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Bi-Monthly Legal News[Vol. No. 10(VI) November-December, 2017]

 Resources

  • Prajnya releases report on gender violence in India

    The 4th public report by Prajnya, titled “Gender Violence in India,” takes stock of various different forms of violence against women in India using NCRB data, government reports, case laws, academic and scholarly research and other resources, to highlight the need for more systematic monitoring and data collection related to crimes against women. The report is intended to be read as a ready reckoner and a beginner’s handbook.

    Source: bit.ly/2A7Adak

  • World Bank and Save the Children release brief on limitations of laws addressing child marriage

    The brief summarizes findings from respective undertaken by the World Bank and Save the Children on the lack of legal protection against child marriage for girls. The analysis suggests that many countries not only fail to provide effective legal protection against marriage, but also that legal reforms are not sufficient to end the practice. The brief calls for additional interventions to prevent the same, such as expanding access to education and other opportunities.

    Source: bit.ly/2j6XHuV

  • Centre on the Death Penalty releases report on perceptions of retired judges on death penalty

    In a first of its kind report, ‘Matters of Judgment’ maps understandings of the rarest of the rare doctrine among 60 former judges, to get insights into the manner in which judicial discretion is exercised. The study analyses the reasons for the retention and abolition of death penalty, and maps the juridical discourse on death penalty. The study concludes that the sentencing structure in India falls short of fair trial requirements that have been established in other retentionist jurisdictions. The study calls for further scrutiny of sentencing practices.

    http://bit.ly/2rgeaUP

  • Report on sexual and reproductive health of adolescents in Bangladesh by Population Council

    In its report titled ‘Adolescents in Bangladesh: A Situation Analysis of Programmatic Approaches to Sexual and Reproductive Health Education and Services,’ the Population Council presents a comprehensive review of the status of sexual and reproductive health of adolescents in Bangladesh. The report concludes that stigmatisation of sexual and reproductive issues has a significant impact on their overall health and well-being, as adolescents in Bangladesh often enter their reproductive years poorly informed about SRH issues, without adequate access to SRH-related information or services. The report recommends the adoption of multi-faceted and age-appropriate programmes to enhance access to information and services, and also calls for more comprehensive evidence collection on the effectiveness of community interventions.

    http://bit.ly/2DdLUYc

  • Report by Human Rights Watch reveals gross human rights violations against LGBT individuals and forced conversion therapy in China

    The HRW report titled ‘“Have You Considered Your Parents’ Happiness?”: Conversion Therapy Against LGBT People in China’ highlights the prevalent practices of public hospitals and private clinics offering “conversion therapy,” which aims to change an individual’s sexual orientation from homosexual or bisexual to heterosexual, based on the false assumption that homosexuality is a medical or mental disorder that needs to be remedied. The report documents multiple abusive aspects of conversion therapy, including coercion and threats, physical abduction, arbitrary confinement, forced medication and injection, and use of electroshocks. The report expresses concern about the lack of laws protecting individuals with non-confirming sexual orientation or with non-binary gender identities.

    http://bit.ly/2yHDGAL

  • Transgender Europe releases report titled ‘the vicious circle of violence: trans and gender-diverse people, migration, and sex work’

    The report, in continuation with the Trans Murder Monitoring (TMM) project, pertains to the TMM data, collected since 2008, and focuses on trans and gender-diverse sex workers, broadly highlighting current trends contributing to the marginalization and exclusion of trans and sex worker communities, such as the criminalization of migration and sex work, the use of punitive approaches to tackling poverty, homelessness, and drug use, increasingly precarious living and working conditions, and growing racial, gender, and economic disparities all over the world.

    http://bit.ly/2DmwBvy

 International Updates

Beyond Asia

  • Quebec court partly suspends contentious face-veil ban

    A Canadian Court has suspended part of the controversial law that banned face coverings in the province of Quebec. The Supreme Court of Quebec suspended section 10 of Bill 62 that barred individuals from covering their faces while receiving or giving public services such as riding a public transport or visiting a doctor. The legal challenge filed civil liberties argued that Bill 62 is violative of the constitutional rights of Muslim women who would be forced to remove their religious coverings in order to receive public services and that it “directly infringes on the freedom of religion of individuals”. The groups also said the law will encourage xenophobia, harassment and discrimination. The Quebec government plans to release directives in order to accommodate religious beliefs under Bill 62 by next summer.

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

  • Ohio outlaws abortion of foetuses with Down’s syndrome

    The state of Ohio has recently enacted a law that would make the abortion of foetuses detected with Down’s syndrome illegal. The legislation also prescribes felony charges against physicians who perform the procedure, while exempting the woman from the same. The law, said to be in consonance with the state’s Down Syndrome Non-Discrimination Act, is expected to severely restrict access to abortion in the state, given that the syndrome is usually detected within 15-20 weeks of gestation. Many have argued that the law does nothing to support families taking care of members with Down’s syndrome and interferes with a woman’s ability to take a decision. A similar legislation in Indiana was struck down by a District Court Judge for being unconstitutional.

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

  • Vote in Brazil could lead to ban on abortion even for rape victims

    The proposed abortion ban under all circumstances (including rape and in cases where the mother’s life is in danger) is part of a constitutional amendment approved by a special congressional committee in November. The committee has to vote on the final text of the proposed amendment, before it goes to the full Chamber of Deputies for a vote. To become law and amend the Constitution, the legislation would need a super majority – or three-fifths of votes – in both houses of Congress, and the president’s signature. Currently the procedure is only allowed in the case of rape or if the pregnancy puts the mother’s life at risk. The proposal to constitutionally amend the law has brought forth massive protests by Brazilian women and civil society activists.

    Source: http://reut.rs/2lSdSNN

  • Egyptian parliament amends inheritance laws

    The Egyptian Parliament has passed a law guaranteeing women’s right to inheritance after over a year’s process on amending the 1943 inheritance law. Egyptian women for the longest time have been deprived of the right to inheritance due to patriarchal cultural norms and traditions, especially in the Upper Egypt region. Article 49 of the new law states that anyone who deliberately denies the heir, be it a man or a woman, their legal share of the inheritance or confiscates a document confirming this share, shall be jailed for six months at least and be subject to a fine. This step does not change the conception or application of the inheritance laws, but increases penalty for preventing inheritance to ensure enforcement. A majority of women in Upper Egypt and rural areas are denied this right despite their legal entitlement to inheritance.

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

  • Mauritania releases new ‘apostasy’ draft law

    Mauritania has proposed a new ‘Apostasy’ draft law that would make death penalty mandatory for the crime of “insulting” or “mocking” God, the Quran or the Prophet Muhammad. The approved draft legislation would eliminate the possibility under the current law, of substituting a prison term for death penalty if the offender repents promptly. Mauritania’s current penal code, in article 306, imposes the death penalty for apostasy but allows for a lighter penalty if the defendant repents. Mauritania has moved to strengthen a law criminalising apostasy and blasphemy, after a court in the West African nation ordered the release of a local blogger who faced the death penalty for allegedly criticising the Prophet Muhammad. An amendment to Article 306 of the country’s penal code will now see the death penalty applied to “every Muslim, man or woman, who ridicules or insults Allah”, his messenger, his teachings, or any of his prophets, “even if [the accused] repents”. Showing repentance will no longer prevent the death penalty from being applied for blasphemy and apostasy.

    Source: http://bit.ly/2EWlM1h

  • ECOWAS court passes first judgment on the Maputo Protocol in the Case of 4 Women vs. Nigeria

    The Economic Community of West African States (ECOWAS) Court passed the first judgement in the case of four women who were abducted and assaulted sexually, physically, verbally and unlawfully detained at different times between January 2011 and March 2013 at the hands of the Abuja Environmental Protection Board (AEPB) and other government agencies, such as the police and the military. They were arrested and accused of being prostitutes simply on the grounds that they were found on the streets at night. The Court held that these arrests to be unlawful and in violation of the freedom of liberty, noting that branding women as prostitutes constituted verbal abuse and violated their right to dignity. The Court found that there were multiple violations of articles of regional and international treaty law – the African Charter on Human and Peoples’ Rights, the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol), the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT); and the Universal Declaration of Human Rights (UDHR). This is the first time an international court has pronounced on violations of the Maputo Protocol.

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

  • President of Tanzania calls for arrest of pregnant schoolgirls

    Civil rights activists in Tanzania accused the government of “promoting a culture of human rights violations” after the President pardoned two men who had convicted for raping ten primary school children aged between six and eight years of age, along with thousands of other prisoners. The news of their release coincided with calls for the arrest of pregnant schoolgirls with the regional commissioner justifying the step as it will force the girls to testify against those who impregnated them. The president had earlier called for pregnant girls to be banned from schools.

    Source: http://bit.ly/2iW1gnC

  • European Parliament passes resolution on combating sexual harassment and abuse in the EU

    The European Parliament, by 580 votes to 10 and with 27 abstentions, adopted a resolution on combating sexual harassment and abuse in the EU. The Parliament condemned all forms of sexual violence and harassment, whether it be physical or psychological, and noting the fact that these acts are too easily tolerated. The Parliament also asked the Commission to submit a proposal for a directive against gender-based violence as well as a comprehensive EU strategy to resist the same. It highlighted the relevance of dedicated training and awareness-raising campaigns regarding existing formal protocol on reporting sexual harassment in the workplace, along with establishing procedures of accountability and active engagement of men for the purpose of prevention in response to the underreporting of sexual harassment.

    Further, sexual harassment within the Parliament itself was explored, by installing specific structures and internal rules to address the issue, including advisory committees that will handle complaints from both members and staff. Member States too were advised to evaluate the matter of sexual harassment in their own national parliaments.

    Source: http://bit.ly/2r9k75z

  • Austrian Supreme Court rules in favor of same-sex marriage

    Although civil partnerships have been allowed since 2010, the Constitutional Court of Austria termed the law barring same-sex marriage as unconstitutional. Same-sex marriage is likely to be legal from January 1, 2019. The ruling also allowed the couples involved in the challenge considered by the Court to marry immediately. The Court observed that “the distinction between marriage and civil partnership can no longer be maintained today without discriminating against same-sex couples”, and that allowing the two institutions to be separate implies an inherent inequality. Civil partnerships will, however, still be available and will soon be an option for heterosexual couples too.

    Source: http://bbc.in/2nwTUw7; https://ind.pn/2iSgQo9

  • Hungarian Ombuds finds rejection of lesbian woman’s application to adopt unlawful

    A report by the Commissioner for Fundamental Rights has found that the decision of Hungarian authorities to reject the adoption application of a same-sex couple amounted to unlawful discrimination based on sexual orientation. The two women’s application to adopt a 16-month-old Roma girl was rejected on the grounds that it would infringe upon the child’s right to protection and care.

    Hungary introduced recognition for same-sex couples in 1996 in the form of cohabitation, and since then has granted many rights that are available to heterosexual couples. Notable exceptions are parenting right’s such as access to assisted reproduction, second parent adoption, and joint adoption.

    Source: http://bit.ly/2B4cmOc

  • UK Court of Appeal quashes order denying parental rights to transwoman

    The Court of Appeal reversed a High Court judgement which prevented a transgender father, belonging to an ultra-Orthodox Jewish community, from having direct contact with her five children. The tight-knit Haredi community in Manchester had threatened to ostracise her family if they had any contact with her once it was found she was living as a woman. The judges of the Court of Appeal overturned the “stark, deeply saddening and extremely disturbing” judgement of the High Court and ordered the issues to be reconsidered by another High Court judge.

    Source: http://bit.ly/2CK5g2I

  • German courts mandates introduction of third gender category in public documents

    The Federal Constitutional Court of Germany has held that the civil status law, which does not provide a third gender category for registration, is violative of the right to privacy, and thus incompatible with the constitution. The Court has directed the legislature to within a year, create a new regulation to provide for registration of one’s gender in the third category, or do away with public documents altogether. In 2013, Germany became the first European country to allow the registration of newborns as neither male nor female. This ruling will take the initiative for legal recognition of trans persons further by allowing for the creation of a third category of gender in legal documents.

    1 BvR 2019/16

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

  • Court permission no longer required for gender transition hormone therapy in Australia

    An Australian Family Court has held that teenagers no longer require the authorisation of the court to undergo stage 2 of hormone therapy, which is irreversible in nature, for gender dysphoria. In earlier cases, Australian courts had held that since the treatment was irreversible, it was necessary for the Court to assess the ability of the minor to consent to the treatment, and therefore, parental consent was not sufficient. However, opposition against this requirement had been building, not only because of the costs of and delay caused by the process, but also because it was considered intrusive and insensitive.

    Re: Kelvin [2017] FamCAFC 258

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

Asia

  • Philippines lifts ban on 51 contraceptives

    The Phillipine Food and Drug Administration (FDA) has effectively revoked a supreme court order from 2015 that had temporarily banned 51 female hormonal contraceptive products by establishing that these contraceptives do not induce abortion. The temporary restraining order (TRO) was issued by the Supreme Court (SC) on contraceptives more than two years ago and was based on a petition by a pro-life group, alleging that all hormonal contraceptives were abortifacient, and aimed at having these vital commodities totally banned from the market.

    The FDA action complies with the court condition that allowed for automatic lifting of the ban after the FDA had ‘re-certified’ the contraceptives. This move will address the significant shortfall of contraceptives available to women, especially those belonging to lower-income groups. The FDA decision balances the government’s efforts to improve delivery gaps in reproductive health services and calls for full implementation of the reproductive health law. The primary challenge now for the government is to ensure the timely dissemination of these hormonal contraceptives that have been lying in storage for more than two years and are nearing their expiry date.

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

  • Turkey allows Muslim clerics to conduct civil marriages despite protests

    Activists and opposition politicians have raised concerns over a marriage law that will now allow Muslim clerics to conduct civil marriages, amidst the fear that the law will lead to an increase in the number of child brides. The move has been described as a blow to women’s rights and secularism. Previously, only state officers in branches of the family affairs directorate were allowed to conduct marriages.

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

  • Petition to bar consensual sex outside marriage rejected by Indonesian court

    Indonesia‘s constitutional court rejected a controversial petition to bar all consensual sex outside of marriage with a narrow margin of five out of nine judges voting against the petition in the world’s biggest Muslim-majority country. The petition was put forward by a group of conservative academics and activists who had demanded that definition of adultery should apply not just to married couples but to anyone in a marriage or outside it – effectively making all sexual relations outside of marriage a criminal offence. The group further wanted the law to consider homosexual sex as rape and criminalise sexual activity amongst minors. Rights activists hailed the court’s move as they had feared that the petition brought forth by the conservative group would increase moral policing and discrimination, particularly against the gay community in Indonesia.

    Source: http://reut.rs/2CBEAW6

  • Japan urged to end forced sterilization on transgender persons

    Human Rights Watch and other rights-based groups have urged Japan to end forced sterilisation on transgender community in the country. Despite taking some positive steps to reduce discrimination against the LGBTI community, Japan’s legal gender recognition procedure- which allows transgender people to be recognized as their gender identity- requires applicant seeking legal gender change to be single, above 20 years of age, be without children below the age of 20, undergo psychiatric evaluation to be diagnosed with ‘Gender Identity Disorder’ and be sterilized. Law 111 of 2003 requires applicants seeking gender-change to “permanently lack functioning gonads” which amounts to forced sterilisation- a practice that has been condemned health and rights activists for the longest time.

    Source: http://bit.ly/2i9d5qb

 UN Updates

  • CEDAW issues General Recommendation no. 36 on girl’s and women’s right to education

    The Committee on the Elimination of Discrimination Against Women (CEDAW) submitted general recommendation no. 36 on girls’ and women’s right to education in its sixty-eighth session and highlighted that education of girls and women is one of the most effective investments for sustainable and inclusive development. The recommendation focuses on two critical education targets that need to be achieved: (a) ensure that all girls and boys complete free, equitable and quality primary and secondary education leading to relevant and effective learning outcomes; and (b) eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the vulnerable, including persons with disabilities, indigenous peoples and children in vulnerable situations.

    The recommendation further mentions the Education 2030 Framework for Action that was agreed upon by the global education community to accompany the Sustainable Development Goals (SDG) agenda which acknowledges that ‘gender equality is inextricably linked to the right to education for all’ and that achieving this ‘requires a rights-based approach’ which ensures ‘that both female and male learners not only gain access to and complete education cycles, but are empowered equally in and through education.’ The general recommendation recognizes the critical gap between the legal recognition of girls’ and women’s right to education remains critical and its effective implementation calls for further guidance and action on Article 10 of the Convention.

    CEDAW/C/GC/36

    Source: http://bit.ly/2E33YB8

  • Expanded Yogyakarta Principles released on their 10th anniversary

    On the occasion of the 10th Anniversary of the Yogyakarta Principles, a group of 33 international human rights experts released a set of new principles on International human rights law pertaining to sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) to call for renewed action worldwide against violations and discrimination and re-assert the commitment to universal human rights. The new principles reflect significant developments both in the field of international human rights law and in the understanding of violations affecting persons of ‘diverse sexual orientations and gender identities’, as well as recognition of the often-distinct violations affecting persons on grounds of ‘gender expression’ and ‘sex characteristics’.

    The Yogyakarta Principles plus 10 add to the original 29 Yogyakarta Principles and set out nine additional Principles that cover a range of rights, dealing with information and communication technologies, poverty, cultural diversity, extension of protection of gender characteristics and expression in all levels of administration and justice. The principles further aim at ensuring legal recognition of changing genders and providing justiciable rights and remedies to ensure protection from all forms of contemporary social, legal and economic discrimination and exploitation of the LGBTI community.

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

  • UNDP releases report on legal gender recognition in Asia

  • Victor Madrigal appointed as UN Independent Expert on sexual orientation and gender identity

    The United Nations Human Rights Council appointed Victor Madrigal-Borloz as the new Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. The Independent Expert on sexual orientation and gender identity has the responsibility to assess the implementation of existing international human rights instruments, raise awareness around violence and discrimination against persons on the basis of their sexual orientation and gender identity, engage in dialogue with States and other stakeholders and work with them to encourage implementation of laws and measures that reduce violence against individuals on the basis of their sexual orientation and gender identity. The Expert is also responsible for conducting capacity-building and promoting international cooperation to support States and national efforts to combat discrimination. Mr. Madrigal-Borloz currently serves as the Secretary-General of the International Rehabilitation Council for Torture Victims (IRCT), and spent many years in the Inter-American Court and Commission of Human Rights. His work will build on the efforts of Vitit Muntarbhorn, the Thai international law professor who was appointed as the first Independent Expert on Sexual Orientation and Gender Identity in September 2016.

    Source: http://bit.ly/2CC7qCu

  • The Bogota Declaration on tax justice for women

    In collaboration with Tax Justice Network and the Global Alliance for Tax Justice, Public Services International launched the ‘Bogota Declaration on Tax Justice for Women’s Rights’ in December 2017. Sometime in early 2017, researchers, advocates, public service trade unionists and activists from the tax justice and women’s rights movements organised a global meeting of leading organisations and thinkers and the Bogota Declaration on Tax Justice for Women’s Rights, was a result of this meeting,

    The aim of the meeting was to establish and confirm powerful, common positions that will strengthen concerted actions over the following years and shift the narrative on tax justice for women´s rights.
    The Bogota Declaration on Tax Justice for Women’s Rights aims to demands rights for women which can be realised through structural, systemic, cultural and fiscal policy changes. The tax justice movement, global trade unions, civil society and the women´s movements have been highlighting the impact of regressive tax policies and financial secrecy on women’s fundamental human rights and taking action to change the narrative.

    Source: http://bit.ly/2CsWM3h

  • WHO launches manual to strengthen health sector responses to survivors of violence

    On the occasion of International Day for Elimination of Violence Against Women (25th November), World Health Organisation (WHO) launched a new manual to help health managers and policy-makers to strengthen health systems to deliver better quality of care to women who have been subjected to violence.

    The manual is based on the WHO’s clinical and policy guidelines for “Responding to intimate partner violence and sexual violence against women” (2013) and acknowledges violence against women as an issue of gender inequality, a major public health problem and a grave human rights violation. Women subjected to violence are more likely to seek health care though they usually would not disclose violence as the underlying reason for seeking care. Therefore, health care providers have an important role to play in identifying women who experience violence, and responding to them with empathy. In order for health care providers to be able to respond appropriately, health systems need to be strengthened so that women receive high-quality and respectful care.

    Source: http://www.who.int/reproductivehealth/topics/violence/vaw-health-systems-manual/en/

  • ‘Butcher of Bosnia’ Ratko Mladic convicted of genocide

    The United Nations’ Yugoslav war crimes tribunal convicted military chief Ratko Mladic of genocide and crimes against humanity, and sentenced him to life imprisonment for the atrocities committed during the 1992-1995 war.

    Mladic, 75, was found guilty of commanding forces responsible for barbaric crimes including, but not limited to the fatal three-year siege of the Bosnian capital, Sarajevo, and the 1995 massacre of approximately 8,000 Muslim men and boys in the eastern enclave of Srebrenica, which was Europe’s worst mass killing since the second World War. A three-judge panel convicted him of 10 of 11 counts in a powerful culmination of a monumental search for justice in the Balkans. Although the decision comes 22 years after Mladic’s egregious crimes at Srebrenica, he was arrested only in 2011 with his trial beginning in 2012.

    Source: http://bit.ly/2EIJblZ; http://bit.ly/2BeC1os

 National Updates

National Judgments/ Orders

High Courts and Tribunals

  • Pursing employment against a husband’s wishes does not amount to cruelty, holds Allahabad HC

    In an appeal from a family court decision which had granted divorce to husband on the grounds that the wife had subjected him to cruelty by taking up gainful employment against his wishes, the Allahabad High Court has observed that a wife working against the wishes of a husband or his family is not ‘cruelty,’ and does not entitle him to divorce. Emphasizing on due process of law, the court laid out various considerations that would constitute cruelty.

    Smt. Gurpreet Kaur v. Sh. Rajeev Singh

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

  • Gujarat HC to examine the use of Sec. 377 by wives for marital rape

    The Gujarat High Court is set to examine the question whether a wife can initiate prosecution against her husband for unnatural sex punishable under Section 377 of the Indian Penal Code. Terming marital rape as a ‘disgraceful offence’, the Gujarat High Court is set to examine the question whether a wife can initiate prosecution against her husband for unnatural sex punishable under Section 377 of the Indian Penal Code. The Court asked three questions mainly pertaining to whether offences generally charged under Section 377 and 376 of the IPC could constitute an offence of cruelty under section 498-A of the IPC.

    Nimeshbhai Bharatbhai Desai v. State of Gujarat

    Source: bit.ly/2AnjV3r; http://bit.ly/2D8wLU6

  • Inference of ‘false’ case cannot be drawn from mere acquittal of husband in domestic violence case, holds Chhattisgarh HC

    In an appeal from a Family Court decision, in which divorce was granted to the husband on the ground that his wife had made false criminal allegations of domestic violence against him, and this amounted to cruelty, the Chhattisgarh High Court held that the husband was not entitled to a divorce. The court held that mere acquittal of the husband cannot be used to draw the inference that the allegations of the wife were false. ‘Misuse of 498A’ has increasingly become a common allegation in matrimonial cases, and has in the past been held as conduct amounting to cruelty against the husband.

    Durga Bai v. Narayan Sinha, 2017 SCC OnLine Chh 1246

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

  • J &K High Court decries harassment of adult women who exercised their right to choice in marriage

    The High Court recently addressed a petition wherein the petitioner had brought to the notice of the court the continual harassment that she and her husband were subjected to following their inter-caste marriage. She stated that despite having married after attaining the age of majority, out of her own free will without any undue coercion, the respondents had framed false criminal cases against her husband with the help of the police. Referring to the role played by inter-caste marriages in weakening the caste system, the Court granted police protection to the couple and directed that action be taken against those involved in harassing them.

    Zubida Akhter v. State of Jammu and Kashmir, 2017SCCOnLineJ&K712

    Source: http://bit.ly/2B4xrbp

  • Kerala HC upholds suspension of school students accused of public display of affection.

    The Kerala High Court has upheld the suspension of a boy and girl student for their alleged public display of affection in the school and through social media. Although the state child rights panel had ordered the school to take the students back, this decision was struck down by the High Court on the ground that the school principal was an autonomous decision making authority, and there was no illegality in his decision which was motivated by a desire to maintain and sustain the standard and reputation of the school. While the court advised the school authorities to balanced approach, considering the educational aspirations of the students suspended, it was suggested that fines as a way to deter other students from engaging in similar behavior. The decisions of the school authorities and the Court have been widely criticized for encouraging moral policing of students.

    Sebastian T. Joseph and Anr. v. Kerala State Commission for Protection of Child and Ors. WP(C).No. 32325 of 2017 (M)

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

  • Rajasthan HC issues directions on religious conversions, inter-faith marriages

    The Rajasthan High Court held that in a case involving marriage performed after conversion, where the conversion is in contravention of the guidelines that govern it, the marriage may be declared voidable at the aggrieved party’s behest. The guidelines, laid down by the court to tackle ‘forced conversions,’ state that only an adult can undergo religious conversion, mandate prior intimation of conversion to judicial authorities, public notification of such proposed conversion, and solemnisation of marriage only after one week of said conversion.

    Chirag Singhvi v. State of Rajasthan D.B. Habeas Corpus No. 149 / 2017

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

  • Delhi HC questions civic bodies about sensitization to menstrual hygiene

    In a writ petition regarding the lack of access to information, knowledge, and education regarding menstruation and menstrual hygiene in Delhi, the Delhi High Court has made various directions to the district municipal corporations in Delhi for the implementation of the Rashtriya Kishor Swasthya Karyakram (RKSK), so far as it relates to the sensitization of adolescent girls about menstrual hygiene, and distribution of free sanitary napkins to them. The Court has demanded status reports on provision of separate toilets for girls in schools from the New Delhi Municipal Corporation, and also directed the Ministry of Health and Family Welfare, as well as the Delhi government to allocate funds to the municipal corporations to disburse free sanitary napkins to girls enrolled in municipality run schools.

    Setu Niket v. Union of India and Ors. W.P.(C) 5909/2017

    Source: http://bit.ly/2mHX795

  • Kerala HC upholds woman’s ‘right to dignity’ as a mother

    The Kerala High Court upheld the plea of a woman against her termination from service on account of her long absence from service as she needed to look after her child suffering from mild autism. The court held that no service regulations can stand in the way of a woman claiming protection of her fundamental right of dignity as a mother, further emphasizing that the government should come up with a legislation to protect employees from discrimination at workplace due to their family responsibilities.

    Source: http://bit.ly/2D9s78b; http://bit.ly/2kDkPCo

Supreme Court

  • Supreme Court to revisit verdict that put an end to automatic arrest in dowry cases

    A three judge bench of the Supreme Court has agreed to revisit the Court’s division bench decision in the case of Rajesh Sharma v. State of U.P which laid down procedural guidelines to restrict arrests for cases of cruelty against a married woman under Sec. 498A IPC. The directions cautioned against arrests for a period of six months, unless there was tangible evidence of physical harm, and called for the setting up of ‘Family Committees’ for vetting all complaints and initiating reconciliation. The bench has indicated that these guidelines may be in contravention of procedural criminal law as contained in the CrPC.

    Nyayadhar v. Union of India & Ors.

    Source: http://bit.ly/2EIz8NW; bit.ly/2Alirta

  • Husband’s consent irrelevant for obtaining abortion, holds Supreme Court

  • Parsi woman challenges the absence of a mediation process in Parsi Marriage and Divorce Act

    A Parsi woman has moved the Supreme Court questioning the validity of several provisions of Parsi Marriage and Divorce Act. The petitioner had moved a Parsi matrimonial suit early last year seeking dissolution of her 11-year-old marriage. She claims that the procedure under the 1938 personal law was exasperatingly cumbersome, involving a system much like a jury, as specified under section 46 of the Act, and granted no access to the mediation and settlement available to Hindu women under the family court system.

    Naomi Sam Irani v. The Union of India and Sam Shapoor Irani

    Source: https://goo.gl/SNKCkA; http://bit.ly/2D6N4ke

  • Supreme Court to review the constitutionality of adultery law

    The Supreme Court has issued a notice to the government in a petition challenging the constitutionality of Section 497 of the IPC. The three-judge bench noted that only the man with whom adultery is committed is criminally liable under the provision, which exempts the wife from criminal liability. The bench also noted the discrimination between husband and wife, given that only the husband can initiate action for his wife’s adultery, but the wife cannot initiate criminal action against her husband. Finally, alluding to the ‘consent clause’ of the section, which exempts the adulterer from criminal liability if the husband’s consent is proved, the bench opined that this amounts to ‘subordination of women,’ and thus needs to be tested against constitutionally guaranteed rights. The Supreme Court has previously upheld the constitutionality of this section in three different cases.

    Joseph Shine v. Union of India, 2017 SCC OnLine SC 1447

    Source: http://bit.ly/2rbydDz; http://bit.ly/2Dfw9jC

National News

  • Bill to criminalise instant triple talaq passed by Lok Sabha

    The Muslim Women (Protection of Rights on Marriage) Bill, 2017, has been passed by the Lok Sabha. The primary objective of the bill is to criminalise the pronouncement of triple talaq, by prescribing a punishment of up to three years of imprisonment for the same. The bill also provides for custody and maintenance rights of the wife upon such a pronouncement, although questions arise about the conflict between these provisions with the current law. The proposed legislation has met with widespread opposition from women’s groups, for further diluting Muslim women’s rights. Opponents have also pointed out the futility of incarcerating men for unilateral divorce, especially when such divorce have no legal validity, instead of focusing on women’s economic rights. The practice of triple talaq has been declared invalid, including for being un-Islamic, by successive Supreme Court judgments.

    Source: http://bit.ly/2D67jyp

  • Madhya Pradesh enacts law to prescribe death penalty for rape of girls aged 12 years and below

    The Madhya Pradesh legislature has passed an amendment to the Indian Penal Code to prescribe death sentence as the highest punishment for rape of girls aged 12 and below; becoming the first state where those convicted of such rapes will face the death penalty. The bill also seeks to increase the punishment for offenders convicted for a second time of forcefully disrobing a woman. Under the present law, only such sexual assault that results in death or permanent vegetative state of the victim is punishable with death. Otherwise, only repeat offenders can be sentenced to death. The Protection of Children from Sexual offences Act, 2012 does not prescribe death as the maximum sentence for any of the offences therein.

    The bill proposes changes to sections 354, 376 and 493 of IPC and Sections 29, 110, 198 and 437 of CrPc. Apart from introducing death penalty for rape, the bill also seeks to amend section 493 of the IPC to introduce the offence of establishing sexual relations upon a false promise of marriage. Called the Dand Vidhi (Madhya Pradesh Sanshodhan) Vidheyak, 2017, the bill is yet to receive Presidential assent.

    Source: http://bit.ly/2DjThg4

  • Government’s Transgender Persons (Protection of Rights) Bill, 2016 meets with widespread protests

    The Transgender Persons (Protection of Rights) Bill, 2016 has been reintroduced in the Lok Sabha by the government without the changes that had been demanded by the trans community, resulting in widespread protests. The bill, a watered down version of a private member bill that was cleared by the Rajya Sabha in 2014, is said to be in conflict with the principles of self-determination laid down by the Supreme Court in the landmark judgement of NALSA v. Union of India, in addition to criminalising traditional means of livelihood.

    Source: http://bit.ly/2B5VjLI

  • India opposes move to link gender with trade