#Mumbai- Women Hunted at workplace , Hounded for Protest #Vaw #Womensday


HUNTED AT WORKPLACE, HOUNDED FOR PROTEST

In a city where everyone strives to find their place under the sun, women face a double challenge — to excel in their professions and also fight off strong gender bias

Swati Deshpande | TNN

even in a big city like Mumbai, not many women, in fact very few women, actually report sexual harassment at work,’’ says Flavia Agnes, a leading women’s activist and lawyer who began Majlis, an organization that takes up women’s rights issues.
The much-awaited Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill is expected to become a law soon, yet activists are sceptical. “The passing of the Bill will enable victims to fight but its implementation has to be seen,” says Flavia. For 16 years, the Supreme Court’s directives in the landmark Vishakha case were the only guidelines. It called for committees to include women members and from NGOs, the new law will do the same. The law, in fact sets a 90-day deadline for in-house committees to dispose of harassment complaints and failure to do so attracts a penalty of Rs 50,000.
In the US in 2010, there were almost 12,000 sexual harassment cases. The data, compiled by the US Equal Employment Opportunity Commission notes “only 5-15% of victims report harassment”. There are no specific figures for India, but across corporate cubicles, public sector corridors and unorganized employment platforms, cases of sexual harassment in the workplace have risen, say experts. And predatory bosses often target “vulnerable women’’ Agnes says, especially those who need the job and suffer silently.
But women in senior positions have also reported harassment. In 2007, a former director of a multinational firm alleged her male colleagues had shown her semi-nude photographs of a woman stripper in 2005 and that a colleague said he could arrange for a male stripper at a discount. She filed an FIR against several colleagues, four of whom got relief from the Bombay HC a year later. Last year, at a meeting held by the Maharashtra state commission for women on sexual harassment, Thansky Thekkekara, additional chief secretary said, “From personal experience, I can say we are all exposed to
sexual harassment
at the workplace.’’ She said the state sometimes takes the issue “lightly’’. Vandana Krishna, principal secretary, state women and child development admits “sexual harassment at work is one of the most difficult subjects to handle.”
Agrees advocate and human rights activist Mihir Desai who has been on various committees set up under the SC judgment. “Often, the woman who complains of sexual harassment becomes a victim and the fight then becomes one of trying to save her job,” he says. Desai says harassment is often verbal, with insinuations. Advocate Rina Pujara at the Bombay high court says, “Companies are not happy to receive sexual harassment complaints. Women are made to feel they may be making much ado about nothing. Some are even told a pretty woman is likely to face harassment so she must learn how to deal with it.’’ Adds advocate Anand Grover, “Though sexual harassment at the workplace is pervasive, few report it as they don’t want to be seen as troublemakers or undergo the humiliation of crossexamination.”
A professor at a Mumbai college c o m p l a i n e d a g ainst her head of department for repeated suggestive remarks and denying her a promotion after she rebuffed him. The case is now before the HC. “Often women end up fighting not just the man but also the institution. The woman has to suffer not just indignity but also huge legal expenses,” she says. The tendency to malign women who do speak out must change, say activists. NGO members on committees in several MNCs say complaints sent to global head offices always elicit quicker and pro-active responses.
A senior government official says, “The least we can do when such cases come to our notice is to support the woman mentally, encourage her to come out and complain. The woman shouldn’t look back after years and feel it was the most traumatic experience of her life.’’
KNOW YOUR RIGHTS
Sexual harassment is a form of abuse. At the workplace, it is also about power play of a bully over a vulnerable individual, regardless of age, race, class, religion or sex. It impinges on the fundamental right to earn a livelihood by making it difficult to work
Sexual harassment includes unwelcome acts or behaviour like physical contact and advances, a demand or request for sexual favours or making sexually coloured remarks or showing pornography, other unwelcome physical, verbal or non-verbal conduct of sexual nature whether direct or by implication
THE PROPOSED LEGISLATION
Parliament on February 27, 2013, passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill. It provides for protection of women, including domestic helps and agricultural labourers, against sexual harassment at the workplace
The Bill makes it mandatory for all workplaces including homes, universities, hospitals, government and non-government offices, factories, other formal and informal workplaces to have an internal redressal mechanism for complaints related to sexual harassment
The in-house committee has to dispose of a complaint within 90 days
There will also be a safeguard against against false or malicious charges. If a woman is found to have filed a complaint with mala-fide intentions, she can be punished. Failure to prove charges, however, will not be construed as mala-fide intention

There is a belief that women somehow provoke sexual harassment. Be it at the workplace, on the sidewalk or otherwise. Women have become perpetrators to that toxic thought process by not protesting the very first time they are victimised. We have to encourage a culture of airing our grief and shaming our tormentors. If you look at what constitutes sexual harassment, then ALL women have been victims of the same at some point of their life
Pooja Bhatt
ACTOR, FILMMAKER
Pay disparity between men and women in a profession is unfortunate, but this has been the truth since cinema started in our country. But today female actors do have a much stronger monetary command than they ever did earlier, especially actors like Sridevi, Madhuri, Kareena & Priyanka Madhur Bhandarkar FILMMAKER
I took a break from work to take care of something more important at that point of time and which will always be a priority. I did not miss on anything, rather experienced the joy of motherhood. It has always been a nice feeling to be there with your family, to watch your kids grow. Making a comeback was not difficult but it was important to do something worthy after so many years. Once I decided to do E n g l i s h V i n g l i s h, there was no worry of acceptance. I am also privileged to have a family that supported me and helped me make a comeback
Sridevi
ACTOR

For the women of India, Parliament must speak #Vaw


FARAH NAQVI, The Hindu

The question Parliament must ask is, as it considers any new Bill, is which key Committee recommendations got left out.
The HinduThe question Parliament must ask is, as it considers any new Bill, is which key Committee recommendations got left out.

The House must ensure that the new Bill to replace the Criminal Law Ordinance consciously upholds the provisions and spirit of the Verma Committee report

A brave young woman died a brutal death in the heart of the nation’s capital. And Parliament must speak. Today. Tomorrow. Or, the day after. But speak it must. And in a unified voice of conviction and certitude, rising above the cacophony of political difference say No to violence against women. Not in mere words, howsoever strong and impassioned, but in deeds, in crafting into our statute books laws on fighting sexual violence that are overdue, that the nation demands, and that are truly just to women. After decades of slow momentum on women’s rights, India is poised on a cusp of change. It is now in the hands of parliamentarians to make that a reality. Let a voice reverberate from the halls of Parliament, sending a signal to India and to the world that our democracy is alive, that our democracy is good for women, and that this time the ramparts of patriarchy shall give.

History is littered with lost opportunities for change. Let this not be one of them. Today, scores of women across India, protesting on the streets, watching from their homes, writing in their blogs, alert with angry chatter on e-groups, speaking loudly in press conferences, strategising in quiet huddles — are saying the same thing — uphold the Justice Verma Committee (JVC) Report!

The task before Parliament is not simple. First there was the Criminal Law Amendment Bill 2012 (CLB), tabled in the Lok Sabha on December 4, 2012, and sent to the Parliamentary Standing Committee. The CLB 2012, crafted before the JVC was even constituted, was flawed and reactionary, flying in the face of repeated demands by women rights groups across the country. It was soundly opposed through scores of submissions to the Parliamentary Standing Committee. But even as the Standing Committee was considering its response, it was overtaken by events — the brutal gang-rape of the young woman on December 16, 2012, the constitution of the JVC on December 23, 2012, the quick submission of its report on January 23, 2013, and then, ostensibly, in response to national sentiment, in an act of haste and stealth — an Ordinance which was signed into law on February 5, 2013.

Now the Parliamentary Standing Committee, which officially considered the Criminal Law (Amendment) Bill, 2012, (and the Ordinance, 2013 as well), has submitted its report. And the Government of India is poised to craft a new Bill to replace the Ordinance. Sadly, the Standing Committee report does little to push the boundaries of our collective conscience, and one only hopes that the new Bill will.

While both the SC report and the Ordinance 2013 can claim to have incorporated parts of the JVC recommendations on points of law, the question Parliament must ask is, as it considers any new Bill, is: which key JVC recommendations got left out?

The list of omissions is illuminating. Both the Ordinance 2013 and the SC Recommendations not only retain the core of impunity for sexual crimes, they actually add to it.

ACCOUNTABILITY

What is impunity? A simple Thesaurus search will show up the following words — license, exemption, freedom, liberty, latitude and immunity. Centuries of impunity emboldens those who commit violence. It emboldened the men who mauled a young woman’s body. Yet, the Ordinance 2013, which is today the law of the land, has created laws on sexual assault, harassment and rape in which the accused is “gender neutral,” i.e. both women and men can be accused of these crimes. Does this sound right? Can we sweep away the painful, historical and contemporary reality of masculine violence against women in India — of women, stalked and raped by men in fields, homes and streets? Yes, in custodial situations, women can be perpetrators of sexual violence — no one who has seen images of Abu Ghraib should believe otherwise. But not across the board. Given the brute nature of gender-based inequities in India, the huge imbalance of power between men and women, the realities of rape across our towns and villages, is this the law that the women of India deserve?

For every complaint made against an offender, there now arises a real possibility of counter-complaints that will silence women even more than they are today. Which woman will brave the sceptical stance of the police and judiciary to seek justice when she herself stands to be in the dock, accused of the same crime as the offender? These are the questions Parliament must ask.

The SC report and Ordinance also uphold impunity of the police, keeping intact their licence to refuse to lodge FIRs, to smirk and scorn women who seek its help. The JVC report had recommended creating a new offence (166A) for public servants who disobey the law and proposing a mandatory minimum sentence. The Standing Committee supports inclusion of this offence but says ‘no’ to a minimum sentence. So, a rap on the knuckles is the only real deterrent we offer erring police. Parliament must demand full accountability from the public servants of this country — to ensure that they provide protection and ensure prosecution if women are violated; and Parliament must ensure that any new Bill on sexual assault and rape proposes a minimum sentence for erring public officials.

AGE OF CONSENT

And where will Parliament stand on age of consent? Will it stand up for the rights of the young men and women of India, who deserve the right to be young, and to not be criminalised? Or should we make them even more vulnerable to self-appointed moral guardians with medieval mindsets, to the khappanchayats, by making sexual contact with anyone between 16-18 years a statutory offence, as the Ordinance 2013 does and the Standing Committee upholds? Statutory offence means any third party can threaten young people with jail-time; it means a judge must convict them, even though the couple may beg and plead and say this was not a crime; it means harassment by police in inter-caste relationships; it means a powerful tool in the hands of the wrong people. If Parliament passes a Bill that criminalises consensual sexual contact with anyone between 16-18, India’s portrait will hang in the international gallery of shame.

There is more at stake — will the new Bill recognise marital rape? Or, make it obligatory on the State to provide reparations for victims? At the time of writing we do not know what the provisions of the Government’s new Bill will be. If it upholds the provisions and spirit of the Justice Verma Committee report, Parliamentarians must pass it into law, and as you thump your tables in approval, women outside will celebrate with you. This time, in memory of a young woman who died as no woman should, Parliament must speak for all the women of India. And this time the ramparts of patriarchy must give.

(Farah Naqvi, a writer and activist, is a member of the National Advisory Council. Views expressed here are personal. E-mail: farah.naqvi64@yahoo.com)

 

#Budget2013 high on rhetoric, low on funds for food security


Buisnesstoday

Sebastian P.T.
Sebastian P.T.

For all the talk of the United Progressive Alliance government about the seminal step the proposed National Food Security Bill will be in eradicating hunger and malnutrition, Finance Minister P Chidambaram‘s budgetary allocation for it is paltry. In his Budget speech , the Finance Minister said he was setting aside an extra Rs 10,000 crore, apart from the usual provision for  food subsidy, toward the “incremental cost” likely once the legislation is passed.

How much has Chidambaram provided? Part two of the Expenditure Budget documents shows it is Rs 90,000 crore. The document clarifies: “The provision of Rs 90,000 core for food subsidy also includes a provision of Rs 10,000 crore for implementing the National Food Security Act.”

How much was the food subsidy envisioned in the last Budget (2012/13) for the current financial year? It was Rs 75,000 crore, and the revised estimate was above Rs 85,000. But this estimate – as the government itself has said – was based on population numbers of year 2000. Had this figure been updated to the 2011 census, the food subsidy would have been above Rs 1,10,000 crore (as per Food Ministry’s estimates).

And, if the 2011 census figures are used to estimate the food subsidy bill for 2013/14, it rises, by the food ministry’s own calculations, to Rs 124,000 crore – even without the Food Security Bill becoming law. If it is passed the subsidy will be even higher. Of course, all these estimates are based on the Bill introduced in the Lok Sabha in December 2011.

So how does Chidambaram’s allocation of Rs 90,000 crore amount to an additional outlay?  “I don’t know the Bill yet,” said Chidambaram at his press conference after the Budget announcement. “There is no Food Security Bill at the moment. We only have the Standing Committee’s report on an earlier version of the Bill. It is only when the (revised) Bill is presented to the Cabinet, that we can do an assessment of its cost. I cannot put a number today. However, in anticipation that a Bill will carry an incremental cost, I have provided Rs 10,000 crore.”

But he should have had an idea. The estimates of the food ministry, based on the original provisions of the Bill, are public knowledge. The original bill intended to include up to three-fourths of the rural population and half the urban population as beneficiaries, with 46 per cent of the former and 28 per cent of the latter being ‘priority households’, which would be entitled to seven kilos of foodgrain per person per month, at prices of one rupee per kg for coarse grain, two rupees for wheat and three rupees for rice. (Distinct from them would be the ‘general households’, which would get three kilos or less at half the price the government paid farmers to procure the grain.) The ministry estimated the subsidy at Rs 1,26,000 crore a year.

How can Rs 90,000 crore then be called an enhanced allocation? “This is a big letdown,” said N.C. Saxena, member of the Sonia Gandhi headed National Advisory Council (NAC). “The meagre Rs. 10,000 crore set aside for the implementation of the Food Security bill not only implies the lack of urgency on the government’s part to enact it but also the gross underestimation of the additional resources required,” says Subrat Das, Executive Director, Centre for Budget and Governance Accountability.

Examining the original Bill,the Standing Committee on Food, Consumer Affairs and Public Distribution has recommended removing the distinction between priority and general households, among other things. But no final decision has been taken. Whatever is decided, however, even if the final cost is less than Rs 126,000 crore, it certainly will be much more than what the finance minister has provided for. He certainly will have to loosen his wallet or the outcome could well be a diluted Bill, hardly serving the noble intent.

 

#India -Chronology of Legislative adoption of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 #Vaw


 Adrienne Rich`s #Rape- but the hysteria in your voice pleases him best #poem #Vaw

26TH FEB 2013

 

 

 

RAJYA SABHA (Bill — Passed)

 

 

 

The following Members took part in the discussion:—

 

1. Dr. Najma A. Heptulla

2. Dr. Prabha Thakur

3. Dr. T.N. Seema

4. Shri D. Bandyopadhyay

5. Shrimati Vandana Chavan

6. Dr. Ashok S. Ganguly

7. Dr. Bharatkumar Raut

8. Shri Rama Chandra Khuntia

9. Shrimati Maya Singh

10. Shrimati Gundu Sudharani

11. Shri Ram Kripal Yadav

12. Shrimati Kanimozhi

13. Shrimati Renubala Pradhan

14. Dr. Vijaylaxmi Sadho

15. Shrimati Smriti Zubin Irani

16. Shri M. Rama Jois

 

  • Shrimati Krishna Tirath replied to the debate.

 

  • The motion for consideration of the Bill was adopted.

 

  • Clauses 2 to 30 were adopted. Clause 1, as amended, was adopted.

 

  • The Enacting Formula, as amended, was adopted.

 

  • The Preamble and the Title were adopted.

 

  • The motion moved by Shrimati Krishna Tirath that the Bill, as amended, be passed was adopted and the Bill was passed.

 

 

SYNOPSIS OF THE DEBATE

 

The Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Bill, 2012

 

THE MINISTER OF STATE OF THE MINISTRY OF WOMEN AND CHILD

DEVELOPMENT (SHRIMATI KRISHNA TIRATH), moving the motion for consideration of the Bill, said:

 

The main object of this Bill is to provide safe environment to the Women at their workplace, to prevent their Sexual Harassment and to make them economically empowered so that they can do their work properly. First time this Bill not only covers those women who work in the Government offices, but also at all workplaces both in public and private sector, whether organized or unorganized. The Bill castes a responsibility on every employer to create an environment at every workplace which is free from sexual harassment. An internal complaints committee is required to be constituted at every workplace. Under Clause 26, the employer is liable to be punished if he does not act on the recommendations of the Bill. Under Clause 6, there is a provision to constitute a Local Complaints Committee for the unorganized sector, headed by an eminent woman and consisting of, at least, half women members with due representation of SCs, STs, OBCs and minority communities. If a woman makes a complaint with malicious intention and fail to prove it then she is liable to be punished. To make the women aware of the law, responsibility has given to the employer to organise awareness programmes at regular intervals. I appeal to the House to consider and pass this Bill.

 

DR. NAZMA A. HEPTULLA: This Government gives knee jerk reaction to every incident. There was a horrible incident of rape in Delhi. The whole country was in anger due to this incident. Government constituted a committee headed by a retired Chief Justice to suggest measures in this regard. Committee presented its report and Hon’ble President promulgated an ordinance. President, while addressing both the Houses, did not announce in his speech about the Bill related to participation of women in power. After the rape incident in Delhi such more incidents came into the light. Three minor girl children were ruthlessly raped in Bhandara District in Maharashtra. Such incidents took place even after existing so many laws. These laws will not be helpful until they are implemented. I have objection on the words ‘sexual harassment ‘ written in the title of the Bill. Women are also harassed mentally and physically at work places. All types of harassment cannot be covered under ‘sexual harassment’. If you wanted gender identification, for that purpose ‘women’ word was already in the Bill. What name will you give for the harassment of a woman by a woman at work place. Nothing has been mentioned in the Bill about the redressal of complaints regarding sexual harassment of women working in the private sector. This legislation is not for the Central Government alone, it is for the State Governments also. Have you taken them into confidence? What mechanism has been made for them. How it will be implemented to grass root level in villages. It is necessary to implement the law after its enactment. Immediate action is required to stop atrocities and rapes against women instead of constituting committees.

 

DR. PRABHA THAKUR: Government has brought this Bill with the intention to stop sexual harassment of women at their work places. I welcome the intention and support this Bill. Gangrape of women is more serious than murder. If all men in the country respect all women as their own sister, daughter, mother or wife, there will be no need to enact so many laws for protection of women. People do not afraid of law. Death penalty should be given for crimes like gangrape as it is prevalent in the Middle -East. The situation of women is very vulnerable. Very few women are their who approach to the court, and if someone goes the result does not come out positive. The situation poor women are more worsen. For the empowerment of women, we must follow the exists law of Goa. Rape victims should be provided lawyers. Those women who go home late from their working places, must be provided commutation facilities. The punishment for asking sexual favour should be made more stringent. Time bound justices must be provided. I support this Bill.

 

DR. T.N. SEEMA: I rise to support the Bill. Crimes against women are on the rise in the country. The implementation side of these kinds of laws is very poor in our country. I would like to highlight some of the weaknesses in this Bill. I would like to know about the methodology of implementation of this Act in the unorganized sector. The women in the Armed Forces, police, schools and educational institutions must be included under the Bill. In the unorganized sector, the restriction about the number of workers to less than ten should be done away with. I strongly object to the inclusion of Clause 14 which allows for penal action against the complainant in the Bill, which will defeat its very purpose. There are many laws for weaker sections, women, SCs/STs, etc. in our country but majority of these sections do not enjoy the legal protection because of poor implementation. I would strongly suggest of referring this Bill to a Select Committee for redrafting of the Bill. I support the Bill.

 

SHRI D. BANDYOPADHYAY: I rise to support the Bill. But I have some doubts about the its fairly being implemented. While supporting the Bill I suggest that at the Gram Panchayat level women members should be given the power of vigilance and take action under this Act as well as under the Domestic Violence Act. I would ask the Government to have a relook at the whole thing and do not depend upon the same traditional mechanism. I suggest that there should be three separate courts for women cases as civil, matrimonial and criminal, but let the IPC remain what it is. I support this Bill.

 

SHRIMATI VANDANA CHAVAN, making her maiden speech, said: I rise to support the Bill. It reaffirms confidence in women. Women, in their lifetime, have a horizontal canvass. One is at home that has been addressed by the Domestic Violence Act, the second is at work place which is being addressed through this Bill, and the third is a public place which, needs to be taken up in the near future. Laws may not be necessary, but policies certainly to make cities and towns gender-friendly so that women feel safe. I would like to point out one section which really worries me. It is punishment for false or malicious complaints. It is very rare that a women would make a false complaint. This legislation has mentioned ‘sexual harassment’ in its title itself, but in future, the word ‘harassment’ should only be continued. It is an all pervasive legislation. Women safety has become a major issue. There are several steps needed to be

taken to make sure that women are safer in public life and public spaces also.

 

DR. ASHOK S. GANGULY: I support this Bill. Harassment of women in India is now not only a national shame but it is a national burden. Women who complain about sexual harassment, need a Womens’ Complaints Protection Act also. It is a Bill for protection of women at the workplace. So it should be made compulsory for Annual Reports to have a section on sexual harassment of women. Lot of women are provided with transportation after certain hours. The transport companies should be certified. There should be mobile courts, manned by women, where women can approach without any fear. Women who suffer silently at all places should be given justice.

 

DR. BHARATKUMAR RAUT: I support this Bill. But even if this Bill is passed, it will only remain a piece of legislation. We have forgot to put multi-national companies in this. Don’t they come under Indian laws. I used to get complaints from women that being a woman they are neglected while giving promotion. I know some companies in Mumbai and Delhi where there is an unwritten rule that women should not be employed beyond this level. Isn’t it is a sexual harassment? Many things are not mentioned in this Bill. I think, a better exercise would have brought a much better Bill.

 

SHRI RAMA CHANDRA KHUNTIA: I support this Bill. Within one year or two years, all the murder or rape case must be disposed of and the culprit must be punished. We should take a decision in this regard. Why these murder, rape or harassment cases are happening. In army we have millions of soldiers but only thousand of women. That is the main reason for harassment. If at all workplaces the number of women are more nobody will dare to harass or rape women in this country. The most discriminatory part is that private employers do not want to employ women. Not only sexual harassment alone, if an employer is denying employment to a woman on gender bias, they should also be liable to be punished. They have a formal policy which prohibits sexual harassment at workplaces. In USA cases of sexual harassment have been reduced now to 11,000 from 15,000 in 2001. That means, a strong law for sexual harassment has yielded good results in the USA. We must expect that if this law is implemented properly, we can also get better results. We fully support this Bill and we also expect that judiciary, media and all the people in the society would support it so that the culprits can be punished at the right time. Punishing the culprits and creating the opportunity to make 50 per cent space for women will give a handle to resolve the issues of women in this country.

 

SHRIMATI MAYA SINGH: Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 has taken 13 years to pass. Sexual harassment is a tragic reality of our society. Buy now whatever laws or legal protection made for women were sufficient. But specially of the case of Damini which has shaken the country. Whether the mechanism of implementation of making of laws is flexible?  Whatever efforts should be made to bring awareness to our society are not sufficient. Our Parliament and beaurocracy has to think over this issue in a very effective manner that the women will be kept on victimizing and we will be discussing the issue in the Parliament in the same way, is not good. In the Bill, harassment in the work place to the women has been defined broadly but I have some doubt that women working in education sector and professional sector will be given the same protection. . In the matter regarding teacher and students small girls are exploited and they are not getting justice in lack of concrete law. In some other fields where women are not related to anybody in terms of job. But they have to face uncomfortable situation with their associates. I doubt whether women working in the field of fashion designing will be getting protection through this Bill. We have to make this provision more clear with regard to constituting committee for sexual harassment so that women can join this fourm of their own. After the report of internal complaint committee, an employer should not have any other substitute than to initiate disciplinary action. According to service rules the employer should ensure the action. With regards to the power vested in different officials I feel the need of some amendments. If we include Labour Commissioner in this, then women will be more protected. The constitution of Internal Complaint Committee will be difficult in the offices where less than 10 employees are there. You have empowered Internal Complaint Committee with the power of civil court. But binding of having the knowledge of law or giving legal training to any member is not mentioned. In this situation justice is doubted. I suggest that women commission, Labour Commissioner and Local Administration should hold a review meeting at district level wherein women going for work can be reviewed. There can be a good and concrete law if duty power of district officers should be inserted in Clause 20. They should be a concrete authority for unorganized authority. This Bill should give protection of the society and it should not remain on paper and discussion. This Bill is talking about stoppage of sexual harassment should not be ineffective than only it will be meaningful. I support this Bill.

 

SHRIMATI GUNDU SUDHARANI: It is an important legislation which protects women against sexual harassment at workplace. India was party to U.N. Convention on CEDAW the recommendation was given 20 years ago. And, it is unfortunate that it is becoming law here after two decades! Sub Clause (V) to clause 2 (n) appears to be vague. I request the hon. Minister to clarify this. Eve-teasing in our country is the most common practice and girls at schools and colleges are victims of this. But, nowhere in the Bill has it been mentioned that eve-teasing constitutes sexual harassment. Government never thought about other forms of sexual harassments. So, I request the hon. Minister to include ‘eve-teasing’ as sexual harassment under Clause 2(n) of the Bill. Bill has kept out domestic workers working at home. Most domestic workers are poor, illiterate, unskilled and come from vulnerable communities and backward areas. The hon. Minister agreed to include all domestic workers under Clause 2(e) of the Bill. But, Sir, what about those who constitute five to seven times of registered domestic workers? The Bill deprives them access to an efficient redressal mechanism in getting protection from sexual harassment.

 

SHRI RAM KIRPAL YADAV: This bill has been brought for the working women which we welcome. Despite all laws there is no decreasing in harassment of women, rather it is increasing. The number of person commiting such barbarism is increasing and today women are unsafe. We regard women and we worship them. Earlier. leave alone working women, they are not literate and there limit was four walls of the house. There was a change in our thinking and number of working women was increased. They become more literate. But if there are no implementation of the law due to lack of will power than law has no meaning. If we are not ready to change our mind set and there is no change of thinking we cannot stop sexual harassment despite any law. Tendency to crime, to barbarism, to sexual harassment and to harassment is there. How can we stop this. This is also an important question. I feel that law is not competent. Law are made but time limit is not prescribed. So I request the Minister that you think about to constitute of special court. Rape is no lesser offence than murder. I agree that those women are not able to face the society. School going girl are being raped and they are being murdered. We should make any amount of laws. But unless we change our thinking this is not going to stop. If women are kept away from working than there will be the problem of bread earning. There should a provision of special court of this Bill so that cases can be disposed of in a given time and criminals can be punished. I request the hon. Minister to find a mechanism so that they are also covered under this. I also request that recommendations of the Local Committee should be made binding and ensure that no further inquires be initiated. I have a strong objection to Clause 14 of the Bill which seeks to punish false or malicious complaints. Now Clause 14 of the Bill asks for evidence of acts like verbal favour that often would be done in an implicit or clandestine manner. Certain forms of sexual harassment cannot be proved beyond reasonable doubt as may be possible with physical injury or other crimes. In such a situation, it is very unfortunate that the lack of proof of a crime makes the complainant liable for punishment. Most of the women did not report for fear of being victimized. I support the Bill brought forward by the hon. Minister.

 

SHRIMATI KANIMOZHI: I rise to support the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012. It currently excluded the women of many fields. It is very important that we include these women. These women constitute a large chunk of working women in this country. The word ‘unwelcome’, in the Bill should actually be determined by the victim, and not by any Committee or by anybody outside. If we do not do that then, again, it will become another way to harass a woman or to find other ways to get out. When we are talking about agricultural workers or other workers, not many of them are capable of giving a written complaint. Also, not everybody is really comfortable in writing or giving a written complaint. So, it should also include ‘oral complaints. The aggrieved persons or the victims should be able to go and give their complaints orally. In this country, women’s education has still not reached the desired level. So, we have to take this into consideration. With regard to limiting this to a period of three months, not many women complaint at the first incident. Unless it becomes repeated and intolerable, no woman will make a complaint. This law has been brought forward to protect them. Then, how can there be a conciliation in these cases? This is not a business contract, where a conciliation can be achieved over the table. The present clause 14 which relates to punishment for false or malicious complaint and false evidence seems to be working against the purpose of this legislation. We know how society works against women. So, this has to be taken into consideration seriously.

 

SHRIMATI RENUBALA PRADHAN: I welcome the Bill as the women in their workplaces are harassed severely despite several existing provisions. Many of them do not ventilate their plights either due to social taboo or fear of their higher officers. The ministry should constitute separate independent forum at district and block levels with women members only so that the victimized women can ventilate their grievances properly. It should be made mandatory for every Government, semi-Government and private offices and institutes to constitute a cell to look into the grievances of the sexual harassment of the women at their workplace. It is seen that the females who are working in the unorganized sectors are more harassed than the women working in the organized sector. The Government should incorporate some of these provisions so that the working women in both the sectors can ventilate their grievances without fear. In order to address the problem of assault on women, special fast track courts should be constituted throughout the nation, at least, at all District and Sub-Divisional levels.

 

DR. VIJAYLAXMI SADHO: I welcome this Bill. Since the early times, women are being treated as inferior. Even after so many years, the situation is almost the same. Rajiv Gandhi had provided 33 percent reservation in the local bodies even in adverse circumstances. He had given respect to the women in the country through Panchayati Raj, local governance. They were given participation in the power. The Hon’ble Minister is required to pay more attention to the mental and physical harassment at work place also in addition to the sexual harassment. The proper implementation of legislations enacted in Lok Sabha and Legislative Assemblies is absolutely necessary. Most of the population of the country is in rural areas. The agricultural labourers working there, face the maximum harassment. They should be brought under this Bill.

 

SHRIMATI SMRITI ZUBIN IRANI: The scars on the psyche of Indian women are deep because we hear of cases of molestation, sexual harassment and rape, but very few news reports of conviction in such cases. As per the Law Commission Report, as of now 72.6 per cent cases of sexual harassment and 83 per cent cases of rape are pending in our courts. I would support the submission that even professionals like lawyers and doctors be brought within the ambit of this law and their rights and their dignity be protected. While the internal complaints committee, according to this Bill, has the mandate of receiving complaints, nowhere does this Bill highlight how it is to be ascertained as to how many establishments or companies come within the ambit of the law within a district. While this legislation highlights a penalty of Rs.50,000 if an employer fails to constitute the internal complaints committee, it is silent with regards to the timeframe within which this committee has to be set up. Clause 9(1) of this Bill, speaks about providing assistance to women in making complaints in writing if the lady herself is unable to do so, but is silent, on what happens in cases where the internal complaints committee or the local complaints committee does not take cognizance of verbal complaints and does not provide support to the aggrieved woman. As regards clause 10 about settlement, the bill is absolutely silent as to how the Committee is to conclude whether an aggrieved woman or her family has been pressurized to reach a settlement. The Bill is silent on repeat offenders who manage to reach settlement. The Supreme Court while laying down the guidelines, looked upon sexual harassment at workplace as a cognizable offence but this particular Bill does not look upon it as a cognizable offence. It is a mystery to all of us.

 

 

SHRI M. RAJA JOIS: There has been total moral degradation during the five decades, and that is the reason, the Bill has to be brought for penalizing this onslaught on women. In our culture, highest respect is given to womanhood and the woman is treated as divine treasure. Immoral sex has been considered as the worst offence. It has been considered even worse than a murder. It does an irreparable damage. The State has failed to provide a good system of education. I welcome the legislation. The guilty should be punished. But at the same time this matter cannot be solved by legislation alone.

 

Women Bill to curb sexual harassment in workplaces passed in Rajya Sabha #Vaw #Womenrights


 #India - Lets  ALL Resolve for  FREEDOM  from VIOLENCE AGAINST WOMEN this New Year #mustshare

 

PTI

Cases of sexual harassment of women at workplace, including against domestic help, will have to be disposed of by inhouse committees within a period of 90 days failing which penalty of Rs 50,000 would be imposed.

Repeated non-compliance of the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, can even lead to higher penalties and cancellation of licence or registration to conduct business.

The Bill, which has already been passed by Lok Sabha, was unanimously passed by Rajya Sabha on Tuesday, with Women and Child Development Minister Krishna Tirath promising to follow up the legislation with strict rules for its implementation.

The legislation brings in its ambit even domestic workers and agriculture labourers, both organised and unorganised sectors.

As per the Act, sexual harassment includes any one or more of unwelcome acts or behaviour such as physical contact and advances, a demand or request for sexual favours or making sexually coloured remarks or showing pornography.

The acts or behaviour whether directly, or by implication, include any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs. 50,000.

It has also provisions for safeguard against false or malicious charges.

The Bill makes it mandatory that all offices, hospitals, institutions and other workplaces should have an internal redressal mechanism for complaints related to sexual harassment.

The Act defines domestic worker as a woman employed to do household work in any household for remuneration whether in cash or kind, either directly or through any agency on temporary, permanent, part time or full time basis, but does not include any member of the family of the employer.

A Parliamentary Standing Committee, which had examined the Bill, had held the firm view that preventive aspects reflected in it has to be strictly in line with the Supreme Court guidelines in the 1997 Vishaka case.

The apex court’s judgement in the case not only defines sexual harassment at workplace but also lays down guidelines for its prevention and disciplinary action.

 

PRESS RELEASE-#India- Don’t allow Govt to ram through land acquisition bill


 

CAMPAIGN FOR SURVIVAL AND DIGNITY

Contact: Q-1 Hauz Khas Enclave, New Delhi. Ph: 9873657844, forestcampaign@gmail.com

 

25.02.2013

To:

Smt. Meira Kumar

Hon’ble Speaker of the Lok Sabha

Lok Sabha, New Delhi

Sub: The Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Bill – request that the same may be sent to a Standing Committee as it has been extensively modified after being tabled in Parliament, depriving the public and in particular affected communities of any possibility of comment

Dear Madam,

We are a national platform of adivasi and forest dwellers’ organisations from ten States. We write to bring to your notice that the government is seeking to ensure the swift passage of the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Bill and we understand that it may attempt to do so in the next day or two. In this context we wish to draw the following to your attention:

  • The government reportedly intends to move more than 150 amendments to the original Bill.
  • As per the amendments tabled in Parliament in December, these include many areas which were never addressed by either the Standing Committee’s report or the original Bill.
  • In particular, we are dismayed to find that the amendments contain several provisions that adversely affect the rights of Scheduled Tribes and forest dwellers, and in particular permit the destruction of community forests on the payment of arbitrary cash compensation as well as undermining the powers of local bodies under the Forest Rights Act and the PESA Act. Many of these provisions were not in the original Bill and were certainly not recommended by the Standing Committee. Further, they also violate international law.

In light of the fact that the tribals and forest dwellers of this country have been the worst-hit victims of decades of illegal, brutal and inhuman displacement at the hands of the statebasic respect for their democratic rights demands that this Bill be referred to a parliamentary committee for a full review. The government cannot be permitted to use its majority to simply ram through legislations while making a mockery of parliamentary procedures and public consultation. This would be a tremendous disservice to the people of this country and in particular an injustice to those who have already suffered as a result of the callousness of the state.

We trust you will not permit this government to bypass democracy in order to perpetrate one more historical injustice against the tribals and forest dwellers of this country.

Sincerely,

(On behalf of the Convening Collective)

 

__._,_.___

Standing committee on home affairs invites suggestions on criminal alw (amendment) bill 2012


PRESS RELEASE

 

STANDING COMMITTEE ON HOME AFFAIRS INVITES SUGGESTIONS ON THE CRIMINAL LAW (AMENDMENT) BILL, 2012

 

The Criminal Law (Amendment) Bill, 2012  as  introduced in   the  Lok  Sabha   on  4 December 2012  and  pending  therein,  has  been  referred  to  Department-related  Parliamentary  Standing Committee on Home Affairs, headed by Shri M. Venkaiah Naidu, M.P. Rajya Sabha for examination and report. The Bill seeks to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to review laws related to rape/sexual offences.

2.         The Committee has decided to invite suggestions in the form of written memoranda from the public/associations/women organizations/civil societies, etc, on the provisions of the Bill.

3.         Those desirous of submitting written memoranda to the Committee, may send the same   to Shri D. K. Mishra, Joint Director, Rajya Sabha Secretariat, Room No. 142, First Floor, Parliament House Annexe, New Delhi-110001 {Tele: 23035410 (O) and 23012007 (fax)} latest by 28thJanuary, 2013.

4.         The memorandum which might be submitted to the Committee, would form part of its records and treated as confidential and, therefore, should not be printed, circulated or publicized by anyone, as such an act would constitute a breach of privilege of the Committee.

5.         Individuals/stakeholders may obtain, on written request, a copy of the Bill, from Shri Bhupendra Bhaskar, Assistant Director, Rajya Sabha Secretariat, Cabin ‘A’, Basement, Parliament House Annexe, New Delhi-110001 (Telephone No. 011-23034034). The electronic text of the Bill can also be down loaded from the Rajya Sabha Website www.rajyasabha.nic.in.® Bills with C

 

Recommendations on Panchayat (Extension to the Scheduled Areas) Act, 1996


The Recommendations of National Advisory Council on PESA and Scheduled Area passed on 21 December is provided below and also attached. Also accessible at http://nac.nic.in/pdf/pesa_31dec.pdf
National Advisory Council (NAC)
Recommendations on Panchayat (Extension to the Scheduled Areas) Act, 1996
Summary
The NAC recommendations consists of (1) Amendments to the Act (2) directions by the Union Government to the States and (3) suggestions to the Central Government. These are briefly as follows;
(1) Amendments to PESA 1996:
The proposal seeks to amend and elaborate on the law with a view to strengthen it and rectify some of the weaknesses in the existing law. The proposed amendments in brief, pertain to the following:
i. Providing list of definitions of key terms used in the Act for greater clarity;
ii. constitution of gramsabha at the hamlet level and power to constitute committees;
iii. mandating ‘prior informed consent’ as pre requisite for land acquisition and licensing for minor minerals;
iv. reinforcing the need to align Central and State laws in conformity with PESA;
v. enabling the State government to make rules;
vi. enabling the Centre to issue directions and
vii. provision for grievance redress under the Act.
(2) Directions:
Certain directions on major issues have been proposed to be issued by the Union Government under Proviso 3 of the Fifth Schedule as an interim measure. These need not await amendment to the Act and can be issued immediately for better implementation of the existing law. These pertain to the following areas:-
i. Aligning various laws in conformity with PESA to ensure autonomy of Gram Sabha and Panchayats in Scheduled Areas.
ii. Notification of list of hamlet/habitations to conduct gramsabha under the law
iii. Elaboration on powers of gramsabha to identify beneficiaries, approve plans, conduct social audit and increased accountability of government functionaries.
iv. Prevention of Land Alienation and Restoration of Illegally Alienated Lands.
v. Regulation of intoxicants for storage, manufacture and consumption.
vi. Control over Usurious Money Lending in the Scheduled Areas.
(3) Suggestions to GOI regarding:
i. Inclusion of tribal habitations hitherto not included under the Fifth Schedule.
ii. Central Govt. to expedite law on Provisions of the Municipalities (Extension to Scheduled Areas) Bill.
iii. Constitution of Special Task Force to review functioning of VI Schedule Areas and to suggest appropriate administrative arrangements for V schedule areas.

 1. Proposed amendments to PESA 1996 have been indicated in italics .

THE PROVISIONS OF THE PANCHAYATS (EXTENSION TO THE SCHEDULED AREAS) ACT, 1996 No.40 OF 1996

(24th December, 1996)

An Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas.

Be it enacted by Parliament in the Forty-seventh Year of the Republic of India as follows:-

Short title

1. This Act may be called the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996

Definition

2. In this Act, unless the context otherwise requires,

a) “Access Rights” means legal, traditional or admitted entitlements of an individual or community to sustainably use community resources and where relevant, enter into a territory defining or containing the resource.

b) “Alienation of land” means dispossession of land of an individual or community following transfer or change of ownership title or possession, or denial of access to land of any nature located within the jurisdiction of the Gram Sabha, whether to a scheduled tribe or to others.

c) “Community resources” include natural resources such as land, surface and ground water, forests, minerals, habitat and others, located within the territorial jurisdiction or the territorial domain of the community as determined by the Gram Sabha, including intellectual, socio-cultural and religious heritage of communities.

d) “Competent Authority” means a person or an institution as provided under the Rules for the purposes of this Act.

e) “Complaint” refers to any representation, whether oral or in writing, made to a competent authority regarding violation of provisions of the Act by a member/s of the Gram Sabha or the Gram Sabha itself.

f) “Cultural identity” is the recognition of an individual, group or community by virtue of belonging to or being part of a community based on a shared ancestry, history, culture, traditions, mores, beliefs, practices and institutions.

g) “Customary law” means traditional common law or rule or practice that sets an intrinsic standard of conduct of members of a community 

h) “Customary mode of dispute resolution” is the system of adjudication adopted by a community which is part of their culture, tradition and custom but not violating the principles of natural justice.

i) “Gram Sabha”, for the purpose of this Act, shall ordinarily comprise of the assembly of the residents of one or more hamlet/habitation, comprising a community and managing its affairs in accordance with traditions and customs within its respective territorial boundaries. This unit will ordinarily be below the revenue village and is not the same as Gram Sabha at the Panchayat level.

j) “Minor forest produce” is as defined under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006.

k) “Minor Minerals” is as defined under Mines and Minerals (Development and Regulation) Act 1957 where the term ‘building stones’ includes stones such as those used for construction of buildings, boundary walls, pavements, platforms, and wells.

l) “Minor water bodies” means any flowing, impounded or sub surface water and includes all water bodies as defined by the concerned State law.

m) “Money lending” means extending loans in any form for interest, with or without collateral, by individuals and institutions and includes informal advances.

n) “Panchayat at appropriate level” means the Gram Panchayat in whose area a particular resource is situated or the next higher tier namely the Intermediate Panchayat/Zilla Parishad if the resource in question is situated in more than one Panchayat or Intermediate Panchayat as the case may be.

o) “Prior Informed consent” means freely given written assent or agreement to permit an occurrence or to permit an act or to allow an occurrence only after a complete disclosure of facts needed to make the reasoned decision free from any coercion or inducement.

p) “Scheduled Area” means the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution.

q) “Social sector” means all development and welfare activities and includes inter alia, health, education, water supply, transport, agriculture and allied activities, infrastructure, irrigation, management of natural resources such as water, forest, land, energy, welfare schemes and services, etc. provided by government and non-government entities.

r) “Traditional management practices” means normative systems of resource care and use adopted by a community to ensure beneficial and sustainable use of a community resource by and for all its members. 

s) “Zone of influence” means the geographical area whose social, economic, and/or environmental conditions are significantly affected by changes induced by the proposed project.

3. The provision of Part IX of the Constitution relating to Panchayats are hereby extended to the Scheduled Areas subject to such exceptions and modifications as are provided in section 4.

Exceptions and modifications to part IX of The Constitution

4. Notwithstanding anything contained under Part IX of the Constitution, the Legislature of the State shall enact enabling provisions and rules for effective exercise of the rights, duties and powers of the Gram Sabha as follows, and shall not make any law which is inconsistent with these rights, duties and powers:

(a) a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources;

(b) the Gram Sabha shall ordinarily comprise of the assembly of the residents of one or more hamlets/habitations, managing its affairs in accordance with traditions and customs; such hamlets/habitations for this purpose will be notified in the manner as may be prescribed. The members of the Gram Sabha at the hamlet/habitation level will consist of persons whose names are included in the electoral rolls for the Gram Panchayat.

(c) the geographical access or jurisdiction of a Gram Sabha of the hamlet/habitation shall be deemed to extend to the traditional community resources like forest lands, cultivable fallows, grazing land, waste lands and water bodies that may have been so accepted by communities concerned according to their tradition which shall be demarcated by the Gram Sabha. This shall be recorded as a territorial rights or access rights, as the case may be, by the district revenue authorities and notified by the District Collector as the geographical jurisdiction and/ or access rights of the concerned village.

Provided that disputes concerning boundaries or access rights between neighbouring hamlets/habitations shall be referred to the Panchayat at the appropriate level/ competent authority as may be prescribed under the Rules by the concerned State governments for early settlement, after which the concerned records shall be corrected accordingly.

(d) (i) Gram Sabha at hamlet/habitation level may constitute Standing/ ad-hoc Committees from amongst their members for assisting the Gram Sabha in discharging different responsibilities.

(ii) The members of the Committees shall be chosen from among members of the Gram Sabha preferably by consensus in an open meeting of the Gram Sabha following such procedure as may be prescribed. 

(iii) Any village committee constituted under any statute, executive instruction of government, department or authority shall function under the control and direction of the Gram Sabhas in regard to the functions and areas under their jurisdiction.

(e) every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution;

Provided that any person aggrieved by any decision of the Gram Sabha, or inaction on its part, or irregularity in the conduct of meetings or such like, can bring the matter before the Gram Sabha for review within such time limit as may be prescribed. An appeal shall lie with competent authority in such manner as may be prescribed under rules by the concerned State government. The decision of the appellate Authority shall then be final and binding on the parties and communicated in writing with reasons thereof.

(f) every Gram Sabha is empowered to:

(i) prepare a perspective plan of 5 years based on development needs and determine priorities of works/programmes to be undertaken. This will form the basis for annual plans under various government schemes and programs.

(ii) direct the Government agencies to submit the prioritized list of works/projects to be undertaken to the Gram Panchayat or Panchayats at appropriate level as well as list of beneficiaries as selected by Gram Sabha under various programmes and schemes within the hamlet/habitation to the Gram Sabha for prior approval of the Gram Sabha.

(iii) consider and approve plans, programs and projects for socio-economic development of all Government and Non-Government Agencies before they are taken up for implementation at the hamlet/ habitation level.

(iv) conduct regular social audit of works and programs taken up in the hamlet/habitation by any Panchayat, State or any other agency.

(g) every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds by that Panchayat for the plans, programmes and projects referred to in clause(e);

(h) the reservation of seats in the Scheduled Areas at every Panchayat shall be in proportion to the population of the communities in that Panchayat for whom reservation is sought to be given under Part IX of the Constitution;

Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats;

Provided further that all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes;

(i) the State Government may nominate persons belonging to such Scheduled Tribes as have no representation in the Panchayat at the intermediate level or the Panchayat at the district level:

Provided that such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat;

(j) (i) Prior informed consent of the Gram Sabhas and the concerned Panchayats at the appropriate level, affected by the proposed project or located in the zone of influence of any land acquisition project, shall be mandatory for the acquisition of any land in the Scheduled Areas for development projects falling within the jurisdiction of the concerned Gram Sabha, irrespective of the classification of land.

(ii) Prior informed consent of the Gram Sabhas and the concerned Panchayats at the appropriate level shall be mandatory regarding the rehabilitation and sustainable livelihood plan for persons affected by projects in the Scheduled Areas.

(iii) The procedure for prior informed consent in (i) and (ii) above and arriving at a decision shall be prescribed by the concerned State government under the Rules.

(iv) All decisions taken by the concerned Gram sabha/s and the concerned Panchayats at the appropriate level, and the decision taken by the Government or the concerned competent authority, with reasons thereof, shall be placed in the public domain by the concerned State Government ;

(v) Full facts about the project for which land is proposed to be acquired, its zone of influence, its economic, social and environmental impact and rehabilitation and sustainable livelihood plans shall be placed before the Gram Sabha while taking the consent of the Gram Sabha and Panchayats at the appropriate level, as the case may be, as provided in the rules.

Provided if at any point of time, it is found that the consent of the Gram Sabha was obtained through fraud, force, concealment, inducement or omission of information, then the Gram Sabhas and Panchayat at the appropriate level have the right to withdraw consent in whole or in parts as the case may be after due inquiry by competent authority in a time bound manner as prescribed under the rules.

(vi) (a) After the consent has been obtained, the acquiring agency shall mandatorily place before the Gram Sabha for its consideration, the progress of the rehabilitation and sustainable livelihood plan after every 3 months from the date of notification for land acquisition. 

(b) Upon the passage of a resolution from majority of the Gram Sabhas and Panchayats at the appropriate level stating that measures for rehabilitation and sustainable livelihood have not been observed as scheduled, the implementation of the project shall be halted, till the required rehabilitation and livelihood activities are completed. The Gram Sabhas shall be entitled to compensation for any damages incurred due to delays in rehabilitation.

(c) No displacement/relocation of the person/s from the project area which is proposed to be acquired shall be undertaken unless all facilities under the rehabilitation package are certified to be complete and functional at the site of resettlement by the Gram Sabha.

(vii) If the Gram Sabha concludes that the land has been used/transferred for purposes other than for which informed consent was sought/ acquired, and such a claim has been verified by a due process, then the Gram Sabha may inform the State Government its decision in writing to withdraw its consent. Where such withdrawal occurs, the residents of the Gram Sabha shall be entitled to civil damages for fraud and to institute criminal proceedings on the same basis.

(viii) The acquired land shall revert back to the Gram sabha in the event that the purpose for which land was acquired is changed or the project is not taken up within five years from the date on which consent is granted.

(k) The concerned Gram Sabha/s, or the appropriate Panchayats if the spread of the water body falls beyond more than one village, as the case may be, are empowered to plan and manage the minor water bodies in their areas.

(l) the prior informed consent of the Gram Sabha, and, if necessary, the Panchayats at the appropriate level depending on the area under consideration shall be made mandatory for any grant of prospecting license or concession for exploitation of minor minerals in any manner;

Provided if at any point of time, it is found that information provided is false or concealed, or is inaccurate, then the Gram Sabhas and Panchayat are at liberty to withdraw consent in whole or in part.

(m) while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with-

(i) the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant;

(ii) the ownership of minor forest produce;

(iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe;

(iv) the power to manage village markets by whatever name called;

(v) the power to exercise control over money lending and curbing usury to protect the interests of members of Gram Sabhas as provided in the rules;

(vi) the power to exercise control over institutions and functionaries in all social sectors;

(vii) the power to control over local plans and resources for such plans including tribal sub-plans;

(n) the State Legislations that may endow Panchayats with powers and authority as may be necessary to enable them to function as institutions of self-government shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha;

(o) the State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.

Continuance of existing laws on panchayats:

5. Notwithstanding anything in Part IX of the Constitution with exceptions and modifications made by this Act, any provision of any law relating to Panchayats in force in the Scheduled Areas, immediately before the date on which this amendment Act receives the assent of the President, along with extant rules and procedures which are inconsistent with this amended Act, shall be null and void unless brought in conformity before the expiration of one year from the date on which this amendment Act receives assent of the President;

Provided that other extant State subject Acts along with rules and procedures thereunder dealing with subjects covered under this amended Act, shall be null and void to the extent that they contravene this Act, unless brought in conformity within one year of this amendment taking effect.

Provided that Central Acts along with rules and procedures thereunder dealing with such subjects covered under this amended Act or parts thereof not in conformity with provisions of this amended Act, shall be brought in conformity within one year of this amendment taking effect.

6. The Central Government may, from time to time, issue general or special directions to the State Governments in writing for the effective implementation of the various provisions of this Act and the same shall be binding on the State Governments. 

7. The State shall have powers to notify rules for implementation of this Act. These shall be in conformity with Central directions issued, if any, under this Act.

8. Any member of Gram Sabha can complain on a decision or procedure adopted or action taken in violation of the provisions of this Act by the Gram Sabha, a Panchayat, or a government functionary or agency, or non governmental entities or an individual. The manner of inquiry into the complaint and grievance redressal procedure shall be provided under the rules prescribed by the concerned State. 

 

2. Directions to be Issued under Proviso 3 of the Fifth Schedule

I. Aligning State laws with PESA to ensuring autonomy of Gram Sabha in Scheduled Areas

Sec.4 (n) of PESA Act of 1996 requires that the Panchayats function as institutions of self-governance, for which it is necessary to ensure that the Panchayats at the higher level do not assume the powers and authority of any Panchayats at the lower level or the Gram Sabha. The intent of Section 4(n) is to ensure that the Gram Sabha and the Panchayats at the lower level are rendered functional by enabling provisions, appropriate rules, directions and guidelines that will facilitate efficacious exercise of the multiple powers conferred by PESA on the Gram Sabha.

The following are directions to be issued under Proviso 3 of the Fifth Schedule

1. All provisions in the State legislations, especially those related to Panchayats, that are inconsistent with the provisions of Sec.4 (n) are null and void as the provisions of the Central legislation shall prevail. Therefore, inconsistent provisions in the State laws are to be amended suitably.

2. All subject related laws covered under PESA, and their rules and procedures, of the State should be brought in conformity with the PESA Act, 1996, within a period of one year from the date of issue of directions.

II. Identification and declaration of ‘Village’ and its Geographical Jurisdiction

Section 4 (b) of PESA defines a ‘village’ as a habitation or a group of habitations, or a hamlet or a group of hamlets, comprising a community and managing its affairs in accordance with its traditions and customs and empowers the gram sabha as the assembly of the adults of the village. However, in a clear violation of PESA, the general Panchayat Raj structure has been adopted even in Schedule V areas, whereby the Gram Sabha of Gram Panchayat, usually spread over a number of habitations is being misconstrued to be Gramsabha under PESA. As the successful operationalisation of PESA hinges on adopting the operational definition of Gram Sabha and village, it is necessary that the identification of the ‘village’ and delineation of its geographical limits in conformity with PESA is done to enable it to function as envisaged under law.

Therefore, the following directions be issued under Proviso 3 of the Fifth Schedule

1) State Governments shall prepare and notify the list of hamlets (settlements) in every Panchayat for notification as “gram sabhas” for the purposes of the Panchayats (Extension to the Scheduled Areas) Act 1996 within one year from the date of issue of this direction. Such Gram Sabha shall ordinarily comprise of the assembly of the residents of one or more hamlets, comprising a community and managing its affairs in accordance with traditions and customs within its territorial boundaries. This unit will ordinarily be below the revenue village and is not the same as gram sabhas at the panchayat level.

2) State governments shall devolve necessary powers and resources (both human and financial) to gram sabhas to enable them to undertake their roles and responsibilities in an effective manner through amendments in law, rules and

procedures in areas covered under PESA in addition to undertaking capacity building and training .

 

III. Powers to identify beneficiaries, approve plans, programmes and projects, control over institutions and functionaries and issue of utilization certificate

Sections 4(e) (i) and (ii), 4(f), and 4(m) (vi) and (vii) of the Panchayats (Extension to the Scheduled Areas) Act 1996 confers the power to approve the plans, programmes and projects for social and economic development to the Gram Sabha, before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level. The Gram Sabha is additionally empowered to identify and select beneficiaries under the poverty alleviation and other programmes. Gram Sabha is also empowered to control local plans and resources for such plans including tribal sub-plans, and exercise control over institutions and functionaries in all social sectors; and issue certification of utilisation of funds to the Panchayat for the plans, programmes and projects. However, notwithstanding the clear provisions of the Act, most of the said powers are not conferred de jure and de facto on the Gram Sabha

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) The Gram Sabha is the Competent Authority for identification of beneficiaries for development programmes and select them accordingly;

(2) The list of works/projects to be undertaken by the government agencies and non-government agencies in the village along with complete details, such as their relevance, full financial details, details of the work/projects including technology to be used, participation of local work force, role of contractors, etc. shall be submitted to the Gram Sabha by the Gram Panchayat or Panchayats at appropriate level; and their approval shall be obtained from the Gram Sabha prior to granting sanction to the plan or project.

(3) The Gram Sabha shall conduct regular social audit of works/projects and programs taken up by any Panchayat, State or any other agency in their area and its findings shall be sent to the Gram Panchayat and to the concerned Government agency for necessary action;

(4) All agencies undertaking any work within the village shall apply for certification to the Gram Sabha together with documentary proof of expenditureand mandatorily obtain certification of utilization of all funds and works undertaken from the Gram SabhaThe Gram Sabha will issue such certificate after inspection and verification of the work ;

(5) Any objection pertaining to the quality of the work or expenditure, etc. may be placed before the Gram Sabha. The Gram Sabha may examine the issue and give proper instruction for improvement and its decision will be final;

(6) The Gram Panchayat and its committees will work under the general direction of the Gram Sabha and be accountable to the Gram Sabha in respect of services and programmes for that area. Any enquiry into the functioning of the Gram Panchayat or any functionary will be conducted after consulting the concerned Gram Sabha(s). The findings and results of the enquiry shall be presented before the Gram Sabha before being finalized and forwarded for proper action;

(7) The Gram Sabha shall review all social sector schemes, institutions and functionaries functioning in the village whether governmental or non-governmental;

(8) On completion of any programme, the complete details thereof will be produced before the next meeting of Gram Sabha. The Gram Sabha may constitute special Committees, call for their training to fulfill their responsibilities and seek assistance of experts to assist in its reviews;

(9) Instructions of the Gram Sabha, including imposition of penalties, steps to improve the implementation of social sector schemes, performance of functionaries and delivery of services shall be complied with by the concerned functionaries.

IV. Land Alienation and Restoration of Illegally Alienated Lands

Ownership and secure access to land is very important for the wellbeing of the tribal people and land alienation is arguably the most important reason for their disaffection. Studies show that the administration has been ineffective in protecting the corpus of tribal lands and hence section 4(m) (iii) of PESA empowers the community to protect the land resources and habitations of Scheduled Tribes in Scheduled Areas, while Sec.4 (d) additionally recognizes the competence of the Gram Sabha to safeguard community resources and both individual and collective rights to land. The Gram Sabha is empowered to take prompt and appropriate action to protect the corpus of tribal lands, prevent alienation of tribal land and take efficacious steps to restore alienated land of a member of the Scheduled Tribe, acting singly or with the support of the Revenue Authorities.

All land transfers to non tribals have been banned in the Scheduled areas of Andhra Pradesh by Regulation No 1 of 1970 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, which has effectively reduced tribal land alienation. Further, the principle underlying the Samata Judgement affirms that land in the PESA areas serves the interests of the tribals. Protection of the corpus of tribal land, restraint on unlawful alienation or acquisition and efforts to ensure that gains from the land accrue to the tribal people is the clear intention of the Constitution, Laws and Regulations of the States and judicial pronouncements.

It is proposed that following directions be issued under Proviso 3 of the Fifth Schedule for incorporation in the Land Revenue Code of the State and other related land laws to enable gram sabhas to carry out these powers and responsibilities pertaining to prevention of land alienation and powers of restoration of alienated tribal land.

Protection of the Corpus of Tribal Land and Prevention of its Alienation

(1) Any transfer of immovable property situated in the Scheduled Area by a person, whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Co-operative Societies Act of the State which is composed solely of members of the Scheduled Tribe (1);

1 Adopted from Sec.2(1)(a) inserted by Regulation No 1 of 1970 to the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959

(2) The following shall be included in the provisions in the Land Revenue Code of the States and laws related to alienation and restoration of tribal land requiring

(a) the Revenue Department to make an inventory of all lands in the possession of the tribals and ensure expeditious securing of appropriate titles under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 or Land Revenue Codes or relevant land laws, as the case may be;

(b) the Revenue Department to ban all sale, transfer or lease, in the Fifth Schedule areas without the express prior informed consent of the Gram Sabha;

(c) mandatory intimation from the Revenue Authorities and individual or non governmental entities to the Gram Sabha in writing through the Gram Panchayat of any proposed sale or transfer including lease, mortgage of any land/transaction in the village;

(d) mandatory provision of providing all relevant revenue records sought by the Gram Sabha concerning the proposed sale, transferor lease of the land within 30 days of such request in writing;

(3) Every State having Scheduled Area shall constitute a ‘Land Consolidation Fund’ (LCF). Part of this fund shall be allocated at the district level to a designated authority to be notified by the State Government. The designated authority shall release necessary fund to the Gram Sabha for purchase of any land within its jurisdiction in the manner prescribed below. The LCF shall exclusively be used for enabling the Gram Sabhas in the Scheduled Area for the following purpose:

(a) purchase at market price of any land falling within the jurisdiction of the concerned Gram Sabha owned by any resident whether a Scheduled Tribe or not, and who is desirous of selling his/her land and has made a request in writing to the Gram Sabha;

(b) the land thus purchased shall be in the name of the Gram Sabha of the concerned habitation;

(c) the said land shall be put to use for common purpose by the concerned Gram Sabha;

(d) the Gram Sabha may allocate such land, partly or wholly as the case may be, to any landless Scheduled Tribe of the habitation with enjoyment rights;

(e) the Gram Sabha shall cancel such enjoyment rights if need be and reallocate the same to another landless Scheduled Tribe of the habitation or utilise the same for the common community needs;

(f) The Record of Rights with respect to such land shall be in the name of the Gram Sabha. 

Restoration of Alienated Tribal Land

(1) A clear and explicit provision be made in the Revenue Law and other relevant laws to include such provisions in the Land Revenue Code of the State and laws related to alienation of tribal land that

(a) confer power on the Gram Sabha to act suo motu or on a complaint from a member of the gram sabha to restore the alienated tribal land;

(b) authorize the Gram Sabha to call for all relevant revenue records concerning the alienation of such land to be provided within 30 days of such request;

(c) empower the Gram Sabha to conduct a hearing and order restoration of the land back to the concerned member of the Scheduled Tribe;

(d) The Gram Sabha may direct or seek the assistance of the Police in restoration of the land, if it so desires.

(2) Gram Sabha shall inform the orders of restoration to the Sub-Divisional Officer who shall ensure restoration within a period of three months, intimate the same to the Gram Sabha and direct appropriate entries in the Record of Rights.

(3) The Gram Sabha may constitute a Standing Committee from among its members and call upon the Revenue Authorities to train such members in all matters related to the maintenance of records and the exercise of the powers mentioned above.

 

V. Regulation of intoxicants

Sec.4 (m) (i) confers the Gram Sabha with ‘the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant’. Intoxicants, particularly liquor, have been an instrument for usurpation of resources, particularly land, in the tribal habitations with devastating effect on the lives of the Adivasis, particularly women and children. Hence empowering the Gram Sabha with the power to regulate intoxicants is critical to ensuring that the community has direct control and responsibility over this matter.

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) The Gram Sabha shall have the powers to grant or deny permission for brewing indigenous/ traditional inebriants for sale, and establishment of a factory to manufacture intoxicants, and will have powers to regulate collection, storage, sale and use of intoxicants within its territory; 

(2) The Gram Sabha shall have powers to regulate existing shops or outlets vending intoxicants in the village and direct the competent authority to close any shop or outlet operating in violation of any law ;

(3) No permit to start a factory may be issued by Government without the consent of all Gram Sabhas in the area; and

(4) Agreement of fifty percent of women present in the Gram Sabha meeting is necessary in all decisions concerning manufacture, sale and consumption of intoxicants.

VI. Control over Money Lending in the Scheduled Areas

Usurious money lending has been the single most important cause of impoverishment and exploitation of the tribal people after these areas were opened up by the British.Usurious money lending has been major cause of dispossession of land and resources of the tribal people, leading to widespread distress and disaffection. It is in this light that PESA seeks to empower the Gram Sabha, to regulate money lending and usury.

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) To include such provisions in concerned State laws, rules or procedures to

(a) Confer power on the Gram Sabha to act suo motu or on a complaint from a member of the gram sabha concerning usurious money lending by any individual or institutions and to direct the competent authorities to cancel the licence of the offending money lender/ institutions and take necessary civil and criminal action as the case may be ; and

(b) Conduct a hearing and order restoration of the monies or interest or mortgaged/ unlawful alienation /conditional sale of property back to the concerned member of the aggrieved member of the Gram Sabha;

(2) Regulate Money Lending by declaring that:

(a) levying of ‘compound’ interest by any money lender, whether individual or institutions on loans given to members of Scheduled Tribes is illegal;

(b) no moveable or immovable property of a Scheduled Tribe shall be alienated in lieu of recovery of loan or interest.

(c) All licences for money lending by individuals to be subject to issue of no objection certificate by the concerned Gram Sabhas in its jurisdiction.

3. OTHER RECOMMENDATIONS TO CENTRAL GOVERNMENT

I. Inclusion of tribal habitations hitherto not included under the Fifth Schedule

Fifty to seventy percent of the STs live outside the Scheduled Areas and hence are denied rights provided in Article 244. The Bhuria Committee rightly observed that the present-day administrative boundaries of the Scheduled Areas were determined during colonial times based on colonial compulsions. The earlier boundaries were modified without paying attention to the fragmentation of contiguous communities living in contiguous areas with the result that tribal communities are continuously being reduced to a minority population, be it the State, district or block and thereby making them marginal in every way.

Various committees had recommended that habitations that have been left out be included and the anomaly rectified. Further, recommendations to make the Tribal Sub-Plan areas coterminous with Vth Schedule Areas has not been implemented, entirely due to political and administrative apathy and neglect, thereby excluding large numbers of tribal habitations. This situation prevails even after the Fifth Schedule to the Constitution (Amendment) Act, 1976 (101 of 1976), which required states to include hitherto tribal habitations. But no tribal habitations in the States of Kerala, Tamilnadu, Karnataka, West Bengal, Jammu & Kashmir and Uttar Pradesh have been included under the Vth Schedule as Scheduled Area.

The provisions of the Fifth Schedule under Article 244(1)2 are applicable not only to the administration and control of Scheduled Areas,but also to the Scheduled Tribes. PESA, as the extension of the 73rd Amendment to the Constitution to the Scheduled Areas cannot be applied to close to 70% of the tribal regions in the absence of their inclusion. Hence it is appropriate to call upon the State governments to make fresh proposals to bring tribal areas under the Vth Schedule.

2 Article 244. Administration of Scheduled Areas and Tribal Areas

(1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram

In order to effectively carry out the inclusion of tribal areas under the Vth Schedule to the Constitution, it is recommended that:

States to list out all villages whose Scheduled Tribe population is over 50 percent as per 2011 census and prepare proposal for their inclusion in Scheduled areas to the President. A Special Task Force may be constituted by the Government of India to facilitate and to expedite process of notification by the President of all proposals received from states for inclusion in Scheduled Areas.

II. Upgradation of Panchayats to Municipalities in Scheduled Areas

Numerous Panchayat areas are being upgraded/ converted as municipal/urban areas in the Scheduled Area and it is being argued that PESA is no longer applicable in these areas. This has happened in Chhattisgarh, Madhya Pradesh and Maharashtra, and has resulted in cases being filed in courts. The Chhattisgarh High Court declined to stay the elections to the newly formed urban Panchayat. The Jabalpur High Court stayed elections to 52 District Panchayats and municipalities in 26 districts having Scheduled Areas. In September 2009, the court held the Panchayati Raj Act did not apply to Scheduled Areas and said that the Parliament should enact a suitable law extending 74th Amendment to urban areas in Scheduled Areas. There is also a case pending in Maharashtra. More PESA areas can be expected to be upgraded, taking those out of the purview of PESA and these will exist in a constitutional vacuum and unlawfully brought under the purview of the general municipal law.

The Second Bhuria Committee Report concerning the Extension of the Provisions of the 74th Amendment to Urban Local Bodies in the Scheduled Areas was tabled in Parliament on 19 July, 1995 making a number of observations and recommendations. The Provisions of the Municipalities (Extension to Scheduled Areas) Bill 2001 based on the aforesaid Report as well as the comments from the central ministries and the concerned State governments having Scheduled Areas, was introduced in the Rajya Sabha on 30th July 2001 and was referred to the Standing Committee on Urban and Rural Development on 6 August 2001. The Standing Committee submitted its report and recommendations in November 2003 as its Fifteenth Report. However the Union Government is yet to introduce a suitable law for the administration of Municipal Areas in Scheduled Areas. The result is that the Panchayat areas within the Scheduled Areas are being upgraded into Municipal Areas and taken out of the purview of PESA provisions without the mandatory alternative protective provision extending the 74th Amendment to the Municipal Areas in place and thus creating a legal infirmity. This needs to be rectified.

It is recommended that:

The Union Government takes steps to introduce the revised Provisions of the Municipalities (Extension to Scheduled Areas) Bill in the Parliament at the earliest in such a manner that the interests of the Scheduled Tribes are not adversely affected.

III. Structures above the Gram Sabha at district level in Scheduled Area

Sec.4 (o) of PESA requires that the State Legislature provide the pattern of the Sixth Schedule to the Constitution while designing administrative arrangements in District Panchayats in the Fifth Schedule Areas. At present this has not been adhered to and on the contrary the efforts are to assimilate, integrate or subsume tribal habitations/villages and their Gram Sabhas in the Scheduled Areas into the prevailing Panchayat Raj system operating in the area outside the Scheduled Area where the Panchayat structure dominates rather than the Gram Sabha as envisaged in PESA.

It is recommended that:

The Ministry of Tribal Affairs along with the Ministry of Panchayat Raj jointly constitute a Special Task Force of persons with the expertise on tribal matters to study the functioning of the Fifth and Sixth Schedules and laws related to the tribal people and recommend appropriate administrative arrangement for Vth Schedule Areas within one year.

 

#INDIA- Mental Health Law Reform: Challenges Ahead


Posted on December 23, 2012by 

by Aditya Ayachit

mentalMental disorders are complex physiological infirmities of the nervous system. While they continue be the tough riddles in the field of medical research, they pose even more daunting challenges in the socio-economic and legal contexts. In recent times the mental health laws across the world have undergone a significant change. A policy of segregation has been abandoned in favor of a policy of integration and protection. Theprima facie reason for this shift appears to be the increasing influence of the Human Rights discourse over laws and policy making. Thus, a new mental healthcare paradigm has emerged which advocates that the mentally ill are not objects of charity or social protection but are subjects with rights and States and the International bodies are under an obligation to provide them with the means of enforcing these rights.The international consensus about the new paradigm was strongly conveyed by the near unanimous acceptance of theUnited Nations Convention on the Rights of Persons with Disabilities 2006(commonly known as the Disability Convention’) and Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (or simply the MI Principles).

India is a signatory to the Disability Convention. However, it has failed to bring its laws and institutions in tune with the standards set by the convention. To fulfill its commitments under the Disability Convention, 2006 and MI principles of 1991, India needs a major overhaul of its disability laws and policies dealing with mental health care. The Ministry of Health and Family Welfare (MHFW) recently came out with the Mental Health Care Bill 2012 responding to this formidable legislative challenge. The reactions to this bill were mixed with some groups lauding provisions decriminalizing attempted suicide by a mentally ill person, ensuring the availability of insurance for treatment of mental illness at par with physical illness and prohibition of certain medical procedures like the Electro Convulsive Therapy (in case of minors), Sterilization and Chaining, while others opposing the bill on the ground that its provisions curtailed patient autonomy and liberalized the laws for involuntary admissions to mental institutions. This post does not aim to comprehensively review the bill. Rather, it attempts to map the issues that the Bill appears to address and contrasts the status quo with the regime the bill seeks to establish.

Few Mental Health Practitioners and Institutions in India

A recent statistic from the MHFW indicates that about 7 percent of the Indian Population suffers from some form of mental disorder. Another startling statistic is that 90 percent of these disorders remain untreated. The leading cause behind this paradox is the acute shortage of mental health institutions and qualified mental health practitioners in India. Our large and populous country of 1.2 billion people has about 40 mental health institutions, 3,500 psychiatrists, 500 clinical psychologists, 300 psychiatric social workers and 1,000 psychiatric nurses to treat its mentally ill citizens. In addition to this, most of the institutions and practitioners are located in urban areas. This creates a serious problem in a country like India where over 70 percent of the population lives in rural areas.

mAccording to the National Family Health Survey, the private medical sector remains the primary source of health care for the majority of households in both urban areas (70 percent) and rural areas (63 percent) of India. While private players contribute immensely to the health care industry, it remains the case that they generally shy away from investing in mental health institutions.  This is mainly due to low policy priority given to mental health sector, strict licensing requirements under the Mental Health Act 1987 and the lack of any special incentive for investing in this sector. Today in India, government health policies mainly focus on communicable diseases like HIV/AIDS, malaria and tuberculosis or on child malnutrition or on reproductive healthcare. Mental healthcare rarely finds mention in the policy. This underscores the importance of this sector and makes the investment environment in such services unattractive and discouraging.

Another factor that reduces the likelihood of private investment in mental health care is the strict licensing regime set up by the Mental Health Act 1987; the legislation that currently governs the mental health sector. This Act lays down a complicated procedure of issuing a non-transferable and non-heritable license to a person who wishes to open a mental healthcare institution. The act further discriminates between government established institutions and privately maintained institutions by exempting the government institutions from the statutory requirement of obtaining a license. If private participation is to be encouraged, this system of licensing needs to be rationalized.The Mental Health Care Bill 2012 goes a long way in this regard. The bill replaces the stringent licensing system with a simpler system of registration. The registration unlike a license is not linked to a particular person and is freely transferable for instance on the sale of the institution. It also allows the institution an appeal to the High Court if the grant of registration or renewal of registration or cancellation of registration is refused by the appropriate authority. While the bill seeks to relax the laws governing the setting up of mental health institutions it must ensure via its provisions that this does not in any way affect the quality of health care provided in these institutions. The issue of quality of health care will be taken up further in this post.

mental_health_disorders_other_issues_that_fuel_substance_abuseTo ensure that rural areas also benefit from private investment, the incentives given to invest in rural areas could be greater than those given for investment in urban areas. Another way in which the presence of mental health facilities in rural areas can be increased is by proper implementation of the District Mental Health Program which was initiated by the Government of India in 1996. Currently, the program is under implementation in only 123 of the total 657 districts of the country. A proper implementation of the program would go a long way towards ensuring that rural areas have adequate mental care facilities in near vicinity.

Poor Quality of Mental Health Institutions

The second core issue in this area is the unacceptable quality of medical care provided to the mentally ill in the existing mental health institutions in our country. It would not be an overstatement to say that the patients who receive mental health treatment in India are treated in a most inappropriate and inhuman way in our mental institutions. The institutions usually resemble prisons where the mentally ill are debased and deprived of their dignity. They are made to live in unacceptable living conditions and are shackled down in chains for long hours. They are fed unhygienic prepared unwholesome meals, are subjected to painful medical procedures without their consent, are regularly beaten and in some cases are also subjected to sexual assault. Sometimes they are sterilized on the basis of a medical myth that sterilization cures mental disability. In essence, the patients never receive adequate treatment. Rather the treatment aggravates their condition and makes them sick and infirm for life completely eliminating any hope of rehabilitation or a chance of leading a normal life (see here and here for more). Any mental health care legislation must develop a structured mechanism for ensuring that our mental health institutions do not fall short of the internationally accepted standards of treatment and care. The Mental Health Act 1987 and the State Mental Health Rules 1990 provide detailed safeguards to ensure that the health institutions meet the statutory standard. While building upon this legacy, any new legislation must incorporate the minimum standards laid down in the Disability Convention of 2006 and the MI Principles of 1991. Further, steps must be taken to bring government maintained institutions under the purview of these regulatory procedures. It may be noted here that the Mental Health Act 1987 is quite inconsistent with the principles and safeguards laid down in the aforesaid international instruments and as government hospitals are deemed to be licensed institutions under the act, it is unclear whether the procedures laid down for revocation of license in cases of non-compliance are applicable against  government facilities.

Consent of the Mentally Ill Patients

depression-4Another aspect that would have to be substantially addressed in mental health legislations is with respect to consent of the patient to receive treatment. It is a cardinal principle of medical science that no one may be subjected to any medical procedure without his/her express consent and such procedure may not continue after the person has withdrawn his consent. Mental Healthcare raises complex questions regarding consent. The Mental Health Care Bill 2012 provides innovative solutions to the problem of consent. The bill allows persons to register an ‘advance directive’ with the appropriate mental health board. An ‘advance directive’ is a legal document containing details of the kind of treatment a person wishes to receive or does not wish to receive in the event of mental illness. It also contains the details of the person’s nominated representatives who are entitled to give consent on the person’s behalf when he is not in a position to give consent. The bill provides procedures for amendment or cancellation of advanced directives and also gives powers to the Central or State mental health board to review advance directives and to suspend or amend them in some special cases (for instance when the advance directive has been made under force, coercion, undue influence etc. or when it was made without proper knowledge). While many groups are touting advance directive as a foolproof solution to the problem of consent, it remains to be seen how this statutory tool would operate in real life. This provision has been opposed on the grounds that it would be susceptible to gross misuse especially in rural areas where the patients are illiterate and are not aware about their rights.

Rehabilitation and Social Awareness

Another issue that the bill attempts to address is rehabilitation and social awareness. These concepts are inter-related. The extent to which a patient can be restored back in his life (family, community and occupation) depends on the social understanding of mental illness and the attitude of the society towards the mentally ill. A society which rejects the mentally ill or which despises them cannot possibly assist in rehabilitation of the patient. As societal attitudes are shaped to a large extent by education, an awareness program which aims towards creating social understanding about mental illness can directly assist in making the society more suitable for rehabilitation of the patient. Mental Health Act 1987does not contain any provisions regarding social education or patient rehabilitation. The Mental Health Care Bill 2012 addresses this lacunae and creates an obligation on the Central and State governments to spread awareness about mental illness and its appropriate treatments. The Bill lays emphasis on lowering the stigma associated with mental illness so that a patient’s rehabilitation in the society may be facilitated. It may be noted here that a proper implementation of the aforesaid provisions may go a long way in debunking the long standing myths about mental illness (like mental illness is caused due to demonic possession or that mental illness is incurable) and make the society a better place for the mentally ill.

socialHuman well-being in a country cannot be ensured unless its citizens are physically and mentally fit. Mental health is prone to neglect because it is difficult to detect, difficult to cure and also difficult to explain to the people. The Mental Health Care Bill 2012 appears to be a commendable effort towards addressing the long standing problems encountered by patients and practitioners alike in the sector of mental healthcare and restoring the long lost dignity of the mentally ill.

Image Courtesy: herehereherehere and here

(Aditya Ayachit is an Assistant Editor with the Journal of Indian Law and Society)

 

Rethinking DNA Profiling in India


Vol – XLVII No. 43, October 27, 2012 | Elonnai Hickok , Economic Political Weekly

DNA profile databases can be useful tools in solving crime, but given that the DNA profile of a person can reveal very personal information about the individual, including medical history, family history and so on, a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples needs included in the draft Human DNA Profiling Bill.

Elonnai Hickok (elonnai@cis-india.org) is a Policy Associate with the Centre for Internet and Society.

DNA evidence was first accepted by the courts in India in 1985 1, and in 2005 the Criminal Code of Procedure was amended to allow for medical practitioners, after authorisation from a police officer who is not below the rank of sub-inspector, to examine a person arrested on the charge of committing an offence and with reasonable grounds that an examination of the individual will bring to light evidence regarding the offence. This can include

the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples, and finger nail clippings, by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case”.2

Though this provision establishes that authorisation is needed for collection of DNA samples, defines who can collect samples, creates permitted circumstances for collection, and lists material that can be collected, among other things, it does not address how the collected DNA evidence should be handled, and what will happen to the evidence after it is collected and analysed. These gaps in the provision indicate the need for a more comprehensive legislation regulating the collection, use, analysis and storage of DNA samples, including for crime-related purposes in India.

The initiative to draft a Bill regulating the use of DNA samples for crime-related reasons began in 2003, when the Department of Biotechnology (DoB) established a committee known as the DNA Profiling Advisory Committee to make recommendations for the drafting of the DNA profiling Bill 2006, which eventually became the Human DNA Profiling Bill 2007.3. The 2007 draft Bill was prepared by the DoB along with the Centre for DNA Fingerprinting and Diagnostics (CDFD).4 The CDFD is an autonomous institution supported by the DoB. In addition to the CDFD, there are multiple Central Forensic Science Laboratories in India under the control of the Ministry of Home Affairs and the Central Bureau of Investigation5, along with a number of private labs6 which analyse DNA samples for crime-related purposes.

In 2007, the draft Human DNA Profiling Bill was made public, but was never introduced in Parliament. In February 2012, a new version of the Bill was leaked. If passed, the Bill will establish state-level DNA databases which will feed into a national-level DNA database, and proposes to regulate the use of DNA for the purposes of

“enhancing protection of people in the society and the administration of justice”.7

The Bill will also establish a DNA Profiling Board responsible for 24 functions, including specifying the list of instances for human DNA profiling and the sources of collection, enumerating guidelines for storage and destruction of biological samples, and laying down standards and procedures for establishment and functioning of DNA laboratories and DNA Data Banks.8 The lack of harmonisation and clear policy indicates that there is a need in India for standardising the collection and use of DNA samples. Although DNA evidence can be useful for solving crimes, the current 2012 draft Bill is missing critical safeguards and technical standards essential to preventing the misuse of DNA and protecting individual rights.

Concerns that have been raised with regards to the Bill are both intrinsic, including problems with effectiveness of achieving the set objectives, and extrinsic, including concerns with the fundamental principles of the Bill. For example, the use of DNA material as evidence and the subsequent creation of a DNA database can be useful for solving crimes when the database contains DNA profiles 9 from DNA samples10 only from crime scenes, and is restricted to DNA profiles from individuals who might be repeat offenders. If a wide range of DNA profiles are added to the database, the effectiveness of the database decreases, and the likelihood of a false match increases as the ability to correctly identify a criminal depends on the number of crime scene DNA profiles on the database, and the number of false matches that occur is proportional to the number of comparisons made (more comparisons = more false matches).11 This inverse relationship between the effectiveness of the DNA database and the size of the database was found in the UK when it was proven that the expansion of the UK DNA database did not help to solve more crimes, despite millions of profiles being added to the database.12

The current scope of the draft 2012 Bill is not limited to crimes for which samples can be taken and placed in the database. Instead the Bill creates indexes within every databank including: crime scene indexes, suspects index, offender’s index, missing persons index, unknown deceased persons’ index, volunteers’ index, and such other DNA indices as may be specified by regulations made by the Board.13 How independent each of these indices are, is unclear. For example, the Bill does not specify when a profile is searched for in the database – if all indices are searched, or if only the relevant indices are searched, and the Bill requires that when a DNA profile is added to the databank, it must be compared with all the existing profiles.14 The Bill also lists a range of offences for which DNA profiling will be applicable and DNA samples collected, and used for the identification of the perpetrator including, unnatural offences, individual identification, issues relating to assisted reproductive technologies, adultery, outraging the modesty of women etc.15 Though the Bill is not incorrect in its list of offences where DNA profiling could be applicable, it is unclear if DNA profiles from all the listed offenses will be stored on the database. If it is the case that the DNA profiles will be stored, it would make the scope of the database too broad.

Unlike other types of identifiers, such as fingerprints, DNA can reveal very personal information about an individual, including medical history, family history and location.16 Thus, having a DNA database with a broad scope and adding more DNA profiles onto a database, increases the potential for misuse of information stored on the database, because there is more opportunity for profiling, tracking of individuals, and access to private data. In its current form, the Bill protects against such misuse to a certain extent by limiting the information that will be stored with a DNA profile and in the indices,17 but the Bill does not make it clear if the DNA profiles of individuals convicted for a crime will be stored and searched independently from other profiles. Additionally, though the Bill limits the use of DNA profiles and DNA samples to identification of perpetrators18, it allows for DNA profiles/DNA samples and related information related to be shared for creation and maintenance of a population statistics database that is to be used, as prescribed, for the purpose of identification research, protocol development, or quality control provided that it does not contain any personally identifiable information and does not violate ethical norms.”19

An indication of the possibility of how a DNA database could be misused in India can be seen in the CDFD’s stated objectives, where it lists “to create DNA marker databases of different caste populations of India.”20 CDFD appears to be collecting this data by requiring caste and origin of state to be filled in on the identification form that is submitted with any DNA sample.21 Though an argument could be made that this information could be used for research purposes, there appears to be no framework over the use of this information and this objective. Is the information stored along with the DNA sample? Is it used in criminal cases? Is it revealed during court cases or at other points of time?

Similarly, in the Report of the Working Group for the Eleventh Five Year Plan, it lists the following as a possible use of DNA profiling technology:

“Human population analysis with a view to elicit profiling of different caste populations of India to use them in forensic DNA fingerprinting and develop DNA databases.22

This objective is based on the assumption that caste is an immutable genetic trait and seems to ignore the fact that individuals change their caste and that caste is not uniformly passed on in marriage. Furthermore, using caste for forensic purposes and to develop DNA databases could far too easily be abused and result in the profiling of individuals, and identification errors. For example, in 2011 the UK police, in an attempt to catch the night stalker Delroy Grant, used DNA to (incorrectly) predict that he originated from the Winward Islands. The police then used mass DNA screenings of black men. The police initially eliminated Delroy Grant as a suspect because another Delroy Grant was on the DNA database, and the real Delroy Grant was eventually caught when the police pursued more traditional forms of investigation.23

Other uses for DNA databases and DNA samples in India have been envisioned over the years. For example, in 2010 the state of Tamil Nadu sought to amend the Prisoners Identification Act 1920 to allow for the establishment of a prisoners’ DNA database – which would require that any prisoner’s DNA be collected and stored.24 In another example, the home page of BioAxis DNA Research Centre (P) Limited, a private DNA laboratory offering forensic services states, “In a country like India which is densely populated there is huge requirement for these type of databases which may help in stopping different types of fraud like Ration card fraud, Voter ID Card fraud, Driving license fraud etc. The database may help the Indian police to differentiate the criminals and non criminals.”25 Not only is this statement incorrect in stating that a DNA database will differentiate between criminals and non-criminals, but DNA evidence is not useful in stopping ration card fraud etc. as it would require that DNA be extracted and authenticated for every instance of service. In 2012, the Department of Forensic Medicine and Toxicology at AFMC Pune proposed to establish a DNA data bank containing profiles of armed forces personnel.26 And in Uttar Pradesh, the government ordered mandatory sampling for DNA fingerprinting of dead bodies.27 These examples raise important questions about the scope of use, collection and storage of DNA profiles in databases that the Bill is silent on.

The assumption in the Bill that DNA evidence is infallible is another point of contention. The preamble of the Bill states that, “DNA analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead with any doubt.”28 This statement ignores the possibility of false matches, cross-contamination, and laboratory error29 as DNA evidence is only as infallible as the humans collecting, analysing, and marshalling the evidence. These mistakes are not purely speculative, as cases that have relied on DNA as evidence in India demonstrate that the reliability of DNA evidence is questionable due to collection, analysis, and chain of custody errors. For example, in the Aarushi murder case the forensic expert who testified failed to remember which samples were collected at the scene of the crime30; in the French diplomat rape case, the DNA report came out with both negative and positive results;31 and in the Abhishek rape case the DNA sample had to be reanalysed after initial analysis did not prove conclusive.32 Yet the Bill does not mandate a set of best practices that could help in minimising these errors, such as defining what profiling system will be used nationally, and defining specific security measures that must be taken by DNA laboratories – all of which are currently left to be determined by the DNA board.33

The assumption in the preamble that DNA can establish if a relationship exists between two individuals without a doubt is also misleading as it implies that the use of DNA samples and the creation of a database will increase the conviction rate, when in actuality the exact number of accurate convictions resulting purely from DNA evidence is unknown, as is the number of innocent people who are falsely accused of a crime based on DNA evidence in India. This misconception is reflected on the website of the Department of Biotechnology’s information page for CDFD where it states:

“…The DNA fingerprinting service, given the fact that it has been shown to bring about dramatic increase in the conviction rate, will continue to be in much demand. With the crime burden on the society increasing, more and more requests for DNA fingerprinting are naturally anticipated. For example, starting from just a few cases of DNA fingerprinting per month, CDFD is now handling similar number of cases every day.”34

In addition to the claim that the DNA fingerprinting service has shown a dramatic increase in the conviction rate, is not supported by evidence in this article, according to the CDFD 2010-2011 annual report, the centre analysed DNA from 57 cases of deceased persons, 40 maternity/paternity cases, four rape and murder cases, eight sexual assault cases, and three kidney transplantation cases.35 This is in comparison to the 2006 – 2007 annual report, which quoted 83 paternity/maternity dispute cases, 68 identification of deceased, 11 cases of sexual assault, eight cases of murder, and two cases of wildlife poaching.36 From the numbers quoted in the CDFD annual report, it appears that paternity/maternity cases and identification of the deceased are the most frequent types of cases using DNA evidence.

Other concerns with the Bill include access controls to the database and rights of the individual. For example, the Bill does not require that a court order be issued for access to a DNA profile, and instead leaves it in the hand of the DNA bank manager to determine if communication of information relating to a match to a court, tribunal, law enforcement agency, or DNA laboratory is appropriate37. Additionally, the Data Bank Manager is empowered to grant access to any information on the database to any person or class of persons that he/she considers appropriate for the purposes of proper operation and maintenance or for training purposes.38 The low standards for access that are found in the Bill are worrisome as the possibility for tampering of evidence and analysis is increased.

The Bill is also missing important provisions that would be necessary to protect the rights of the individual. For example, individuals are not permitted a private cause of action for the unlawful collection, use, or retention of DNA, and individuals do not have the right to access their own information stored on the database.39 These are significant gaps in the proposed legislation as it restricts the rights of the individual.

In conclusion, India could benefit from having a legislation regulating, standardising, and harmonising the use, collection, analysis, and retention of DNA samples for crime-related purposes. The current 2012 draft of the Bill is a step in the right direction, and an improvement from the 2007 DNA Profiling Bill. The 2012 draft draws upon best practices from the US and Canada, but could also benefit from drawing upon best practices from countries like Scotland. Safeguards missing from the current draft that would strengthen the Bill include: limiting the scope of the DNA database to include only samples from a crime scene for serious crimes and not minor offenses, requiring the destruction of DNA samples once a DNA profile is created, clearly defining when a court order is needed to collect DNA samples, defining when consent is required and is not required from the individual for a DNA sample to be taken, and ensuring that the individual has a right of appeal.

1 Law Commission of India. Review of the Indian Evidence Act 1872. Pg. 43 Available at:http://lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf. Last accessed: October 9th 2012.

2 Section 53. The Criminal Code of Procedure, 1973. Available at:http://www.vakilno1.com/bareacts/crpc/s53.htm. Last accessed October 9th 2012.

3 Department of Biotechnology. Ministry of Science & Technology GOI. Annual Report 2009 – 2010. pg. 189. Available at: http://dbtindia.nic.in/annualreports/DBT-An-Re-2009-10.pdf. Last Accessed October 9th 2012.

4 Chhibber, M. Govt Crawling on DNA Profiling Bill, CBI urges it to hurry, cites China. The Indian Express. July 12 2010. Available at: http://www.indianexpress.com/news/govt-crawling-on-dna-profiling-bill-cbi-urges-it-to-hurry-cites-china/645247/0. Last accessed: October 9th 2012.

5 Perspective Plan for Indian Forensics. Final report 2010. Table 64.1 -64.3 pg. 264-267. Available at: http://mha.nic.in/pdfs/IFS%282010%29-FinalRpt.pdf. Last accessed: October 9th 2012. And CBI Manual. Chapter 27. Available at: http://mha.nic.in/pdfs/IFS%282010%29-FinalRpt.pdf. Last accessed: October 9th 2012.

6 For example: International Forensic Sciences, DNA Labs India (DLI), Truth Labs and Bio-Axis DNA Research Centre (P) Limited

7 Draft Human DNA Profiling Bill 2012. Introduction

8 Id. section 12(a-z)

9 Id. Definition l. “DNA Profile” means results of analysis of a DNA sample with respect to human identification.

10 Id. Definition m. “DNA sample” means biological specimen of any nature that is utilized to conduct CAN analysis, collected in such manner as specified in Part II of the Schedule.

11 The UK DNA database and the European Court of Human Rights: Lessons India can learn from UK mistakes. PowerPoint Presentation. Dr. Helen Wallace, Genewatch UK. September 2012.

12 Hope, C. Crimes solved by DNA evidence fall despite millions being added to database. The Telegraph. November 12th 2008. Available at: http://www.telegraph.co.uk/news/uknews/law-and-order/3418649/Crimes-solved-by-DNA-evidence-fall-despite-millions-being-added-to-database.html. Last accessed: October 9th 2012

13 Draft Human DNA Profiling Bill 2012. Section 32 (4(a-g))

14 Id. Section 35

15 Id. Schedule: List of applicable instances of Human DNA Profiling and Sources of Collection of Samples for DNA Test.

16 Gruber J. Forensic DNA Databases. Council for Responsible Genetics. September 2012. Powerpoint presentation

17 Draft Human DNA Profiling Bill 2012. Section 32 (5)-((6)(a)-(b)). Indices will only contain DNA identification records and analysis prepared by the laboratory and approved by the DNA Board, while profiles in the offenders index will contain only the identity of the person, and other profiles will contain only the case reference number.

18 Id. Section 39

19 Id. Section 40(c)

20 CDFD. Annual Report 2010-2011. Pg19. Available at:http://www.cdfd.org.in/images/AR_2010_11.pdf. Last accessed: October 9th 2012.

21 Caste and origin of state is a field of information that is required to be completed when an ‘identification form’ is sent to the CDFD along with a DNA sample for analysis. Form available at:http://www.cdfd.org.in/servicespages/dnafingerprinting.html

22 Report of the Working Group for the Eleventh Five Year Plan (2007 – 2012). October 2006. Pg. 152. Section: R&D Relating Services. Available at:http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_subdbt.pdf. Last accessed: October 9th 2012

23 Evans. M. Night Stalker: police blunders delayed arrest of Delroy Grant. March 24th 2011. The Telegraph. Available at: http://www.telegraph.co.uk/news/uknews/crime/8397585/Night-Stalker-police-blunders-delayed-arrest-of-Delroy-Grant.html. Last accessed: October 10th 2012.

24 Narayan, P. A prisoner DNA database: Tamil Nadu shows the way. May 17th 2012. Available at:http://timesofindia.indiatimes.com/india/A-prisoner-DNA-database-Tamil-Nadu-shows-the-way/iplarticleshow/5938522.cms. Last accessed: October 9th 2012.

25 BioAxis DNA Research Centre (P) Limited. Website Available at: http://www.dnares.in/dna-databank-database-of-india.php. Last accessed: October 10th 2012.

26Times of India. AFMC to open DNA profiling centre today. February 2012. Available at:http://articles.timesofindia.indiatimes.com/2012-02-08/pune/31037108_1_dna-profile-dna-fingerprinting-data-bank. Last accessed: October 10th 2012.

27Siddiqui, P. UP makes DNA sampling mandatory with postmortem. Times of India. September 4th 2012. Available at:http://articles.timesofindia.indiatimes.com/2012-09-04/lucknow/33581061_1_dead-bodies-postmortem-house-postmortem-report. Last accessed: October 10th 2012.

28 Draft DNA Human Profiling Bill 2012. Introduction

29 Council for Responsible Genetics. Overview and Concerns Regarding the Indian Draft DNA Profiling Bill. September 2012. Pg. 2. Available at: http://cis-india.org/internet-governance/indian-draft-dna-profiling-act.pdf/view. Last accessed: October 9th 2012.

30 DNA. Aarushi case: Expert forgets samples collected from murder spot. August 28th 2012. Available at: http://www.dnaindia.com/india/report_aarushi-case-expert-forgets-samples-collected-from-murder-spot_1733957. Last accessed: October 10th 2012.

31 India Today. Daughter rape case: French diplomat’s DNA test is inconclusive. July 7th 2012. Available at: http://indiatoday.intoday.in/story/french-diplomat-father-rapes-daughter-dna-test-bangalore/1/204270.html. Last accessed: October 10th 2012.

32 The Times of India. DNA tests indicate Abhishek raped woman. May 30th 2006. Available at:http://articles.timesofindia.indiatimes.com/2006-05-30/india/27826225_1_abhishek-kasliwal-dna-fingerprinting-dna-tests. Last accessed: October 10th 2012.

33 Draft Human DNA Profiling Bill 2012. Section 18-27.

34 Department of Biotechnology. DNA Fingerprinting & Diagnostics, Hyderabad. Available at:http://dbtindia.nic.in/uniquepage.asp?id_pk=124. Last accessed: October 10 2012.

35 CDFD Annual Report 2010 – 2011.Pg.19. Available at:http://www.cdfd.org.in/images/AR_2010_11.pdf. Last accessed: October 10th 2012.

36 CDFD Annual Report 2006-2007.Pg. 13. Available at:http://www.cdfd.org.in/images/AR_2006_07.pdf. Last accessed: October 10th 2012.

37 Draft Human DNA Profiling Bill 2012. Section 35

38 Id. Section 41.

39 Council for Responsible Genetics. Overview and Concerns Regarding the Indian Draft DNA Profiling Bill. September 2012. Pg. 9 Available at: http://cis-india.org/internet-governance/indian-draft-dna-profiling-act.pdf/view. Last accessed: October 9th 2012.

 

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