NHRC’s NEW ADVISORY RECOGNISED SEX WORKERS AS WOMEN AT WORK

The National Human Rights Commission of India is mandated by the Protection of Human Rights Act, 1993 to promote the human rights of all in the country. Hence, the commission in its Human Rights Advisory on Rights of Women in the context of Covid-19 dated 7th October, 2020 recognized Sex workers as “Women at Work”. Further, it directed the State Governments to provide assistance and relief to them by taking inspiration from Maharashtra government’s resolution dated 23rd July 2020. Sex Workers can be recognized and registered as “informal workers” so as to avail workers benefits. Moreover, temporary documents can be issued for them to access welfare measures since many of the workers don’t possess citizenry documents. Even migrant sex workers can avail benefits of migrant workers. Further it directed the Protection Officers to act on reports of violence against women. The advisory went on to ensure free access for testing and treatment for Covid-19 along with providing sanitizers and masks and ensure health services for prevention of HIV and other sexually transmitted infections and treatment for the same. 

The lockdown had an unprecedented effect which led to the loss of assorted jobs particularly within the informal sector where there’s no availability of food, source of cash and shelter and the disproportionately affected women cover a considerable proportion of such workers. The financial problem of those involved in work that’s already stigmatized like sex work increased rapidly. Sex work needs physical contact, which is restricted considering the COVID-19 outbreak, this hampered their wages. HIV-positive sex workers cannot use the antiretroviral therapy they require for his or her survival and various sex workers don’t seem to be within the scope of state schemes because they do not have identification documents. Access to health care is commonly challenging when one belongs to a marginalized community. Hence, the advisory introduced came as a relief amid the pandemic. 

The National Network of Sex Workers (NNSW) consider the advisory as a welcome step and great milestone in the journey of attaining maximum rights for sex workers in the country. It will also help bring about a change in the behavior of police and other law enforcement agencies towards them. It indeed is a moment of celebration for all the sex workers that are fighting every day to strengthen their identities and achieve their right to live and earn by providing sexual services without stigma, discrimination, and violence.

CYBERCRIME IN INDIA- HOW TO FILE A COMPLAINT?

In today’s age of technology, the internet and social media have become inseparable part of our lives. However, its increasing use has given rise to a number of crimes in cyberspace. One such crime is cyberbullying which means to bully someone online using digital devices such as mobiles, computers/laptops or tablets via messaging, SMS, social media platforms or any online groups where people can share and exchange messages. 

Sharing or posting inappropriate and harmful misinformation about someone has been made an offense under the Information Technology Act, 2000, The Indian Penal Code, 1860 and The Protection of Children from Sexual Offences Act, 2012.

Under IT Act, Section 66 talks about computer related offences and S. 66 C deals with punishment for identity theft, S. 66D deals with the punishment of cheating by personation using the computer or online resources,  S. 66E deals with the punishment of violation of a person’s privacy, S. 67 talks about publishing or transmitting obscene material in any electronic form along with S. 67A which also consists of sexually explicit act and lastly, S. 67B which talks about the publishing of such materials in electronic form depicting children- which can be excused if it is for public good and learning or is kept or used for bona fide heritage or religious purposes.

Under IPC, S. 292A talks about printing of indecent matter or matter for blackmail, S. 354A talks about sexual harassment or unwelcome physical contact or of the nature of making sexually colored remark or demand/request for sexual favors of pornography. 

POCSO act also protects the children below the age of 18 years from any sexual harassment, pornography or sexual assault which would include any form of cyber-bullying punishable under the act.

The following are the steps an individual can take to file a complaint against the above-mentioned cybercrimes- 

Step 1– Complaining about a person who has committed a cybercrime with the cyber police or Cyber ​​Cell India is the very first and most important step. Various units have been set up by cybercrime cells to investigate crimes committed in different cities. These divisions not only investigate crimes, but also take responsibility for receiving timely reported crime. 

The victim can lodge a complaint at any time under Section 154 of CrPC as “Zero FIR” or through the Cyber ​​Cell or the Cyber ​​Cell’s Crime Investigation Division either offline or online through the  National Cyber Crime Reporting Portal at cybercrime.gov.in 

One can also call the Cyber Crime Helpline number – 155260 (India). 

Step 2 – When filing a complaint, the name, mailing address and telephone number along with the application form is to be sent to the head of the Cyber ​​Crime Investigation Cell.

Step 3 – One will need to provide some documents to file a complaint. The list of documents varies with the type of cybercrime. When filing a complaint, case-by-case documents must be attached, which fully support the facts of the case. The types of documents that need to be attached when filing a cybercrime complaint depend on the nature of the cybercrime.

The awareness about such provisions and the actions has become a necessity due to the changing times.

UN Convention on Illicit Organ Trading – Need of the Hour

Current status:

Illicit organ trafficking at a global level has turned into a lucrative market and unfortunately, this is a lesser discussed form of human trafficking. In 1991, the WHO’s guiding principles on organ transplantation were approved at the 44th World Health Assembly. In 2004, the World Health Assembly issued a resolution for all WHO member states to prohibit transplant tourism.  Further, it called for international cooperation through guidelines for ethical organ procurement based on suitability and safety. It also emphasized the need for cooperation from national oversight committees to ensure implementation. 

However, there is no organized body or all-encompassing piece of legislation or convention that deals with this menace at the international front. It is imperative for both developed and developing countries to formulate a systematized method to curb illicit organ trade.

Council of Europe Convention against Trafficking in Human Organs: 

The UN as of now has no convention in place whereas the European Union in 2015 introduced the above mentioned convention which was the first ever organ trafficking treaty signed by 14 European nations including Britain, Italy, etc. The purpose of the convention is to prevent and combat trafficking in human organs by providing for criminalization of certain acts.  The convention establishes criminal penalties on the non- consensual removal of organs and removal of organs for financial gain from or by the deceased donors. 

Illicit Organ Trade & the Sustainable Development Goals:

Among the 17 Sustainable Development Goals, the introduction of a convention banning illicit trade will further the aim of the 3rd SDG which is to provide good health and well-being of all. It will also address the issue of poverty, a major factor contributing in such illicit trade which is the 1st SDG namely, eradication of poverty. Moreover, banning illicit trade is essential to promote inclusive, sustainable economic growth and decent work for all which is the 8th SDG. 

Combating illicit organ trade is a lengthy  process but an internationally adopted convention is the first step for achieving it. 

OVERVIEW OF LABOUR CODES – 2020

Labour, a subject under the Concurrent list is witnessing several changes. Recently, the Parliament passed three bills, namely- 

1. Industrial Relations Code Bill, 

2. Social Security Code Bill,

3. Occupational Safety, Health and Working Conditions Code Bill.

These Codes bring about several reforms and aim at consolidating various existing laws on the above subject matter.

The first bill combines three erstwhile legislations- The Trade Unions Act, 1926, Industrial Employment (Standing Orders) Act, 1946 and The Industrial Disputes Act, 1947.

It brings notable changes and expands the definitions of several terms such as Industry, Industrial Dispute, Strike, Worker, Employer etc. The earlier threshold of 100 workers for the framing and applying of Standing Orders for matters listed in the Schedule to the Code has been increased to 300 workers. Matters relating to retrenchment, lay-offs and closure do not require permission of the government in establishments with more than 300 workers. The Code further prohibits strikes in all industrial establishments without prior notice of 14 days as opposed to the earlier legislations that limited this to public utilities. This provision has been vehemently criticized by Trade Unions across the country.

The second bill combines nine central legislations and empowers the Central Government to, by notification, apply the provisions of this Code to any establishment. The Code mandates registration and setting up of security funds for unorganized (home-based or self-employed or persons working in the unorganized sector), gig (delivery persons) and platform workers by Central and State Governments.

It makes provisions applicable in times of epidemics to reduce or defer employee/employer’s contributions under PF and ESI for up to three months. This bill too revises and expands certain definitions such as wages, inter-state migrant workers etc. Aadhaar ID has been made mandatory for availing the benefits provided under this Code.

With reference to the third bill, the earlier thresholds requiring a minimum number of workers have been changed in case of factories, contractors and hazardous activities. It fixes the maximum daily work hours at 8 hours per day. Further, it allows women to be employed in all establishments by following necessary safeguards as opposed to the earlier legislations that disallowed them from working in certain dangerous or hazardous operations. The code provides certain benefits for interstate migrant workers and mandates Central and State Governments to maintain databases and record their details on a portal.

The above-mentioned bills now await Presidential assent.

VODAFONE WINS AGAINST GOI- Arbitration Suit

Vodafone International Holdings BV v. India (PCA Case No. 2016-35)

Vodafone in 2007 acquired 67% stake in an Indian company named ‘Hutchison Whampoa ltd’ The Indian revenue authorities imposed tax on the same despite the fact that the transaction was an offshore transaction and among two non- residents. The Indian revenue authorities levied approximately Rs. 20,00 crore capital gains tax on Vodafone. 

The issue raised was regarding the jurisdiction of the Indian Revenue authority to perform such actions. The action taken by the authority was challenged before the Supreme court of India in Vodafone International Holding (VIH) v. Union of India (UOI).  The judgement favoured Vodafone after which there were attempts of mediation among the parties. Failure of which led to arbitration suits among the parties in 2014. 

Vodafone claimed that the action taken by the Government of India was violative of fair and equitable treatment as stated in Article 4 of India- Netherlands Bilateral Investment Treaty. 

And the Government claimed that the new tax reform- the Finance Bill, 2012 which came after the SC’s verdict allowed the addition of explanation in Section 9 of the Income Tax Act included such transactions and the same ought to have a retrospective effect on the deals.

As of now, the treaty stands terminated. The Permanent Court of Arbitration, Hague at last declared the award in favour of Vodafone. The government of India has to not only pay the company a huge amount of compensation but also 60% of the legal costs unless the government opts for further appeal.

Effects of the Vodafone – India case

(This is for another short post- don’t merge with above)

India’s Bilateral Investment Treaties with other countries are in danger since the recent arbitral award will attract other countries/parties to invoke the  ‘fair and equitable treatment’ (FET)  clause.  

This is to the extent that any law imposed by India amounts to violation of the FET clause. For instance the award will be relied on in the disputes in the following BITs

  1. Russia-India BIT
  2. Australia-India BIT

OVERVIEW OF THE NEWLY INTRODUCED FARMERS BILLS 2020

Two new bills relating to agriculture and farmers were introduced in June and were passed by Rajya Sabha on 23rd September 2019. Those agricultural bills are- 

  1. 1. The Farmer’s Produce Trade and Commerce (Promotion and Facilitation Ordinance, 2020)
  2. 2. The Farmer’s (Empowerment and Protection) Agreement on Price Assurance and Farm. 

These bills will impact the farmers, the consumers, the state and the middlemen established in the APMC system. 

The Farmer’s Produce Trade and Commerce bill aims to create an ecosystem where the farmers are free to sell their produce wherever and to whomever they want to, which directly paves way for the establishment of inter and intra state trade of farmers produce. The same is protected under the second bill as mentioned above which makes rules and regulations for empowering farmers to trade with various businesses and wholesalers. 

However, it doesn’t repeal or replace the previously established system which is under the Agriculture and Produce Marketing Committee Act. Hence, the bill is creating a choice for the farmers to carry out their trade on their will. 

In the previous APMC act, the farmer had to go through the “Mandis” as established in the act after which the commission agents would take their produce for traders to auction and purchase. The auction has to necessarily start at the Minimum Support Price which is decided by the Government of India. This price is decided for certain products only and this provision has not been repealed in the new ecosystem. The commission agents collect a market fee, cess and other taxes which are then collected by the State Governments which forms a huge part of their revenue. 

These bills address the issue of monopoly established by the traders through APMC. But the problem or difficulty with the bill is that it will be beneficial only if implemented effectively and if practiced by the farmers; given that they are aware of the same. Educating farmers about their rights and making them aware is an important part of the implementation process. 

Apart from that, the removal of middlemen will definitely benefit the consumers since the products will be comparatively cheaper. 

However, this bill will largely affect the State Revenue since they will not be receiving any taxes in the new ecosystem. Even though the bill aims to benefit the farmers, the view of the states was not considered appropriately and the states were not even given a fair participation in the Rajya Sabha where they protested against the bill.

A potential solution to that could be that the bills be introduced to a Select Committee which consisted of agricultural experts and the opposition being given a chance to be heard.

In that manner, the bill could have been speculated so as to benefit all and be compatible with the federal structure of the constitution and thereby upheld the democratic process of making a legislation.

Maratha Community’s Plea under SEBC placed before a Constitutional Bench.

Recently, the Supreme Court passed a stay order against operation of the Socially and Educationally Backward Classes (SEBC) Act, passed by the State of Maharashtra in 2018. The Act provides a 16% quota to the Maratha community in both- education and government employment. Subsequently, this increased the aggregate quota of all reservations allowed in Maharashtra; hence crossing the 50% limit. This is in contravention to the landmark judgement of the SC in Indira Sawhney v. UOI in 1993 that had put a 50% ceiling on reservation by individual states and stated that the same could be exceeded only in “exceptional and extraordinary circumstances”.

Subsequently, a plea was filed against this in the Bombay High Court. A three judge bench upheld the validity of the reservation to the Maratha community but capped the same at 12% for education and 13% for employment. This too exceeded the 50% cap. The same was challenged in the Apex Court through an appeal in case of Jaishri Laxmanrao Patil v. The Chief Minister. A three judge bench of the Supreme Court along with passing of the stay order and referring the issue to a Constitution Bench of five or more judges for final adjudication observed the following:

1.  There is a need for reconsideration of the Judgement of the Court in Indira Sawhney v. UOI and whether exceeding the 50% cap is constitutionally valid.

2. The said issue required an interpretation of the Constitution (102nd Amendment) Act, 2018 as this helps determine the competence of the State Legislature to declare a particular caste to be socially and educationally backward.

3. The court clarified that the said stay order was not to affect those that had already availed the benefits of the SEBC Act. 

The case is to be placed before CJI SA Bobde, who shall decide on the constitution of the larger bench.

DISCREPANCIES IN THE PRIVACY AND DATA PROTECTION BILL, 2019

Following the landmark Puttaswamy Judgement, a committee was appointed under Justice Srikrishna in order to draft a bill for ensuring privacy and data protection. This committee proposed a bill in 2018 wherefore it was amended by the government and titled- PDP Bill, 2019 which is yet to be passed, with some significant changes-  

  1. Section 14 states that processing of personal data for ‘other reasonable purposes’ can be done by the government and the Data Protection Authority (DPA) without obtaining consent. However, giving notice of the same to the Data Principal (person the data relates to) is not mandatory and has to be decided by the government/authority. 
  2. Section 35 gives the Central Government power to exempt any agency of government from application of the Act i.e. surveillance of personal data can be done as well if directed and exempted by the Central Government.
  3. Section 91 (2) states that the Central Government can access anonymized personal data or non-personal data for better targeting of services. 
  4. The Data Protection Authority’s powers are diluted in the 2019 Bill, for e.g. the Central Government has the power of categorizing sensitive personal data whereas in 2018 bill the same was granted to DPA. 

These changes were looked down upon by Justice Srikrishna. There are various other provisions in the act that need to be in line with the principles laid down in the Privacy Judgment considering the fact that right to privacy is a fundamental right and the bill needs to guard the right and not exploit it. 

Writ petition can’t be filed against a judicial order of hc-supreme court

The Apex Court in a recent judgement-  “Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs” reinstated a crucial point of law. 

It held that a writ petition under Article 226 of the Indian Constitution is not maintainable to challenge a judicial order or any order which has been passed by the High Court in exercise of its judicial powers. 

The decision was laid by a two judge bench consisting Justice DY Chandrachud and Justice KM Joseph in exercise of power of the Supreme Court to transfer cases under Article 139A.

The petitioner in the present case filed a writ petition under Article 226 in order to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the Karnataka High Court under its criminal revisional jurisdiction. The petitioner prayed through the petition that the said judgement may be declared void/disabled/recalled and a fresh hearing be instituted before a higher/full bench. 

The petitioner based her submissions on the grounds that the order had not been written by the Judge of the HC and that while disposing the criminal revision the court had exercised its jurisdiction in a manner inconsistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. Further, she challenged the findings of the court; deeming them to be erroneous. 

The respondent claimed that the litigant is not without any remedies since she can approach the court through Letters Patent Appeal or by way of a review or through article 136.

The court ruled in favour of the Respondent and disallowed the Writ Petition on grounds of maintainability. 

But SC left open the rights and remedies available to the petitioner by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge bench. 

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