Thursday 31 December 2015

Caste in temples

The Supreme Court had recently observed that caste and birth should not be the criteria for appointment as the priest in a temple. The Court is of the opinion that qualifications other than those of caste or birth should be prescribed for a person to be appointed as a priest. The ruling seems to be in sync with the beliefs of Dr Ambedkar who advocated learning and not birth to be the criteria of priesthood. In certain temples, even the sub caste has been prescribed. The Brahmins have objected on the ground that this is the only profession that is exclusively for them and if this is also taken away then what will they do. Another objection raised was on the ground of the appointments being made on the basis of age old customs and traditions. The Court says that it is in accordance of Article 16 of the Constitution. The judgement has come in the time when a number of people including politicians have stated that they were denied entry into various temples.
The implementation of the uniform civil code may be an antidote of many discriminatory practices being followed in different religions. Till then these practices are covered under personal laws that have their source in customs and traditions.

Tuesday 22 December 2015

The juvenile justice amendment law

Both the Houses of Parliament have passed the amendment law to make juveniles over the age of 16 years to be treated as adults for heinous crimes. These crimes include offences which carry a punishment of imprisonment of more than 7 years like rape and murder. The juvenile justice board comprising of a judge and two social workers shall decide whether the juvenile is to be sent for trial or for rehabilitation.
The amendment bill was passed because of the public outrage over the Delhi gang rape in which one of the offenders was juvenile and was sent for rehabilitation. The bill once ratified by the President shall have prospective effect and not effect the trials of crimes already committed.
India is a signatory of the convention on the rights of child and the bill is being criticized for being violative of the convention which requires all juveniles to be treated alike.

Wednesday 16 December 2015

Air pollution

Taking consideration of the rising air pollution in Delhi, the Supreme Court has recently give an interim order that no private vehicle (car or sub) with an engine of capacity over 2000 cc running on diesel shall be registered. Further, it held that no commercial vehicle registered before 2005 shall be allowed to enter Delhi and NCR and commercial vehicles are prohibited from using Delhi in transit. This is an interim order for three months. The court approved of the Delhi government's odd/even rule for all private vehicles.
In another order, the court raised by 100% the green cess on all commercial vehicles entering Delhi, and also added that all taxis and cabs to convert to CNG from March 31, 2016. The court observed that no garbage is to be burnt in NCR.

Monday 14 December 2015

Climate change

In the Paris pact, all the countries have agreed to cap the global warming to 2C or if possible to 1.5C of the preindustrial times. The smaller islands have also pitched in to speak on the impact of global warming that they face, riding sea levels and have got recognition for it. The key targets are to move from cheaper and easily available fossil fuels to renewable and cleaner sources of energy like solar and wind. The pact aims at reducing the greenhouse gases to control global warming and climate change. While all the nations have set their own target dates, countries are required to renew their pledges every five years.

Women in Saudi Arabia

Saudi Arabia has become the last country to grant voting rights to women. 2015 marks the first time women voted or stood up in elections with 900 women contesting and 19 coming out as winners. The voice of women in an electoral process is a very important thing, women make up 50% of the population, and require an equal voice for their rights. Women in politics can make better decisions regarding issues related to children, healthcare, agriculture, women rights, education and also foreign policy.
It is not democracy if half of the population cannot take part in the electoral process. For free and fair elections, elections and candidates must be selected irrespective of their religion and sex. It is important that women play important role not just as a voter but also as elected representatives.
Saudi Arabia has finally given voting rights to women but it has a long way to go in implementing equal rights of women and work in the fields of domestic violence, marital rape, gender equality, employment laws and education.

Friday 11 December 2015

Disability benefits for acid attack victims

The Supreme Court has recently observed that acid attacks not only cause physical and psychological harm to the victim but also attach social stigma and fewer job opportunities. The court directed the state governments to add acid attack victims in the list of persons with disabilities so that they can get disability benefits including the reservation benefits in employment. The direction comes in the light of increasing acid attacks. The court also ordered for a stricter implementation of laws prohibiting the sale of acids and impose stricter punishment on the person selling acid without authorization.

Friday 6 November 2015

Inheritance rights of a child born of rape

The Allahabad High Court has recently ruled in a landmark judgement that a child born because of rape will be treated as the illegitimate child of the biological father, the rapist and will inherit from his property. The court ruled that this is subject to the condition that the child is not given for adoption and the rules of personal laws shall apply. The court further suggested that the legislature should formulate law in this regard to provide for the child. The court is of the opinion that in cases of inheritance it does not matter what is the manner of his birth and the personal laws shall govern his inheritance. However, a child that has been given for adoption loses his rights over the property of his biological father, the rape accused. The court gave this order while dealing with the case of a newborn girl who was born because of the rape of her mother.
Though this judgement gives some financial assistance to the child born because of rape, there are number of drawbacks:
Firstly, to claim inheritance, the child should not have been in adoption. Adoption denies him the right to inherit from the biological father.
Secondly, the rights of inheritance are governed by personal laws and not all personal laws recognize the rights of illegitimate children. Under the Muslim law, an illegitimate child can inherit only from his mother and not from his biological father.
Thirdly, the rapist may not have any property or income that can support the child.
Fourthly, no compensation is given to the rape victim, the mother of the child while she is pregnant or bringing up the child.
Fifthly, the child loses his inheritance if adopted and if not adopted has to live with the social stigma of being born because of rape and being an illegimate child. The inheritance does not cover the psychological effects of the stigma and do not adequately compensate the mother and child.
However, as the courts have suggested that the legislatures to formulate a law dealing with such cases, there is hope for stricter legislation on rape and covering the loopholes in the inheritance of the child born from it.

Thursday 8 October 2015

Sexual harassment at workplace

In the light of the lawsuit filed against wipro on sexual harassment and discrimination, it is imminent to discuss the sexual harassment law in the country. In Vishaka v State of Rajasthan, the Supreme Court laid the guidelines to counter sexual harassment of women at workplace. The Sexual Harassment of Women at Workplace (prevention, prohibition and redressal) Act, 2013, was enacted in 2013 and it supersedes the Vishaka guidelines.
The main provisions of the Act are:
(1) it defines sexual harassment and defines ways of redressal. It also protects from false complaints and malicious prosecution.
(2) it has enlarged the scope of definition of workplace to include all formal and informal public or private work areas.
(3) it covers the concept of quid pro quo harassment and hostile work environment.
(4) the committee is required to complete inquiry within 90 days. An action is to be taken by the employer or district officer within 60 days of submission of report.
(5) every employer is required to constitute an internal complaints committee which will have the powers of a civil court for collection of evidence. The complaints committee is to try for conciliation before initiating an enquiry.
(6) employers are required to provide education and sensitization programs and also provide guidelines for preventing sexual harassment.
(7) penalties range from imprisonment of one to three years and/or fine. Sexual harassment being criminal offence, the employer is required to report it.
The law has been criticized for penalties for false complaints as activists suggest that this will prevent women from complaining. However, the fact remains as the governments have not taken adequate steps for its implementation, large number of employers have not implemented it and the state of women in workplace remains the same.

Wednesday 7 October 2015

Corrupt practices

India is a democratic republic and the conduct of free and fair elections is the basic structure of the Constitution. Without free and fair elections, democracy fails to function. In such a condition, various activities that vitiate the free and fair election are referred to as corrupt practices and they disqualify the candidate. The law relating to corrupt practices is covered under Section 123 of the representation of people Act,1951. The following practices are enlisted as corrupt practices which disqualify a candidate and may bar him from contesting in future elections as well.
(1) bribery- if a candidate or his agent offers to give gifts to another candidate for contesting or not contesting or withdrawing or not withdrawing candidature or to voters for voting or not voting is bribery.
In Indira Nehru Gandhi v Raj Narain, Indira Gandhi was held not guilty of bribery. Recently, Jagir Kaur was booked for bribery when 183 cases of liquor were recovered by the police.
(2) undue influence- if a candidate or his agent directly or indirectly interferences or attempts to interfere in the electoral process it amounts to undue influence.
(3) appealing on the ground of religion, race, community, caste or language- in Indira Nehru Gandhi v Raj Narain, the election symbol of cow and calf was held not to amount to be appealing in the name of religion. Similarly, in Dheeraj Pratap Singh v chief election commissioner, the symbol elephant of BSP was held not to be a religious symbol.
(3A) promotion of feeling of enmity on the grounds of religion, race, caste or language- spreading communal feelings and spreading hatred by the candidate or his agent for furtherance of his prospects or prejudicing those of any candidate.
(3B) promoting or glorification of sati- any action of promoting or glorification of sati is a corrupt practice for furtherance of his prospects or prejudicing those of any candidate.
(4) publication of false statement- publication of false statement by the candidate or his agent in relation to the personal character or conduct of a candidate in order to prejudice the election.
(5) hiring or procuring of vehicles- hiring or procuring vehicles by the candidate or his agent to take voters to the polling station on the day of voting amounts to corrupt practice. In Indira Nehru Gandhi v Raj Narain, Indira Gandhi was held not guilty of it and her election was held to be valid.
(6) incurring or authorizing expenditure in contravention of Section 77- Umlesh Yadav was disqualified for 3 years for incurring excessive expenditure.
(7) obtaining assistance of persons in service of central or state governments like gazetted officers, judges and magistrates, members of armed forces, members of police force, excise officers or other services under the government in election. In state of UP v Raj Narain, the election of Indira Gandhi was set aside by the Allahabad high court and she was barred from contesting  and holding office for 6 years.
(8) booth capturing- booth capturing amounts to forcefully gaining control of polling station and influencing the polling.
Free and fair elections is the basic structure of the Constitution and it requires that candidates and their authorized agents do not indulge into any of corrupt practices that may influence or prejudice the voters. Indulging in corrupt practices not only disqualifies a candidate in that election but may bar him from holding a public office.

Sunday 20 September 2015

Schools of jurisprudence

Jurisprudence is the study or theory of law. It aims at defining the law and its origins. Jurisprudence aims at defining the nature and theory of law. It examines its origins and sources. Various different theories have been propounded to explain the nature, source and authority of law.
The various schools of jurisprudence are as follows:
(1) Natural law: natural law was propounded by the philosophers and religious scholars as law having divine origin. Under this school, there is very little difference between law and morality. It was implied that law can only be discovered by rational deductions from the nature of man. It proposes that law is the inherent moral values in an individual that are discovered by the deductions and introspection. The various proponents of this theory were Aristotle, Thomas Acquinas, Thomas Hobbes.
(2) Analytical or positive school: as opposed to the natural law, the analytical school does not take morality into consideration. The question, what law is? is the subject of discussion and not what law ought to be?
Amongst the proponents of the analytical law, Bentham gave his utilitarian theory and proposed the hedonistic calculus, which states that law is propounded by a higher authority for the greatest good of the greatest number.
As per Austin, law is the command of sovereign backed by sanction. For him, law comprises of order or command from a higher authority along with the power to punish for its disregard. The application of force is an important aspect in determining the validity of law.
Kelsen propounded the pure theory of law and separated law from society. He defined law as binding norms. He propounded that their is a higher norm "grundnorm" that is supreme and all the laws of the land take their validity from it.
According to this theory, legislation is the main source of law.
(3) Historical school: as per the historical school, law is the outcome of long historical development of the society. The historical school takes customs as the most important source of law.
Savigny propounded that law is the outcome of popular consciousness (volksgeist). Law evolves in an organic manner with the society.
(4) Sociological school: it focuses on the interaction of law and society and lays a greater emphasis on legal institutions. It states that law has source and sanction in the social needs and necessities.
Roscoe Pound stated his theory of social engineering, under which a law maker acts as a social engineer by attempting to solve problems in society using law as a tool.
Legal realism propounded by Justice Cardazo, Lewellyn, Justice Holmes states that law is like a putty in the hands of a judge who moulds it and gives it a desired shape based on his own biases and the facts of the case. American legal realism lays a greater importance on the role of judges as the law maker and interpreter and lays greater importance on precedence as the source of law.

Saturday 19 September 2015

Reservation in educational institutions and government jobs

While the Constitution of India provides for equality under Articles 14-18,  with Article 14 providing equality before law and equal protection of laws. Article 15 prohibits discrimination on the basis of religion, race, caste, sex or place of birth and Article 16 provides for equality in opportunity in matters of public employment. Article 17 abolishes untouchability and Article 18 abolishes titles. However, articles 15(4) and 16(4) talk about special provisions for the backward classes.
In the case of Champakam Dorairajan v State of Madras, the Supreme Court struck down the communal GO, which made reservations based on caste, leading to the first amendment of the Constitution.
Article 15(4) states that "nothing in this article or in clause 2 of article 29 shall prevent the State from making any special provision for the advancement of any socially or educationally backward classes of citizens or for the scheduled castes and the scheduled tribes"
Article 16(4) states that: "nothing in this article shall prevent the State from making any provision for the reservation in appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State"
In the case of Balaji v State of Mysore, the Supreme Court observed that reservation cannot be greater than 50%. The classification between backward and more backward was held to be invalid. Further, it was observed that caste cannot be the only criteria for reservation as caste us not synonymous with class and other factors including economic backwardness should also be taken into consideration.
In Devdasan v Union of India, the Supreme Court held that the carry forward rule is unconstitutional.
In State of Kerala v NM Thomas, the Supreme Court held that a 2 year relaxation for SC/ST for passing a test for promotion was valid as they were ultimately required to pass the test.
In State of MP v Nivedita Jain, the Supreme Court held that the relaxation of qualifying marks for SC/ST for admission is valid.
In Indira Sawney v Union of India, the Supreme Court held that reservation cannot be more than 50%, the classification between backward class and more backward class is valid, carry forward rule is invalid. It further held that the creamy later should be excluded. It further held that reservation in promotion is invalid which was nullified by the 77th amendment.
The provision of reservation is not in contravention of the equality provisions but rather a means of providing social justice and bringing the backward classes at par with the forward classes. 

Monday 10 August 2015

Ban on porn

In the wake of ever increasing sexual violence against women, the government decided to ban porn leading to widespread debates and protests. The government has linked the easy availability of pornographic material to causing deprivation of minds and consequent rapes and other forms of sexual violence instances against women.
Porn and nudity
Porn includes nudity but all forms of nudity is not porn. Nudity might be aesthetic and not at all sexually explicit. The difference between porn and an aesthetic piece of art featuring nudity is that porn is showing of sex for the purpose of arrousing sexual desires and focuses on the objectification of the female whereas an aesthetic piece will be celebrating the human body and focusing on the strength and emotions of the body and the soul without considering sexual incentives. Porn is negative in its approach while some forms of nudity may be positive and empowering.
Porn under the law
Article 19 (1)(a) of the Constitution of India provides the freedom of speech and expression subject to eight restrictions including that of decency and morality. Books, films, advertisements all are covered by the provisions of this Article. In the case of R v Hicklin, the criteria of determining obscenity was laid down if the content of the thing is capable of depraving the mind of a reasonable person. In the case of KA Abbas, it was observed that movies have greater impact than books as they effect more than one sense of a person. In the case of Bobby Films (bandit queen), the courts observed that the film depicts the misery of a woman and is not obscene.
A piece of pornography does not highlight the strengths of human body or emotions, rather it focuses on the sexual aspect only. It mainly features the woman as an object of sexual gratification for men. It's purpose is to arrouse the feelings of the viewers. It is a part of the entertainment industry and is not an educational material. It may feature child pornography aimed at entertaining and arrousing pedophiles. It increases the objectification of women and children and may focus of dominance, sadistic relations. Based on these reasons porn falls under the category of obscenity.
The argument that porn is used for learning about sex is also invalid. A proper course is to strictly implement sex education in school curriculum  and not treat it as a taboo subject, so that young people learn about sex through proper channels and not through sources that present the depraved version of sex. Further, parents should also be open about the discussion for the safety of their children.

Wednesday 8 July 2015

Unwed mother can be legal guardian

The Supreme Court in a landmark judgement has overturned the earlier rule and said that an unwed mother can be the legal guardian of her child and there is no need to disclose his name or take his consent. Earlier, the consent of the father was necessity for a mother to be the legal guardian. The Court observed that it is futile to give responsibility to the man who had earlier abandoned his child. The petition was brought by a Christian woman who said that the father of her child doesn't even know about the existence of his child and has now married someone else. The judgement has been hailed as being progressive and another step towards gender equality. The name of the mother is sufficient and the name of the father need not be declared for guardianship.

Passport
Further, the ministry of external affairs has stated that an unwed mother does not require to declare whether she was raped or how she conceived while applying for the passport of her child. The birth certificate is sufficient and the name of the father can be left blank.

Thursday 2 July 2015

Right to protest

The right to protest against political or social issues is a right covered under the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India and is therefore, subject to various restrictions given under Article 19(2) on the ground of effecting so sovereignty and integrity of state, security of state, public order, obcenity, inciting offence, affecting friendly relations with foreign States, contempt of court, defamation.
The Madras High Court rightly observed that the right to protest does not include the right to create nuisance and general public inconvenience in residential areas. While it is a right to protest on political and social grounds, the same should be exercised by observing caution as to not cause public nuisance. Protesting outside the gate of a politician's residence causes unnecessary inconvenience to the general public at large and the police should prevent it.

Medical negligence

The Supreme Court has ordered the highest compensation of 1.8 crore to a 18 year old girl from chennai who lost her vision due to medical negligence. The girl was born premature and the hospital had discharged her without doing retinopathy which is mandatory for premature babies. Consequently the girl lost her vision, her father applied when he discovered her vision loss and was awarded 5 lakhs from forum against which he applied to the Supreme Court.
The Court while dealing with the case, took into consideration the inflation and the cost of future treatment. It also considered the fact that compensation should be such that it brings the person to the state had he never suffered the loss and granted the highest compensation. In cases of medical negligence, the state is liable to pay for the negligence of its doctors. Medical negligence is the negligence (lack of due care and caution) committed by a medical professional in the course of his professional work.

Friday 26 June 2015

Mediating with a rapist

Last week the madras high court gave bail to a rapist to find a happy conclusion and possibly marry his victim and then the chairperson of the state women's commission also called such a mediation a welcome possibility. This came in a case in which a 15 year old orphan was raped and impregnated in 2008 and is now a mother if a 6 year old daughter.
Rape is a crime that violates not just a woman's body but also her soul, her self respect and her status in the society. Rape is one of the most heinous crimes. By asking a victim to compromise with her rapist is adding insult to injury. It further violates a woman's honor. It brings back the memories of trauma to haunt her again. It is humiliating her all over again. The rapist escapes punishment for his crime but the victim continues to suffer all her life. It is like telling a woman that she is no good and should keep quiet and obey the man who violated her. It is an expression of male chauvinism. No victim wants to mediate with her rapist. No woman wants to even see the face of her rapist. Asking a woman to mediate and marry her rapist is like raping her again and humiliating her all over again.

Tuesday 23 June 2015

Freedoms in a democracy

Recently, certain members of political parties are attacking people for opposing yoga and certain similar activies, calling them anti national and some even 'sending' them out of the country. Certain political leaders are even trying to force their political agenda as the national outlook. The Constitution of India has given the citizen of India the freedoms of speech and expression, of association, movement, peaceful assembly, the right to life and liberty, the freedom of religion, of equality. The preamble to the constitution even declares that the citizens are sovereign. In such circumstances the government has got no right to dictate of how the citizens should exercise, what they eat, how they gather, and so on. The only restrictions that are laid down in the Constitution are those of public health, order and morality and these are the only grounds on which the government may restrict certain freedoms but under no circumstance can it force the people to live their life in a particular manner. A person may or may not choose to eat certain foods, he may or may not exercise in a certain manner or attend an assembly, the government cannot force him and cannot call him anti national if he states religious reasons for acting in a certain fashion. The right to profess, practice and propagate religion has been protected by the constitution itself and the exercise of such a right does not make a person any less patriotic. 

Wednesday 13 May 2015

Amendment in Child Labour Act

The cabinet has approved of amendments in the Child Labour Act and has allowed children below the age of 14 years to work in non hazardous works after school hours and during holidays. Children between the ages of 14 and 18 years cannot work in hazardous industries. While the parents are not punished for the first offence, for a second or subsequent violation they can be fined for up to 10,000 rupees while the penalty for the employer for the first violation is penalty of 50,000 rupees for a second or subsequent violation they can be punished with imprisinment of a minimum of one year that can extend up to three years. Exception has been given as to where the child helps in family work provided it is not of hazardous nature. Exception is also provided where the child works in audio visual industry including films, advertisements, etc except circus. This exception is conditional to safety measures being taken.

Black money bill

The parliament has passed the black money bill to deal with tax evasions. According to the bill, those who conceal income and assets and indulge in tax evasion will be punished for a term up to ten years of rigorous imprisonment and will also be liable to penalty up to 300 times the tax on the undisclosed income and assets. There would be a short compliance window for those having assets abroad to come clean and pay thirty percent tax and thirty percent penalty. The bill will now be sent to the President for his approval.

Only Prime Minister, President and Chief Justice to feature in ads

The Supreme Court while dealing with a petition that challenged the use of tax payers money for gaining political gains, observed that only the pictures of the Prime Minister, the President and the Chief Justice of India can feature on government advertisements and that too only after their approval. The pictures of other politicians cannot feature on advertisements showing welfare schemes  and cannot be used for political gains.
The Court had earlier warned against advertisements of birth and death anniversaries of politicians being published by political parties out of tax payers money.
The Court held that these guidelines shall remain in force till the parliament passes any law in this regard.

Monday 13 April 2015

Free treatment for acid attack victims

The Supreme Court recently, while disposing off a 2006 PILordered that the state governments should provide that the acid attack victims are given free treatment including medicines and expensive reconstruction surgeries. The Court also directed the medical council of India to issue directives to all private hospitals to implement the said order. The court further ordered that the hospital upon receiving an acid attack victim should issue a certificate/document stating that the said person is an acid attack victim and such certificate would ensure that the victim gets further free treatment at later dates.
The court ordered that acid should be listed as a scheduled substance to curb its sale. Acid should be purchased only after showing photo identity card showing an address proof and not to be sold to anyone under the age of eighteen years.
The court ordered that acid attacks be made non-bailable offence and further ordered that a minimum compensation of three lakhs rupees be given to the victim for after care and rehabilitation and out of this amount one lakh should be given within fifteen days of the government getting the notice of the attack.
The court asked the state governments to issue directive to chief secretaries of state to give directions to the district magistrates to increase awareness about this subject.

Thursday 9 April 2015

Malta bans normalization surgery

Malta has become the first nation to ban the normalization surgery and genital mutilation of intersex babies, giving a boost to the LGBT rights movement. The surgery is performed on intersex babies to make them 'belong' to a particular sex and is called normalization as if being intersex is abnormal. It takes away the right of an individual as to what they want to do with their body. Further, the new law has given the right of gender self determination to the individual. The law passed makes it unlawful to perform any kind of surgery on an infant. A surgery can be performed only on a consenting individual and not on an infant child. It also makes involuntary sterilization as unlawful.

Monday 6 April 2015

Air pollution

The Air(Prevention and Control of Pollution) Act, 1981, deals with the provisions relating to the formation, constitution, qualifications of central and state boards, and lays down their powers and also the punishments for causing air pollution.
The State boards have the power to inspect air samples, publish findings, advise governments, plan and implement policies regarding prevention and control of air pollution, provide technical assistance, collect, compile and publish statistical and technical  data, provide training, disseminate information about pollution, order directions and all other functions as maybe necessary. The Central Board has the power to coordinate the activate the activities of the States, plan and execute nationwide programmes, advise Central government, collect data, lay down standards of quality of air, and such other functions as may be necessary.
The State government after consultation with the State Board may declare by publishing in the official gazette any area as the pollution control area.(Section 19)
The State government may also after consultation with the State Board give instructions for ensuring the standard of emissions from automobiles.(Section 20)
Section 21 provides that no person shall without the permission of the State Board may establish or operate an industrial plant in an air pollution control area. 

Medical termination of pregnancy

The Punjab and Haryana High Court has recently refused to allow the abortion of a 12 year old girl who is 28 weeks pregnant as a result of rape. In Kavita v State of Haryana, the petitioner(mother of the victim) alleged that her daughter being a minor, the continuation of the pregnancy is of danger to her daughter's health and life. However, the doctors contented that it is of no imminent danger though they conceded that teen pregnancies are high risk in nature.
The Medical Termination of Pregnancy Act, 1971, deals with the provisions related to when a termination can be justifiably done. The Act lays down the provisions relating to the conditions where termibation is lawful, the qualifications of medical practitioners, the place where such termination can be done, punishment for illegal abortions. Section 3 of the Act provides that notwithstanding anything contained in the Indian Penal Code, 1860, a pregnancy can be terminated at 12 weeks by the opinion of one doctor and between 12 and 20 weeks by the opinion of two doctors who bonafidely believe that such a pregnancy is either harmful to the mental or physical health of the mother or the child if born will have physical or mental abnormalities to be handicapped. Such a termination can be done by the consent of woman alone if she is adult or with the consent of her guardian if she is minor. Pregnancy as a result of rape or failure of sterilization is said to amount to mental anguish.
Section 4 provides for the approval of space for termina of pregnancy.
Section 5 provides that where the continuation of pregnancy poses grave danger to the health of the mother, the provisions of Sections 4 and of 3 relating to term if pregnancy shall not apply. It further provides that a medical practitioner performing an abortion in contravention of this shall be punishable with a term of 2 years which may extend upto 7 years and the person providing space for such termination shall be punishable with a term of 2 years which may extend to 7 years.

Tuesday 24 March 2015

Free speech on internet

The Supreme Court has held that Section 66A of the Information Technology Act,2000, that lays down the punishment for publishing "grossly offensive" matter online is unconstitutional and untenable.
Section 66A provides that any person who posts any content online that is grossly offensive or has menacing character to another person ; or posts something that he knows to be false for the purpose of annoying or insulting or causing inconvenience to anyone or sends through electronic mail or message any offensive or annoying content shall be punishable with a term of three years and with fine.
The Court observed that the term grossly offensive is a vague term and what may be offensive to one may not be offensive to another. Examples for the same were that a pro life person will find a mail supporting abortion as offensive and a believer of creationist theory will find an article on evolution as false.
The said Section was being misused by various ruling parties by punishing any dissenting individual who criticized them. Two girls in Thane were arrested for posting on the death of Bal Thakeray and recently a class XII student was arrested for posting against SP minister in UP.
The judgement is being hailed as a victory of free speech on Internet.

Sunday 8 March 2015

Rape and live-in relationships

In a recent PIL before the Delhi High Court, seeking for an order to keep live-in relationships outside the purview of rapes (section 366) and instead put such cases under fraud (section 420), the Court dismissed it saying that by doing so it would give the status of marriage to such relations while the legislature had not intended to do so. The PIL was in reference to cases where one live-in partner files a complaint against another, with the cases ending with acquittal of the accused though with loss of reputation.
The essential ingredient if the offence of rape is the absence of consent including the consent obtained by fraud, coercion, intoxication, misrepresentation. In such cases, the accused can show the consent as a valid defence. The court felt that live-in relations are very different from marriage and by keeping them outsid from the purview of rape would accord them the status of marriage.
The court observed that the defence of consent will be available to the accused and the present order does not take away such defence. The court further sought direction from the Centre and the State government to provide remedy in the form of securing the constitutional right of providing compensation for the loss of reputation to the acquitted party and also constituting legal proceedings against those who misuse the law.
The court further instructed that the investigating officer should not make arrest before conducting preliminary investigation and medical examination to avoid false implication.

Thursday 12 February 2015

Polygamy not an integral part of Islam

The Supreme Court of India has recently observed that polygamy is not an integral part of Islam and has in effect banned it. The Court observed that Atticle 25 of the Indian Constitution protects the right to profess, practice and propagate religion but it does not protect the right to practice polygamy. The court observed that the practice of polygamy may run counter to public order, health or morality. Article 25 lays down religious freedoms and it protects the practice of the integral tenets of religion. Article 25 cannot be evoked for protecting non-integral parts of practice that may run counter to public order, health or morality. Positive reforms in cultural practices maybe made and are unaffected by the protection laid down in said Article.
In the present case, the court upheld the decision of the government of Uttar Pradesh that fired an employee for marrying a second wife while his first marriage was still subsisting.
Earlier, the courts had held that a non-muslim man cannot marry a second time by converting to Islam and avoid punishment for bigamy. Conversions for the sake of committing bigamy have also been held invalid by the courts in previous decisions.
Under Islam, a man is allowed to take upto four wives provided he treats them equally and with justice. However, this provision is mainly to provide for maintenance of war widows and orphans and is not to be observed as a right if a muslim man.

Tuesday 13 January 2015

Proposed anti tobacco law

The government has proposed to make the current anti tobacco law more stringent. Cigarettes and other tobacco products ( Projobition of advertisement and regulation of trade and commerce, production, supply and distribution) (Amendment) Bill 2015 has been proposed by the health ministry and seeks further suggestions. Some of the changes proposed in the new draft bill are:
Increasing the age of smoking from 18 to 21 years, to be further increased to 23 and finally 25 years in two phases. Further, cigarettes or tobacco is not to be sold to anyone under the age of 21 years even in loose form or as single stick. Further, no person under the age of 18 years can be employed in the cultivation of tobacco or as a worker in tobacco industry in cultivation, processing or sale of cigarettes and other tobacco products.
Increasing the fine for public smoking from Rs 200 to Rs 1000. Also to do away with the designated smoking zones in hotels. The bill also targets the various hukkah bars that have sprung up around the country and have also lead to the production of hukkah tobacco at commercial levels. However, smoking zones are to remain in designated areas at international airports.
Establishing special sessions courts for trial of offences under the Act. It seeks to increase the reporting of offences, filing of complaints, expedite trials and effective implementation of the law.
The draft bill also aims at curbing direct as well as surrogate advertisement of tobacco products. It aims at covering the various media including mobile phones in curbing the advertisement of cigarettes and other tobacco products.
The draft bill also aims at banning spitting of tobacco in public places citing that it leads to various diseases like TB, pneumonia, swine flu and avian flu.