SC Issues Notice to Centre- PIL Seeking Rescue of Indian Gulf Workers

There are hundreds of workers from Tamil Nadu stranded in Gulf countries due to the lockdown adding to the thousands of workers stranded prior to that because of being deceived by travel agents and lack of passports. The consequence is forced labor, slavery, sex trafficking and death. Hence, a PIL under Article 32 of the Indian Constitution was filed by President of Gulf Telangana Welfare and Cultural Association- Pathkuri Basanth Reddy. The PIL is seeking rescue of such workers and pleading to bring back the corpses to the families of the victims. The condition of the workers is in clear violation of basic human rights under UDHR and Article 21 of the Indian Constitution since right to live with dignity and decent burial are both facets of right to life. Thus, the Supreme Court issued notice to the Central and State Government along with the Central Bureau Investigation to respond to the same. 

This situation is largely because of the fact that India as well as the Gulf Countries have not ratified important conventions like Freedom of Association and Protection of the Right to Organize Convention, 1948 and Right to organize and Collective bargaining Convention, 1949. Further, these countries are failing to adhere to ILO’s Declaration on Fundamental Principles and Rights at Work. These conventions and declarations give the workers various rights, namely the right to freedom of association, collective bargaining and all forms of elimination of forced or compulsory labor. Consequently, the migrant workers are unable to form unions or oppose any unfair labor practices.

The pandemic has exacerbated their situation as they remain most susceptible to health risks. Closely situated houses and unhealthy living conditions make the necessity of social distancing impossible to achieve. Limited access to preventive medical care, lack of awareness and legal protection adds to their miseries. Thus, the plea urges courts to set out immediate directions, problem redressal forums, and provide legal aid and assistance to the victims. It further urges the embassies in the two regions to collectively strive for the welfare of the workmen stranded in their territories.

WHY ARE STATE GOVERNMENTS WITHDRAWING ‘GENERAL CONSENT’ FOR CBI INVESTIGATIONS?

The Central Bureau of Investigation (CBI) is constituted under the Delhi Special Police Establishment Act, 1946 and its jurisdiction to investigate primarily extends to the Union Territories as per Section 2 of the DSPE Act but the same can be extended by the Central government under section 5 of the act to the states, given the state government has given their general consent under Section 6 of the act. The state governments can through a notification under section 6 withdraw their consent but it will only have a prospective effect and will not affect the ongoing investigations. After which for CBI to investigate new matters within a state, it will have to demand a case specific consent and when denied that consent too, it can approach the Courts for carrying out the investigation. 

On 21^st October, the Maharashtra Government revoked its general consent under Section 6, the purpose behind the same was to protect the powers vested with the local state police and preserve the authority of state government. A few months ago, the CBI took over the Sushant Singh Rajput suicide case and the drug case. Recently, in the TRP scam case, the Mumbai police is already doing an investigation but the CBI has accepted an FIR in Uttar Pradesh based on a complaint for investigating the TRP scam. 

As per the procedure, if the state government has revoked its general consent and is not allowing a case specific investigation by CBI either, and if the case is partly in two or more states then the CBI can register the case in one state and seek assistance from the other state government. Similarly, in the TRP scam case one of options with CBI is to seek assistance of Maharashtra government, since the case is on a related subject matter. 

Maharashtra Government’s decision makes it the 5th state to have withdrawn the consent. In the past, Andhra Pradesh, West Bengal, Chhattisgarh and Rajasthan too have taken the same step. The key reason behind this is that the Central agency has on several occasions been alleged of misuse for “political purposes” and corruption. It has also been accused of specifically targeting the central government’s political rivals. For example, AP government’s move is considered as a consequence of the political tension between BJP-led Centre and Telugu Desam Party and Income Tax raids that were instituted against several leaders of the latter party. Similar instances were observed in the other states too. Formerly the Apex Court observed in the famous Coal scam case, the CBI as a “caged parrot” and “its master’s voice” 

Hence the revocation of consent can in certain instances be in the state’s interest, whereas in other cases it might not be in the people’s interest, who may demand interference by an independent agency.

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 3^rd 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 1^st 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 8^th SDG. 

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

Rise in Domestic Violence – A Consequence of Covid-19

In this article the author would be focussing on the rise in domestic violence cases with respect to women during the Pandemic.

The whole world has suffered a major crisis and is continuously fighting the Covid-19 crisis. People across the globe are facing huge repercussions due to it; be it political, social, professional, or economical. The governments have taken a lot of precautions to contain the spread of the virus. Many countries, including India, had announced nationwide lockdown as a precautionary measure. India has gone through some rigorous conditions in the past few months.

Though these tough steps taken by the government are understandable and essential for the benefit of people in general, the suffrage of one section of our society has been overlooked. This section has simultaneously suffered from another pandemic, namely Domestic Violence^[i]. Due to this, women have been the most affected victims.

This is seen to be a fact not just at a national level but internationally too. On 6 April 2020, the United Nations Secretary called for a ‘ceasefire’ to address the ‘horrifying global surge in domestic violence.’ Since the pandemic, the cases of violence against women are exponentially rising at the global level. The UN reported that Lebanon and Malaysia received a double amount of helpline calls compared to the same month previous year; in China it tripled. In Australia, there was the highest number of google searches for domestic violence help in the past five years.^[ii] Similarly, the imposition of lockdown in India led to the same unfortunate consequences.India’s National Commission for Women (NCW) on Friday said it registered 587 domestic violence complaints between March 23 and April 16 – a significant surge from 396 complaints received in the previous 25 days between February 27 and March 22.^[iii] This is only the tip of the iceberg as there are a huge number of domestic violence cases going unreported.

Causes of the surge in cases

It is not possible to point out only one reason for the surge in cases as several factors play a role in it. According to Sociologist Marianne Hester, “domestic violence goes up whenever families spend more time together, such as the Christmas and summer vacations.”^[iv] The lockdown laid the perfect circumstances for this and as an unfortunate consequence an increase was seen in the instances of domestic violence.

One of the significant reasons for the increase in cases is that India has always followed a patriarchal system, where women are mostly subdued by men. This gender and role discrimination has placed all the burden of domestic work on women. Domestic Work is generally referred to as “women’s work”. Generally female members look after the household chores and the imposition of lockdown has resulted in an increase in workload for her. Many women were put in the position of single-handedly managing their professional work along with the household chores; thereby overburdening them.^[v] Now, in these circumstances, if they cause any inconvenience or fail to do something, they are exposed to violence.

The data provided of domestic violence does not show the real picture of this horrifying act as numerous cases go unreported. This is because many women fail to come forward to seek help and suffer in silence. They are clouded by an orthodox ideology or sometimes are even silenced by their family members in order to maintain the honour of the family. Retrieving help from anyone outside becomes impossible for some women who may not have access to relatives, police or any NGOs via mobile phones as many women do not even have mobile phones. They are left in misery being caged with the abusers.^[vi]

According to the Centre for Monitoring Indian Economy, the overall unemployment rate may have surged to 23 per cent, with urban unemployment standing at nearly 31 per cent, amid the countrywide lockdown due to coronavirus outbreak.^[vii] This scenario suggests the vulnerability of people and their helplessness due to loss of livelihood. The frustration of loss of income and to manage the expenditures of family, especially for males, makes them exert violence on their partners. It is worse if the female spouse is unemployed.^[viii]

Another important aspect is that after the 40 days of lockdown, the government had opened the liquor shops as a first step towards easing the restrictions. The government had also levied a special corona tax of 70 percent on alcohol in some places amid concerns of lost revenue.^[ix] This in turn magnified the already deteriorated conditions as many men increased their alcohol consumption, thereby increasing domestic violence. This not only added to the financial burden but also towards an increase in abuse against women. So many cases were reported where husbands in an intoxicated state had physically assaulted their wives and children.^[x] In doing so, the state somewhere prioritized earning revenue rather than safeguarding the women and children.

According to UNICEF 20 million babies will be born in India till the end of this year.^[xi] India also noted a surge of porn usage and sale of condoms.^[xii] Women might have been exposed to domestic violence in the form of sexual harassment or marital rape – which unfortunately is not a crime in India.^[xiii] In the isolated circumstances created by the lockdown, it is easy for the perpetrators to take undue advantage and shatter their domestic life.

Steps taken by the Government

The government has failed to take any major and significant measures, however, there are few things that governments have done. For e.g. Delhi Commission for Women has set up a helpline number (181) to combat violence and trauma during the pandemic that one can reach out to.^[xiv] In UP, the state government has initiated a special helpline for victims of domestic abuse under the title `Suppress Corona, not your voice’.^[xv] But as mentioned above some women don’t even have access to communicate or seek help. In such a situation they are left without any solution.

In Tamil Nadu, protection officers have been appointed under the Domestic Violence Act, 2005. They are given permission to move during the lockdown and some women have been rescued. The chairperson of NCW claimed that ASHA and Anganwadi and other frontline health workers are counselling against domestic violence and women can report to these workers in case they are facing abuse.

No doubt that the governments are trying their best even in these tough times to protect and safeguard the victims, however, the measures taken are not sufficient. The government should conduct campaigns to make citizens aware of domestic violence. It should ask citizens to be sensitive towards the increased damage of domestic violence and encourage them to intervene if they suspect abuse, using tactics such as the banging on the door or ringing the bell. In countries like France and Spain codewords such as ‘mask 19’ are used as an indication when women are being abused.^[xvi]

Conclusion

Family is considered as a place where one secures love, solace, safety, and security but for some women, it has become a place of insecurity and violence. Women are being abused and tortured by their very own family and instead of receiving love and respect, they are forced to bear humiliation and violence without uttering a single word. Thus, to establish a safe and secure society for women, a lockdown should be imposed on the orthodox thinking of people. For creating a better and safe environment for women, governments should implement stringent laws and take all precautionary measures. They should also set up new mechanisms to safeguard women as much as possible.

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^[i] Section 3, The Protection of Women From Domestic Violence Act, 2005, No. 43 of 2005

^[ii] UN News, UN chief calls for domestic violence ‘ceasefire’ amid ‘horrifying global surge’, April 6, 2020. Available at: https://news.un.org/en/story/2020/04/1061052

^[iii] Locked down with abusers: India sees surge in domestic violence, Aljazeera, April 18, 2020.

^[iv] COVID-19, Domestic Abuse and Violence: Where Do Indian Women Stand?, EPW Engage, April 17, 2020 Available at: https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do

^[v] Divya J Shekhar, What the Covid-19 lockdown tells us about the gender gap in house-work, Forbes India, March 30, 2020 05:39:41 PM Available at:

https://www.forbesindia.com/blog/missrepresent-women-gender-sexuality/what-the-covid-19-lockdown-tells-us-about-the-gender-gap-in-house-work/

^[vi] Arjun Kumar, Balwant Singh Mehta, Simi Mehta, The link between lockdown, COVID-19, and domestic violence, April 17, 2020

^[vii] Coronavirus fallout: Unemployment rate spikes to 23% after lockdown, says CMIE, Business Today, April 7, 2020.

^[viii] Schneider D., Harknett K., McLanahan S., Intimate partner violence in the great recession. Demography. 2016;53(2):471–505. Available at:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4860387/

^[ix] Delhi imposes 70% ‘corona’ tax on alcohol after crowding at shops, The Guardian, May 5, 2020.

^[x]  Romita Saluja, India’s resumption of alcohol sales during lockdown is fuelling a rise in domestic violence, SCMP, May 20, 2020, 7:30pm. Available at:

https://www.scmp.com/week-asia/health-environment/article/3085319/indias-resumption-alcohol-sales-during-lockdown

^[xi] Coronavirus: Health system overload threatens pregnant women and newborns, UN News, May 7, 2020.

^[xii] Sonil Dedhia, Coronavirus outbreak: Condom sales in India go through the roof, Hindustan Times, Mar 24, 2020.

^[xiii] Laxmi Garg, Marital Rape During COVID Pandemic Available at: Marital Rape During COVID Pandemic

^[xiv]Ayushree Nandan, Is domestic violence the next pandemic in India?, TOI, May 21, 2020.. 

^[xv] Panicker Lalita, The Lockdown is making women more vulnerable, The Hindustan Times, April 4, 2020.

^[xvi] Ivana Kottasová and Valentina Di Donato, Women are using code words at pharmacies to escape domestic violence during lockdown, CNN, April 6, 2020.

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.

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.