INITIATIVES FOR SAFETY OF WOMEN AND GIRLS BY GOVERNMENT OF INDIA.

The Government has also taken a number of initiatives for safety of women and girls, which are given below:

1.    The Government has set up Nirbhaya Fund for projects for safety and  security  of  women, for  which  Ministry  of  Women and Child Development is the nodal authority for appraising/ recommending the proposals / schemes to be funded under Nirbhaya Fund.

2.    In order to facilitate States/UTs, MHA has launched an online analytic tool for police on 19th February 2019 called “Investigation Tracking System for Sexual Offences” to monitor and track time-bound investigation in sexual assault cases in accordance with Criminal Law (Amendment) Act 2018.

3.    MHA has launched the “National Database on Sexual Offenders” (NDSO) on 20th September 2018 to facilitate investigation and tracking of sexual offenders across the country by law enforcement agencies. NDSO has data of over 5 lakh sexual offenders.

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4.    Emergency Response Support System, which provides a single emergency number (112) based computer aided dispatch of field resources to the location of distress has been operationalized in 20 States/ UTs in 2018-19.

5.    MHA has launched a cyber-crime portal on 20th September 2018 for citizens to report obscene content. Further, Cyber Crime Forensic Labs have been set up in several States, and training of over 3,664 personnel, including 410 Public Prosecutors and Judicial Officers in identifying, detecting and resolving cyber-crimes against women and children has been imparted.

6.    Using technology to aid smart policing and safety management, Safe City Projects have been sanctioned in phase I in 8 cities (Ahmedabad, Bengaluru, Chennai, Delhi, Hyderabad, Kolkata, Lucknow and Mumbai).

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7.    In order to improve investigation, MHA has taken steps to strengthen DNA analysis units in Central and State Forensic Science Laboratories. This includes setting up of a State-of-the-Art DNA Analysis Unit in Central Forensic Science Laboratory, Chandigarh. MHA has also sanctioned setting-up and upgrading of DNA Analysis units in State Forensic Science Laboratories in 13 States/ UTs.

8.    MHA has notified guidelines for collection of forensic evidence in sexual assault cases and the standard composition in a sexual assault evidence collection kit. To facilitate adequate capacity in manpower training and skill building programs for Investigation Officers, Prosecution Officers and Medical Officers has commenced. 2,575 Officers have already been trained by Bureau of Police Research and Development (BPR&D) and Lok Narayan Jayaprakash Narayan National Institute of Criminology and Forensic  Science  in  collection,  handling  and  transportation  of forensic evidence. BPR&D has distributed 3,120 Sexual Assault Evidence Collection Kits to States/ UTs as orientation kit as part of training.

9.    In order to coordinate various initiatives for women safety, MHA has set up a Women Safety Division.

10.         Ministry of Women and Child Development has also introduced the scheme of One Stop Centres to provide integrated support and assistance to women affected by violence and a Scheme for Universalisation of Women Helpline to provide 24 hours emergency and non-emergency response to women affected by violence. Apart from above, the Ministry of Women and Child Development in collaboration with the Ministry of Home Affairs has envisaged engagement of Mahila Police Volunteers in States/UTs who will act as a link between police and community and facilitate women in distress.

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11.         Further, Government of India conducts awareness generation programmes and publicity campaigns on various laws relating to women and their rights through workshops, cultural programmes, seminars, training programmes, advertisements in print and electronic media etc.

12.         MHA has issued advisories to all State Governments/UTs, advising them to ensure thorough investigation, conducting of medical examination of rape victims without delay and for increasing gender sensitivity in Police.

CONSTITUTIONAL CONCESSIONS AND PROTECTIONS TO SPECIFIC GROUPS IN INDIA

            Despite separation of powers, the increasing judicial intervention on the actions of executive and legislature shows the power driven politics and breakdown of democratic consensus. The overburden judiciary, delays and large number of pending cases in the courts are serious concerns of the Constitutional values and democracy. 

            There are some concessions and protections to certain States and social groups under the Constitution.

·       Under Article 370 Special Status given to Jammu and Kashmir was one of the conditions for joining into India by the former Princely State after partition of British India. Article 370 was not only removed in 2019 but the State was reduced into two Union Territories of Jammu and Kashmir and Ladak.

·       The Acts of Parliament will not apply to Nagaland under Article 371 A and Mizoram under Article 371G on religious or social practices, customary law, ownership and transfer of land and its resources in the two States unless their Legislative Assemblies decide

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·       Article 371 C recognises the division of Manipur into hills and valley by providing constitution of a Hill Areas Committee in State Assembly elected from the hill areas.

·       Special provision to Sikkim is under Article 371 F and for Arunachal Pradesh under Article 371 H. Fifth Schedule of the Constitution provides separate administration of STs including Tribes Advisory Council with Governor having responsibility to report to President in the tribal areas in India other than North East States.

·       The Sixth Schedule provides separate administration and establishment of District Councils and Regional Councils in the tribal areas of Assam, Meghalaya, Tripura and Mizoram. The Governors in these States have the responsibility to run the administration including permission to apply the Acts of Parliament and State Assemblies in the Sixth Schedule areas.Under Sixth Schedule the additional powers have been given to the Bodoland Territorial Council in Assam since 2003 to make laws in various matters and with special powers to Governor and President. Bodoland Territorial Council is like a mini State within the State of Assam having powers on agriculture, cultural affairs, education upto college level, forests, intoxicating liquors, land and revenue, PWD, transport, tourism etc.       

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·       Under the Articles 14, 15 and 16 in Part III, the State is given the power to put the reasonable restriction on the fundamental rights of the citizens in the interests and for the advancement of the birth based social categories like Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCS). For SCs and STs the reservations are provided in admissions to educational institutions, government jobs, seats in Lok Sabha, State Legislative Assemblies, panchayates and municipalities under the Constitution. In the case of Scheduled Tribes the additional privileges and concessions include protection of land under Article 19(5) and no income tax payments irrespective of high or low income. Therefore it is not surprising that demands for ST status are increasing in North East and other parts of India. In case of OBCs the reservation is confined to admissions to educational institutions and government jobs. For OBCs it is on income basis as to the creamy layers among the OBCs are excluded. It is the Constitution and laws which protect and provide concessions to different social categories including STs. The protections and concessions are not by the traditional tribal chiefs or ethnic based groups in the hill/tribal areas of India including North East.

·       The rising inequalities in income among the individuals and regional disparities in the development process are factors causing prejudices and conflicts among the social groups. In fact new demands for concessions and protections under the Constitution have been increased. These include new reservations, Scheduled Tribe (ST) status, Inner Line Permit System (ILPS) and ethnic/group based political and administrative arrangements.

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ARTICLE 131

What is Article 131 of Indian constution ?Why it is news?

            While Article 131 says the Supreme Court has exclusive jurisdiction to decide disputes between the Centre and the state governments.

            Article 131, which deals with the original jurisdiction of the Supreme Court. A dispute to qualify as a dispute under Article 131, it has to necessarily be between states and the Centre, and must involve a question of law or fact on which the existence of a legal right of the state or the Centre depends. I

            Subject to the provisions of the Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction.

What is original jurisdiction?

            Original jurisdiction of a court refers to its power to hear a case first.

            In criminal matters, offences under the Indian Penal Code are triable by the courts specified in the First Schedule of the Code of Criminal Procedure (CrPC).

            Courts of chief judicial magistrate, judicial magistrate of the first class, metropolitan magistrate and judicial magistrate of the second class have a limit on the amount of sentence they can pass, therefore, the case is committed to higher grade courts.

            A high court exercises its original criminal jurisdiction only if the subordinate courts are not authorised by law to try such matters for lack of jurisdiction.

            High courts, session judge or additional session judge can pass any sentence authorised by law, provided that the death sentence passed by court of session is confirmed by the high court.

            In civil matters, generally, suits are instituted in the court of the lowest grade competent to try it. Although the courts of higher grade can also entertain any case, the idea is not to overburden them.

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            The constitution of India, under Article 131, confers the Supreme Court original jurisdiction in certain special matters.

What are the matters where the original jurisdiction deals?

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

 (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Is there any bar on the original jurisdiction of the Supreme Court?

       Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

Why it is news?

Kerala’s move to challenge the Citizenship (Amendment) Act (CAA) in the Supreme Court. 

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whether a state can challenge the validity of a central law?

            In a 1978 judgment, State of Karnataka v Union of India, Justice P N Bhagwati had said that for the Supreme Court to accept a suit under Article 131, the state need not show that its legal right is violated, but only that the dispute involves a legal question.

Example :A pending consideration before the Supreme Court in a case dating back to 2000. In this case, Jharkhand had challenged a provision in the Bihar Re-organisation Act, 2000, related to the apportionment of pension liability between the two states. The case was filed after Jharkhand was carved out of Bihar in 2000.

1.     Bihar has objected to the challenge by relying on a 2011 decision of a two-judge bench of the top court related to Madhya Pradesh’s challenge to the validity of certain provisions of Madhya Pradesh Reorganisation Act. The court, in that case, had ruled that a state cannot challenge a central law under Article 131. Bihar has cited the judgment and argued against Jharkhand’s challenge.

2.     The Supreme Court delivered its judgment in the Bihar versus Jharkhand case in November 2014, saying it cannot agree with the view taken of the two-judge bench. It ruled that Article 131 is worded in such a manner that the Supreme Court can decide disputes on questions of fact and law under Article 131.

3.     Supreme Court opined that a challenge to a central law can be made under Article 131. “Therefore, we find it difficult to accept the statement of law enunciated by this Court in State of Madhya Pradesh v. Union of India... We are unable to agree with the proposition that this Court cannot examine the constitutionality of a statute in the exercise of its exclusive original jurisdiction under Article 131”, the judgment said.

4.     The Supreme Court rejected West Bengal’s 2017 petition against the Aadhaar Act filed under Constitution’s Article 32, which empowers individuals and organisations to move court against government actions and laws, which may violate fundamental rights.

5.     the Chhattisgarh government filed a suit in the Supreme Court under Article 131, challenging the National Investigation Agency (NIA) Act on the ground that it encroaches upon the state’s powers to maintain law and order.

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How is a suit under Article 131 different from the other petitions challenging the CAA?

            The other petitions challenging the CAA have been filed under Article 32 of the Constitution, which gives the court the power to issue writs when fundamental rights are violated. A state government cannot move the court under this provision because only people and citizens can claim fundamental rights.

            Under Article 131, the challenge is made when the rights and power of a state or the Centre are in question.

            However, the relief that the state (under Article 131) and petitioners under Article 32 have sought in the challenge to the CAA is the same — declaration of the law as being unconstitutional.

Can the Centre too sue a state under Article 131?

            The Centre has other powers to ensure that its laws are implemented. The Centre can issue directions to a state to implement the laws made by Parliament. If states do not comply with the directions, the Centre can move the court seeking a permanent injunction against the states to force them to comply with the law. Non-compliance of court orders can result in contempt of court, and the court usually hauls up the chief secretaries of

Is it unusual for states to challenge laws made by Parliament?

            Under the Constitution, laws made by Parliament are presumed to be constitutional until a court holds otherwise. However, in India’s quasi-federal constitutional structure, inter-governmental disputes are not uncommon.

            The framers of the Constitution expected such differences, and added the exclusive original jurisdiction of the Supreme Court for their resolution. The quasi-federal structure envisaged in 1950 has consolidated into defined powers of the states.

can the Supreme Court declare legislation unconstitutional under Article 131?

            In the case of State of Madhya Pradesh v. Union of India and Anr. (supra), that in an original suit under Article 131, the constitutionality of an enactment cannot be examined.

            Since the above decision is rendered by a coordinate Bench of two judges, judicial discipline demands that we should not only refer the matter for examination of the said question by a larger Bench of this Court, but are also obliged to record broadly the reasons which compel us to disagree. 

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What constitution  say that?

            In India’s federal structure, states have a constitutional obligation to implement the Citizenship Amendment Act, 2019 as passed by Parliament. As per Article 246 of the Constitution, the 17th entry under the Union List of the Seventh Schedule provides exclusive powers to Parliament to legislate on matters related to “citizenship, naturalisation and aliens”. It is tragic to note, therefore, that the chief ministers belonging to Opposition parties, despite taking the oath for bearing true faith and allegiance to the Constitution, are making a mockery of it by publicly expressing their ill-will and expressing their reluctance to to implement the CAA — this is nothing but petty votebank politics. Articles 245 and 256 of the Constitution also oblige states to ensure compliance with the laws made by Parliament. The declaration by the governments of Kerala, West Bengal, Madhya Pradesh, Chhattisgarh, Rajasthan and Maharashtra that these states will not implement the CAA is, therefore, unconstitutional. Even then, while framing the CAA’s rules, the government is considering experts’ suggestions to make the Act operational.

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FEATURES OF CODE WAGE BILL 2019

·       The Code on Wages, 2019 was introduced in Lok Sabha by the Minister of Labour, Mr. Santosh Gangwar on July 23, 2019. It seeks to regulate wage and bonus payments in all employments where any industry, trade, business, or manufacture is carried out.  The Code replaces the following four laws: (i) the Payment of Wages Act, 1936, (ii) the Minimum Wages Act, 1948, (iii) the Payment of Bonus Act, 1965, and (iv) the Equal Remuneration Act, 1976.

·       Coverage: The Code will apply to all employees.  The central government will make wage-related decisions for employments such as railways, mines, and oil fields, among others.  State governments will make decisions for all other employments.

·       Wages include salary, allowance, or any other component expressed in monetary terms. This does not include bonus payable to employees or any travelling allowance, among others.

·       Floor wage: According to the Code, the central government will fix a floor wage, taking into account living standards of workers.  Further, it may set different floor wages for different geographical areas.  Before fixing the floor wage, the central government may obtain the advice of the Central Advisory Board and may consult with state governments.  

·       The minimum wages decided by the central or state governments must be higher than the floor wage. In case the existing minimum wages fixed by the central or state governments are higher than the floor wage, they cannot reduce the minimum wages.

·       Fixing the minimum wage: The Code prohibits employers from paying wages less than the minimum wages.  Minimum wages will be notified by the central or state governments.  This will be based on time, or number of pieces produced.  The minimum wages will be revised and reviewed by the central or state governments at an interval of not more than five years.  While fixing minimum wages, the central or state governments may take into account factors such as: (i) skill of workers, and (ii) difficulty of work.

·       Overtime: The central or state government may fix the number of hours that constitute a normal working day.  In case employees work in excess of a normal working day, they will be entitled to overtime wage, which must be at least twice the normal rate of wages.  

·       Payment of wages: Wages will be paid in (i) coins, (ii) currency notes, (iii) by cheque, (iv) by crediting to the bank account, or (v) through electronic mode.  The wage period will be fixed by the employer as either: (i) daily, (ii) weekly, (iii) fortnightly, or (iv) monthly.

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·       Deductions: Under the Code, an employee’s wages may be deducted on certain grounds including: (i) fines, (ii) absence from duty, (iii) accommodation given by the employer, or (iv) recovery of advances given to the employee, among others.  These deductions should not exceed 50% of the employee’s total wage.

·       Determination of bonus: All employees whose wages do not exceed a specific monthly amount, notified by the central or state government, will be entitled to an annual bonus.  The bonus will be at least: (i) 8.33% of his wages, or (ii) Rs 100, whichever is higher.  In addition, the employer will distribute a part of the gross profits amongst the employees.  This will be distributed in proportion to the annual wages of an employee.  An employee can receive a maximum bonus of 20% of his annual wages.

·       Gender discrimination: The Code prohibits gender discrimination in matters related to wages and recruitment of employees for the same work or work of similar nature.  Work of similar nature is defined as work for which the skill, effort, experience, and responsibility required are the same. 

·       Advisory boards: The central and state governments will constitute advisory boards.  The Central Advisory Board will consist of: (i) employers, (ii) employees (in equal number as employers), (iii) independent persons, and (iv) five representatives of state governments.  State Advisory Boards will consist of employers, employees, and independent persons.  Further, one-third of the total members on both the central and state Boards will be women.  The Boards will advise the respective governments on various issues including: (i) fixation of minimum wages, and (ii) increasing employment opportunities for women.

·       Offences: The Code specifies penalties for offences committed by an employer, such as (i) paying less than the due wages, or (ii) for contravening any provision of the Code.  Penalties vary depending on the nature of offence, with the maximum penalty being imprisonment for three months along with a fine of up to one lakh rupees. 

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WHAT IS THE PURPOSE OF THE ANTI-DEFECTION LAW? WHAT ARE THE GROUNDS OF DISQUALIFICATION?

            Articles 102 (2) and 191 (2) deals with anti-defection.The intention of the provision is to check the corruption/horse trading in parliament/ to check the popular phenomenon.

            The purpose, as is obvious, is to curb political defection by the legislators. There are two grounds on which a member of a legislature can be disqualified.

·       One, if the member voluntarily gives up the membership of the party, he shall be disqualified. Voluntarily giving up the membership is not the same as resigning from a party. Even without resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the concerned House draws a reasonable inference that the member has voluntarily given up the membership of his party.

·       Second, if a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified. These are the two grounds on which a legislator can be disqualified from being a member of the House.

            However, there is an exception that was provided in the law to protect the legislators from disqualification.

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             The 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.

            Speaker/ chairman of the house is the authority to decide on defection cases. Speaker sits as a tribunal while deciding on defection cases. All proceedings in relation to any question on disqualification of a member of a House under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state. No court has any jurisdiction. However, the decision can be brought to court after Kihoto Hollohan case of 1992.

Issue :The Supreme Court on urged Parliament to take a call on setting up an independent tribunal to “swiftly and impartially” decide on the disqualification of lawmakers under the anti-defection law.

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FUNDAMENTAL DUTIES IN INDIAN CONSTITUTION

Introduction: Originally, the constitution of India did not contain any list of fundamental duties. In other words, enjoyment of fundamental rights was not conditional on the performance of fundamental duties.

        Democratic rights are based on the theory that rights are not created by the state. Individuals are born with right. It is on this theory that the Indians before independence raised the slogan that “freedom is our birth right.” It is in this sense again that Professor Laski asserts that the “state does not create rights, it only recognizes rights.”

         The socialists on the other hand, make enjoyment or rights conditional on the fulfillment of duties. They claim that “he who does not work, neither shall he eat.” The constitution of the world’s first socialist country, that of Soviet Union contains a list of fundamental rights immediately followed by a list of fundamental duties. It is clearly asserted that the enjoyment of fundamental rights is conditional on the satisfactory performance of fundamental duties.

         It was on this Soviet model that fundamental duties were added to the Indian Constitution by 42nd amendment of the constitution in 1976. The fundamental duties are contained in Art. 51A.

List of Fundamental Duties: Art. 51A, Part IVA of the Indian Constitution, specifies the list of fundamental duties of the citizens. It says “it shall be the duty of every citizen of India:

1.     to abide by the constitution and respect its ideal and institutions;

2.     to cherish and follow the noble ideals which inspired our national struggle for freedom;

3.     to uphold and protect the sovereignty, unity and integrity of India;

4.     to defend the country and render national service when called upon to do so;

5.     to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional diversities, to renounce practices derogatory to the dignity of women;

6.     to value and preserve the rich heritage of our composite culture;

7.     to protect and improve the natural environment including forests, lakes, rivers, and wild-life and to have compassion for living creatures;

8.     to develop the scientific temper, humanism and the spirit of inquiry and reform;

9.     to safeguard public property and to abjure violence;

10.   to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement. Further, one more Fundamental duty has been added to the Indian Constitution by 86th Amendment of the constitution in 2002.

11.   who is a parent or guardian , to provide opportunities for education to his child, or as the case may be, ward between the age of six and fourteen years.

Why fundamental duties are important? 

         We should all acknowledge our responsibility to perform our fundamental duties. The importance of fundamental duties are highlighted below:

• ·         The fundamental duties enumerated in Article 51A constitute a constant reminder to the citizens that they have duties in building up a free, egalitarian, healthy and responsible society. These are expected to act as damper to reckless and anti-social activities on the part of some individuals.
• ·         India is a multi-racial and multi-religional country. Such a vast democratic country like India can prosper only when the citizens of this country respect its integrity and promotes cultural harmony.
• ·         It is important to respect womanhood and citizens of India are expected to refrain from practices that are dis-respectful towards women.
• ·         Environmental pollution has become a great cause of concern, not only for Indian, but for the entire humanity. Unless, we all take the pledge to keep our environment free from pollutants, there remains the threat of undesirable consequences.
• ·         The fundamental duties aims at safeguarding public properties.
• ·         The inclusion of providing opportunity for education for children as a Fundamental duty is a big step forward towards safeguard of human-rights and abolition of social injustices

Non-enforceable and Non-justiciable:
         The fundamental duties however are non-enforceable and non-justiciable in character. This means that no citizen can be punished by a court for violation of a fundamental duty. In this respect the fundamental duties are like the directive principles of the constitution in part IV. The directive principles lay down some high ideals to be followed by the state. Similarly, the fundamental duties in Art 51A, lay down some high ideals to be followed by the citizens. In both cases, violation does not invite any punishment. It is significant that the fundamental duties are placed at the end of part IV rather than at the end of part III of the constitution. While part III containing fundamental rights is justiciable, part IV containing the directive principles is not.

Conclusion: These fundamental duties are not mere expressions of pious platitudes. Courts will certainly take cognizance of laws seeking to give effect to fundamental duties.

         Finally, the very fact that these duties figure in the constitution, keeps the door open for the duties to be given higher constitutional at status in future through constitutional amendments.