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.

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.

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.

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.

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. 

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.

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.