issues women india – Legal Drift

Even Padman Cannot Save These Women From The Practice of Chhaupadi

meghna 1 Comment Chhaupadi Practice illegal in Nepal, Chhaupadi Pratha, indian women, indian women torture, issues women india, menstruating taboos, menstruation myths, Nepal Law Against Chhaupadi, padman and periods, rape victims, social customs menstruation, Taboo Periods, taboos surrounding periods

Hats-off to the Padman team for bringing up the sensitive issue of menstruation in India. I always thought periods was a word more dangerous than “Lord Voldemort” and those who dare to speak about it, open pandora’s box. But now things are changing and not only are we speaking about menstruation but are embracing it too. Sadly this is not the case with everyone. The taboo of menstruation and the draconian practice of Chhaupadi are claiming lives of many females.

As per the old Hindu Custom of Chhaupadi, a menstruating female is considered impure and is therefore banished from her house during her periods. She is made to stay in a goth (temporary mud huts with limited resources), stables or caves during this period. A menstruating female is considered untouchable and it is believed that her impure touch would render everything worthless. She is forbidden to enter her household, touch men, animals or plants and consume certain food articles. Similarly no one can touch her during her periods. Thus even if a female becomes ill, she is not properly taken care off as everyone banishes her.

The practice is still widely followed in few parts of Nepal and has claimed many innocent lives. A nineteen year died of snake bite during her stay in the goth. Another girl died of the suffocation caused by the fire she had lit to keep herself warm during a chilling winter night. Other females have died due to hypothermia, malnutrition, animal attacks, severe bleeding, robbery and rapes.

Reasons for Practing Chahupadi – 1. Fear of God – The people believe that the god would punish those who don’t follow the Chhaupadi Pratha.

2. Banishment from the Society – There is an obvious fear that the society would banish those families who don’t follow the custom.

Impact on Females – The females suffer from physiological, mental and emotional stress. The conditions in the goth are deplorable. The mental, physical and reproductive well being of the females are compromised as they suffer due to poor hygiene, poor nutrition, heavy workload and lack of security. Their basic human rights are being denied to them.

Law Against Chhaupadi In the year 2005, the Supreme Court of Nepal declared the practice of Chhaupadi illegal. A legislation passed by the Parliament effective from August 2018 states that “A woman during her menstruation or post-natal state should not be kept in chhaupadi or treated with any kind of similar discrimination or untouchable and inhuman behaviour”. Anyone who forces a women to follow Chhaupadi may face a three-month jail sentence or a 3,000 Nepalese rupee fine or both. The law will be effective from August 2018.

Conclusion The social workers, government and youth of Nepal are spreading awareness about this evil practice of exile. The execution of the law would be extremely challenging. The main problem is that the females are conditioned and made to believe that they become impure during their periods. Changing this mindset is the government’s greatest challenge. The law is still ambiguous as it does not specify the discrimination meted out to the menstruating females and therefore its implementation is surely challenging. It is ironical that god made all of us but yet when we menstruate, we are forbidden by some to enter temples. It is hoped that like the law eventually ended the evil practices of sati and jauhar in India, the law will be successful in ending the practice of Chhaupadi in Nepal.

Social Issues

Prostitution Runs In The Family

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Ever imagined that a family could encourage its daughters to become prostitutes?

Rajasthan’s Nat community has a tradition of prostitution. This nomadic tribe which previously engaged itself in street performances later adopted “commercial sex” as its traditional occupation. Other communities like Rajnat, Kanjar and Bedia tribes also follow similar tradition in the state.

Family Irony

The Nat community is patriarchal and male dominated. The women in the community may be divided into two groups prostitutes and non-prostitutes. The sex workers in spite of their earning status are shunned by both society and their families. They are given less respect in comparison to the married women.

The sex workers are not allowed to attend auspicious rituals or marry within the community. Conversely, the married women are expected to be chaste. They are expected to wear veils and maintain distance from elders. Pre-marital sex and extra-marital affairs are condemned in the Nat society.

Nat males are forbidden to be clients of the sex-workers. The sex-workers are expected to have professional relations with their clients. They have to share their profits with the pimps and sometimes retired female sex workers. It is observed that a retired sex-worker totally depends on the income of these young prostitutes for her survival.

A sex-worker is the most important earning member in the family who is also bestowed with the responsibility of getting her brother married. However she is not allowed to marry with in the community.

How do they enter the profession?

Segregation of girls start at a very early age. The “prospective” sex workers are given training by pimps and retired prostitutes where as the other girls are taught the fundamentals of family life.

Lack of education, awareness, empowerment and institutionalization are major reasons for the girls to enter the profession.

Ceremony of Nath Uttarai

The clients pay highly for a virgin girl. The first intercourse is mark of celebration with in the tribe. The girl who is dressed like a newly-wed, wears a nose ring which has to be removed by her first client. The client is considered the husband of the girl and he is given preference over other clients in future. The high price for virgin girls motivates the families to sell their daughters soon after attaining puberty.

Concerns

1. Lack of education and knowledge available to young women has adversely affected their ability to make decisions. 2. They are exploited by both pimps and retired female sex workers. 3. There are greater chances of acquiring sexually transmitted diseases especially AIDS as the sex workers practice unprotected commercial sex. There is considerable lack of awareness with in the community with regard to sexually transmitted diseases. 4. The young girls are now being trafficked by the pimps to other areas including Delhi and Mumbai. The clients in the metropolitan cities pay higher prizes than those in the villages. 5. The greed for higher price lures the parents to sell their daughter as soon as they attain puberty. 6. Although they are the earning members of the family, their status is low. 7. The children are financially and socially depended upon their maternal uncle. 8. Since the sex-workers are not allowed to marry in the community, their is an increase of marriages taking place between a Nat Male and A Non-Nat Female.

Conclusion The female sex workers amongst the Nats are being exploited at every stage both by their family and society. The income generated by selling their bodies barely reaches them. The intermediaries take a chunk of profit from their earning. Unprotected commercial sex with clients is prevalent. The rights of their children are hardly enforced. Not only the prostitutes but their children also suffer considerably.

Awareness must be spread amongst the women. Alternative employment should be arranged for those who wish to leave the profession. Education must be ensured for both males and females. The retired sex-workers must be rehabilitated. Presence of pimps and female trafficking must be checked. The involved of minor girls in the trade must be curtailed. Efforts should be made to bring the community with the mainstream. Gradual changes must be brought in the perception of the community as a whole.

Picture Credits:Picapp

Legal Mirror

Is Public Interest Litigation the Pill for the ILLs?

meghna 27 Comments 0.4% cases filed in the SC involve PIL, 20% JUDGES CORRUPT, accountability of judges, bhopal gas tragedy victims, BLACK LAWS DICTIONARY PUBLIC INTEREST LITIGATION, charles shobraj, charles shobraj killer, dk basu v. west bengal, dr. upendra baxi views on pil, false allegation, FRIVOLOUS PIL, Husainara kahatoon case, india public law, indian judiciary, issues women india, judges credibility india, JUDICIAL ACTIVISM, JUDICIAL TERRORISM, Justice Krishna Ayyer PIL, JUSTICE MARKANDEYA KATJU, Justice P.N. Bhagwati PIL, JUSTICE SB SINHA, law for indian citizens, law for under privileged, mc mehta environmental problems, ngo public interest litigation, pil a boon or a bane, pil india, pil rejected for telelangana, pil used as a black mail tool, problems of pil, public interest litigation, public interest litigation India, public spirited people, right to information india, right to information legal system, rights of the accused, role of ngos in public interest litigation, sc data, sunil batra v. delhi administration, ucc toxic chemicals pil, upendra baxi, vishaka v. state of rajasthan, wto accession

History of Public Interest Litigation:

The last two decades have witnessed the conceptualization of Public Interest Litigation in India. Through it the courts (High Court and Supreme Court) have acquired the power to grant justice to people on humanitarian grounds. It has ensured access to justice for the deprived, under-privileged and neglected segments of the society. Various public spirited persons and NGO’s have approached the court of law through this resort.

Section 32 of the Indian Constitution conferred a right upon every aggrieved individual to move to the Supreme Court or High Court directly on infringement of his fundamental right. However, Justice P.N. Bhagwati and Justice Krishna Ayyer , acknowledged that any individual or organization can approach the Supreme Court if any act is done contrary to the public interest.

Meaning of Public Interest Litigation

According to the Black law dictionary “Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” Thus a PIL has following elements:

1. it is a legal action

2. Initiated in a court of law

3. for interest of people

Criticism

The PIL has given right to the under privileged to voice against the injustice done to them. In past the Supreme Court has considered complaints, newspaper reports and credible letters sufficient evidence for initiating proceedings. The court has empowered even third parties (who have no self interest in the matter) to file such litigation.

However the shield for public protection is misused by people as a sword for personal benefit. Organizations file cases under this ambit to evade heavy court fee. Sometimes people file such litigation to pursue their political ambitions. There have been instances of frivolous PIL like to rename India “Hindustan,” rename the Arabian Sea “Sindhu Sagar,” ban vastu, reiki, feng shui, tarot, palmistry, zodiac signs etc and replace the national anthem for one offered by the petitioner.

It has also infuriated the fight between the three organs of the state( executive, legislature and the judiciary). On one hand the judges like Justice S.B. Sinha advocates the importance of judge-made law on the other hand judges like Justice Markandeya Katju emphasis the importance of self restraint on judiciary. Some jurists have opined that judicial activism has now turned into judicial terrorism. It is alleged that about 20% of judges are corrupt. Thus Judicial Accountability is yet another concern in this regard.

The judiciary is also heavily condemned on absence of adversarial trial in PIL’s. Dr. Upendra Baxi has criticized that decisions in Bhopal Tragedy Case, WTO accession and Narmada Dame were dominated by the influence of the global economic elites on the Indian Judiciary. It is criticized that since there is no cross examination litigants may give inaccurate information to the court. The PIL’s are given predominance over the existing cases by the courts. Thus if there is a false or irrelevant allegation, it would be detrimental to the interests of many people. Recently a PIL was filed by a former MP M Narayana Reddy seeking direction to the Andhra Pradesh Speaker to decide on the resignation of over 139 legislators. The SC out rightly rejected his claim saying he had no locus standi on the issue.

Further it is a grave concern that there is no mechanism by which the court can check the effective implementation of its decision. In Vishaka v. State of Rajasthan, the SC had laid broad guidelines on sexual harassment but till date these guidelines have not been legislated.

Conclusion:

Judicial Activism has benefited a considerable number of people. In cases like Sunil Batra, Sheela Barse, Charles Shoobraj, DK Basu and Hussainara Khatoon, Supreme Court took a revolutionary step to safeguard the rights of the accused. Similarly in MC Mehta and Vishaka Case the court evolved directions to protect public interests. The objective of PIL was to over-reach every section of society sadly the same is not happening.

The Supreme Court records state that only 0.4% cases filed in the SC involve PIL. One hand the data reveals that PIL cases don’t hamper the normal working of the courts, on the other hand it shows that from the millions of letters send by ordinary people are neglected and only those through formal channel are entertained. Most of the cases relate environmental concerns, child labor and caste disabilities. There has been significant increase in cases filed by advantaged class ( 57.9% in 1961-1989 to 73.3% in 2000-2008) where as there is a decrease in that filed by the disadvantaged social class ( 71.4% in 1961 -1989 to 47.2 in 2000-2008).

I have personally met the victims of Bhopal Gas Tragedy. They write thousands of letters each day hoping that it would be entertained as a Public Interest Litigation. Their letters are till now unnoticed. It is disgrace that the benefits of P.I.L are not reaching the people for whom it was coined. Although the courts have been instrumental in protecting rights of people. There is a duty vested upon individuals too, lodging of frivolous complaints must be discouraged.

Social Issues

Should Abortion be Legalized in India?

meghna 0 Comments abortion in india, abortions, india pregnancy, india pregnancy issues, indian women torture, issues women india, physical issues woman, pregnancy act 1971, pregnancy laws india

Right to Abortion: is it a right to choice or a right to legal murder? The issue is litigious as well as complicated to answer. The pro-choice arguments which favour the rights of mother are contrary to the religious and spiritual pro-life arguments which consider the rights of the child.

The main concern posed in the debate of legalizing abortion is definitely that who’s right to life must be taken into account. A woman’s right to life definitely comprises her right to choice whether she wants the foetus or not. On the other hand, rights of a father and that of the child cannot be ignored completely.

In India, the Medical termination of Pregnancy Act 1971, states under what conditions legal abortions may be performed:

The continuance of pregnancy involves a risk to the life of the pregnant woman or grave injury to her physical or mental health. There is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously challenged. Pregnancy occurs as a result of failure of any contraceptive device or method used by any married woman or her spouse. Pregnancy occurs due to rape. If the pregnant woman is suffering from any kind of mental disorder or mental illness.

Abortion is a right that is exercised by a woman and not by a mother. It is not akin to a legal murder as the foetus is not a person merely due to impulse of a heartbeat. If abortion is “killing” a child then killing an animal must be equally or rather more severely punished.

It should be the woman and the woman alone who should decide whether she wants to continue with her pregnancy or not. Her right to choice cannot be superseded by religious, moral, societal or ethical norms because ultimately the unwanted child would be brought up by her. But in a country like India where gross female foeticide occurs out of social pressure it must be taken in into account that such mal practices are not legalized under the umbrella of right to choice.

Apart from the MTP Act 1971, Abortion must also be allowed under following conditions:

If it is not purposefully for female foeticide. If the woman is single (unmarried, divorcee, separated or widow) and does not want to continue with her pregnancy. The period of abortion is only limited up to 20 weeks. In a leading case Niketa Mehta and Haresh Mehta, a couple who filed a petition in the court for seeking to abort their first issue who was destined to be born with acute medical anomalies were denied of this right because she was pregnant for 24 weeks. The couple does not have enough means for upbringing of the child. The couple already has a child and does not want another.