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Archives for : August2017

SC order on domestic abuse cases undoes decades of women’s rights movement

We can’t let a patriarchal barrier erect between the battered women and the law.

ANGSHUKANTA CHAKRABORTY

The latest Supreme Court order on domestic violence and abuse cases, ostensibly to “prevent the misuse of Section 498A of the Indian Penal Code” that penalises violence by husband and in-laws, is one more regressive step that undoes many decades of the feminist fight for equal rights, and women’s right to legal remedy in situations as delicate and volatile as domestic violence.

On July 27, the apex court pronounced its judgment issuing a new set of directions to “prevent the misuse of Section 498A of the IPC”, as the two-judge bench of Justices AK Goel and UU Lalit asked for the constitution of “family welfare committees” to look into cases against Section 498A before any action is taken on the matters.

The judgment, in case titled, “Rajesh Sharma and Ors versus State of Uttar Pradesh”, is, in fact, the latest in the now long line of regressive verdicts that seek to overturn and undo the decades of women’s struggles for legal recourse, for bodily autonomy and privacy over family matters and patriarchal fetters informing those setups. In fact, in 2014, the top court had ordered that no automatic arrests should be undertaken under Section 498A of IPC because there’s “misuse” of the law by disgruntled women.

violence-women-body_080117034837.jpgThe narrative of ‘terrorised menfolk’, ‘battered husbands’, has consolidated itself enough to elicit a strong response from not only the SC, but also the Union Ministry of Women and Child Development.

The narrative of “terrorised men”, “battered husbands”, “victims of Section 498A”, “Section 498A as a brahmastra in the hands of wives/women” has gained so much traction over the last decade that male journalists do not hesitate to peddle this bunkum at the altar of equal rights. But when the Supreme Court itself falls for such a well-crafted male entitlement narrative, then commentators and “men’s rights activists” shouldn’t be singled out, though it’s definitely because of their relentless attempt to hijack the feminist achievements that the SC too has given in.

Subsuming women’s access to law

It’s worthwhile to note the return to the patriarchal roots in the 2014 judgment of the Supreme Court, when it said:

“There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and the relatives arrested under this provision. …The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across as heads…”

Family welfare over woman’s well-being

Just like in 2014, the focus has shifted from the battered woman to the family and well-being of the older in-laws, thereby once again consigning the autonomy of the woman to dust. In the latest 2017 judgment, the directions to create the “family welfare committee” are intended to save the institution of marriage than the woman who’s being abused within that institution.

This is dismissing her pleas of help as mere overreaction by a disgruntled wife, considering domestic violence as part and parcel of marital relationship, and not something that merits automatic action by the authorities, as well as chaining the woman to the marriage and erecting a patriarchal barrier of family welfare between her and the law, obstructing her to right to direct access and equality before law.

In fact, this 2017 order subsumes the married woman’s autonomy and infringes on her fundamental right to equality before law, right to life and liberty by asking mediators to come between her and the law that’s supposed to safeguard her.

Inserting patriarchy between women and law

The latest judgment of the Supreme Court has given the following directions:

i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.  

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. 

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication.

e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected. 

It’s extremely disconcerting that “misuse” of law has been used as an excuse to water down the law itself, the Prevention of Cruelty in Domestic Violence Act, which was legislated in 2005 after much hue and cry and struggles by women’s rights groups and feminist advocates. As advocate Sanjoy Ghose observes, this is classic Supreme Court double standards because the top court had no qualms upholding Section 377 in the Suresh Kumar Kaushal versus Naz Foundation (also known as the infamous Kaushal judgment) of 2013, when it chose to overlook the misuse by police authorities and overturn Delhi High Court judgment of 2009 reading down Section 377.

The narrative of “terrorised menfolk”, “battered husbands”, has consolidated itself enough to elicit a strong response from not only the SC, but also the Union Ministry of Women and Child Development. Maneka Gandhi, in a twisted logic that reinserts male entitlement as a prerequisite to decide how the law should take its course, has said the need for a “window” to address men who complain of false cases. In a letter sent to the National Commission of Women chairperson Lalitha Kumaramangalam, Gandhi has asked for the window to be “operationalised within a fortnight” as she is particularly “concerned with the fact that the (men are battered) voice [becoming] more and more loud in the last few months”.

While Gandhi might be looking at addressing the rising concern, it’s the verdict from the Supreme Court that’s the real dampener.

In fact, advocate Sanjoy Ghose has explained how women in domestic abuse or violence, marital rape situations have little recourse but to slap Section 498A, as fighting a long-winded and extremely expensive civil suit for divorce and child custody remains a completely nonviable option for the women.

It is tragic that “family welfare” has become the lens through which to look at women’s grievances, and not via the women’s right to life, physical well-being, non-discrimination, etc.

This is a classic case of patriarchy rearing its head again and asserting itself through family welfare over and above the woman’s right as an equal citizen before the eyes of the law.

This clearly puts forward the mindset that women are not capable of speaking for themselves, and are emotional beings who use the law for vindictive purposes, weaponising the “shield”. This is classic distrust of the woman as an infantile hysteric not to be entrusted with looking after herself, or representing herself in the eyes of (a very patriarchal and once-again misogynistic) law.

The very fact that the SC has decided to resurrect the very biases that women’s organisations and legal NGOs fought tooth and nail to cast aside, at least from the rule book, is a blow to the foundations of the decades-long movements for women’s liberation, autonomy, financial and bodily independence, equal rights and non-discrimination, remedy against sexual harassment, abuse and domestic violence and many more struggles.http://www.dailyo.in/politics/supreme-court-domestic-abuse-womens-rights-section-498a/story/1/18704.html

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Supreme Court imposes 100% penalty on illegal mining in Odisha

 

#OdishaMining: Scandal of enormous

proportions, caused untold misery to the

tribals,Supreme Court

 BY -Murali Krishnan 

Odisha Mining

A mining scandal of “enormous proportions involving megabucks” – these are the opening words of the Supreme Court in its judgment in the Odisha mining case.

A bench of Justices Madan B Lokur and Deepak Gupta today ordered mining companies to pay a 100 percent compensation on the price of any iron ore or manganese ore extracted contrary to Environment Impact Assessment notification, 1994 or Environment Impact Assessment notification, 2006.

The judgment came in a writ petition filed by NGO Common Cause praying for stopping of all illegal mining in Odisha and a CBI probe into illegal mining in the State.

Advocate Prashant Bhushan appeared for the petitioner NGO while Additional Solicitor General Pinky Anand appeared for the Central government. Senior Advocate Rakesh Dwivedi appeared for State of Odisha. A host of Senior Advocates represented various mining companies including Senior Advocates AM Singhvi, P Chidambaram and Gopal Subramanium

The Court began its judgment by stating that the facts revealed during the hearing of the petition suggested a mining scandal of enormous proportion. The effect of the mining on tribal population has also been allured to in the very first paragraph of the judgment which reads as follows:

The facts revealed during the hearing of these writ petitions filed under Article 32 of the Constitution suggest a mining scandal of enormous proportions and one involving megabucks. Lessees in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha have rapaciously mined iron ore and manganese ore, apparently destroyed the environment and forests and perhaps caused untold misery to the tribals in the area. However, to be fair to the lessees, they did the detail steps taken to ameliorate the hardships of the tribals, but it appears to us that their contribution is perhaps not more than a drop in the ocean – also too little, too late.”

The Court then proceeded to consider various aspects of the case.

Central Empowered Committee Report

The Court placed reliance on the report of the Central Empowered Committee (CEC). The CEC gave its final report on April 25, 2014 which was considered by the Court and a detailed interim order was passed on May 16, 2014.

“The sum and substance of the final report dated 25th April, 2014 and the interim order is that in the districts of Odisha that we are concerned with, namely, Keonjhar, Sundergarh and Mayurbhanj, the total number of leases granted for mining iron and manganese ore are 187. Of these, 102 lease holders did not have requisite environmental clearance (under the Environment (Protection) Act, 1986) or approval under the Forest (Conservation) Act, 1980 or approved mining plan and/or Consent to Operate under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1981.”

According to the final report of the CEC

“…..excess mining without environmental clearance or beyond what was authorized by the environmental clearance is 2130.988 lakh MT of iron ore and 24.129 lakh MT of manganese ore making a total of 2155.117 lakh MT of iron and manganese ore. This does not include extraction of ore without forest clearance. These figures give an indication of the extent of excess or illegal or unlawful mining carried out.

In terms of rupees, according to the CEC the total notional value of minerals produced without an environmental clearance or in excess of the environmental clearance, at the weighted average price of minerals as proposed by the Indian Bureau of Mines comes to about Rs.17091.24 crores for iron ore and about Rs.484.92 crores for manganese ore making a total of Rs.17,576.16 crores.”

The Court then discussed various statutory provisions applicable in the instant case.

Illegal Mining

One of the important questions dealt with by the Court was regarding the scope and ambit of “illegal mining”. The contention of the mining companies was that only mining operations outside the mining lease area would constitute ‘illegal mining’. Thus violation of any rule within the mining lease area would not come within the definition of ‘illegal mining’.

However, the Court rejected this argument and held that illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area which is held under lawful authority, if that excess extraction is contrary to the mining scheme, the mining plan, the mining lease or a statutory requirement.

“The simple reason for not accepting this interpretation is that Rule 2(ii a) of the MCR was inserted by a notification dated 26th July, 2012 while we are concerned with an earlier period. That apart, as mentioned above, the holder of a mining lease is required to adhere to the terms of the mining scheme, the mining plan and the mining lease as well as the statutes such as the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.

If any mining operation is conducted in violation of any of these requirements, then that mining operation is illegal or unlawful. Any extraction of a mineral through an illegal or unlawful mining operation would become illegally or unlawfully extracted mineral.”

Conclusions on mining without an Environment Clearance or Forest Clearance

The Court drew a slew of conclusions regarding such mining. Some of them are:

  • A mining project that has commenced prior to 27th January, 1994 and has obtained a No Objection Certificate from the SPCB prior to that date is permitted to continue its mining operations without obtaining an EC from the Impact Assessment Agency. However, this is subject to any expansion (including an increase in the lease area) or modernization activity after 27th January, 1994 which would result in an increase in the pollution load. In that event, a prior EC is required. However, if the pollution load is not expected to  increase despite the proposed expansion (including an increase in the lease area) or modernization activity, a certificate to this effect is absolutely necessary from the SPCB, which would be reviewed by the Impact Assessment Agency.
  • The renewal of a mining lease after 27th January, 1994 will require an EC even if there is no expansion or modernization activity or any increase in the pollution load.
  • There is no doubt that a new mining project after 27th January, 1994 would require a prior EC.
  • Any iron ore or manganese ore extracted contrary to EIA 1994 or EIA 2006 would constitute illegal or unlawful mining (as understood and interpreted by us) and compensation at 100% of the price of the mineral should be recovered from 2000-2001 onwards in terms of Section 21(5) of the MMDR Act, if the extracted mineral has been disposed of. In addition, any rent, royalty or tax for the period that such mining activity was W.P. (C) Nos. 114/2014 etc. Page 96 of 114 carried out outside the mining lease area should be recovered.
  • Any mining activity carried on after 7th January, 1998 without an FC amounts to illegal or unlawful mining in terms of the provisions of Section 21(5) of MMDR Act attracting 100% recovery of the price of the extracted mineral that is disposed of.

Inter-generational Equity: Review of National Mineral Policy 2008

The petitioner, relied on the principles of inter-generational equity and urged the Court to place a limit on mining in the State of Odisha. The Court noted that though there is considerable substance in the submissions of the petitioner, such a duty is not within its domain.

“…it is really not for this Court to lay down limits on the extent of mining activities that should be permitted by the State of Odisha or by the Union of India. Nevertheless, this is an aspect that needs serious consideration by the policy and decision makers in our country in the governance structure.”

The Court, however, called upon the Union of India to revisit the National Mineral Policy, 2008 and announce a fresh and more effective policy by the end of this year.

“…it is high time that the Union of India revisits the National Mineral Policy, 2008 and announces a fresh and more effective, meaningful and implementable policy within the next few months and in any event before 31st December, 2017.”

No CBI probe, instead Expert Committee headed by retired Supreme Court judge

The Court turned down the request for CBI probe stating that there is time to learn lessons from the past and it can be achieved by identifying lapses and finding solutions.

“For the present, we do not propose to direct an investigation or inquiry by the CBI for the reason that what is of immediate concern is to learn lessons from the past so that rapacious mining operations are not repeated in any other part of the country. This can be achieved through the identification of lapses and finding solutions to the problems that are faced.”

The Court, therefore, chose to set up an Expert committee to identify the lapses that have occurred over the years enabling rampant illegal or unlawful mining in Odisha and measures to prevent this from happening in other parts of the country. The Committee would be presided by a retire Supreme Court judge. The Court stated that all parties would be heard with regard to the setting up and composition of the committee.

Read the judgment below.

 

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SC refuses to stay EC notification allowing NOTA in RS polls in Gujarat

Bench of Justices Dipak Misra, Amitava Roy and A.M. Khanwilkar denies the Gujarat Congress’s plea to freeze the option.

The ‘None Of The Above’ (NOTA) will continue as an option on the ballot paper in the coming Rajya Sabha elections, with the Supreme Court on Thursday refusing to stay a three-year-old Election Commission circular that introduced it in Rajya Sabha elections.

A Bench of Justices Dipak Misra, Amitava Roy and A.M. Khanwilkar denied the Gujarat Congress’s plea to freeze the option for MLAs voting in the Assembly for the Rajya Sabha polls.

Senior advocate Kapil Sibal, appearing for the Congress, submitted that NOTA would be a “recipe for corruption” and it would be seen as if the court was turning its back on corruption. He raised the concern that MLAs could defy party whips and invalidate their votes by opting for NOTA.

To this, Justice Roy asked Mr. Sibal whether he was apprehensive of losing the Rajya Sabha polls in Gujarat, scheduled for August 8.

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NOTA option in Rajya Sabha polls since 2014: EC

The court, however, issued notice to the Election Commission of India, saying the poll body should be heard in detail as any judicial decision on NOTA may have a ripple effect on elections conducted between January 24, 2014 to the present day.

The court asked why the Congress was challenging the circular now while noting, “God knows how many elections were held from January 26, 2014”.

The court specifically recorded Attorney General K.K. Venugopal’s submission that the Union of India does not in anyway interfere with the decisions of the Election Commission and, hence, has no truck in this case.

Consequently, the court issued notice only to the Election Commission for a response on the Gujarat Congress’s challenge of its January 24, 2014 notification. Though the Union was let off as a party in the case, Mr. Venugopal was roped in by the Bench to assist the court.

“Does the Election Commission not consult political parties before issuing such a circular?” Justice Khanwilkar asked at one point even as the court scheduled the case for hearing the Election Commission on September 13.

“The system of NOTA makes the system of proportional representation by means of single transferable vote nugatory and otiose and cannot be made applicable in Rajya Sabha Elections. The use of NOTA cannot be sanctioned by way of the impugned circulars which has the effect of overriding the provisions of Article 80(4), the provisions of Representation of People Act 1951 and the Conduct of Election Rules 1961,” Shailesh Manubhai Parmar, Gujarat Congress whip, submitted in his petition.

The petition said the 2014 circular to introduce NOTA is ex facie illegal, arbitrary and tainted with malafides as an executibe instruction cannot override express statutory provisions.

For example, the 1961 Rules mandates that a candidate should come first in the list on a ballot paper. But here NOTA is listed as the first preference.

It said the Election Commission, “despite being the constitutional watch dog for ensuring free and fair elections, has become a tool in the hands of the ruling dispensation to facilitate violation of the provisions of the Constitution, the provisions of the Act and the Rules”.

The Election Commission issued a Press Note on July 14 on the conduct and schedule of biennial elections to the Council of States for the States of Gujarat (3 seats), West Bengal (6 seats) and Madhya Pradesh (1 seat).http://www.thehindu.com/news/national/sc-refuses-to-stay-ecs-notification-for-nota-in-rs-polls/article19413833.ece

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