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Policy & Politics

Legal validity of the ban on transgender community from donating blood

The permanent deferral policy in India is introduced on the lines of the guidelines issued by WHO, though not with the same scientific temperament. It is imperative to note the historic background, resulting in this globalised policy on blood donation deferrals. During the HIV epidemic breakout in the 1980s, the United States alone had 179,136 AIDS cases and it had also spread to multiple continents.

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INTRODUCTION

The National AIDS Control Organisation (NACO) guidelines, on blood donor selection and blood donor referral, 2017, permanently defers the transgender community from blood donation, since they have a higher risk of contracting Human Immunodeficiency Virus (HIV). This article analyzes the loopholes and the constitutionality, vis-a-vis the purpose of the deferral policy and the HIV-AIDS (Prevention and Control) Act, 2017.

HISTORY

The permanent deferral policy in India is introduced on the lines of the guidelines issued by WHO, though not with the same scientific temperament. It is imperative to note the historic background, resulting in this globalised policy on blood donation deferrals. During the HIV epidemic breakout, in the 1980s, the United States alone had 179,136 AIDS cases and it had also spread to multiple continents. Since HIV was first found in Men who have sex with men (MSM) and sex workers, The Centre for Disease Control in the United Stated along with several other countries categorized these groups, including the transgender community which was previously under the MSM category for HIV surveillance, as High-Risk-Group and permanently deferred them from donating blood. 

ANALYSIS OF THE NACO GUIDELINES

The said NACO guidelines, the intention is to facilitate a safe and sufficient supply of blood with minimal risk of infections amongst donors. Every unit of blood is screened for Transfusion Transmissible Infections. Further, the transgender community along with other potentially High-Risk Groups (HRG) are periodically subjected to HIV tests, as provided under Section 6(c) of the HIV-AIDS (Prevention and Control) Act, 2017 (hereinafter referred to as ‘the Act’). As per the NACO guidelines itself, these surveillance and screening tests are to be conducted every six months. These tests are done without the consent of the HRG, for epidemiological and surveillance purposes. 

The Supreme Court, while reading down Section 377 of the Indian Penal Code to confine it to the offence of bestiality and non-consensual acts, in Navtej Singh Johar Vs Union of India, had also noted that behaviour and not sexual identity places people at risk of HIV. Therefore, transmission of HIV is not linked with sexual orientation or gender, rather, it is due to the differences in the knowledge about transmission, that puts people at risk of HIV. Further, the definition of ‘Significant risk’, as per Section 2(v) of the Act, means the presence of a significant risk body substance or a circumstance constituting a significant risk for transmission or in the presence of an infectious source and an uninfected person. Further, as noted by UNAIDS, HIV infections are not restricted to homosexuals and drug users. Anyone who has unprotected sex, blood transfusion with contaminated blood, sharing unsterilized equipment can be infected with HIV. This classification being scientific and subjective does not restrict communities based on gender or sexual orientation.

The Supreme Court in the case of National Legal Services Authority Vs Union of India had recognised the fundamental right of the transgender population as citizens of the country to possess an equal right and realise their full potential as human beings. Hence, the guidelines to bar transgender persons would alienate them and violate their right to a dignified life provided under Article 21 of the Constitution of India.

At the same time, it cannot be denied that there lies a duty on the State to identify HIV infected persons to stop further transmission via infected blood pool. However, the transgender community undergoes pre-blood screening, HIV tests, counselling and education. Further, as noted by the WHO, “during a pandemic situation, the risk of blood shortage far outweighs the risk of transfusion transmission. Further, though the positivity rate of the Transgender persons remain high, due to their mobility and indulgence in unprotected sex, yet, as per the study conducted by NACO, Transgender people have the lowest risk of contracting sexually transmitted infections, upon every clinic visit, when compared to the other High Risk Groups such as Female Sex Workers, Men who have sex with men, migrants, truckers and injecting drug users. Transgender persons also visit clinics for testing and treatment, more than any other High Risk Groups, at 79.06%, during every quarter. This reason could also attribute to the high positivity rate.

CONCLUSION

It is also to be noted that this had happened more almost three decades back and the research and development in the field of testing and treatments have been monumental. Today, we have tests which can detect HIV in the blood with high accuracy as early as 10 days in case of Nucleic Acid Tests (NAT) which also has a specificity and sensitivity of a 100%, and latest by 90 days in case of Antibody tests which also has very high specificity. Further, a recent estimate suggests that risk of HIV transmission through blood transfusion is 1 in 1.5 million which is far lesser than other transfusion related complications. As per guidelines issues by WHO, donor selection criteria and deferral of High-Risk Groups is to be done only in case, appropriate screening assays are not available. India statutorily mandated surveillance and screening amongst potentially high-risk groups every 6 months, combined with the advanced testing technology used today, significantly reduces the risk of transmission via transfusion. Hence, it is proposed that it is time for India adopted a time-based deferral of 3-6 months post unprotected sexual activity and not risk based deferral which not only deviates from the underlying purpose in the guidelines but is also discriminative of a group of people based on their gender and hence violative of article 14 therefore ultra-virus to the constitution.

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Policy & Politics

India can emerge as the largest diamond trading hub in the world: Piyush Goyal

Exports of gems and jewellery more than double and rise to $23.62 bn in the first 7 months this FY as compared to last year: Piyush Goyal.

Tarun Nangia

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Piyush Goyal

Union Minister of Commerce & Industry, Consumer Affairs, Food & Public Distribution and Textiles, Piyush Goyal today said India can emerge as the largest diamond trading hub in the world. In a video message during the Inauguration Ceremony of Gems & Jewellery Manufacturing Show – 2021”, organised by the Surat Jewellery Manufacturing Association (SJMA), Shri Goyal said the Government has declared the Gems & Jewellery sector as a focus area for export promotion.

“We have established ourselves as the largest player in diamond cutting & polishing, we can become the largest international diamond trading hub,” he said.

Exports of gems and jewellery this FY in the first 7 months upto October’ 21 was $ 23.62 bn, as compared to $ 11.69 bn (+102.09%) for the same period previous year.

“Superior quality of our manufacturers has enabled us to penetrate markets like Dubai-UAE, USA, Russia, Singapore, Hong Kong and Latin America,” he said.

Goyal said the Government has taken various measures to promote investment for growth of the sector, – Revamped Gold Monetisation Scheme, Reduction in import duty of gold and mandatory hallmarking.

“We have the best artisan force for designing and crafting in the world, there is a need to focus on strengthening creativity & systematic skill development of artisans,” he said, adding, “We should make our products a benchmark of quality, to further expand in new markets & deepen presence in existing ones.”.

Goyal laid out four points to make India’s Gems & Jewellery a pioneer industry in the world:

1.​Focus on Design (creation of patented designs) in order to increase value add of our products and make our manufacturing more profitable.

2.​Diversification of export products: Emphasis on products like pearls, silver, platinum, synthetic stones, artificial diamonds, fashion jewellery, non-gold jeweller, etc.

3.​Collaboration with other nations for cost-effective methods to enhance production of fusion jewellery.

4.​Promote Lab-Grown Diamond: They are environment friendly & affordable and will contribute to India’s export as well as generate employment.

Goyal said Surat is, perhaps, one of the fastest growing cities in the world and is home to more than 450 organised jewellery manufacturers, importers & exporters. It has the potential to become the jewellery manufacturing hub of the world, he added.

“I visited the Diamond Bourse in September on the day of the Honourable Prime Minister’s birthday and I was impressed by the efforts put to create the world’s largest office building which will serve as the hub of all Diamond trading activities. It is an example of Prime Minister’s Aatmanirbharta and your Aatmavishwas. It is a testament of the fact that if we are willing enough we can do anything on our own. Jewellers are woven into the fabric of our nation. People don’t just spend money when they buy gold & jewellery in our country but invest their life’s savings when they do so. Jewellers are the repositories of trust and faith of our people,” said Goyal.

The Minister said, the SJMA, since its inception in 2016, has championed the cause of improving the jewellery industry in Surat. “Their ‘Make in Surat’ programme has facilitated innovation & promoted skill development to build a robust jewellery manufacturing ecosystem.”

Stating that India’s Gems & Jewellery sector is known all over the world for its Charm & Cost Effectiveness, Shri Goyal said this sector embodies the spirit of New India, contributing about 7% of India’s total GDP & employing more than 50 lakh workers. “Our jewellers have mastered the art of diamond manufacturing & jewellery making and have made it a shining example of ‘Make in India’,” he said.

Quoting a proverb, “Progress is impossible without change, and those who cannot change their minds cannot change anything”, Goyal said our G&J sector has the potential to realise the goal of “Local Goes Global and Make in India for the World” and become the driving force of New India. “For progress there is a need for change in mindset,” he said.

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Policy & Politics

Is an inventive move a solution for the sustainability of the fashion industry?

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Clothing industry is the contemplation of our values, culture and society in which we live in. However if we see today it is fundamental reflection of our identity .The fashion industry constitutes a significant part of our economies as well as vicinity, with the worth of more than 2.5 trillion $USD and giving employment to more than 75 million of people worldwide.

The sector has seen extensive amount of growth over the last years, as clothing production has doubled between the tenure from 2000 and 2014.As the fashion industry is achieving sky rocketing success, it is negatively impacting to the environment in terms of carbon emissions, drying up the water sources and polluting water and streams.

We must emphasize on the fact that it’s production not only could seriously influence our environment but people as well as culture we live in.The toxic substances utilised in the production of the textiles is putting harmful impact not only on the health of the human resources engaged but also on the vicinity which is being around it.

But there are some of the solutions through which we could move in a right direction:

Orientation towards Fashion: A developing number of pioneers have changed how they see what shoppers are truly after – admittance to mold, not really responsibility for. An arising wave of organizations are offering clothing as a help .Such plans of action can possibly drive up the nature of items to guarantee life span, make shopping simple while giving a channel to reclaim, reuse or reusing. These models will not be applicable for all market sections or fulfill all purchaser inclinations, yet can absolutely be essential for the arrangement.

Emphasize on Function: From lab-developed calfskin to reasonable cellulose-based materials, great advancements are testing customary suppositions regarding how elite execution materials are created. For instance, Lenzing has fostered a reasonable cellulose-based material, Tencel, that guarantees quality, execution and supportability. Social business visionary Modern Meadow is bringing design into the lab, making “biofabricated” materials, with the first bio-designed cowhide dispatched a year ago. This is just the actual hint of something larger in what developments can be investigated to rethink materials creation.

Formulation of Recovery economy: Today, under 1% of material used to form clothing is reused into new dress, and just 13% of the complete material information is here and there reused after apparel use. While numerous customers think they are doing acceptable by giving garments, the sheer volume of gifts implies a lot of winds up in landfills. Financial motivators to support clothing reusing are feeble, and mechanical advancement is deficient. A couple of computerized stages for apparel reclaim are arising to boost purchasers, like Yellow Octopus, however a solid government push will be needed to rebalance what is presently a messed up market framework for recuperation and reusing. Strategy choices including broadened maker obligation and out and out guideline to, for instance, boycott the consuming of unsold style things have started to come to fruition in nations like France and the UK.

Joint Effort: Youngsters are forming a basic part in making a more manageable design area – with in excess of 30 World Economic Forum Global Shaper center points driving a Shaping Fashion drive through ground-up aggregate activity. While the weight of effect ought not tumble to shoppers to address, their commitment in both requiring a more supportable future, while additionally taking an interest in a roundabout economy for style is basic to move the framework.

While a couple of sparkling stars are making a serious move, they can’t move a whole style framework, with its immensely appropriated supply chains and very cut throat nature. Worldwide public and private area authority supported by activities at scale will be basic. Late certain signs are arising: the assembling body Global Fashion Agenda is advancing a 2020 circularity responsibility that more than 10% of the business has embraced, France is utilizing its G7 initiative to lead an approach push and has approached François-Henri Pinault, CEO of Kering, to bring business along. The European Commission has additionally featured materials as the following need for administrative concentration, and more nations are investigating public strategy and administrative activities.

Eco friendly material mix: There is a requirement of reducing the influence of harmful fibres and requirement of more sustainable fibre.

Fashion system that orient towards closed loop: There should be formulation of those products which take into consideration the reuse and recycling of post customer textiles at scale.

Fourth Industrial Revolution : It means taking into account those possibilities in the digitalization and immerse with the different kinds of stakeholders to prepare for transition of workforce…

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Policy & Politics

Pawan Kumar takes over as Director (Commercial) at Indraprastha Gas Limited

Tarun Nangia

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Pawan Kumar has taken over as Director (Commercial) of Indraprastha Gas Ltd. (IGL), the largest CNG distribution company of the country, operating City Gas Distribution (CGD) networks across 27 districts in ten geographical areas across four states of Delhi, Uttar Pradesh, Haryana and Rajasthan.

A graduate in Industrial Engineering from prestigious Indian Institute of Technology (IIT), Roorkee and post graduate in management from S.P. Jain Institute of Management & Research, Mumbai, Mr. Kumar is a senior leader in hydrocarbon space having a rich experience of over 33 years across multiple regions in various roles during his tenure in Bharat Petroleum Corporation Limited (BPCL). He has worked across the entire value chain in LPG sector, including Marketing, Operations, Maintenance, Safety, Training, Strategy, Network Expansion, Distribution Channel Management, Logistics etc. Before joining the current assignment, he was the Regional LPG Head for Northern Region of BPCL comprising seven states & three Union Territories servicing 2.5 crore customers & 2000 distributors. He has been the pioneer in implementation of Ujjwala Scheme across states of Uttar Pradesh, Uttarakhand, Delhi, Haryana, Rajasthan, Punjab, Himachal Pradesh, Jammu & Kashmir, Ladakh and Chandigarh.

Mr. Kumar has taken over the position of Director (Commercial) from Mr. Amit Garg, who has been repatriated back to his parent organization BPCL to Head the new vertical of Renewable Energy. IGL is a joint venture of GAIL (India) Ltd. and BPCL along with Govt. of NCT of Delhi.

Mr. Kumar is a senior leader in hydrocarbon space having a rich experience of over 33 years across multiple regions in various roles during his tenure in Bharat Petroleum Corporation Limited (BPCL).

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Policy & Politics

RS 2 lakh crore outlay announced for PLI schemes

Tarun Nangia

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budget 2021

Keeping in view India’s vision of becoming ‘Atmanirbhar’ and to enhance India’s Manufacturing capabilities and Exports, an outlay of INR 1.97 lakh crore (US$ 26 billion) has been announced in Union Budget 2021-22 for PLI schemes for 13 key sectors of manufacturing starting from fiscal year (FY) 2021-22.

(Source: Concerned implementing Ministries/ Departments)

The 13 key sectors include already existing 3 sectorsnamely (i) Mobile Manufacturing and Specified Electronic Components, (ii) Critical Key Starting materials/Drug Intermediaries & Active Pharmaceutical Ingredients, (iii) Manufacturing of Medical Devices and 10 new key sectorswhich have been approved by the Union Cabinet in November 2020. These 10 key sectors are:

(i) Automobiles and Auto Components, (ii) Pharmaceuticals Drugs, (iii) Specialty Steel, (iv) Telecom & Networking Products, (v) Electronic/Technology Products, (vi) White Goods (ACs and LEDs), (vii) Food Products, (viii) Textile Products: MMF segment and technical textiles, (ix) High efficiency solar PV modules, and (x) Advanced Chemistry Cell (ACC) Battery.

PLI Scheme for an additional sector, Drones and Drone Components, has also been approved by the Union Cabinet in September 2021. With the announcement of PLI Schemes, significant creation of production, employment, and economic growth is expected over the next 5 years and more.

The PLI schemes are being implemented by the concerned Ministries/ Departments. A statement on details received from concerned Ministries/Departments regarding investment made by various sectors after 1st April, 2021, to avail Production Linked Incentive (PLI) scheme is placed in the table below:

There is no plan to relax Production Linked Incentive Scheme for White Goods.

This information was given by the Minister of State in the Ministry of Commerce and Industry, Som Parkash, in a written reply in the Lok Sabha today.

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Policy & Politics

RS 56,000 CRORE RELEASED TO CLEAR DUES TO EXPORTERS

Tarun Nangia

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Government has released Rs 56,027 crore in order to clear pending export incentive dues to exporters, which is for various Schemes namely: Merchandise Exports from India Scheme (MEIS) – Rs 33,010 crore, Service Exports from India Scheme (SEIS) – Rs 10,002 crore, Rebate of State and Central Taxes and Levies (RoSCTL) – Rs 5,286 crore, Rebate of State Levies (RoSL) – Rs330 crore, Remission of Duties and Taxes on Exported Products (RoDTEP) – Rs 2,568 crore and other legacy Schemes like Target Plus Scheme (TPS), Focus Product Scheme (FPS) etc. – Rs 4,831 crore. This includes support for exports made under RoDTEP and RoSCTL Schemes during the 4th quarter of FY 2020-21. It is estimated that such benefits would be disbursed to more than 45,000 exporters, out of which around 98% may fall in the Micro, Small and Medium Enterprises (MSME) category.

Clearance of dues under these Schemes is dependent on meeting the eligibility criteria by the applicant exporter, whose applications are scrutinized for any deficiency. The process of approval of complete applications under these Schemes varies. In certain Schemes, such as MEIS, ROSCTL and ROSL, online applications are largely system approved, whereas for SEIS, TPS, FPS online applications require manual scrutiny and examination of documents. Accordingly the detail of exporters’ dues state-wise isnot maintained.

To reach the target, some of the key schemes/interventions taken by the Government are:

i. The Foreign Trade Policy 2015-20 has been extended upto31.03.2022 to provide a stable regime during the COVID-19 pandemic, wherein Schemes such as the Advance Authorization Scheme and the Export Promotion Capital Goods (EPCG) Scheme are being implemented to enable duty free import of raw materials and capital goods for export production.

ii. Remission of Duties and Taxes on Exported Products (RoDTEP) Scheme has been introduced with a budget of Rs 12,454 crore for FY 2021-22.

iii. Rebate of State and Central Levies and Taxes (RoSCTL) Scheme for apparel and made-up exports has been extended till March 2024 with existing rates.

iv. Transport and Marketing Assistance (TMA) scheme for specified agriculture products is being implemented to provide assistance for the international component of freight and marketing of agricultural produce and to promote brand recognition for Indian agricultural products in the specified overseas markets.

v. A common digital platform for Certificate of Origin (CoO) has been launched to increase Free Trade Agreement (FTA) utilization by exporters.

vi. Monthly monitoring of exports for 200 countries and 31 commodity groups is being done.

vii. Under the aegis of “Azadi Ka Amrit Mahotsav”, VanijyaSaptah was celebrated during 21-26th September 2021 to reach out to members of industry, exporters, association and State/Union Territory Governments for awareness and interaction on exports and various export related issues.

viii. In order to leverage full export potential, districts are being promoted as Exports Hubs by identifying products and services with export potential of each district.

ix. Exports of services is being supported through negotiating meaningful market access through multilateral, regional and bilateral trade agreements and through participation in and organization of international fairs/exhibitions like the Global Exhibition on Services.

x. An ‘Action Plan for Champion Sectors in Services’ to give focused attention to identified Champion Services Sectors through identified nodal Ministries/Departments is also in place.

xi. Assistance is being extended to exporters under the Market Access Initiative (MAI) scheme for various activities such as export market research, product development, product registration, organizing / participating in fairs, exhibitions and Buyer Seller Meets (BSMs) abroad, Reverse Buyer Seller Meets etc.

xii. In order to have a coordinated and focused attention on development of export infrastructure, a working group on infrastructure up-gradation has been constituted under National Committee on Trade Facilitation (NCTF) and a National Trade Facilitation Action Plan (NTFAP) has been formulated. This includes measures for improving road and rail connectivity to ports and smart gates at sea ports.

This information was given by the Minister of State in the Ministry of Commerce and Industry, Anupriya Patel, in a written reply in the Lok Sabha today.

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Policy & Politics

CONSTITUTIONALITY OF MARITAL RAPE IN INDIA: AN ANALYSIS IN THE LIGHT OF ARTICLES 14 & 21

Raju Kumar

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Recently, Chhattisgarh High court ruled that the sexual intercourse between man and wife is not rape even if it is done by force. In India, primarily Section 375 of Indian Penal Code (herein after referred as IPC) deals with the rape. The codified section of 375 includes all forms of sexual assault which involves all nonconsensual intercourse with a woman. Section 375 of the IPC reads as “Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:…….”— However, exception 2 of this section exempts unwilling sexual intercourse between a husband and a wife when it is done with over fifteen years of age and thus the act is protected from prosecution. According to the current prevailing law, it is presumed that a wife has already delivered his perpetual consent to have sex with her husband when she enters into marital relations. Around the globe, almost all countries have criminalized the marital rape. However, India is among the other thirty-six countries that still have not criminalized the marital rape. But, it is also notable that Supreme Court of India in the Judgment of Independent Thought v. Union of India, have criminalized the unwilling sexual contact with a wife between the age of fifteen and eighteen years. In this article, we will see the constitutional validity of Exception 2 of the Section 375.

VIOLATIVE OF ARTICLE 14 OF THE INDIAN CONSTITUTION.

Article 14 of the Indian Constitution states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In one hand, where the constitution provides equality to all, on the other hand, the criminal law discriminates the female who have been raped by their own husbands.

This law finds its footprint in the colonial era. At that time the women were treated as a cattle and this law is based on the “Doctrine of Coverture”. However, the time has been changed now and women must get their rights which are enshrined under the Constitution of India.

Exception 2 of Section 375, is inconsistent with the provision of Article 14 insofar it is discriminatory in nature. This section creates two different classes of women based on the marriage status. This classification is constitutionally invalid and is inconsistent with the doctrine laid down in the judgment of Budhan Choudhary v State of Bihar and State of West Bengal v. Anwar Ali Sarkar, where it was held that the classification should have some rational nexus to the objective that the act seeks to achieve. However, in the current scenario, exception 2 of section 375 doesn’t qualify the ‘reasonable test’ as it simply exempts husbands from punishment, which is totally contradictory with the objective. Furthermore, this exception also encourages husbands to establish forcefully sexual intercourse with their wives, as the act of husband is neither discouraged nor penalized by the law. Therefore, no rational nexus can be inferred between the classification created by this exception and the underlying objective of act. Thereby, it doesn’t satisfy the ‘reasonableness test’ and therefore it is violative of Article 14 of the Indian Constitution.

VIOLATION OF ARTICLE 21.

Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Supreme Court while interpreting the clause of Article 21, in the judgment of State of Karnataka v. krishnappa, it was observed that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. Furthermore, in the same judgment the court further observed that whenever a non-consensual sexual intercourse takes place, it amounts to physical as well as sexual violence. Later on, Supreme Court in the year 2009, in the judgment of Suchita Srivastava v. Chandigarh Administration, while dealing with Article 21, equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity.

Recently, Supreme Court in the year 2018, in the landmark judgment of Justice K.S. Puttuswamy (Retd.) v. Union of India, recognized the ‘right to privacy’ as a fundamental right. Furthermore, it was also observed that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. The above decision of the court doesn’t create any difference between married and unmarried women. Therefore, it is applicable universally and a woman doesn’t losses the rights enshrined under article 21 after the marriage.

Moreover, exception 2 is also inconsistent with Article 21’s ‘right to live with a healthy and dignified life’ as held in the judgment of C.E.S.C. Ltd. v. Subhash Chandr.

CONCLUSION

The above discussion clearly shows that exception 2 of section 375 clearly violates Article 14 and 21 of the Indian Constitution. Renowned scholar Dr. Br. Ambedkar once observed that “I measure the progress of a community by the degree of progress women have achieved”. In India, which is always knows for its vast diversity and culture, such laws prevailing is a dark side of it. Women should not be treated merely as an object. They must be stand on equal footage. Now, it is high time when Indian criminal jurisprudence should strike it down.

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