#India – Why is mainstream media silent on the ( IL)LEGALITY of #UID #Aadhaar


Uid- I am not a criminal
by-PoliticallyIncorrect ,http://centreright.in
Why is the Mainstream Media Silent on the (il)legality of the UID Project?- II
In my last post on the UID project of the UPA government, I had raised a few issues about the manner in which the UPA went about implementing the project by circumventing constitutional protocol. In this post, I will address specifically the fundamental legal infirmities of the campaign. In doing so, I will keep this post as lucid as possible without inundating it with legalese.
As stated in the last post, when the Ministry of Planning was asked to clarify on the legality of constituting an executive body such as the UIDAI without there being a specific legislation in place which sanctioned the collection of information under the UID project, the Ministry cited the Attorney General’s opinion who seems to have relied upon Article 73 of the Constitution.
Now what does Article 73 envisage and permit? Below is the relevant portion of the Article which the Attorney General appears to have relied upon to justify what he calls “Executive Authorisation”:
Article 73: Extent of the Executive Power of the Union
Subject to the provisions of this Constitution, the executive power of the Union shall extend
To the matters with respect to which Parliament has power to make laws
Let’s interpret this Article step by step. The provision starts with a contingent clause i.e. a “Subject to” clause. This means that all other relevant provisions of the Constitution shall act as a limitation on the executive power of the Central Government (“Union”) to deal with matters with respect to which the Parliament has the right to legislate.
Simply put, if there is any other provision in the Constitution which prevents the Central Government from issuing notifications in the absence of a specific legislation made by the Parliament, such notifications would be patently unconstitutional.
The UID, without a doubt, deals with the private details of individuals, and consequently falls within the realm of “privacy”. The Supreme Court has time and gain clarified that privacy-related issues fall within the ambit of Article 21 since right to privacy has been interpreted as being integral to “right to life” under Article 21.
Therefore, the question is, does the Constitution permit intrusion into privacy through mere executive orders such as the UIDAI notification? Or does the Constitution mandate passing a legislation which is fair and reasonable before private details can be collected?
Article 21 states,
Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law
Clearly, Article 21 frowns upon intrusion of privacy except “according to procedure established by law”. Therefore, if the UID notification does not fall under the category of “procedure established by law”, the UPA government cannot invoke its “executive powers” under Article 73 to lend legal sanctity to the UID project.
In as early as 1950, in what is still one of the most celebrated decisions of the Supreme Court on the power of the State to summarily abridge the rights of an individual, the Apex Court in A.K.Gopalan v. The State of Madras held that the reference to “law” in “procedure established by law” in Article 21 is to a formal statute/legislation. In other words, there must be a specific statute which must be invoked to impose restrictions on the life and liberty of any person. This applies to restrictions on and intrusions into the privacy of any person (not just citizen).
Keeping with above requirement of a formal legislation, when information is sought by passport offices, they do so under the Passports Act, 1967. When Road Transport authorities seek details for issuing driving licenses and permits, they do so under the Motor Vehicles Act, 1988 and Central Motor Vehicles Rules. In stark contrast to these legislations, there is no parent legislation which governs the UID notification. This ground alone is sufficient to strike down the UID notification as being unconstitutional. But the story doesn’t end there…
Let’s take a look at what the UID Authority is empowered to do:
(i)    Generate and assign UID numbers
(ii)    Define mechanisms and processes for interlinking UID with partner databases on a continuous basis.
(iii)    Frame policies and administrative procedures related to updating mechanism and maintenance of UID data base on an ongoing basis.
(iv)    Coordinate / liaise with implementation partners and user agencies as also define conflict resolution mechanism.
(v)    Define usage and applicability of UID for delivery of various services.
(vi)    Operate and manage all stages of UID lifecycle.
(vii)    Adopt phased approach for implementation of UID especially with reference to approved timelines.
(viii)    Take necessary steps to ensure collation of NPR with UID (as per approved strategy).
(ix)    Ensure ways for leveraging field level institutions appropriately such as Panchayati Raj Institutions (PRIs) in establishing linkages across partner agencies as well as its validation while cross linking with other designated agencies.
(x)    Evolve strategy for awareness and communication of UID and its usage.
(xi)    Identify new partner / user agencies.
(xii)    Issue necessary instructions to agencies that undertake creation of data bases, to ensure standardization of data elements that are collected and digitized and enable collation and correlation with UID and its partner data bases.
(xiii)    Frame policies and administrative procedures related to hiring / retention / mobilization of resources, outsourcing of various tasks and budgeting and planning for UIDAI and all State units under UIDAI.
The sheer magnitude of powers vested in an executive authority such as the UIDAI in relation to an issue which affects privacy of individuals, in the absence of a governing legislation which provides for safeguards, is atrocious and outrageous.
Where is the safeguard to prevent the use of skewed metrics to profile the population, and that too to facilitate anti-national policies of the Government of the day? Where is the attribution of liability for goof-ups and blunders committed by the authorities? When illegal migration is a raging issue, where is the caveat against legitimizing illegal immigrants by providing them with Aadhaar cards?
Excessive delegation of such vast powers to the executive authority is a strict no-no under Indian law. Here’s what the Supreme Court had to say in Devi Das Gopal Krishnan and Ors.Vs. State of Punjab and Ors. (1967) on the issue of excessive delegation:
“The Constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate items functions in favor of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency.
But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may not declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself and control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation..”
This was the observation of the Hon’ble Supreme Court in a case where there was already governing parent legislation in place. In the case of the UID project, I repeat there is no parent legislation at all. Therefore, this caveat against vesting an executive authority with unchecked powers applies all the more to the UID authority.
In light of the above, I can’t help asking this question- How on earth have the Congress-led UPA government in the Centre and a few State Congress governments gotten away with the blatant implementation of the UID project for 4 years since 2009. Where are the bleeding heart liberal voices and mombattiwallahs who arrogate to themselves the exalted status of being the sole guardians of civil liberties? Hypocrisy much? I’d say so…

 

#India- ‘Voluntary sex work is legal’ #womenrights #goodnews


Published: Sunday, Mar 24, 2013, 9:00 IST
By Yogesh Pawar | Place: Mumbai | Agency: DNA

Sex workers and women’s rights activists have welcomed the government’s move to differentiate ‘prostitution’ from exploitation in the amended Section 370 of the Indian Penal Code.

By inserting a new definition of exploitation, the Criminal Law Amendment Bill 2013 passed by Lok Sabha clarifies a position that till date conflated consensual adult sex work and sex trafficking: ‘Expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.’

“This formulation clarifies the government’s stand of removing adults voluntarily involved in sex work from the ambit of criminalisation,” said Meena Seshu, from the National Network of Sex Workers (NNSW). “This has given a new lease of life to people who are in the sex trade of their own volition, and enables them to seek legal protection if they face violence while working.”

A written clarification issued by the Justice Verma Commission on the framing of the amended Section 370 helped strengthen this stand. “Their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee clarified that it did not intend to bring within the ambit of the amended Section 370 “sex workers who practice of their own volition”.

Madhu Mehra of Partners in Law and Development said, “The distinction between sexual exploitation and consensual adult sex work is very significant as it enables the sex workers and their advocates to legally contest oppressive and forced sex work towards creation of safe and dignified work conditions for sex workers.”

Legislations such as the Immoral Traffic (Prevention) Act has been criticized by human rights activists, organisations and sex workers, on the grounds that the legal provisions have given law enforcement, unbridled powers of arresting and detaining consenting adult sex workers. “Instead of focussing on arresting traffickers, due to ambiguity within the law, adult consenting sex workers were the first targets,” said advocate Vrinda Grover.

@powerofyogesh

 

#India – Young Love, old moralities #moralpolicing #ageofconsent #adolescentsex


Kamayani Bali Mahabal | March 23, 2013, Times Crest

The whole debate around the age of consent is clouded by foolish misconceptions, some of them legal and many of them cultural.

Do Baba Ramdev and others know what the implications of reducing the age of consent are? They have been crying themselves hoarse that the move will lead to a rise in the incidents of rape.
‘Age of consent’ does not imply the age at which you are allowed to consent for sex. It is a legal concept which means that this will be the age below which ‘consent’ will not be considered a valid defence against a rape charge. So if a 16-to-18-year-old boy is charged with rape, he will be convicted even if the girl tells the court she had consented.

There is also another misconception at work in this debate. The age of consent is not being reduced – in India, the age of consensual consent has always been 16. Consensual intercourse with a girl under this age was construed as “statutory rape”. The Protection of Children from Sexual Offences Act, enacted in 2012, increased the age of consent to sexual intercourse from 16 to 18. The Verma Committee recommended that the age of consent in the Indian Penal Code should revert to 16.

Where does the age of consent stand in other countries? Britain, 16, France, 15, and in Spain, 13. In the United States, the age ranges from 16 to 18 years, depending on the state in the question. People need to understand that it is quite normal for people to have sexual relationship at 16 or 17.

The reason feminists are asking age of consent to be kept at 16 years is that we do not want to criminalise and send off young boys to prison when they are in a consensual sexual relationship. As Judge Kamini Lau in her judgment last year said in the absence of what she called a “close-in-age reprieve, ” the increase in the age of consent “would become regressive and draconian as it tends to criminalise adolescent sex. ” If the age of consent is raised to 18, any sexual contact between teenagers will be considered rape, period. And all big brothers who want to control their sisters’ freedom will use it to accuse any boy/male classmate/friend who befriends their sisters, strengthening the patriarchal stereotypes which the women’s movement has been fighting to eliminate for decades.

According to the apex body of child rights in the country, the National Commission for Protection of Child Rights, children’s homes are full of boys who have eloped or had consensual sex with young girls whose disapproving parents have filed cases of kidnapping and rape against them. This means that a later age of consent is widely used as a weapon by protective parents.

Then there is the other question: Would pegging the age of consent at 16 encourage trafficking and rape? How can it? Trafficking and rape are a crime, no matter what the age. If it is raised to 18, young boys, especially from Dalit and tribal communities, will face rape convictions for consensual relationships with upper caste/class girl.

We need to amend the law whereby a man who is 4-5 years or more older than a 16-to-18-year-old girl can be convicted of statutory rape, irrespective of the consent of the girl, as he can sexually exploit a young girl.

The issue here is not if teenage sex is good or bad but if consensual sex between teenagers is to be defined as rape or not. We are drafting a criminal law, not a moral or a social code like the Manu Smriti.
The various babas, religious groups and the khap panchayats believe that young persons, particularly girls, should not exercise any sexual freedom. They view marriage, as determined by their families, as the only destiny for young women. The decision to have sex or not is personal. The law cannot decide when and where a person should have sex, it can only frame laws to prevent crimes.

We should understand the difference between consensual sex and marriage. A marriage is not all about sexual gratification. It is a big social responsibility, which ties a person not only to his or her partner but also to the family and kids. So the age for marriage and consensual sex should be looked at differently. Are child marriages held with the consent of children? No, they are thrust upon them. The argument for keeping the age of consent at 16 years is to prevent the criminal law from interfering in the rights of young people to exercise sexual autonomy and agency. This will curb societal control along conservative lines of caste, class and religion.

While drafting the new law, there are some contemporary realities that government appears to have forgotten. It is medically accepted fact that the age of puberty has been coming down across populations around the world. Biologically, therefore, youngsters are starting to feel the effects of sex hormones raging around their bodies much earlier. According to the third National Health Survey, 2005-06 nearly 43 per cent of women aged between 20-24 had engaged in intercourse before they were 18.

Do we have anything close to sex education in India to allow young people to make informed choices? We need to equip teenagers so they can understand their bodies, and respect sexual attraction, not despise it, and deal responsibly with it. We should not criminalise that attraction. If we do, young men will only end up fearing and hating women, and developing a distorted perception of sexuality and women. This will only make them more violent towards women.

Is this the way we want to deal with violence against women? The criminal law should take into account a teenager’s ability and maturity to make decisions about sex. It should help them deal with their sexuality in an informed and responsible way. Law should strengthen our rights and freedoms and not be an instrument of social control or moral policing.

Now that the government has passed the Bill with the age of consent at 18, we have opened avenues for the prosecution of young boys and girls. We have acknowledged that the Indian society wishes to treat its young boys and girls as immature individuals incapable of making a responsible decision about their sexual lives. Now let us think, is this one step forward or four backwards?

The writer is a lawyer and human rights activist.

 

Mumbai: Cops face camera for #Vaw awareness campaign to encourage women to lodge harassment complaints


Kainaz Karmakar and Harshad Rajadhyaksha of O&M shot a five-part TVC campaign with city cops to encourage women to lodge harassment complaints

March 17, 2013
MUMBAI
Samarth Moray, Sunday Midday
Have you ever been threatened by a man, deterring you to lodge a police complaint? Have you clenched your fist in helplessness, rolled your eyes but decided to let it go? No more. Starting Thursday, five advertisements starring real cops are being aired on a television channel, urging women not to be afraid of approaching the police to lodge harassment complaints against men.


A police woman reaches out to women in one of the ads created by the ad agency

Kainaz Karmakar and Harshad Rajadhyaksha of ad agency O&M have launched this special ad campaign, which puts the focus on the Mumbai Police. Karmakar said, “After the Delhi gang-rape incident in December, Mumbai’s Joint CP Himanshu Roy published a statement in the newspaper saying that the force had undertaken initiatives to train them to deal with sensitive cases. He added that perhaps they needed to publicise them better. That’s where we got this idea.” The duo approached Roy, who put them in touch with Joint CP Sadanand Date, Law and Order. “We deliberately chose ordinary officers with whom the public would interact at police stations,” said Date.

The ads 
“Namaste, ladies. Do you know who my father is? You can’t even imagine what I’m capable of. You don’t know how well connected I am. Don’t be afraid of anyone who uses such phrases and misbehaves with you. Come to the police. No matter how well connected they are. We’ll connect them to jail…” says a silver mustachioed police officer in one of the  advertisements.

In another ad, PSI Vidya Kaldate addresses Mumbai’s women. “I know that you often tolerate harassment from men. You do not even complain against them, worrying how you will tell a male officer what someone said to you, or what a man did to you. That’s precisely why many women police officers like me are present at police stations, for your help and support. So don’t tolerate any harassment…”

Date also suggested shooting similar campaigns to create awareness within the force as well. These internal ad campaigns are played at over 150 city police stations every morning during roll call. They feature ordinary women, reminding cops that they depend on them for safety. “It will help our officers realise that merely registering an FIR is a great help,” said Date.

In another ad, Senior police inspector AR Shaikh of Malwani police station addresses the camera in four languages. “This is meant to counter the impression that police only pay heed to complainants who speak Marathi,” explains Karmakar. Shaikh was delighted to star in the ad. “It was a unique experience and I’m glad I did the advertisement. The message has gone out to women that we are here and ready to help them.”

In fact, it was Shaikh’s co-star senior police inspector (traffic), Rajendra Chauhan’s idea to feature traffic police as they end up being the first point of contact for victims of harassment.  As you cross the shopping district of SV Road Bandra, Deputy Commissioner of Police Harvinder Kaur Waraich, armed with a baton is seen on a billboard. “Ladies should never hesitate to approach the police. The main purpose of the campaign is public awareness. Working women know about policewomen, but housewives may be unaware.”

The ads clear another myth that the police are reluctant to take complaints. “Complaints do get registered and we wanted to bring that out. Every piece is simple and tackles a real fear in the quiet victim’s mind,” concludes Karmakar

 

#India- Not a ‘safe’ issue: Disabled women and sexual violence #Vaw #disability


By Shampa Sengupta & Saptarshi Mandal
sexual assault
For the first time in the history of sexual violence law reform in India, issues pertaining to disabled women are being flagged as important items on the reform agenda. Sexual violence against disabled women is rampant, both within the supposedly safe zone of the ‘home’ – be it familial or custodial – and without. A small number of cases manage to get reported and legal actions are initiated in these. But most of these cases that reach the courts end in acquittal. Some of the reasons behind the low rate of conviction are common to all rape cases: faulty investigation by the police, biased conclusions reached based on medical examination of the victim and the accused, general attitude of distrust towards the victim and so on. But there are also factors that are specific to the cases of disabled women, such as not recording the testimony of the victim during the trial or recording the testimony without following the procedure laid down in law, which weaken the prosecution case at the appellate stage and result in acquittal.

The Justice Verma Committee, constituted by the central government to look into sexual assault law reform after the Delhi gang rape and murder last December, gave many of us working on these issues an opportunity to place some of these concerns before the government. The Committee responded positively and a large number of its recommendations addressed difficulties faced by disabled women in accessing the legal system and navigating through the trial process. Among other things, the Committee recommended that the assistance of interpreters or special educators be taken at the time of recording of the complaint by the police and also during the trial, that the process of identification of the accused be videographed and that disabled women be exempted from recounting their testimony once again at the time of cross-examination in cases of sexual assault. The recommendations also addressed issues of sexual abuse within institutions for the disabled and suggested oversight mechanisms for both state and privately run institutions. The recommendations of the Committee were welcomed by women’s groups and disability groups, including the ones that we are associated with.

However, when the government hurriedly introduced the Criminal Law Amendment Ordinance just three weeks before the upcoming session of parliament, we were faced with a dilemma. The Ordinance, which was promulgated purportedly to give effect to the recommendations of the Verma Committee, incorporated a majority of the disability-specific ones. But longstanding demands made by the women’s movements such as recognising marital rape, rape by security forces, compensation for rape victims, rejection of death penalty as a punishment and such others, which were recommended this time around as well, were left out of the Ordinance. As activist and researcher respectively, we were familiar with the travails of disabled women within the legal system in rape cases. Hence we were acutely aware of the relevance of the disability-specific clauses in the Ordinance and were happy to have been part of the process which had led to those changes. But we were also politically aligned with the women’s movement and thus found it difficult to endorse the Ordinance, which had left out issues which were fundamental to reconceptualising sexual offences in a manner that protected the rights of victims of sexual violence.

Leading from the personal/ political dilemmas regarding our position on the Ordinance, we wondered if the disability-specific recommendations were so readily accepted by the state because disability was seen as a safe, sympathy-inducing issue that posed no threat to the established orders. Demanding that marital rape be recognised as an offence on the other hand, definitely threatened the gendered/ sexualised ordering of heterosexual marriage and family. Was this the reason, we wondered, why the two movements rarely spoke to each other in course of the sexual assault debates, although they raised similar questions pertaining to the body and violence, power and vulnerability? We also wondered if the predominantly service-providing nature of the disability sector was in any way responsible for it being viewed as a ‘safe’ issue? If for the state, disability was a ‘safe’ issue and gender a ‘disruptive’ one, then what did it mean for movement politics – the business of building alliances and solidarities across sectors while engaging with the state? And at a much smaller level, what did it mean for our own work where we try to think through both these axes of power and vulnerability?

While we still do not have clear answers to any of these questions, we want to flag some cautionary notes on sexual violence against disabled women and the legal response to the same. Protecting the rights of the disabled against sexual assault would require us to think beyond provisions for interpreters and special educators, and engage with the domain of power and sexuality as well. In the context of sexual assault law reform, one issue that has created sharp divides between the state and the women’s rights groups, women’s rights groups and the queer and child rights groups, and among the women’s rights groups as well, is the proposition of making sexual offences gender-neutral. In the year 2000, the 172nd Report of the Law Commission mooted the idea of substituting the words ‘man’ and ‘woman’ in Sections 375 and 376 of the Indian Penal Code with the word ‘person’ so as to bring instances of same-sex sexual assault and sexual assault on male children by adults within the scope of the law. The idea was rejected by a wide section of the women’s movement which argued that sexual offences took place within a framework of gendered power relations and the legal system which tried these offences was heavily biased against women. These realities, it was argued, cannot be wished away just by changing words in the law. Similarly, a number of lesbian women’s groups expressed concerns that in the absence of any affirmative legal recognition for same-sex relationships, a gender-neutral rape provision could be used by disapproving families to lodge false complaints against same-sex lovers.

In the last 12 years, several developments have taken place: decriminalisation of adult same-sex sexual acts by the Delhi High Court in 2009, greater public awareness and discussion about child sexual abuse, and much more documented evidence of sexual violence against gay, transgender and transsexual persons. With the result that by the time the government introduced the Criminal Law Amendment Bill in June 2012, there was agreement on certain things among the groups involved in these debates. Thus most groups agreed that victims of sexual assault must be defined in a gender-neutral manner so as to provide protection to men and transgendered persons, in addition to women. But the perpetrator should be kept as male alone, as making the perpetrator gender-neutral would weigh heavily against women. Thus the 2012 Bill, which proposed gender-neutrality with respect to both the victim and the perpetrator, was opposed by women’s groups as well as some queer groups.

Cut to 2013, and the Verma Committee recommended that rape be retained as a gender-specific offence and provided separately for same-sex sexual assault. However, despite strong opposition, the Ordinance stuck to gender-neutrality with respect to both the victim and the perpetrator, and till the time a new Criminal Law Amendment Bill is introduced and passed to replace the Ordinance, it remains the operative law.

Surprisingly, disability groups have not been part of these debates, though making sexual offences gender-neutral clearly has consequences for disabled women. A stereotypical view of disabled women, particularly those with intellectual or psycho-social disability, is that they are unable to control their sexual urges. (1) Such a view, historically propagated by the medical establishment, is prevalent among the police, doctors and judges. In the course of handling cases of sexual assault on disabled women, we have often heard the authorities sympathising with the accused based on the belief that ‘such women’ are prone to making sexual advances on men, and later charge them with sexual assault. In 2001, in a case where a speech- and hearing-impaired girl was raped by two policemen inside a prison van in Kolkata, the officer-in-charge had said to one of us that activists should not follow up in such cases. When asked why, he said it was common knowledge that disabled girls were ‘sex starved’ and it was the girl who had in fact attacked the policemen. More recently, in the course of inquiring about a case of sexual assault on a female inmate by a male staffer at a Kolkata mental health institution in April 2012, the superintendent of the institution told one of us that he himself was scared of going inside the female ward for fear of being ‘molested’. He even asked us if there was any law to punish such women who first molest/tempt and then complain against hapless men.

In such a scenario where such attitudes are presented as medical ‘truths’ and where authorities put the blame on the victims and their lack of sexual discipline, what might be the implications of a gender-neutral rape law, where even women can be made assaulters and men their targets? Court judgments reveal how disabled women’s accounts of sexual assault are treated with suspicion by judges. For instance, in an Orissa High Court case the prosecutrix was deaf and mute and had not revealed to anyone that she had been raped; it was discovered only when she became pregnant. The court, while granting bail to the accused observed that a case of consent on the part of the woman could not be ruled out since (a) the woman was about 30 years old and still unmarried and (b) she could have at least communicated it to her mother knowing that her mother would naturally be anxious about her marriage. (2) Again in Meeraj Alam vs State of Bihar, the Patna High Court kept on repeating throughout the judgment that “the victim girl was a grown-up lady who was unmarried because of such infirmity and that her younger sister was already married, having children from before”. (3) How were the marital statuses of the victims of any relevance here, unless the judges were trying to implicitly suggest that the women in these cases were sexually mature and yet were not ‘getting any’ because they were disabled and hence one should be suspicious about their motive? Earlier a standard defence by an accused in a rape case used to be that the woman (disabled or not) had consented to the sexual intercourse, which then would be proved with reference to her dress, conduct, sexual history etc. Now, if the perpetrator is made gender-neutral, whenever a disabled woman complains of sexual assault, the alleged assaulter might file a counter-complaint that it was he who was raped by the woman. And we have good reasons to believe that given the widely held view regarding disabled women’s hypersexuality, such counter-allegations by men would be believed and sympathised with, by investigators and adjudicators.

Thus gender neutral definition of the perpetrator in sexual offences, as is currently the case, is not in the interest of disabled women. The government is preparing to introduce a Criminal Law Amendment Bill 2013 soon to replace the Ordinance. From media accounts, it seems the government is undecided about the formulation of the offence in the final Bill. But whatever it is, it is about time that disability groups appreciated the implications of it, took a stand on this issue and made it known to the State.

Endnotes
1) An equally prevalent stereotypical view is that disabled women are asexual.
2) Deepak Mahapatra vs State of Orissa, 107(2009)CLT93
3) 2008 CriLJ 4384

(Shampa Sengupta is an activist working on disability and gender issues, based in Kolkata. Saptarshi Mandal is a legal researcher based in New Delhi.)

Infochange News & Features, March 2013

 

 

#India -SC sets aside 2009 ruling, says kicking daughter-in-law is not Cruel #goodnews #Vaw


NEW DELHI: Four years after it shocked women by ruling that kicking a daughter-in-law was not an act of cruelty as defined under Section 498A of Indian Penal Code, the Supreme Court on Thursday erased it from court records.

Allowing a plea by National Commission for Women (NCW), a bench of Chief Justice Altamas Kabir and Justices P Sathasivam and G S Singhvi set aside the July 27, 2009 judgment by which it had quashed the charges under Section 498A against Bhaskarlal Sharma and his wife Vimla Sharma who were summoned by the trial court for allegedly kicking their daughter-in-law Monica Sharma.

A bench of Justices S B Sinha and Cyriac Joseph had said in the 2009 judgment, “Allegations that appellant No.2 (Vimla) kicked the respondent (Monica) with her leg and told her that her mother is a liar may make out some other offence but not the one punishable under Section 498A.

“Similarly, her allegations that the appellant No.2 poisoned the ears of her son against the respondent, she gave two used lady suits of her daughter to the complainant (Monica) and has been giving perpetual sermons to the complainant could not be said to be offences punishable under Section 498A.”

However, if the mother-in-law takes away the gifts given to the couple at the time of the marriage, it amounts to ‘breach of trust’ as specified under Section 406 IPC, the bench had said.

Appearing for NCW, senior advocate Indu Malhotra on Thursday argued that if allegations of physical violence and taking away of ‘stree-dhan’ (valuables of the bride) did not constitute an offence under Section 498A of IPC, then it would send a very wrong signal and have retrograde effect on the object of the provision to curb violence and cruelty against women in matrimonial homes.

Malhotra argued that the complaint filed by Monica Sharma against her in-laws was quashed by the apex court when the matter was at the initial stage of issuance of summons by the trial court. “This will send a very wrong signal,” she said.

Solicitor general Mohan Parasaran, appearing for the government, supported the NCW’s plea for setting aside of the judgment and requested the court to consider the petition filed by Bhaskarlal Sharma and his wife Vimla Sharma afresh.

Vimla’s counsel U U Lalit questioned the locus standi of NCW in a criminal case and said the apex court did not rule that kicking of a daughter-in-law was not an offence under Section 498A but merely said after appreciating the entire evidence that a case of cruelty against the daughter-in-law was not made out.

But the bench agreed with Malhotra and Parasaran, recalled its July 27 judgment and posted the matter for fresh hearing before another bench.

 

 

#Mumbai- Special cell for crimes against women to finally take off on #Womensday


S Ahmed Ali TNN

Mumbai: The Mumbai police’s crime against women cell (CAWC) will start functioning from Friday. The special cell will probe cases of rape, molestation, dowry and other atrocities against women. TOI was the first to report on the state’s initiative to start a separate investigation wing to probe cases of crimes against women.
While the state government had decided to set up the cell in January, the idea remained only on paper. On Wednesday, TOI reported that the cell had not been set up even 40 days after the proposal was cleared.
Home minister R R Patil will officially announce the formation of the cell at a function at the Gateway on Friday. The first-ofits-kind crime detection cell for women will be headed by a DCP.
“DCP Sharda Raut, who currently holds the charge of the police HQ, will hold the additional charge of this cell till we find an appropriate officer to lead it,” said a source.
The cell will be monitored by the joint commissioner of police (crime). It will have one DCP, two assistant commissioners of police, six police inspectors andtwo dozen police constables. The total strength of the CAWC will be 65. Police inspectors Sangita Patil and Neeta Phadke are the women officers selected to the cell. “The officers of this cell will be specially trained to tackle crime against women,” said Addl CP (crime) Niket Kaushik.
The functioning of the CAWC, which will have two units, will be similar to that of other crime branch units, which conduct parallel probes into major crimes in the city. “While one unit will probe cases of rape, kidnapping, molestation and harassment, the other unit will investigate cases like dowry and harassment by in-laws,” said JCP (crime) Himanshu Roy.
The CAWC will have its office in the upcoming building at the police HQ. Till then, it will operate out of the old administrative building.
FAIR PLAY FOR FAIR PROBE 
The first-of-its-kind crime detection cell for women will be headed by a deputy commissioner of police. It will have two units
The functioning of the cell will be monitored by the joint commissioner of police (crime)
It will have one DCP, two assistant commissioners of police, six police inspectors and two dozen police constables
The total strength of the special unit, which will comprise mostly women, will be 65

 

Mumbai- Medha Patkar and 20 arrested @ Golibar: Demand Justice


English: Medha Patkar in Sasthamkotta

 

NATIONAL ALLIANCE OF PEOPLE’S MOVEMENTS

 

 

 

National Office : A Wing First Floor, Haji Habib Building, Naigaon Cross Road                                                                                  Dadar (E), Mumbai – 400 014. Phone – 9969363065;

 

Delhi Office : 6/6 jangpura B, New Delhi – 110 014 . Phone : 9818905316

 

E-mail: napmindia@napm-india.org | Web : www.napm-india.org

 

—————————————————————————————————————————–

 

Action Alert and Update on Golibar Arrests

 

 

 

Medha Patkar and 20 others arrested at Golibar, Mumbai

 

 

 

Demand Immediate Release of Detainees:

 

Halt to Demolitions and Inquiry into Illegalities and Corruption

 

Seek action against police and Shivalik Builders 

 

 

 

Mumbai: In a series of illegal actions against the urban poor in Mumbai, the city police today came down heavily on Medha Patkar and a group of people resisitng the illegal evitions at Golibar, Khar (East). Other active local residents including Prerna Gaikwad, Ajit and 20 men and women have also been arrested today afternoon. Those protesting have been beaten up very badly by the police and goons on behalf of Shivalik Builders, in the presence of MHADA engineers and officials. The latest information is that at least ten houses have been demolished at Golibar (Khar East). A posse of police vehilces and JCB machines are still at the place and the demolition drive is still on.

 

 

 

The bulldozers at Golibar, a 50 year old slum are once again out to demolish and evict the slum dwellers who have been fighting the corruption and land grab by Shivalik Ventures in which the 2G Spectrum scam ridden Unitech has a stake. In the past the slum dwellers have repeatedly opposed and exposed the illegal acts of the private developers who are all out to grab the land. It was only after the expose that the Chief Minister of Maharashtra scrapped the two 3K projects.

 

 

 

Even now, as usual, no notice has been served on the people before the demolitions. The Mumbai High Court had directed that the residents must be reloacted at good transit camps that are in a completely livable condition and also directed that indiviidual agreements with the residents must be registered. However, without follwing this directive of the High Court, the demolitions are continuing in a totrally illegal maner. It is also significant to note that as recently as on 18th January, the CEO of the Slum Rehabilitation Authority (SRA), Mr. Nirmal Deshmuk ordered a halt to the demolitions, but the same has started once again, with MHADA’s intervention.

 

 

 

It is shameful that instead of initiating action against the illegal builder-encroacher ‘Shivalik’, the administration continues to demolish and destroy hundreds of the dwellings of hundreds of hard-earned poor, along with their properties.  Thousands of basti dwellers across Mumbai under the banner of Ghar Bachao Ghar Banao Andolan are united with the detainees and aggrieved and have been raising slogans of ‘Buildershahi band karo”; ‘Gareebon ka shram kitna, haq kitna, hisaab karo, hisaab do’.

 

 

 

We all request you to kindly call the Chief Minister, Maharashtra-Office and request them to stop the forcible eviction of slum dwellers.

 

 

 

Demand:

 

·        Immediate release of all the detainees

 

·        Immediate suspension, disciplinary and criminal action against all police officials and personnel involved in the demolition drive and force on the people.

 

·        Legal action against Shivalik Builders for all the illegalities and encroachment committed by it.

 

 

 

A string of protest calls from across the nation are pouring in at the Nirmal Nagar Police Station (26471306 / 26470931) and to SPI Bagade (9821600134) for immediate release of the detainees.

 

 

 

Do also call the Chief Minister, Maharashtra at 022- 22025151 and 022- 22025222.

 

Fax the CM @ 022-22817068

 

Send an e-mail at chiefminister@maharashtra.gov.in

 

 

 

In Solidarity,

 

 

 

Sumit Wajale           Madhuri Variyath           Meera               Seela      

 

9892727063              09820619174          09179148973             09212587159

 

 

 

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)

 

Attn Bangalore- Public Talk by Bhanwari Devi #Gangrape #Vaw #sexualharassment


Dear All,

The Alternative Law Forum invites you to a talk by Bhanwari Devi.The talk
will focus specifically on her battle for justice in the courts after she
was gang-raped in 1992. The attack on her and her husband was the result of
a backlash against her campaign against child marriage in Rajasthan from the
Gujjar community. At the time, Bhanwari Devi was employed as a saathin by
the Rajasthan government as part of the Women’s Development Project. Her
protracted legal battle attracted national and international attention and
resulted in the historic Vishakha judgment, in which the Supreme Court used
international principles to formulate guidelines to address sexual
harassment at the workplace. In 1994, Bhanwari Devi was awarded the Neerja
Bhanot Memorial Award for “her extraordinary courage, conviction and
commitment”.

When: Saturday, 9th March

Where: Alternative Law Forum, 122/4 Infantry Road (opposite Infantry Wedding
Hall), Bangalore 560001

All are welcome.

 

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