Important Legislations, Notes by UPSC Topper Ravisankar Sarma IFos Rank 37

Muslim Women – Protection of Rights on Marriage Bill

• Criminal Charge: Criminalizes instant triple talaq making it a cognizable offence if the accused’s wife or family member approaches JM with the case
• Imprisonment: Muslim husbands practising the same would be handed 3-year imprisonment as well as a fine as decided by the magistrate
• Bail Condition: The bill provides that the magistrate shall provide bail to the accused only if the wife is in agreement
• Compounding of Offence: The offence may be compounded e. to stop legal proceedings and settle the dispute, the terms and conditions of which will be determined by the magistrate
• Allowance and Child Custody Rights: Provides for allowance of a wife as determined by the JM and minor children and the custodial rights of minor children to the wife

Positives from the Bill

• Upholds SC verdict in the Shayara Bano case
• Deterrence: The clause of 3-year imprisonment for offending husbands can serve as a deterrence to the oppressive practice
• Women Empowerment: The act enables police and magistrate to act on complaint of women. It thus empowers Muslim Women to seek legal remedy against an oppressive practice
• Social security of woman subjected to instant Talaq is also taken care of

Criticism of the Bill

• Scope for Greater Reform: Islam continues to hold several regressive practices including Nikka Halala and Polygamy that are yet to be tackled through appropriate legislation
• Not ensuring Equality: Although the instant talaq is now criminalized, the practice of divorce in Islam continues to be unilateral as the husband continues to have the power to initiate divorce as per personal law. A Muslim wife can seek divorce only by approaching a court
• Criminalization: An act already rendered defunct by higher courts need not be criminalized. It can be merely treated as a civil offence as it does not have any meaning
• Social Security of Divorced: While the legislation puts husbands behind bars, it vests the state with the responsibility to take care of the wife. This constitutes the encroachment of state into family and a financial burden on the state
• Family Life: The punishment of 3-year imprisonment is illogical considering the marriage still holds. What happens to marriage and family after the punishment period is not addressed by the bill

Child Labour Amendment Act

Features/ Benefits

• Synchronized with RTE: A complete ban on child labour with an exception on familial business during non-schooling hours helps provide a conducive environment for children to acquire elementary education
• Rehabilitation Fund has been set up for the same

Concerns

• Hazardous Industries excluded: The list of prohibitive industries excludes chemical mixing units, cotton farms, battery recycling that are infamous for exploiting children and adolescents
• No Complete Ban: The clause of familial business may be misused
• No Holistic Development Opportunity: Working in non-schooling hours hampers overall development of children
• Monitoring of the legislation is difficult
• Caste reinforcing: The clause of familial business reinforces caste-based employment

Suggestions

India needs to comprehensively ban all forms of child labour without exception to fully realize the mandate of UN Convention. The childhood of an individual is critical to his personality formation, cognitive and intellectual development. Any loophole that subjugates the same needs to be plugged.

Juvenile Justice (Care and Protection Act)

Beijing Rules

1. Different treatment from that of adult
2. Appropriate Age of criminal responsibility
3. Juvenile institutions separate from that of adults

Juvenile Justice Act, 2000

It recognizes and puts in place support systems for 2 kinds of children. Both of these children are not to be disclosed with the media.

1. Children in Difficult Circumstances: Street Children, Beggars, Rag Pickers. They are to be taken care of by the Child Welfare Committee
2. Juvenile in Conflict with Law: Children alleged to have committed an offence

The act mandated a maximum punishment of 3 years within observational reform homes

Juvenile Justice Act, 2015

Rationale Behind the Act: There had been a 30% rise in crimes committed by Juveniles. 70% of the juveniles who committed the crimes belonged to the 16-18 age group. The Nirbhaya case acted as a stimulant for the law to improve deterrence among adolescent against such heinous crimes.

JJA, 2015

1. Nomenclature Changed to ‘Child in Conflict with Law’
2. Special provisions for heinous offences committed by children above 16 years. In such cases, the child in conflict with law is treated as a normal criminal. A minimum jail term of 7 years is set for such children.
3. Another category of serious offences with 3-7 years imprisonment provided
4. No life sentence or capital punishment
5. Establishment of CARA i.e. Child Adoption Regulatory Authority to streamline adoption of children
6. Rehabilitation and Social Integration of children in conflict with law

Justice Verma Committee

• No chance for Reform: It proposes that if a child is treated as normal, it vaporises the chance for rehabilitation. Such hard measures moulds them into hardened criminals and repeat offender
• No Juvenile Justice Board Reforms
• High Pendency of cases
• Dilutes UN Convention by absolving age of criminal responsibility at an age too low
• Lack of rehabilitation courts
• EI not addressed

Special Courts for Children

• Goa became the first state to introduce special courts for cases involving sexual abuse against children by enactment of Goa Children’s Act, 2003
• Special courts have an informal atmosphere where children are eased through the judicial process without fear or apprehensions
• Court timings are adjusted as per the children’s school timings
• The recent Protection of Children from Sexual Offences Act (POCSO)mandates the creation of the same in every state

POCSO Act

Introduction: The rising crimes of violence and sexual misconduct against children as evidenced by the Kathua and Ryan Murder Case illustrates the need for strong legislation. It is in such a scenario that the debate on the utility of the POCSO attains pertinent relevance.

Features

• Special Courts: A child who has undergone sexual harassment needs an informal atmosphere within courts during the trial. POCSO mandates special courts that are sensitized to the victim child’s mental state
• Child Sensitivity in Investigative Procedure: POCSO asks police personnel to be sensitized in handling cases of child sexual harassment and to take their statements from their homes in presence of their guardians rather than in police stations to relieve them of emotional stress and trauma of the formal bureaucratic procedures.
• Mandatory Reporting for schools and social institutions to increase conviction rates and create a collective intolerance towards sexual violence against children
• Expanded scope of sexual harassment to include stalking and verbal abuses

Problems

• Dichotomy with IPC: The exception provided to marital rape and the prevalence of child marriage in India has caused disharmony between POCSO and IPC thus diluting the coverage of POCSO excluding married minors from its protection
• Pendency of Cases: Several cases filed under the Act have not been efficient in its resolution due to lack of judges and procedural delays of investigation and judiciary.
• Low Conviction rates: A study by the NLS Bangalore noted how hostility and vulnerability in testifying led to lower than 20% conviction rates as per National Crime Records Bureau (NCRB)
• Definition of Child: The legislation is not clear in defining who is a child- whether it is the mental age of a child or the physical age. This weakens the legislation for mentally disabled and autistic individuals who are victims of sexual harassment
• Lack of Sensitivity: Police personnel and judiciary are not sensitized in their approaches to child victims under POCSO. Thus children are not accorded the fullest of protection under the act.

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Suggestions

• Incorporate sensitivity in police and legal procedures by providing training on child sensitivity. The Goa special courts and its informal atmosphere can be emulated across the country
• Resolve the legal dichotomy by criminalizing marital rape in the country
• Expand the definition of age to include mental age to protect autistic children
• Fast track courts to push cases of child violence and sexual offences

Transgender Persons (Protection of Rights) Bill, 2016

Definition: The Bill defines a transgender as one who is partly male, partly female, or a combination of male and female, or neither male nor female. In addition, the person’s gender must not match with gender assigned at birth and includes trans-men, trans-women, persons with intersex variations and genderqueers.

Certificate of Identityà Rights-Based Approach: It issues a certificate of identity to transgender persons that they must obtain in order to invoke the rights under the bill. The certificate is granted by a DM on the recommendation of a screening committee (consisting of a medical officer, psychiatrist, a district welfare officer and a transgender person)

Features of the Bill

Social Equality

• Access to Social Services: Prohibits discrimination of transgender in areas such as education, healthcare and employment
• State Welfare: Directs central and state governments to provide welfare schemes in these areas
• Right Against Exploitation: Recognizes that it is crime to push trans-gender into begging, forced or bonded labour specifying a punishment of 2 years’ imprisonment for those convicted of the crime

Transgender Empowerment

• Bill creates a statutory obligation on public and private sectors to provide them with employment
• It calls for inclusive education and affirmative action for transgenders
• A grievance redressal mechanism and the constitution of National Council for Transgender
• It guarantees the right of transgender to live with their own household and leverage the opportunities it provides

Critical Analysis

• Does not Recognize Choice of Gender: The definition of transgender is more biological than socio-cultural in the bill and it curtails the freedom of an individual to identify as a transgender unless recommended by the screening committee.
  • The SC has held that the right to self-identification of gender is part of dignified life guaranteed under Article 21 of the Constitution
• Definition not in tune with global standards
• Vaguely defined terms: Usage of vague terms like trans-men, trans-women and gender-queers that are not properly defined
• Need for Adapting Existing Laws: Certain criminal laws in force recognize gender of man and woman only. It is unclear how the same would apply to transgender persons
  • Sections 375 and 376 defines rape as when a man forcefully enters a woman, trans genders have not been included in the purview of sexual assault

State-wise Best Practices

Kerala Transgender Policy: End the social stigma towards trans-genders and ensure equal treatment

Odisha: BPL status and access to benefit schemes provided to trans-genders

Delhi: An extra column for the other gender in state government application forms

Prevention of Torture Bill, 2017: According to the bill, any public servant or individual indulges in an act of torture when they cause grievous hurt, danger to life, limb or health, severe physical or mental pain, death for the purpose of acquiring information

• Imprisonment of 10 years: Proposes stringent punishment for perpetrators to curb menace of torture and have a deterrent effect on acts of torture
• The burden of Proof: The Law commission recommended amendments to the Indian Evidence Act, 1872 to ensure that in case a person sustains injury in police custody, it will be assumed that these have been inflicted by the police unless proved otherwise
• Grievance Redressal Mechanism: The commission recommends that a mechanism be put in place for the victims of torture, complainants and witnesses against possible violence and ill-treatment
• Compensation to the victim: The Law Commission recommends that apt compensation as decided by the court depending upon the nature and extent of the torture, as well as the socio-economic background of the victim, shall be provided to the aggrieved

Court Observations

EEFVAM vs Union of India: In the case, the Supreme court rejected any absolute immunity for police forces and armed forces. The court observed excessive use of retaliatory force in Manipur that was against the rule of law. It called to enquire upon each alleged extra-judicial killing regardless of the identity of the diseased

D.K. Basu vs State of West Bengal: Each time an arrest is made, family or local representative is to be consulted

Conclusion

The law commission through its draft has rejected the principle of sovereign immunity that shields the state from the action of its agents. Through the draft bill, it once again aims to uphold the constitutional right of a dignified life and personal liberty ensured by Article 21 of the Indian constitution

Trafficking of Persons (Prevention, Protection and Rehabilitation)

• Definition: The bill exhaustively defines trafficking for purposes of begging, slavery, debt keeping, prostitution, forced labour and other purposes.
• Criminal Punishment: The bill paves way for rigorous imprisonment of those involved in the promotion and facilitation of trafficking.
• Confidentiality: The bill aims to protect the witness’ confidentiality by not disclosing the identity
• Fast Judicial Process: The bill puts a time-bound trial process to secure fast justice to victims with avenues of video conferencing made available to them.
• Institutional Mechanisms: The bill creates institutional mechanisms at state, central and district levels to coordinate activities against trafficking and for the rehabilitation of victims overarchingly headed by NIA at the national level
• International Coordination to address trans-national nature of crime headed by National Anti-Trafficking Bureau (NATB)

Concerns

• Consenting sex workers could be penalized by the law
• Administering of chemicals or hormones to accelerate sexual maturity may be disadvantageous to the trans community
• Transmission or exposure to HIV regarded as aggravated offence may be seen as harsh

Citizenship Amendment Bill, 2016

• Objective: It aims to grant citizenship rights to minority communities from Pakistan, Afghanistan and Bangladesh and ameliorate them from being deported as illegal migrants
• Conditions: 11 years of residency in India reduced to 6 years
• Minority Communities: Hindu, Parsi, Christians, Buddhists, Jain and Sikh

Concerns

• Non-secular character: The determination of granting of citizenship to illegal migrants contradicts the secular nature of the constitution. The avoidance of Muslims, Jews and Bahias community may deprive deserving candidates from Indian citizenship.
• Contradicts Assam NRC: The provision of Indian citizenship to illegal migrants is in direct contradiction with the Supreme Court mandated NRC exercise as per the Assam Accord that aims to eliminate illegal migrants in Assam

Right to Disconnect Bill 2018

• Objective: Provide law for reducing stress and ease the tension between personal and professional life
• Employee’s Right not to respond to calls or emails
• Employee Welfare Authority: Publish reports related to the impact of digital tools beyond office hours
• Employee Welfare Committee constituted by the company’s workforce

Land Acquisition, Rehabilitation and Resettlement Act, 2013

• Defines the Public Purpose Project for which the government can acquire land
• Compensation: The state shall be liable to pay to its citizen a compensation 4 times in the rural area and 2 times in urban areas.
• Social Impact Assessment: There is a need to evaluate the impact of land acquisition on lives and livelihood of labourers, artisans, traders, farmers and fishermen
• Consent: Any public purpose project that necessitates the acquisition of land requires 80% consent from all the families living in the area. If it is a PPP project, it requires only 70% consent
• Fertile Land as Last Resort: Fertile, irrigated and multi-cropped land can be acquired only as last resort with the government agreeing to develop an equal-sized wasteland
• Private Sector Lead Relief and Rehabilitation for people affected by land acquisition. Additional rehabilitation package for SC/ST people
• Grievance Redressal System
  • Dispute Settlement Chairman to be appointed amongst district judges in the state
  • LARR Authority for speedy disposal of disputes