📰 2013 Justice Verma panel report wanted changes to sexual harassment law
The panel proposed State-level employment tribunal to deal with complaints.
•The Centre recently announced its plan to set up a panel of judges to look into the legal and institutional framework to curb sexual harassment at workplaces following the #MeToo campaign on social media.
•However, as early as 2013, the Justice J.S. Verma Committee, in its landmark report on gender laws, had recommended setting up of an employment tribunal instead of an internal complaints committee (ICC) in sweeping changes to the Sexual Harassment at the Workplace Bill.
•The panel was formed in the aftermath of the December 16 Nirbhaya gangrape in 2012 and the ensuing nationwide protests, and submitted its report on January 23, 2013.
•At that time of the submission of the report, the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Bill had already been passed by the Lok Sabha and was awaiting the Rajya Sabha's nod. The Bill was passed unchanged by the Upper House a month later.
•The Committee, chaired by Justice Verma and including Justice Leila Seth and senior lawyer Gopal Subramanium, termed the Sexual Harassment Bill “unsatisfactory” and said it did not reflect the spirit of the Vishakha guidelines — framed by the Supreme Court in 1997 to curb sexual harassment at the workplace.
•The report noted that an internal complaints committee as laid down under the then proposed law would be “counter-productive” as dealing with such complaints in-house could discourage women from filing complaints. Instead, the committee proposed forming an employment tribunal to receive and adjudicate all complaints.
•To ensure speedy disposal of complaints, the Justice Verma Commitee proposed that the tribunal should not function as a civil court but may choose its own procedure to deal with each complaint.
Onus on employer
•The Committee said any “unwelcome behaviour” should be seen from the subjective perception of the complainant, thus broadening the scope of the definition of sexual harassment.
•The Verma panel said an employer could be held liable if he or she facilitated sexual harassment, permitted an environment where sexual misconduct becomes widespread and systemic, where the employer fails to disclose the company’s policy on sexual harassment and ways in which workers can file a complaint as well as fails to forward a complaint to the tribunal. The company would also be liable to pay compensation to the complainant
•The panel also made several suggestions to encourage women to come forward and file complaints. For instance, it opposed penalising women for false complaints and called it an “abusive provision intended to nullify the objective of the law”.
•The Verman panel also said that the time-limit of three months to file a complaint should be done away with and a complainant should not be transferred without her consent.
📰 When the judiciary rewrites a faith
If a community believes in, and establishes a religious practice as essential, it should be accepted
•The Supreme Court’s majority decision in the Sabarimala case has rewritten the constitutional dispensation on freedom of religion, equality and untouchability, in contrast to Justice Indu Malhotra’s no-less-admirable dissenting judgment.
•When it comes to religious endowments, British-era laws espoused the need for a trust-like structure, with a pointed effort to control corruption in religious institutions, as reflected in pieces of legislation like the Religious Endowment Act, 1863; the Charitable Endowments Act, 1890; and the Civil Procedure Code. The Union government’s Report of the Hindu Religious Endowments Committee (1962) worked out a plausible strategy for a fair administration of these endowments without disturbing their religious integrity. From 1950 to 2018, the Supreme Court has dealt with approximately 90 decisions on conflicts between Hindu endowments and pieces of legislation to control them.
Protected by Articles 25-28
•Endowments are institutional vehicles through which religions define and perpetuate themselves. These are protected by Articles 25-28 of the Constitution — those dealing with religious freedom, social welfare and reform. In the Constituent Assembly, the social welfare and reform arguments were powerfully argued by Rajkumari Amrit Kaur, Hansa Mehta and K.T. Shah.
•In independent India, various regulatory statutes were passed in States like Bihar, Tamil Nadu, Odisha, Andhra Pradesh, Uttar Pradesh and Kerala. From the Shirur Mutt case (1954) to now, the Supreme Court has been concerned with testing whether and where these laws infringed upon the guaranteed rights of management, belief, practice and propagation (Article 25, 26).
•In my view, the advent of these statutes resulted in ‘nationalisation’ of religion and of the major Hindu and Buddhist temples of India. The Supreme Court’s strategy was twofold: to protect the essential practices of the faith; and balance this against the insistent exigencies to control the practices. Unfortunately, later on, the apex court ruled some faiths as not religious at all — as happened to the creed practised by the followers of Sri Aurobindo. The court also ruled in some cases that certain practices were not ‘essential’ to a faith — for instance, the tandava dance practised by the the Ananda Margi people. Interestingly, Justice A.R. Lakshmanan rightly noted in his dissenting judgment that the dance was essential to the practice, though a balance had to be worked out with the need for public order, morality and health.
•It is really not necessary to go into how the Supreme Court has clipped away at some claims of ‘essentiality’. From the 1950s, the Supreme Court has also been using the word ‘integral’ while ruling on religious practices. In the Kashi Vishwanath Case, (1997), Justice K. Ramaswamy held that ‘integral nature’ was an additional test for ‘essentiality’. This would cut down the scope for religious freedom. The Babri Reference Case (2018) was supposed to rule on this but did not, explaining that the earlier comments on the ‘non-essentiality’ of mosque for prayer were made in another context. The minority judge, S. Abdul Nazeer, thought otherwise. My view is that if a community bona fide believes in, and establishes the existence of a practice as essential, it should be accepted. Any other interpretation by the judiciary would amount to rewriting the faith. The other constitutional limitations to restrict religious freedom would still be applicable and not obviated.
•It is not for the Supreme Court to tell people what their bona-fide faith is. In the Yagnapurushadji case (1966), Justice P.B. Gajendragadkar insisted that followers of the Swaminarayan sect were Hindus when they insisted they were not. Instead, he could have simply said that under the broad terms of Article 25(2), they were Hindus for the purpose of temple entry. Earlier, in the Devaru Temple Entry Case (1958), the balance struck was that temple entry to untouchables was permitted — as it had to be — but not to the inner sanctum and its ceremonies. This ‘balance’ was perhaps less controversial then than it is now.
•The Sabarimala case (2018) concerned the admission of women aged between 10 and 50. The denial was based on the primary argument that Lord Ayyappa was celibate and that women of the age of fertility were not permitted to a temple devoted to him. The other justification that women could not undertake the arduous journey uphill was unconvincing as girls below 10 and women who were over 50 were allowed to do so.
•What stood in the way of accepting women’s entry were some issues, including: a) Was it a denominational temple? (b) Was denying entry to women an essential practice? (c) Could Article 17 on untouchability be invoked? (d) Did public morality mean constitutional morality and to what effect? (e) How was the balance to be struck? (f) What were the statutory implications?
The Sabarimala judgment
•The majority view by Chief Justice Dipak Misra (also for Justice A.M. Khanwilkar); Justice Rohinton Fali Nariman; and D.Y. Chandrachud was that denial of entry to women was not a ‘denominational’ or an ‘essential practice’; Article 17 applied (according to Justice Chandrachud); and constitutional morality included equality and gender justice.
•Here, we need to examine Justice Indu Malhotra’s spirited dissent. She struck the right note asserting that even if religious beliefs and practices are not accepted as rational by all, there is no reason to deny them constitutional protection. I think that she was right in holding that this was a denominational temple dedicated to Lord Ayyappa and that non-entry of women was an ‘essential practice’ associated with prayer. She was also perfectly right in saying that the ambit of abolition of untouchability, as mandated under Article 17, cannot be taken beyond ending of discrimination against Scheduled Castes and Scheduled Tribes. She said that broadening the provision to include all forms of social ostracism would amount to diluting the protection available to Dalits and tribal people. Most of all, she pointed out that even if we accept constitutional morality as a limitation, this argument was circular in that constitutional morality includes both equality and the right to religious freedom. She said the social reform provisions required specific legislation not enacted in this case. Though Justice Indu Malhotra struck the balance in favour of religious freedom, she could have considered this in the context of public morality, and not constitutional morality, to come to a different conclusion. Having said that, her judgment seems more correct than that of the majority.
📰 The imperative of impact assessment
The outcomes of laws need to be analysed before enactment
•Legislation and policies in the country are often passed with inadequate scrutiny and assessment. Increasingly, the ‘rush towards law’ results in policies and legal frameworks that are mostly reactive and seek to offer quick-fix solutions to complex problems. As a result, both law-makers and citizens are frequently blindsided by the unanticipated impact of these moves and the lawsoften run aground on issues of implementation.
•Ultimately, the time and effort it takes to undo and resolve the issues caused by such hasty law-making can compound the problem that the law was intended to resolve, making the entire exercise of ‘fixing’ the issue futile. One only has to look at the recent Aadhaar judgment to realise that laws create facts on the ground that are neither easy nor inexpensive to reverse, if at all it is even possible to do so.
•This gives rise to a question: what is the function of law in a society? There are good reasons to believe that at a minimum, legislation seeks to create a framework that helps coordinate certain governance processes or to resolve certain identified problems. It also articulates a standard of morality and an ethical approach that a society and government deems appropriate.
Little awareness of impact
•However, law-making in India is still largely conducted in silos which ensures that there is little consciousness of how these might potentially impact, either directly or indirectly, aspects of the economy, ecology, development and society in ways that might be wholly unintended by their framers.
•This lack of consciousness stems from multiple causes, including the nature of political economy in India, the lack of a formal assessment structure for these laws and rules and the increasing complexity of law-making in today’s diverse and interconnected societies.
•Take for example, the legal framework that aims to protect our biological resources — the Biological Diversity Act, 2002 (BDA). In addition to the fact that awareness of the BDA’s provisions is extremely limited among the judiciary and the executive, the provisions of the act are so contradictory that conservation, use and development action have almost come to a standstill.
•The idea of legislative impact assessments is slowly getting traction around the world, since there is widespread acceptance of the idea that laws and rules need to be comprehensively analysed prior to their enactment so as to minimise such negative externalities, or at the very least, to identify them.
•Given the current scenario, we believe that the need of the hour is an impact assessment that focuses on policy and legal frameworks before they are passed. Countries like Kenya and Finland have mechanisms in place for the assessment of regulatory and legislative proposals as an essential part of their legislative process.
•Based on our current research suggesting the need for a policy and legislative impact assessment (PLIA) framework for India, we strongly feel that such a framework be submitted and released to the public along with every proposed Bill. At a minimum, a framework would (a) identify the policy problem, its root cause and the need for action; (b) benchmark it against available alternatives; (c) conduct stakeholder meetings and identify potential impact; and d) pre-empt possible conflicts by identifying and planning for the mitigation of any and all negative effects of taking such an action. Currently we have drafted a PLIA framework that is being discussed and debated by experts and public for further use and adoption more formally by the executive.
•There are, of course important caveats. A PLIA should be a fundamentally iterative process that seeks to methodically apply a framework that assesses policies and laws at a granular level before they are put into place. Moreover, we should be wary of the manner in which the costs and benefits of proposed legislation and policies are identified — for example, laws have persistently sought to undervalue ecosystem services as well as indigenous peoples’ rights.
•We believe that establishing and following a PLIA framework in both letter and spirit would allow us to identify optimal law and policy changes and ensure that preferred options are those that are economically feasible, operationally viable, and socially acceptable, among several other considerations. Above all, such a framework would promote transparent and democratic law-making in the country and allow citizens to understand and debate trade-offs created by such laws even before they are formalised.
📰 Bonding with Africa, in partnership
India and China need to link their development plans for the continent.
•Chinese President Xi Jinping grabbed headlines last month after announcing a hefty $60 billion package for Africa. African leaders have been naturally ecstatic after Mr. Xi’s announcement in Beijing at the inaugural of the Forum on China-Africa Cooperation (FOCAC). At the FOCAC, a triennial assemblage of African and Chinese leaders, the 50-plus African leaders and their Chinese hosts charted big plans to build roads, power plants, and railways and much more in Africa.
•Mr. Xi’s mega announcement should trigger celebrations not only in Africa, but also among heads of the emerging economies, especially those of other nations in the Brazil-Russia-India-China-South Africa (BRICS) grouping. That is, if they reject the media-hyped argument that China, eyeing Africa’s natural resources, is seeking to ensnare the continent into another round of political serfdom through carefully laden “debt traps”. In this narrative, the Chinese Goliath, inching towards global domination, must be stopped in its tracks, before it is too late.
•Like China, India also hosts its own triennial conclave with African leaders, which was last held in 2015. Though headline numbers show that in dollar throughput, it is distant from China, India’s contribution to Africa’s development is nonetheless significant.
•If China and India are serious about the rise of Africa, the key is to co-link their development strategies on a continental scale. The good news is that both countries seem to have done some spadework, in finding an imaginative coordinating mechanism that could benefit them, as well as Africa.
•Ahead of the BRICS summit in Johannesburg in July, when Mr. Xi and Prime Minister Narendra Modi visited Rwanda almost at the same time, Chinese Foreign Ministry put out the message that New Delhi and Beijing should vigorously pursue the ‘China-India Plus One’ or ‘China-India Plus X’ model in engaging with Africa.
•The mandarins in Beijing were referring to the mechanism yielded by the Wuhan informal summit in April between Mr. Xi and Mr. Modi, where it was decided that China and India would coordinate their approaches for engaging a third country or set of countries in South Asia and beyond. The Chinese also described Beijing and New Delhi as “like-minded partners” in Africa.
•Meanwhile Russia has already launched an initiative to bond with Africa. South Africa, the host of the recent BRICS summit and co-chair of FOCAC in Beijing, will always remain the natural gateway for a vibrant emerging economy engagement with Africa. But someone, preferably a post-Wuhan India, must pick up the threads and weave a potent emerging economy narrative for bonding with Africa, triggering a structural shift of global significance.
📰 Windmills not so green for wildlife
Researchers find birds, animals moving from turbine locations to forest fringes
•Windmills are seen as a source of green energy, but researchers say they pose a threat to wildlife in forests through collisions and noise.
•The impact of the giant structures in Karnataka was studied by researchers from Salim Ali Centre for Ornithology and Natural History (SACON) during a two-year project. They found that windmills killed birds and bats in collisions, and that birds and mammals also moved away due to the noise.
•The noise levels near windmills go up to 85 decibels (dB), the equivalent of large trucks. The drone of a turbine, which operates day and night, is above 70dB. By comparison, noise in urban areas is 55 dB and even in industrial areas, is lower at 75dB. Ambient noise in forests is less than 40 dB.
•Such avoidance and movement to [forest] fringes might increase conflict with humans. This calls for protocols and policy guidelines before diverting forest land for wind farms, states the study funded by Karnataka Forest Department, Karnataka Renewable Energy Development Limited (KREDL) and National Institute of Wind Energy.
•Karnataka has diverted 37.80 sq. km of forests for wind farms, Union Environment Ministry data show. KREDL says that there are more than 3,857 wind turbines generating 4,730 megawatts of electricity.
•The researchers led by H.N. Kumara looked at windmills in Chitradurga (around Jogimatti forests) and Gadag, including Kappatagudda, which was recently declared a sanctuary. They recorded between 35% and 40% of Karnataka’s bird diversity in these areas.
In a short span
•The team saw collisions of 10 animals — 6 bats and four birds — with a collision rate of 0.23 animals per year per turbine. While the collision rate was low compared to other locations, it could not be ignored as the bulk of them took place in a short span of time, the study says.
•Researchers found birds avoiding windmill sites. “There are 50% fewer birds in the areas compared to undisturbed sites,” says Dr. Kumara. The avoidance is seen among mammals too. Herbivores moved away, with predators following them. “This area is perhaps the only one where three types of antelopes are found: four-horned, chinkara, and blackbuck. And all these are moving away towards fringes of forests. Following them are predators such as wolves and small carnivores. This is bound to increase conflict,” says Dr. Kumara. For certain small herbivores such as hare, the predator-free patches represented safety.
•On the study results, C. Jayaram, Principal Chief Conservator of Forests (Wildlife) said, “We have asked for certain refinements, and we will look seriously at the impact of windmills on birds and mammals. We will draw up guidelines for windmills to mitigate these effects.”
📰 Resisting resistance: on antibiotic misuse
India needs to strengthen and implement regulations on antibiotic misuse
•Even as antibiotics lose their efficacy against deadly infectious diseases worldwide, it seems to be business as usual for governments, private corporations and individuals who have the power to stall a post-antibiotic apocalypse. In a recent investigation, it was found that the world’s largest veterinary drug-maker, Zoetis, was selling antibiotics as growth promoters to poultry farmers in India, even though it had stopped the practice in the U.S. India is yet to regulate antibiotic-use in poultry, while the U.S. banned the use of antibiotics as growth-promoters in early 2017. So, technically, the drug-maker was doing nothing illegal and complying with local regulations in both countries. But such reasoning is self-defeating, because antibiotic-resistance does not respect political boundaries. Of course, the country that stands to lose the most from antibiotic resistance is India, given that its burden of infectious disease is among the world’s highest. According to a 2016 PLOS Medicine paper, 416 of every 100,000 Indians die of infectious diseases each year. This is more than twice the U.S.’s crude infectious-disease mortality-rate in the 1940s, when antibiotics were first used there. If these miracle drugs stop working, no one will be hit harder than India.
•This is why the country’s progress towards a tighter regulatory regime must pick up pace. Consider the three major sources of resistance: overuse of antibiotics by human beings; overuse in the veterinary sector; and environmental antibiotic contamination due to pharmaceutical and hospital discharge. To tackle the first source, India classified important antibiotics under Schedule H1 of the Drugs and Cosmetics Rules 1945, so that they couldn’t be sold without prescriptions. Still, Schedule H1 drugs are freely available in pharmacies, with state drug-controllers unable to enforce the law widely. As far as veterinary use goes, India’s 2017 National Action Plan on Antimicrobial Resistance did talk about restricting antibiotic use as growth promoters. Sadly, no progress has been made on this front yet, allowing companies to sell last-resort drugs to farmers over the counter. The 2017 document also spoke about regulating antibiotics levels in discharge from pharmaceutical firms. For instance, Hyderabad’s pharmaceutical industry has been pumping massive amounts of antibiotics into local lakes, rivers and sewers. This has led to an explosion in resistance genes in these waterbodies. Still, India is yet to introduce standards for antibiotics in waste water, which means antibiotic discharge in sewage is not even being monitored regularly. As the country takes its time to formulate regulations, the toll from antibiotic-misuse is growing at an alarming rate. According to a 2013 estimate, around 58,000 newborns die in India each year due to sepsis from resistant bacteria. When these numbers mount, India will have no one to blame but itself.
📰 Helping the invisible hands of agriculture
With the ‘feminisation of agriculture’ picking up pace, the challenges women farmers face can no longer be ignored
•October 15 is observed, respectively, as International Day of Rural Women by the United Nations, and National Women’s Farmer’s Day (Rashtriya Mahila Kisan Diwas) in India. In 2016, the Ministry of Agriculture and Farmers’ Welfare decided to take the lead in celebrating the event, duly recognising the multidimensional role of women at every stage in agriculture — from sowing to planting, drainage, irrigation, fertilizer, plant protection, harvesting, weeding, and storage.
•This year, the Ministry has proposed deliberations to discuss the challenges that women farmers face in crop cultivation, animal husbandry, dairying and fisheries. The aim is to work towards an action plan using better access to credit, skill development and entrepreneurial opportunities.
Data and reality
•Yet, paying lip service to them is not going to alleviate their drudgery and hardships in the fields. According to Oxfam India, women are responsible for about 60-80% of food and 90% of dairy production, respectively. The work by women farmers, in crop cultivation, livestock management or at home, often goes unnoticed. Attempts by the government to impart them training in poultry, apiculture and rural handicrafts is trivial given their large numbers. In order to sustain women’s interest in farming and also their uplift, there must be a vision backed by an appropriate policy and doable action plans.
•The Agriculture Census (2010-11) shows that out of an estimated 118.7 million cultivators, 30.3% were females. Similarly, out of an estimated 144.3 million agricultural labourers, 42.6% were females. In terms of ownership of operational holdings, the latest Agriculture Census (2015-16) is startling. Out of a total 146 million operational holdings, the percentage share of female operational holders is 13.87% (20.25 million), a nearly one percentage increase over five years. While the “feminisation of agriculture” is taking place at a fast pace, the government has yet to gear up to address the challenges that women farmers and labourers face.
Issue of land ownership
•The biggest challenge is the powerlessness of women in terms of claiming ownership of the land they have been cultivating. In Census 2015, almost 86% of women farmers are devoid of this property right in land perhaps on account of the patriarchal set up in our society. Notably, a lack of ownership of land does not allow women farmers to approach banks for institutional loans as banks usually consider land as collateral.
•Research worldwide shows that women with access to secure land, formal credit and access to market have greater propensity in making investments in improving harvest, increasing productivity, and improving household food security and nutrition. Provision of credit without collateral under the micro-finance initiative of the National Bank for Agriculture and Rural Development should be encouraged. Better access to credit, technology, and provision of entrepreneurship abilities will further boost women’s confidence and help them gain recognition as farmers. As of now, women farmers have hardly any representation in society and are nowhere discernible in farmers’ organisations or in occasional protests. They are the invisible workers without which the agricultural economy is hard to grow.
•Second, land holdings have doubled over the years with the result that the average size of farms has shrunk. Therefore, a majority of farmers fall under the small and marginal category, having less than 2 ha of land — a category that, undisputedly, includes women farmers. A declining size of land holdings may act as a deterrent due to lower net returns earned and technology adoption. The possibility of collective farming can be encouraged to make women self-reliant. Training and skills imparted to women as has been done by some self-help groups and cooperative-based dairy activities (Saras in Rajasthan and Amul in Gujarat). These can be explored further through farmer producer organisations. Moreover, government flagship schemes such as the National Food Security Mission, Sub-mission on Seed and Planting Material and the Rashtriya Krishi Vikas Yojana must include women-centric strategies and dedicated expenditure.
Gender-friendly machinery
•Third, female cultivators and labourers generally perform labour-intensive tasks (hoeing, grass cutting, weeding, picking, cotton stick collection, looking after livestock). In addition to working on the farm, they have household and familial responsibilities. Despite more work (paid and unpaid) for longer hours when compared to male farmers, women farmers can neither make any claim on output nor ask for a higher wage rate. An increased work burden with lower compensation is a key factor responsible for their marginalisation. It is important to have gender-friendly tools and machinery for various farm operations. Most farm machinery is difficult for women to operate. Manufacturers should be incentivised to come up with better solutions. Farm machinery banks and custom hiring centres promoted by many State governments can be roped in to provide subsidised rental services to women farmers.
•Last, when compared to men, women generally have less access to resources and modern inputs (seeds, fertilizers, pesticides) to make farming more productive. The Food and Agriculture Organisation says that equalising access to productive resources for female and male farmers could increase agricultural output in developing countries by as much as 2.5% to 4%. Krishi Vigyan Kendras in every district can be assigned an additional task to educate and train women farmers about innovative technology along with extension services.
•As more women are getting into farming, the foremost task for their sustenance is to assign property rights in land. Once women farmers are listed as primary earners and owners of land assets, acceptance will ensue and their activities will expand to acquiring loans, deciding the crops to be grown using appropriate technology and machines, and disposing of produce to village traders or in wholesale markets, thus elevating their place as real and visible farmers.
📰 Government panel struggles to define ‘shell company’
The shady financial transactions, ownerships and assets of thousands of companies have been studied in a bid to come up with acceptable criteria to declare an entity a shell company as per the law.
•The multi-agency committee set to finalise the definition of a “shell company” for the purposes of enforcing penal laws for various violations is yet to arrive at a consensus to diverse opinions on yardsticks for identification of such entities.
•After a large number of entities, classified as a shell company, challenged the decision, the government had set up the committee to come up with a definition. The committee drafted a definition that had to be tested on various yardsticks to determine its legal feasibility.
Maze of transactions
•The shady financial transactions, ownerships and assets of thousands of companies have been studied in a bid to come up with acceptable criteria to declare an entity a shell company as per the law.
•The committee also examined the definition given by the Organisation for Economic Co-operation and Development (OECD). The OECD defines a shell firm as “a company that is formally registered, incorporated, or otherwise legally organised in an economy but which does not conduct any operations in that economy other than in a pass-through capacity. Shells tend to be conduits or holding companies and are generally included in the description of Special Purpose Entities”.
•“A consensus among the committee members on the definition is yet to be arrived at. Also, the agencies involved in the exercise are getting caught up in investigations into important cases, including those against Nirav Modi and Mehul Choksi. Examining the financial records in such cases itself is a time- consuming process and requires constant supervision and huge manpower,” said a financial investigation agency official.
•The issue had come up after the government cracked down on dummy companies that were used for round-tripping of funds and money laundering.
