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The plight of criminologists: To believe or not to believe women

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India, as we know, is a land of diversity and culture which as per the mythological readings, places a high status on women by considering them as a reincarnation of a Goddess. They are also regarded as a savior of customs, traditions and beliefs which can be evidently seen in the case when a mother passes on moral education and learnings to the next generation. But, are we really abiding and upholding the value system imbibed in us by the scriptures that dictate major portions and events of our lives?

This dog-eat-dog world that we live in, is full of obstacles with a continuum of issues disturbing the peace of everyone and/or disrupting social order (Crowell, 2013). At such a point, discussions pertaining to deviance and crime arise. Society is predominantly known for its ever evolving and adapting nature alongside the passage of time. Owing to this dynamic nature, the values and beliefs held also go through a makeshift change from time to time. When people fail to adapt to these changes, the problem arises. Terms like deviance and crime are often considered to be highly subjective and vary from the viewpoint of one society to another.

Deviance can be explained as any behavior or act that departs from social norms. In other words, that which goes against the values, norms or beliefs held by the society in question; while crime, on the other hand, is any action which violates the law of the land (Siegel, 2006). Both, deviance and crime, to a considerable extent serve as a mirror of the society as it exemplifies the thought processes and frameworks in which that society is constructed (Coomber, Donnermeyer, McElrath, & Scott, 2014).

Every crime constitutes a victim as well as a perpetrator. We are often surrounded by instances where a female victim has been subjected to a ruthless male offender; which is also supported by statistical data records. However, it does not negate the fact that females too can commit crimes. It can be factually seen that serious offences like murder are usually committed by men, whereas minor crimes like substance abuse or cheating can be committed by both men and women, alike. The degree, intensity and extent of violence severely differs in men and women (epg pathshala, n.d.). There are various disciplines which have made a conscious effort to understand female criminality, better, namely: criminology, psychology and sociology among others.

Prominent criminologists namely, Cesare Lombroso and William Ferrero authored, “The Female Offender”, 1895, which gives a deep insight about female criminality, in general. As stated in the book, they suggested that women are more likely to display the characteristics of an occasional criminal (Bhosle, 2009). Lombroso viewed the born female criminal have the criminal qualities of men and the worst ones of women; however, in India, criminality amongst women is attempted to understand as a result of social and economic scarcity as opposed to, certain biological throwbacks (Mili & Cherian, 2015). Freda Adler, in her book, “The Rise of the New Female Criminals”, 1975, attempts to explain the involvement of women in crimes against property by emphasizing on the masculinity behavior of females. The masculinization theory did however, receive criticisms owing to their male-centrism ideology of understanding female criminality (Islam, Banarjee, & Khatun, 2014).

From a psychological perspective, female offenders are known to be devoid of emotional stability and more prone to insecurity, rejection and frustration. Unbearable living conditions, societal pressure, stress, family concerns, financial dependence, social status, etc. may compel women to subdue their inner most feelings and emotions, which may possibly be negatively channelized into unpredictable anger, which in certain cases may result in violence, too (Mili & Cherian, 2015). This can be theoretically backed up by the works of Meda-Chesney Lind in her book, “The Female Offender”, 1986 where she elaborately explains the marginalization theory. This theory states that the victimization or marginality (lower class position; low income; inadequate job; harassment by family) of a woman may provoke her to commit a crime in the modern society (Islam, Banarjee, & Khatun, 2014). Discussing psychological matters in India, is not well looked upon, aggravating the issue further.

Besides, a range of social factors may also influence our understanding of female criminality in India. Some of them being: inequality, poverty, lack of education, gender discrimination, strained relations with spouse or family, denial of basic needs of life or social oppression may also serve as motivating factors (Pattanaik & Mishra, 2001).

The supposed association between poverty and female criminality has been adequately emphasized in certain judicial judgements like: in the case of Shreerangyee v. State of Madras 1972, the accused was a hardworking but unfortunate woman who was deserted by her husband. She had five children and was unable to support them due to lack of adequate earning. Her financial position further worsened when her youngest child was diagnosed with a severe illness and the doctor demanded for money for the treatment. She tried to raise the funds, but in vain. Having exhausted all the legitimate means to earn a living, she, in exasperation, killed all her five children by drowning them and then herself jumped into the well. She was, however, rescued and convicted, under Section 302 IPC for killing her children. The Court in this case also ruled out poverty as an excuse for the murder of innocent children and attempt to suicide (Ghosh, n.d.).

Among the different types of crime committed by women, the one gaining tremendous amount of attention is that of false accusations, i.e. wrongly accusing a person to have committed a crime. If an individual is correctly accused of an offense, it serves them right to face the consequences that follow its path; however the flip side of it lies in cases where a person is falsely accused of a wrongdoing, that results in a huge toll on their reputation, putting them through a severe emotional turmoil and can also negatively impact their personal as well as professional lives.

This could be in the case of dowry, rape, molestation, casting couch, harassment, domestic violence or even cheating. This issue can be considered as an essential one to deal with, by criminologists as such women tend to take undue advantage of the law that strives to protect them, in totality. These nature of events have been noticed in more or less all sectors, be it household, corporate workplace, educational institutions or the media industry. A practical instance in support of the statements mentioned above, is in the form of Section 498A of the Indian Penal Code, 1860. The section was introduced in the year 1983, with special regard to the increasing cruelty (use of verbal and/or physical abuse) towards married women on the hands of the husband and/or his family members and providing them with the requisite legal protection. However, over the years, with rising cases of this section being misused, the Supreme Court observed that it was being used as weapons rather than a shield by disgruntled wives. (Ray, 2018).

There are a number of cases that have circulated like wild fire featuring women who have falsely accused men on many grounds. One such case being that of Nisha Sharma and Munish Dalal in May, 2003 in Noida. Nisha had accused her to-be-groom and his family of demanding a sum of Rs. 12 lakh as dowry and a car; post which, Munish, his mother and paternal aunt were arrested, on the grounds of dowry harassment. They were unfortunately made to visit the Court for hearings, nearly 320 times and after a 10 year long ordeal, were finally acquitted from the false allegations made by the complainant (Vashishtha, 2012).

Such cases do being along with them a series of problems for the wrongly accused member or members of a family: loss of existing job, difficulty in finding a new one, immense stigma and labels attached, loss of respect within the community, psychological concerns: loss of appetite, insomnia, anxiety, depression, and in extreme cases also end their lives in the aftermath of these baseless accusations. The excessive misuse of the anti-dowry law to threaten the groom and his family, has compelled the Supreme Court to term such conduct as “legal terrorism”.

As of August 23, 2015, Jasleen Kaur, a student of St. Stephen’s College, New Delhi, accused a man, Sarvjeet Singh, for passing lewd comments and molesting her, while she was volunteering to control the traffic at a nearby signal. The former’s post on her Facebook handle, caused a lot of stir resulting in the arrest of Singh. Within no time, Kaur became popular and was praised by both the common masses as well as those in authority, for her courageous stand. Soon, the tables turned and on questioning, an eyewitness validated Sarvjeet’s innocence and testified against Jasleen for misbehaving and abusing the man (Surendran, 2016).

An infamous case that sadly did not reach the masses was that of a 22 year old Aman Baisla, based in Delhi, in October 2020. He committed suicide, as he was threatened with false allegation of rape. He posted a live video on Facebook and Instagram to explain how a girl had taken about 12.5 lakhs and when he asked to return, she threatened him of false rape charges and asked for more money instead. This shocking incident caused outrage among the public, however, no media aired this on any news channels.

As a criminologist, it is significant to consider all prospects and more importantly, acknowledge the contribution of social media in shaping society’s perception about a case. The most recent example being that on March 9, 2021 of the Zomato delivery man, named Kamaraj and a girl, named Hitesha Chandranee, who is a Bengaluru-based content creator and model.

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She resorted to Instagram and posted a video accusing the delivery in-charge of physical assault, insult and criminal intimidation. In a series of investigation, it was concluded she had falsely accused Kamaraj and an FIR was filed against her, under Section 355, 504 and 506 of the IPC (Jagran News Desk, 2021).

The media landscape, be it in the form of print, audio-visual, or even digital for that matter, is in a state of constant flux. Media is often regarded as the fourth pillar of democracy and can play a significant role in creating awareness of the laws and the consequences of filing fake cases against the innocent who is accused. They can considerably help in combating this menace by bringing to light, the cases of people involved in such acts, improve literacy among the masses, in this specific arena and in turn, open space for a stream like investigative journalism, to flourish, as well.

All in all, tackling cases of false accusations is undoubtedly the need of the hour which can be substantiated by the rising number of cases in India. This increasing hazard, which can harm society’s fabric and abuse of law for different purposes, needs to be regulated early. It becomes highly crucial to identify, rectify and moreover, spread awareness about this matter so as to not punish an innocent person. The idea that policy recommendations may be focused on inaccurate data does also present a challenge, since such data could contribute to needless or mistaken criminal justice changes (Rawat Rani & Maharshi, 2020). It is high time that we tackle this issue effectively, because in the course of these false claims, the genuine victims may have a hard time trying to seek justice.

References:

Bhosle, S. (2009). Female Crime in India and Theoretical Perspectives of Crime. Kalpaz Publications. Retrieved March 2021, from https://www.google.co.in/books/edition/Female_Crime_in_India_and_Theoretical_Pe/v22H2izsiHUC?hl=en&gbpv=0

Coomber, R., Donnermeyer, J. F., McElrath, K., & Scott, J. (2014). Key Concepts in Crime and Society. SAGE Publications. Retrieved March 2021, from https://www.google.co.in/books/edition/Key_Concepts_in_Crime_and_Society/6JXgBQAAQBAJ?hl=en&gbpv=1&dq=key+concepts+in+crime+and+society&printsec=frontcover

Crowell, E. L. (2013, March). Sociological Theories of Deviance: Definitions and Theoretical Perspectives. Retrieved March 2021, from www.study.com: https://study.com/academy/lesson/sociological-theories-of-deviance-definitions-and-theoretical-perspectives.html

epg pathshala. (n.d.). Gender related crime. Retrieved March 2021, from www.epgp.inflibnet.ac.in: https://epgp.inflibnet.ac.in/Home/ViewSubject?catid=1608

Ghosh, P. (n.d.). Essay on ‘Criticism of Konger’s Theory’. Retrieved March 2021, from www.shareyouressays.com: https://www.shareyouressays.com/essays/essay-on-criticism-of-kongers-theory-1816-words/121488

Jagran News Desk. (2021, March). Zomato delivery boy Kamaraj files case against Hitesha Chandranee for false accusation. Retrieved March 2021, from www.english.jagran.com: https://english.jagran.com/india/zomato-delivery-boy-kamaraj-files-case-against-bengaluru-woman-hitesha-chandranee-for-false-accusation-10024516#:~:text=The%20alleged%20incident%20happened%20on,punching%20her%20on%20the%20nose.

Mili, P., & Cherian, N. S. (2015). Female Criminality in India: Prevalence, Causes and Preventive Measures. International Journal of Criminal Justice Sciences, 12. Retrieved March 2021, from https://www.sascv.org/ijcjs/pdfs/milietalijcjs2015vol10issue1.pdf

Pattanaik, J. K., & Mishra, N. N. (2001, September). Social Change and Female Criminality in India. Retrieved March 2021, from www.researchgate.net: https://www.researchgate.net/publication/258185546_Social_change_and_female_criminality_in_India

Rawat Rani, A., & Maharshi, D. A. (2020). A Study on Rising Amount of Fake Rape Cases in India. PalArch’s Journal of Archaeology of Egypt/ Egyptology. Retrieved March 2021, from https://www.archives.palarch.nl/index.php/jae/article/download/5923/5893

Siegel, L. J. (2006). Criminology- Theories, Patterns and Typologies (Ninth ed.). Thomson Wadsworth. Retrieved from https://books.google.co.in/books?id=umgEFec4U4YC&pg=PR1&dq=criminology+by+larry+j+siegel+ninth+edition&hl=en&sa=X&ved=0ahUKEwjNjcX-hLTpAhXVxzgGHY4tCPMQ6AEIMDAB#v=onepage&q=criminology%20by%20larry%20j%20siegel%20ninth%20edition&f=false

Islam, M. J., Banarjee, S., & Khatun, N. (2014). Theories of Female Criminality: A Criminological Analysis. International Journal of Criminology and Sociological Theory. Retrieved March 2021, from https://www.researchgate.net/publication/334113027_Theories_of_Female_Criminality_A_criminological_analysis

Ray, K. A. (2018, October). Section 498A Of IPC: A Weapon Or A Shield? – Supreme Court Of India. Retrieved April 2021, from www.mondaq.com: https://www.mondaq.com/india/crime/743068/section-498a-of-ipc-a-weapon-or-a-shield-supreme-court-of-india

Surendran, V. (2016, November). Remember Jasleen Kaur case? Accused Sarvjeet Singh talks about how false complaints ruin men’s lives in India. Retrieved April 2021, from www.indiatoday.in: https://www.indiatoday.in/fyi/story/jasleen-kaur-sarvjeet-singh-kundan-srivastava-false-accusation-354200-2016-11-27

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Policy & Politics

Making it happen: INDCOSERVE

Most INDCOSERVE tea factories present a ‘bombed’ look thanks to the complete run down and dilapidated status of the mechanical, civil and electrical infrastructure.

Anil Swarup

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This was 2017. A discussion in one of the Committee Rooms of the Parliament House was underway. I was present as Secretary, School Education and Literacy. As it was inter-departmental discussion, there were Ministers and officers of the other Ministries as well. What is etched in my memory is the poise of the then Director General, Doordarshan. I was impressed with her lucid articulation and presentation. I discovered later what wonderful work she was doing in rebuilding the credibility of Doordarshan and in restoring its primacy.

INDCOSERVE was set up in 1965 by the government of Tamil Nadu with the objective of providing livelihood opportunities to small tea farmers in the Nilgiris. It had been empowering its farmer members with access to information, training and marketing thereby laying a strong foundation for a brighter future in true spirit of the co-operative movement. INDCOSERVE has emerged as India’s largest Tea Co-operative Federation with more than 30,000 small tea farmers as its members manufacturing about 14 million kilograms of tea in its 16 tea factories.

Like most Government organizations, INDCOSERVE lacked a futuristic vision. It was Supriya Sahu, an IAS officer who had turned around Doordarshan as its DG who formulated futuristic vision for INDCOSERVE based on the inherent potential of the organization and the inputs from our most important stakeholders viz. the farmers.

To keep INDCOSERVE future ready and to bring it back in competition with other well established tea brands intensive field visits to connect with the farmers were organised. The idea was to listen to their wisdom and experience, gather and analyse data and study market intelligence. At the end of the exercise, it was found that the first and the most critical intervention had to be “Quality”. Mission Quality was thus born.

As no internal professional support was available, the first task was to get a qualified professional and dynamic team to support initiatives and interventions that were to be take in coming months. An Advisor was brought in to lead the charge. A quality management team, Tea leaf price fixation team, Tea Auction base price fixation team and Marketing and Brand building team were put in place with representation from farmers heading Factory Boards.

A Quality Management Team was also put in place which designed Standard Operating Protocols (SOPs) and implemented them. Training, capacity building, setting benchmarks, feedback mechanism were integrated in the Mission Quality. An internal quality certification protocol for identifying and rewarding factories making good quality teas was also evolved. This led to competition among the factories each one vying for better grading. Better grades were linked with an incentive mechanism wherein more teas were bought from better graded factories and less from others. This brought improved resources to those who were making better quality teas. This had the desired impact

Most INDCOSERVE tea factories present a “bombed” look thanks to the complete run down and dilapidated status of the mechanical, civil and electrical infrastructure. INDCOSERVE Tea factories were looked down upon as typical “Sarkari” factories. The factories were also stigmatised as ones churning out bad quality teas year after year.

It was important to create a model which would break the stereotypical image of factories. The idea was to inspire the farmers about their own enterprise and create an easily replicable model. All resources were galvanized and tea factory at Kattabettu was renovated. The factory was completely transformed and more importantly painted with beautiful images of the local people, flora and fauna. Local Non-Governmental Organization (NGO) to helped completely restore the environment around the factory. A nature walk was created. An Eco-information centre has been set up within the factory to spread awareness about eco restoration activities and ecology of the Nilgiris Bio-sphere reserve. All this brought a sea change in people’s perception. An upgradation and modernisation plan for factories was prepared. This got funding support from the government of Tamil Nadu and NABARD.

As a key communication strategy, a weekly open house for farmers was started. Personal letter was written by Supriya to all 30,000 farmers seeking suggestions from them to strengthen their own organisation. An appeal was also made to them to give good quality leaf only and help transform the organisation. This was transformational. Now, a farmers Application viz., “Indco App” has been launched to make this communication digital.

Visits were organized to private tea factories to make them realise how private factories were able to keep their factories cleaner, more hygienic and well maintained with even less resources. They also learnt about packaging and marketing These visits inspired them and instilled confidence.

The pricing mechanism for green tea leaves supplied by farmers was also improved. It was important to break the vicious cycle of supply of bad quality of leaves leading to bad quality of teas manufactured in Indco factories. A calculated risk was taken in announcing better prices for the raw material being supplied by farmers. These initiatives helped INDCOSERVE improve profitability due to better utilisation of the capacity.

The product portfolio was confined only to 3 tea products which were in old style packaging and were also only dust grades. This has now been expanded to 11 products. Each of these is well packaged in attractive brand names. In the pipeline are niche products coming for the first time in the market like the Nilgiri Kahwa Tea. The organization now has State of the Art e-commerce website www.indcoserve.com.

INDCOSERVE is the largest supplier of teas in the Public Distribution System (PDS) of the Government of Tamil Nadu wherein about 2500 tonnes of tea is being supplied every year to about 30,000 ration shops.

Most of the factories were making losses as there had not been much focus on exploring newer markets. Their complete dependence only on one auction platform i.e., Teaserve made them vulnerable to market volatility. Hence, other auction platforms were used. This initiative helped earn better price for teas and has also exposed them to buyers from across the country.

Indco Tea Houses are being opened across the State to market teas to a wide range of tea lovers. Mobile Tea and food trucks, called Tea-Vandi are providing a unique experience to tourists and locals. Five vehicles are already operating and 20 more vehicles are joining the fleet in the coming few months.

Fairtrade and Trustea Certification for Indcoserve factories have now been obtained. This would be a game changer as these reputed certifications would now help charge a premium on teas and would also help export teas to most EU and American markets.

Consequent to the efforts put in by Supriya and her wonderful team, sales turnover has increased by 180% from Rs. 136.00 crores in 2019-20 to Rs.240.00 crores in 2020-21. Farmers’ income has increased by 160% from Rs. 12 per kg of green tea leaf during 2019-20 to Rs. 19 per kg during 2020-21. Average selling price of bulk teas has gone up from Rs. 66 to Rs. 103

The lady officer from Doordarshan, Supriya Sahu had the “door drishti” (vision) and she could make-it-happen despite very challenging set of circumstances. She could do it on account of her vision, meticulous planning, passionate execution and by taking all the stakeholders into confidence.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

Stop squabbling, save people’s lives

Fear and anxiety rule the roost but fighting the pandemic with courage is the only option.

Vijay Darda

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In the turbulent times of Covid-19, there is an acute shortage of everything. There are no beds, no oxygen, no ventilators, no medicines for treating the ever surging number of Covid-19 patients. Such a scary situation doesn’t warrant the luxury of indulging in political squabbling. There should be no blame game. The time is crucial for saving human lives. And saving lives is also in our hands to a great extent. If you are using a single mask, start using a double mask and if you have not used it, put it on immediately. Follow the guidelines. Help the government. Cooperate with the government because the government is doing what it can, but it cannot do more than this. Today every person needs to become a ‘chowkidar’.

Of course, the blame game that is going on is not in anyone’s interests. States are blaming the Centre and the Centre is blaming the states. This blame game must get over fast. We all are Indians. All of us are children of Mother India. Neither BJP nor Congress and not any other party for that matter can be greater than the nation. Everything belongs to Mother India. This is not the time to practise discrimination.

None of us had ever imagined such a difficult and sordid time in our dreams. We were told that when the epidemic like Spanish influenza and plague had spread, several villages were wiped out in many parts of the world. And today, we are seeing loved ones struggling for life. My Lokmat family is very large. Everyday news comes from my HR department that Mr so-and-so is gone or Mr XYZ is gone. This is happening every day. Similar news is coming from every part of the country. If biggies in top positions are not able to get beds, imagine the condition of the common man? The rich and powerful who have oodles of money have left the country for treatment abroad. Many have taken shelter in Maldives and Dubai. Some people have gone to the hill stations but then this kind of system is suited for a handful of super rich people. They don’t represent the bigger picture of the country. The common man who is the soul of the country is struggling with horrific tragedy.

It is good that Prime Minister Narendra Modi appealed to the seers and finally the Kumbh Mela concluded. Actually, this mega event should not have been allowed in the first place. Better late than never! It is estimated that about 49 lakh devotees have taken a dip in Kumbh. Thousands of devotees along with hundreds of sadhus also got infected with coronavirus. Two prominent saints lost their lives too. Now imagine if thousands of people reach different parts of the country by becoming carriers, how many will be infected? After all, it affects the administration. People who work in administration are also human beings. That is why I am saying that we should cooperate with the government. It is necessary to follow all the protocols of Covid with complete restraint and discipline, otherwise the situation will get worse. Just remember how a hue and cry was raised about the Tablighi Jamaat in the beginning of the coronavirus pandemic! Remember that small sparks cause deep wounds. It is our responsibility to keep this country intact. Massive political rallies are being organised in many states where elections are going on and the Election Commission should ban them immediately. If the Election Commission is not able to prevent these rallies, the Supreme Court should take cognisance and stop them. These rallies and gatherings are just corona bombs!

As of now, the government is leaving no stone unturned to stop the spread of corona infection. There is a steady increase in the number of beds for corona patients in the country, but the question is, from where to bring doctors, nurses and paramedical staff? Certainly, lakhs of families have lost someone or the other. Hence it is but natural that people should get annoyed with the system, but we have to understand that this is not the time to fight with the doctors. It is time to boost their morale. The kind of spirit that doctors, nurses and paramedical staff have shown in the turbulent and uncertain times is commendable indeed. Doctors cannot be held responsible if there is a shortage of beds or lack of oxygen. What is the fault of the doctors? Do not forget that they are humans too.

Let me remind you that the first wave of coronavirus was fiercely confronted by India through lockdown and earlier in the year it seemed that we were winning. This bred complacency and subsequent negligence made the people to start organising weddings and celebrations which provided a fertile ground for coronavirus to flourish. It turned the tables! Taking a lesson from the first wave, the government also had to make arrangements like the US or Europe did, but we displayed utmost negligence. Today we are suffering its adverse effects. Even now, if possible, we can prevent future losses. Our ancestors had seen a worse time but they managed to get out of it. The cholera epidemic that began in Bengal in 1816, along with lakhs of Indians, also swallowed 10,000 British soldiers. Nearly 1.70 crore Indians were killed in the Spanish flu that spread in 1918.

At that time, the population of India was less than 32 crore. Science was not so advanced at that time, so deaths occurred more and it took a long time to get a vaccine. This time, many vaccines have become available in less than a year to fight the coronavirus. But don’t expect the coronavirus to end with just the vaccine! It will still take a long time for everyone in the country to get the vaccine. Even after taking both doses of the vaccine, it is not clear whether the vaccine will have to be taken every year or every six month. Therefore, avoiding corona is the best option.

We are witnessing how people are stressed, fearful and worried. Covid-19 scare is taking an emotional toll too. The resurgence of the virus has caused public anxiety. But this does not mean that we lose courage. Bear in mind that we can defeat this deadly virus only with the weapons of restraint, discipline, courage and alertness!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

On one hand, the patients are running from pillar to post in search of medicines and hospitals with beds, oxygen and ventilators, and on the other, a disgusting round of accusations and counter accusations continues. The squabbling and blame game should end now! And yes, you too should follow the Covid-appropriate guidelines and support the government efforts. For, the government is doing everything it can, but don’t expect it to give you more than what it is dispensing now.

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Policy & Politics

NO COUNTRY FOR WOMEN: WHY BEING A WOMAN IS NOT AN EASY TASK IN INDIA

Anushka

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A decade since the gang-rape and murder of a student on a bus shocked India, state spending to combat violence against women and girls is just not adequate. A fund named after the 23-year-old woman who was raped and killed in 2012 is low on resources and under-utilised, found the “Towards Violence Free Lives For Women” report, noting that a rape takes place every 15 minutes in the country of 1.3 billion. During the coronavirus pandemic, Indian women have suffered increased violence, job losses and taken on more unpaid carework. Many women, who have been forced to stay at home due to lockdown measures, have been cut off from support services and have suffered at the hands of abusive partners. Indian government set up the Nirbhaya Fund to “enhance the safety and security of women” after the bus gang rape spotlighted India’s appalling record on gender-based crimes, but gender justice has still not been met. Shakti Mills rape case I’d like to put more light on, On 22 August 2013, less than a year after the furore that followed the gang rape in Delhi, and after the Verma Committee report led to a change in the rape law, a twenty-two-year-old photojournalist and her colleague were accosted by a group of men when they went to take pictures of an abandoned textile mill in Central Mumbai, a stone’s throw away from a busy railway station. The woman was gang-raped while her colleague was beaten up. Luckily for her, even though traumatized—the rapists filmed the act—she had her wits about her. After the rapists walked with her and her colleague to the nearby Mahalakshmi railway station, where they issued dire threats that if they were to report the incident to the police, the videos of the rape would be released on social media, the woman decided to go immediately to the nearest hospital to get a medical examination. Changes in the law after 2013 established that any hospital, private or public, would have to attend to a rape survivor, report to the police and conduct a medical examination. Earlier, only public hospitals could do this. The fact that she was a journalist, that her seniors came immediately to her aid as did other journalists, helped ensure that the police did not delay in moving on the case. The issue that I’m very much concerned about here is that we have been time and again ensured that government and other administrative organs are taking full responsibility for the safety of the women of this country? But where is this safe environment we are talking about, practically is it even existing?

These incidents that I have further talked about will it make it explicitly clear as to why I believe there’s no safety that can be assured to a woman in India and it is absolutely not easy to be a woman in our country anymore. The recent news that has made all of us go cold has taken place in the National Capital itself, 26-year-old woman was stabbed to death by her husband, 40, at a crowded market place in Delhi’s Rohini area on Saturday (April 10) on the suspicion of her having an affair with another person. The man also threatened people as some passers by tried to intervene in the matter and save the woman. The woman was seen lying on a road’s side in a pool of blood. Her husband tried to escape from the spot with the blood stained knife in his hand, but was chased by police. This man had the audacity to stab her 25 times with a knife that too in broad daylight and the more unfortunate and darker side of it is although people were witnessing the incident, nobody came forward to help the woman rather people have been seen recording the entire incident, this brings us to a very simple question, “Is humanity absolutely dead in our country? Is there any mercy left for the girls and women of this country?”. Talking about the awareness amongst the citizens of our country to take a stand in support for the victim, the condition is very pathetic. Where even the media which is eventually called the fourth pillar of democracy is showing no mercy on the victim, what can we expect from the normal public. With reference to this I’d like to mention about a case where worse still, a reporter from some newspaper climbed sixteen floors of a private hospital, where the woman was being treated, to try and get into her room to interview her. She was stopped by the police guarding the floor. What was the necessity of this kind of intrusion into the survivor’s privacy? This has been the tragedy of the Indian media in the twenty-first century. It fails repeatedly to be sensitive to the problems that rape survivors face after they have been sexually assaulted and brutalized. The story of what happens after a rape exposes the fault lines in the implementation of laws and in the working of our criminal justice system. In the Shakti Mills case, the survivor was an informed young woman who also had some support. And yet, what she faced in the process was traumatic. Multiply this account thousands of times over, and you get a sense of the horror that poor and marginalized women go through.

Talking about the very recent case in Jharkhand, The Steel City of Jamshedpur was shook by the recent incident that took place in the area called Kadma where a man killed his wife, his two daughters and their tuition teacher who happens to be a female. From the initial probe it was found that all four were killed with an iron dumbbell. The children we just 11 and 15 years, What could be the reason behind this gruesome brutality? If a woman is not even safe in her own house, where is she expected to go? What is she expected to do if the predator turns out to be someone so close to her, the husband itself? Just as levels of violence against women have risen, lockdowns and other movement restrictions have made it more difficult for survivors to report abuse and seek help.

Talking about the rape culture in India, women are being treated as objects, being beaten up, killed on the roads, being raped, gang raped and what not. To go back to one of the events that happened last year, On September 14, 2020 a 19-year-old Dalit (formerly “Untouchable”) woman was tortured and allegedly gang raped by four upper caste men in Hathras district in the north Indian state of Uttar Pradesh. Her body was severely brutalized; her tongue was torn, limbs fractured, and spinal cord damaged. The woman succumbed to her injuries in a hospital in New Delhi a fortnight later. As shocking as the bestiality of the rapists is the abject failure or rather, the reluctance of the Uttar Pradesh police to follow due process. Apparently, police accused the woman of lying, refused to register a rape complaint, and delayed taking the victim to a hospital for treatment. A police official even claimed that no rape took place as semen was not found on the victim’s body. Apparently in a bid to destroy evidence, the victim’s body was swiftly cremated in the dead of the night by the police. Family members were neither allowed to see her body nor to be present at the cremation. Sexual violence against women is pervasive in India. These figures are likely to be just the tip of the iceberg. Only a fraction of women who are raped file a complaint. Most victims prefer to remain silent because of the social stigma attached to rape. It is not uncommon for the victim to be blamed or for aspersions to be cast on her character. A single mother who was gang-raped in Kolkata in 2012 was stigmatized as a sex worker. On December 16, 2012 a woman was gang-raped in a moving bus in Delhi. The rapists penetrated her with an iron rod, rupturing her intestines. The gruesome violence she was subjected to did not stop people from asking why she was out at night with her boyfriend. Did she invite the sexual assault? Why are questions always posed on the woman or the girl as to what was she wearing when she was raped, what caste is she, with whom was she at that time, why was she out so late at night and what not. Also silencing of victims or witnesses is not uncommon should a victim or her family dare to pursue justice through the courts. A woman who was raped at Unnao in 2018 was burned alive by five men, including her rapists, a year later as she made her way to a court hearing.

Women aren’t safe in India. Pick up a newspaper or randomly switch to any news channel on your television set, there is a good chance you’ll come across yet another case of sexual harassment of a woman, a minor or even an infant. In such times, you expect the people in power to take crucial steps towards women safety or at the least be sensitive while speaking about the horrifying cases that surface every day. Instead, they end up justifying the sexual harassment with their bizarre and clueless explanations while some simply choose to blame the victim. The kind of remarks these so called politicians make on the victim are even more shameful, Days after the victim of the Hathras gang rape passed away, Surendra Singh, a legislator of the ruling Bharatiya Janata Party in the Uttar Pradesh state assembly, said that “such incidents [like rape] can be stopped only with sanskar” adding that “it’s the duty of all mothers and fathers to imbibe good values in their daughters and bring them up in cultured environments.” This isn’t the first time a politician has made a foot-in-the-mouth statement. Sexist, misogynist, and insensitive statements go hand in hand with some politicians in our country. It is this mindset that needs to go, Putting the onus on women to prevent sexual violence is not just absurd but dangerous.

“Will you marry her?” asked the Chief Justice of India to a man who is accused of repeatedly raping a minor. The accused stalked the victim on her way to school, gagged and tied her whilst he raped her, threatened to throw acid on her face if she spoke up and continued to rape her several times thereafter. The facts only came to light when she tried to commit suicide and her mother stopped her. She and her mother tried to file a police complaint, but the mother of the accused stopped them promising her son would marry her when she turned 18. It is shocking that the Chief Justice would think it appropriate to offer marriage as a solution to the horrific criminal behaviour without even considering the rights of the girl. However, this is symptomatic of a deeper malaise in the system when men in power continue to impose suffocating rules and policies, pronounce misogynistic and sexist statements, totally ignoring the rights of women, treating them as objects. The idea that one needs to marry one’s rapist as though that justifies the act and is the right solution is atrocious. The idea that one needs to register oneself at the police station so that one’s movements can be tracked for one’s safety is equivalent to being voluntarily surveilled and there is no backing down from there on. In a way, we are being asked to give up our rights with regards to freedom of choice and movement in return for protection. What if we choose not to register ourselves or marry a rapist? Does it mean that the State has no responsibility to ensure our safety? Does it mean that we will be blamed should we get trolled, attacked, stalked, assaulted and raped? Curtailing a girl or woman’s freedom in any way, warning girls and women to not go out alone or to dress and behave in a culturally appropriate, male-mandated way cannot prevent sexual violence. Rather, we need to din into boys and men that aggression is not masculinity and being macho is not “cool.” It is only by tackling misogynistic mindsets among men and women and dismantling the patriarchal aspects of the sanskar that some people uphold that sexual violence can be tackled.

Changes in the law after 2013 established that any hospital, private or public, would have to attend to a rape survivor, report to the police, and conduct a medical examination. Earlier, only public hospitals were allowed to do this.

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ROHINGYA DEPORTATION & THE CITIZENSHIP AMENDMENT ACT: ‘ALIENS’ MUST ENTER INDIA LEGALLY

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At the beginning of the year gone by, and before the coronavirus scourge had engulfed the entire globe, our nation was within the grasp of a powerful and exacting movement against the amendments introduced by way of the Citizenship (Amendment) Act, 2019. Without delving into the details of the same, the opposition was principled around the fact that special citizenship provisions were made available specifically to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from the neighbouring Muslim-majority countries of Afghanistan, Bangladesh, and Pakistan to the explicit exclusion of those belonging to the Muslim community.

To the layman, the above amendment would seem an exercise in discrimination, inequality, arbitrariness and absurdity. However, as had been contended last year in an earlier written piece, the doctrinal approach centred around the ‘right to equality’ under Article 14 coupled with the ‘right to life and personal liberty’ under Article 21 of the Constitution of India would be of no avail to those who find themselves on the anvil of exclusion under the amendment of 2019. No doubt, the dual protection vide Articles 14 and 21 preserves the rights therein to citizens and non-citizens alike. However, a mere cursory glance through Part-III, i.e. the chapter on ‘fundamental rights’, would make it manifest that the Indian Constitution very clearly bestows certain additional rights and liberties unto its citizens to the explicit and unambiguous exclusion of aliens and/or those who’ve entered the sovereign territory of India in an illegal manner.

As had been argued earlier, only the Union Parliament is given powers to make laws unto ‘foreign jurisdiction’, ‘citizenship, naturalisation and aliens’, ‘extradition’ and ‘admission into and emigration and expulsion from India’. Irrespective of the guarantees of equal protection to citizens and non-citizens alike vide Articles 14 and 21, the same has to be tempered in consonance with Article 19 which is exclusively applicable to Indian citizens; incidentally the Supreme Court of India, per its recent order in Mohammad Salimullah and Anr. versus Union of India and Ors, tends to agree with the above proposition.

Succinctly put, the Apex Court has essentially laid out three crucial propositions; (1) India’s obligations and respect for international treaties/covenants/conventions ought not be in conflict with any contrarian position appearing under its municipal laws, i.e. laws enacted by the Indian legislature, (2) the rights emanating from Article 14 and 21 are undoubtedly available to all ‘persons’, i.e. non-citizens and citizens alike, and (3) rights ancillary and concomitant to Article 19, despite touching upon protections guaranteed under Articles 14 and 21, must be adjudged on the anvil of Article 19(1) read-with Article 19(2).

Therefore as the law stands concerning the troika of rights under Articles 14, 19 and 21, it emerges that ‘aliens must enter India legally’ if they wish to seek protection of rights at par with citizens under Article 19 and evidently thus the debility unto non-citizens renders any such requisitions vis-à-vis equality and equal protection untenable.

Hence, what flows thereof, and rightly so in the opinion of the authors, the Apex Court’s ruling provides more than a glimpse into the way the highest court of the land may end up dealing with the challenge to the amendment of 2019. Questions of morality and ethicality apart, the 2019 amendment is of little or no concern to Indian citizens for at the end of the day all who entered the sovereign territory of India prior to the cut-off date outlined therein are deemed to have done so illegally and without authority of law. Thus, for all such aliens, be they of any faith, there exists no guarantee whatsoever ‘to move freely throughout the territory of India’ or ‘to reside and settle in any part of the territory of India’.

Out of this group of illegals, and undoubtedly done so in an artificial manner, the amendment of 2019 bestows additional rights at par with citizens, upon a particular group of people who are not practising a particular faith; in that sense their continued presence inside the Indian territory (be it in any part thereof) is no longer deemed to be illegal and they enjoy the trinity of rights guaranteed vide Articles 14, 19 and 21 in its entirety.

Now consider the case of those who’ve been denied this special and artificial conferment, not only were they illegals at the time of entering Indian territory, they continue to remains so for not being covered under the amended umbrella. This would not only lead to an explicit denial of rights under Article 19, it also means that any argument resting on equal treatment/protection thereof shall surely fall through for illegals/non-citizens can never be placed on the same mantel as those who have specifically been included and recognised as part of the citizenry. Deportation, therefore, of illegals is not protected unless statutorily provided and protected in a specific and explicit manner. Inescapably, any remedy, if at all, against the 2019 amendment is a political one for the Apex Court is most unlikely to render it inoperable.

In conclusion, one must pay heed to the scheme of our Constitution and the deliberate manner in which the framers defined ‘Citizenship’ under Part-II beforehand venturing into laying out the ‘Fundamental Rights’ vide Part-III. A conjunctive reading of both parts would lead to the peerless conclusion that certain rights were very deliberately reserved for Indian citizens and concomitantly very deliberately denied to aliens. In fact, the conscious decision-making of the framers becomes apparent by way of the wordings of Article 11 (Part-II) which in a non-obstante manner gives power to Parliament ‘to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.’

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INDIA OPPOSES RICH WORLD’S EFFORTS TO HOARD COVID VACCINES; SEEKS SUPPORT FOR ITS PROPOSAL AT THE WTO ON ITS EFFORTS TO GET TRIPS WAIVER TO COVID VACCINES

Tarun Nangia

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India on Friday vehemently opposed ‘vaccine nationalism’ — or the attempts by some developed countries to hoard vaccines and not sharing them or the related Intellectual Property Rights (IPR) with a view to maximise profits from not just Covid-related vaccines, but also from therapeutics and diagnostics.

New Delhi also called for greater support to its proposal along with South Africa at the World Trade Organization (WTO) to waive the implementation, application and enforcement of certain Sections of the TRIPS Agreement (Agreement on Trade-Related Aspects of IPRs) ‘in relation to prevention, containment or treatment of Covid-19 until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity’.

Sanjay Bhattacharyya, India’s BRICS Sherpa and Secretary (Consular, Passport and Visa and Overseas Indian Affairs), Ministry of External Affairs, expressed serious concern over ‘vaccine nationalism’ and said India and South Africa have repeatedly asked WTO members, especially from the developed world, to agree to provide IPR waivers to ensure that the developing world was able to access the vaccines. Shri Bhattacharyya said India has helped the global community by delivering 64 million doses of vaccines to more than 80 countries, and has shown the willingness and capability to shoulder greater responsibility to not only be the ‘pharmacy of world’, but also be a reliable provider of medicines and healthcare worldwide. He was delivering the inaugural address at the two-day BRICS Civil Forum 2021 held in a virtual format and organised by the think-tank RIS. The official also called for reforms of multilateral bodies including the UN, IMF, World Bank and the WTO so that they can respond better to global challenges including pandemics, digital divide, climate change and terrorism.

In his keynote address, Shri P. Harish, India’s BRICS Sous Sherpa and Additional Secretary (ER), Ministry of External Affairs, said the multilateral bodies have not lived up to the expectations, adding that the edifice of the international system has been weakened and undermined. He said BRICS countries should work to strengthen the international governance architecture and enhance the capacity of WHO, IMF, World Bank and the WTO to make it more inclusive, representative and democratic by enhancing the participation of developing countries to effectively address various challenges confronting the world today.

Professor Sachin Chaturvedi, Director-General, RIS, said the priorities for BRICS during the year include ‘reformed multilateralism’, ‘technological and digital solutions for Sustainable Development Goals’, ‘enhancing people-to-people cooperation’ and ‘counter terrorism cooperation’. Dr. Mohan Kumar, Chairman, RIS, said there was a need to study how the BRICS countries have reacted to the COVID-19 pandemic including sharing best practices, adding that it would be useful to look at the strengths and weaknesses of BRICS countries in this regard to be better prepared for future global health crisis-like events. He said the BRICS bloc must also cooperate on finding common solutions to address the widening inequalities within the BRICS countries, especially following the pandemic outbreak.

Dr. Victoria Panova, Managing Director, Russian National Committee on BRICS Research and Vice President for International Relations, Far Eastern Federal University, Russia, presented the report of BRICS Civil Forum 2020, and mentioned about initiatives including BRICS vaccine research centre and a program to stimulate green investments.

Amb. Pavel Knyazev, Russia’s BRICS Sous-Sherpa, said the COVID-19 pandemic has provided opportunities for BRICS countries to not only consolidate their efforts so far but also to collaborate for a better future. Amb. Ben Joubert, South Africa’s BRICS Sous-Sherpa, said BRICS countries need to address the common challenges of poverty, inequality and unemployment, and push the development agenda in various international fora. Amb. Amar Sinha, Distinguished Fellow, RIS also spoke on the occasion.

BRICS has shown resolve through the creation of new financial mechanisms under the BRICS, viz. the New Development Bank and the Contingent Reserve Arrangement. Arguably, organisational and decision-making parameters in these institutions are more democratic than that of the Brettonwood institutions. Similarly, BRICS needs to lend stronger voice towards reviving the WTO and retaining its development centrality.

The event had sessions including on ‘reformed multilateralism’, ‘development finance and global public goods’ and ‘pandemic response, partnership and role of civil society’. India assumed the BRICS Chairship in 2021, at a time when BRICS is celebrating its 15th anniversary. Under the theme “BRICS@15: Intra-BRICS Cooperation”, India’s approach is focused on strengthening collaboration through “Continuity, Consolidation and Consensus”.

The ten themes for BRICS Civil Forum 2021 include reformed multilateralism; development finance and global public goods; pandemic response, partnership and role of Civil Society; quality of economic growth and inclusion; wellness, health and traditional systems of medicines; BRICS economies and women participation; future of education and skills — new paradigms of learning in BRICS; ‘entitlements to entrepreneurship — role of technology’; people’s participation in sustainability – BRICS Experience; and dialogue on society and peace building. RIS is planning to organise a series of events on thematic dialogues, starting with the Curtain Raiser on 16-17 April 2021 and ending with the final event in July 2021.

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Freedom fighter’s widowed/divorced daughter having no income entitled to his pension; blanket exclusion violates Article 14: Calcutta High Court

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In a great respite for widowed/divorced daughter having no income, the Calcutta High Court on 7 April, 2021 in a latest, learned, laudable and landmark judgment titled Sonali Hatua Giri Vs Union Of India and others in WPA 13806 of 2019 (Via Video Conference) has declared Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs as being violative of Article 14 of the Constitution of India after observing that the “blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India which enshrines the guarantee of equality to all citizens”. It must be mentioned here that the observation came in a petition challenging the vires of Clause 5.2.5 of the Scheme providing for disbursement of pension to freedom fighters under Central Samman Pension Scheme. While observing that the object of the Scheme was to be formulated as “a token of honour by a grateful nation to the honourable freedom fighters and their dependents, the Calcutta High Court also made it explicitly clear that it was not necessary that the term “dependents” under the Scheme has to be necessarily be in consonance of other laws such as Succession Acts of various religious communities.

To start with, a Single Judge Bench comprising of Justice Sabyasachi Bhattacharya of the Calcutta High Court who has authored this brief, brilliant, bold and balanced judgment sets the ball rolling by first and foremost observing that, “The challenge presently under consideration is to the vires of Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks issued by the Ministry of Home Affairs, FFR division. The said Scheme is for disbursement of pension to freedom fighters under the Central Samman Pension Scheme. The guidelines-in-question provide the modalities of such disbursement.”

While elaborating on the facts of the case, it is then pointed out in the next para that, “The petitioner is the daughter of a deceased freedom fighter, who had been getting pension under the said Scheme for the Swatantrata Sainik Samman Pension till his demise on December 4, 2012. The petitioner was married but subsequently got a decree of divorce on March 19, 1999 and has since been residing at her paternal house along with her son and was dependent on her father since she had foregone her right of alimony from her husband.”

While continuing in a similar vein, the Bench then adds in the next para that, “The petitioner submits that after the demise of her father, her widowed mother also applied for grant of such pension in her favour. However, such representation was kept pending for an inordinately long time and ultimately the mother of the petitioner died on February 18, 2019 as well, leaving behind her son and daughter, that is, the writ petitioner.”

What is worse, the Bench then states in the next para that, “Subsequently, the petitioner also made a representation before respondent no. 5 requesting for disbursal of family pension in her favour as a dependent daughter. However, such request has not yet been considered till date.”

To put things in perspective, the Bench then states that, “At the outset, the challenge to the vires of Clause 5.2.5 is required to be considered, since the decision on the same will affect the outcome of the writ petition otherwise. The relevant provision in the Guidelines is found in Clause 5.2 thereof, which deals with transfer of pension to spouse(s)/daughter(s). Clause 5.2.3 stipulates that the spouse/daughter must fulfil the twin conditions of being “unmarried” and “having no independent source of income”.”

To be sure, the Bench then points out in the next para that, “Clause 5.2.5, on the other hand, stipulates that widowed/divorced daughter is not eligible for Samman pension.”

It must be added here that the Bench then notes that, “By placing reliance on an unreported Order dated July 29, 2016 passed by the Punjab and Haryana High Court in Letters Patent Appeal No.171 of 2015 (Khajani Devi Vs. Union of India and others), learned counsel submits that the benefit of the Scheme is admissible to a divorced daughter. A two Judge Bench of the Supreme Court, by an Order dated September 27, 2019 passed in SLP (C) No. 02353 of 2019 (Union of India and others Vs. Khajani Devi) was pleased not to interfere with the same on the view that the order adopts a progressive and socialist constructive approach.”

But the Bench then envisages in next para that, “However, the Himachal Pradesh High Court had taken a contrary view in an Order dated July 18, 2019 passed in CWP No.1504 of 2019 (Tulsi Devi Vs. Union of India and another). A three-Judge Bench of the Supreme Court, by an Order dated May 28, 2020 passed in an SLP arising out of Diary No.7497 of 2020 (Tulsi Devi Vs. Union of India and another) was pleased to issue a notice in the matter. Such issue is, thus, pending adjudication before the Supreme Court and it is argued that judicial decorum warrants that since the Supreme Court is in seisin of the mater, this Court should not take any view at this stage.”

Be it noted, the Bench then observes that, “As regards the contention of respondent no.1 that judicial decorum ought to constrain the hands of this Court due to pendency of a similar issue before the Supreme court, such contention is not acceptable, at least in the present case, since mere pendency of challenge in a different case cannot have any direct bearing on the adjudication at hand. That apart, in view of the implicit urgency involved, since the petitioner has no income to sustain herself and her minor son without any income, the matter pertains to her livelihood and cannot be stalled indefinitely for the adjudication of the matter pending before the Supreme Court.”

For the sake of clarity, the Bench then adds in the next para that, “Although the dismissal of a Special Leave Petition by the Supreme Court does not tantamount to affirmance of an order on merits, which would lend binding force to such order as the law of the land is declared by the Supreme Court, the Punjab and Haryana High Court had taken a clear view that divorced daughters are also entitled to benefit under the Scheme-in-question.”

Going further, the Bench then also adds in the next para that, “The view taken by the Himachal Pradesh High Court did not lay down any ratio on the vires of Clause 5.2.5 and/or decide the question which has fallen for consideration before this Court. In the said case, being Tulsi Devi (supra), the Himachal Pradesh High Court held that the “Swantrata Sainik Samman Yojana” has been launched as a mark of respect to the freedom fighters whereas in the case of armed force personnel or the Central/State Government pensionaries/employees, the pension is not a ‘bounty’, but a property. Thus, a line of distinction was drawn between such pensions and the pension payable to freedom fighters and their heirs.”

On a humble note, the Bench then moves on to then observe that, “With utmost respect, even without going into the question of parity with other pension schemes, the view of the Punjab and Haryana High Court is more applicable in the present case. In the said judgment, it was held that it would be a travesty to exclude a divorced daughter when an unmarried daughter finds mention in the list of eligible dependents. It was further held that there would be no rationality to the reason for such distinction, particularly when the divorced daughter is the sole eligible dependent and qualifies for the benefit. It was held that a beneficial scheme such as the one in hand should not be construed on a strict interpretation, which tends to disapprove the claims of the benefit, to result in virtual frustration or negation of the laudable motive of the scheme itself.”

Adding more to it, the Bench then also observes that, “In my view, the ratio laid down by the Punjab and Haryana High Court in Khajani Devi (supra) is also applicable in the present context and appeals to the judicial conscience on a higher footing than the Himachal Pradesh report.”

In hindsight, the Bench then while candidly applying the Constitutional principles adds that, “A combined reading of Article 14 of the Constitution of India, which is a fundamental right of equality before the law, and Article 39(a), ensures that the State is to direct its policy towards securing such end. Clause (d) of Article 39 also ensures that there is equal pay for equal work for both men and women. Although Article 39 is a Directive Principle of State Policy, not directly enforceable in law, the fundamental rights of the citizens of India ought to be considered in the context of the directive principles to lend teeth to the intentions of the framers of the Constitution of India.”

As a corollary, the Bench then ostensibly goes on to set the record straight by observing that, “In view of Clause 5.2.3 having conferred eligibility on spouses/daughters who are unmarried and have no independent source of income, Clause 5.2.5 of the guidelines is ex facie irrational, since it excludes widowed/divorced daughters from the eligibility.”

What’s more, the Bench then concedes that, “The scheme was formulated as “a token of honour by a grateful nation to the honorable freedom fighters and their dependents” as per its own language.”

Without mincing any words, the Bench then waxes eloquent to hold that, “It is not necessary that the term ‘dependents’ as used in the scheme has to be in consonance with Succession Acts of various religious communities. However, even if we take into consideration the acts in question, no line of distinction has been drawn between divorced and unmarried daughters. For example, if we read Sections 8 and 9, in conjunction with the Class I of the Schedule to the Hindu Succession Act, 1956, it will be evident that the Class I heirs include not only the widow but also the daughter of the deceased. Hence, no line of distinction has been drawn between “unmarried’ and “divorced” daughters. A criterion which defies logic cannot be “intelligible” in the true sense of the term.”

Not stopping here, the Bench then further holds that, “A bare perusal of Clause 5.2.3 of the guidelines in-question indicates that there is already a safeguard against abuse of the provisions of the scheme by including the yardstick, “having no independent source of income” as a condition of eligibility. Such qualification circumscribes the eligibility of unmarried daughters. Since, as per the arguments of the respondent no.1, an analogy has been sought to be drawn with the respective Matrimonial Laws of different communities, we ought to look into the efficacy of such remedies on the touchstone of efficacy.

Truly speaking, the Bench then concedes graciously that, “All the recourses and legal remedies open to divorced and widowed daughters require long-drawn litigation and mere rights available in the statute books. In order to get the fruit of such litigation, a widowed/divorced daughter has to wait till the end of litigation. The amount actually granted to such daughter by the court of law also acquires relevance vis-à-vis her subsistence requirements. Legal provisions cannot meet the pangs of hunger and/or urgent necessity of sustenance of human beings. As stipulated in case of unmarried daughters, widowed/divorced daughters also qualify as unmarried but have been excluded from the pension scheme. In the event Clause 5.2.5 was not there, the expression ‘unmarried’ could very well include within its purview widowed/divorced daughters of the pension holders as well, since their marital status would also be on an equal footing with unmarried daughters. The mere possibility of a legal remedy, or an order of court granting meager amount as maintenance is not adequate to meet the necessities of widowed/divorced daughters but they may also be dependents of their father, being the freedom fighter, in the event they do not/cannot opt for taking recourse to legal remedies and do not have income sufficient to maintain themselves.”

In the same vein, the Bench then also makes it clear that, “Since the rider, “having no independent source of income” already qualifies unmarried daughters in Clause 5.2.3 of the guidelines, such test acts as a sufficient safeguard to prevent abuse of the pension scheme by widowed/divorced daughters of the freedom fighter who otherwise have an independent source of income, be it from alimony/maintenance or from some other source. On the other hand, it may very well be that a spinster daughter of the freedom fighter has an independent income of her own, even if she does not have legal remedy as available to the widowed/divorced daughters from their matrimonial family.”

Quite remarkably, the Bench then holds that, “Since the aforesaid safeguard is already existing, the blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens. In the present case, the classification is worse than gender bias, since unmarried daughters have been included within the scheme but widowed/divorced daughters who stand on the same footing, having no independent source of income, have been excluded.”

Of course, the Bench then rightly states that, “Even going by the Succession Acts, daughters, irrespective of qualification, are entitled to the property of the deceased as heirs.”

Frankly speaking, the Bench then candidly concedes that, “Hence, the mere existence of a right in a statute book to get maintenance from the matrimonial family is not at all sufficient to meet the financial requirements of those widowed/divorced daughters who do not have any income.”

While setting the record straight, the Bench then adds that, “Having or not having income is undoubtedly an intelligible differential, which can easily be incorporated if widowed/divorced daughters are also brought within the purview of ‘unmarried’ daughters. Thus, as in the event an unmarried daughter who has no income is ineligible for the pension, widowed/divorced daughters stand on a similar footing as daughters of the deceased and shall not be eligible anyway if they have any independent source of income, which can very well be alimony or maintenance as well.”

In the same vein, the Bench then further adds that, “However, as far as daughters having no independent source of income are concerned, widowed/divorced daughters stand on an equal footing with a spinster daughter as heirs of the deceased freedom fighter. The marital status of all of them is “unmarried”. Thus, the criterion of exclusion of widowed/divorced daughters, as sought to be projected by respondent no.1, is untenable in the eye of law. As such, Clause 5.2.5 is patently violative of Article 14 of the Constitution of India, which ensures equality among people standing on the same footing, in the absence of reasonable classification or intelligible differentia.”

In light of what is stated above, the Bench then holds that, “In view of the above discussions, the preliminary point is decided by declaring Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions to be followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs, FFR Division vide Memo No.45/03/2014 – FF(P) ultra vires, being violative of Article 14 of the Constitution of India.

On a final note, the Bench then lays down that, “The expression “unmarried” as used in Clause 5.2.3 of the said Guidelines shall also include widowed/divorced daughters as eligible for the Sainik Samman Scheme-in-question, provided they satisfy the other test of having no independent source of income. Further orders on the merits of the writ petition shall be passed on the next returnable date.”

To conclude, the Single Judge Bench of Justice Sabyasachi Bhattacharya of Calcutta High Court has most commendably, most courageously and most convincingly held that freedom fighter’s widowed/divorced daughters having no income are entitled to his pension and their blanket exclusion violates Article 14 of the Constitution. Justice Sabyasachi while citing the relevant rules as also relevant case laws has forwarded convincing reasons for holding freedom fighter’s widows and divorced daughters having no income to be entitled to their husband and fathers pension as discussed above and so there is no reason as to why they be placed in blanket exclusion. Thus we see that the dice rolled in their favour ultimately as the judgment was pronounced most markedly by the Calcutta High Court as discussed above!

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