Supreme Court has already Clarified that it will not Encourage Prostitution

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Law Resoursce India New Delhi 04/11/2014

In view of the order dated 26 July 2012 in Criminal Appeal 135/2010Budhadev Karmaskar vs State of West Bengal & Ors the present debate and controversy stirred up by the NCW Chairperson Lalita Kumarmanglam on Legalization of sex trade is a contempt of Supreme Court Orders. The National Commission of Women has been a party to the case and are aware of the Bench clarification dated 26 July 2012.

Speaking to the Times Of India she said that “I will only speak about the issue after the national consultation on November 8,” . “It is my personal and professional view that sex work should be legalized but the commission must make an informed decision and I am open to listening to all views. I will be using a lot of time next week to hold informal consultations on the issue, talking to all advocacy groups and others to understand what their apprehensions are.”

On October 28, Kumaramangalam told a daily that legalization will bring down trafficking of women and lower the incidence of HIV and other sexually-transmitted diseases. She also said she intends to put forth the proposal at the November 8 meet of the SC appointed Panel.

Bharti Dey of Durbar Mahila which supports the Legalisation Debate has stated “Police very often get paid to let off traffickers. Regulation will decriminalize the trade,” says Dey, whose organization currently runs self-regulation units and has sent at least eight traffickers to jail. She also points out that many of those entering the profession are extremely poor, have few options and know what they are getting into. “But they make it to our communities through traffickers and middlemen. Legalizing will remove these middlemen,” she says.

Supreme Court Lawyer and President of Shakti Vahini Ravi Kant while opposing the statement of the NCW Chairperson statement stated “Prostitution is Organised Crime and Violation of Fundamental Rights. Trafficking and sexual slavery is worst form of Human Rights Violation. No women joins this inhuman trade out of choice. More then 95% of the women have been trafficked and forced into the sex trade”.

rtr26efdHe further elaborated that ” Immoral Traffic Prevention Act 1956 criminalises the organised crime of Prostitution. Organised Prostitution creates a demand for young girls for the brothels which is met by trafficking of minor girls from across the Country.Giving Prostituion a legal status will be giving boost to demand of young minor girls who will be trafficked. In countries where such legalization has happened it has led to exploitation of women and girls and also commodification of women bodies.

He added that there here is no doubt that women who have been caught in the sex trade  need access to all Government facilities and schemes and efforts must be made to see that they join the mainstream and are properly rehabilitated. Also those who indulge in this organised crime of human trafficking which leads to kidnapping of young girls from across the country need to be properly punished.

On the role of the Governmental agencies he lamented “The sad part is that inspite of various recommendations from the Supreme Court in various cases no geniune efforts have been made by any Government to see that this social malice which results from Organised Crime be eradicated”.

Kant further stated “The statement of the National Commission for Women Chairperson for legalising prostitution is deplorable. It is time that the Government of India ammends the Immoral Traffic Prevention Act and brings in harsher punishments to the people who are involved in this organised crime”.

The Supreme Court in its order dated 26 July 2012  has clarified that its endeavor to provide right to life and access to governmental schemes should not be construed as an encouragement to prostitution. The clarification had come from a bench of Justices Altamas Kabir and Gyan Sudha Mishra after additional solicitor general P P Malhotra had drawn the court’s attention to its July 19 order in which it had sought suggestions from the SC-constituted panel on creating “conditions conducive for sex workers who wish to continue working as sex workers with dignity”.

Malhotra had said there was a danger of the order being construed as an incentive to indulge in an activity that had been termed as an offence under the Immoral Traffic Prevention Act, 1956.

POLICE BUSTING AN INTERNATIONAL RACKET

POLICE BUSTING AN INTERNATIONAL TRAFFICKING RACKET

The Judges on the bench passed had passed separate orders, but both meant to clarify that the panel would recommend steps to create “conditions conducive for sex workers to live with dignity as per provisions of the Constitution Article 21”. 

Justice Kabir added a precautionary clarification — “The above modification should not be construed to mean any attempt made to encourage prostitution.”

Hearing the Petition  Justice Mishra had clarified, “I prefer to add…sex workers have a right to live with dignity but the collective endeavour must be on part of the sex workers to give up the trade in case they are given alternate platform.”

The Detailed Order of the Bench  Dated 26 /07/2012 is as follows :

1. CRLMP.NO.12415 of 2012, has been filed on behalf of the Union of India, for modification of the order passed by this Court on 19th July, 2011, referring certain issues to the Committee which had been constituted by the said order itself.

2. The first modification sought by the Union of India is for deletion of the Durbar Mahila Samanwaya Samiti, from the panel. The second modification sought is with regard to the third term of reference, which reads as follows:-

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.

3. Appearing in support of the application, the learned ASG, Mr. P.P. Malhotra, submitted that the Samiti in question had been actively advocating the revocation of the Immoral Traffic(Prevention) Act, 1956, and had also been advocating the recognition of sex trade being continued by sex workers. The learned ASG submitted that the continuance of such Samiti in the panel is giving a wrong impression to the public that the Union of India was also inclined to think on similar lines. The learned ASG submitted that this wrong impression should be removed by excluding the Samiti from the panel.

4. As far as the second issue is concerned, the learned ASG submitted that wording of such reference could be suitably modified so as not to give an impression that the Union of India was in favour of encouraging the sex workers, in contravention of the provisions of the aforesaid Act.

5. We have heard Mr. Pradip Ghosh, learned senior advocate and Chairman of the Committee, as also learned senior advocate, Mr. Jayant Bhushan, who is also a member of the Committee and its co- Chairman and Mr. Grover, learned senior advocate, on the issue.

6. It has been submitted by Mr. Ghosh that at the meetings of the Committee, the members of the Samiti had contributed a great deal towards the understanding of the problems of the sex workers and it was not as if the said Samiti was encouraging sex trade, but were providing valuable inputs into the problems being faced by people engaged in the trade. Mr. Ghosh, Mr. Grover, and Mr. Bhushan, in one voice urged that the presence of the Samiti in the Committee was necessary even to function as a sounding board in respect of the problems that are faced by this marginalised and unfortunate section of society.

7. We agree with the submissions made by Mr. Ghosh, Mr. Grover and Mr. Bhushan, learned senior counsel, and are not, therefore, inclined to delete the Samiti from the Committee, as prayed for by the Union of India, and such prayer is rejected.

8. As to the second issue, it will not in any way make any difference to the terms of reference, if the wording of the third term of reference, is modified to the following effect:-

“Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”

9. The above modification, should not, however, be construed to mean that by this order, any attempt is being made to encourage prostitution in any way.

10. CRLMP.NO.12415 of 2012, is, therefore, disposed of in term of the aforesaid order.

11. Let this matter now be listed for consideration of the Sixth and Seventh Interim Reports, filed by the Committee, on 22nd August, 2012, at 3.00 p.m.

12. Let this Bench be reconstituted on the said date and time for the aforesaid purpose.

.………………J. (ALTAMAS KABIR) NEW DELHI; JULY 26, 2012.

ORDER

1. While concurring with the views of my learned brother Justice Altamas Kabir, I prefer to add in regard to the second issue that this Court should not be misunderstood to encourage the practice of flesh trade or advocate the recognition of sex trade merely because it has raised the issue to emphasize the rehabilitation aspect of the sex workers, for which this Court had taken the initiative right at the threshold. I consider this essential in order to allay any apprehension which prompted the Union of India to move this application for modification, by highlighting that the sex workers although have a right to live with dignity as the society is aware that they are forced to continue with this trade under compulsions since they have no alternative source of livelihood, collective endeavour should be there on the part of the Court and all concerned who have joined this cause as also the sex workers themselves to give up this heinous profession of flesh trade by providing the destitute and physically abused women an alternative forum for employment and resettlement in order to be able to rehabilitate themselves. I, therefore, wish to reiterate by way of abundant caution that this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner even when it had stated earlier in its terms of reference regarding conditions conducive for sex workers who wish to continue working as sex workers with dignity.

2. Thus, when we modify the earlier term of reference and state regarding conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution, the same may not be interpreted or construed so as to create an impression or draw inference that this Court in any way is encouraging the sex workers to continue with their profession of flesh trade by providing facilities to them when it is merely making an effort to advocate the cause of offering an alternative source of employment to those sex workers who are keen for rehabilitation. When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State Authorities to provide facilities to those sex workers who wish to promote their profession of sex trade for earning their livelihood, except of course the basic amenities for a dignified life, as this was certainly not the intention of this Court even when the term of reference was framed earlier.

3. We, therefore, wish to be understood that we confine ourselves to the efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above.

J (GYAN SUDHA MISRA) New Delhi, July 26, 2012
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They Walk Among Us – 30 Million People Are Slaves, Half in India

PUBLISHED IN THE HUFFINGTON POST BY MONIQUE VILLA , CEO THOMSON REUTERS FOUNDATION

How many slaves work for you? Paradoxically — in 2013 — the question is still very relevant, and you might be surprised by the answer. Depending on where you live, what you buy, what your lifestyle is, you have almost certainly been touched by slavery. Almost nobody is clean.

Modern-day slavery takes many forms: human trafficking, forced and bonded labour, sexual exploitation, domestic servitude and forced marriage. Sadly, the list goes on. But the common denominator of all these crimes is the evil intention to strip human beings of their freedom, and then to use, control and exploit them.

There are currently 29.6 million slaves around the world, more than ever before in history, and roughly equivalent to the population of Australia and Denmark combined. Modern-day slavery is a fast-growing industry worth $32 billion a year, equal to the profit of McDonald’s and Walmart combined. And while back in 1809, the price of a slave — adjusted to today’s value — was $40,000, today it is only $90; that’s how little it costs, in the globalized economy, to buy a human being!

Slavery is a global issue. In some parts of the world people are still being born into hereditary slavery, in others people are trafficked from one state to another, have their passports taken away and are enslaved. Modern-day slaves walk among us. You might tip one during your stay at respectable hotels chains around the world, you might speak to them at your nail salon. They look like maids, regular workers, but they are slaves.

It’s a story of debt, fraud and coercion. In the majority of western countries, trafficking is tied to immigration. It’s estimated that every year between 14,500 and 17,500 people are trafficked into the United States. Some enter legally, with a visa and a job. But that job is subcontracted, hiding the harsh reality of abuse and exploitation behind the façade of a clean uniform. Once inside the country, those trafficked are forced to repay recruitment fees, the cost of their travel, accommodation bills. As a result, they end up working an incredible number of hours, seven days a week, without being paid, in the impossible attempt to repay a debt which will never be settled. That’s how many become slaves.

Modern-day slaves are found in unexpected places. In recent years, Washington, the capital of the free world, has been rocked by allegations of human trafficking by diplomats working at embassies and international institutions. In 2007, a young Tanzanian woman who had been brought to the United States by a diplomat as a domestic worker, made headlines when she sued her former employer and his wife for allegedly trafficking her and using her for forced labour. The woman, who spoke no English, was promised a job as a housekeeper with a fair wage, but instead was forced to work 16-hour days without pay. She had her passport taken away, was not allowed to leave the house on her own, and was denied medical treatment. The woman eventually won over $1 million in compensation but her former abusers returned to East Africa and never paid her. Diplomats are not immune to shame.

There are currently 880,000 people engaged in forced labour across the European Union. 58 percent are women, the majority victims of sexual exploitation — the most lucrative form of slavery. In the UK the number of slaves is believed to be 4,600. Victims are mostly trafficked from Africa, but also Asia and Eastern Europe. Most of them cross the border illegally, and once in the UK are forced mainly into sex work (62 percent) and domestic servitude (25 percent), but are also exploited though complex schemes involving welfare benefit fraud. In the UK, slaves work in restaurants, nail salons, door-to-door leafleting. A big role is played by the Vietnamese drug barons who, according to DrugScope, control two-thirds of Britain’s cannabis trade. They use nail salons as brothels and places to launder money raised from the sale of cannabis grown on suburban UK farms. Farms run by slaves.

The difficulty with slavery is that it is a crime not well understood, and often concealed under the justification of custom, ethnicity, even religion. In Mauritania 4 percent of the population is presently enslaved. Adults and their descendants are the full property of masters who can buy and sell them. They are born into slavery and are not allowed any possessions. They are the possession, predominantly, of the White Moors, one of the three ethnic groups of Mauritanian society. Enforcing anti-slavery laws here remains extremely challenging since only victims are allowed to file a complaint. Slaves are illiterate and do not know their rights. The government continues to deny the scale of the problem, and foreign journalists risk arrest for investigating the issue. This year only two cases of slavery have been reported so far.

India — with a population of over 1.2 billion — has more slaves than any other country in the world: 14.7 million. With extreme poverty culturally tolerated, the practice of caste and debt bondage is endemic. Sexual exploitation of women and children is also widespread, although India has ratified a number of key international treaties aimed at eradicating slavery. Enforcement of such laws remains sporadic and weak, and many NGOs on the ground have reported a lack of support for their efforts to free people from forced labour.

Global statistics show a common trend: slavery is a silent crime. Victims don’t come forward. Across the EU the number of convictions for human trafficking has dropped by 13 percent in the past few years; and the latest US Trafficking in Person Report shows that in 2012, only 7,705 prosecutions took place, despite the number of identified victims reaching 46,570.

There are many reasons for the small number of prosecutions. Victims often don’t see themselves as such, especially victims of sexual exploitation, who tend to develop a psychological dependence on their abuser. Victims of domestic slavery are often foreign nationals who live in conditions of house arrest, unable to speak the language of the country they are in. Then there’s fear, that fear resulting from total annihilation of self-esteem. Slavery is all about controlling people. Some of the things the traffickers make people do are all about humiliating them and trying to control them: you see human beings with the name of their owner tattooed on their body, reminding one of the Nazi period. It’s a lethal mix of abuse of power and corruption, and it thrives in poverty.

Each of us, not just law enforcement agents, has a role to play in the battle against human trafficking. Teachers, doctors, bus drivers, flight attendants, government officials of all ranks, everyone who uses hotels, restaurants, nail salons is potentially in contact with modern-day slaves, and has a moral responsibility to come forward. As consumers we have the duty to demand to know more about the origin of the products we buy. We must not turn a blind eye.

Businesses must demand real transparency from sub-contractors, assessing the real working conditions of those in remote supply chains. On the other hand, governments should take bolder action to make businesses accountable, fining the hiring firms for violations of national employment laws committed by their subcontractors. This is the innovative approach recently adopted by the State of California.

Governments must consider slavery as a crime, not an immigration issue. Victims must be reintegrated in society with the necessary economic and psychological support. Earlier this year, in the UK, three very young victims of human trafficking were prosecuted, convicted and jailed for the very crimes their traffickers forced them to commit. In the words of the barrister who fought, successfully, to have the sentence overturned, this was a ‘miscarriage of justice’. In the United States, a first victory has been won as victims of human trafficking now have the right to stay in the country while suing their perpetrators, using U.S. law.

Lawyers must work to ensure that all victims of human trafficking have access to free legal representation, compensation and restitution of a sum of money equivalent to their unpaid work. A groundbreaking approach has been taken by the Netherlands, where since 2011 Dutch authorities have eight months to collect the restitution money. If they fail, the government has committed itself to paying restitutions directly to all victims.

Governments must also end the culture of impunity for the traffickers and the offenders, whoever they are. Slavery should trump all diplomatic immunities, and should be fought on an international basis, helped by all parties who can contribute to successful prosecutions.

The financial industry must be vigilant. Earlier this year the Thomson Reuters Foundation and the Manhattan District Attorney Cyrus R. Vance Jr, launched an international financial working group against human trafficking. The group — which includes the biggest banks and financial institutions in the United States — has developed criteria to identify financial transactions that are linked to human trafficking and is working with law enforcement agencies to share and improve these processes.

The fight against human trafficking is one, which – as a civilization – we cannot afford to lose. Slavery should belong to the history books. Let’s all work together to put the business of human trafficking out of business.

Human trafficking is one of the themes at the forthcoming Trust Women Conference in London, Dec 3-4. Organised by the Thomson Reuters Foundation and the International New York Times, Trust Women is the conference dedicated to putting the rule of law behind women’s rights.

Follow Monique Villa on Twitter: www.twitter.com/TR_Foundation

A moment of triumph for women

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By Kalpana Kannabiran Published  in THE HINDU

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A transformation

At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.

Arguing that “cultural prejudices must yield to constitutional principles of equality, empathy and respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of “sex” in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.

Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”

In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

Verma ReportVoices from conflict zones

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

The Delhi case

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com)

By Kalpana Kannabiran Published  in THE HINDU

National Legal Research Desk on Violence Against Women and Children

Supreme Court of India

NATIONAL LEGAL RESEARCH DESK

The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women.  Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.

Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs.  These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.

 The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult.  Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.

NATIONAL LEGAL RESEARCH DESK

Mere consent to conjugal rights does not mean consent to give birth to a child for her husband

Français : Palais de Justice de Chandigarh, Inde.

Image via Wikipedia

THE TRIBUNE Chandigarh, February 11

In a first, the Punjab and Haryana High Court has ruled that a husband cannot compel his wife to conceive and give birth to his child. Making it clear that relationships that know no limits too have boundaries, the high court has asserted intimacy is one thing, giving birth to a child another. “Mere consent to conjugal rights does not mean consent to give birth to a child for her husband,” Justice Jitendra Chauhan of the High Court has asserted. The judgment, pregnant with significance, also makes it amply clear that “to have and to hold, for better, for worse, for richer, for poorer, in sickness or in health” does not give a man the right to prevent his wife from going in for an abortion.

The ruling came on revision petitions filed by Chandigarh-based gynaecologist Dr Mangla Dogra and others petitioners. The controversy in the case hovered around the decision of a wife to go in for medical termination of pregnancy without her husband’s consent. Married in April 1994, the couple and their son were initially staying in Panipat. Due to “hostilities and strained relations”, the wife started staying with her parents, along with her son, at Chandigarh. The wife conceived after she agreed to accompany her husband to Panipat during the pendency of her application for maintenance. She then underwent an MTP carried out by Dr Mangla Dogra, who was assisted by Dr Sukhbir Grewal as anesthetist.

The husband, subsequently, filed a civil suit for the recovery of Rs 30 lakh towards damages for mental pain, agony and harassment against his wife, her brother and parents and Dr Dogra and Dr Grewal for getting the pregnancy terminated illegally. Taking up the plea, a Civil Judge asserted: “There is a cause of action in favour of the plaintiff against the defendants (wife and others) at this stage”. Aggrieved by the orders, Dr Dogra and other petitioners preferred the revisions. Justice Chauhan asserted: “The wife knew her conjugal duties towards her husband. Consequently, if the wife has consented to matrimonial sex and created sexual relations with her own husband, it does not mean that she has consented to conceive a child. It is the free will of the wife to give birth to a child or not…

“The wife is the best judge and is to see whether she wants to continue the pregnancy or to get it aborted… Keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting the pregnancy terminated… “A woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared to conceive, continue the same and give birth to a child. The unwanted pregnancy would naturally affect the mental health of the pregnant woman…” Imposing costs of Rs 50,000 on the husband, Justice Chauhan concluded: “It is held that the act of the medical practitioners Dr Dogra and Dr Grewal was legal and justified.”

http://www.tribuneindia.com/2012/20120212/main7.htm

Mere consent to conjugal rights does not mean consent to give birth to a child for her husband

The Other Half – Another battle won

Air India will become a full member of Star Al...

Image via Wikipedia

KALPANA SHARMA IN THE  HINDU

The Supreme Court clears the way for women to become In-Flight Supervisors in Air India. Thanks to those women who believed in and fought for equality at the workplace.

This judgment passed virtually without comment. The media ignored it. Why should the rights of a relatively small group of women concern the rest of us? Yet the November 17 Supreme Court judgment, by Justices Altamas Kabir and Cyriac Joseph, upholding Air India’s 2005 decision to remove the precondition that an In Flight Supervisor could only be a male, and that women cabin crew could also be appointed to that position, is significant. The troubled airline has not been a shining example of gender equity. Yet, finally wisdom dawned and it did accept that there was no justification for a rule that held a particular job only for men when the men and women on flights had the same training and did virtually identical tasks.

Expected resistance

What is fascinating about this case is the manner in which the male cabin crew opposed the new rule and challenged it in court. In 2007, the Delhi High Court upheld Air India’s right to make this change and held that it saw nothing wrong in the rule. That judgment is worth reading in its entirety as it spells out the history of the struggles of women cabin crew in Air India to assert their right to equal treatment. There have been innumerable court cases, on issues ranging from a different retirement age for male and female crew members to a rule at one point where women who became pregnant within four years of being appointed had to quit to one where women cabin crew were grounded if they exceeded a certain weight.

It is hard to fathom why a ‘national’ airline should lag so behind the times on these issues. The women employed by Air India have had to turn to the courts on all these issues. These were not battles for additional powers. The women were simply asserting that they should have the same rights as other employees in a country where equality is guaranteed and where one is working for a ‘national’ airline that ostensibly wishes to promote India’s ‘national’ image.

This last battle, to get the airline to remove the anomaly where a particular job was virtually kept as a ‘male only’ designation for no reason at all, was in some ways the strangest. Senior women cabin crew members of Air India, some of whom trained other cabin crew members including men, had to contend with serving under the same men they had trained simply because, regardless of seniority or experience, they could never get the designation of In-Flight Supervisor. Even after private airlines came on the scene where there was no discrimination between male and female cabin crew, Air India persisted. And when it finally changed the rule, the male cabin crew objected, calling this positive changediscriminatory” and challenged it in Court.

In 2007, the Delhi High Court was quite clear in its ruling. It stated: “The Court finds that IFS (In-Flight Supervisor) is no longer a post, much less a promotional post. It is a function that one among the cabin crew, on the basis of seniority, is asked to perform during the flight. This Court is unable to discern in any of the settlements any assurance or promise held out to the pre-1997 male cabin crew that a female colleague of theirs will never ever be asked to perform the function of an IFS. Nor do the judgments of the Supreme Court say so. The impugned order dated 27.12.2005 is not discriminatory to the male cabin crew. In fact, far from eliminating the possibility of the male cabin crew performing the function of IFS, it provides a chance to their female colleagues as well. In effect it removes the ‘ men only’ tag on the function of IFS. We are asked by the pre-1997 male cabin crew to hold this to be unreasonable. We decline to do so. This Court finds nothing arbitrary, unreasonable or irrational in the pre-1997 male cabin crew being asked to serve on a flight which has their female colleague as an IFS. This then is the jist of the lengthy judgment that follows.”  (LPA Nos. 122-125 of 2006, Date of Decision: October 8, 2007.)

Representatives of the male cabin crew had argued that they would not work under women, even if they were senior. The job had been promised only to men and they were determined to hang on to it. And women could not claim the right to equality in this matter because the job of a woman on flight and a man on flight were substantially different, they argued. Yet passengers on flights can observe for themselves that the men and women in the cabin crew do exactly the same things — welcome you, make announcements about safety regulations, serve you food and drink, clear up after you, help anyone needing help, remain alert in case there is an emergency and act if such an occasion should arise.

Catching up

All this is so obvious that it does not need repeating. Yet, none of this convinced the flight pursers employed by Air India who challenged the Delhi High Court judgment. The Supreme Court ruling, one hopes, has settled the matter and Air India will now be permitted to join the 21st century. And perhaps it will finally also decide to use gender-neutral terms to describe the men and women who are part of the cabin crew.

The court battles fought by women cabin crew of Air India are significant for other reasons. Many of the women who went to court could just have sat back and accepted conditions as they prevailed. After all, they had a secure job and a reasonable salary. But because some of them took the risk of even losing their jobs and challenged these discriminatory provisions, those who join the airline now will be much better placed than their seniors. The lesson these battles hold out is that discrimination does not disappear on its own and that managements are not struck by a sudden realisation that they should be fair to their employees. Positive change is more often than not the result of battles fought by those who believe strongly in equity and justice.

Email the writer: sharma.kalpana@yahoo.com

http://www.thehindu.com/opinion/columns/Kalpana_Sharma/article2659397.ece

Wife can’t be simply evicted from home after divorce: Supreme Court

Supreme Court of India

PTI NEWS

 A Hindu woman cannot be evicted out of the matrimonial home after divorce except through procedure established by law, as there is no provision for her automatic eviction, the Supreme Court has ruled. A bench of justices G S Singhvi and S D Mukhopadhyay, in a judgement, said that though a woman may not have a legal right to continue in the house of the ex-husband, yet the latter cannot forcibly evict her. The apex court gave the ruling while upholding an appeal filed by Ranjit Kaur challenging the decisions of the Punjab and Haryana high court which had upheld her eviction from the house of a disputed property upon a decree of divorce granted to the husband Major Harmohinder Singh, an Army officer. “Learned counsel is right in his submission that even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorised, respondent No 1 (Singh) cannot evict her except after following the procedure established by law. “The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her,” the bench said.