The Surrogacy (Regulation) Bill, 2016: An Analysis

Pooja Kurian ((Student of Law, Alliance School of Law)).

Abstract

The Surrogacy (Regulation) Bill, 2016 is an attempt of the government to regulate the process of surrogacy in India. This bill contains several impactful measures which have been awaited for, since a considerable number of years. Though this bill intends to bring positive changes, it has not failed to become a quarry to the socio-legal hindrances prevalent in the society and thus facilitate them. This article aims to analyse the several aspects of this newly passed bill, in detail.

“For Robert Brown, all love begins and ends with motherhood; by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer an indivisible instinct of a mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Law’s turn to appreciate the dichotomy of divine duty, the split motherhood.”

– Geetha v. The Kerala Livestock Development Board ((2015 SCC OnLine Ker 71)).

INTRODUCTION

India has come forth to become the forerunner of international surrogacy and has become the most sought after destination for this purpose. Some consider it the billion-dollar industry of India while others question the morality of it. Despite the divided stand, commercial surrogacy has been legal in India since 2002 ((Available at http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71, last visited August 29, 2016)). Any surrogacy agreement between the parties, is based on free consent and meeting of minds in relation to a specific outcome and interpreted in consensus with the provisions of The Indian Contract Act, 1872. This act, exercises jurisdiction over all such agreements and contracts.But there never have been clear and codified laws in place regarding the practice of surrogacy.

The initial trigger for need of a legislation can be traced back to 2008 ((in the case of Baby Manji Yamada v. Union of India, [2008] 13 SCC 518)), where a Japanese couple had a baby girl through a surrogate mother in Anand, Gujarat. By the time of birth, the couple had separated and the baby was parentless and left dwindling between the legal systems of India and Japan. Although, the Hon’ble High Court of Gujarat, granted custody of the baby born out of surrogacy, to her grandmother after a long drawn legal battle. However, the baby was denied Japanese citizenship as surrogacy is not legalized in that country.

Similarly in 2012, an Australian couple who had twins through surrogacy, denied taking one of them because that baby was born with Down Syndrome ((Nidhi Gupta, “What’s Wrong with the Surrogacy Bill”, available at http://www.thehindu.com/thread/politics-and-policy/article9090866.ece last visited on August 15, 2016))and the child was again left without parents. In 2014, a woman died due to a procedure for harvesting eggs from her body as a part of an egg donation drive by a private hospital in Delhi. These incidents highlight the fact that the rights of a surrogate mother and child born out of surrogacy are neglected. Many public interest litigations have been filed in the Supreme Court of India on this issue. The 228th Law Commission Report had also suggested banning commercial surrogacy and promoting altruistic surrogacy for the disadvantaged married Indian couples ((SoumyaSwaminathan, “Why the Surrogacy Bill is Necessary”, available at http://www.thehindu.com/opinion/op-ed/why-the-surrogacy-bill-is-necessary/article9040755.ece last visited on August 29, 2016)).

On 24th August, 2016, the proposed draft Surrogacy (Regulation) Bill,2016 was passed by the Union Cabinet, which is expected to be shortly introduced in the Parliament. If passed, the new legislation will apply to all of India, except Jammu and Kashmir. This was done so, because the government of the day, was of the opinion that, absence of a proper legislation, has ledto exploitation of surrogate mothers. Thus, the main objective of this bill is to prevent commercial surrogacy and also protect the rights of the surrogate mothers, prone to exploitation and unethical practices.

FEATURES OF THE BILL

The salient features of the Bill can be summarized as follows ((S.W. Staff, “All you Need to Know about the New Surrogacy Bill”, available at https://www.scoopwhoop.com/All-You-Need-To-Know-About-The-New-Surrogacy-Bill/#.06jtqqnel last visited on August 29, 2016)):

  • It bans commercial surrogacy and only altruistic surrogacy will be allowed. Commercial surrogacy, along with other offences will garner a jail term of at least 10 years and a fine of upto Rs.10 lakhs.
  • Altruistic surrogacy will be allowed for Indian nationals only. Foreign nationals and also NRI’s or OCI holders aren’t allowed.
  • Single parents, homosexual couples, live-in relationship couples will be denied altruistic surrogacy.
  • Parents with biological or adopted children cannot undergo it. But, couples with proved infertility will be allowed.
  • Only ‘close relatives’ can stand as candidates for surrogacy.
  • The couple cannot pay the surrogate mother in any mode except her medical bills.
  • There will be specific guidelines governing hospitals and clinics allowing surrogacy.
  • The parentage of the child born through surrogacy will be made legal and transparent.

The new draft bill permits only hetro-sexual couples who have been legally married for 5 years or more and have proven infertility to opt for surrogacy. It also stipulates that surrogate mother should be a close relative. She’s also supposed to be married and supposed to have a healthy child prior to becoming a surrogate mother. Thus, the draft bill approved by the cabinet seeks to provide checks as to who is an eligible candidate for surrogacy and also aims to restrict commercial surrogacy. The bill, also attempts to put a check on the prevalent exploitative, but thriving surrogacy industry.

ANALYSIS

However, these conditions are arbitrary and unfair as most of the women who indulge in surrogacy are either poor or illiterate and are forced into it by their families. The inferior status of women is deteriorating the cause. But, it cannot be undervalued, that there areseveral poverty-stricken women who choose surrogacy to battle this vicious large-scale social problem. Women rent their womb to earn money, to provide a better life for their children, unlike the life of poverty they have lived. They undergo emotional and physical stress of carrying a child in their womb for nine months, the pain of labour and finally are denied the joy of motherhood when they have to part with the child. Apart from the mental and physical trauma, the aspect of this bill which states that a woman who has been a surrogate mother once, cannot go through with it again, also exacerbates the situation for such women. Thus, for some needy women, commercial surrogacy, which had become a means of livelihood, has been snatched away with this proposed law.

The Preamble of Indian Constitution states that, India is a Sovereign, Socialist, Secular and Democratic Republic and secures Equality, Justice and Liberty for all. Article 14 of the Indian Constitution, guarantees equality before law and equal protection of law to all people. Equivalently, Article 21 of the Constitution of India, guarantees protection of life and personal liberty for all.

Thus, the restriction of allowing only married Indian couples to undergo surrogacy and denying other people the same right only on basis of nationality, marital status, sexual orientation and age does not seem to fulfill the test of equality, or of it being a reasonable classification ((Article 14 of the Indian Constitution)).

The Right to Life also includes the right of reproductive autonomy, which is inclusive of the right to procreation and parenthood. The state does not have the authority to interfere in this fundamental right. It is upon the person and not the state to decide the modes of parenthood, be it naturally or through surrogacy ((Article 21 of the Indian Constitution)). Thus, constitutionally, state cannot interfere and the bill is also violative of the right of productive autonomy as stated in the case of B.K. Parthasarathi vs Government of Andhra Pradesh ((2000 (1) ALD 199)).

The state cannot question a married couple’s decision on the mode of parenthood or the number of children they wish to have. Therefore, the rule of being unable to undergo surrogacy, if they already have a surrogate child or an adopted child is unconstitutional as well. Parenthood should be considered a privilege which should be made equal for all, irrespective of anything.

Furthermore, infertility should not be a compulsory pre-requisite to undergo surrogacy. Ours is a democratic state, which means that the people have an inevitable role in the law making process. The people must have an opportunity to voice their opinions instead of being discriminated against. And, this discrimination perceived to have creeped in knowingly or unknowingly, would have wider legal repercussions to it.

The most attractive side of commercial surrogacy, prior to the proposed Surrogacy (Regulation) Bill, 2016 was the financial aid that the surrogate women would receive. The draft bill envisages that a surrogate mother cannot be paid in any manner except the medical bills, which again negates the most fruitful aspect of commercial surrogacy and the very main reason poor women undergo it.

Another positive change that this proposed law aims to bring is, the clarity in legitimacy of the children born through surrogacy. Also, because of the several limitations imposed, it is likely that childless parents would go in for adoption.

It cannot be overlooked, that the clinics which assisted in commercial surrogacy earned more than the surrogate mothers. A positive and much needed law that the bill has come up with is that, there would be specific guidelines for such hospitals and a National Surrogacy Board chaired by the Health Minister and several State Surrogacy Boards would be established at the Central and State level respectively ((Available at http://ehealth.eletsonline.com last visited on August 29, 2016))to oversee and supervisethe enforcement of the rules.

Surrogacy has been prevalent in India since quite long and now when the need has arisen, the government cannot neglect going into the specifics and just eliminating commercial surrogacy altogether. Instead, the government needs to suitably regulate it thereby streamlining the process and avoid abuse.

The Juvenile Justice (Care and Protection) Act, 2015 allows the court to give a child in adoption to a foreign national, regardless of his/her marital status ((Available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=134513 last visited on August 29, 2016)). Thus, if in the facet of adoption, foreign nationals are included, the proposed law should incorporate foreign nationals in respect to surrogacy also. A country which permits inter-country adoptions should not restrict inter-country surrogacy either.

The government passed the bill to prevent commercial surrogacy. But, it has failed to look into the matter from the surrogate mother’s point of view. The government could have undertaken measures to interact with these economically under-privileged women, who undergo emotional and physical trauma and willingly opt for surrogacy only for the sustenance of their family, knowing the implications of the proposed law on such women, would have added a more humane perspective to it.

Invoking penal provisions has not served the purpose, but it has only encouraged illegal means.Likewise, even though commercial surrogacy would be penalized, it will only risk the flourishment of an illegal and parallel surrogacy industry.

CONCLUSION

Before the passing of this proposed law, it needs to be extensively scrutinized and an appropriate mechanism has to be come up to oust all the loopholes, and finally enact a democratic law governing surrogacy, which has been a wait for all, for the past ten years. An arbitrary and unjust law should not come into existence, rather the most righteous and well-suited legislation should be evolved and manifested, incorporating liberal sensibility.

Armed Forces Special Power Act and women safety

Maitri Tandon, Student of Law, Symbiosis Law School

ABSTARCT

This research paper concerns in itself the scenario of the northeastern and the northern states of our country, India after the inception of the Armed Forces Special Power Act. The researcher has penned down her own views on, what should be the ambit of area in which the Act should be imposing. Here, in this paper various cases are cited, issues are raised and the researchers analysis followed by a conclusion. The article demonstrates the condition of women in the states where Armed Forces Special Power Act is in power. As such this article should be of interest to a broad readership including those interested in Law, Human Rights, Women Empowerment, and Social Sciences. Views expressed in this article are of authors alone. It does not reflect the views of either publisher or the editors of the journal.

Introduction

Women, the gender that signifies courage, strength and at the same time is a figure for love, compassion and pliability has faced a lot of refinement, vehemence, bias, injustice and cold-heartedness since the inception of humankind. How ironical is it to have been worshiped and thrown ruthlessly on the roads at the same time? Experiencing both the behaviors together has helped women in empowering themselves and has made the government to consider their demands and rights first. The time of crisis has helped them the most.

Time of crisis can be empowering for women across the world, as they are pushed to brink of activism and sometimes, away from their traditional roles ((Gardem and Chalesworth, 2000, UN Security Council Resolution 1325 (2000).)). Nevertheless current research has established that conflict and militarism are more likely to create environments that repress and harm women disproportionately, compared to men ((Id.)).

This is the case particularly in ‘cold’ states of conflicts and authoritarianism. Opportunity for a change in the condition of women in these areas becomes difficult in the form of transitional political reform, rights as such women not only suffer sustained economic and social hardships and gendered violence, but also perpetual restriction on their ability to address these violation through the full exercise of their civil and political rights. Patterns of violence and repression become self-perpetuating, and the damage done to individual’s roots deep into the social fabric of the country ((Gardem and Chalesworth, 2000,UN Security Council Resolution 1325 (2000).)).

Unfortunately such is the situation in Indian ‘low intensity war’ states across North and East. These states, the seven sisters and Jammu and Kashmir are fully or partially governed by the Armed Forces Special Powers Act, 1958 (AFSPA). There have been situations when these states have suffered from draconian rule and militarization for more than 50 years in concurrence with other state and national security laws ((Jammu and Kashmir Public Safety Act 1978 and  National Security Act 1980)). Even though India is well open to the International Human Rights Treaties, author is of the opinion that, AFSPA breaches these guidelines by derogating the key human rights and also robbing the non-army personnel of the legal remedies/recourses for offences committed by the armed forces of the nation.

The Problem

  • Is the Armed Forces Special Power Act constitutional also;
  • Is it in weight with the humanity?

The Armed Forces (Special Power) Act

The unwarranted interference of the British colonies on the Indian Territory gradually led to the bloody Anglo-Manipuri conflict of 1891 with the Second World War the principle, The Naga Movement and also the failure of the new India to live up to the democratic principles treasured in its Constitution and in respecting the rights of the nationalities it had taken within its borders and several other reasons, marked the inception of the idea for this act ((Armed Forces Special Power Act: A study in National Security Tyranny)).

Eventually on 22 May 1958 after a brief discussion in the parliament that lasted merely for 3 hours The Armed Forces (Assam – Manipur) Special Power Act was passed. This act was further amended in 1990 when it broadened its ambit to Jammu and Kashmir. Armed forces (Special Power) Act gives blanket powers to the Army.

Legal Provisions Powers Bestowed over the Army

The section 1 to 3 of the Act covers the jurisdiction, the definition of ‘armed forces’ and also briefly defines  ‘disturbed’ and the power to declare area such as. While section 4 is comprehensively lays down the power given to the army: it allows any army personnel the sweeping power to arrest, without a warrant, “any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence” using any degree of force necessary, including lethal force, and to fire upon or use force “for the maintenance of public order” against persons who are contravening laws in the disturbed areas.

It prohibits “the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.” Searches of persons and premises can be made without a warrant, while goods “reasonably suspected to be stolen” can be confiscated and structures that could be in use by insurgents, destroyed.

According to Section 5, anyone arrested by the army must be handed to police, not within a specific time period, but “with least possible delay”. Finally, Section 6 ensures that army personnel are accountable only to internal regulation and punishment, stating: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

This immunity given to the army also extends to the mandate of the National Human Rights Commission (NHRC), which according to Section 19 of the Protection of Human Rights Act (PHRA), is not empowered to investigate apparent violations by the armed forces in areas governed by AFSPA ((It can only seek a report from or make recommendations to the central government, and require that it be informed of action taken on a case within three months [Armed Forces Special Power Act: A study in National Security tyranny].)).

Analysis

The constitutionality of the Armed Forces (Special Power) Act was questioned by the United Nations Human Rights Committee, when India presented its second periodic report to the UNHRC in 1991. India defended the Act by stating that this Act was a necessary measure to prevent the secession of the Northern Eastern states. The Attorney General said that a response to this agitation for secession in the North East had to be done on a “war footing”. He argued for the constitutionality of the act by quoting Article 355 of the Indian Constitution, which makes it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession ((Armed Forces Special Power Act: A study in National Security tyranny.)).

It may also be assumed that the Central government might argue for its constitutionality by testifying it with avery persuasive jurisprudential theory given by Sir Jeremy Bentham, the theory of utilitarianism, which states that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other, the chain of causes and effects, are fastened to their throne”. This theory can also be explained in simple words, law that provides greater good of greater number is the law of man is deemed to be blameless. Therefore by applying this theory the government may say that the Armed Forces (Special Powers) Act safeguards the mass of the country by sacrificing the rights of some. Thus, is deemed to be constitutional.

But the question that again arises is that is it legitimate/constitutional to let the armed personnel perform heinous crimes under the cover of the act, for they are guarding our nation and flexibly set aside the rights of women provided by the constitution?

Indian Law

There are many cases, which challenge the constitutionality of this act pending in the court of law, but in this paper we will be specifically dealing with women rights, therefore we will point out the laws which are breached by armed personnel under the blankets of AFSPA.

Violation of Art 14 – Right of Equality before Law

The Constitution of India with its Art 14 ensures equality before the law. People living within the territory of India are to be treated equally before the law, which means that the law applies to all, irrespective of the caste, wealth, position, the clan a person, comes from. AFSPA thoroughly violates this right as people who are residing in the areas declared as disturbed have been denied this right because of Section 6 of the Act, which prevents the citizens from filing a suit against any personnel for armed forces without prior sanction of Central Government. This unequally burdens and demotivates the class of people residing in the “disturbed areas’.

Violation of Art 21 – Right to life

The constitution of India guarantees the right to life to its citizens under Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law”, which is violated by Section 4 of the Act. The Armed Forces (Special Power) Act deprives the women of an effective penal remedy against forced sexual intercourse/rape performed by the guarding force of our nation; it violates their right to privacy and bodily integrity, aspect of the right to life and personal liberty under Article 21.

Violation of Sec. 375 of the Indian Penal Code

This Section of the Indian Penal Code defines Rape, “ a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six following description:-

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age.

Explanation– Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

  • Manipur- (a) In clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) In the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.

Rape being the heinous crime, which is colossally prevalent in our country and is even more aggressively boycotted unfortunately, tops the list of crimes committed by our soldiers. There are no provisions, which are successfully being undertaken by the government, due to non-cooperation by the Indian army. One of the examples would be when Justice Verma Commission said in unequivocal terms that security persons who rape women should be judged under the same act that applies to the civilians, which was opposed by the Army ((Walter Fernandes, AFSPA: Who Rules India?))also when the Jeena Commission appointed to inquire into the alleged rape and murder of 30 year old Manorama Devi of Imphal in Manipur suggested that the law should be repealed and the clauses that are required should be integrated with other All India laws the Government did not even publish the report.

The facts of the Manorama Devi case were, in the early hours of the morning, on July 11, 2004, 29-year-old Manorama was picked up from her house in Imphal and taken away by the Assam Rifles. Three hours later her body was found with eight bullet injuries in a field. The Assam Rifles says she wanted to relieve herself and while doing so attempted to escape. She was, therefore, shot and killed. To the public, however, it appeared incredible that a four-foot eleven inch girl, weighing 50 kgs., should escape from eight highly trained jawans in an open field with nobody around. Public unrest engulfed the whole state. Aman immolated himself. Women stripped naked outside the headquarters of the Assam Rifles inviting rape and executions. In the inquiry set up under the provisions of the Commission of Inquiry Act, Manorama’s brother testified that he saw a jawan pull up Manorama’s T-shirt and insert a kitchen knife into her underwear prior to arresting her. The former police surgeon and chief Medical Officer of the Manipur Health Service and another doctor deposed that she was killed at close rage while in a lying down position. She had bullet injuries in her vagina. Apart from the bullet wounds, there were other injuries caused by blunt object. The Central Forensic Science Laboratory reported semen stains on her petticoat. A resident of the area, who was in the field at that time, contradicted the Assam Rifles version saying that she saw jawans alight from the vehicle with a lifeless body of Manorama and placed her in the field and then she heard the sound of gunshots. Policeman deposed saying that they did not find spent cartridges in the area and there was not a drop of blood on the ground ((The Murder Of Manorama; The Human Rights Bimonthly)).

The brutality and the double face of the Army has also been seen in many cases and operations, like:

Operation Blue Bird (Oinam, Bishunpur District, Manipur)

This operation was launched by the Indian Army on the 11th of July 1987 at Oinam in Manipur, in which more than 30 naga villages were covered and included extensive and cruel violations of the Human Rights violations which included torture with extrajudicial killing in addition to sexual harassment, theft and loot.

Kunan Poshpora (Kupwara District, Jammu and Kashmir)

The Kunan Poshpora search operation was initiated by the Indian Army on 23rd February 1991 during which the Indian Army personnel raped nearly hundred women including pregnant women openly in front of the villagers and there was no clear inquiry, which was held to follow up the condition. Reportedly, a police officer was threatened many times to not to make the report public, which recorded.

Shopian Case (Shopian district, Jammu and Kashmir)

On 29th May 2009 two girls from Shopian district went missing on the way back from orchard. Their dead bodies were found the next morning. This was a case of gang rape based on the information given by the Forensic lab by the Army personnels who were camped nearby ((Available at http://www.countercurrents.org/nitesh171114.htm)).

The Armed Forces (Special Power) Act 1958 was enacted on experimental basis as a measure against “terrorist” groups in the North East for a period of six months. This experimental project which was enacted for Six months has now been enacted for over five decades and there has been no declination of the number of such groups in the North East they have just increased from two in to twenty in Manipur, Assam has not less than fifteen, Meghalaya has five of them and other States have more groups. How has the government allowed an act to stay even when the “experimental” measure has failed to achieve its major goal?

Conclusion

The main aim of writing this paper was to familiarize readers with the harsh reality regarding The Army. On the basis of the aforesaid information we arrive at the conclusion that, even though the Army is deployed for our protection and it is saving the Nation with its fullest strength. It is important for the government to keep a check or intervene in the functioning of the force where it is bestowed with unquestionable power through AFSPA.

When the country is fighting against the sexual assaults, which are prevalent in the Nation is it rational to have the force that is deployed for the protection and betterment of the country to take advantage of the immunity provided to them under the Act? No. Why is it that the culprits are exempted from the punishment?

The government should punish all the criminals in accordance to the principle of equity. No, offenders should be exempted from the punishment just because of the immunity bestowed on the institution he is working for. There is no reason why an offender should have a distinguished law. They should be dealt under the law of land and should be punished in the same way as “civil” criminals.

 

A Review of Biomedical Waste (Management and Handing) Rules, 1998

Dr. Sujata Pawar, ((Principal (Incharge), Ismailsaheb Mulla Law College, Satara, Maharashtra, India))B.Com, LL.M,NET,SET, PhD

ABSTRACT

The Government of India, has notified Biomedical Waste (Management and handing) Rules, 1998 under the Environment (Protection) Act, 1986  and is applicable to all persons who generate, collect, receive, store, transport, treat, dispose, or handle biomedical waste in any form. The World Health Organization estimated that around 20% of the total waste from health care activities are hazardous, i.e. toxic, radioactive or infectious, further as these wastes contain harmful microorganism it can infect patients, health care workers and the public in general. The Biomedical Waste (Management and handing) Rules, 1998 imposes a duty on occupier of an institution generating biomedical waste to take measures to prevent any adverse effect on human and the environment.  The Schedule I of the BioMedical Waste (Management and Handling) Rules, 1998 provides for different methods of treatment and disposal of biomedical waste. The biomedical waste shall be segregated at the point of generation into container or bags  and shall not be mixed with any other waste.  The biomedical waste shall be segregated in accordance with Schedule II and the container shall be labeled in accordance with Schedule III. A Common biomedical waste treatment facility (CBWTF) plays an important role in the collection and treatment of biomedical waste, thereby, reduce threats to human health and the environment which may be caused untreated biomedical waste.

Introduction

The growth of hospitals and clinics are a good sign of access to health care facilities to the masses, however, this also increases the concern of collection and safe disposal of biomedical waste ((Rule 3 (5) of the Bio-Medical Waste (Management and Handling) Rules, 1998)). The Government of India notified Biomedical Waste (Management and handing) Rules, 1998 under the Environment (Protection) Act, 1986 ((In exercise of the powers conferred by Sections 6, 8 and 25 of the Environment (Protection) Act, 1986 (29 of 1986).))and is applicable to all persons who generate, collect, receive, store, transport, treat, dispose, or handle biomedical waste in any form ((Rule 1 , Application, of the Bio-Medical Waste (Management and Handling) Rules, 1998)). It is estimated that the hospitals in India, generates around 1 – 2 kg per bed per day of biomedical waste in a hospital and around 600 grams per day in a general practitioner’s clinic ((Indian Society of Hospital Waste Management, Frequently asked Questions Biomedical Waste Management, available at http://www.medwasteind.org/random.asp last accessed on May 15, 2015)).

Meaning of the term ‘Biomedical Waste’

The World Health Organization ((Available at  http://www.who.int/topics/medical_waste/en/ last accessed on May 15, 2015))defines biomedical waste as, “Waste generated by health care activities and includes blood, used needles, pharmaceuticals, radioactive materials etc.” The Biomedical waste is also known as infectious waste or medical waste ((Biomedical Waste Definition, available at http://www.ehow.com/about_5452204_biomedical-waste-definition.html last accessed on May 15, 2015))or health care waste ((Ibid at 5)). The Biomedical Waste (Management and Handing) Rules, 1998 defines it as,

Any waste, which is generated during the diagnosis, treatment or immunisation of human beings or animals or in research activities pertaining thereto or in the production or testing of biologicals, and including categories mentioned in Schedule I”

The Biomedical Waste (Management and Handing) Rules, 1998 gives a wider definition of biomedical waste, covers different sources generation of biomedical, and includes different types of biomedical waste. The Schedule 1 provides different waste categories like human anatomical waste, animal waste, microbiological and biotechnology waste, waste sharps, discarded medicine etc.

The definition adopted in Indian law, i.e The Biomedical Waste (Management and handing) Rules, 1998 is similar to that of the definition adopted in the United States in the Medical Waste Tracking Act of 1988 ((“Any solid waste that is generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals.” This definition includes, but is not limited to :blood-soaked bandages, culture dishes and other glassware,discarded surgical gloves, discarded surgical instruments, discarded needles used to give shots or draw blood (e.g., medical sharps), cultures, stocks, swabs used to inoculate cultures, removed body organs (e.g., tonsils, appendices, limbs), discarded lancets. Available at http://www.epa.gov/osw/nonhaz/industrial/medical/tracking.htm last accessed on May 15, 2015)).

Significance of biomedical waste management

Hospital waste management is a routine procedure of hospital administration as prescribed by law. Hospital waste, hospital acquired infection, transfusion transmitted diseases, rising incidence of Hepatitis B, HIV and other diseases, create potential threat of infection, contamination and serious health hazards to doctors, nurses, ward boys and other the health care workers, support staff, sanitation workers, rag pickers etc. who are regularly exposed to biomedical waste as an occupational hazard, as well as general public in the surrounding area ((Available at http://www.who.int/topics/medical_waste/en/ last accessed on May 15, 2015)).

Even though,  only 15%  to 20% of hospital wastes i.e. “Biomedical waste” generated from biological sources or is used in the diagnosis, prevention, or treatment of diseases, is infectious  and hazardous, but, if it is  not segregated at the source of generation,  and is mixed with other nonhazardous waste, then 100% waste becomes hazardous ((Hem Chandra, Hospital Waste An Environmental Hazard and Its Management, International Society of environmental Botanists, Vol. 5 No. 3 – July 1999)). Segregation is the essence of Biomedical, hazardous waste management and should be done strictly at the source of its generation only. Sometimes, even the sharps used in the health care establishments create risk of injuries leading to infection to all categories of hospital personnel, patients and waste handlers and public living in the vicinity of hospital.

The risk of contamination and infection is also associated with improper disposal of hazardous chemicals, drugs and “disposables” in the open, which may be picked up by rag pickers or other unscrupulous people, who may repack and sell them.

All biomedical waste generated in the health care establishments, poses great danger not only to human life, but also, to the environment. Air pollution due to emission of hazardous gases by incinerators such as Furan, Dioxin, Hydrochloric acid etc. and,  contaminating water with dispersing biomedical waste including  incineration emissions and ash in it leads to dangerous water and soil pollution as well. This has compelled the authorities to think seriously about proper disposal of biomedical waste, failing which, it   will lead to pollution, infection and will involve huge money, manpower and resources on treatment and rectification measures ((ibid)).

Biosafety ((Available at http://www.thefreedictionary.com/biosafety last accessed on May 15, 2015))is essentially an internationally accepted, preventive concept inclusive of all kinds of safety precautions to be undertaken. Biomedical waste management is a multidimensional and multidisciplinary area touching every field of medicine, scientific research, management techniques, law, and environment as well as social and political issues.

Magnitude of the Problem

The World Health Organization estimated that around 20% of the total waste from health care activities are hazardous, i.e. toxic, radioactive or infectious, further as these wastes contain harmful microorganism it can infect patients, health care workers and the public in general ((Waste from health-care activities, available at http://www.who.int/mediacentre/factsheets/fs253/en/ last accessed on May 15, 2015)).

According to Medindia ((Available at http://www.medindia.net/aboutus.asp last accessed on May 15, 2015))news ‘Over Half of Biomedical Waste is Disposed with Municipal Waste’ ((Available at http://www.medindia.net/news/over-half-of-bio-medical-waste-disposed-with-municipal-garbage-67655-1.htm last accessed on May 15, 2015)), India generates 4.2 lakh Kg of biomedical waste on a daily basis with only 157 facilities to treat the biomedical waste, there is a huge shortage of between biomedical waste generation capacity of the country and the capacity to treat and dispose it.

Duty of the Occupier

The Biomedical Waste (Management and Handing) Rules, 1998 imposes a duty on the occupier of an institution generating biomedical waste, to take measures to prevent any adverse effect on human and the environment ((Rule 4 of the Bio-Medical Waste (Management and Handling) Rules, 1998)). The occupier includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank and means a person who has control over that institution and or its premises ((Rule 3(8) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998)).

Treatment and disposal of biomedical waste

The Schedule I of the Biomedical Waste (Management and Handling) Rules, 1998 provides for different methods of treatment and disposal of biomedical waste. For instance, category no.1 provides for human anatomical waste, which shall be incinerated and deep buried. These methods of treatment and disposal shall comply with Schedule V. The Schedule V of the rules provides for standard of treatment and disposal of biomedical waste like standards for incineration, standards for autoclaving, standard for liquid waste etc. The occupier of an institution shall install biomedical treatment facility within the period provided under the Schedule ((Schedule VI of the Bio-Medical Waste (Management and Handling) Rules, 1998))and ensure that the biomedical waste is sent to the common waste treatment facility ((Bio-medical waste treatment facility means any facility wherein treatment. disposal of bio-medical waste or processes incidental to such treatment or disposal is carried out. Sec. 3(7) of the Bio-Medical Waste (Management and Handling) Rules, 1998)). The Biomedical Waste (Management and handing) Rules, 1998 under Schedule 1 provides different categories of biomedical waste. The categorization of biomedical is important for proper treatment and disposal ((Rule 5, treatment and disposal, of the Bio-Medical Waste (Management and Handling) Rules, 1998)). There are total ten categories of biomedical waste and as per their categorization, they treated and disposed.

[table id=9 /]

Segregation, packaging, transportation and storage

The guidelines emphasizes that, biomedical waste shall be segregated at the point of generation into container or bags ((Rule 6(2) of the Bio-Medical Waste (Management and Handling) Rules, 1998))and shall not be mixed with any other waste ((Rule 6(1) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998)). The biomedical waste is required to be segregated in accordance with Schedule II and the container must be labeled in accordance with Schedule III. The Schedule II provides color codes and types of container for disposal of biomedical waste. For instance, yellow color-coding is used for storage of waste categories ((category 1, category 2, category 3, category 6))in a plastic type container or bag. The Schedule III provides for the label, which shall have a non-washable and noticeably visible Biohazard and Cytotoxic symbols. If biomedical waste is transported outside the premises ((Rule 6(3) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998))where the waste is generated for the purpose of disposal, it shall also contain information, such as sender’s name and address, receiver’s name and address etc ((As per Schedule IV)). The untreated biomedical waste shall be transported only in a specially designed and approved vehicle ((Rule 6(4) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998))and shall not be stored beyond a period of 48 hours ((Rule 6(5) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998))without permission from approved authority and care should be taken that it does not adversely affect  human health and the environment ((Ibid)).

[table id=10 /]

Authority

The State Government ((Including Government of Union Territory))is empowered to appoint a prescribed authority for granting authorization and for the implementation of rules under the Biomedical Waste (Management and handing) Rules, 1998 ((Rule 7(1) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998)). The authority is empowered to make enquiry, which it may deem fit and grant permission, or renew authorization, cancel ((Rule 7(8) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998))or suspend authorization ((No authorization shall cancelled or suspended without giving a reasonable opportunity))to handle biomedical waste ((Rule 7(4) of the of the Bio-Medical Waste (Management and Handling) Rules, 1998)). The State Government shall establish a advisory committee consisting of experts from medical and health, animal husbandry and veterinary, environment management and other related department, to give advice to the Government in the matter of connected implementation of Biomedical rules.

Common biomedical waste treatment facility

A Common biomedical waste treatment facility (CBWTF) plays an important role in the collection and treatment of biomedical waste, thereby; reduce threats to human health and the environment, which may be caused due to untreated biomedical waste. The Central Pollution Control Board has issued guidelines for setting up Common biomedical waste treatment facility for treatment and disposal of biomedical waste ((February 26, 2014)). The guideline provides the requirement of land, covered area, treatment equipment, infrastructure setup etc ((Available at http://www.cpcb.nic.in/wast/bioimedicalwast/Rev_Draft_Gdlines_CBWTFs_26022014.pdf last accessed on May 15, 2015)).

The CBWTF concept is a viable concept for safe treatment of biomedical waste as it is professionally managed and significantly reduces cost of biomedical waste treatment ((Introduction, Guidelines for Common Bio-medical Waste Treatment Facilities, Februrary 26, 2014)), moreover, it can be set up only in compliance with environmental law ((‘Consent to Establishment’ under Rule 25 of the Water (Prevention and Control of Pollution) Act, 1974 and under Rule 21 of the Air (Prevention and Control of Pollution) Act, 1981,  authorization under Rule 8 of the BMW Rules, 1998,  ‘Environmental Clearance (EC)’ from the Ministry of Environment & Forests (MoEF) in compliance to the Honourable National Green Tribunals order dated 28.11.2013))in a prescribed area ((It shall be located in non residential area or shall be developed in industrial area or as a part of existing treatment storage and disposal facility)).

Conclusion

The waste generated by the health care establishment includes a wide range of waste materials like used needles and syringes, soiled dressings, body parts, diagnostic samples, blood, chemicals, pharmaceuticals, medical devices and radioactive materials etc. which is legally termed as biomedical waste. The greatest risk of biomedical waste is from the infectious and sharp components of the waste because the health care workers handling waste may contact with HIV or AIDS, Hepatitis B and C. These biomedical wastes pose tremendous risk to uninfected population if it comes in contact with it. Thus, it is essential that, the biomedical waste is properly handled, segregated and properly and safely disposed off ((Sujata Pawar, “Implementation Of The Biomedical Waste (Management And Handling) Rules 1998 by Hospitals In Satara City” Minor Research Project, UGC, 2015)).

The Government of India took a major step by enacting The Biomedical Waste (Management and Handling) Rules, 1998, under Section 6 and 25 of the Environmental Protection Act 1986, the rules deal with the generation/storage/handling/treatment and disposal of Biomedical Waste. India is among very few countries, which have comprehensive biomedical waste laws in practice.

The State Government plays an important role in the implementation of biomedical rules as, health is a subject matter under the State list ((Seventh Schedule, List – II, Constitution of India, Public health and sanitation; hospitals and dispensaries)), and similarly, the health care establishment too plays an important role, as they are generator of biomedical waste and are responsible in collecting, segregating, storing and disposing it.

The need for proper biomedical waste management has gained importance in recent years with the growth private health care sector in India and technology is playing a major role in bringing quality in healthcare, be it better nursing, better health care communication systems, patient monitoring devices, better diagnostic techniques or tele-medicine to provide a low cost diagnosis to remote patients etc.

Due to availability of experienced and renounced medical experts, substantially cheaper fees and expenses for medical services in comparison with foreign countries and strong network of private Health care institutions present in India, make it a favorite choice for medical tourism, for people from all over the world.  In this scenario, a separate and autonomous department of the Government with strict penal powers is the need of the hour to effectively deal with biomedical waste management in India.

THE TEXTILE UNDERTAKINGS (NATIONALISATION) LAWS

(AMENDMENT AND VALIDATION) BILL, 2014

Aastha Mehta, Student of Law, GNLU, Gandhinagar

Textile industry has been a priority sector since independence, on the lines of the agriculture, and was seen as a huge employment inducing sector also. However Indian Mills have suffered an economic setback, and therefore the revival of such units is on prime agenda of the Government. “The sector has immense employment potential and India had many “Manchesters” but neglect during the past years has resulted in the closure of these units ((‘Government promises turnaround of textile sector, Parliament passes Bill’ Available at http://www.arcil.co.in/data/news/ET_MUM_09_12_2014_02.pdf (accessed on 23rd December, 2014).)).” This bill was passed in Lok Sabha, and it was earlier promulgated as an Ordinance which by way of the Bill is repealed now. The bill amends two Acts

  • SICK TEXTILE UNDERTAKINGS (NATIONALISATION) ACT, 1974
  • TEXTILE UNDERTAKINGS (NATIONALISATION) ACT, 1995

The Bill’s purpose is “necessary for the proper and effective implementation of the revival scheme and to protect the public investments in the acquired textile undertakings to explicitly clarify the status of such vesting of the lease-hold rights in the Central Government ((Statement of Objects and Reasons, Text Available at http://www.prsindia.org/uploads/media/Textile/Textile%20Undertakings%20%28Nationalisation%29%20Laws%20%28Amendment%20And%20Validation%29%20Bill,%202014.pdf (23rd December 2014).)).”

  1. This bill adds a new sub section after Section 3(2) of Sick Textile Undertakings Act 1974. Section 3 of the 1974 Act, basically vests the sick undertakings within the control of Central Government, and thereafter the National textile Corporation (herein after referred as NTC), which means that the interests and the undertaking is firstly transferred to the Central Government, having primary control and thereafter to the NTC. The new bill further adds this “lease-hold rights of the sick textile undertakings shall continue to remain vested in the Central Government on payment of lease-hold rents”. Further this starts with a non-obstante clause which would mean that, nothing in original section 3(2) which vests all interest from the Government to NTC, the right over the land stays with the Central government. Further, the new provision seeks to take away the jurisdiction of any court to order divestment of any property from NTC, vested by Central Government. Similarly, the same provisions are added in the 1995 Act. This is basically done to avoid the problem which arose in one of the case, National Textile Corporation v. Nareshkumar Badrikumar Jagad (([2011] 12 SCC 695))wherein it was held by Division Bench of the Supreme Court explained the meaning of “vesting” after reading section 3 of the 1995 Act which is also sought to be amended here, and held as follows,

“Vesting’ means having obtained an absolute and indefeasible right. It refers to and is used for transfer or conveyance. `Vesting’ in the general sense, means vesting in possession. However, ‘Vesting’ does not necessarily and always means possession but includes vesting of interest as well. `Vesting’ may mean vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act. Word `Vest’ has different shades, taking color from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting, being limited, in title as well as duration.”

‘NTC had argued that they need not vacate the premises as lease hold rights were with the central government. The Maharashtra Rent Control Act, 1999, under which NTC was asked to vacate the land, exempts land leased by the central government ((Bill Summary, Textile Undertakings (Nationalisation) Laws (Amendment and Validation) Bill 2014 Available at http://www.prsindia.org/uploads/media/Textile/Bill%20Summary-Textiles%20Undertakings.pdf (23rd December 2014).)).’

In this NTC and Central Government were separated, and were given distinct identity, whereby it was the opinion of the Honorable Court that land stood vested in NTC and Central Government had no right. Herein NTC was asked to vacate the premises, and it was further said that NTC is neither a governmental department nor an agent of the Central Government. However after this bill, it could be said in one way that it seeks to over-ride the situation of NTC being disinvested of the mill premises by Court orders. Further the new provision which is sought to be added in the both the laws show that the dues of the rents have to be paid by the NTC on behalf of the Central government. Moreover, these provisions, state subject to subsection 3, which shows proposed section 3(4) is subject to the 3(3), therefore the court’s jurisdiction is not completely taken away as with regards to payment of dues and rents for the property, courts jurisdiction is left intact, it is only when the divestment of property is concerned, court’s jurisdiction is taken away.

  1. It further intends to add to section 4 of the 1974, and section 4 of the 1995 Act, which are also drafted on the same lines. It firstly ensures that even if in a textile unit the operations are not in continuance, there is a legal fiction, which is incorporated whereby even if the unit is not functioning, and is in the process of revival it is deemed to be a unit in continuation of operation. Secondly no prosecution can be instituted against the NTC, on the ground that any sick unit is not in operation however the next provision, states that this would not affect the right of NTC to prosecute or defend any action as a subsequent vestee of the lease-hold property. This gives one-sided right to the NTC, however it has a beneficial rational behind it as NTC would require to concentrate all its energies solely on the revival scheme of the units and not on litigation. It can also be a step, whereby the government is given a chance to revive the industries, and mills more effectively from people claiming to have a right in the land.
  2. New provision after section 40 of the 1974 Act and section 38 of the 1995 Act and it starts with “Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority”. The first addition intends to give retrospective effect to the Bill, which is shown clearly from the words “shall be deemed always to have effect for all purposes as if the provisions of this Act, as amended by the said Act, had been in force at all material times.” However it needs to be seen if in individual cases, if a right has already been accrued in regard to the matters presented in the Bill, and that is taken away by this Bill, than can a suit be brought against NTC, which is prohibited under this Bill. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation ((UOI V. Tushar Ranjan Mohanty 1994 SCC (5) 450)).

It further states that any property which was divested from NTC, after the Commencement of the Bill will be now be vested in NTC free from all encumbrances and new Bill will be applicable. This bill also tends to bar the enforcement of any decree of the court whereby divestment of lease hold property is ordered.

Conclusion

Over-all this legislation does not have many substantive provisions, but it also is clarifying piece of legislation, which seeks to ensure that the property for the purpose of the revival and profitability of these sick textile units is increased.

Merchant Shipping Bill 2013: Legislative Comment

Aastha Mehta, GNLU, Gandhinagar

India has always been known historically for the trade that it had with almost all the corners of the world which, meant that sea-trade, and merchant ships have not been a gift of the new scientific era in our country, but it has been part and parcel of our lives since many centuries. However with increase in the trade relations, modern equipments, more bigger and better ships have come up, which has had a caused an adverse effect on the sea environment, and marine life all throughout the world has been polluted, endangering many species under the water.

The present bill was introduced in Rajya Sabha in 2013, and has been passed by the Lok Sabha this month. The legislative enactment as it now stands, is going to be inserted after Part XI-A in the Merchant Shipping Act 1958, and is passed in the lines of International Convention for the Control of Harmful Anti-Fouling Systems on Ships, 2001, which is an initiative of International Marine Organization and India being a member of IMO, has enacted this domestic piece of legislation in view of the aspirations that have been sought by the countries. It aims at reducing the effects of the adverse anti-fouling systems paints which are applied on bottom of the ships, and these paints over the time, get dissolved in water and are proven to be dangerous for marine life. The bill defines the “anti fouling system” as a coating, paint, surface treatment, surface, or device that is used on a ship to control or prevent attachment of unwanted organisms. While enumerating on the history of these paints and the disadvantage they pose, the Parliamentary Standing Committee of Transport, Tourism and Culture has said the following, “Anti-fouling paints are used to coat the underwater area of ships to prevent sea life (such as algae and mollusks) attaching themselves to the hull, thereby slowing down the ship. This also leads to increase in weight and hence more fuel consumption. But, the harmful chemicals used in anti fouling paints get released in the water and damage the marine life ((197TH Report on Merchant Shipping Bill 2013, Available at http://www.prsindia.org/uploads/media/Merchant%20Shipping/SCR-Merchant%20shipping%20%28A%29%20bill.pdf)).”

This amendment applies to all ships (Section 356P), which has Indian flags and also those which enter the waters of India, or are within the Indian jurisdiction of Exclusive Economic Zones, Continental shelf, and those areas which are under the Marine Zones Act 1976, as well those ships which do not carry Indian flag but are under the authority of India. This does not apply to naval, auxiliary and non-commercial ships under the Government’s authority. However in view of the recommendations given by the Parliament Standing Committee, it has been a lacunae as to how many ships are outside the ambit of this Amendment, as the Ministry in one their meetings with the Committee, it came to knowledge that data about non-commercial ships is not available therefore there are still a quantifiable data left to be known which would affect the marine environment. In my view, the application of the Amendment is rightly made to exclude the naval and auxiliary and non-commercial ships, as these ships are different than those used in the trade trips around the world, and do not have much movement like there other counterparts. Even many other Conventions have given such exemptions to naval and auxiliary ships, which is not only highlighted in the Report.

Coming to the core elements which has been given in this Bill, are as follows:

Section 356S : Issuance of Certificate of Anti-fouling

Any Indian ship which is above 400 tonnage and is undertaking an International Voyage needs on-board an anti-fouling certificate is required, and for those which are under 400 tonnage, and are not undertaking an International Voyage, but which needs to be registered, also requires such a certificate. This has to be read with Section 356T whereby Indian Government and reciprocally the government of a foreign country who is a party to this Convention can issue the certificate to foreign ships and Indian ships respectively, if they fulfil the criteria of the anti-fouling system.

Section 356U : Control of waste materials

The waste which is produced after the removal of the anti-fouling system is to be collected, handled, treated and to be disposed in such a manner which environmentally sound, in order to protect human health. This is not only a beneficial legislation for marine species, but also for human beings, who are associated with the fishing industry. The reason being that once this paints are removed, the fishes which would be dying usually due to it, will stop, and the will result in increased fishing activities, and also the fact these are to be disposed off in a manner which is to be in accordance of the international rules and the Parliamentary Committee has also lauded this effort of the Parliament and has directed to frame rules under this provision for safe disposal of the remains.

Monitoring of these certificates and compliance

Section 356V provides that every ship needs to maintain a record of anti-fouling systems, and read with section 356W allows a surveyor or a person appointed by Director General, to check on-board valid certificate, the see the sampling of the anti-fouling system, to see whether the obligations, restrictions imposed are complied with and to verify the records of the system also. However with respect of this the Committee has shown certain reservations, which are rightly so, as the words “surveyor, or any person qualified by the Director General” are ambiguous and it was recommended to use the words “any person authorized by Director-General, Shipping as Surveyor”. In my opinion, the words which are recommended by the committee, though clear would not have not made any addition as the Surveyor would also be appointed by DG, and the other person could be anyone, providing a leeway to the DG to appoint an environmental expert, a retired naval officer etc. and the words as they stand in the Bill are not prone to misinterpretation. 356X is a provision which tell the DG on the report of the surveyor that the ship has contravened any provision, the DG can detain the ship until the contravention is removed, or can levy a penalty from the ship which is given under section 436.

 The following table shows the penalties given under Section 436;

[table id=7 /]

The Committee, is in support of these fines, as they are adequate and can act as a detriment, more so when seen in the terms of foreign currency. In my opinion these stringent penalties show a serious mission to save the marine life, and it requires to be seen how these are implemented, and how the contraventions are decreased.

Conclusion

The Bill is an effort on the part of Indian government, that the coastline of India is kept safe from the harmful effects of the anti-fouling systems. The Bill is very clearly drafted. It is helpful for the marine industry which not only thrives on sea trade but also on the various marine culture for tourism purpose, and for fishing purposes.

Juvenile Delinquency Laws in India and Emerging Issues

Saumyata Panwar, Student, B.B.A. L.L.B.(Hons.), Batch of 2012-2017, Gujarat National Law University

A Critical Analysis on the Juvenile Justice (Care and Protection of Children) Act, 2000

‘Juvenile delinquency’ has occupied an important place in the discussions regarding criminal law in the country. The Juvenile Justice (Care and Protection of Children) Act, 2000 in India was enacted to ensure protection of the rights of juveniles and lays down provisions to be adhered to while dealing with a juvenile in conflict with law. For this purpose, the Act provides for several bodies to be set up across the country. The paper attempts to analyse the degree of implementation of this legal framework post a decade since its enactment. After the ‘Delhi gang-rape’ case the issue with respect to penances prescribed under the Act is much-debated. While a maximum period of imprisonment is laid down, there has been no attempt to grade the offences as per their nature or gravity. In light of the present scenario, does the established age of criminal responsibility justify leniency in punishment to a juvenile offender compared to that for an adult for the same crime? The paper attempts to answer this question especially with reference to cases involving heinous crimes.

International Provisions

In 1989, world leaders decided that children needed a special convention exclusively for them because they often need special care and protection that adults do not. Further, the leaders also wanted to ensure that the countries recognize that children also have human rights. Thus the General Assembly of the United Nations adopted the Convention on the Rights of the Child (CRC).

The Convention prescribes a set of standards to be adhered to by all State-parties in securing the best interests of the child on the principles of non-discrimination and non-exploitation. It sets a standard in legal and social services. Also, it emphasises on social reintegration of child victims without resorting to judicial proceedings to the extent possible. The Government of India ratified the CRC in the year 1992 agreeing to hold itself accountable for its actions before the international community.

In November 1985, the General Assembly adopted the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) which aims to further the well-being of juveniles and their families. It states that a person is most susceptible to deviant behaviour when he is a juvenile. Hence, juveniles require extra attention so that they do not take up a path of crime and delinquency. They should be humanely dealt in conflict with the law ((U.N. General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Res. 40/33, Sess. 40, A/RES/40/33, 3, (29/11/1985) available at https://www.ncjrs.gov/pdffiles1/Digitization/145271NCJRS.pdf last seen on 27/05/2014)). Judicial offenders should, moreover be treated impartially irrespective of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status ((Ibid)).

Other resolutions dealing with this subject are: UN Rules for the Protection of Juveniles Deprived of their Liberty ((U.N. General Assembly, United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Res. 45/113, Sess. 45, A/RES/45/113 (14/12/1990) available at http://www.crin.org/docs/UN_JJ_standards.doc  last seen on 21/04/2014)), UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) ((U.N. General Assembly, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), Res. 45/112, Sess. 45, A/RES/45/112 (14/12/1990) available at http://www.crin.org/docs/resources/publications/HRBAP/IHCRC/UnitedNationsGuidelinesforthePreventionofJuvenileDelinquency.pdf last seen on 21/04/2014)), Guidelines for Action on Children in the Criminal Justice System- Economic and Social ((Economic Social Council, Guidelines for Action on Children in the Criminal Justice System- Economic and Social, Res. 1997/30, Sess. 18,  E/RES/1997/30 (21/7/1997) available at http://www.un.org/en/pseataskforce/docs/guidelines_on_justice_in_matters_involving_child_victims_and.pdf last seen at 15/05/2014)), Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime- Economic and Social ((Economic Social Council, Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime- Economic and Social, Res. 2005/20, Sess. 14,  E/RES/2005/30 (22/7/2005) available at http://www.un.org/en/pseataskforce/docs/guidelines_on_justice_in_matters_involving_child_victims_and.pdf last seen at 15/05/2014)).

Position in india

The Constitution of India through several provisions grants important rights to children of the country. It also lays down duties for the State to ensure that their needs are met and rights safeguarded.

While Article 15(3) provides for special provisions to be made for children by the State, Article 39(e) states that the State shall direct its policy toward ensuring that the tender age of children is not abused.  Moreover, opportunities and facilities are to be provided to children so that they may develop in a healthy manner, in conditions of dignity and freedom, and protected against exploitation, moral and material abandonment ((Art. 39(f), the Constitution of India)). Free and compulsory education is desired to be provided to all children up to the age of fourteen ((Art. 45, the Constitution of India)).

The comprehensive Integrated Child Protection Scheme (ICPS) introduced in 2009-2010 brings together multiple schemes of the Ministry of Women and Child Development under one umbrella. Several existing child programmes are consolidated with improved norms for protecting children and preventing harm.

The first legislation dealing with children in conflict with law in our country was the Apprentices Act, 1850 binding over children under the age of 15 years committing petty offences as apprentices. The Reformatory Schools Act, 1897 subsequently provided that children up to the age of 15 years may be sent to reformatory cell. Then the Juvenile Justice Act, 1986 was enacted to introduce a uniform system of juvenile justice mechanism in the country. Under this Act, Section 2(a) defined the term juvenile as a “boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years.”

This was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000. As per this Act, a “juvenile” or “child” means a person who has not completed eighteenth year of age ((Section 2(k), Juvenile Justice (Care and Protection of Children) Act, 2000)). The relevant date for determining the age of the juvenile would be one on which the offence has been committed and not when he is produced in court ((Pratap Singh v. State of Jharkhand and Anr., AIR 2005 SC 2731)). The purpose of this Act is to ensure the protection of children who require care, keeping in mind their developmental needs. The legislation adopts an approach which strives to take measures in the best interests of the child during adjudication and disposition of cases. It deals with both- children requiring care and juveniles in conflict with law.

Rights of juveniles in conflict with law

Juveniles in conflict with law are those juveniles who are alleged to have committed an offence ((Section 2(l), Juvenile Justice (Care and Protection of Children) Act, 2000)). The Juvenile Justice (Care and Protection of Children) Act, 2000 confers several rights on juveniles in conflict with law in order to protect them.

The media is prohibited from disclosing the name, picture, address, school or any other particulars which may lead to the identification of the juvenile. However, if such disclosure is in interest of the juvenile, the authority holding the inquiry may permit so for genuine reasons ((Section 21, Juvenile Justice (Care and Protection of Children) Act, 2000)). This is in consonance with the right to fair and just trial of the child. Section 51 states that the report of the probation officer or social worker considered by the competent authority is to be treated as confidential and not to be disclosed to anyone except parents/ guardians that too when justice requires. His identity, privacy and innocence are to be respected at all costs. It is essential to uphold such a right of fair trial. This Section is also important as it prevents the consequences of labelling a child as a ‘criminal’.

Further, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. Thus, separate trials take place in cases where a juvenile is accused along with adults. This is also done in order to give special attention to the juvenile.

The Act punishes those who are in charge of children and are guilty of abandoning, assaulting or wilfully neglecting them along with those who employ children to beg, or offer them intoxicants. Exploitation of child employees is also punishable. When a juvenile is accused of committing an offence, an inquiry against him must be completed within a period of four months unless the Board requires more time on reasonable grounds.

If the inquiry once completed reveals that the juvenile is guilty of the crime, the Board may allow the juvenile to go home after advice or admonition; order the juvenile to be sent to a special home on certain conditions; direct the juvenile (above 14 years) or his parent to pay a fine; direct the juvenile to participate in group counselling and similar activities; perform community service; or release him on probation of good conduct and place him under the care of any parent, guardian or other fit person ((Section 15, Juvenile Justice (Care and Protection of Children) Act, 2000)).

An important provision in the Act is that no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. This is because emphasis on punishment rather than prevention and rehabilitation is neither philosophically sound nor effective.

Bodies under the justice system

The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for several bodies to be set up across the country in order to fulfil its purpose of reformation and rehabilitation of the juvenile offenders. Juvenile Justice Boards are set up ((Section 4(1), Juvenile Justice (Care and Protection of Children) Act, 2000))in various districts by the State governments. Their purpose is to hold the inquiry in accordance with the provisions of the Act and make such order in relation to the juvenile as they deem fit ((Section 14, Juvenile Justice (Care and Protection of Children) Act, 2000)). These boards have the exclusive power to deal with such proceedings. In order to ensure effectiveness, no member of such a board must lack knowledge or training in child welfare and child psychology ((Section 4(3), Juvenile Justice (Care and Protection of Children) Act, 2000)).

During the pendency of trial, a juvenile in conflict of law is to temporarily reside in an Observation Home. This may be set up by the State government in collaboration with voluntary organisations in every district ((Section 8(1). Juvenile Justice (Care and Protection of Children) Act, 2000)). It provides for temporary reception of any juvenile in conflict with law during the pendency of any inquiry. Special homes are also to be set up by the State governments for reception and rehabilitation of a juvenile in conflict with law as per Section 9 of Act. At the end of financial year 2011-2012, about 733 juvenile justice homes in India had received grants under the Integrated Child Protection Scheme (ICPS] ((Asian Centre for Human Rights, India’s Hell Holes: Child Sexual Assault in Juvenile Justice Homes (March 2013) , http://www.scribd.com/doc/137150275/India-s-Hell-Holes-Child-Sexual-Assault-in-Juvenile-Justice-Homes)).

The Act also provides for setting up of Child Welfare Committees ((Section 29, Juvenile Justice (Care and Protection of Children) Act, 2000))and Children’s homes ((Section 34,  Juvenile Justice (Care and Protection of Children) Act, 2000))that shall take care of children in need of care and protection. Shelter homes are to be established ((Section 39, Juvenile Justice (Care and Protection of Children) Act, 2000))to function as drop-in-centres for the children in the need of urgent support. The main purpose of a shelter home is restoration of and protection to a child deprived of his family. Also, the State Government or local authority may create a fund ((Section 61, Juvenile Justice (Care and Protection of Children) Act, 2000))for the welfare and rehabilitation of the juvenile.

While such policies under the Act have a good intention, in reality they lack efficient implementation. Years after its introduction, many states have failed to incorporate the policies in their legislative apparatus or dispose the necessary measures to render the law efficacious ((F. Ferrara and V. Ferrara, The Children’s Prison: Street Children and India’s Juvenile Justice System, 9 (2005).)). The infrastructure of the observation homes is often sub-standard and lacks a hygienic atmosphere. The home often provides clothes and food of low quality ((S. Farooqui, Reforming the juvenile (homes) first, DNA, Bangalore (September 2, 2013), http://www.dnaindia.com/analysis/standpoint-reforming-the-juvenile-homes-first-1883447)). Another major problem is that the homes are mostly under-staffed and lack existence of trained counsellors and psychiatrists. This in turn obstructs the proper reformation of a child based on his education, behaviour and crime committed. It cannot be disputed that in the absence of good infrastructure and other basic facilities, the juveniles cannot be reformed psychologically.

It is abhorrent that a place where a juvenile needs most attention, he/she is being exploited not only mentally but physically. Astonishingly, sexual abuse is rampant at these places and thus it is justified to label them as “India’s hell holes ((Supra 18)).” Several cases of repeated rape, sodomy, sexual harassment by the staff- security guards, wardens, cooks, senior inmates etc. have been reported. Such offences have not only taken place in privately run juvenile homes by NGOs but also in government-run homes. Both lay and professional works emphasize the possible emotional consequences of child sex, including severe depression, psychosis, and suicide ((F. RUSH, BEST KEPT SECRET- SEXUAL ABUSE OF CHILDREN, 7 (1980).)). In such an environment, the victims are unable to protest and are also forced to remain silent for long periods without any aid.

Even the Integrated Child Protection Scheme facesadministrative problems- lack of updated data and regular reporting. Even though there is an urgent need to increase budget allocations, the ICPS faced a reduction by 100 crores this year ((HAQ: CENTRE FOR CHILD RIGHTS, BUDGET FOR CHILDREN 2013-14, A FIRST GLANCE, 6 (2013).)). In such a scenario, a robust child protection system cannot be built.

Sadly, most of the observation homes are in dilapidated conditions ((Pamposh Raina, Life in India’s Juvenile Homes, New York Times (August 1, 2013), http://india.blogs.nytimes.com/2013/08/01/life-in-indias-juvenile-homes/?_php=true&_type=blogs&_r=0)). Rule 63 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 mandates the Inspection Committees to “visit and oversee the conditions in the institutions” at least once in every three months to ensure safety, well-being and permanence of the institutions and look out for any incidence of violation of child rights, but such inspections seldom take place. On adding up all of the above, we can conclude that the condition of the justice system is pitiable.

Age of criminal responsibility

Children are qualitatively different from adults and for this reason, child and youth crime are alarming. As per the Beijing Rules, legal systems recognizing the concept of the age of criminal responsibility for juveniles, should not fix the beginning of that age at too low an age level. Emotional, mental and intellectual maturity must be born in mind while determining such age ((Supra 1, at 4)). It is important to fix such an age because in its absence, the notion of responsibility would hold no meaning. Owing to culture, history, tradition and other factors this age varies across countries.

In the U.S.A, the age to determine juvenility varies from state to state- while in most of the states it is 18 years, in few it is 16 or 17 years. In U.K, a child between the ages of 10 to 18 years becomes criminally responsible for his actions. He can be tried by the youth court or an adult court as per the severity of the offence committed.  In Canada, the Youth Criminal Justice Act governs the application of criminal and correctional law to those who are twelve years old or older, but younger than 18 at the time of committing the offence. Although trials take place in a Youth Court, a youth may be awarded an adult sentence for certain offences and in certain circumstances.

In September 2013, a 12-year-old girl was gang-raped by five of her friends in Assam. The ages of the accused range between 15 and 16 years. This is just one of the several cases which show that an increasing number of crimes are being committed by juveniles, especially between the ages of 15-18 and the crimes committed are not just petty in nature.

After the ‘Delhi gang-rape’ case, a debate cropped up whether the age of a juvenile should be lowered from the present 18 years. This was because while the other 5 convicted were sentenced to death penalty, the 17-year old convict was only sentenced for a term of 3 years. This is the maximum punishment that could be imposed as per the juvenile laws ((Section 15(1)(f), Juvenile Justice (Care and Protection of Children) Act, 2000)). In fact, he was only a couple of months short of attaining majority. Millions were infuriated and demanded for a stricter punishment for the juvenile for the heinous crime committed by him- rape of a woman inflicting injuries which ultimately led to her death.

Owing to such a scenario, outrage and concern follow. The question arises whether juvenility is a justified reason for lenient punishments especially when they crimes of heinous nature are committed. Is merely age the correct basis to determine one’s state of mind? Is it acceptable to let juveniles go scot-free for crimes committed by them only because of the benefit of falling younger by a couple of months?

Before answering this question, it is important to identify the reasons of such delinquent behaviour among juveniles. A disturbed life, poor role models or influential delinquent groups are a few. While not class-linked, self-reported delinquent behaviour is most prevalent among the lowest socio-economic groups ((C. A. Hartjen and S. Priyadarsini, Delinquency In India – A Comparative Analysis (1984), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=93313)). Poverty can compel juveniles to resort to illegitimate means to achieve socially valued goals. Children are ‘hired’ by criminals to do jobs for them so that strict punishment is not inflicted, in some situations. Juvenile delinquency is a modern phenomenon that emerged in response to changes in larger society ((T. J. Bernard, Cycle Of Juvenile Justice (1992), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=133564)). The theory of ‘social disorganisation’ suggests that instances of crime have increased due to the breakdown of institutions like family, school etc. When a child fails to associate himself to others, he is compelled to take actions which may or may not be rational.

A considerable section of the society now believes that the age of criminal responsibility should be lowered and strict punishments should be imposed on the delinquents. Age should not be the biggest defence for committing a crime. Such a section advocates that children today lose their innocence and mature earlier as compared to ancient times. They are more aware of the ramifications of their acts. They are exposed to the world and understand it better because of amalgamation of cultures, influence of media and an increasing overall social awareness.  The issue of reduction in the age of juveniles from 18 to 16 years, as it was in the Juvenile Justice Act of 1986, was also raised in the Lok Sabha on 19th March, 2013, during the discussion on the Criminal Law (Amendment) Bill, 2013, but was rejected by the House.

Such a realisation led to the moving of a petition in the case of Salil Bali v. Union of India & Anr to the Supreme Court of India contending that the age of criminal responsibility must be lowered ((AIR 2013 SC 3743)). It was urged that it is necessary for the provisions of Section 2(k), 2(l) and 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, to be reconsidered in the light of the spurt in criminal offences being committed by persons within the range of 16 to 18 years.

It must be noted that the age of responsibility of understanding the consequences of one’s actions has been recognized as 12 years in the Indian Penal Code. The provisions of the Child Labour (Prohibition and Regulation) Act, 1986 also treat children up to the age of fourteen years differently from children between the ages of fourteen to eighteen, for the purposes of employment in hazardous industries. Hence, a conflict arises under the present juvenile justice system and criminal jurisprudence regarding the age of understanding. It was also contended in the above case that no protection must be granted to those accused less than 18 years of age in serious offences like rape and murder and that they must be tried under the normal law. Also, the investigating agency should be permitted to keep the record of such offenders to take preventive measures to enable them to detect repeat offenders and to bring them to justice.

However, the Supreme Court held that the age should not be hampered with and rejected the petition to lower the age. The Apex Court observed that the age had been decided taking into consideration the general trend of legislation, internationally and within the country as well. Such age is fixed on account of understanding of experts in child psychology and behavioural patterns which indicate that the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. Mental growth is highly important in assessing the maturity of a person. Therefore, till such an age the children in conflict with law can be restored to society.

Author’s view

Keeping in mind the present situation, it can be said that the number of crimes committed by juveniles need to be checked. The crimes committed are even of a heinous nature insofar as juveniles are committing acts of murder and rape. Age must not be the sole criteria to award a lenient punishment to the offender. Section 376A and 376E of the Indian Penal Code have been inserted in the year 2013 and impose death penalty on those who are convicted for rape. In contrast to this, Section 15 of the Juvenile Justice (Care and Protection of Children) Act imposes only a sentence of 3 years. This period of maximum three years is laid down without any reference to the nature of crime committed. It is not justified to let perpetrators of such crimes get off with such leniency. No mercy should be bestowed on someone who does not show mercy to the victim. A correctional course is thus required to be undertaken in this regard.

The country cannot afford the misuse of the present legislation at the hands of the offenders. It is not only unfair to the victims but also creates an unsafe, chaotic environment. It is important to distinguish minor delinquents from “hard-core” type of criminals ((A. V. CICOUREL, THE SOCIAL ORGANIZATION OF JUVENILE JUSTICE, 120 (1995).)). A serious attempt is to be made to grade the nature of offences to suit the reformation contemplated by the Act so that it benefits the society. It seems rather unreasonable to impose the same punishment on juveniles in conflict with law, irrespective of the gravity of the offences committed by them. A petty theft cannot be compared with the offence of raping a woman that puts her into a vegetative state. Heinous crimes of rare nature are a class of their own and hence should not be considered akin to petty crimes. The issue regarding extent of punishment with regard to the nature of crime needs to be addressed in such a manner as would make the juvenile system more effective.

In light of the present laws, there is a need to amend the existing laws or bring in new legislations to address this issue. The age of criminal responsibility can be lowered as a whole. Offences can be classified on the basis of their nature in order to impose punishment accordingly. Alternatively, a provision can be made for exercise of discretion by the courts while awarding sentences when it comes to heinous crimes committed by juveniles on a case-to-case basis, in order to ensure deterrence.

Moreover, in order to reform the juvenile in conflict with law, the juvenile system as a whole needs to be reformed first. The ramshackle conditions of the observation homes and juvenile justice boards need to be addressed immediately. The nation must strive to provide education, health-care, sanitation and housing to every child. Families must instil moral values; core social institutions need to be strengthened and immediate intervention of child offenders needs to be undertaken ((R LOHRLR, D.P. FARRINGTON AND J.  JUSTICE,   NEVER TOO EARLY, NEVER TOO LATE: RISK FACTORS AND SUCCESSFUL INTERVENTIONS FOR SERIOUS AND VIOLENT JUVENILEOFFENDERS, 2 (1998).)). Another strategy must promote delinquency prevention, and identify and control the group of serious, violent, and chronic juvenile offenders ((J. C. Howell, Guide For Implementing The Comprehensive Strategy For Serious, Violent, And Chronic Juvenile Offenders, Office Of Juvenile Justice And Delinquency Prevention
US Dept Of Justice (1995).)).Only then will crimes gradually reduce. The juvenile justice system will prove beneficial only if the Juvenile Justice (Care and Protection of Children) Act, 2000 is implemented effectively and efficiently.

After all, the fact that a rape victim herself is affected for a life term is not in balance with the lenient punishment for the same imposed on a juvenile delinquent. Much needs to be done so that the letter of the law coincides with the spirit of law.

Real Estate (Regulation and Development) Bill 2013

Aastha Mehta, Student of Law, GNLU, Gandhinagar

Skyrocketing prices in real estate sector is not uncommon phenomena, especially for metropolitan cities, and also the fact that scrunch of land is increasing will only contribute to the increase in prices of land, much to the disadvantage of consumers. The proposed bill on Real estate, was introduced in Rajya Sabha, in 2013, and on perusal of the bill, one must admit it is a comprehensive proposed legislation. One may say after looking at this bill, “better late than never”, since cases pertaining to illegal constructions, duping innocent consumers by real estate agents, fraud by real estate developers on consumers, non-granting of possession have flooded the courts, and in absence of any central legislation, it was difficult for courts to adjudge such situations on the basis of local laws, which differs from state to state, giving rise to different standards to be applied by different courts. So before it got too late and consumers would be trampled more for no fault of theirs, the bill with its detailed provisions has come to the rescue.

Supreme Court in 2004 ((Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733))conveyed in very harsh words how builders flout the regulations and law, and it is the consumers who bear the brunt in the following manner, “Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don’t act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non- compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders.”

Author has wherever necessary given examples to further substantiate various points, and has given its own views, which are always subject to disagreements and the author has tried to maintain a lucid flow, since the subject herein may not be interesting to all.

Following legislative comment is divided into four parts:

  1. Pro-builders v. Pro consumers: Where does the bill fall?
  2. Advantages of the Bill
  3. Deficiencies of the Bill
  4. Different Regulatory bodies under the Bill

Pro-builders v. Pro-consumers: Where does the bill fall?

The scheme of the Bill itself is testimony, to the extent of pro-consumerism approach it has taken, almost amounting to burdensome requirements on real estate promoters and agents. There is only one chapter, Chapter IV, which discusses rights and duties of allottees, and rest of the entire bill focuses on the how real estate area has to be reinvented, new processes are added and new bodies are made, which may increase the monetary aspect for a real estate developer. Firstly, Section 3 mandates registration of real estate promoter, and Section 4 provides how application for registration has to be made to the Authority, herein Real Estate Regulatory Authority at the state level. The quantity of requirements and documents which the builders need to provide under Section 4 shows that in order to maintain transparency and disclosure by builder as to minute details of plans, there might be a possibility, that the initiation of projects might be haulted as there are many permits to take. Explanation to section 3 mandates that promoter has to obtain registration for every phase, if construction is to be done in phases, which again start the process for obtaining registration for each phase, delaying the project and increasing miscellaneous costs for promoters. However balance is maintained under section 5, that the authority has to give registration within 15 days, but such speedy disposal of registration is one thing which has created doubts, primarily because of two reasons. First being, the sheer number of infrastructure projects that are coming up, the workload of granting permission, and the manpower with the authority may not be even. Secondly, there might be times when in important properties, when structure is to be erected, though the bill does not provide, but the authority might require to visit the site and ensure the ground situation is in consonance with the documents, including layout plan which have been submitted. This work may take time, so 15 days will definitely be inadequate. Section 7, is one of the most important sections. It talks about revocation of registration, in case there are certain acts committed by promoters, fastening liability on them. Section addresses the general situation of what might happen, and how to redress the consumer grievance. Section 7(4) shows that in case it does not function properly, and falls within the section 7, it can have a lot of business repercussions, starting from cancellation of registration, non-access to its website in relation to that specific project, inclusion of its name in the list of defaulters by Regulatory authority and also authority will inform other states and UTs about such cancellation. Such stringent measures are made, in order to have a psychological effect on the promoters to save themselves from tarnishing business reputation, to comply with the directions of authority and not indulge in any malpractice. Section 9 also requires registration of real estate agents. Such registration allows the authorities to have a database, but also ensures that consumers can have a right to know whether the real estate agent with which they are dealing is a registered one or not. Detailed functions of real estate agents in section 10 show indicate that infrastructure sector has been streamlined in this bill by allocating different functions to different component units, starting from agents, to developers to authorities.

Section 11(5) further protects consumers from whims of developers, since no allotment can be cancelled except upon the terms of the agreement of sale. Agreement to sale is one important piece of document, since by way of section 13(1), no developer can accept more than 10% of the cost of the land, apartment, building as an advance payment without entering into agreement to sale. One objective of having such provision is to maintain accountability as to amount of money being given to developer by allottees; developer does not accept different amounts from different allottees as advance payment. Section 12 read with Section 14(1), fastens liability on promoter. Section 12 makes promoter liable if allottees pays advance payment n the basis of information given in the prospectus of the project and due to that reason suffers some loss and damage due to any incorrect or false statement made in the prospectus, the consumer has two remedies.

  • He can ask for compensation from the promoter. For adjudging the amount of compensation there is section 61. It mentions that the Authority shall appoint any officer not below the rank of Joint Secretary to the State Government to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard. Section 62 also lays down different factors that need to be taken into consideration for deciding compensation.
  • Second remedy which section 12 provides is that if such allottees intend to withdraw from project, promoter shall return his entire investment coupled with interest rate. The interest rate payable is to be decided by appropriate government by way of rules under section 73(h).

Section 14 also presses that proposed project shall be developed and completed by the promoter in accordance with the plans and structural designs and specifications as approved by the competent authorities. If a structural defect is found within 2 years of possession, allottee can again ask for compensation from promoter for the defect in the structure. Section 16 again fastens liability on promoters when it comes to failure for handing over possession of the property within stipulated period of time. Moreover one of the most harsh liability in section 16 being that compensation can be demanded not “prejudice to any other remedy available” which means other civil remedies against the builders can also be invoked. Section 16(2) is a general liability, for failure to comply with any obligations given under the act or the rules made thereunder, to provide compensation to allottees.

Chapter IV, gives plethora of rights to allottees, in addition to what other rights the allottees would get under other provisions, showing how much titled the Bill is in favor of consumers, living upto its aim as defined in preamble. Section 17(4), gives an all-encompassing right the most sought after right in terms of it being invoked by allottees leading to court cases, which right to refund. A statutory provision is made which enables allottees to get full refund in three situations. First being promoter is unable to give possession according to terms of agreement to sale. Second being discontinuance of business on account of revocation of registration under the Act, or rules and regulations made there under, and lastly, discontinuance of business on account of suspension of registration. This would ensure allottees do not suffer, and their money is safely returned to their hands. This can be read with Section 8, that in cases where promoters registration has been revoked or is suspensed, the Authority in consultation with appropriate government can take charge of remaining developmental work. Even common consensus among media seems that the present bill is a pro-consumer bill, much to the dismay of developer community ((Deepa Venkatraghvan “Budget 2013:NRIs could do with a quick introduction of Real Estate Bill” available at http://articles.economictimes.indiatimes.com/2013-02-14/news/37100015_1_plans-and-project-specifications-real-estate-regulatory-authority-nris; Profit NDTV available at http://profit.ndtv.com/news/your-money/article-real-estate-bill-is-it-good-or-bad-for-the-consumer-324638)).

Advantages of the Bill

The bill has certain much needed advantages, which reduces the discretionary criteria which develop section generally, use in order to cover costs.

  • One basic and core advantage which the bill introduces is a bridging link, a sort of communication from the buyer to the seller and vice versa, under Section 11(3), wherein a relation is built between promoter and buyer, by way of which the promoter has to keep the buyer abreast about updates as to project, cultivates trust in the promoter that the final product is going to be as shown in the plan and to make it palatable for consumers that construction will take the same amount of times as told earlier in the agreement. This exercise will ensure there is trust, all doubts are removed from consumer’s mind, and promoter and allottee are on the same page as to what to expect from the construction.
  • Second most advantageous provision is Section 4(i)(D), wherein promoter is mandated that 70% or less if notified by appropriate government from the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank within a period of fifteen days of its realization to cover the cost of construction and shall be used only for that purpose. The provision seeks to address the practice of builders using money from an existing project for other projects, resulting in delays in completion ((“30th Report: The Real Estate (Regulation and Development) Bill, 2013”, Standing Committee on Urban Development, February 13, 2014, Available at http://www.prsindia.org/uploads/media/Real%20Estate/SCR-Real%20Estate%20Bill.pdf.)). However there is always a possibility that this amount is reduced by different state governments.
  • Thirdly, specifying actual carpet area ((Defined in section 2(j).))is mandatory under the bill. There are cases where buyers are never well-informed as to the correct carpet area, which gives them less area than what they expected and what they paid for. This problem is sought to be resolved since the promoter while applying for registration has to give details as carpet area.
  • One more point which generally leaves attention while drafting any legislation, is the fact that it is always better to incorporate principles of natural justice into the statute itself, so that fairness is ensured in all possible circumstances. Herein, principles of natural justice is embodied in the act itself, at every stage the aggrieved party is given a right to be heard by the authority. Proviso to Section 5 and Section 24(2) are some of the examples wherein right to be heard is embodied for the benefit of the aggrieved party.
  • One more very pertinent positive point is, the fact that Real estate Regulatory Authority is given very important function under section 29(c), which focuses on encouraging construction of environmentally sustainable and affordable housing, promote standardisation, including grading and use of appropriate construction materials, fixtures, fittings and construction techniques. This also helps to form an insight that if regulatory body acts with determined effort to realize this goal, than environment may not have to suffer any more at the hands of developers who would scrap away a green area for making a concrete jungle. Supreme Court in 2009, in one of the landmark cases also stated that those promoters who build violating the law and start construction on green patches do it without giving it a thought as to the consequences which the people will face in terms of sanitation and health as well as it might cost too much for a country with haphazard development without planning ((Shanti Sports Club v. UOI (2009) 15 SCC 705)).
  • For the regulatory authority to have teeth, some sort of power to hear and solve complaints should be given, which is exactly what section 31 provides, wherein authority can conduct investigation on the basis of complaint under the Act or rules/regulations. This is another positive aspect when it comes to making the authority powerful in terms of giving them leeway to ensure the law is being implemented effectively and it does not only be a namesake granting authority.
  • Real Estate Appellate Tribunal, which is body established under section 37, for settlement of disputes is a balanced body which has judicial as well technical or administrative member, which ensures that knowledge of law and practical aspects of real estate industry are made available to anyone aggrieved by the decision or order of Regulatory authority.

Deficiencies of the Bill

Bill has certain loopholes and issues which would require reconsideration in the parliament. Some of them are as follows.

  • It bars the jurisdiction of civil courts under section 69, which will raise a question whether it is taking away jurisdiction of the court. Even power to grant injunction is taken away and sole power of adjudication is given to tribunal and regulatory authority for any matter under the Act. It can be challenged by saying that unfettered power of adjudication in such bodies maybe abused. However appeal from tribunal’s order to High Court under section 50, which might be good counter argument for those who say normal courts are not completely kept at bay with the proceedings of such bodies.
  • Section 3, provides for an exception wherein registration of promoter is not required for wherein the land proposed to be developed is less than 1000 square meters, or construction of less than 12 apartments. This loophole can easily be used to play fraud on small customers who wouldn’t invest in big schemes, but prefer a smaller residential area, fitting their budget. It should be debated before the Parliament as to rationale of not including smaller schemes within the fold of registration.
  • More importantly is section 78’s proviso, has created certain confusion. It states where a State has enacted a law for regulation of the real estate sector, and such State law is not inconsistent with this Act, then, the State Government, to that extent, may not apply the provisions of this Act in the State. Therefore, for this Bill, when made into an Act, to apply, there needs to be firstly an inconsistency in the state law, or in absence of any law, this law will apply. Inconsistency in the two laws is something which will be found only if the state law is challenged in the courts. This provision has compromised uniformity.  The scope of this Bill is limited to contracts between buyers and promoters, and transfer of property and these items fall within the Concurrent List ((Concurrent List, Entry 6 and Entry 7.)). Several state laws at present have inconsistencies such as Maharashtra Housing Regulation and Development Act, 2012 and West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, whose future applications remains uncertain ((Legislative Brief “The Real Estate (Regulation and Development) Bill, 2013 Available at http://www.prsindia.org/administrator/uploads/media/Real%20Estate/Real%20Estate%20-%20Legislative%20Brief.pdf)).
  • Past projects have been excluded under section 3’s proviso (b), wherein the bill is sought to be given prospective operation, which will not give benefit for this protectionist legislation to many buyers who have already invested before coming of this law. Therefore those buyers will still be governed by state laws, making this law useless for many customers.
  • Due to different registrations, the miscellaneous costs of promoters are bound to increase which may in turn increase the costs of land at which promoters will sell property to potential buyers. In 2012, the Committee on Streamlining Approval Procedures for Real Estate Projects recommended establishing a single window clearance system for approvals. It noted that up to 50 approvals are required for projects, across three levels of government, taking up to four years ((Volume I: Report of the Committee on Streamlining Approval Procedures for Real Estate Projects in India”, Ministry of Housing and Urban Poverty Alleviation, January 2013, Avaiable at http://mhupa.gov.in/W_new/SAPREP-march.pdf.)).
  • Chapter VIII, which talks about penalties which are to be taken from promoters in case of contravention of provisions of the act is a very pecuniary amount which is generally either 55 or 10% of the total cost of the estimated project, which might be peanuts for those who are investing crores of rupees in construction. Therefore, estimated cost of project may not act as relevant criteria if defaulters are to be punished seriously, however it should be the type of company, whether it is a big company or a small company of developers which has contravened and more bigger and financially well off a company is, higher should be the penalty since their investment would be too high for them and penalty would be too low at maximum 10%.

Different Regulatory bodies under the Bill

LC

These are the three authorities, which have been dealt with under the Bill in detail as to its composition, functions, salaries and allowances, powers, removal, other provisions as to its functioning. The central body being Central Advisory Council, is an executive body, with representatives from different central ministries. The functions given to it are very important, however one drawback would be they are too broadly worded, as seen from section 36. Second thing to be noted herein is the fact that the functions of central body and state regulatory body is bound to overlap. The biggest plus point is that checks and balance is maintained under section 71, wherein appropriate government can also keep a supervision on these authorities in case they do not function properly or do not carry out the mandate of the government.

Conclusion

The Bill if made it an Act, and is implemented in its letter and spirit, can be boon to consumers, who over the years have had a skeptic approach towards investing in real estate sector. It would also be more appropriate if shareholders from builder community are given a fair chance before Bill is made into an Act.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – An Analysis

Vishnu S Warrier

Sexual harassment is an act that creates a hostile working environment which may be by way of cracking lewd jokes, verbal or physical abuse, circulating lewd rumors etc. Though, India had signed and ratified Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) way back in 1993, we did not have a specific legislation to address the issue of sexual harassment at Workplace. Till 1997, facing victim of sexual harassment at the workplace had to lodge a complaint under Section 354 ((Criminal assault of women to outrage women’s modesty))and 509 ((Assault or criminal force to woman with intent to outrage her modesty))of the Indian Penal Code 1860. However, scenario changed when Supreme Court stipulated the famous Vishaka Guidelines though its landmark judgment in Vishaka and others v State of Rajasthan ((Word, gesture or act intended to insult the modesty of a woman)).

Further, Court observed that, the consideration of “CEDAW and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers. Accordingly, Government of India passed the Sexual Harrassment of Women at Workplace (Prevention, prohibition & Redressal) Act ((Hereinafter the Act)), to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto, and the same has been made effective on December 9, 2013 ((Gazette Notification dated December 9, 2013)).

The Act will ensure that women are protected against sexual harassment at all the Workplaces, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth ((Press Information Bureau, Government of India (Dated November 4, 2010). Protection of Women against Sexual Harassment at Workplace Bill, 2010, last accessed on December 12, 2013.)).

Key Features of the Act

Sexual harassment at Workplace

The Act defines sexual harassment to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature ((Section 2 (n).)). It may further include any promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems ((Section 3 (2).)).

Workplace, Employer, Employee

Workplace is defined to include all organizations, and any other places visited by an employee during the course of work ((Section 2 (o).))and it covers every woman at the work place whether employed or not ((Section 2 (f).)). Further, the Act defines employer as the person responsible for the management, supervision and control of the work place ((Section 2 (g).)).

Internal Complaints Committee & Other Local Committees

The Act insists upon the formation of an Internal Complaints Committee in every workplace, as per the provisions of Section 4. It further provides that, where the offices or administrative units of the workplace are located in various places, Internal Complaints Committee shall be constituted in all such units.

The Act also empowers the District Officer to constitute Local Compliant Committees in every district. And such Local Committee shall include an eminent woman who is working in the area of Social Work and committed towards the cause of women, as the Chairperson, and two members from an NGO committed to the cause of women ((Section 7)).

Duties of Employer

Chapter VI of the Act entrusts certain duties upon the employer ((Section 19)). Under which, every employer has to;

  1. Provide a safe working environment at workplace;
  2. Constitute an Internal Complaints Committee and conspicuously display the order constituting the Committee;
  3. Organize workshops and other training programmes at regular intervals for sensitizing employees;
  4. Provide assistance during any inquiry;
  5. Initiate actions against the perpetrator; and
  6. Provide assistance to the women if, she prefers to file complaint under the provisions of Indian Penal Code.

Redressal mechanisms – Complaint filing & Inquiry initiating

Chapter IV of the Act prescribes the procedures to be followed in filing complaint. Under the provisions of this Act, aggrieved women shall make a complaint in writing to the Internal Complaint Committee within three months of the last incident. In case the women is not in a position to file complaint due to her physical or mental incapacity, death or otherwise, her legal heir shall file the complaint ((Section 9)). In the absence of Internal Complaint Committee, complaint shall be filed with the Local Committee ((Id.)).

The Committee is required to complete the inquiry within a time period of three months. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be. They are mandated to take action on the report within two months. On request from the complainant, the committee shall provide for conciliation ((Section 10)). Complainant may also seek other remedies, including initiating criminal proceedings under the provisions of any other laws in existence.

Penalty & Appeal

The Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act, in case the allegations are proved. Besides, the Committee may provide for monetary compensation to the complainant. Further, whoever contravenes the provisions of Section 16 ((Prohibition of Publication or making known contents of complaint and inquiry proceedings)), shall be punished with a fine of Rs. 5000/- ((Section 17)). Any person aggrieved by the recommendations of the Committee, shall appeal within 90 days of the recommendations. All such appeal shall be preferred to a Court/Tribunal ((Section 18)).

Analysis & Major Issues

  1. Act insists upon the employer to constitute an Internal Complaints Committee at every unit. Practically, it may be impossible for big employers.
  2. Definition of employee is in its wider sense. Hence, it could be interpreted that, even a “domestic worker” who is working at home shall come under the protection of this Act.
  3. Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country needs to have one such person in the Committee. There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available ((PRS Legislative Brief, The Protection of Women against Sexual Harassment at Work Place Bill, 2010 available at http://www.prsindia.org/uploads/media/Sexual%20Harassment/Legislative%20Brief%20-%20Sexual%20Harassment%20-%2020May11.pdf last accessed on December 12, 2013.)).
  4. Act doesn’t provide the maximum number of members which shall form part of the Committee.
  5. The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. however, the composition of the Internal Committee does not require any member to have a legal background. Moreover, the Act does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge ((Id.)).
  6. Act provides that every District Officer shall constitute a Local Complaints Committee in the district. However, jurisdiction and functions of these committees have not been detailed. It is also unclear whether the block or taluk level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases only.
  7. Act provides that in case a committee is of the opinion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. However, the provision also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant. Though there may be merit in providing safeguards against malicious complaints, this provision penalises every false complaints, which may not be malicious. This could deter women from filing complaints.

*** This article was initially published at eMagazine of ICSI Mysore Chapter (Edition 121, February 2014)

Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012

Aastha Mehta, GNLU, Gandhinagar

Social injustice has been a way of life for these people. And dignity is a new concept for them. Dirt, filth and exposing oneself to putrid conditions has been a routine. Welcome to the world of manual scavengers, who have been subjected not only to inhuman work but have been treated as diseased animals due to their belonging to lower caste, making them subject to harsher life. India, in the year 1960 ratified to the ILO Convention on Discrimination (Employment and Occupation) 111, which prohibits discrimination of people in employment on the basis of caste or social origin. And not to forget the plethora of constitutional guarantees Indian Constitution provides, however, Indian Government has failed to address a persistent problem of manual scavenging.

This Article discusses the Bill in two parts:

  • Overview of the BILL
  • Critical analysis of the BILL

OVERVIEW OF THE BILL:

The very first thing which can be seen from the Preamble of the Act is the recognition of human dignity for this section of the society. The Preamble is very clear in demonstrating the social welfare aspect which has been the genesis for passing a new Act. This can be solace for the purpose of future administration, since the administrative authorities would have a clear set standard before them on what should be their focus while eliminating such preposterous practices. Another important feature which is welcome step for the country is that irrespective of caste, state, race or any other such considerations, this law shall be applicable uniformly to all the State, repealing State laws and 1993 Act, which presently governs the subject matter. This would make sure that the protection extended by this Act reaches all such downtrodden people, throughout the country.

Other key point is the enlargement of the definition “manual scavenger” as compared to the old Act making the definition broad and giving scope to include all those people who manually handle human excreta at all public places, starting from insanitary public latrines, to railways and even open pits. By doing so, the drafter have taken cognizance of the agony of this class, and made sure that by virtue of an umbrella clause, benefits are given of variety of such manual scavengers. The Act has indeed made an attempt to cut the very roots of such scavenging by providing in Clause 15 of the Bill, that even an agreement, contract or any other instrument to employ manual scavengers will be void, which ensure that local contractors do not get an upper hand economically to misuse the poor people’s situation, and under such contract no compensation will be paid to them. Bill has its major focus on local level participation by making local authorities responsible for identifying scavengers and to rehabilitate them. The rehabilitation procedure has been elaborated in Clause 13 of the Bill is in following manner:

  • The manual scavenger after being identified, would be given proper identification documents and cash assistance for initially living his life after he/she has left the work of manual scavenging.
  • This act not only prohibits manual scavenging completely but gives them opportunities to leave the dark world of their previous acts, by entitling their children to get scholarships in central or state schemes, residential plots to them subject to the willingness of the of the manual scavenger and also giving him or any other member of the family, an opportunity to learn new life skill so that they have alternative and respectable means of earning livelihood.

The act shows the determined efforts of the legislators to prohibit all forms of abuse of these people by directing occupiers of insanitary toilets to demolish them and to convert them into a hygienic latrine at their own cost, failure of which may make the liable for payment of construction of such sanitary toilet by the authorities. Clause 24 also sets up a Vigilance Committee, Clause 26 and 29 lays provision for State and Central Monitoring committees respectively, so that such protective measures are implemented at all places efficiently. The penal provisions have been strict too, making all offences under this section non-cognizable and therefore can be tried summarily. If anyone employs a manual scavenger or constructs an insanitary latrine, he shall be penalized with imprisonment up to one year or a fine of up to Rs 50,000 or both. For subsequent offences, a higher penalty of Rs 1 lakhs and imprisonment of 2 years is imposed, and Rs 5 lakhs and/or 5 year imprisonment for those who employ manual scavengers to work in septic tanks and sewers.

CRITICAL ANALYSIS OF THE BILL:

The present BILL has many vies, than virtues from the intention of the legislators, to the implementation, and lastly its failure to be apologetic, rather than being benevolent.

Clauses 5, 8 and 9 can be said to be a loophole, when it comes to sharing of responsibility by the States. All the duties have primarily delegated work to local bodies but for conversion and demolition of such insanitary latrines, the state is not obligated to provide financial assistance. This can be said to be a hypocrite stand by legislators, since local bodies would need a huge amount of financial sanction to undertake this mammoth task and without making this a mandatory duty, State governments may show a lackadaisical attitude in giving money for such purpose. This is also in conflict with current scheme Integrated Low Cost Sanitation Scheme, which divides the funding as 10%, 15% and 75% for the owner, State and Centre to fund respectively in conversion of such places into hygienic toilets.

More worrying problem is giving too many functions to local level officers and bodies that it is quite possible that they may work under pressure of different builders or contractors lobbies that would have vested interest in keeping such derogatory activity at place. The ideal way should be hand in hand co-ordination of skills of urban development officers, local authorities and other NGOs, who would ensure that ulterior motives do not creep into such noble cause. Also the Bill does not fit in to mould created by CrPC, wherein the maximum punishment for offences tried in a summary manner cannot exceed 3 months. But the bill gives a contradictory provision in

Clause 21(2) and 22 by providing maximum punishment as 5 years for summary offences. Multiple bodies have been given monitoring tasks. However, the question of effective monitoring will not arise in the first place, since the requisite awareness on part of executive Officers and manual scavengers themselves will be necessary immediately after commencement of this Act, so that such agencies can effectively start giving working directions. As mentioned above the new bill gives a broad definition of manual scavenger, however, the advantage of including more people protection under such clause is going to toothless since definition clause (g) which defines insanitary latrine allows workers to clean railway coaches by way of using protective gear. Therefore the inconsistency with regard to what is banned and what is not banned, is glaring.

The entire bill has taken only manual scavengers who deal with latrines, or human excreta into consideration. What about those who deal with other wastes such as garbage, solid/liquid chemical wastes? Aren’t these works equally dehumanizing and hazardous. Even such workers in metropolitan cities and villages work without any safety gear, and seeing the amount of waste generated in modern times, the immediate attention of legislators should also fall on such workers. Manual scavengers came into focus with the ordeals of Mehtar community in Maharashtra, who were toilet cleaners for rail lines in Maharashtra. However, the identification of not only people presently undertaking scavenging as a means to earn two meals should be done, as thought by the act, but the entire problem has to be struck from its very roots. There are communities who are immensely backward, and due to lack of absorption of these communities mainly due to old past of their belonging to lower castes, they have not been able to come up to a level wherein their humans rights are protected. This act proves to be toothless when it comes to identifying such castes and making them aware of their rights and at parallel level sensitizing the society to forget the social stigma attached to them.

And then again, no legislation can sufficiently be criticized if it does not have a religion barrier into it. On a closer look, this Act has failed to even take notice of the fact there are Muslim Safai Karamchaaris also in India, who have faced more problems than their Hindu counterparts. Muslim communities such as Halalkhors and Helas, have not been includes in the Schedule caste category, and therefore the question of them being uplifted through this bill seems a distant and mere academic question. Isn’t it the violation of their fundamental rights, not to be given help when the people of Hindu backward communities will be getting the same?

Dalit activists believe that the local authorities (railway authority, municipality, and panchayat or cantonment board) that have been tasked with undertaking these surveys are already in denial of manual scavenging in their jurisdiction and are therefore more likely to obstruct the process of identification rather than assist it. Giving economic help in isolation is not going to be fruitful, if the psychological burden is not lessened, by providing them proper advice, as to how to move forward, and how to mingle with the mainstream society. Such crucial matters have been completely overlooked by this Bill. Lack of gender neutrality is evident in this Bill, since it uses the word “HE” in all the clauses providing for rehabilitation. In reality, even women and unfortunately children too are subjected to working in unhygienic areas, and therefore referring to manual scavengers as only “he” seems to be an insult to female manual scavengers who are not even accounted for in this bill. How can the legislators be so grossly careless to account for half of the population of manual scavengers which are females and children? Ministry of Social Justice and Empowerment started a scheme for Rehabilitation of Manual Scavengers (SRMS) in 2007 under which around Rs.231 crores were released. However, according to survey conducted by Rashtriya Garima Abhiyan, 98% women were engaged in this work, and only 515 men were provided with benefits. This shows the pitiable condition of women, which this Bill nowhere addresses and maintains a status-quo with the old act by presuming manual scavengers to be men.

The major criticism which is evident from all the above points is, how is such practice going to be eliminated, when the enforcing authorities at various levels themselves have a casteist mind. This bill is going to be self-defeating from all sides, if the administrative work is going to be flawed, and we have all reasons to believe it will be. After analyzing the bill, it is my personal opinion, that this bill needs to have retrospective effect, to instill fear for future offenders, who will maybe throw the directives from local authorities in the same pit from where manual scavengers begin their morning work, and to show such those who have already been indulging in such activities, that law is ultimately going to catch up with them.

Clause 34, lays down that no government officer or member of the committee will be prosecuted for any act done in good faith under this particular act. However “good faith” is prone to being abused easily by such government officials and therefore such clause is safety net for members concerned in such bodies to not come under legal tangle. Using a term as vague as good faith is definitely going to be problematic for real grievances of such manual scavengers. Another area which needs to be resolved is given in Clause 10 of the Bill which bars the courts to take cognizance of any matter under this Act, if the complaint is not filed within 3 months from the date of the occurrence of the event. Looking at the slow process of our implementing agencies and widespread illiteracy among the potential victims i.e. manual scavengers time period of mere 3 months is too less, if determined efforts are to be maintained to eradicate such system.

Overall, this Bill has proved to be failure when it comes to holistically addressing the issue of manual scavenging and is more than a half hearted attempt of the legislature.

FURTHER READING:

Introduction of the Export-Import Bank of India (Amendment) Bill 2011

The Union Cabinet today approved the introduction of “The Export Import Bank of India (Amendment) Bill, 2011” to amend the Export – Import Bank Act, 1981 (the Act) in the Parliament.

The Bill seeks to increase the authorised capital of the Exim Bank from Rs.2000 crore to Rs.10,000 crore with the provision that the Central Government may, further, by notification, increase the said capital up to an amount that it may deem necessary from time to time and also to make a provision for appointment of two-whole time Directors, other than the Chairman and Managing Director (CMD), in the Bank by the Central Government. Continue reading “Introduction of the Export-Import Bank of India (Amendment) Bill 2011”