Sexual Harassment of Women at Workplace Act, 2013: An Overview and Suggestions

This article has been written by Mohini Singla. Mohini is currently a student in Army Institute of Law, Mohali.

The need for Sexual Harassment of Women at Workplace Act was talked about for the first time after the case of Bhanwari Devi. After this case Vishaka guidelines were framed in 1997.  These guidelines in 2013 came out as the Act. This Act aims at protecting women from harassed at their workplace. It is beneficial as this act provides for speedy trial as within the company’s internal committees are formed to solve such matter. But with all these benefits comes with loopholes mainly being that this act is not gender neutral. But one major point of this act is that it punishes women who file a wrong case.  This helps in reducing fake cases being filed and takes back the extra leverage given to women in usual cases. This act ignores Men as they are also being harassed and there is a need to bring all such cases also under surveillance.

Failure of this Act

1 Even after the passing of the act number of cases have rapidly increased. Government data shows that there were over 300 complaints of sexual harassment last year; the figure has steadily climbed over the last few years from 107 cases in 2011, 147 in 2012 and 249 in 2013.[1] This clearly shows that the cases are increasing at a rapid rate. Law if made and is not successful in threatening the wrongdoers or if it does not reduce the number of cases, it is said to have been never there. The increasing complains are a major problem. But the unreported cases are also a major problem a lot many cases go just like that either by accepting such unwelcome responses or by quitting up of the job. Both the remedies taken up by the victim shows incompetence on the side of law.

2 The Internal committees are not set up in most of the organizations and if they are set up they are not functional. They are not having any person with legal knowledge as such hence they are sometime not capable of deciding the matter. The matter should only be decided by competent authorities and not by anyone in general. Hence selecting anyone for the committee is a failure in itself. Only competent jurists can decide upon such a matter which relates to the modesty of the women. Their protection is given in the hands of a person who does not know what all remedies could be given to the victim except this act. And it reduces the confidence of victim in the court decisions. It leads to constant disturbance in the mind of the victim as if she is in the safe hands or not. It is a crime which could be committed again and again. Hence just by a lenient order may be the crime would be committed again hence it needs a proper check by proper people at proper time in a proper manner.

3 Even though awareness has increased but still number of unreported cases are also increasing. Hence still the Government and the organizations have to take reasonable steps to spread awareness about it amongst all the people. As illiterate women are also working hence to protect them also they should be given knowledge about it. Certain NGO’s have been set up by individuals and sometimes even funded by states sometimes to spread awareness. But still people in far off villages do not know about their rights or remedies which are available to them. Illiterate women sometimes even if they are in cities do not know how to react or where to go in such situations, they are adversely affected. Hence if law is made and people do not know about is in itself a failure. As laws are made for the welfare of the society and if that does not happen it means it is of no use. Even big organizations do not have this internal complain committee in their set up. As it is a new concept and they even take it as a extra unnecessary burden.

Suggestions

1 Tribunals should be set up in spite of internal complaint committee as there will be more of legal people involved to solve matter which is eminent to protection of modesty of women. Setting up of Tribunals will increase the faith of victim to file as a case as internal committee may be biased as if the case is against the owner. As the matter is concerned with a major offence which could take a worst shape afterwards, hence proper check should be there as to stop it at such an initial stage and from taking a worst shape afterwards.

2 The Act should be made gender neutralized as to give equality to all .As this grave injustice is      even against men. Men are also sexually harassed at workplace hence they also need due care and Equality before law as Section 14 of Indian constitution provides for is also violated by not giving such right. They even have the right of equal protection under law, even though state can make special provisions for women and children under Article15 clause 3. But still if any injustice is taking place against both genders so the law if made, should be gender neutralized.

3 There should be awareness camps organized by government and organizations to educate women about their rights and about everything from filing of case till remedies in order to give them confidence so that they can raise their voice. They should be properly made and should go to distant villages as this would not only stop sexual harassment of women at workplace but also encourage participation of women in work as they will have a sense of freedom and safety while they work. This would indirectly increase women participation at work places.

4   There should be more legal professionals involved in the internal complaint committee as to assure they have knowledge to decide the case in the right manner. If legal professionals are included in the committee it gives the victim an assurance that she is in safe hands, hence to increase people faith towards law and executive it is necessary to have proper executive body while implementing laws made by the legislature.

5 The compensation should not be according to the salary of the accused but should rather be on the principal of being just and fair as according to how much it actually should have been and not according to the convenience of the accused.

6 Punishment to the accused should be enhanced as the punishment under the statute is not sufficient it should be increased and more stringent punishment should be awarded. Punishment discourages a man to commit further wrong. Hence, stricter penalization of fines along with putting the person behind bars should be included. As it would increase the fear of law in the mind of the wrong doer.

7 There should be free talk as to the matter as it will help in solving the problem up to a greater extend as it will form better relations between employer and employee to refer to the problems faced by them in usual course of business. Seminars, discussions and meetings should be frequently held. As it give confidence to the employees to bring any problem in front of the employer.

8 Sexual harassment awareness training should be there in every organization as to educate them via workshops, seminars, lectures and real life examples they should be taught how to react and where to go in case of any harassment done to them.

9 News television only made it worse. The case became a subject of debate, in which some started to look for inconsistencies in her account. Every “panel discussion” added to her agony. The friend says it took a long time for the woman to be able to write again. “And fighting through depression and suicidal urges was only possible with the support of close friends, family and counsellors.” Hence there should be proper check on them also to protect the victim.

[1] India: Overview Of The Sexual Harassment Of Women At Workplace.16 April, 2015. http://www.mondaq.com/india/x/348338/employment+litigation+tribunals/Overview+Of+The+Sexual+Harassment+Of+Women+At+Workplace


The November book bucket

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Labour Migrant: No place to go?

This article has been written by Ishaan Garg. Ishaan is currently a student in Vivekananda Institute of Professional Studies, GGSIPU.

Labour migration is the movement of a labour force from one location to another. This can include different forms of migration like inter-continental, seasonal, short or long duration migrants etc. Regardless of the duration of their stay, labor migrants face myriad challenges at their destination. These challenges range from longer working hours, poor living and working conditions, social isolation, political exclusion to poor access to basic amenities like identity documentation, social entitlements, housing etc. At destination, migrant labour affects markets, lowering the cost of labour. Migration also affects the labour market at the place of origin. Migrant earnings affect income, expenditure patterns and investment and changes relations at household and community levels.

Today, India is among the top 25 fastest-growing country worldwide. A significant source of this growth is rural-to-urban migration, as an increasing number of people do not find sufficient economic opportunities in rural areas and move instead to towns and cities. This large scale movement is also due to the inter-regional disparities, differences between socio-economic classes, intrusion of outsiders and skewed development policies. Whatever may be the cause, there is no denying the fact that the economic growth in India today hinges on mobility of labour. In some parts of India, three out of four households include a migrant. Labour migration is complex. Streams differ in duration, origin, destination and migrant characteristics. Economic and social impacts on migrants and their families are variable. While there seems to be some positive impact on incomes and investment, the major function of migration is to act as a ‘safety valve’ in poor areas. The impact on asset and income inequality is more mixed. Internal mobility is critical to the livelihoods of many people, especially among tribal people, socially deprived groups and people from resource-poor areas. Inspite of the fact that a large portion of population is labour migrant, there is little research done or data collected. This has led to a situation that the migrant labours are ignored as if almost invisible to the policy makers. What few legislations are in place are not properly implemented. There is a large gap between the legislation and enforcement which has further deteriorated the situation. Poor migrants themselves being at a vulnerable position have little or no bargaining capacity. Most rich class takes advantage of their situation and rampantly exploit them. The migrants are drowned in a vicious circle of poverty, poor working conditions and lack of basic amenities. Most migrant labourers are also employed in the unorganised sector, where the lack of regulation compounds their vulnerability. They are largely ignored by government and NGO programmes. Legislations fail due to over-stretched regulatory authorities, the state sees migrants as a low priority and because migrant workers are at a socially desolated state with little support from civil society.

International migration, though involving a small proportion of the workforce in India, has important local impacts. Since independence, two distinct forms of migration have emerged in India: people with professional expertise or technical qualifications have migrated to industrialised countries, and semi-skilled and skilled workers have migrated to the Middle East. Migration to industrialised countries grew steadily between 1950 and 2000 with the boom in IT sector. Nearly 1.25 million Indians had emigrated to the US, Canada, UK and Australia during this period. Today, some 3 million Indian migrants live in Gulf countries. Most of these migrants come from state like Kerala, Tamil Nadu, Andhra Pradesh and Punjab etc. The current number of Indian migrants overseas accounts for less than 1% of the total workforce in India, so has little direct impact on the national labour market. However, the effects of migration are significant in major sending regions which can be seen through the impacts on demographic structures, expenditure patterns, social structures and poverty levels. External migration flows are also regulated by the government. The main instrument of regulation is the Emigration Act 1983 which deals with the departure of Indian workers for overseas contractual employment and seeks to safeguard their interests. However efforts to direct manpower export have been minimal.

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The November book bucket

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‘The Child Act’ – Towards a better India

This article has been written by Sarvesh P. Giri. Sarvesh is a Bachelor’s of Engg in Electronics and Telecommunication, 2015 batch from Mumbai University and pursuing LL.B. from Gopaldas Jhamatmal Advani Law College, Mumbai.

“I am the child.

All the world waits for my coming. All the earth watches with interest to see what I shall become. Civilization hangs in the balance, For what I am, the world of tomorrow will be. I am the child.

You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail, Give me, I pray you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world”.

HANSARIA (Supreme Court of India)

M.C. Mehta V/s State of Tamil Nadu

 

Today, India has been the largest growing country in the world in an attempt to maintain pace with the rest of the world not only in terms of economy but also in other respects. In this attempt what remained neglected were the “Children”. The children generally referred to as “THE FUTURE OF INDIA” by eminent personalities and various public figures are the most unprotected ones at present era.

This issue needed a serious approach and if the same was not tendered then the future of global India would definitely be eclipsed by this malice. Today when we have stepped into the 21st century and that we are speaking about future of India modelled in the concept of “DIGITAL INDIA, what we actually ignore is the future of India which needs to be modelled by virtue of great efforts and attendance.

India has been the founder Member of the International Labour Organization (ILO) where the ILO has passed Convention 138 and Convention 182. Convention 138 states that no children can be engaged into work who has not completed compulsory schooling and Convention 182 prohibits child labour to children below age of 18 years in worst conditions.

Therefore the Government of India came up with an explicit statutei.e. THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986, which would be an attempt to put a halt to this malice and to protect the children as it was now the time for imposition in order to get children to schools and to protect their adolescents.

NEED FOR THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986:

Children are the most vulnerable members of this society and they are also the ones who need utmost care and assistance. This problem of child labour is the most creeping one in the developing country like India where poverty and illiteracy is damaging the backbone of the country and of which the child labour is the consequence.The children in the olden period assisted their parents in their business and as such there was no concept of “child labour” in those days but, now this has been misused as a money making policy either by parents or by various establishments such as factories, industries, etc, in advancement of either beneficiaries or money.

Hence in order to protect and to safeguard the valuable rights and interest of the children in India the Hon’ble Government of India came up with an essential statute which mandated the protection of fundamental rights of the children i.e. right to healthy and dignified life, under Article 21 of Indian Constitution.

In consonance of this, the Government of India articulated a statute namely THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986, in order to further satisfy the fundamental principles laid down under Article 15(3) and 39(f) of the Indian Constitution for protection of children rights which would consequently safeguard the future of the India and the same Act would be referred hereinafter as “THE PRINCIPAL ACT” for the sake of brevity.

This statute was apt and much needed at the time of its enforcement as it was in consideration of the scenario that existed at that time and it was also upheld in the interest of justice with a focus on the constructive role of the state in respect of children as was expressed implicitly in the case of M.C. Mehta V/S State of Tamil Nadu, whereby the children were prohibited from being employed in the matches factories but they were allowed to assist in packing in areas not exposed to accident.

M.C. Mehta V/S State of Tamil Nadu:

  • Famously referred to as THE CHILD LABOUR ABOLITION CASE.
  • In this leading case of child labour abolition, the PIL Protagonist Mr. M.C. Mehta had filed a public interest litigation by virtue of Art. 32 of Constitution of India in order to get the suffering of children employed in Sivakasi Cracker Factories and the same was a blatant violation of Article 24 of Constitution of India, thereby seeking appropriate directions from the Hon’ble Supreme Court of India to curb this menace of child labour.
  • Upon perusal of all the facts and figures laid forth by M.C. Mehta and the aforesaid Sivakasi Cracker factory, the Hon’ble Supreme Court of India issued directions with an intention and motive to curb child labour and to protect the right and interest of the children in pursuance of an attempt to avoid exploitation of children.

NEED FOR AMENDMENT OF THE PRINCIPAL ACT:

The Principal Act was enacted with an intention and motive to have a pragmatic approach to the menace crawling within the vicinity of the country and making it hallow in all respects be it a socio-economically or commercially, but the aforesaid principal Act was not sufficient in order to achieve the social motive as it was only restrained to children i.e. any person or individual who has not completed 14th year of age. The Principal Act did not lay a mandate for prohibiting employment of youths or youngsters possessing great zeal and enthusiasm within them to achieve the impossible goal and to execute any task with perfection.

The primary and secondary moto of the Principal Act was to protect the fundamental right of the children i.e. Right to Education, as set out under Article 21A of Indian Constitution but, however, the Principal Act was in partial violation of the same as the main essence of the Article 21A was the right to education with an intention and a motive to enhance the growth of children, both mentally and physically.

 

The people of various establishments and of various areas were employing children of age of 14 and above in employment which if not stopped would lead to the end of the race.

Giving a pragmatic and an observant approach to this, at the age of 14 a child has just completed his schooling and with the evolvement of society and advancement of generation a merely schooling is insufficient to make a living hence it was an alarm calling for amendment of Principal Act.

We needed to evidence growth within the country and for which it was the utmost need to get maximum number of children and youngsters to schools and colleges in order to instil within them the foundation of growth as it is a well settled thought that education is the path to advancement.

THE CHILD LABOUR (PROHIBITION AND REGULATION) (AMENDMENT) ACT, 2016- “THE CHILD ACT”:

In pursuance of the above loophole in the Principal Act, the necessary proposal was laid down for amendment where any person or individual of the age of 6-14 years was addressed as “children” and any person or individual of age of 14-18 years was addressed as “adolescent” as defined in the amendment Actunder section 2(ii) and 2(i) respectively of the amendment Act. This amendment Act widened the scope of the Principal Act.

As per the report of the Standing Committee, it was the vision to amend the Principal Act in order to ensure maximum enrolment of children and adolescents in schools and educational institutes which is in line with Convention 138 of ILO and all this was in view of RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009.

This Act was need of the hour as the Principal Act restrained only to children who have completed the age of their 14 years but now with the advancement of the society and education norms a child of 14 years of age would have no stand.

The question into the minds of the great policy makers was about the efficiency of the Principal Act and hence they were of the opinion to widen the scope and regulations of the statute. Upon observant approach the question into the minds of the great policy makers was to include the teenagers, youngsters and youth of nation into the statute by virtue of an amendment.

Hence, the amendment Act was introduced which widened its scope thereby not only counting children into it but also adolescent of the age of 14 – 18 years into it in an attempt to secure their stand in the world stage.

IS THIS AMENDMENT SUFFICIENT TO PROTECT THE RIGHTS OF FUTURE NATION BUILDERS?

Upon observing and being conversant with the abovementioned loopholes in the Principal Act, the great policy makers of nation came up with the amendment but, the question that still prevailed was over the efficiency of the Child Act.

Upon studying the Child Act, it has certain loopholes which were pretty trivial and that were also the ones which needed utmost care as they were sensitive in nature. The loopholes in the Child Act were as follows:

  • Vague Expressions: Considering the LONG TITLE of the said Child Act, which mentions the purpose of this Act i.e. no children can be engaged in any occupation and that no adolescent in any hazardous occupation. As per this Act, the expression “any occupation” and “hazardous occupation” have different meaning. Theexpression “all occupation” is pretty vague as there is every certainty that the children can be employed in hazardous occupation which will damage their health and vigour and that the expression is not clear in respect of employment where children can be engaged.The establishments can hire children of age of 14 and engage them into a factory such as a fire factory, and that the establishments would have to shell out less money to pay the children than what they might pay to an adolescent.

  • Lack of Scrutinizing Mechanism: The section 3(2) (a) which lays down provision which is a relaxation rewarded to families by allowing them to employ children to assist in the family business but now the question was a check mechanism which went undebated by the mind bogglers. This amendment to the section did not have any explicit or an implicit provision governing the scrutinizing mechanism unto whether the children helping their parents in their daily chores are not subjected to child labour on regular basis i.e. are the children making their presence in the school the next day? Hence, this section lacked on checking mechanism.

  • Missing Part or Expression: Secondly his section lacks onto the nature of jobs which a child can undertake in pursuance of assisting his family in family business. This section can easily be misused, misinterpreted and act as a great tool for various employees in establishment to employ children in their factories and industries, etc. As for instance, if a person is a labour doing heavy jobs at a construction site and if he engages his child for assistance than that is no less than a child labour whereas if a person sells potatoes in a local super market and if he wishes to engage a child for his assistance, than it would be considered as an assistance.

  • Ignorance of Mental Growth& Environment at Workplace: The amendment Act under Section 3(2)(b) includes the provision of certain employments within which the children can be employed such as artist in an audio visual industry including the advertisements, films, etc. but what went unnoticed is the mental growth of a child or an adolescent. At this tender age they need care as this is the time they will mould themselves as to what they will be in future. As such this provision does not even consider the work environment to be mandatorily be created to enable a child work without any instance of exploitation.

  • Specific Undertaking In Respect of Jobs To Be Undertaken by Children: Section 3(2) (b) had also another loop hole as it did not consider the nature of jobs to be undertaken by children in audio- visual industry. The mention of words such as “artist” as per this child Act is a very broad term under this section. The expression “other activity as may be prescribed related to the entertainment or sports activity” can be used as a tool in defence by accused of child labour. It does not clearly state whether jobs arduous in nature can be undertaken by children or not. Explaining this point with an instance, if suppose a child is employed in a sport related industry where he is asked to carry heavy articles from one place to another place within the vicinity of the industry and that too carrying of the article is not within the capacity of the child, would it not amount to child labour?

  • Missing Essential Expressions: The Child Act has inclusion of Section 3A whereby adolescent were not employed in hazardous jobs as setout in the schedule. Upon perusal of the schedule of the Child Act, working in mines, inflammable substances or explosives and hazardous process (as explained under Factories Act, 1948) is considered as hazardous but what is gone unnoticed is inclusion of labour jobs. Upon understanding the nature of jobs being carried out by labour, it is evident that it should also be included into the schedule or else people suffering from poverty would send their children to construction sites to work and that they would escape the clutches of law on grounds of labour jobs not included into hazardous occupations.

  • MISSING OF “CHILDREN”:The trifle loophole in section 3A was the mere mention of word “adolescent”. Today, with a crystal clear business vision the employers would employee children (as defined under this Child Act) merely on two grounds i.e. firstly being that no mentionof children in law in this section prohibiting the engagement of children in hazardous occupation and secondly that an employer of an establishment will have to pay less to a child than what is paid to an adolescent.

MERITS OF THE CHILD ACT:

The menace of child labour is primarily because of two reasons i.e. poverty and illiteracy. Passing a statute in the Parliament needed great attention to this area also or else the daily cup of tea in the morning and a newspaper in hand would be covered with suicide headlines because that is the ultimate resort that a family, suffering from poverty, adopts.

This Child Act was a great help as it considers all the angles and triangles. It safeguarded the rights and interest of a child and adolescent by closing all the backdoors that one had in the Principal Act. This Act is in great pursuance of the Constitution of India and also the Right of Children to Free & Compulsory Education Act,2009, in pursuance of recommendations by the Standing Committee in 2013-14 under Paragraph 3 of Article 2 of Convention 138 of ILO, as it also mandated punishment of activities that harmed the education of a child or adolescent.

This Act did consider the root cause and had provision in it to protect children and also to enable easy and soothing flow of economy in the house by mandating provision for engagement of children in family business.

SUGGESTION & RECCOMENDATIONS:

The Child Act was a great help to the Indians as it was in consonance with present scenario but certain trifle things went unnoticed in the Child Act. This Child Act definitely is a boon as it includes adolescent also within its purview but now the question is about check mechanism. This Child Act allows children assisting their parents in the family business but what is not considered is the scrutinization of the same. One needs to consider whether the children engaged in family business are not subjected to child labour in pursuance of assistance and that they are made present to schools and institutions on following days. This goal of scrutinization can be achieved by registration method. The government can mandate a provision of appointing local bodies who will maintain a register containing detailed information of each person engaging their children in their business as an assistant and keep a check on the work hours, nature of job undertaken by the children and whether children are returning back to schools the next day and keep a watch on whether are they employed to such an extent that it is effecting their studies.

This suggestion is in pursuance of the guidelines set by the Hon’ble Supreme Court in the case of M.C. Mehta V/S State of Tamil Nadu in which the Court suggested to set up National Commission to come up with schemes to abolish child labour in a phased manner.

The recommendations of the court in this case also suggested a time limit to allow work for only 6 hours or so. Hence, in accordance to this the Government of India must take mandatory steps in square of the judgement passed by the Hon’ble Supreme Court in this case.

Secondly, the great framers of this Act must consider certain nature of jobs such as labour and masonry within the schedule of the Act as this loophole can be easily misinterpreted and misused by the people on the grounds of their act being in pursuance of the law mandated. The child can assist his family in their business but inclusion of labour and masonry or any arduous job in the schedule will provide a stringent hold to the section in the Child Act. During the discussion of the bill i.e.THE CHILD LABOUR (PROHIBITION AND REGULATION) (AMENDMENT) BILL, 2016, our Hon’ble Labour Minister cited his days when he assisted his family in selling potatoes but at that time there was no such concept of child labour and as such the nature of job is not arduous in nature hence it can be considered as assistance. But now if a child is assisting his family in a masonry work or at a construction site, lifting heavy objects beyond his capacity and above his strength it would definitely lead to child labour.

Finally, this Child Act allows children to be engaged in areas related to audio- visual, entertainment, films, etc. But now one needs to consider the environment at workplace. Just mere giving a relaxation to children to engage in these industries would not serve the purpose. One needs to mandate certain guideline in respect of work environment. If a child is made to play a protagonist in one of the upcoming films and he is simultaneously exposed to scoldings, thrashes and yellings for not performing as per the expectation of the direction team. Would it not hamper the mental growth of the child?

CONCLUSION:

Upon perusing the Principal Act and the Child Act, it is crystal clear that the intention and the motive is to protect children rights. The child labour is never intentional or wilful but is always a compulsion in a developing country like India. Hence in this scenario it was mandatory to have a Statute in order to get children onto right path and to shape their future which consequentially would shape the future of India. Today we have the government talk about big words such as “MAKE IN INDIA”, “DIGITAL INDIA”, etc. but what they are forgetting is that they are targeting the canopy of the tree and not the roots of the tree. They are attempting to strengthen the tree but, their approach is in wrong direction and that it needs to be taken onto right one.

This Child Act passed by the Parliament though has great beneficial points but what is not considered is the loopholes that any person or an organization accused of child labour can use as a defence to its advantage and escape from the clutches of law.

Hence, we must give a deeper thought to this serious and sensitive issue if we all wish to move in the forward direction into light.

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The November book bucket

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DEMONETISATION: A brief analysis

This article has been written by Ishaan Garg. Ishaan is currently a student in Vivekananda Institute of Professional Studies, GGSIPU.

On November 8 2016, an announcement was made by the Prime Minister of India, Shri Narendra Das Modi which shook the entire nation. In an unscheduled live televised address to the nation at 20:15 IST, he declared that circulation of all Rs. 500 and Rs. 1000 banknotes as invalid and withdrew the status of legal tender from them. He announced the issuance of new Rs 500 and Rs 2000 banknotes in exchange of the old notes.

After the official announcement by Prime Minister Modi, the Governor of the Reserve Bank Of India, Mr. Urjit Patel and Economic Affairs Secretary, Shaktikanta Das explained in a press conference that while the supply of notes of all denominations had increased by 40% between 2011 and 2016, the Rs500 and Rs 1000 notes increased by 765 and 1095 respectively in this period mainly owing to their forgery. This forged cash was then used to fund terrorist activities against India. As a result the decision to eliminate the notes had been taken. Patel also informed that the decision had been made about six months ago and the printing of new notes of denomination Rs.500 and Rs.2000 had started few months back. However, owing to the nature of the matter, only the top members of the government, security agencies and the central bank were aware of the move. But if some reports are to be believed, media had reported in October 2016 about introduction of Rs.2000 denomination well before the official announcement by RBI. This statement has led to much debate, because the reserve bank governor six months before the announcement was Raghuram Rajan, while the new notes have the signature of the newly appointed governor, Urjit Patel.

The Reserve Bank of India laid down a detailed procedure for the exchange of the demonetised notes with new notes. The key points are:

  • Citizens will have until 30 December, 2016 to exchange their notes at any bank or post office and deposit the old currency.
  • Cash withdrawals from bank accounts were restricted to Rs10,000 per day and Rs20,000 per week per account from 10 to 13 November, 2016. This limit was increased to Rs 24000 per week from 14 November, 2016.
  • For immediate cash needs, the old notes of value up to Rs 4000 per person could be exchanged for the new Rs. 500 and Rs. 2000 notes as well as Rs. 100 notes over the counter of bank branches by filling up a requisition form along with a valid ID proof. This limit was increased to Rs 45000 from 14 November 2016 onwards and then reduced to Rs. 2000 with effect from 19th November, 2016.
  • Initially, all ATMs were dispensing notes of only Rs. 50 and Rs. 100 denominations and cash withdrawal of Rs. 2500 per day, while other ATMs dispensing notes of only Rs. 50 and Rs. 100 denominations will allow a maximum withdrawal of Rs. 2000 per day.
  • Exceptions were given to petrol, CNG and gas stations; government hospitals; railway and airline booking counters; state-government recognised diaries and ration stores and crematoriums to accept the old Rs. 500 and Rs. 1000 notes until 11 November, 2016 which was later extended to 14 November, 2016 and now it is 24 November, 2016. International airports were also instructed to facilitate an exchange of notes amounting to a total value of Rs. 5000 for foreign tourists and outbound passengers.

In the past, the Bharatiya Janta Party (BJP) had strongly opposed demonetisation. But it was before Prime Minister Narendra Modi launched Jan Dhan Yojana to include the poor into the banking system. Finance Minister, Mr. Arun Jaitley said that demonetisation would clean the complete economy. He further said that this step would help to increase the size of economy and revenue base. He mentioned that the demonetisation along with the upcoming Goods and Services Tax (GST) as an attempt to change the spending  habit and lifestyle.

This decision is both praised and criticised by the people of India. Several bankers like Arundhati Bhattacharya (CEO of SBI), Chanda Kochhar (MD AND CEO of ICICI BANK) and Deepak Parekh (Chairman of HDFC) appreciated the move in the sense that it would help curb black money. Businessmen Anand Mahindra (Mahindra group), Sajjan Jindal (JSW  group), Kunal Bahl (Snapdeal and freecharge) also supported the move adding that it would also accelerate e-commerce.I nfosys founder Naryana Murthy also praised the move.

On the other hand of the spectrum, Chief Minister of West Bengal Mamata Banerjee along with Delhi Chief Minister, Arvind Kejriwal called the new declaration a “DRAMA”. A PIL was filed in Madras High Court by M Seeni Ahmed, General Secretary of Indian National League, to scrap the decision. However the High Court Dismissed the PIL stating that it cannot interfere in monetary policies of the government. Similar PILs were also filed in the Supreme Court of India. They too were rejected stating that the government is free to change policy, taking into consideration the prevalent socio-economic conditions and that the courts have only a limited role to play.

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The November book bucket

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My life, My choice: Legal aspects of suicide

This article has been written by Sarvesh P. Giri. Sarvesh is a Bachelor’s of Engg in Electronics and Telecommunication, 2015 batch from Mumbai University and pursuing LL.B. from Gopaldas Jhamatmal Advani Law College, Mumbai.

The life has been a natural and god’s essential gift to each and every individual on this Earth. The god has vested this right upon each and every individual to live this life and enjoy the same. In the archaic period people never had reasons to end their lived voluntarily and that death of an individual or a person was by natural reasons or due to any infirmity or ailment or disease, but with the evolvement of the society and technology, man found a couple of reasons to end its life voluntarily depriving itself of this natural gift.

SUICIDE: –

‘SUICIDE’ has no such particular definition in any of the legal book and that speaking in layman language it is voluntary end of one’s own life due to certain external factors. Suicide is the only act which is not penalized under any of the mandatory and obligatory provisions of Criminal Law primarily because of the reason of non-existence of the person committing the offence.

Henceforth, in case of failing of the act of committing suicide, the individual so survived is punished under the section 309 of Indian Penal Code that deals with attempt to commit suicide.

INTRODUCTION TO CONTROVERSY: –

As per the provisions of Art.21 of the Constitution of India every individual is vested with the right to life and personal liberty. But this act of committing suicide has been into controversy over a recent few time merely because of articulation of Art.21 in Constitution of India. Apart from Art.21 in Constitution of India there is an additional provision i.e. Section 309 IPC which criminalizes an attempt of this act.

Many mind bogglers consider such provisions to be inhuman whereas some consider it as a valid provision and as a mode to set example before the society but something has gone unnoticed i.e. correcting the mental stability of the offender.

In one of the cases of MARUTI SRIPATI DUBAL V/S STATE OF MAHARASHTRA, the Bombay High Court struck down S.309 of IPC as ultra vires to the Indian Constitution. In this case, it recognized the right to live as a positive as well as negative right. It recognized the right not to live as a right to live. The court further held that every individual is a sole master of his body alongwith his limbs and all organs of his body and its upto his discretion to perform as his will

However, a complete contradictory viewpoint was held by the Hon’ble Supreme Court of India in the case of R. RATHIRAM V/S UNION OF INDIA, wherein the court held that the Section 309 of IPC was violative of Article 21 of Constitution of India. However, this controversy took 360 degrees turn in the case of GIAN KAUR V/S STATE OF PUNJAB when the Hon’ble Supreme Court of India consisting of 5 Judges overruled the decision passed in Rathiram’s Case and stated S.309 not to be violative of Art.14 or 21 of Indian Constitution.

Hence it is since the olden times that this controversy whether penalizing an individual making an attempt to commit suicide is a valid provision or the same stands ultra vires.

LEGAL CONSIDERATION TO THIS CONTROVERSY: –

Considering the provisions of Article 21 of the Indian Constitution which mandates right to life but as was rightly upheld in the famous case of MANEKA GANDHI V/S UNION OF INDIA, that right to life is not merely confined to physical existence but a life with dignity. The question that the judiciary should consider the reason and the pain which coerces a person to adopt such a step.

Here are some of the reasons why one adopts such harsh steps to end one’s own precious life:

  1. Fear of failure in exams
  2. Continuous exposure to harsh treatment either by husband or by any of his relatives
  3. Poverty
  4. Unability to withstand the infirmity or disease
  5. Not being allowed or not being able to earn a living

It is these external factors which coerce an individual to adopt such steps. The judiciary has had a couple of judgments validating the provisions of S.309 of IPC at some point whether as held it unconstitutional at the other point.

The other question to be considered is whether in such circumstances, any individual or any prudence can live a healthy and a dignified life? The answer lies as NO, reason being the disturbances it creates in the mental vicinity of an individual

In the famous case of Gian Kaur, the Hon’ble Supreme Court of India held that suicide is an unnatural termination or extinction of one’s life and incompatible with right to life.

SOCIAL ASPECT TO THE CONTROVERSY: –

Upon perusing the above circumstances leading to this controversy, it is evident that penalizing an offence caused due to mental instability of an individual would not be a human treatment. Instead the provision of Section 309 must be amended and such people should be subject to rigorous counselling so that they can have a different perception to the problem face by them because it is a matter of mere perception.

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Dying Declaration: An introductory note

This article has been written by Mohini Singla. Mohini is currently a student in Army Institute of Law, Mohali.

The paramount consideration of the Court to decide dying declaration should be to avoid miscarriage of Justice. A Miscarriage of justice which may arise from the acquittal of guilty is no less than from conviction of innocent.[1]

Dying Declaration is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with lie on his mouth. The Indian law recognizes the fact that ‘a dying man seldom lies’ or ‘truth sits upon the lips of a dying man.’[2] A Dying Declaration is given special weightage as per Section 32 of the Indian Evidence Act, 1872 as truth sits on the lips of a dying man.[3]

A “Dying Declaration” is a statement, written or oral, of relevant facts made by a person who is dead.[4] The Court attaches intrinsic value of truthfulness to it. The statement, if voluntarily made and established not to be an attempt to cover up the truth, can be made the basis of conviction.[5]

A Dying Declaration made by a person on the verge of his death has a special sanctity as that solemn moment a person is most unlikely to make any untrue statement.[6]

One the main essential for the valid declaration is that the declaration should be given by a person in a fit state of mind, then only that can be taken up as an reliable evidence. Dying Declaration can be oral or written.

In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the Dying Declaration, the normal rule is that the Courts must exercise due care and caution to ensure genuineness of the Dying Declaration. When the Court is satisfied that the Dying Declaration is voluntary, not trained by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in conviction of the accused on basis of such Dying Declaration.[7]

Even if a declaration is incomplete but it reveals the cause of death of person then even though he wants to speak something else is not important, that is sufficient evidence and has to be taken into account.[8]

[1] Alla Rakha K.Mansurie v. State of Gujrat, Criminal Appeal No. 1285 of 1998.

[2]Kachhwa vs State Of Rajasthan, 1986 CriLJ 306.

Uka Ram v. State of Rajasthan, (2001) 5 SCC 254.

[3]Sukhdev Singh v. State of Delhi,(2010)ILR 2Delhi201.

[4]Sant Gopal v. State of U.P, 1995 CrLJ 312 (SC).

[5]M. Sarvana v. State of Karnataka, (2012) 7 SCC 636.

[6]Narayan Singh v. State of Harayana, AIR 2004 SC 1616.

[7] Supra 10; Ashabai v. State of Maharashtra, (2013) 2 SCC 224.

[8]Muniappanv. State of Madras,AIR 1962 SC 1252.

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