Right against Sexual Discrimination

During her judgeship at the Delhi High Court, Justice Leila Seth was introduced by her male colleagues as “meet our lady judge” and she retorted that no judge is ever introduced with “meet our male or gentleman judge”. At the beginning of her career as well, she received advice from senior lawyers to get married and raise a family instead of starting a career in law. The present instance is a very subtle expression of sexual discrimination a woman is subjected to if she steps out of her home to work and make a livelihood.

Throughout the world, women are subjected to prejudice in every realm of their lives and sexual violence has reached the stage of a global epidemic that needs to be addressed urgently as it violates the basic human right of a woman. However, until recent times, sexual discrimination or sexual violence against women was not treated as a serious concern by any employer or government.

According to the definition of Equal Employment Opportunity Commission, sexual harassment of any kind is any unwelcome or unwanted sexual advance or conduct that impedes a person’s job performance or creates a hostile, intimidating, or offensive work environment. In India, after independence, there were very few gender-specific laws to protect the basic human rights of women by preventing and redressing sexual discrimination and sexual violence against women.

There are different classes of offences perpetrated against women which includes the offences of female foeticide to kill a woman even before her birth, female infanticide, depriving women from the right to inherit family property, mental and physical cruelty at matrimonial home, torturing women for dowry, sexual harassment of women at workplace and some serious and heinous crimes like trafficking, rape and acid attacks.

According to a publication of the WHO, “sexual violence includes any of the following acts: rape, marital rape, domestic violence, child abuse, female infanticide, denial of health care or nutrition to girls, sexual and emotional harassment, genital mutilation, prostitution, pornography, population control, war and state violence, exploitation of refugees, political violence, and reduction in state services which increases the stress and workload for women”.

Sexual offences in the form of sexual violence can cause severe and permanent damage to the physical and mental health of the victims and may also lead to suicide, acute depression and even murder of the victim. The victims of the sexual offences are stigmatised and consequently, they lose their status in their families and society which in turn disrupts their life and social wellbeing.

The Indian Constitution provides that any kind of sexual violence is a violation of the fundamental right to equality, right to life and right to live with dignity by virtue of Articles 14, 15 and 21. Article 19 (1) (g) of the Indian Constitution grants the right to practice or to carry out any occupation, trade or business and it includes a right to a safe environment free from harassment.

Although India has signed and ratified the Convention on the Elimination of All Forms Discrimination against Women, which was adopted by the General Assembly of the United Nations, in 1979, it took a long time to frame laws and procedures to end discrimination against women. The CEDAW signatory countries are legally bound to put the following measures into practice in order to end discrimination against women:

  1. to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
  2. to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
  3. to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.

Owing to the dynamic feminist movements and demands for laws to protect women from sexual discriminations and offences, the Indian parliament has passed the Criminal Law (Amendment) Act. 2013) to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012 to define various kinds of sexual offences including aggravated sexual offences like rape and acid attacks and provide related procedures and punitive measures.

In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was also enacted adhering to the principles and guidelines laid down by the landmark Vishaka Judgement of the Supreme Court in 1997 aiming to ensure safe working places for women and to create conducive and healthy work environments that recognizes the right to equality of status and opportunity of every woman. A successful implementation of these new laws will definitely facilitate the achievement of the right to gender equality, life and liberty and equality in working conditions for women.


ABOUT THE AUTHOR

Shampa Chowdhury

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She is a legal professional working in a Law Firm in Kolkata. She has a brief experience of content writing for a few Law portals. Currently, Shampa is pursuing a course on Cyber Law Practice, Information Technology and Social Media Law from NUJS.

Section 26 of the Arbitration Act: Conflicting Views on Stay of Arbitral Award

The 2015 amendment to the Arbitration and Conciliation Act, 1996 which came into force from 23.10.2015 also brought with itself a host of controversy. This controversy had arisen because of the conflicting views taken by various High courts while interpreting Section 26 of the amendment Act and thereby affecting the position on the stay of an arbitral award under newly added Sections i.e. 32(2) and 36(3).

These newly added sections under enforcement of award say that mere filing of a petition under Section 34 for setting aside the arbitral award by itself will not render it unenforceable unless the court grants a stay on such award, for which now a separate application has to be moved under Section 32(2). It further gives such court the discretion to grant stay subject to such conditions as it deems fit.

Section 26 of the Amendment Act says: Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.

Some High Courts had taken the view that the term ‘in relation to’ in Section 26 of amendment act would not include the court proceedings commenced after  amendment ; hence no separate application is  needed to be filed whereas the other interpretation is that those arbitral proceedings would include the present court proceedings and would be governed by the amended provisions.

While the Madras High Court in New Tirupur Area Development Corporation Ltd. v. M/s Hindustan Construction Co. Ltd had taken the first view, the Division Bench of Kolkata in Sri Tufan Chatterjee v. Sri Rangan Dhar, had taken the latter view i.e. even the pending court proceedings relating to arbitration, which was pending as on date when the amendments were notified, must be governed by the amended act and not the unamended one.

Though the Bombay High Court in Rendezvous Sports World v. BCCI had taken the latter view, the reasoning given by it was different. It said that amendments brought to Section 36 of the Act are procedural in nature and further balances the rights of both parties and ordered the BCCI to file an application seeking stay against enforcement of arbitral awards under challenge.

The latest view is taken by Delhi high court in Ardee Infrastructure Pvt. Ltd vs Yashpal & Sons where it said; the petitions filed under section 34 for challenging the award prior to the amendment would be governed by the unamended provision and would be entitled to automatic stay whereas for the petitions filed after it, will have to move a separate application for seeking a stay on the award.

Thus all the arbitral proceedings (the entire gamut, including the court proceedings in relation to proceedings before the arbitral tribunal), which commenced in accordance with the provisions of Section 21 of the said Act prior to 23.10.2015, would be governed, subject to an agreement between the parties to the contrary, by the unamended provisions and, all those in terms of the second part of Section 26, which commenced on or after 23.10.2015 would be governed by the amended provisions.

Though the view taken by the Delhi court seems to be the most logical interpretation on this point, we must watch out for the Supreme Court’s decision which is pending adjudication in Rendezvous Sports World v. BCCI. It is essential that this controversy is put to rest by the apex court as soon as possible both for the purpose of having logical interpretation and enforcement of the award.


ABOUT THE AUTHOR

Mousomi Panda

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Mousomi is a third-year student pursuing B.A. L.L.B. from University School of Law and Legal Studies, (IP University). She has an active interest in issues that plague the society. She’s a thinker, writer, and reader, though more of a dreamer. She’s interested in legal research in the field of ADR as well as IPR.

Is it their duty as Supreme Court judges to protect the Constitution and also the citizen’s faith in the judiciary?

“The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.”

The questions revolve around Justice Deepak Mishra’s arbitrary appointments of benches for cases. A press conference is a grave step, must have taken excessive courage for those judges to come out of their way and set a precedent.  This event had taken place on the 12th of January at Justice Chelameswar’s residence. When questioned about the reason behind the gathering Hon’ble Justice Chelameswar said that the judges were “left with no choice” other than to communicate to the nation the many “less than desirable things” those have happened “in the last few months”. They said in their statement that “certain judicial orders passed by this court” have “adversely affected the overall functioning of the justice delivery system.” Justice Chelameswar said that all four of them are “convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country.”[1]

All the four judges who had participated in the press meet i.e. Justice J. Chelameswar, Justice Ranjan Gogoi, Justice MB Lokur and Justice Kurian Joseph have had a remarkable record of integrity, intellect, and impartiality. This step taken by them to inform the public about the lack of impartiality in deciding cases or in the appointment by the current CJI, Justice Deepak Mishra can be considered as their last resort. The replies given by them during the press conference can be recognized as their deep anguish and their urge to protect the democracy and the Supreme Court. They felt that it was important to educate the country about the absence of unbiasedness by the CJI in the administration of justice. They additionally said that they didn’t want the nation 20 years from now to feel that they had “sold their souls”.

The conference majorly highlighted the increasing rift between the Senior Judges and the CJI. Such a situation in the present scenario where there are a million controversial and landmark judgments which were given in the recent times and which are going to be reviewed will end up being questioned as they were given under the supervision of the current CJI, who is accused by the Senior Judges of being partial. The Adhaar card decision was opposed by Justice Chalameshwar. This is true and the linking of Adhaar has always been an issue of debate and also this was the same conclusion given by the committee appointed to look into the privacy matters when it comes to the draft policy on data.

We’ve been disappointed more often than not with the happenings of the Government and the Judiciary. There are a few people who also argue that when this took place the judiciary that is supposed to serve as a cornerstone to solidarity and justice has taken a downward spiral when it brazenly displayed disparities within itself. In my opinion, no rational or prudent person would have or will ever have such a utopic idea about one of the most hypocritical concepts that have ever sustained existence. The “fact” that an institution has disparities is but human and not news that has the shock factor it claims to have with it.

The four Judges were absolutely right when they took media as a platform to inform about the issue. The constitution has democracy as a concept enshrined in it. When the Judges informed them about the dangers which lie ahead to the public, they were well acting within their rights. If there is no democracy, there is no Constitution and no constitutional democracy. Needless to say, that independence and impartiality form the basic structure of the Constitution. A strong and united judiciary is the sine qua non for a strong and vibrant democracy. If the judiciary of a country is divided and polarized, it will have a direct effect on the very survival of democracy in that country.

Nobody is still aware of the reasons behind such a drastic step taken by the Senior Judges. The correctness can still be questioned and the issues should be sorted in a way they are supposed to be.  The general public being completely unaware of the internal discrepancies will form its opinion on the matter and deal with it differently; such a thought process once initiated will definitely raise questions on the stability of the Judiciary.

[1] http://www.thehindu.com/opinion/op-ed/should-the-four-sc-judges-have-dissented-publicly/article22466399.ece


ABOUT THE AUTHOR

Deepa Karanam

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Deepa Karanam is currently a third-year student at Symbiosis Law School, Hyderabad. She is currently working as the president of the Legal Aid Centre at Symbiosis Law School, Hyderabad. Social work and charity is something she always looks up to, and the famous JFK saying going by ‘If not us, who? If not now, when?’ fascinates her to keep going and never wait for anybody to bring about a change in the society. An aspiring bureaucrat, her pass time has always been music because of its healing power.

Sports Law in India – Necessities and Challenges

Sports, as a profession is rapidly gaining popularity and the need for a codified system of law with sports as its sole focus is the need of the hour. Taking specifically the case of India, the scope of sports in India is finally widening from just cricket, with the emergence of tournaments such as Premier Futsal, with some of the greatest legends the sport has ever seen, and the Indian Super League India is finally trying to break the stereotype that Indians are not good at sports other than cricket.

Furthermore, there are various other competitions conducted to increase popularity and help develop other sports such as badminton, tennis and even indigenous sports such as kabaddi are finally being given the chance to develop.

After decades of slumber, when one tries to develop something from scratch, issues are bound to arise. Taking the case of Premier Futsal, the Brazilian legend Ronaldinho had to leave early as his country needed him, thankfully this situation was resolved amicably which may not always be the case.

As India enters a new age of Sports entertainment and development in India, it is extremely pivotal that it takes sports law as a serious division. The merger of the ISL and the I-League will lead to further complications both within and amongst teams and players unless India develops sports law to the required extent it will be very difficult to settle disputes which may arise during the tournaments. It would be impossible for the ordinary courts to handle issues and disputes occurring in the sporting world as they are already backlogged with both criminal and civil cases.

Another recent example of the necessity of Sports law and the extent to which it has already developed is the case of Mohammad Salah and his loan period at Fiorentina from Chelsea, where Chelsea had been sued for allegedly breaking the contract with Fiorentina which both FIFA and the CAS (Court of Arbitration for Sports) had dismissed. Such an incident would’ve have led to serious issues in India.

The need for a separate segment of law dedicated to sports is also clear from the IPL match-fixing incidents and the ban which had been briefly placed on India’s Olympic Association (IOA). The IPL match-fixing scandal was an eye opener as the players were charged with criminal offences as it was not easy to determine what category the offence fell under, which would not have been the case if there existed a segment for Sports law.  Cases such as the Narsingh Yadav case, which highlighted the subpar implementation of doping tests as compared to world standards as well as the poor judgement that the National Anti-Doping Agency (NADA) had given on the case, shows the need to improve the current structure of Sports law in the country.

Sports law is a tried and tested segment of law in countries such as the United States, though it is considered to overlap various other segments such as labour and contract law, sports law is granted the authority to act as a decision-making body in the realm of sports in the United States. This has helped in the advancement of sports in the country and shows the need for India to follow suit and opt for such a legal system.


ABOUT THE AUTHOR

Vittal Balasubrahmanyam

Vittal

Vittal is currently a Second- Year law student studying at O.P. Jindal Global Law School. He is also pursuing a career in accounts as an aspiring ACCA. Academic interests include; sports, economics, contracts and accountancy. Hobbies include; listening to music, watching tv shows and movies.

The Constitutional Vision of Inclusive Growth: Challenges and Strategies

The Indian Society has suffered from the menaces of social and economic inequalities, caste-based discrimination, and purging of minorities for centuries. But the nation’s independence struggle and its ultimate triumph remains the greatest testimony to the world of the power of a people united in the spirit of nationalism.

The Constitution of independent India is a manifestation of the ideals of liberty, equality and fraternity. An inclusive society was the vision of the makers of our constitution. But even after independence the perils of inequality and discrimination lingered on. The post-independence era witnessed the re-emergence of these vices which had subsided during the independence struggle. Although attempts at tackling these were made in the form of social reform legislations, economic and social disparities continue to plague the society.

Over the past two decades, India has made a successful transition from an economy that was growing at best at a moderate rate to one that has become one of the principal drivers of the global economy in the post-crisis phase. The GDP growth rate, the investment rate and the savings rate have steadily increased.

The charm of high growth is, however, obliterated by the fact that the distribution of benefits arising from the growth dynamics is highly skewed. Large sections of the population are precluded from partaking in the benefits of the economic growth which is evidenced by the rising economic disparities.

The lack of inclusion has two broad dimensions, economic and social, which analysts have pointed out, mutually reinforce each other. The most obvious manifestations of economic imbalances are the high incidences of poverty, wide income inequality and high rates of unemployment. These can be attributed to the inequality in access to essential services, particularly those related to education and health, which in turn is the result of social exclusion, “the process through which individuals or groups are wholly or partially excluded from full participation in the society in which they live”[1].

Exclusion is thus both the cause and the effect. It is antithetic to ‘inclusive growth’, which is the “process that yields broad‐based benefits and ensures quality of opportunity for all”[2] as envisioned in the constitution particularly in the preamble, in chapter III and in the Directive Principles of State Policy.  Inclusive growth is to be primarily achieved at the levels of Reduction Of Poverty, Reducing Unemployment, Social Justice And Empowerment, Environmental Sustainability, Gender Equity, Access To Essential Services and Governance.

Basely et el (2007) considers inclusive growth as the “growth that has a high elasticity of poverty reduction”, i.e., higher reduction in poverty per unit of growth. The ability to generate an adequate number of productive employment opportunities will be a major factor on which the inclusiveness of growth will be judged. Rapid growth focused on labour-intensive industries and small and middle enterprises will create employment opportunities in the manufacturing and services sectors. The ability to create jobs will be enhanced by greater labour flexibility which may require some changes in labour laws.

Access to essential services is an indispensable aspect of equality of opportunity. Copious theoretical studies have demonstrated that the idea that both the pace and pattern of growth are critical to accomplish a high, sustainable growth record, as well as poverty reduction, is consistent with the findings in the Growth Report, Strategies for Sustained Growth and Inclusive Development[3].

The vision of inclusiveness must be taken beyond the conventional objective of poverty alleviation to embrace equality of opportunity, as well as economic and social mobility for all sections of society, with greater focus on  SCs, STs, OBCs, minorities and women. There must be equality of opportunity to all with freedom and dignity, and without social or political obstacles.

The Commission on Growth and Development, in the report found that inclusiveness, a concept that incorporates equity, equality of opportunity, and protection in market and employment transitions is a vital element of any successful growth strategy. The Commission regards systematic inequality of opportunity “toxic” as it will disturb the growth process through political means or conflict.

Another strategy of achieving inclusive growth must be one that not only preserves and maintains natural resources, but also provides equitable access to all.  This requires international co-operation to develop forms of burden sharing for alleviation as well as adaptation that are just and equitable to all nations.

Recognizing the depth of the problem of social exclusion based on gender, an integrated approach towards gender equity is also the need of the hour. Identifying and rectifying the flaws and drawbacks in the previous schemes and programs and improving the governmental machinery for implementation and expansion of strategies for inclusive growth through is the most crucial aspect in our stride towards inclusive growth. The need of the hour, thus, is a comprehensive and balanced approach in achieving inclusive growth and distributive justice as part of it.

[1] 1 11 European Foundation for the Improvement of Living and Working Conditions (1995), “Public Welfare Services and Social Exclusion: The Development of Consumer Oriented Initiatives in the European Union”, The Foundation,Dublin, quoted by De Haan, Arjan, and Simon Maxwell (1998), “Poverty and social exclusion in North and South”,IDS Bulletin, 29 (1): 1‐9

[2] 2 7 Govt of India (2008), “Inclusive Growth: Vision and Strategy”, Eleventh Five Year Plan, Planning Commission, New Delhi, p. 2.

[3] Commission on Growth and Development, 2008


ABOUT THE AUTHOR

Treesa Ann Benny

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Treesa Ann Benny is a third-year student pursuing B.A LL.B(Hons.) course at the National University of Advanced Legal Studies, Kochi. She enjoys writing, particularly on contemporary issues. She finds legal research extremely interesting as well as rewarding and has a particular liking for corporate and constitutional law. She has interned at various law firms in the country, participated in various moot courts, essay-writing and policy-framing competitions and authored several law research papers. She is a volunteer at the Kerala chapter of Increasing Diversity by Increasing Access (IDIA). She is a music lover and also enjoys cooking.

 

A dismal setback to sec. 498A IPC

From time immemorial, married women in India have been defencelessly enduring cruelty and domestic violence at the hands of men. Cruelty against women was difficult to prove and to make it worse, there was no specific law aiming to safeguard women against such cruelty. It is not unfamiliar that crimes against women have been a barrier to the holistic development of the society.

Responding to the dire need of gender equality and curbing the menace of marital cruelty upon women due to the evil of dowry prevalent in our country, the Criminal Law (Second Amendment) Act, 1983 was enacted by the Indian Legislature which amended the Indian Penal Code, 1860 by inserting Section 498A, the Code of Criminal Procedure, 1973, the Hindu Marriage Act, 1955, the Indian evidence Act, 1872 (by inserting section 113-A into it) which has shifted the burden of proof to the accused and the Dowry Prohibition Act, 1961.

The section 498A of the Indian Penal Code, 1860 was introduced into the Indian criminal law system with an objective to prevent the menace of dowry death and cruelty inflicted upon women. This was a momentous change introduced in the Indian criminal law system intending to provide protection to the women as the offence of marital cruelty in India became cognizable, non-bailable and non-compoundable offence.

Section 498A is given under the heading, “Husband or relative of husband of a woman subjecting her to Cruelty.” Under this section, “cruelty” has been explained as (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Aiming towards the complete wellbeing of the married women, apart from physical cruelty, section 498A of the Indian Penal Code, 1860 has recognised ‘mental cruelty’ by husband or relatives of the husband as a psychological harm and made it a punishable offence.

Recently, in the name of preventing misuse of Sec. 498A, the guidelines laid down by the Honorable Supreme Court in Rajesh Sharma & Others vs. State of U.P. & Another, blatantly defeated the objective of sec. 498A IPC. It requires that every complaint under sec. 498A received by the Police or Magistrate shall be referred to a particular committee which shall have to submit its report within one month from the date of receipt of the complaint. Moreover, until the report is submitted, no arrest should be made. However, his judgement has undermined “mental cruelty” and it has been made clear that these directions will not apply to the offences involving tangible physical injuries or death of a woman.

The incidences of mental cruelty are no less harmful to any woman. Instead of taking action to prevent cruelty and save the life and dignity of a woman, the judgement instructs to take action only when the woman has been hit, thrashed, beaten up or killed. The Indian women are made to suffer to such an extent to get eligible for access to justice. During the one month period of enquiry to confirm the veracity of the facts of the complaint, the psychological cruelty may continue and even aggravate to harm of a serious nature including psychological depression or even suicidal tendencies in the victim women.

The ground reality regarding the implementation and effectiveness of the law provided under sec. 498A is quite dismal. According to the reports of National Crime Report Bureau, crimes against the female population in India have increased manifold in the recent time. The guideline of the Supreme Court in the above-mentioned case is regressive in nature and it has sabotaged the ongoing effort to bring about gender equality.

According to a report of the CHRI, the Police in India refuses to register complaints of sexual harassment and other crimes against women. It said that “the survey points to a significant proportion of unaddressed and unreported crime, signalling worrying levels of insecurity among the public, particularly women”.

Stringent implementation of the existing laws is required to curb crime against women because there is massive under-reporting of crime against women in India. The real concern for us should be the lower conviction rate for crime against women according to various official data. Guidelines should also be framed to encourage abused women to report crimes and fight her case till the end. The instruction to refrain from filing FIR until a thorough enquiry has been a big demotivating factor.


ABOUT THE AUTHOR

Shampa Chowdhury

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She is a legal professional working in a Law Firm in Kolkata. She has a brief experience of content writing for a few Law portals. Currently, Shampa is pursuing a course on Cyber Law Practice, Information Technology and Social Media Law from NUJS.