- Section 375 of IPC criminalizes Rape, but, it has an exception “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
- But, that exception must be removed and marital rapemust be criminalized. Because-
- Women have senseof identity, dignity and human rightsof their own.
- Not a commodity –Marriage is not a license to sex, they must have the decision making power in personal issues and their ownership is not transferred to husband once they are married – Women also have right to individual liberty and right to dignified life.
- It is the issue of consent, not culture.
- We have denounced orthodox religious practices like Sati system, Devadasi system and hence Marital rape should also be considered as backward and crime, we are modernized and liberalized.
- India is signatoryto Sustainable development goals, legitimizing Marital rape is against the international norms and violation of SDG norms. (CEDAW)
- Justice verma committeeafter Nirbhaya case, recommended criminalization of marital rape. It opined, ‘Marriage should not be considered as an irrevocable consent to sexual acts’.
- Fuels thepatriarchal mindset,threat to social equality.
- It is not only a violence on the body of the woman, but also on the soul (Emotional harassment)
- To implement the Fundamental Duties – to renounce practices derogatory to the dignity of women; – Article 51(e)
- The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. Hence, to tackle the crime of such a large scale, Marital rape must be criminalized.
- Lack of independence of women.
- Instability in society.
But, only by passing amendments to criminalize marital rape will not help. Without change in the mindset of the society, patriarchal mentality no legislation can bring reforms (as we see in case of Dowry prohibition act).
If passed, Care must be taken not to misuse the legislation of criminalization of marital rape as a tool to harass the honest law abiding men, as we are witnessing in Dowry cases.
2. Human trafficking:
- It is trade of humans most commonly for the purpose of sexual slavery, forced labour or commercial sexual exploitation for the trafficker or others.
- UN defined” trafficking is any activity leading to recruitment transportation harbouring or receipt of persons by means of threat or use of force or a position of vulnerability.”
- In India even though article 23 curbs human trafficking it has not defined it.The first definition is present in criminal law act 2013 that substituted IPC 370 with 370 and 370 A which deals with trafficking of persons for exploitation but forced labour is still not defined.
- Recent report ofUnited NationsOffice on Drug and Crime (UNODC) titled ‘Anti Human Trafficking, 2013’ revealed that out of over 19,000 women and children reported missing inWest Bengalin 2011, only 6,000 could be traced.
- Immoral Trafficking Prevention Act (ITPA), 1956.
- India also prohibits bonded and forced labour through the Bonded Labour Abolition Act, the Child Labour Act, and the Juvenile Justice Act.
- Draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016.
Reasons for the rise of trafficking in some states:
The factors of trafficking in women and children can be divided into two categories: Push and Pull factors:
The Push factors include:
- Poor socio-economic condition of a large number of families.
- Poverty coupled with frequent, almost annual natural disaster like floods leading to virtual destitution of some people.
- Lack of education, skill and income opportunities for women in rural areas
- Absence of awareness about the activities of traffickers.
- Pressure to collect money for dowry which leads to sending daughters to distant places for work.
- Dysfunctional family life, domestic violence against women, low status of girl child, etc.
- Porous border acts as a transit point. (Ex: West Bengal-Bangladesh)
- Again, the social composition of state’s population where The socially and economically backward sections like Scheduled Castes, Scheduled Tribes and Muslims constitute 54 per cent of its population makes West Bengal even vulnerable.
- Poverty and economic injustice is the most common reason especially in North eastern states.
- Often, marriage appears to be an easy instrument for trafficking women to far away places and exploit them sexually and economically
- Trafficking is closely associated with child marriage.
- Especially in tribal areas traffickers lure parents with education, better life and money for these kids.This is the case in Jharkhand.
- Tribal conflicts for instance Kukis in Manipur vs Nagas make many kids homeless and agents take this as an opportunity and this led to increase in trafficking.
The Pull factors are:
- Lucrative employment propositions in big cities.
- Easy money, promise of better pays and comfortable life by the trafficking touts and agents.
- Demand of young girls for marriage in other regions.
- Demand for low-paid and underage sweat shop labor.
- Growing demand of young kids for adoption.
- Rise in demand for women in the rapidly expanding sex industry.
- Demand of young girls for sexual exploitation as a result of the misconception that physical intimacy with young girls reduces men’s chances of contacting HIV/AIDS, or of the myth that sex with a virgin can cure HIV/AIDS and impotence.
- Trafficking is also closely linked to migration, and of late mobility across the borders has increased to a great extent due to economic globalization.
- Weak law enforcement machinery and rare conviction of traffickers encourages the operators of the trade to continue the lucrative trade and earn huge margin without any investment.
- Moreover, the unwillingness of the victims to seek legal redress due to absence of support from the police and the community members is also contributing to the spread of this crime.
- Nexus between traffickers and law enforcement personnel.
- Lack of awareness and declining value system are other factors. (West Bengal).
- Men migration for work and the BPO sector workers have also contributed to growing demand for commercial sex in the cities.
3. Honour Killing:
The United Nations says that one in every five cases of thousands of honor killings internationally occur in India each year.
According to the U.N. Population Fund, around 5,000 women are victims of “honour” killings worldwide every year.
Why does this practice persist?
- ‘Honor’ killings stem from a social system that has been conditioned by a rigid, often local, understanding of what honor means. Understanding of honor is colored by aweft of patriarchy and misconstrued religious and cultural values.
- In several communities across India, women are seen as the emblems of family honor. Their behavior, decisions and actions are seen as a reflection of the family’s “values” and so any deviation from the “accepted” route is adent on family status.
- Feed on theLakshman Rekhamentalityin which a line is drawn around a woman to protect her, and crossing that line, by a man or woman, calls for action from family men whose sense of honor or masculinity has been perceived to have been challenged.
- Caste endogamy, caste purityensures this patriliny and emphasizes the need for controlling the female sexuality to assure the paternity and lineage of the offspring. A man’s honour largely lies in his ability to impose such control on his womenfolk.
- Cold-blooded murders for the preservation of honour is the direct cause due to a feudal-mindset, the belief in male-chauvinism, lack of formal governance in rural areas and Khap panchayat acting as parallel courts.
- The “culture of silence” adopted by the villagers leading to lack of any substantial evidence thereby hampering the process of investigation, when taken up, is another perpetrator of this social stigma.
- Lack of political will to take steps towards the abolition of the Khaps.
- Even the police and the judiciary at times act as mute spectators and passive supporters of the honour protectors.
- The recent murders in Tamilnadu and Karnataka brought this gruesome act to the limelight again.
- Honour Killing is ultimately a form of homicide and thus constitutes a violation of Article 14, 15(1) and (3), 19, 21 and 39(f) of The Constitution of India.
- It is against the various International Commitments the Government of India has made in the “United Nations Convention on the Elimination of all forms of Discrimination against Women” (1982), Universal Declaration of Human Rights (1948) and International Covenant on Civil and Political Rights(1966).
- Though Article 51 (e) of the Indian Constitution enumerates the fundamental duty to promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women.
- Inter-caste marriages have been validated in India as early as in 1949 by the Hindu Marriages Validity Act, 1949.
- Hindu Marriage Act, 1955, diametrically against the customary marriage rules in India, offers more freedom in marriage by doing away with identification of marital partners according to caste and permits both sagotra and inter-caste marriages.
- Preventing a woman from marrying a person of her choice is an emotional abuse under the Protection of Women from Domestic Violence Act, 2005.
- the Supreme Court in 2011, outlawed the evil practice of protracted illegal honour killings by Khap Panchayats in India establishing that individual liberty under Article 21 has the highest place in the Constitution
- Landmark case ofLata Singh v State of Uttar Pradeshthe Supreme Court has ruled that “there is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder”
- In the case ofArumugam Servai vs.State of Tamil Nadu, the Supreme Court has declared honour killings based on the perception of the Khaps, wholly illegal that must be stamped out.
- The Supreme Court inBhagwan Dass v. State of NCT, Delhi, 2011laid down that honour killings satisfy ‘the rarest of the rare’ doctrine so as to attract the death penalty for its perpetrators.
- Honour killing crimes go unreported resulting in a very low conviction rate. To deal with this issue, it is essential that a specific legislation in this regard with heavy penalty is enacted.
- Like all social evils, unless society shuns these practices, the police and judiciary alone cannot save women who want to break free from arranged and abusive marriages.
- In August 2012 the Law Commission of India prepared draft legislation known as the Prohibition of Interference With the Freedom of Matrimonial Alliances Bill. This bill was designed to target the unlawful activities of communal assemblies in these cases.However, even now, the draft has not been presented before the Parliament, and the future of the proposed bill looks uncertain.
- Invoking the parental emotions through street drama, skits and plays to respect the liberty of their children rather than to uphold some orthodox norm which sometime result in the death of their only child.
- Public condemnation of honor killing.
- Reforms within the family.
4. Casteless India:
- Caste system is deeply engraved in Indian society, to deconstruct or unlearn the learnt is a difficult social challenge.
How can India be made casteless?
- Strict Legislations: A strong constitutional backing that everyone is equal irrespective of the caste. There needs to be a choice category named ‘casteless’ for people who are vexed with the caste system and who do not want to be identified with any caste.
- Rationalizing reservation: Making social and economic backwardness as the sole criteria for reservation and doing away with any kind of caste based reservation.
- Checking caste as a Political tool: Caste based politics has become a feature of Indian society.
- Education and Awareness: Empowerment via education is a credible long-term solution.
- Legal Backing: Legal backing to inter-caste marriages and strict actions against honor killing and Khap panchayats can be stepping stones towards building a casteless society.
- Intellectual Backing: Rational debates and strong intellectual backing is needed to make people understand the original basis of caste system and benefits of being a casteless society.
- Inclusive Economic Development
- Transport and Communication (Mass)
- Voluntary giving up of surnames and titles.
- Employment in private sector.
- Caste politics nexus.
- Existing reservation system.
- Feudal Mindset of the people.
- In the lower rung the caste system is becoming very rigid.
- Khap Panchayats and Kangaroo Courts.
- Honor Killings.
- Illiteracy and poverty.
- Existing levels of inequalities.
Changes that can be seen:
- Due to increased western influences and also due to access to education, the lower castes got mobilized and started imitating the upper castes in terms of lifestyle, rituals and practices, i.e. they underwent Sanskritization.
- After independence many castes which were earlier discriminated as lower castes gained enormous benefits like the toddy tappers in Orissa. Economic opportunities gave an impetus to the social status of various lower castes.
- Purity and pollution is not adhered to very strictly these days especially in urban areas.
- Backward castes like Yadav, Kamma, Reddy gained political clout because of their agricultural proficiency and discrimination towards these castes is not often visible.
- Castes like Jats, Patidars and Marathis demanding reservation.
- People are voluntarily giving up their surnames.
Conclusion: The SDGs adopted by the UN General Assembly aims to eliminate poverty, hunger and socio-economic inequality by 2030. However in a country like India where caste has such history and is highly entrenched in the societal mindset making it a casteless society seems to be a utopic idea. Experts suggest the shift from “caste rigid” to “caste less” may not be possible in the near future. Therefore the more practical approach would be to remove inequalities within the caste system and not eradication of caste altogether.
5. Child Marriage:
- The practice where a child is forced to marry before the attainment of legally permissible age is known as child marriage.
- In India the legally permissible age is 18 for girls and 21 for boys.
- As per the data of the National Crime Records Bureau (NCRB), a total number of 169, 222 and 280 cases have been registered under the Prohibition of Child Marriage Act (PCMA), 2006 in the year 2012, 2013 and 2014 respectively.
- This practice is mostly prevalent in the North-Western and Eastern Parts of the country.
- Girl child are treated as a burden on the resources of a family and hence are married at a young age.
- Patriarchal society where women are offered with least or no possible choices.
- In India marriage is a family decision the bride or the bridegroom has a very less say on it.
- Most of the matrimonial alliances are predetermined by the elders of the family considering the social and economic benefits related to it.
- Fear of rape or any other kind of violence against women forces the family to transfer the burden of the girl child as soon as possible.
- In some of the society it is considered to be auspicious for a girl child to marry before the age of her puberty.
- Fear that the grown up girl will marry against the will of the family and in other caste or religion forces the parents to marry the girl at a tender age.
- Women after there marriage are mostly confined to the household activities and hence young girls are preferred.
- Factors like low sex ratio, illiteracy and social evils like dowry, domestic violence etc. accentuates child marriage.
- Ill effect on the health of the girl.
- Burden on the shoulders of the young couple to start a family life at a tender age.
- Most of them are used as a servant in the in-laws house.
- Psychological trauma.
- Subjected to physical and mental abuse.
- Compromising the future of the girl child.
- Child brides are often disempowered, dependent on their husbands and deprived of their fundamental rights to health, education and safety.
- Neither physically nor emotionally ready to become wives and mothers, child brides are at greater risk of experiencing dangerous complications in pregnancy and childbirth, becoming infected with HIV/AIDS and suffering domestic violence.
Steps taken by Government:
- Prohibition of Child Marriage Act (PCMA) 2006 to tackle the problem.
- State Governments are requested to take special initiative to delay marriage by coordinated efforts on Akha Teej—the traditional day for such marriages.
- Advertisements in the press and electronic media educating peoples about the issue of Child Marriage etc are also being taken up.
- Platforms such as the International Women’s Day and the National Girl Child Day are used to create awareness on issues related to women and to bring to the centre stage issues such as child marriage.
- Through the Sabla programme of this Ministry, adolescent girls in the age group of 11 to 18 years are imparted training with regard to legal rights of women which also includes the Prohibition of Child Marriage Act, 2006.
- Beti Bachao Beti Padhao, Ladli Scheme and Sukanya Smridhi Yojana.
6. Judicial intervention in religious matter:
Yes, intervention is needed:
- Backed by Article 25(2) to intervene in religious matters. For instance the SC denied the plea of the Gowda Saraswath Brahmins to claim exemption from a law allowing Dalits and lower castes to enter the Shri Venkataramana temple. Here the court gave the reformist thrust of Article 25 precedence over the group rights enshrined in Article 26.
- State can legitimately regulate religious practices when they “run counter to public order, health and morality” and when they are “economic, commercial or political in their character though they are associated with religious practices”.
- It is necessary to eliminate the existing social evils in the society.
- If practices though religious may have sprung from merely superstitious beliefs and in that sense be extraneous and unessential accretions to religion itself. (Durga committee case)
- The SC said though religious opinion as fatwas have a laudable object, they cannot be enforced the moment they breach the fundamental rights of a person. (Imrana case judgement)
- Similarly in Shah Bano case and recent case of triple talaq Supreme Court upheld the right of equality of Muslim women.
- Also Haji Ali Dargah , Sabarimala case and Shani Shingnapur case fall under the above category where a section of community is still not allowed to enter and it is discrimination on the basis of gender and it infringes on a woman’s right to freedom of worship
No intervention is not needed:
- India is unlike western secular countries it promotes multiplicity of culture.
- Can lead to infringement of Right to freedom of Religion.
- The Supreme Court, in adjudicating on matters it has no religious punditry over, and in doing so under the protection of the law, and the Constitution of India reduces the religions into a bunch of meaningless myths.
- The judicial arbitration of Hinduism’s intrinsic principles reduces an entire religion to a monotheism and ignores the multiple layers of consciousness that form its spiritual temperament.
- Can lead to Judicial overreach.
- Supreme Court already has huge pending cases in front of it , these add an increase in delays of justice.
- Presence of Personal Laws and Personal Law Boards.
- In Shirur Mutt case the SC observed that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential and no outside authority has any jurisdiction to interfere with their decision.
Conclusion: Uniform civil code is the best solution to deal with the present situation where it can unburden the Supreme Court from religious incidents and upheld equality of law for all communities.In India until all communities begin to accept that the arc of moral and social demands bends towards individual freedom, non-discrimination and equality, particularly on the issue of gender, India is likely to see religious issues being repeatedly taken to court.
7. Moral Policing:
- Moral policing refers to vigilante groups enforcing a code of morality, an event used and misused often in our society.
- Spreading morality is something that can be understood, and is a welcome idea at any point in time. But the recent incidents that took place against some women in Pune and other parts of the country raises the question, what is the standard of morality of the so-called moral policing imposed by some people?
- The objections that they voice nowadays tilt more towards curbing an individual’s choice and freedom and slapping the codes and the norms of the “Indian culture” highly misunderstood by these goons, rather than trying to spread morality.
Why Moral Policing is on a rise?
- Due to failure of routine policing.
- Existing Patriarchal attitude and orthodox mindset.
- Goons supported by political parties.
- Sudden change in the behavior of the people influenced by westernization and globalization. Some sections of the society are unable to accept it.
- Sections 292 to 294 of the Indian Penal Code are used to deal with obscenity and indecent behavior in public. There is no proper definition of an indecent behavior/obscene act and it is “highly ambiguous” and “open to interpretation”. It places too much arbitrary power in the hands of the police. It is frequently used by the police to justify acts of moral policing.
- Lack of will and ability on part of the governments and police to deal with such anti-social elements is troubling and it is this lackadaisical attitude which emboldens them. Police is reluctant to lodge a formal complaint or investigation against people indulged in moral policing.
- Policemen themselves engage in moral policing, due to their increasing intolerance and feudal mind set, rather than enforce the routine policing adhering strictly to laws.
- Police’s main responsibility is to maintain law and order, security of women and others. The lacuna in this strategy (often under the influence of local political powers) leads to some groups to take law and order in hand with respect to moral policing.
- The administration acts so slowly and in such a callous manner that citizens prefer to do away with their rights so as to avoid the wrath of these goondas.
What can be done?
- Citizens must be aware of their rights and legal provisions and must raise their voice against moral policing. They should not remain silent.
- Routine policing.
- Police should be made aware of all the rights and its wider interpretation from time to time.
- Sensitization of the police force to the cause of women and related issues.
- Police should adopt proactive approach towards the culprit and those section of society who practice these sort of moral policing acts (such as Khap Panchayats)
- Society needs to change its attitude and must give away the rigid mindset. It must be open to change.
- Use of social and mass media, dramas, public forums, street skits etc. to generate awareness among the masses. (“Kiss of Love” campaign)
- Trust building measures between police and society. (“CI mera Bhai Hai”; “Jan Maitri” by Kerala police)
- Strict action against people involved or advocating moral policing.
- Conceptualizing a new law to deal with such issues.
- Using technology. (CCTV Cameras, GPS etc.)
- Structural reformation of the police force and inclusion of more women.
8. Acid attacks:
- Love failure; break up, one sided love or any other interpersonal issues.
- Property dispute, dowry attack, revenge etc.
- Easy availability of acid in the market without any restriction.
- Effect of media and films.
- Most of the youth are unaware of the consequences and grievousness of the crime.
How to prevent it?
- Restricting the sale of acid. Strict enforcement of license.
- Public vigilantism.
- Generating awareness among the youth regarding acid attacks.
- Girl must be taught to inform the family and police at the earliest in case facing any kind of trouble.
- Strict punishment to the offenders.
- Use of technology. (CCTV Cameras, Emergency button in mobile devices, GPS etc)
- Physical training to girls for self defence. (Use of pepper spray, stun gun etc.)
Helping the victims:
- Admission into nearby medical center and initiation of treatment without any police case.
- Compensation to the victim.
- Steps taken by government:
- A new Section 357A has been inserted in the Code of Criminal Procedure 1973 vide the Code of Criminal Procedure (Amendment) Act, 2008 to provide for compensation to victims of crime. It will provide financial support to victims of various crimes like sexual offences including rape, acid attacks, crime against children, human trafficking etc. A minimum compensation of Rs 3.00 lakh has been allocated for the victim of acid attack under this scheme.
- In July 2016, the Central Government has launched the Central Victim Compensation Fund (CVCF) Scheme for women with one time grant of Rs.200.00 Crore under the Nirbhaya Fund.
- Free legal aid to the victim.
- Employment and other social security net must be provided to the victim.
- Role of acid attack victims (Laxmi Agarwal and Sonali Mukherjee)
- According to WHO, 46 million women seek abortion every year (Worldwide). Close to half of 46 million abortions happen in unsafe conditions.
- Sadly, even today, a woman dies every two hours of unsafe abortion a due to stigma around women’ s sexuality and abortion.
- In India, 20 million women seek to terminate an unwanted pregnancy every year.
- In 80% developed countries, abortion is permitted for social or economic reasons
as compared to it, only 16% developing countries permit such abortion.
- Many international human rights bodies, including UN, have paid attention to widen the access for safe abortion as well as called upon states to remove barriers to it.
- A woman has right over her body and its integrity.
- Human rights law: the woman has the right to choose whether to continue a pregnancy or not. It will fall within the framework of right to life, right to health, right to autonomy and right to bodily integrity.
- Abortion decision is not easy. When a women decides to abort, the decision is not taken without considering related aspects
- Abortion is a way out of certain difficult situations like pregnancy resulting from coerced or non-consensual sex, ignorance that pregnancy may result even from the first sexual intercourse, inability to use a method of contraception due to partner ’s objection or fear of side effects, incomplete information and counselling at appropriate time, discontinuities in use of protection due to either irregular supply or method failure etc.
- Abortion is also about not wanting a second child as it may affect the welfare of first child due to limited financial and other resources.
- Especially in cases of coerced pregnancies, if the women is forced to keep the child, it violates a woman’s bodily integrity and severely damages her mental health, aggravates the trauma and impedes her healing and recovery from such sexual violence.
- Enough evidence shows that non-availability of safe abortion kill. Where the abortions are non-restrictive, morbidity and mortality due to unsafe abortion are much lower.
- The Human rights law says that a person is vested with human rights only at birth. An unborn foetus does not have human rights. Reason being the foetus is not an independent entity. Its welfare depends on the welfare of the woman. However, a woman is a living entity who will bear physical, mental and life turning changes by raising a child in her womb. Thus, only a woman has a right on how she wishes to deal with pregnancy.
- The state does not offer any special relief for parents of disabled children. The entire burden of education, medical care, daily care and future security falls on the family alone. Hence they must have the right to decide.
- Harmful effects on the health of women.
- Can encourage couples not to use contraceptives.
- Can indirectly result in female fetecide.
- Can result in cases of crime getting unreported.
- Right of the foetus.
- Doctors may treat it as an unethical practice and might refrain themselves from indulging in it.
Abortion in India:
- Abortion in India is legal only up to 20 weeks of pregnancy, under specific conditions and situations, which are defined as: If the continuance of pregnancy risks the life of the woman or may result in grave physical or mental injury. If there is a substantial possibility of the child being born with physical or mental abnormalities, as to be seriously handicapped.
- However, The Supreme Court of India recently took a landmark decision to allow a 24-year-old rape survivor to terminate a 24 week pregnancy, as the foetus has abnormalities, and going ahead would severely affect the woman’s health.
- According to the IPC abortion falls under‘Offences Affecting the Human Body’, and provides that causing a miscarriage with or without consent for a purpose other than saving the life of the woman is punishable.
- However, the Medical Termination of Pregnancy Act (MTP Act), 1971 makes for a quantum difference in approach, as if by a legislative sleight through a non-obstante clause, by decriminalising abortion without bringing an amendment to the IPC or abrogating the penal provisions.
- MTP Act, 2003:
- The Medical Termination of Pregnancy (MTP) Act in India came into existence in 1971. It was amended in 2003 to facilitate better implementation and increase access for women especially in the private health sector.
- The MTP Act sets some limitations regarding the circumstances when abortion is permissible, the persons who are competent to perform the procedure, and the place where it could be performed.
- The MTP Act overrides the IPC by allowing a woman to get an abortion within the first 12 weeks of pregnancy, provided a registered medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health.
- If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners.
- The Act also allows abortion if the foetus will be born with severe abnormalities.
- To determine the risk of physical and mental harm to a pregnant woman seeking abortion, the Act takes into account the woman’s actual as well as reasonably foreseeable environment.
- It also defines circumstances which can constitute grave injury to the mental health of a woman. The mentally grievous situations include pregnancy resulting from rape as well as contraceptive failure of any contraception used by a married woman or her husband if a married couple is attempting to limit their number of children.
- Abortion beyond 20 weeks is also legal if a registered medical practitioner, in good faith, thinks that emergency termination is necessary to save a pregnant woman’s life.
- Problems with the MTP Act:
- The Act does not mention anything about a woman’s right to terminate a pregnancy beyond 20 weeks if there are foetal abnormalities.
- The Act as it currently stands also does not permit abortion solely on the request of a woman. One important reason for this is to prevent and reduce the instances of female foeticide in the country. However, it is important to analyse and study whether the law has had the desired impact on female foeticide, especially in light of the Pre-Natal Diagnostic Techniques (Regulation and Misuse) Act, 1994 which prohibits sex-selection and prescribes strict punishment for both the party seeking prenatal sex determination as well as the medical practitioner conducting the test.
- The MTP Act also does not address any ethical issues, but in legal regimes that do not allow abortions, the moral standpoint is that medical termination of pregnancy results in the death of a living being.
- The MTP law gives 12 weeks or 20 weeks for abortion, as per the case. However, serious foetal abnormalities cannot be diagnosed before 20 weeks. Such crucial tests are mostly done at 18 weeks and the results take three or more weeks.
- Inspite of having MTP law which permits abortion access under certain conditions, widespread access to safe abortion services has not been ensured.
- Way ahead:
- A revision of the legal limit for abortion is long overdue.
- The process of rethinking the 44-year-old MTP law has already taken years, but the issues go beyond the slowness of the process. In the decades since the law was first enacted, the science on the subject has made enormous leaps with the advent of ultrasound, magnetic resonance imaging (MRI) and foetal monitoring devices, predicting the health of the baby has become more accurate and sophisticated than anything that was conceivable then.
- The draft Medical Termination of Pregnancy (Amendment) Bill, which was introduced by the government in 2014, provides for abortion beyond 20 weeks under defined conditions. As per the draft law, the decision to allow abortion between 20 and 24 weeks can be taken“in good faith”by a healthcare provider if, among other conditions, the pregnancy involves substantial risks to the mother or child, or if it is“alleged by the pregnancy to have been caused by rape”.
- Women should have the basic right to control their body, their fertility decisions and motherhood choices.
- The constitution of India and various international covenants of human rights give a fundamental right to women to take care of her body as she wishes.
- The judiciary and the legislators have to encourage the women citizenry to observe their equal citizenship rights. It includes right to life, right to dignity and right to benefit from scientific progress.
- The decision to terminate a pregnancy is never an easy or mechanical decision and it takes a severe toll on the affected parties, especially the woman.
- There is a need to strike a balance between the rights of women to control their bodies and the legitimate interests of the state to prevent selective sex determination as well as protect the interests of the woman and the unborn foetus.
10. Manual Scavenging – A question of dignity:
What is Manual scavenging?
- Manual scavenging refers to the practice of manually cleaning, carrying, disposing or handling in any manner, human excreta from dry latrines and sewers. It often involves using the most basic of tools such as buckets, brooms and baskets.
- The practice of manual scavenging is linked to India’s caste system where so-called lower castes were expected to perform this job.
- Manual scavengers are amongst the poorest and most disadvantaged communities in India.
- Despite progress, manual scavenging persists in India. According to the India Census 2011, there are more than 2.6 million dry latrines in the country. There are 13,14,652 toilets where human excreta is flushed in open drains, 7,94,390 dry latrines where the human excreta is cleaned manually.Seventy three percent of these are in rural areas and 27 percent are in urban areas.
- There is a huge under-statement of numbers involved in manual scavenging. It is because way that the government defines manual scavenger.
- Surveys conducted by activists estimate that there are actually over 1.2 million manual scavengers in the country but as per the Socio Economic Caste Census 2011, 1,80,657 households were engaged in manual scavenging for a livelihood; the report also recorded 7,94,000 cases of manual scavenging across the country.
Steps taken by Government:
- In 1980-81, the Ministry of Home Affairs took up the Centrally Sponsored Scheme for Liberation of Scavengers by way of conversion of existing dry latrines into low cost pour flush latrines and providing alternative employment to the unemployed scavengers as one of the measures for removal of untouchability and providing financial assistance in selected towns.
- A Task Force constituted by the Planning Commission in July 1989 on the subject suggested for separate scheme for liberation and rehabilitation. It also explored the bases for the enactment of certain legislation to ban construction and continuation of dry latrines and prohibit the practice of manual scavenging.
- In 1992, the scheme of‘Liberation of Scavengers’was bifurcated into an‘Integrated Low Cost Sanitation (ILCS) SchemeFor conversion of dry latrines into water borne flush latrines and The National Scheme for Liberation and Rehabilitation of Scavengers and their Dependents (NSLRS) for providing alternative employment to the liberated scavengers and their dependents.
- Parliament enacted the “Employment of Manual Scavengers and Construction of Dry Latrines(Prohibition) Act, 1993”. The Act, inter alia, provides that no person shall engage in or employ for or permit to be engaged in or employed for any other person for manually carry human excreta; or construct or maintain a dry latrine.
- The Houselisting and Housing Census, 2011 reported that there are about 26 lakh insanitary latrines in the country.
- Accordingly, the Parliament passed the‘Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013’(MS Act, 2013).
- The objectives of the Act are to eliminate the use of insanitary latrines and to prohibit Employment as Manual Scavengers and hazardous manual cleaning of sewer and septic tanks.
- To conduct a survey of Manual Scavengers and their rehabilitation.
- Definitions of manual scavengers and insanitary latrines widened to cover not only dry latrines but other insanitary latrines as well.
- Offences under the Act are cognizable and non-bailable and attract stringent penalties.
- Vigilance or Monitoring Committee at sub-Division, District, State and Central Govt. levels.
- National Commission for Safai Karamcharis (NCSK) would, inter alia, monitor implementation of the Act and enquire into complaints regarding contravention of the provisions of the Act.
- Provision of construction of adequate number of sanitary community latrines in urban areas, within three years from the date of commencement of this Act to eliminate the practice of open defecation.
What needs to be done?
- Comprehensive Rehabilitation of the Manual Scavengers within a time bound framework.
- Government must provide initial cash aid.
- Children of the Manual Scavengers will be provided scholarship.
- Imparting Manual Scavengers with livelihood skills.
- Providing concessional loan with subsidy for assuming alternative occupation or construction of house.
- Extending any other legal or programmatic help.
- Awareness must be created at the societal level. (Use of social and mass media)
- Public vigilantism to complain any cases of manual scavenging.
- Machines should be deployed to clean the drains.
- Role of NGOs and private individuals:
- “Association for Urban and Rural Needy” to end manual scavenging.
- “Stree Mukti Sangathan” for rag pickers’ welfare.
- Bezwada Wilson: Safai Karmachari Andolan: 1994
- Safai Karmachari Andolan: In 2007 launched and international campaign ‘Action 2010’
- Mahila Mukti Yatra 2012
- Rashtriya Garima Abhiyan: Jan Sahas
11. Immoral Traffic (Prevention) Act (ITPA), 1965 (Amended in 1986):
- Immoral Traffic (Prevention) Act lays down the legal framework for sex work in India.
- Some of the provisions under ITPA provide for rescuing sex workers, remanding them to a rescue home and handing over them to their parents or family members. (i.e. Rescue, Protect and Rehabilitate)
- However, a case study in Kolhapur showed that some of the women/sex workers rescued and remanded in home did not have living parents, some had left home decades ago, and some had families who did not know they were engaged in sex work. The women were shunted from home to home and finally released after some years.
- As per data from National Crime Records Bureau (NCRB), the number of registered human trafficking cases has increased by 38.3% over five years from 2,848 in 2009 to 3,940 in 2013. The conviction rate for such cases has declined 45%, from 1,279 in 2009 to 702 in 2013.
- Prime destinations for female trafficking victims include Kolkata, Mumbai, Delhi and along India-Nepal border.
- It includes the word ‘immoral’, inserting an element of morality when the discussion should be purely legal.
- All sex work is assumed to be a result of trafficking with workers needing rescue.
- Adult sex workers should be put into homes without their consent.
- Adult women should need to produce families to be released, thus denying them any agency in their lives.
- What is fondly paraded as an act of ‘rescue and rehabilitation’ should actually be incarceration and trauma.
- Sex workers and activists have been demanding amendments to the Act, pointing out that its various provisions are being used disproportionately against sex workers.
- There is a demand from several sex workers collectively to legalise the trade, and allow them to work with “dignity”. (Organisations such as the All India Network of Sex Workers have maintained that by legalizing the trade not only will trafficking of women come down, but will also help in availing benefits of various health and welfare schemes.
Concerns with the new Draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016
- The Bill was fashioned in great secrecy i.e. no wide consultative process took place among all the stakeholders.
- The Draft Bill tackles trafficking solely through the lens of sex work. The Bill ignores the tens of thousands of men, women and children who are routinely trafficked for marriage, domestic labour or bonded labour in fields, mines, and textile and beedi.
- A provision in the Draft Bill allows any social worker or public-spirited citizen to ‘rescue’ and ‘produce’ a ‘victim’ before the District Anti-Trafficking Committees it proposes to set up. This may create tensions in future as it opens doors tomoral policing and could lead to harassmentof not just sex workers but other ordinary people by overzealous, vigilante citizens.
- The Bill continues to conflate or combine both “prostitution” with “commercial sexual exploitation” into one which goes completely against the grain of what activists are fighting for, namely protecting the rights of adults who stay in prostitution voluntarily.
- The Bill follows the conventional and simplistic approach to define ‘prostitution as exploitation’ rather than looking at it as ‘exploitation of prostitution’, which is the primary evil that must be addressed.
- It is important to treat trafficking in children, adult trafficked labour, and forced sex work as separate categories, but the Draft Bill mixes up everything in its portmanteau approach.
- The Draft Bill fails to mention the some of the important recommendations like:
- The 2013 Verma Committee had specifically clarified that “the recast Section 370 ought not to be interpreted to permit law enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients”.
- In 2015, a Supreme Court panel had recommended that the law relating to trafficking be read down for consenting adults in sex work and their clients.
- It threatens basic constitutional freedoms of the persons it seeks to rescue. (Enormous power, Little accountability) For instance:
- Article 22 gives a detained individual the right to consult a lawyer and be produced before a magistrate within 24 hours, but the Draft Bill allows persons to be directly produced before the member-secretaries of its District Anti-Trafficking Committees.
- The Committees can independently recommend that a victim be repatriated to her home State (or another State) for increased protection. This contravenes Article 19, which grants citizens the right to move freely across, and reside anywhere in, the country.
The way ahead:
- Clearly, there is every reason to desire a better law that can correct the anomalies in the existing one. But the recently minted Draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 does not do this. On the contrary, it opens up brand new grounds for anxiety.
- Adult trafficked persons must be consulted and made aware of their rights so that they can take informed and independent decisions on whether they want to be repatriated.
- The enormous power and little accountability that is vested in the proposed District Committees is troubling. They raid and rescue, rescued persons are produced before them, and they are also responsible for post-rescue care. (policeman, judge and rehabilitator rolled in one) (At present, despite its lacunae, the ITPA still has some processes in place. For instance, nobody can enter a brothel without a warrant, and only some categories of police officers have the power to raid a brothel. Now, these guidelines stand to be transgressed.)
- It duplicates several existing (and unimaginative) provisions: Anti Human Trafficking Units already work in districts and States, the ITPA’s present raid-rescue-rehabilitation approach is a dismal failure, and rescue homes today are often the site of fresh exploitation.
- Thousands of placement agencies continue to be the chief source of human trafficking despite laws. The Draft Bill repeats the need for their registration without explaining how it will ensure it.
- Overall, the critics argue that the present ITP Bill is carelessly drafted and muddled Bill that doesmore harm than good.
12. LGBT Issue: To be equal before the law:
- On June 30 (in Geneva), following a seminal vote, the United Nations Human Rights Council (UNHRC) passed a resolution to create a post of an independent expert on Sexual Orientation and Gender Identity. (SOGI expert)
- This SOGI expert will assess, study and report annually on the nature, the cause, and the extent of discrimination faced by lesbian, gay, bisexual and transgender (LGBT) persons around the world.
- However, India chose to abstain from voting altogether to appoint this SOGI expert and offered no official reasons for its abstention.
- India also voted in favour of amendments that were introduced by Pakistan which explicitly states that the SOGI expert’s mission would ensure, at all costs, respect for the sovereign right of every country to implement its own national laws.
- The issue of LGBT rights in India is a matter being considered by the Supreme Court under a batch of curative petitions filed by various institutions and organisations and the apex court is yet to pronounce on this issue.
- NGOs: Naz Foundation and Voices Against 377
Arguments against same sex marriage:
- Calling something marriage does not make it marriage. Marriage has always been a covenant between a man and a woman which is by its nature ordered toward the procreation and education of children and the unity and wellbeing of the spouses.
- It violates natural law.
- It is in the child’s best interests that he be raised under the influence of his natural father and mother. This rule is confirmed by the evident difficulties faced by the many children who are orphans or are raised by a single parent, a relative, or a foster parent. A child of a same-sex “marriage” will always be deprived of either his natural mother or father. He will necessarily be raised by one party who has no blood relationship with him.
- In the name of the “family,” same-sex “marriage” serves to validate not only such unions but the whole homosexual lifestyle in all its bisexual and transgender variants.
- It does not create a family but a naturally sterile union.
- It turns a moral wrong into a civil right.
- If homosexual “marriage” is universally accepted as the present step in sexual “freedom,” what logical arguments can be used to stop the next steps of incest, pedophilia, bestiality, and other forms of unnatural behavior.
Arguments in favour of same sex marriage:
- Gay marriage does not harm the institution of traditional marriage.The ability of same-sex couples to get married doesn’t alter a single aspect of heterosexual marriages directly or indirectly. The legal rights and benefits of heterosexual couples are completely unaffected by the existence of gay marriage.
- A lot of things were “always that way” before they were changed. For example, child marriage, autocracy etc.
- Couples who don’t want kids can still get married. Then whats the problem with same sex marriage.
- Overturning bans on gay marriage has no legal effect on polygamous, incestuous, or human being-animal relationships. Those are separate areas of law, and they won’t be affected by the existence of marriage rights for gay couples.
- It provides sexual freedom to the individual.
- Voice of the minority section will not be suppressed.
- There is nothing called as natural law. its just the view of the majority.
- Mark of a civilized society ingrained with the seeds of tolerance.
- It will help in rescuing many people out of depression.
LGBT Issue and India:
- 1860s:Section 377 of the IPC deems homosexual intercourse as a criminal offence.
- 2001:Naz Foundation files a writ petition in Delhi High Court challengin Section 377.
- 2009: The Delhi High Court passes a landmark judgment decriminalizing Section 377. Following this, 15 special leave petitions were filed in the Supreme Court on behalf of mostly faith-based and religious groups from all parts of the country.
- 2013: The Supreme Court sets aside the 2009 order decriminalizing Section 377.
- 2014: A new rights group based in New Delhi, LGBT Professionals’ Network decides to appeal against the SC order.
What critics argue about India’s present status on LGBT?
- Proponents of LGBT rights have argued that India’s decision to abstain was a matter of grave shame and as an act utterly unbecoming of a modern progressive state.
- In India the transgender persons are deprived of the fundamental rights available to the other two sexes, i.e. male and female.
- Supreme Court’s judgment upholding Section 377 of the Indian Penal Code, according to which homosexuality or unnatural sex between two consenting adults is illegal and an offense violates Fundamental Rights under Articles 14, 15 and 21 of the Constitution.
- A majority of the countries have legalised homosexuality.
- Section 377 IPC was introduced not as a reflection of existing Indian values and traditions, but rather, it was imposed upon Indian society due to the moral values of the colonisers. Indian society prior to enactment of the IPC had a much greater tolerance of homosexuality.
- The apex court has failed to consider the dynamic nature of law, particularly with respect to homosexuality.
- When viewed in this light, it’s clear that India’s above acts and laws directly or indirectly denies to several persons their basic human dignity, and that infringes on the rights of a sizeable slice of the populace from participating fully in the make-up of our country’s moral bedrock.
- Now, with the curative petitions still left undecided, India’s decision to abstain from voting sharpens the focus on the Supreme Court’s next steps on Section 377.
- For, a failure to annul the Supreme Court’s verdict in Koushal would only perpetuate what is really a gross miscarriage of justice. Ultimately, the court’s legitimacy as a vital pillar of our democracy depends on its ability to nullify popular will when the decisions of the majority transgress the Constitution’s guarantees.
- By reversing Koushal, the court can help usher India into a more equal future, where the tyrannical belief of some does not deny to any person the right to be treated as an equal member of society, and the right to enjoy the Constitution’s foundational liberties.
13. Dalit Issue:
- Dalit, is the self-chosen political name of castes in India which are “untouchable“. Though the name Dalit has been in existence since the nineteenth century, the economist and reformer B. R. Ambedkar (1891–1956) popularised the term.
- Dalits were excluded from the four-fold Varna system and formed the unmentioned fifth varna; they were also called Panchama.
- Scheduled Castes make up 16.6% of India’s population according to the 2011 census.
- To prevent harassment, assault, discrimination and other criminal acts on Scheduled Castes and Scheduled Tribes, the Indian government enacted the Prevention of Atrocity (POA) act on 31 March 1995.
- 1 dalit is killed every 18 minutes.
- 40% of the dalit girls are uneducated. Dalit girls are the largest group in the world who are illiterate.
- The conviction rate is very low. (2 to 3 %). Even under Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1995
- 33.8% of Scheduled Caste (SC) populations in rural India were living below the poverty line in 2011-12.
- Discrimination against Dalit people is known as Dalitphobia.
- Dalits constitute nearly half of primary school dropouts.
- According to the Socio-Economic Caste Census45 percent of scheduled caste households are landless and earn by manual casual labour for their living.
- There have been many instances of victimisation and discrimination against Dalits in the recent times. Dalits started to protest against this and the most recent one is the Dalit Asmita Yatra.
- Features of Dalit movements:
- The movements are spontaneous, with a publicly stated non-violent approach.
- The peaceful, non-violent yatra was all the more remarkable given the background of inhuman and humiliating incidents
- It had no political affiliation.There were no celebrity leaders or speakers.
- Ordinary people supported it in large numbers, with meetings held in villages en route where local participation was spontaneous.
- It had several groups coming together viz. trade unions, Dalit Sangharsh Samitis, workers’ unions, youth groups and individuals.
- Participants came from all over India and Dalit leaders from Punjab, Bihar, Andhra Pradesh and Telangana joined in.
- Muslim community members came in large numbers to support the Dalit community in their campaign In Gujarat recently.
- Dalit movement in Gujarat played a significant role for the government to step down from power.
- Dalit movement in Gujarat is talking about intensifying agitation if the demand for granting five acres of land for each family is not met by Gujarat government.
- Freedom from castesim and they will not tolerate any more atrocities on dalits anywhere in the country.
- Banishment of each of the accused arrested in the Una atrocity incident under PASA
- Arrest of people who participated in the beating of Dalits and police to be sensitive to the Dalit victims. (Gau Rakhsak)
- They also demanded alternative employment options from government to Dalits who have pledged to not dispose of carcasses of dead animals.
Governments approach towards Dalits
- Dalits should not be job seekers, but the job givers and should lead the professions. If this happens, we can see a fundamental change in the society. The process of awakening and constant growing amongst the community will have its own dynamics.
- There is little minuscule percentage of dalit entrepreneurs, who are doing very well for themselves. Government is working towards encouraging more entrepreneurship. Pradhan Mantri Mudra Yojana (PMMY) has been able to give Rs 50,000 crore worth of loans to 80,000 small entrepreneurs so far, most of them from backward castes.
- Steps taken by the government like Jan Dhan yojna and pension and insurance schemes.
- Prime ministers strong words against gau rakshaks and that these attacks won’t be allowed and they should not take law into their hands.
Today dalits have political participation and can raise their voices to demand their rights. In terms of social discrimination, the things are changing in towns. But that is not the case in rural areas. Dalits have been dormant since 70 years of independence, but an awakening has come into them. We may not be able to stop them from here onwards.
What is euthanasia?
- Euthanasia is a medical term meaning ‘easy death’. It is the act of deliberate or voluntary end of someone’s life to prevent any further suffering or pain to the person.
Types of Euthanasia:
- Passive Euthanasia: To forgo treatment or life-prolonging medical support.
- Active euthanasia: Entails the doctor administering drugs to end the patient’s life.
Arguments against Euthanasia:
- Constitution of India:‘Right to life’ is a natural right embodied in Article 21 but euthanasia/suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’. It is the duty of the State to protect life and the physician’s duty to provide care and not to harm patients. (Supreme Court in Gian Kaur Case 1996 has held that “the right to life under Article 21 does not include the right to die”.)
- Neglect of Healthcare by State: If euthanasia is legalized, then there is a grave apprehension that the State may refuse to invest in health. (Legalized euthanasia has led to a severe decline in the quality of care for terminally-ill patients in Holland.)
- Malafide Intention: In the era of declining morality and justice, there is a possibility of misusing euthanasia by family members or relatives for inheriting the property of the patient.
- Commercialization of Health Care: Passive euthanasia occurs in majority of the hospitals across the county, where poor patients and their family members refuse or withdraw treatment because of the huge cost involved in keeping them alive. If euthanasia is legalized, then commercial health sector will serve death sentence to many disabled and elderly citizens of India for meager amount of money.
- Palliative Care Supporters: The practice of palliative care counters the view of euthanasia, as palliative care would provide relief from distressing symptoms and pain, and support to the patient as well as the care giver. Research has revealed that many terminally ill patients requesting euthanasia have major depression, and that the desire for death in terminal patients is correlated with the depression. They need palliative and rehabilitative care.
- Ethical Issue: Doctor may consider it to be morally wrong to assist euthanasia.
- Euthanasia devalues human life.
Arguments In Favor Of Euthanasia:
- Right To Die With Dignity: ‘Right to die’ supporters argue that people who have an incurable, degenerative, disabling or debilitating condition should be allowed to die with dignity.
- Care givers Burden: The caregiver’s burden is huge and cuts across various domains such as financial, emotional, temporal, physical, mental and social.
- Refusing Care:Right to refuse medical treatment is well recognized in law, including medical treatment that sustains or prolongs life. For example, a patient suffering from blood cancer can refuse treatment or deny feeds through naso-gastric tube.
- Encouraging Organ Transplantation: Euthanasia in terminally ill patients provides an opportunity to advocate for organ donation. Not only euthanasia gives ‘Right to die’ for the terminally ill, but also ‘Right to life’ for the organ needy patients.
- It is another case of freedom of choice.
- Issue of public good: For example, in the case of Aruna Shanbag, one hospital bed was reserved for her for 42 years, which could have been used by thousands of patients, all legitimately claiming the right to live. A hospital bed is meant for patients who have a reasonable chance for recovery. For the rest, there are palliative care homes, hospices and residences. No person should be allowed to use taxpayers’ funds on the one hand, and on the other deny hospital beds to more deserving patients.
- Article 21 of the Indian Constitution does make the right to life a fundamental right however it also allows for death subject to judicial process. (Order a soldier to the battlefield, even if it means death; Allows a court to condemn to death a convicted criminal. Thus, the right to live is not an unlimited or an absolute right it is subject to legal caveats and conventions.
- Dr. Christian Barnard, on a doctor’s role:“It is not true that we become doctors in order to prolong life, We become doctors in order to improve the quality of life, to give the patient a more enjoyable life . . . And the same is true when we are dealing with terminally ill patients: what we should ask ourselves is whether there is still any quality of life left. The doctor who is unconcerned about the quality of life is inhumane; and the real enemy is not death but inhumanity.”
Euthanasia and India:
- Historically in India: Opting to die is often an act of honour or salvation
- Cultural practices like santhara among the Jain community was practised with the full knowledge and often consent of the entire community.
- Hindu saints are known to take sanyas and even opt for Samadhi. Even the vanaprastha stage advocated by Hinduism allows for a person to leave the material world and wander into the forest, where he is no longer distracted by the world of attachments. How the person eventually dies, remains unknown. It is another practice that is both voluntary and immensely venerated.
- Views of Mahatma Gandhi:
- “A man who is suffering from an incurable disease and is living thanks to the service rendered to him by others without himself doing anything useful in return has the right to end his life. To fast unto death would be much better for him than to drown himself, for it tests his firmness and leaves room for him to change his mind.”
- “A calf, having been maimed, lay in agony in the ashram and despite all possible treatment and nursing, the surgeon declared the case to be past help and hope. The animal’s suffering was very acute. In the circumstances, I felt that humanity demanded that the agony should be ended by ending life itself. The matter was placed before the whole ashram. Finally, in all humility but with the cleanest of convictions I got in my presence a doctor to administer the calf a quietus by means of a poison injection, and the whole thing was over in less than two minutes. Would I apply to human beings the principle that I have enunciated in connection with the calf? Would I like it to be applied in my own case? My reply is yes. Just as a surgeon does not commit himsa when he wields his knife on his patient’s body for the latter’s benefit, similarly one may find it necessary under certain imperative circumstances to go a step further and sever life from the body in the interest of the sufferer.”
- The campaign for the right to die with dignity in India actually began with Minoo (Minocher) Masani (1905-1998) who formed the Society for the Right to Die with Dignity (SRDD) during the 1960s. He put in his own money to premier the screening of the film, ‘Whose life is it anyway?’ which deals with the above-mentioned subject. He brought out the first draft of the Living Will (Icchha Maran) in this country.
- The Living Will allows a person to state in advance that he should not be put on life support systems when the need arises. It is based on the simple logic that any person has the right to decide whether he wants to be operated upon or not, even to be treated or not. The living will can even specify the types of treatment that the patient would be willing to permit for himself. The patient is fully within his rights to refuse the treatment, even if this refusal can result in death.
- Law Commission of India(in its Report No 210 delivered on 17 October, 2008) stated that there is an urgent need for “Humanisation and decriminalisation of the attempt to suicide”.
- Aruna Shanbaug Case (Aruna was a junior nurse working at KEM Hospital, when in 1973 she was sexually assaulted by a ward boy. She slipped into a coma and remained in a persistent vegetative state for 42 years thereafter): The question was raised with a great deal of passion in the case of Aruna Shanbaug, a nurse who lay in a vegetative state in a Mumbai hospital between 1973 and 2015. The Supreme Court ruled that passive euthanasia is permissible, and brain-dead patients need not be kept alive by support systems or artificial feeding. Supreme Court had (in the Aruna Shanbaug case) rejected the euthanasia petition filed by journalist Pinki Virani but established the legal framework for allowing passive euthanasia.
- After 14 years of debates and several draft Bills, the government has said it is ready to frame a law on passive euthanasia, the act of withdrawing medical treatment with the deliberate intention of causing the death of a terminally ill patient. It doesn‘t suffer only the problem of Legalization but also consist the issues relating to Morality, Ethics and Religion.
- Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill (regarding passive euthanasia):
- According to the Bill, “every competent patient, including minors aged above 16 years, has a right to take a decision and express the desire to the medical practitioner attending on her or him.”
- Such a decision will be binding on the medical practitioner. He or she has to inform the spouse, parents or any other close relative of the patient and desist from carrying out the decision for a period of three days after informing them.
- The Bill provides protection to patients and doctors from any liability for withholding or withdrawing medical treatment and states that palliative care (pain management) can continue.
- The Medical Council of India has been given the authority to formulate guidelines from time to time for the guidance of medical practitioners and might review and modify the guidelines periodically.
- In case any patient is not competent enough to take a decision then his or her next of kin, including spouse, parents or sibling, can approach the High Court, which will have to take a decision withina period of one month.
- Issues associated with the bill:
- Clause 9:It says that relatives, medical personnel and the like can apply to the relevant high court for “witholding or withdrawing medical treatment of a competent patient who has not taken an informed decision”. This is dangerous. The bill defines informed decision in subjective terms pertaining to an individual’s understanding of the nature of their illness and the forms and consequences of treatment. As long as the individual is competent, it must not be left to anyone else to judge the merit of their understanding in something as fundamental as their life. This has the potential for misuse and is antithetical to an individual’s fundamental rights.
- Living will: As per the idea, it is defined as an advance document in which a person states their desire to have or not to have extraordinary life-prolonging measures used when recovery is not possible from their terminal condition, putting the doctors in a fix.
- Distinction: The Bill creates an irrational distinction between patients who are competent at the time at which a decision has to be made about refusing or withdrawing life-sustaining treatment, and those who are incompetent at such time, even though they might have expressed their decision earlier in the form of an advance directive.Clause 3 of the Bill states that the decision of the former category of patients to refuse such treatment is binding on their medical practitioners. The time at which the decision was made to refuse or request the withdrawal of treatment cannot be a rationale for distinguishing between these categories of patients, so long as such decisions were taken freely, fully informed, and not altered fundamentally since. Apart from being an infringement of the right to life under Article 21, the classification stands the risk of being struck down as unreasonable and therefore a violation of the right to equality under Article 14.
- Drafting errors: Other problems include drafting errors. The definition of “terminal illness” seems to include even mental health issues.
- Choice of High Court: The choice of the High Court as a forum to obtain permission for the withdrawal of treatment from incompetent patients imposes an unrealistic burden on medical practitioners as well as relatives and does not take into account the fact that High Courts are unlikely to be able to deliver swift judgment in such cases.
How other countries dealt with ‘Right to Die’?
- Switzerland: It is one of the first countries that decided to promote the cause euthanasia. However it penalizes assistance in suicide out of selfish motives.
- Netherland: The legislation passed regulates the ending of life on explicit request by the individual (voluntary euthanasia) as well as accompanied suicide.
- Belgium: Permits and regulates the ending of life by physicians on request by the individual who wishes to end life.
- The first state to introduce such a law was the State of Oregon which regulates physician-assisted suicide for terminally ill patients who have a life-expectancy of not more than 6 months.
- Other champions for assisted suicide are the State of Washington, the State of Vermont, California, the State of Montana and New Mexico.
- The Constitution of India reads ‘right to life’ in a positive direction of protecting life. Hence, there is an urgent need to fulfill this obligation of ‘Right to life’ by providing ‘food, safe drinking water and health care’. On the contrary, most of the States till date have not done anything to support the terminally ill people by providing for hospital care. If the State takes the responsibility of providing reasonable degree of health care, then majority of the euthanasia supporters will definitely reconsider their argument.
- At the end, we can conclude that passive euthanasia should be allowed, however, subject to safeguards and fair procedure.A terminally ill patient, who has no chance of recovery rather to endure unbearable pain for the remaining years of his life, should be allowed to die so that, spending money, facilities, and time on such a person would be of no utility but the waste of the same.
- There is also an urgent need to invest in our health care system, so that poor people suffering from ill health can access free health care. Investment in health care is not a charity; ‘Right to Health’ is bestowed under ‘Right to Life’ of our constitution.
- Although the ethical and philosophical arguments for passive euthanasia apply equally to active euthanasia, the government has made the correct decision in addressing only the former at the moment. By doing so, it has curtailed the potential for misuse of the proposed legislation. A revised bill would be a significant step towards allowing suffering individuals a measure of human dignity.
15. Moving away from death penalty:
- The 35th Law commission report emphasized the use of death penalty.
- While 262th report recommends its abolition.
- In 1967 ,when 35th Law commission report was presented, only 12 countries has abolished death penalty. Today, 140 countries have abolished death penalty in law or in practice.
- The death penalty is most frequently used in Iran, China, Pakistan, Saudi Arabia and USA.
- The constitutionality of death penalty first challenged in the case of Jagmohan Singh VS State of U.P (1973) and court held that death penalty was a permissible punishment and did not violate constitution.
- In case of Bachan Singh vs State of Punjab (1979) , the court adopted the principle of “rarest of rare crime” and opined that “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.”
- Recently, the scope of death penalty is expanded. For example Criminal Law (Amendment) Act 2013, introduced several new provisions into IPC, including section 376A, which allowed for the death penalty to be imposed in cases where rape led to death of the victim, or left her in a persistent vegetative state and 376E that allowed for death penalty for certain repeated offenders. These amendments were passed on the recommendation of Verma Committee report.
Agruments in favour:
- The justification for death penalty is centered around following principles:
- Unique condition of India
- Public Opinion
- National Security and terrorism
- Deterrence: Deterrence aims to prevent individuals from offending by using the fear or threat of punishment. The assumption behind deterrence theory is that all persons are rational individuals and everyone knows the penalty for the crime one commits and weighs the consequences before committing the crime. However this is not true.
- Retribution: There are two accounts of retribution; one considers retribution as revenge. The other states that retribution does not demand committing an equivalent act on the offender, as is suggested by the “eye for an eye” philosophy (“mirror punishment”). It rather advocates a measured and appropriate level of punishment for the offender’s conduct. Revenge based retribution is denounced by SC, instead it upheld that retribution as punishment deserved by offender. Hence it is argued that capital punishment as a retributive justice is not a justified punishment.
- Incapacitation:The theory of incapacitation advocates dealing with offenders in such a way that they are not in a position to re-offend. Capital punishment is the most extreme form of incapacitation, since it implies taking the life of the offender to ensure that he/she does not offend. A person is sentenced to death using the incapacitation rationale if it is determined that his/her existence causes an unreasonable threat to society. On this ground life imprisonment may be argued as a better option than capital punishment as both incapacitates. But the difference is probably an economic one. However it is illogical and probably immoral to equate one’s life with economic aspects.
- Unique Condition of India: To compare, India with other societies would be a wrong proposition. Being a vast and diverse county with varying values of communities, it is essential that the rule of law must prevail , not only in letter but in spirit. Enforcement of rule of in such a diverse society is a humongous task. Judiciary essentially dispenses justice to individuals and deals with individuals on a case by case basis. On the contrary Government functions are completely different, it deals with the society as a whole and not on a individual basis.Thus while parliamentarians took recourse to expand the scope of death penalty, the law commission report headed by judiciary panelist, with inputs from various intellectuals recommended its abolition.
- Proportionality: Censuring the offender and communicating society’s disapproval of his/her actions is a primary goal of the theory of proportionality. The severity of the sentence is an important consideration for the theory of proportionality, since a disproportionate or severe punishment overpowers the element of censure. Deciding the proportionality has been a discretion of judges and rests on arbitrariness. Whether a death penalty is a proportional justice or not is largely dependent on the circumstances and culpability of the offender.
- Public Opinion:Public opinions as usually reactionary and so is public. Hence judicious balance is required while weighing the option of penalty and due to this very reason we have witnessed ‘mob justice’ and ‘media trials’ on the matters that are sub-judicial. Public opinion does influence the courtrooms and parliament alike. But it cannot be taken as the basis of any judicial pronouncements and for the purpose of serving justice.
- National Security and Terrorism: As stated above death penalty is no deterrence to the terrorists however it plays a great deal on public psyche and brings some form of solace to the victims and public at large.
Recent Judgement of Supreme Court:
- The Supreme Court has commuted the death sentence of a youth for raping and killing a seven-year-old girl but awarded him 25 year jail term, saying that judicial innovation was required in awarding appropriate punishment between death sentence and life imprisonment in heinous crimes.
- The court has also held that judicial innovation for bridging the gap between death sentence on the one extreme and only 14 years of actual imprisonment in the name of life imprisonment on the other, serves a laudable purpose and does not violate any law in the Indian Penal Code or in the Code of Criminal Procedure.
- The innovative approach reflected in this case, on the one hand helps the convict in getting rid of death penalty in appropriate cases, on the other it takes care of genuine concerns of the victim including the society by ensuring that life imprisonment shall actually mean imprisonment for whole of the natural life or to a lesser extent as indicated by the court in the light of facts of a particular case.
- The innovation involves substituting death penalty with a “special category” of life imprisonment without the benefit of release on remission for prolonged periods ranging from 25 to 30 years, if not more.
- The special category is to be limited to a “very few cases”. This special category finds its first mention in the Swami Shraddananda versus State of Karnataka judgment of the Supreme Court in 2008.
Human values and Public opinion has great emphasis on shaping the society and the public should be convinced to move towards abolition of death penalty gradually and public consensus building is essential in this regard. Abrupt act is best avoided. Moreover given man’s natural inclination to transform his society to be more humane, it is essential that capital punishment must be abolished, but before this can be achieved, it is a prerequisite necessity that the public displays maturity. Complete abolition probably will take some moretime, but the recourse to capital punishment can be restricted if not by law then at least by practice.
16. Uniform Civil Code:
What is uniform civil code?
- Uniform civil Code is a proposal to have a generic set of governing laws for every citizen without taking into consideration the religion.
- It is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set of laws governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
- During colonial era, the British applied the common criminal code for all.
- But they allowed religious laws to be applied in court in case of dealing with personal disputes between people of the same religion.
- Shariat law, 1937 was passed to govern the personal matters of all Indian Muslims by Islamic laws.
- The Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, while others believed that this was a goal to be achieved in stages.
- Article 44 of the Constitution says that there should be a Uniform Civil Code. According to this article, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Since the Directive Principles are only guidelines, it is not mandatory to use them.
- In 1954, a General Law of Marriages was already enacted, yet there was a separate Hindu Marriage Act in 1955.
- Similarly, there was a Guardian and Wards Act already enacted in 1890 which was applicable to everybody, yet Hindu Minority and Guardianship Act was enacted in 1956.
- There existed Indian Succession Act, 1925 and yet a Hindu Succession Act was enacted in 1956.
- The practice of bringing about uniformity in family laws has been observed since 1954, where many laws have been enacted that apply to every community and every individual irrespective of the religion or personal law.
- The Dowry Prohibition Act,
- The Special Marriage Act
- Domestic Violence Act
- Maintenance of Parents and Senior Citizens Act,
- Child Marriage Prohibition Act.
- It is 66 years since enactment of Constitution and it is still debated about the pros and cons of adopting a common code. However, this year the NDA government has formally asked the Law Commission to look into the issue and present a report. This is the first time a government has asked the commission, which has a crucial advisory role on legal reform, to look into the politically controversial issue of a uniform civil code.
- From 1951 till now, the Law Commission has submitted 262 reports. Out of it, the Law Commission has 24 reports on whose basis it can initiate the examining of UCC formation. The reports are on personal laws, family laws etc.
- The All India Muslim Personal Law Board (AIMPLB), along with several other organisations associated with the Muslim community, has opposed the Law Commission’s questionnaire on the possibility of a Uniform Civil Code (UCC). They have decided to boycott the entire exercise.
- AIMPLB has also observed that the Centre’s recent affidavit in the Supreme Court rejecting the validity of the triple talaq was an underhand means to impose a UCC in India.
India needs a Uniform Civil Code for the following reasons:
- A secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
- The Constitution makers had a vision to enact UCC in future to have a same set of civil laws governing all irrespective of religion.
- Another reason why a uniform civil code is needed is gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example.
- Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution.
- Courts have also often said in their judgements that the government should move towards a uniform civil code including the judgement in the Shah Bano case.
- The UCC is not with regard to religious practices. It has no discussion about harming any religious, community or minority practices as such. It is talking about segregation between aspects like marriage, divorce, inheritance which are in domain of civil laws.
- Bhartiya Muslim Mahila Andolan says that there is need of reform in marriage and divorce of personal law which is supported by more than 90% Muslim women.
- It can also mean that when talked about UCC, it is talking about problems in minority communities like Triple Talaq, Polygamy, Christian divorce (Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others) etc.
- This does not mean that it limits the freedom of people to follow their respective religious beliefs and customs. It simply means that every individual is supposed to be treated equal in the matters of marriage, inheritance, property, family, adoption etc.
- It can promote some kind of national integration.
- It will help in reducing the vote bank politics and polarization of the society.
- It will help in modernization of the society.
- Western countries like Italy and France have enforced it.
- India is signatory to Convention on the Elimination of all forms of Discrimination Against Women. This makes India accountable to its implementation.
India does not need a Uniform Civil Code for the following reasons:
- India being a secular country guarantees its minorities the right to follow their own religion, culture and customs under Article 29 and 30. But implementing a Uniform Code will hamper India’s secularism.
- UCC is replacement of all personal laws, including minority communities. This may violate, if not taken care of, certain fundamental rights like Article 25, 26 and 29.
- UCC may not be even required because the constitution of India doesn’t permit discrimination between man and woman and if there is any discrimination on any basis, it will be rectified by the courts.
- If there exists a law which is not in conformity with constitution, the constitution will prevail.Article 14 and 19 can’t be ignored. Whether there is UCC or not, the constitution is sufficient and competent to protect minorities, especially Muslim women in India. Another law is not needed.
- Degree of implementation of various DPSP provisions is visible. A DPSP bans cow slaughter and another calls for implementation of UCC. But contradictions in their implementation is visible. Thus, there is a need to address the personal law reforms of various sections of society like Christians, Muslims, Dalits etc.
- It may conflict with the basic religious doctrines:
- The Muslim community believes that the succession, the inheritance is recorded in Quran. If you change that, it means you are changing Quranic injunction. Whether a Quranic injunction can be changed by replaced law is the issue.
- Hindus were against granting equal property rights to women, fearing the concept of a joint family might crumble because of it. Thus, women have less share in property inheritance or share as per Hindu laws. A common inheritance law may pose challenges in acceptance in heavily loaded patriarchal society.
- Muslims do not have any adoption laws as there is no provision in Islamic law for adoption. If a future law makes adoption permissible and valid, how would it conflict with personal laws of religion?
- Practices such as divorce were prohibited by Hinduism and that for a Hindu the institution of marriage is indissoluble.
- According to the Muslim board, “The uniform code is not suited for this nation. There are so many cultures in India and they have to be respected. A uniform code is against the spirit of the Constitution, which safeguards the right of citizens to practise their culture and religion.” Also, UCC, when implemented, will bring to an end country’s pluralism and paint all in “one colour”.
- What is unfortunate is the demand for UCC has always been framed in the context of communal politics. Many see it as majoritarianism under the garb of social reform.
- A general perception in communities is that UCC is a euphemism for Hindu laws enacted in 1955-56.
- To maintain unity in diversity. The country is inhabited by people of all colour, race, religion and cultures and languages. Thus, there is a view point that a particular religious law, for example Shariat law which springs from Quran and Muslims believe in Quran above everything. Shariat law cannot be changed by any constitution.
- It may disrupt communal harmony.
- It is seen as a propaganda of nationalists, to make India a Hindu Rastra.
- In the name of UCC, the values and customs of the majority community can be imposed on the minorities.
The government cannot remain silent on the issue anymore. It is obvious that the government would have to face several challenges from many conservative groups on this front. But, it will have to work hard to build trust, and more importantly, make common cause with social reformers rather than religious conservatives, as has been the wont of previous governments. One strategic option is to follow the path taken after the fiery debates over the reform of Hindu civil law in the 1950s. Rather than an omnibus approach, the government could also bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages. A comprehensive review of several other laws in the context of gender justice would also do well.
The civil law in Goa derived from the Portuguese Civil Procedure Code of 1939 could be a useful starting point for a national debate. Goa continued with its practice of treating all communities alike even after its entry into the Indian Union.
Government’s move to refer this matter to the law commission is hopefully the first step towards the implementation of something that has been delayed for far too long. It is now 66 years since the Constitution came into force. It is high time there was a decisive step towards a common civil code.What is unfortunate is the demand for UCC has always been framed in the context of communal politics. Many see it as majoritarianism under the garb of social reform. It needs to be understood that changes are gradually and slowly accepted by the society and are significant for every individual irrespective of community, gender and caste.Rational debates should be there without polarizing a country like India whose secular fabric and national integrity cannot be put at stake. Reforms are needed in all personal laws whether it is Hindu, Muslim or Christian but it is required that these demands come from the people themselves. Forcing a particular set of rules on people will not serve the real purpose of uniform civil code. No particular time may be ripe for India to absorb a Uniform Civil Code in its entirety. It will have to be the result of gradual change that Indian society absorbs while interpreting in different ways its multicultural diversity. All communities in this country will be willing to contemplate a change gradually rather than being forced to do so abruptly.