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Social Empowerment- Reservation, Sex Ratio, Transgender and Triple Talaq etc

Reservation

SUB CATEGORIZATION UNDER OBC

Cabinet approved Extension of term of the commission constituted under Article 340 of the constitution to examine the issue of Sub-categorization within other Backward Classes in the Central List.

Background:

Article 14 of the Constitution guarantees equality before the law. That means un-equals cannot be treated equally. Measures are required to be taken for the upliftment of un-equals to bring them on par with the advanced classes.

In view of this, the National Commission for Backward Classes (NCBC) proposed the sub-categorisation of Other Backward Classes (OBCs) back in 2015. In 2017, the President, in exercise of the powers conferred by Article 340 of the Constitution, appointed a commission to examine the issue of sub-categorisation of OBCs, chaired by retired Justice G. Rohini, to ensure social justice in an efficient manner by prioritising the Extremely Backward Classes (EBCs).

Need

At present, there is no sub-categorisation and 27% reservation is a monolithic entity. Sub categorization of the OBCs will ensure that the more backward among the OBC communities can also access the benefits of reservation for educational institutions and government jobs.

This decision would reinforce the Government’s efforts to achieve greater social justice and inclusion for all, and specifically members of the Other Backward Classes.

For long Govt has failed in effectively preventing large sections of the creamy layer from taking advantage of the quota system to the detriment of the poorer sections among their own caste groups.


Sex Ratio:

SEX RATIO AT BIRTH

The sex ratio at birth (SRB) has been dropping continuously since Census 2011, coming down from 909 girls per thousand boys in 2011-2013 to 896 girls in 2015-2017 as per the SRS Statistical Reports. 

  • Female foeticide continues to increase at an alarming rate, as per the Sample Registration System (SRS) data released for the period 2015-2017
  • In the 2014-2016 period, of the 21 large States, only two — Kerala and Chhattisgarh — had an SRB of above 950 girls per 1000 boys. Thus at present, about 5% of girls are ‘eliminated’ before they are born

Data problem

Niti Aayog acknowledged the seriousness of the problem in its latest report.

Based on Health Management Information System (HMIS), SRB has improved from 923 to 931 girls. It largely considers home deliveries and births in government institutions. Data from private institutions are under-reported. 

Private hospitals had a disproportionate excess of male children births, which the HMIS sample excludes

Performance

The worst regional SRB for government sector was for Northern India (885 girls per thousand boys).  The picture was somewhat better for Central India (926) Southern India (940) while the performance of Eastern India (965) and Western India (959) was even better.

In the Northeast, where the government is the dominant health-care provider, the government sector SRB rivaled that of the private sector (both are 900).

That data for the private sector are more skewed has not been articulated in the NFHS reports or adequately dealt with by the Health Ministry. For two decades, in private hospitals, too often, there were more male children even when the total number of births was small in number.

Protecting the integrity of birth statistics will help the people, governments and health professionals to focus on ameliorating the gender gaps at birth Bias over first-born child.

Checking the practice

An analysis of the NFHS-4 data also revealed a bias when it comes to the first-born child — the SRB is among first-born children was 927, meaning that 2.5% of first-born girls are eliminated before birth

Field visits in Uttar Pradesh and Bihar revealed a massive expansion of ultrasound clinics even in remote corners. And in the absence of stringent implementation of the PCPNDT Act, practically anyone who wants to determine the sex of the foetus is able to get it done illegally. 

Insights

  • Increased deterrence in States like Maharastra, Haryana and Rajasthan in recent years has been undermined by the laxity of the biggest States.
  • Central Supervisory Board established under the PCPNDT Act has not met for over one-and-a-half years. It should have ideally met at least thrice during this period.

Honour Killing

The term ‘honour killing’ is being used widely to describe the class of murders that family members commit while seeking to impose on young couples their medieval view that all marriages should be within their community.

Amongst literates too

It is disquieting that the ‘honour killing’ phenomenon persists in highly literate societies too. Discrimination against Dalits is not limited to Hindu communities listed as Scheduled Castes, but extends to those who have converted to other religions too.

What is to be done?

At a time when caste groups have become politically organised and caste associations attract the young and the educated, there is a need for a redoubled effort to eliminate the evils of a stratified society.

In particular, administrators must give full effect to the various preventive, remedial and punitive measures recommended by the Supreme Court. The Centre may also examine the need for a comprehensive law to curb killings in the name of honour and prohibit interference in matrimonial choice of individuals.

SC’s take

The Supreme Court, which has been intervening repeatedly to preserve the freedom of marital choice of individuals, once remarked that there is no ‘honour’ in ‘honour killing’. Various judgments have highlighted the need to come down on such crimes, as well as the social structures that keep such a communal outlook alive.

There is a Supreme Court judgment allowing trial courts to deem ‘honour killings’ as those that fall under the ‘rarest of rare cases’ category,

Rajasthan: Honour killing bill

Bill mandating death penalty for ‘honour killing’ passed in Rajasthan Assembly.

The Rajasthan Prohibition of Interference with the Freedom of Matrimonial Alliances in the Name of Honour and Tradition Bill, 2019 was passed by a voice vote.

 Key provisions:

  1. Punishment of death penalty or life imprisonment and with fine which may extend to ₹5 lakh.
  2. If the couple or either of them is grievously hurt, the punishment will be from 10 years rigorous imprisonment to imprisonment for life and with fine of maximum ₹3 lakh, whereas the punishment will be three to five years imprisonment with fine which may extend to ₹2 lakh in case of simple injuries.
  1. Sub Divisional Magistrate or the District Magistrate shall receive any request or information from any person or persons seeking protection
  2. No person or group shall assemble at any time with the view or intention to deliberate on or condemn any marriage, not prohibited by law, on the basis that such marriage has dishonoured the caste or community tradition or brought disrepute to all or any of the persons forming part of the assembly or the family or the people of the locality concerned. 
  3. Such gathering shall be treated unlawful and every person convening or organising such assembly, and every member, thereof, participating therein directly or indirectly shall be punishable with imprisonment for a term not less than six months, but may extend to five years and shall also be liable to fine which may extend to ₹1 lakh.

Need for stringent provisions:

  1. Sections of the IPC and the CrPc were not adequate in dealing with such cases.
  1. Such crimes are also in violation of the United Nations Convention on the Elimination of all forms of Discrimination against Women which provide that women should have the right to freely choose a spouse.
  2. These actions of honour killing are also violative of certain fundamental rights in the Constitution of India,

Transgender Rights Bill:

Lok Sabha approves The Transgender Persons (Protection of Rights) Bill 2019.

Impact:

The Bill will benefit a large number of transgender persons, mitigate the stigma, discrimination and abuse against this marginalized section and bring them into the mainstream of society.

Background:

Transgender community is among one of the most marginalized communities in the country because they don’t fit into the stereotypical categories of gender of ‘men’ or ‘women’. Consequently, they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities and so on. The Bill shall empower the transgender community socially, educationally and economically. 

New definition:

According to the new definition, a transgender person is somebody whose gender does not match the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, gender-queers, and persons having socio-cultural identities such as kinnar, hijras, aravani, and jogta.

Highlights of the Bill:

  1. The Bill aims to stop discrimination against a transgender person in various sectors such as education, employment, and healthcare. It also directs the central and state governments to provide welfare schemes for them.
  2. The Bill states that a person will be recognised as transgender on the basis of a certificate of identity issued through the district screening committee. This certificate will be a proof of identity as transgender and confer rights under this Bill.
  3. Going by the bill, a person would have the right to choose to be identified as a man, woman or transgender, irrespective of sex reassignment surgery and hormonal therapy.
  4. It also requires transgender persons to go through a district magistrate and “district screening committee” to get certified as a transperson.
  5. The committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.

Criticisms:

  1. The Bill is silent on granting reservations to transgender persons.
  2. The bill has prescribed punishments for organised begging. However, the Bill doesn’t provide anything to better to condition in those areas, it doesn’t provide for reservation.
  3. The Transgender Bill does not mention any punishments for rape or sexual assault of transgender persons as according to Sections 375 and 376 of the Indian Penal Code, rape is only when a man forcefully enters a woman.

Need of the hour:

The Bill must recognise that gender identity must go beyond biological; gender identity is an individual’s deep and personal experience. It need not correspond to the sex assigned at birth. It includes the personal sense of the body and other expressions such as one’s own personal inducing proceeds.


Triple talaq:

The Supreme Court has issued notice to the Centre on a set of PILs challenging the recent Muslim Women (Protection of Rights on Marriage) Act 2019, more popularly known as the triple talaq criminalisation.

What’s the issue?

  1. The pleas have alleged that the Act is unconstitutional, as it criminalises the “mere pronouncement of triple talaq, which had already been declared unconstitutional and void” by the Supreme Court.
  2. The pleas have also alleged that the law “unjustly and unfairly” criminalises the act of one community, even as desertion of the wife by other communities is not a crime.

Background:

Parliament, last month, passed the Muslim Women(Protection of Rights on Marriage) Bill, 2019 criminalising triple talaq. After President Kovind signs the bill, it will become the law and will replace the 1986 Muslim Women (Protection of Rights on Divorce) Act.

The Supreme Court’s judgment in the Shayara Bano case held that the practice of talaq-e-biddat (or triple talaq) unconstitutional. After the judgement, government passed Muslim protection Bill also known as, Triple Talaq Bill in Lok Sabha but there have been criticism about the legal and procedural aspects of the bill.

Significance of the bill:

The proposed Bill will protect the rights of married Muslim women and prevent divorce by the practice of instantaneous and irrevocable ‘talaq-e-biddat’ by their husbands.

It provides the rights of subsistence allowance, custody of minor children to victims of triple talaq i.e. talaq-e-biddat.

Key provisions of the Bill:

  1. The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
  1. Definition: It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.  Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
  2. Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine.  (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) 
  3. The offence will be cognizable only if information relating to the offence is given by:(i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
  4. The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
  1. The offence may be compounded by the Magistrate upon the request of the woman(against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.  The terms and conditions of the compounding of the offence will be determined by the Magistrate.
  2. Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
  3. Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

Issues with the bill:

  1. The bill introduced in Parliament proposes a three-year jail term for a man divorcing his wife through triple talaq. Although most Muslim women feel it is time to end the practice, they are wary of the slipshod manner in which the government has passed the bill in the Lok Sabha.
  2. If the aim of the law is to protect the rights of women, how is that possible with their husbands in prison? If they have children under the age of 18, who will take care of their education, health, financial and other needs? The woman will not be protected but instead be vulnerable to more abuse.
  3. The Bill does not provide the victimised woman any additional benefits in terms of her rights in marriage and divorce.
  4. Since the Bill says that triple talaq is cognizable and non-bailable, married Muslim man become vulnerable target as policemen  can arrest and investigate the accused with or without the complaint from wife or any other person.
  5. Divorce is a civil matter and making Triple Talaq a criminal offence is disproportionate to criminal jurisprudence. The Supreme Court declared Triple Talaq as invalid and did not ask the government to make it a penal offence. Thereby criminalizing the Triple Talaq goes against the spirit of the Supreme Court judgement.

Way ahead:

The legislation brings India at par with other Muslim majority states including Pakistan and Bangladesh. This was long overdue for a country that has taken pride in its adherence to the principles of secularism, democracy, and equality. Personal laws of other religious communities, Hindus and Christians, have gone through renditions to address some concerns relating to gender equality in matters of inheritance and polygamy. Despite the gains, gender equality does not permeate all aspects of civil law. This legislation presents an opportunity to put in place a civil code that steeped in equality—across faiths and gender. 

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May 2022
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