by the previous laws criminalizing LGBT activities. Under the new legislation, individuals may apply to the Justice Department for the clearing their criminal record. The bill, however, does not acknowledge those offences which may have been committed as a response to police discrimination under the historical laws.

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

• Australia introduces legislation to criminalize SOGI based intimidation

  The Australian government proposed emergency laws which ban discrimination, vilification, or intimidation of any person during and in respect to the same-sex marriage campaign. The special provisions come in the wake of social disturbances based on the marriage-equality plebiscite and seek to protect against harm based on sexuality, gender identity, intersex status, religious conviction, or political stance. The law permits civil penalties, including fines but excluding criminal penalties or jail time. The emergency law will hold until the conclusion of the same-sex marriage postal survey at the end of November.

  Sources:http://bit.ly/2gW2YrL;http://bit.ly/2xWSxaz

• Northern Irish women not entitled to free abortion services, holds UKSC

  The Supreme Court of United Kingdom has, by a 3:2 majority, held that the Secretary of State for Health’s failure to provide access to Northern Irish to free abortion services under the English National Health Service (NHS) was not unlawful, as the Secretary was entitled to take into account Northern Ireland’s democratic decision to not fund abortion services. Based on a disturbing interpretation, the Court  held that  differential treatment of the citizens of UK residing in Northern Ireland was not in violation of the human rights arising from the European Convention on Human Rights. This interpretation essentially calls to question whether suspension of fundamental human rights of a section of citizens will be upheld by Courts on the grounds that it has popular majoritarian support.

  R v. Secretary of State for Health, [2017] UKSC 41

  Source: http://bit.ly/2ruB4ap

• UK Government rejects proposals to increase number of female MPs in House of Commons

  The UK Government recently rejected six separate proposals by the Commons’ Women and Equalities Committee, including a legislation mandating a minimum female parliamentary participation rate of 45% in general elections, 45% female representation in parliament and local government by 2030, and the requirement of parties to make public their parliamentary candidate diversity data. Men currently occupy 70% of the MPs in parliament. The government responded to criticism by stating that while an increase in female representation in parliament is important, legislation and regulatory burdens on political parties are not the means by which one is to achieve this goal.

  Source: http://bit.ly/2zR2eb9

• UK Court of Appeal declares gender segregation in schools unlawful sex discrimination

  In a landmark judgment, the Court of Appeals, UK has held that sex-segregation of school children is violative of the Equality Act, and therefore unlawful. The Equality Act 2010 (“EA 2010”) prohibits discrimination, including on the basis of sex, by a school against a pupil in the way it provides education for the pupil and in the way it affords the pupil access to a benefit, facility or service. The Court held that a voluntary-aided faith school’s policy of completely segregating boys and girls from the age of 9 was discriminatory as it had an adverse impact on the quality and effectiveness of the education given by the school to both the girls and boy pupils respectively.

  HM Chief Inspector of Education, Children’s Services and Skills -v- The Interim Executive Board of Al-Hijrah School[2017] EWCA Civ 1426

  Source: http://bit.ly/2z5fdFO

• EU Declaration on prevention of FGM and forced marriage

  EU’s Steering Committee for Human Rights has released a declaration on the need for intensification of efforts to prevent and combat female genital mutilation and forced marriage. The declaration calls upon member states to criminalise female genital mutilation and forced marriage irrespective of religious beliefs, formulate legislation and programmes which enable reporting of cases and provide a full range of prevention and protection measures. The declaration also calls for recognition of female genital mutilation and forced marriage as grounds for international protection.

  Source: http://bit.ly/2xP6Pdl

• ECHR upholds Romanian law that allows stay of prison sentence for mothers, but not fathers

  The European Court of Human Rights has held that differential treatment of male and female convicts in the stay of execution of their prison sentences on the grounds of parenthood is not discriminatory. In this case, the application for a stay of execution of prison sentence of the applicant, the father of a child under the age of one, was rejected by Romanian courts as this ground for stay was only available to women. In his appeal to the ECHR, it was held that exclusion of men from this provision was not discriminatory as there was a reasonable relation between the specific characteristics of early motherhood and safeguarding the best interests of the child.

  Alexandru Enache v. RomaniaECHR 292 (2017)

  Source: http://bit.ly/2hwUm8f

• Austria bans women from wearing face veils in public places, becomes fifth European country to do so

  The Austrian legislature has enacted a new law to ban the use of niqabs and burqas. Although the law bans all face coverings, including scarves, it has been widely understood as targeting Muslim women. The ban also imposes a hefty fine of Euro 175 for every violation. Austria is the fifth European country to ban the burqa, after Belgium, Bulgaria, France and Switzerland. Although burqa bans have been widely criticized for being discriminatory, the Belgian ban on burqas in workplaces was recently upheld by the ECHR.

  Source: http://bit.ly/2fHPn6W

• Finland refuses revision of ‘Trans Act’, mandates sterilization as pre-requisite to changing gender identity

  The Finnish government rejected the recommendations made by the UN  Human Rights Council to reform the ‘Trans Act’. The current law mandates that those wishing to legally change their gender identity status must undergo forced sterilization and mental screening. The UNHRC recommendations included revision of the Trans Act by abolition the needs for sterilization or other medical treatment or diagnoses, and development a transparent and efficient gender recognition procedure. Both recommendations were rejected.

  Source: http://bit.ly/2gU4hHQ

• Malta introduces third gender marker in official documents

  The Maltese Minister for European Affairs and Equality, alongside Parliamentary Secretary for Reforms, Citizenship and Simplification of Administrative Processes announced that citizens of Malta may now apply to have their gender identity marked as “X” on all official documentation, including passports, identity cards, and residence permits. Those wishing to change their identity marker must take an oath before a notary; this is the only requirement. Malta is the second European Union member state to introduce this option for its citizens in an effort to move towards greater equality. The “X” option became possible after the approval of the LGBTIQ Action Plan 2015 by the Maltese Cabinet.

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

• Greece adopts new law to permit change of gender status

  Amidst strong opposition from the Greek Orthodox Church, the Greek government passed a legislation that will enable its citizens to determine and change their gender identity legally on all official documents without the need for psychiatric evaluation or medical intervention. The law will allow trans individuals to affirm their desired gender identity from the age of 15 and is aimed at squarely ending the marginalization of people whose perceived gender identity did not correspond with that assigned at birth.

  Source: http://bit.ly/2yYl3Zy

Asia

• Supreme Court of Nepal allows Nepali citizens to change their birth-assigned sex.

  The Supreme Court of Nepal issued a ruling which enables Nepali citizens to apply for their citizenship documents to reflect their gender identity rather than birth-assigned sex identity. The Supreme Court reaffirmed article 12 of the Constitution, ensuring citizenship on the basis of identity. The Court also asserted their support of individuals with different sexual orientation to live freely in accordance with their identity. The legislation will need to be followed by separate laws for the amendment of gender on all official documentation and educational certificates.

  Source: http://bit.ly/2xang4r

• Philippines House passes the SOGIE Equality Bill.

  The Philippines House of Representatives approved the SOGIE Equality Bill on its second reading, advancing the legality of the measure to criminalize and penalize discrimination based on sexual orientation, gender identity, or expression (SOGIE). The bill cites 15 forms of discrimination action including denial of access to public, health, or education services, harassment of any kind including over social media, or forced psychological examinations to alter one’s SOGIE. The bill mandates a minimum fine of P100,000 and potential jail time.

  Source: http://bit.ly/2zQk9in

• Indonesia accepts two UN recommendations for upholding LGBT rights, but seeks to outlaw their representation on television

  Indonesia has accepted two recommendations made during its universal periodic review regarding LGBT rights. The recommendations pertain to ensuring a safe and enabling environment for all human rights defenders, and implementing freedom of expression, association, and assembly with an emphasis on non-discrimination, especially for LGBT people.

  Yet, a proposed draft bill seeks to  outlaw the use of LGBT representation or characters on television The bill subjects every public broadcast on the subject to be approved by  an external censorship body and .If passed, such a law will drastically reduce reporting, documentaries, and films with any connection to LGBT subject matter.

  Source: http://bit.ly/2zZEvGN; http://bit.ly/2iJ1QbF

• Saudi Arabia permits women to drive, enter stadiums; access to essentials still limited

  The Saudi King has issued decrees legalizing driving of cars by Saudi women, and permitting them to enter sports stadiums. The former decree orders the creation of a ministerial body for the purposes of implementation, and stipulates the necessity of applying these changes in a manner compliant with Sharia standards. The latter decree will open three previously male-only venues at Riyadh, Jeddah, and Dammam to families.These amendments come as part of several initiatives of the kingdom to increase access to public spaces for women through modernizing reforms, though not without opposition from influential clerics. The decision is in line with the Crown Prince’s ambitious vision of bringing in significant reforms to the country. Although the kingdom appears to be relaxing some norms as part of its sweeping “Vision 2030” plan for bringing in significant economic and social reforms, the guardianship system for adult women remains in place, limiting their unfettered access to obtaining travel documents, accessing healthcare, etc.

  Sources: http://bit.ly/2ydpNP3; http://bit.ly/2gNw5Ko

• Myanmar set to introduce draft law on gender based violence, in Parliament

  A new law to punish gender based violence has been drafted, and is set to be introduced in the current session of the Burmese Parliament. The law, called the Prevention and Protection of Violence against Women Bill carries a broad definition of violence, which includes domestic violence, marital rape, sexual violence, harassment and assault in the workplace and in public places. The bill carries a life sentence for rape of girls under the age of 18 and disabled women, and significantly, also seeks to criminalise marital rape, although punishable with a lesser sentence.

  Source: http://bit.ly/2yRikV0; http://bit.ly/2huhJ1T

• Pakistan rejects proposal to raise minimum age of marriage to 18

  On the United Nations International Day of the Girl, the Pakistani Senate rejected a bill to raise the minimum age for a woman to legally marry from 16 to 18 on the basis that it was “un-Islamic” and “contrary to Islamic injunctions”. The bill was intended to combat the frequent marriages between girls as young as 10 years old with significantly older men. Such unions not only jeopardize the physical safety and well-being of the young girls but also deprive them of education and the right to self-determination. The bill stated that the leading cause of death for girls aged 15-18 years is pregnancy.

  Sources: http://bit.ly/2ykSAzP;http://bit.ly/2xI7k9b

• Turkey mulls ban on surrogacy, restrictions on other ART

  The Turkish government has proposed a draft law that seeks to ban surrogacy by Turkish citizens, including abroad, and also seeks to prohibit “mediation,” “assistance,” “encouragement” or “advertisement” for the same.  The draft law also seeks to outlaw in vitro fertilisation unless the couple is married and cannot reproduce biologically. Discussions around Assisted Reproductive Technology have had a controversial history in Turkey, with religious hardliners arguing against it on the grounds that it contains elements of adultery and polygamy.

  Sources:http://bit.ly/2A8VpCP; http://bit.ly/2xOgz7S

• Hong Kong Court of Appeal allows grant of spousal visa to homosexual woman

  In a unanimous decision, the Hong Kong Court of Appeal has held that the Immigration Department’s refusal to recognize the UK civil partnership of a homosexual woman and grant her visa was unlawful and amounted to indirect discrimination on the basis of sexual orientation, gender, and the nature of the relationship between the spouses. However, as same-sex marriages are not recognized in Hong Kong, the Court emphasized that granting a dependent visa to the woman must not be read as an official validation of same-sex unions.

  Source: http://bit.ly/2wil9KG

• First non-Muslim Chief Justice of Bangladesh resigns amid speculations of executive interference

  The first non-Muslim Chief Justice of Bangladesh,Surendra Kumar Sinha, has resigned, purportedly under pressure from the executive, after he led the Supreme Court to a landmark verdict on judicial oversight and declared that the law passed by the Parliament that empowered the legislature to investigate and remove judges for incapacity and misconduct, was unconstitutional. A few days before his resignation, the former Chief Justice had been accused of money laundering and corruption, resulting in his sudden departure from the country. The developments in Bangladesh bode serious concerns about the independence of its judiciary.

  Source:http://bit.ly/2zcekA2

 UN Updates

• 36th session of the HRC adopts resolution to condemn use of death penalty for several crimes including consensual same-sex relations

  Chaired by Benin, Belgium, Costa Rica, France, Mexico, Republic of Moldova, Mongolia, and Switzerland, the HRC adopted a resolution advancing equality and non-discrimination in the application of death penalty, particularly in the domain of adultery and same-sex relations. This is the first mention of adultery in any UN resolution, either by the HRC or the General Assembly. The council expressed serious concern that the death penalty is disproportionately applied to women, economically disenfranchised, and other vulnerable populations. The United States voted against this resolution despite previous national support of antidiscrimination resolutions.

  Source: http://bit.ly/2gVc4VG

• SR on violence against women releases report on adequacy of the international legal framework on violence against women

  The Special Rapporteur on violence against women has released a report on the adequacy of the international legal framework on violence against women. The report explores the causes and consequences of sexual violence and undertakes an analysis of the international legal framework on the same, and addresses the debate on the merits of introducing anew legal instrument. While appreciating the premise of the legal framework that violence against women is an extreme form of discrimination and a human rights violation, and commending the adoption of general recommendation No. 35, the SR acknowledges that the current legal framework is complex, fragmented and in some ways convoluted in its application, including with regard to its implementation at the regional and national levels. At the same time, she warns that adoption of a new legal instrument may result in isolation of legal provisions from the structural causes of discrimination against women.

  Access report here.

• SR on rights of people with disabilities releases report on the challenges faced by girls and young women with disabilities in relation to SRHR

  The Special Rapporteur on rights of people with disabilities has released a report on the challenges faced by girls and young women with disabilities with respect to sexual and reproductive health and rights. The report calls for putting an end to forced sterilization and other procedures that infringe up on sexual and reproductive integrity of girls and young women with disabilities. The report highlights the manner in which sterilization, hysterectomies and estrogen treatments were carried out against their will at the request and with the consent of judges, healthcare professionals, family members or legal guardians. The report placed emphasis on the need to make sex education and health services accessible to all women and girls with disabilities in order to promote feelings of control and facilitate autonomous decision-making among girls and young women with disabilities.

  Access report here.

• The report of SR in the field of cultural rights expands on impact of fundamentalism and extremism on the cultural rights of women

  The Special Rapporteur in the field of cultural rights has released her second report on the impact of fundamentalism and extremism on the enjoyment of cultural rights of women. The report calls attention to cultural rights and equality of women, that are routinely violated through imposition of strict dress codes, restrictions on reproductive rights, and the right of girls to education. In the context of India, the report covers targeting of women writers, artists and rationalists, cow related lynchings, regulation of women’s mobility and dress as well as love jihad; as well as resistance movements like #NotInMyName.

  The report draws attention to the manner in which sanctions on funding for modern contraceptives and opposition to use of condoms “places a certain ideology above the well-being of women”. It expresses concerns about “imposition of dress codes” as this promotes the idea of women being stereotypically subordinate in the society, with limited control over their bodily autonomy. The report calls for promoting a culture of women’s equality and dignity, and calls upon states to prevent cultural rights violations by prohibiting funding of extremist groups, repeal discriminatory laws, and remove obstacles to functioning of civil society organisations.

  Access report here.

• UNESCWA releases study on intimate partner violence

  The UN Economic and Social Commission for Western Asia recently released a study exploring intimate partner violence with particular focus on its economic impact. The study is focused in the Arab region and provides an evidence-based, comprehensive understanding of the human rights and socio-economic impact of intimate partner violence. In particular, the study explores links between IPV with social, cultural, economic, and health factors. The study acknowledges the continuum of forms of violence which include violence in private and public spaces, by husbands and other family and community members and State actors.

  Source: http://bit.ly/2z3LOgB

  Access the study here.

• UN Experts propose plan to end harmful practices related to witchcraft

  Over 100 United Nations officials collaborated with international experts in Geneva to establish effective means of combating human rights violations related to witchcraft. Officials advocated that measures must be comprehensive while enshrining inalienable human rights. Examples of concrete measures discussed include strengthened data collection, grassroots collaboration with traditional health practitioners, and the regulation of “independent faith-based practices”. The approach will integrate legislative action with the improvement of socio-economic livelihoods and significant community engagement. The initiative is a part of the larger UN action plan to end all forms of violence against women under the 2030 Agenda for Sustainable Development.

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

• WHO releases guidelines for healthcare workers on responding to sexual violence

  WHO has released guidelines to enable health care providers respond effectively to children and adolescents (up to 18 years of age) who have been sexually abused (including sexual assault and rape) with compassionate and respectful care.  A 2011 study estimated that 18% of girls, and 8% of boys worldwide have experienced sexual abuse. The guidelines recommend that healthcare providers place the best interests of children and adolescents first by assessing and promoting their safety; ensuring confidentiality and privacy; offering choices in provision of care; respecting their autonomy and wishes; and addressing the specific needs of boys and girls with additional vulnerabilities, such as LGBTI adolescents, children and adolescents with disabilities, and those from low socio-economic groups and indigenous populations, and ensuring provision of care to them without discrimination.

  Source: http://bit.ly/2hbelJl; http://bit.ly/2y4AleB.

• Equal Pay International Coalition (EPIC) launched

  The International Labor Organization, UN Women, and Organization for Economic Cooperation and Development have launched the Equal Pay International Coalition (EPIC). With a vision to achieve gender equality at workplace, EPIC will act as a multi-stakeholder coalition to contribute to the realization of target 8.5 of the Sustainable Development Goals i.e. to achieve equal pay between women and men for work of equal value by 2030.In an ILO-Gallup world survey, it was found that women across the world, irrespective of regions, sectors or countries were paid less than men. The Coalition aims to multiply the outreach and impact of existing partnerships and “achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value” by 2030.

  Source:http://bit.ly/2xsDJ6w

 National Updates

National Judgments/ Orders

High Courts and Tribunals

• Punjab and Haryana High Court suspends sentence for rape on the grounds of promiscuity of the victim, grants bail to 3 convicts

  The Punjab and Haryana High Court has suspended the sentence of three persons convicted of aggravated rape, gang rape, criminal conspiracy, criminal intimidation, and obscenity, and has granted them bail, on the grounds that the facts of the case spoke to an alternative story of a casual relationship with friends, which had taken an unfortunate turn due to the promiscuity of the victim and the voyeuristic tendencies of all parties involved, including the victim. The bail order has been widely criticized for disparaging the character of the victim, blaming her for the sexual assaults, and flouting procedural norms by going into the merits of the case in an application for suspension of sentence. The appeal of the convicts against the Trial Court judgement is pending before the Court.

  Vikas Garg and Ors v. State of Haryana [Cr.M.No.23962 of 2017; Cr.M.No.26910-11 of 2017; Cr.M.No.26930 of 2017]

  Source: http://bit.ly/2h61hYR

• Vodafone fined for violation of Supreme Court’s Vishakha guidelines

  The Bombay High Court has imposed a fine of Rs. 50,000 on the company Vodafone for failing to constitute a complaints committee in accordance with the Supreme Court’s guidelines in the case of Vishakha v. State of Rajasthan in the year 1997. The quantum of the fine is analogous to the amount that the company would have been required to pay under the Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 for not constituting an Internal Committee.

  Renuka Mukherjee v. Vodafone W.P. No. 1348 of 2001 (High Court of Bombay)

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

• Jharkhand and Bombay High Courts adopt opposing views on second and third trimester abortions

  The Jharkhand High Court has held that medical termination of pregnancy after the statutorily stipulated twenty week period is permissible in cases where carrying the pregnancy to term would harm the mental health of the pregnant woman. In doing so, the Court has adopted a wide interpretation of Sec. 5 of the Medical Termination of Pregnancy Act, which permits abortion after 20 weeks in cases where the pregnancy poses a threat to the life of the woman. In this case, a 15 year old had approached the court for termination of a pregnancy resulting from sexual assault. Considering the social repercussions and trauma that the girl may have faced as a result of the sexual assault and pregnancy, and in view of medical opinion that termination did not pose a risk to her life, the Court allowed the girl’s petition.

  The Bombay High Court, however, has adopted the opposite view in a similar case. In that case, a minor girl’s father approached the court for abortion of a 27 week old foetus on the grounds that the foetus was a conception of rape, and carrying the pregnancy to term would cause grave injury to the girl. However, the court refused to allow the petition given the medical boards opinion that no abnormality was detected in the then viable foetus, and the girl should be directed to continue the pregnancy with obstetric and psychological support.

  Minor through her mother v. State of Jharkhand W.P. ( Cr.) No. 399 of 2017 (High Court Jharkhand); Danbahadur Rajkaram Yadav v. State of Maharashtra and Anr. W.P. No. 3874/2017 (High Court of Bombay)

  Sources: http://bit.ly/2infNIy; http://bit.ly/2gh56tY

• Delhi High Court issues notice to JNU, UGC in GS CASH case

  The Delhi High Court has issued notice to Jawaharlal Nehru University and the University Grants Commission in a petition filed by some teachers of JNU against the disbanding of GS CASH. GS CASH, the University’s Committee for entertaining complaints of sexual harassment, was replaced with an Internal Complaints Committee vide an administrative decision. As students and teachers protested against the order, ‘Saksham Taskforce,’ appointed by the UGC to ensure gender sensitisation in Universities questioned this decision, given that GS CASH was fully compliant with the guidelines laid down by the Supreme Court in the case of Vishakha and Ors. v. State of Rajasthan. The Court has also directed that the office of the GS CASH should remain sealed during the pendency of the proceedings.

  Madhu Shani And Ors. vs.   Jawaharlal Nehru University and Anr. W.P.(C)8446/2017 (High Court of Delhi)

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

• Kerala High Court warns against branding all inter-religious marriages as ‘love jihad,’ sets girl at liberty to join husband

  A division bench of the Kerala High Court has warned against the branding of every inter-faith marriage as ‘love jihad.’ In this case the love marriage of a Hindu woman and a Muslim man, which was staunchly opposed by the girl’s parents, resulted in the lower courts handing over the custody of the woman to her parents, who then forced her to stay in a re-conversion centre. She described the violent practices prevalent in re-conversion centres. The court directed that she be set at liberty to join her husband, and directed the closure of all forced conversion and re-conversion centres.

  Anees Hameed v. State of Kerala W.P. (Crl.).No. 313 of 2017 (High Court of Kerala)

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

Supreme Court

• Minor wife can prosecute husband for rape, holds Supreme Court

  In a PIL seeking harmonization of the sexual assault laws under POCSO and IPC, the Supreme Court has held that a minor wife can prosecute her husband for rape. This judgment allows non-consensual sex with a wife under 18 years of age to be prosecuted as rape, thus aligning the provisions on statutory rape with marital rape.  Consequently, the marital rape exception to Sec. 375 of the IPC is now applicable only to adult married women.

  Independent Thought v. Union of India and Anr. W.P. (C) No. 382/2013

  Source: http://bit.ly/2gViwIK; http://bit.ly/2gViwIK

• Six month cooling off period for mutual consent divorce directory, not mandatory, holds SC

  The Supreme Court has held that the cooling off period of six months that a married couple seeking a divorce by mutual consent is required to wait for under the Hindu Marriage Act, is merely directory, and not mandatory. Family Court judges can now waive this period provided that the parties have been living separately for a year before applying for divorce, and all efforts for reconciliation have failed. The cooling off period of six months was incorporated as a pre-condition to mutual consent divorce to enable reconciliation of the parties, and has been criticized for unduly delaying relief to parties, with the misplaced objective of preserving the institution of marriage.

  Amardeep Singh v. Harveen Kaur C.A. No. 11158/2017

  Source: http://bit.ly/2zbeC92

• SC refers Sabrimala case to constitutional bench

  The Supreme Court has referred the case on entry of women aged 10 to 50 years to the Ayyappa temple in Sabrimala, Kerala, to a constitutional bench. The constitutional bench has been referred five questions for determination, including whether the practice of excluding the female gender from entry to the temple amounts to violative of equal protection under the Constitution, and whether such a practice can be defended as an essential religious practice under the right to freely profess, propagate and practice ones religion. Women aged 10 to 50 years have traditionally been prohibited from entering the Hindu temple, primarily because of the impurity associated with menstruating women. By making temple entry a question of constitutionally guaranteed rights, including the right against untouchability guaranteed under Article 17, the Court has recognised that the treatment of menstruating women may be akin to caste-based discrimination.

  Indian Young Lawyers Association and Ors. v. State of Kerala and Ors. W.P. (C) NO. 373/2006

  Source: http://bit.ly/2z7ht2Z; http://bit.ly/2yZLTFv

• Supreme Court directs appearance of Hadiya in Court to assess consent

  As reported in the IIIrd edition of this year’s newsletter, the decision of the Kerala High Court to annul the marriage of two adults on the grounds that the husband, a Muslim, had enticed a 24 year old adult woman, a Hindu, into marriage, had been challenged in a special leave petition before the Supreme Court. Initially, the Supreme Court had admitted the petition in order to investigate the circumstances in which the marriage occurred, and had also ordered a National Investigation Agency probe into the matter, lending credibility to the widely criticised theory of ‘love jihad.’ However, upon insistence of the petitioner’s counsel, the court agreed to hear Hadiya in person, and ordered her father, who currently has her custody, to produce her in Court.

  Shafin Jahan v. Asokan K.M. and Ors. SLP (Crl.) No. 5777/2017 (Supreme Court of India)

National News

• Ministry of Health and Family Welfare publishes draft rules under Mental Healthcare Act

  Ministry of Health and Family Welfare has issued draft Rules and Regulations under the Mental Healthcare Act, 2017. Apart from stating the procedure for registration of mental health establishments, method of constitution of the Mental Health Review Boards, the rules delegate the responsibility of setting up half-way homes, sheltered accommodations, supported accommodations, hospitals and rehabilitation establishments to State governments, in accordance with the standards laid down in the Rules. They also state the procedure for accessing one’s medical records.

  Sources: http://bit.ly/2iKXAbu; http://bit.ly/2zZGjiS

• Madhya Pradesh government offers Rs 2 lakh to those who marry a widow to encourage widow remarriage

  In a bid to endorse widow remarriage, the Madhya Pradesh government has proposed a first of its kind initiative to offer Rs. 2 lakh to those who marry a widow. The MP government is offering a monetary incentive for those who marry a widow between the age of 18-45 years, given that it must be the man’s first marriage and the couple registers their marriage in the District Collectorate.  Earlier in July, the Supreme Court had directed the Centre to frame a policy to encourage widow remarriage.

  Source: http://bit.ly/2yVVB8j

• Bombay High Court directs a 3-member Committee to be set-up to assess the modified Manodhairya scheme

  Bombay High Court directed a 3-member Committee to be set up to look into the changes made to the Manodhairya scheme by Maharashtra government in August this year. The said scheme provides compensation for victims of sexual assault and acid attack. Under the changes made to the scheme, the amount of compensation to the victims was raised from Rs. 3 lakh to Rs. 10 lakh. However, Aadhar card has been mandatory to avail compensation and only 25 per cent of the amount will be given to the victim and the remaining 75 per cent will be kept in fixed deposit for 10 years. In case the victim is a minor, the period of fixed deposit will be 20 years. Clearly, the modifications made to the scheme fail to take into account the insufficiency of the initial compensation given, for covering all the medical and legal expenditures. The Committee will be responsible for recording the opinions and suggestions of all the stakeholders, including NGOs that are working this area, and come up with a model scheme for compensation to these victims.

  Source:http://bit.ly/2zWx5mN

• Himachal Pradesh and Odisha join Punjab, Haryana, Jharkhand and Meghalaya in the implementing the Anand Marriage Act

  The Delhi Sikh Gurudwara Committee has announced that Odisha and Himachal Pradesh have become the latest states to implement the Anand Marriage Act, joining Punjab, Haryana, Jharkhand and Meghalaya. The Anand Marriage Act was enacted in 1909 by the British Imperial Legislative Council to legally recognise the marriage ceremony Anand Karaj, practiced among Sikhs. The Parliament had passed the Anand Marriage (Amendment) Bill in 2012 which allowed Sikhs to register their marriages under the Anand Marriage Act instead of the Hindu Marriage Act of 1955.

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

• ILO defends modern-slavery figures sought to be discredited by India

  The International Labour Organisation has defended its statistics on modern slavery in the Asia-Pacific, after reports that the Intelligence Bureau had advised the Prime Minister’s office to discredit them, for fear that they may affect India’s exports. The ILO’s report on global estimates of modern slavery states that the Asia-Pacific region has the highest share of victims, accounting for 73 per cent of victims of forced sexual exploitation, 68 per cent of those forced to work by state authorities, 64 per cent of those in forced labour exploitation, and 42 per cent of all those in forced marriages. While the report doesn’t provide country-specific data and findings, subsequent research has shown that Indian has the largest number of modern slaves in the world.

  Source:  http://bit.ly/2ie7gs4