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- Tagging a woman’s right to enter the famous Sabarimala temple with her menstrual cycle is unreasonable, the Supreme Court’s Constitution Bench observed.
- The Bench led by Chief Justice of India Dipak Misra asked whether exclusion of women aged between 10 and 50 from entering a temple because they are considered impure amounts to the practice of untouchability, a social evil abolished by law.
- The Bench is hearing the question whether the fundamental right of women to pray at the place of their choice can be discriminated against solely based on a biological factor (menstruation) exclusive to the female gender.
- A batch of petitions has challenged the centuries’ old prohibition on women of a certain age from entering Sabarimala temple.
- The Kerala government pointed out to the Bench that the State supported entry of women into the Sabarimala temple. In 2016, the State had opposed in the Supreme Court.
- On October 13, 2017, the top court had referred the case to a Constitution bench after framing five significant questions including whether the practice of banning entry of women in the temple amounted to discrimination and violated their fundamental rights under the Constitution. These questions included:
- “Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to ‘discrimination’ and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution.”
- Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 of the Constitution and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion.
- Whether the Ayyappa temple has a denominational character and “if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution out of Consolidated Fund of Kerala and Tamil Nadu to indulge in such practice violating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)”.
- Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years. “And if so, would it not play foul of Articles 14 and 15 (3) of the Constitution by restricting entry of women on the ground of sex.”
- Whether this rule is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, “if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution.”
- Chief Justice Misra said that there is no concept of private mandirs (temples). Once a temple is opened, everybody can go and offer prayers there. Nobody, man or woman, can be excluded.
- The Chief Justice noted that the Sabarimala temple drew funds from the Consolidated Fund, had people coming from all over the world, and thus, qualified to be called a public place of worship.
- In a public place of worship, a woman can enter, where a man can go. What applies to a man, applies to a woman.
- Chief Justice Misra pointed out that there were many temples who allowed visitors only to a certain point, but there are none who ban entry to the temple in total.
- Justice D.Y. Chandrachud said women and their physiological phenomena are creations of God. If not god, of nature. Why should this (menstruation) be a reason for exclusion for employment or worship or anything?
- Any religion which excludes women on the basis of their age, sex or menarche is irrelevant.
- He quoted Article 25(1) which mandates freedom of conscience and right to practise religion. It says all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
- This means that the right as a woman to pray is not even dependent on a legislation. It is their constitutional right. Nobody has an exclusionary right of entry to a temple.
- Justice Rohinton Nariman, also on the Bench, observed that the Constitution upheld the ideals of liberty of thought, expression, belief and faith, be it man or woman.
- Justice Nariman said the prohibition on women aged between 10 and 50 is arbitrary. He said menstruation can also happen as early as nine and extend to late fifties.
- Jaising submitted that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 allows a religious denomination to ban entry of women between the age of 10 to 50 years.
- She said the discrimination was a violation of the fundamental rights to equality and gender justice.
- She said the right to enter a temple extends to all Hindus, regardless of caste, sex or gender. What is good law for Harijans is good law for women.
- When Justice Chandrachud initially told Ms. Jaising that the petitioners should rather focus on Article 25 (freedom of religion) than Article 17 (abolition of untouchability) of the Constitution, Ms. Jaising responded that menstruating women are even not allowed to intermingle within their own family. This is untouchability!
- On Rule 3(b) and the right of a religious denomination to ban women from entering temples, Ms. Jaising said that the freedom of conscience resides in humans. Institutions only have the right to manage their affairs. Denomination have no right under Article 25.
- Senior advocate Raju Ramachandran said the prohibition on menstruating women amounts to drawing out a forced declaration from women about their menstruation. This is a violation of their dignity and privacy and amounts to involuntary disclosure.
The government wants to avoid controversial FRDI Bill 2017 ahead of the general election due in 2019
- The government has decided to withdraw the contentious Financial Resolution and Deposit Insurance Bill 2017, or FRDI Bill to avoid controversial legislation ahead of the 2019 general election.
- It was tabled in the Lok Sabha in August, following which it was referred to the joint parliamentary committee. The panel is due to submit its report on the last day of the ongoing monsoon session.
- The bill aims to limit the fallout of the failure of institutions such as banks, insurance companies, non-banking financial companies, pension funds and stock exchanges.
- However, some of its provisions have been termed anti-people and anti-poor by the opposition parties who have pointed out that people’s money will be used to bail out banks that make bad lending decisions through a corresponding reduction in the claims of depositors.
What is ‘Bail in’ clause?
- A bail-in is rescuing a financial institution on the brink of failure by making its creditors and depositors take a loss on their holdings.
- A bail-in is the opposite of a bail-out, which involves the rescue of a financial institution by external parties, typically governments using taxpayer’s money.
Ambiguity over ‘bail-in’
- The bill has been criticized for some of its controversial provisions, including a “bail-in” clause, which suggests that depositor money could be used by failing financial institutions to stay afloat.
- The lack of clarity over protecting existing levels of deposit insurance for smaller deposits also led to a lot of criticism.
- At present, deposit insurance is available for all deposits of up to ₹1 lakh but there was no clarity on whether it will be continued in the bill.
- The decision to withdraw the bill comes as a surprise because the government has been vociferously defending the provisions of the bill by pointing out that the bail-in clause will not adversely impact depositors.
- The government had maintained that the implicit sovereign guarantee for state-run banks remains unaffected.
- The WCD Ministry official said a draft cabinet note has been circulated that proposes to make child marriages “void ab initio” (invalid from the outset).
- The proposal of the ministry, if approved, would amend the law that allows child marriages to continue, despite an October 2017 Supreme Court ruling that “sexual intercourse with a minor wife amounts to rape, as under no circumstance can a child below 18 years give consent, express or implied, for sexual intercourse”.
- Currently, child marriages are valid in India, but can be annulled if a case is filed in a district court by either of the two contracting parties within two years of becoming an adult, or through a guardian in case of minors.
- The ministry seeks to amend section 3 of the Prohibition of Child Marriage Act, under which a child marriage is only voidable at the option of the contracting parties.
Current Scenario of Marriages
- The legal age for marriage in India is 18 for a woman and 21 for a man.
- According to a study based on Census 2011, there are 2.3 crore child brides in the country.
- The National Family Health Survey (NFHS) 2015-16 also showed that 26.8 per cent women were married off before they turned 18.
- According to the NFHS 2015-16, nearly eight per cent girls in the 15-19 age group had already become mothers or pregnant at the time of the survey.
Vulnerabilities of child brides
- The WHO in a report dealing with the issue of child brides, found that though 11 per cent of the births worldwide are among adolescents, they account for 23 per cent of the overall burden of diseases.
- Therefore, a child bride is more than doubly prone to health problems than a grown up woman.
Who is a fugitive economic offender?
- Under the Fugitive Economic Offenders Ordinance, promulgated by the President in April, a fugitive economic offender is any individual against whom a warrant for arrest in relation to a scheduled offence has been issued by any court in India and who has either left India to avoid criminal prosecution, or who, being abroad, refuses to return to India to face criminal prosecution.
- The list of offences that can qualify an individual to be designated an economic offender, enumerated in the schedule to the Ordinance, includes offences under several Acts such as:
- Negotiable Instruments Act, 1881;
- Reserve Bank of India Act, 1934;
- Central Excise Act, 1944;
- Customs Act, 1962;
- Prohibition of Benami Property Transactions Act, 1988;
- Prevention of Money Laundering Act, 2002; and
- Indian Penal Code.
What happens if a person is designated a fugitive economic offender?
- If the special court is satisfied that an individual is a fugitive economic offender, it can direct the Central government to confiscate the proceeds of the crime in India or abroad, whether or not such property is owned by the fugitive economic offender, and any other property or benami property in India or abroad that is owned by the fugitive economic offender.
- While the confiscation of property within India should not be a problem for the Centre, confiscating properties abroad will require the cooperation of the respective country.
- The fugitive economic offender will also be disqualified from accessing the Indian judicial system for any civil cases.
On whom does the burden of proof lie?
In keeping with the principle of ‘innocent until proven guilty’, the burden of proof for establishing that an individual is a fugitive economic offender or that certain property is part of the proceeds of a crime is on the Director appointed to file an application seeking fugitive economic offender status.
- The court has asked Parliament to consider passing a special law on lynching
- As the grim threat of lynching casts a terrifying shadow over large swathes of the country, directions from India’s Supreme Court to all governments to take steps to prevent what it described as “horrendous acts of mobocracy” can only be welcomed
- This is essential to protect citizens and ensure that the “pluralistic social fabric” of the country holds against mob violence
Lynching as a crime in India
- Lynching is not officially a crime in India
- But if state administrations choose to clamp down, the Indian Penal Code already punishes all the criminalities perpetrated by lynch mobs
- Section 223(a) of the Code of Criminal Procedure also enables a group of people involved in the same offence to be tried together
- Lynching is not just “mobocracy”; it is a collective hate crime
- Lynching may be sparked variously by disputes over allegations of cow smuggling or slaughter, or wild rumours of cattle theft or child kidnapping, or something even as trivial as a seat in an unreserved train compartment
- Whatever the ostensible trigger, murderous mobs gather to lynch people of hated identities with gratuitous cruelty
Minorities & disabled are easy targets
- IndiaSpend found that 86 per cent of persons killed in cow-related lynching were Muslim, and 8 per cent Dalit
- The recent spate of mob killings on rumours of child kidnapping target strangers and mentally challenged persons
Reasons for rise in lynchings
- These hate crimes flourish most of all because of the enabling climate for hate speech and violence which is fostered and legitimised from above
- This frees people to act out their prejudices, and the impunity assured by state administrations to the perpetrators
- Senior ministers and elected representatives frequently come out in open defence of the attackers, charging the victims with provoking the attacks
- The members of the lynch mob in most incidents of lynching video-tape the act and upload the videotapes
- To record one’s crimes and display these on the social media reflects a brazen confidence that you will not be punished for your crime, and even if you are nabbed, you will be a hero for the ruling establishment
Role of police
- There is a recurring pattern in police action too. If present, even as the slaughter of innocents unfolds, they don’t act, pleading later that they were outnumbered
- In most cases, they come in too late to save lives, and very often they register crimes against the victims and drag their feet to charge and arrest the attackers
- After the lynching, police often tries to record the incident as a crime of cow smuggling, animal cruelty, rash driving and road rage
- In its investigations, the police never cordon off the site of the lynch attacks: Even hours after the crime, people walk over the ground still splattered with blood or burned flesh
- This is not a shoddy investigation. It is deliberate (and criminal) destruction of evidence which could have been used against the killers
- The police in almost every case, instead, registers crimes against the victims
Just a moral failure?
- For people in political authority, uniform and magistrates to take sides in hate battles is a profound crime against humanity
- Yet this still is recognised at best as a moral failure, not a punishable crime
- If there is any new law we need to prevent the spread like an epidemic of this new scourge of targeted hate crime, of lynch mobs, it requires only one law, and this is the creation of a crime of dereliction of duty and communal partisanship by public officials
- The challenge, ultimately, is not of law, but of our collective morality and our collective humanity
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