The government has now lifted most restrictions, including mask-wearing requirements unless a company decides to implement their own rules. However, there are still some guidelines business owners need to follow to protect their workforce.

Companies will need to update their risk assessment documents to include any measures they might have to help tackle the spread of COVID-19. With social distancing rules now removed, there are some guidelines businesses will need to follow. Some of these have remained unchanged but are considered more important now:

• Adequate ventilation
• Sufficient cleaning
• Hand washing

While the government has not mandated additional steps, they point to provisions like encouraging employees to get vaccinated and regular workplace testing to help limit spread in the workplace.

Improving ventilation

The law has always stated that employees must have an adequate supply of fresh air when working in enclosed spaces. This can either be natural fresh air from an open window, door, or air vent, or mechanical ventilation that uses fans to bring clean fresh air from outdoors.

This hasn’t changed as a result of the pandemic, but many workers are taking this much more seriously now that we know how COVID-19 spreads. In your risk assessment, you’ll have to identify poorly ventilated areas and how you will address the need for ventilation.

Good ventilation reduces the number of small particles, including viruses, in the air. If there is no ventilation, these particles can build up and increase the risk of droplet transmission.

Improving cleaning

The guidelines for cleaning the workplace have been updated to help address the issue of surface transmission. In addition, it includes guidance for what your cleaning regime should look like depending on your workplace.

Steps like identifying frequently touched surfaces and cleaning shared equipment and tools are likely to be more important in a post-pandemic world.

Encouraging hand washing

One of the simplest steps we can take to help stop the spread of the virus is to wash our hands regularly. Employers are being encouraged to ensure workers can access handwashing facilities with ease. And in areas where this would be difficult, a hand sanitiser should be provided.

The guidance has been updated to suggest that handwashing stations should be added near the entry/exit points to encourage frequent washing. And hand sanitiser is also recommended at additional points.

Can employers enforce testing and vaccinations?

Some employers are encouraging regular testing to help protect individuals in the workplace. Some industries may go further and mandate vaccinations for all workers. Those employed in the care sector, for example, are facing mandatory vaccines to be able to work with the elderly and vulnerable.

While it is down to individual companies to decide which measures to introduce, including keeping measures like social distancing and masks, we don’t yet know if this will lead to an increase in unfair dismissal claims.

Employers will need to tread carefully when exploring anything like mandatory vaccines or workplace testing. For example, there is always the risk an employee could bring an unfair dismissal claim if they are fired after revealing they aren’t vaccinated.

There is also the risk it could be interpreted as discrimination. For example, young people may be reluctant to get a vaccine because they perceive the low risk of a blood clot to the higher than the risk of contracting COVID-19. This could be interpreted as age discrimination because an older person might not see this as a risk.

How to manage a return to work

When bringing workers back into the workplace, there are steps to consider when making your workplace COVID-secure. Communication and transparency is the best place to start. Speaking to your workers and finding out about their concerns will help you understand how to manage the return to the office.

If workers are concerned about crowding in the office, consider a staggered workday or allowing occasional home working. And if workers are worried about ventilation as we head into winter, now is an excellent time to start thinking about improving your office.

Encouraging vaccination and testing will always be more welcome than a mandate. Making anything mandatory could divide your office and create unnecessary tension. Making it easier for workers to get their vaccines by offering time off may help.

Ultimately, if you want to avoid costly claims of discrimination and unfair dismissal, try to remain flexible and understanding of different views. While government guidance might be a good place to start, it’s also important to consider your workforce and what is best for them when implementing workplace rules.

The post What are the legal duties of employers towards their employees in managing a safe return to the office & workplace? appeared first on Legal Desire Media and Insights.

However, there is a general lack of clarity with respect to the topic of maternity leave in Canada and through this article, we hope to address the top questions regarding this topic, as well as, dispel any ambiguity surrounding it.

1. How long can my maternity leave be valid?

Generally, you can apply for maternity leave for a maximum period of 17 weeks. You can take your maternity leave at any point from the beginning of your third trimester (13 weeks before the due date, to be precise), provided it doesn’t stretch beyond a time period of 17 weeks from the date of delivery. However, the duration of maternity leave differs from one province or territory to the next; therefore it is best to educate yourself about the rules in your province or territory before you apply for maternity leave.

In order to be eligible for maternity benefits, you must qualify for insurable employment; which means that you must have clocked a minimum of 600 hours of insurable employment within the last one year of employment.

2. Can I rejoin my workplace before my rejoining date?

Yes, you can rejoin your place of employment before your rejoining date. However, at most workplaces employees need to send in an official request addressed to the Human Resource Manager four weeks before the date they intend to rejoin the firm.

It is, however, important to remember that once you begin your maternity leave, you cannot pause it or have your days readjusted to a later date and club them together with other holiday periods.

3. What is the difference between maternity leave and parental leave? What is the duration of parental leave?

Only birth mothers can avail of the benefits of maternity leave. Parental leaves are meant for both parents and remain valid in the case of adoptive parents too. It reflects Canada’s commitment to ensure that the transition into parenthood is smooth for its citizens. Parental leaves can be opted for a period of 35 weeks by both parents in the year following their child’s birth or adoption.

4. What is the Federal Employment Insurance and how to check your eligibility?

Federal Employment Insurance is a state-backed venture which provides new or expectant parents with financial support so that they do not have to compromise on the safety and well-being of their newborn or miss out on the experience of parenthood.

Most employers generally deduct Employment Insurance (EI) premiums from their employees’ salaries. Business owners or self-employed individuals have the option of paying Employment Insurance premiums if they wish to avail its benefits in the future.

It’s important to note that salaried employees must have clocked 600 insurable working hours over the last one year and self-employed individuals must have paid Employment Insurance for a period of one year or more before requesting its benefits.

5. How much money can I expect to receive through EI?

Under EI’s maternity benefits, you are entitled to receive 55% of your regular weekly wages for a maximum period of 15 weeks.

After this period applicants can further avail of EI’s parental benefits, whereby either of the two parents can choose to take a leave of up to 35 weeks and continue to receive 55% of their regular weekly wage throughout the period.

Recently, the government of Canada decided to extend its Maternity Leave benefits to a period of 18 months; whereby after the end of the initial 15 weeks of maternity leave, either parent can choose to take up to 61 weeks of parental leave during which they will continue to get paid at the rate of 33% of their regular weekly salary. The payment rate remains unchanged for the initial 15 weeks of maternity leave.

It is imperative to remember that EI’s financial assistance qualifies as taxable income and is taxed as such by the federal and provincial tax authorities. If you are self employed it is important to know that you may still be eligible for maternity allowance. Self employed maternity pay will differ per country, but in Canada if you are eligible you can expect to receive around 55% of your earnings from self-employment. There is a limit to this amount and you will need to be signed up for the EI program for atleast 12 months, with proof of a certain amount of self employed earnings.

6. Does my employer have to pay me my wages or any sort of financial compensation during my maternity leave?

No, your employer isn’t bound by law to pay you any sort of financial compensation during the leave period.

However, some employers choose to pay their employees on top of the EI benefits they receive. You can enquire about the same with your firm’s HR or founder.

7. Am I at the risk of losing my employment if I’ve applied for maternity leave?

Your employer cannot fire you from your job because you are pregnant, as long as your condition doesn’t debilitate you from discharging your duties. Similarly, you cannot be demoted on the sole pretext of your pregnancy.

8. When and how can I apply for EI maternity and parental benefits?

You can check your eligibility and directly apply for your EI maternity and parental benefits on the Government of Canada’s official website.

We would advise you to apply for your EI maternity and/or parental benefits as soon as you can begin to receive EI maternity benefits from the onset of your third trimester itself, or roughly 12 weeks before your due date.

If you have surpassed that stage and have recently stopped working at your workplace then we would advise you to apply right away so that you don’t miss the government’s four-week deadline from availing of EI benefits.

If you feel that you have been fired simply due to your pregnancy, then we suggest you get in touch with a team of qualified legal experts. Our reputed and trusted professionals here at De Bousquet in Hamilton will be glad to analyze your case in-depth and subsequently inform you about the legal resources at your disposal as well as about what you can consider being a fair severance payout.

Contact us at 416-616-5628 and we would be happy to answer any of your queries regarding parental and maternity leave in Canada.

The post Top Questions About Maternity Leave appeared first on Legal Desire Media and Insights.

Unorganised Sector has been, in entirety, defined in “Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector, September 2007”^[1] by the National Commission for Enterprises in the Unorganised Sector (NCEUS) as, “the unorganised sector consists of all unincorporated private enterprises owned by individuals or households engaged in the sale and production of goods and services operated on a proprietary or partnership basis and with less than ten total workers”.

Generally, the terms “unorganised sector” and “informal sector” are used interchangeably.

There has been the absence of reliable statistics on the size, distribution or contribution to the economy, the unorganized sector has always remained a poorly understood and grossly neglected area. According to the report of the Economic Survey released in 2019, the unorganized sector accounts for 93% of the total workforce of the country.^[2]

The ‘Report of the Committee on Unorganised Sector Statistics’ of the National Statistical Commission (NSC), 2012 states that the informal sector constitutes 93% of the overall workforce and contributes 50% towards the Gross National Product (GNP)^[3].

It is a well-known fact that the unorganized sector has a big hand in running the country’s economy, yet there has not been concrete provision to protect it from time immemorial and yet, such a large workforce lacks clear legal protections.

In pursuance of the necessity, the legislation came up with the Social Security Code with an objective of consolidating all social security laws (which are already implemented) with a view to providing social security to all employees and workers, either in organised or unorganised sectors, gig workers and platform workers.

The research aims to analyse the provisions and rules of maternity benefits as guaranteed under the Social Security Code, 2020 in India.

Need Due to the Disruption

The necessity to protect the maternity rights of female workers was recognised by the legislation a long time back. The laws related to maternity benefits have been introduced with the aim to regulate the employment of women at certain periods (before and after childbirth).

It was first introduced in 1961; the Maternity Benefit Act, 1961. The objective of the Act was: “to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits.”

Stand of Protection of Maternity Benefits recognised in International Customary Law and Convention

Article 23 of the Universal Declaration of Human Rights, 1948^[4] states that

1. “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.”

The said customary law indirectly infers the necessity of providing such benefits and thereto protecting them further.

On the Global front, the standardised regulations regarding maternity benefits have been established under the Maternity Protection Convention, 2000 (No. 183) after the replacement of its first Maternity Protection Convention in 1919 (No. 3) and Maternity Protection at the Workplace, 1952 (No. 103) and also the adoption of Maternity Protection Recommendation, 2000 (No. 191). Also, during the 92nd International Labour Conference in 2004, International Labour Organisation member states adopted resolutions relevant to extending maternity protection access and promoting work-life balance in its entirety. India is a founding member of ILO.

Stand under the Constitution of India

Article 42 of the Constitution of India contains the directive that the State shall make provision for securing just and humane conditions of work and maternity benefits.

Furthermore, on comparative lines, in order to regulate the employment of women in certain establishments for specific periods before and after childbirth and to accommodate for maternity benefits and certain other benefits, the Indian Parliament enacted the Maternity Benefit Act, 1961. The Maternity Benefit Act, 1961 was enacted keeping in view not only all those legislations related to maternity that existed from the pre-Constitution days, but also ILO’s mandate regarding maternity protection (ILO Maternity Protection Convention, 1952- No. 103).

Is Objective getting Fulfilled?

The Code on Social Security, 2020 has been passed by both Houses and has already received Presidential assent on September 28, 2020, but it is yet to be implemented.

As we have known, the main objective of the introduction of the Social Security Code, 2020 was to consolidate laws to all employees, but the major question which arises is whether the maternity interests of the female workers are getting protected or not.

Hence, for the same let’s analyse the provisions of the Code related to Maternity Benefits.

Chapter VI of the Code 2020 recognises the aspect of Maternity Benefits.

The Code has been proposed with an intention to subsume a few of the Central Labour Law Acts under the garb of ‘simplifying and rationalising’ the said provisions.

The very well intention behind the consolidation of laws into the self-contained and exhaustive Code on Social Security is extending the ambit and expansion of welfare to the workers fraternity.

But when examining the provisions set under the Code related to maternity benefits set out under Chapter VI of the Code, the intention cannot be wholly covered.

Maternity Benefits- Not mere a Legal Responsibility but a Social Responsibility

Providing maternity benefits to every woman worker is the paramount social responsibility of the government and the employer. But it is quite evident in India that the generous maternity benefits grant benefits to just 1% of the women workers as a whole. Ensuring maternity benefits is a universal cry. This is essential to ensure the upliftment and empowerment of women and gender equality. The 98th International Labour Conference held in June 2009 even acknowledged that the strengthening of maternity protection is the key to gender equality at workplace, whilst keeping in mind the application of ILO Convention on Maternity Protection (No. 183) which promotes and gives utmost priority to equality of all women in the workforce and the health and safety of the mother and child.

The Missing Aspects: Analysis of Chapter VI of the Code and in furtherance Recommendations

The government seems to have overlooked the recommendation of the Sixth Central Pay Commission^[5] and has left out a majority of the workforce that works in the unorganized sector; including labourers from the agriculture sector, seasonal workers, domestic workers or construction workers.

With over 90% of working women class in the informal sector, only few of them are even within the purview of the Act. While the Unorganised Workers’ Social Security Act, passed in 2008, includes maternity benefits as one of the entitlements for the unorganised, no wage-linked scheme for such purpose has yet been notified by the Government. The Janani Suraksha Yojana has been notified under this Act, but the same is a mere incentive for institutional delivery and nothing more.

The only entitlement currently available for all women is specified under the National Food Security Act, which promises a benefit of drawing Rs. 6,000 to all pregnant and lactating women. In the Code, there is no such mentioning of the sufferings of the informal sector women faces due to an implicit high workload, resulting in an increase of cases of illness and chances of miscarriage.

The Code even fails to universalise the ambit of payment of maternity benefit. Until and unless maternity benefits are universalized by way of the appropriate provision in the Code, a majority of women who work in the informal sector would be excluded from its purview. Hence, it is recommended that requisite amendments should be made to give universal coverage of maternity benefits to all women workers including those working in the unorganised/informal sector.

Payment of maternity benefits to every woman worker should be ensured. The existing Maternity Benefit Act is quite a generous one. This may be amended to incorporate all the women workers including the agricultural workers. But subsuming the Act in the Code, the Code does not spell out anything clearly. The Code should incorporate infrastructure, institutional mechanism and budgetary allocation to ensure the fulfilment of social commitment.

The Code also seems to miss out the opportunity to introduce paternity leave and possibly a chance to spread the message that the responsibility of running a family should be of both the parents.

Clause 22 of the European Union (Directive of European Parliament, 2019) specifies the need for maternity, paternity and parental benefits in case of a social security system opted by the establishments.^[6]

Countries such as the United Kingdom, Singapore, Sweden and Australia have realised the need of the hour and thereby introduced various other categories of leaves relating to childbirth, like parental leave, family leave etc. in order to provide the leave benefits to both parents, and thereby helping them to have a balance between their careers and personal life and also ensuring that the child’s proper care and attention from both the parents in his/her initial years of development. Although the steps taken by the government are commendable, the government has missed out this opportunity to catch up with such requirements. Hence, under Clause 60 of the Code, it is recommended that paternity leave as per the guidelines should also be included in the provision.

Appropriate provisions should be incorporated in the Code to ensure six months paid leave to every woman worker for childbirth. For the women of the unorganised sector where there are multiple employers; the government, central or state, as the case may be, should make payments equal to such wage rate in the respective industry through the unorganised sector welfare board. And in States, where there are no boards, the payment should be made through the Ministry of Labour.

In most of countries, the cost related to providing such benefits is entirely borne by the government and/or shared by both government and employer as per the social security schemes provided. But it is not the case in India, where the wages during the maternity leaves are borne by the employer only (with a mere exception under the ESI Act). There is also a requirement of having a crèche facility, etc., which would, in turn, require employers to establish adequate infrastructure thus prompting more inquiries and more expenses. Hence, there is need of an explicit provision citing the regulations regarding the bearer of such expenses, shared by both government and employer. Or explicitly mention the allowance of shared crèche with other establishments, where maintaining a separate crèche would not be practicable or economically feasible for the employer.

The Code under Clause 59 (3) does prohibit “work of arduous nature” done by any woman during the prescribed period before the date of expected delivery. But the same has not been defined, as to what is considered under the ambit of “work of arduous nature”.

Hence, there is a need for a specific and unambiguous definition of “work of arduous nature” in order to establish “arduousness” so that employers can be held accountable for risk work as women workers especially in the informal sector are often engaged in hazardous and risky forms of work and also in order to ensure its proper and uniform interpretation in the Code.

Conclusion

Definitely, adoption of such benefits is a boon to society.

But any Law enforceable has become meaningful only through its effective enforcement and particularly, in case of labour laws, periodic inspection and/or inspection on receipt of complaint is the life line of enforcement. The effective application of the relevant provision through the system of labour inspection has been surpassed in this Code. Hence, the entire approach is to make the law efficiently enforceable in order to protect the workers’ interests.

References: 

^[1] https://msme.gov.in/sites/default/files/Condition_of_workers_sep_2007.pdf

^[2] https://pib.gov.in/newsite/PrintRelease.aspx?relid=191213

^[3]http://14.139.60.153/bitstream/123456789/2848/1/Report%20of%20the%20Committee%20on%20Unorganised%20Sector%20Satatistics.pdf

^[4] https://www.un.org/en/about-us/universal-declaration-of-human-rights

^[5] https://doe.gov.in/sites/default/files/6cpchighlights%281%29%281%29.pdf

^[6] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1152&rid=3

The post A Step in the Right Direction?: Critical Analysis of Maternity Benefits as guaranteed under the Social Security Code, 2020 in India appeared first on Legal Desire Media and Insights.

The Universal Declaration of Human rights has been rectified by a number of countries and despite their developing nature, many countries in the South Asian continent have adopted human rights and are making genuine efforts for the same. India and Afghanistan are both such countries.

INDIA AND AFGHANISTAN: HUMAN RIGHTS ANALYSIS

India is the world’s largest democracy. With a population of over a billion, the implementation of human rights becomes a very daunting task for the country. India has a played an active role at an international level in the promotion and protection of Human rights. It is a signatory to a number of International Conventions including the Universal Declaration of Human rights, International Covenant of Civil and Political Rights, International Covenant on Economic, social and cultural rights, Convention on rights of the child, and the Convention on the elimination of all forms of discrimination against women. Furthermore, India is also a signatory member of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which is also known as the United Nations Convention against Torture (UNCAT).

(Source: https://www.globalvillagespace.com)

 Human Rights as a fundamental element are enshrined in Afghanistan’s constitution however, the same has always been a topic of conflict in the country. In chapter two of the Constitution, the bill of rights venerates the rights to life and liberty being protected constitutionally. Also since 1987, Afghanistan has been an active member of the United Nations Convention against Torture. On January 24, 1983, Afghanistan sanctioned the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social, and Cultural Rights (ICESCR). ICCPR and ICESCR are two important treaties that pledge the benefit of basic human rights and freedom from discrimination of all kinds to all people irrespective of their gender, caste, or ethnicity. The Afghan Independent Human Rights Commission (AIHRC) was also set up in the year 2001, as an institution to protect human rights and to probe issues of violation of human rights and other war crimes.^[2]

(Source: http://www.rawa.org/dec999.jpg)

Despite the presence of several institutions acting as watchdogs against human rights violations in developing nations like India and Afghanistan, there is still a long way to go. In Afghanistan, people not only face several kinds of Human rights violations but are also subjected to Taliban decrees which intensify the human rights abuse and makes the state of affairs even worse for women due to discriminatory gender practices. The existing armed violations supplemented by the complex nature of the prevailing turmoil have resulted in massive suffering of human lives. Further forceful displacements based on ethnicity, refugees migration to Pakistan and Iran and their consequent drudgery, capricious arrests and detentions of civilians leading to executions, use of arms on civilians, systematic abuse of women rights based on gender to control all spheres of their existence by Taliban, inhuman treatments, severe punishments, lack of the freedom of expression, association, religion and liberty are some of the gravest concerns which are against the very spirit of humanitarian laws.^[3]

In India, numerous basic human rights violations are witnessed which include, unlawful and discretionary killings, including extrajudicial killings executed by police; torment and instances of pitiless, brutal, or debasing treatment or discipline by some police and jail authorities; subjective capture and confinement by government specialists; unforgiving and perilous jail conditions; political detainees or prisoners in specific states; limitations on opportunity of articulation and the press, including savagery, dangers of viciousness, or baseless captures or arraignments against writers, utilization of criminal criticism laws to indict web-based media discourse, control, and website hindering; excessively prohibitive principles on nongovernmental associations; limitations on political support; far and wide defilement at all levels in the public authority; absence of examination of and responsibility for savagery against ladies; violations including brutality and separation focusing on individuals from minorities.

In the Union territory of Jammu and Kashmir, the northeast and areas under the Maoists are severely impacted due to the presence of terrorists and separatist groups. The lack of any vital actions on part of the Government has further made the scenario despicable. Continued human rights abuses including killings of armed and police forces; torturing, killings and disappearances of civilians, baseless imprisonment and detention of people, denial of a fair trial, loathsome detention conditions, violation of freedom of expression and disrespect of civil liberties, and several such degrading and inhuman practices are still widespread.

Regardless of government endeavors to address such human rights abuses, an absence of responsibility and accountability for such behavior, adds to far-reaching exemption. Inquiry and investigations of individual cases have occurred, but inadequate authorization, lack of prepared officials of the police force, and an overburdened and overstretched court framework added to a very insignificant amount of actual convictions.^[4]

SUGGESTIONS FOR IMPROVEMENTS IN INDIA:

It is true that Rome was not built in a day, similarly, an overnight change of the human rights scenario including its violation and enforcement is not possible. It is a very daunting task that requires an efficient commitment and tireless efforts before even meager improvement touches the surface of society. However, this area of improvement is not completely grey. There are certain improvement measures that can be adopted by a country like India to ensure that Human rights are guaranteed to all individuals.

• India is a very diverse country vis-à-vis religion, culture, language, etc. No doubt, the country preaches the ideal of ‘unity in diversity’ but this euphoric idea is not always prevailing. Many times, Human rights violation in India takes place because of the presence of this sharp diversity. Thus, it becomes extremely important that the law enforcement agencies along with those associated with the protection of Human rights adopt a neutral approach and are sufficiently trained in the fundamental concept of human rights and the sensitivity that the subject demands.
• India has a robust human rights mechanism and a strong theoretical infrastructure, however, there exists a cardinal gap between the vigorous statutes and the actual implementation of the law. There is a lack of efficiency in the enforcement of the human rights system giving rise to human rights violation cases. What is required is the introduction of strict accountability of the human rights implementation agencies, furthermore, there is a need for some degree of autonomy to be guaranteed to these institutions so that it can be fairly presumed that these organisational setups are impartial in nature.
• An independent watch-dog unit needs to set up who will be deliberated with the task of observing any human rights violation that takes place in the country and to observe any inconsistency in the government or its related agencies while addressing human rights issues. This neutral unit should be empowered to direct and assist the government. The unit may comprise of individuals well versed in human rights laws, having sufficient experience and are sensitive when dealing with human rights issues.
• In India, most human rights violations often go unaccounted for as there is lack of awareness among the common masses. To do away with this ignorance, a substantial structural change is to be achieved by introducing human right as an academic subject from the middle school level and encouraging human rights discussion forum and clubs at school levels.
• Furthermore, human rights education can be strengthened further by employing the impactful service of the Legal Aid clinics at district levels to moderate and facilities sessions on human rights education among different class of people.
• Good and powerful Human right literature and news should be made available in different languages and should be lucid. Funds should be allocated to ensure their availability and distribution are increased and circulated in all government schools and colleges.
• One important recommendation that is evident for Human rights protection; is the efficacy of the judicial system. The human rights violation cases should be dealt with as expeditiously as possible and stern actions to be taken against human rights violators.
• Lastly, a community participation policy needs to be adopted by the government in its approach to human rights cases. There is a need to create a forum of discussion, participation, and dialogue among the common masses at micro and macro levels so that their collective voices are channelized towards strong human rights policy drafting.

For a fast-developing country like India, what is required is that a balance is stricken between the overall development and basic rights to life of its citizen (Article 21).              

[1]https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx (last visited 7:45 AM (IST), dated 18/06/2021) 

[2] https://www.refworld.org/docid/3b00f24d14.html (last visited 8:30 PM, 18/06/2021)

[3] https://www.hrw.org/reports/2001/afghan3/afgwrd1001-04.htm#:~:text=Afghanistan%20ratified%20the%20CRC%20on,on%20the%20grounds%20of%20sex. (last visited 9:00 PM, dated 18/06/2021)

[4] https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/india/ (last visited 9:45 PM, dated 18/06/2021)

Disclaimer: The opinions expressed in this article are those of the author.

The post Comparative Analysis of Enforcement of Human Rights in India and Afghanistan appeared first on Legal Desire Media and Insights.

However, this isn’t the case, as all military personnel are expected to abide by the Uniform Code of Military Justice (UCMJ). Therefore, violating any part of the Code, such as the UCMJ article 128 assault, has severe repercussions.

What To Do When A Military Member Assaults You

You can take many steps in response to an assault from your service-member friend or family member.

• Remain Calm

If you’re being assaulted by a service member, don’t fight back or show any signs of aggression. It’s possible the assault was unintentional, and your response may escalate the situation to a more dangerous level. This reaction can also help protect both yourself and the offender from getting into trouble with authorities.

Although it can be difficult, you may also try to talk to the service member about their feelings and how you can help. This approach might work well in cases where you and the offender have had these conversations before. 

However, know that this also might not work if they have anger issues that need addressing. In this case, trying to talk it out could make things worse. It might be better to keep a safe distance to avoid further altercation.

• Ask For A Lawyer

If there are right lawyers for veterans, lawyers for personal injury cases, then there should also be an attorney specializing in cases involving military personnel. Remember, you have to live with the consequences of any decisions made during this time, and thus, a proper attorney can help guide these difficult choices.

Also, if ever you decide to report, you might not be comfortable talking about it in front of another service member. Therefore, having an attorney present at all times during questioning, including any interrogations or interviews, is highly crucial for you. This is especially important if you were assaulted by someone who could financially afford a lawyer or, in this case, military personnel.

• Get The Military Personnel’s Name, Rank, And Other Information

Whether it’s dealing with a civilian assault or the assault (simple assault or assault consummated by the battery) under UCMJ article 128, try to remember as much about it as possible. Write down everything you can recall about what happened in a journal or on paper. Information can include:

• The name of the military personnel who did this
• Their rank (if you know it)
• How they were dressed at the time or if they have a firearm 
• What they said and did to you
• Where it happened, including details like the date, time, surroundings

Remember that it won’t hurt to be as detailed as possible. This will help you get a more accurate account of what went on. You can also create your own document (like an email) and store it somewhere safe, like on the cloud drive of a trusted friend. Then, send yourself these emails about what happened to quickly recall all details that you want to include.

• Report The Assault Immediately with Documentation from A Medical Professional If Needed 

Reporting the assault to the military police or the authority can help you get justice. In addition, if you feel like the assault was intentional and may lead to more harassment, it can also give you protection if needed.

Also, keep records of all medical treatment and expenses. Document how this has affected your work performance and any other symptoms you have from being assaulted. This may help in getting compensation for your injuries and lost wages. Also, it can help in determining the seriousness of the assault so appropriate penalties can be given.

• Seek Counseling from A Professional Therapist

Once you’re done reporting, seek out a therapist who’s knowledgeable about working with similar cases like yours. Remember that being assaulted by a military member involves a breach of trust. These are the people who are supposed to protect civilians. Therefore, your therapist may help you process these feelings and work through them in a healthier way, which is necessary for your mental health. With their expertise on hand, they may be able to give you insight into what would work best for your situation.

If you can’t find one locally, you can always opt for remote therapy sessions if needed. You may also want to have a support person with you, such as another victim of military personnel.

Conclusion

There are many different ways to respond if assaulted by military personnel. Still, these five things are recommended to be implemented as soon as possible after the assault. Doing so can create a safe space for you physically, legally, emotionally, and mentally, so you can heal and move on from this experience.

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What is Racial Discrimination?

Racial discrimination is the practice of treating people differently based on their race and color. It also includes discrimination based on national origin. The law prohibits discrimination of any kind in the workplace, but in reality, it is difficult to eradicate racism in the workplace simply because the impact of stereotyping and how it affects decision-making in the organization is too ingrained in the people and the organization’s culture. 

How to deal with racial discrimination in the workplace?

Many people think that wearing anti-discrimination shirts and posting black squares on social media would be enough to lessen the stigma of racial discrimination, especially in the workplace. Unfortunately, you have to do more than just make a statement — you need to follow it up with actions.

Here are some ways to deal with and tackle racial discrimination at the workplace:

Spread awareness

The sad reality that we are facing is that the majority of the victims of racial injustice remain silent for fear of retaliation and being unfairly judged by other people. The fault of organizations is that they downplay the severity of the behavior or simply turn a blind eye to the racial slur made against their employee. Doing so is similar to saying that racism is acceptable. 

Companies should take a stand and spread awareness that they are serious about eradicating racial injustice in their organization. Posting a statement on their website or on social media is a solid show of support to their cause. 

Don’t let the conversation stop

It is very important to acknowledge the issue and the racial injustices present in the organization and commit to making things better. Sure, it’s good to post anti-discrimination statements and talk openly against them, but it’s better if you back up your words with commendable action. Forming employee resource groups and creating avenues for employees to openly talk about racial issues would be beneficial for everyone.

Managers can likewise initiate respectful and productive discussions, making sure that minority voices are given a chance to speak their minds to get different ideas from diverse perspectives.

Ingrain anti-racism into your values and actions

Organizations should build a strong, healthy, and optimal workplace culture where racist ideas and stereotypes have no room to grow. There should be a focus on cultivating a work environment where racial discrimination will not thrive. 

Training should be conducted not for compliance purposes but to drive change and to educate. Companies should likewise embed processes, training, and policies with values that would create a work culture rooted in inclusion and diversity.

Tackle unconscious bias

In the workplace, racial injustice comes in many forms. But most of them are manifested through what competent lawyers call microaggressions. Microaggressions are subtle, often unintentional acts of racial discrimination against people or members of a marginalized group. 

Seemingly innocent questions and comments like complimenting Latinos on their English skills and asking black people where they’re from are considered microaggressions. It implies stereotypical assumptions that people from other races or colors are not well-educated.

If you are to reduce racism, you must change your unconscious bias and decrease microaggression. Taking meaningful action against racial bias in the hiring process is one way to combat racial injustice in the workforce.

Takeaway

The year 2020 may be a historical year for people fighting for racial injustice, with more than 30 countries protesting and spreading awareness of the racial injustices that you have today. It’s too bad that a tragedy like George Floyd’s death needed to happen before you open your eyes to the sad truth and decide to do something about it.

Racism is bad for business. Not only will it undermine the productivity and the morale of your workforce, but it is possible to put your organization in legal jeopardy. Instead of preaching the words ‘diversity’ and ‘inclusion’ in your employee seminars, enforce these concepts in your workforce.

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Privacy is a human right that cannot be alienated. It demands respect as it is attached to human dignity. But, in the current scenario, it is becoming a threat. Privacy is also acknowledged in UDHR, International Covenant on Civil and Political Rights, and in various court’s judgments. But we can witness the over-enthusiastic media is encroaching the personal right. There is a need to maintain a balance between two approaches. Since this is considered a complex process so, the present tries to explain the freedom of the press and the right to press in integration. balancing the right to privacy against freedom press is emerging it needs to be handled both public and private interests.

Keywords: press, privacy, and rights

INTRODUCTION:

Media is considered as a medium to express feelings, opinions, and views and on the other hand, it is also crucial for forming a base of opinions on different concepts such as regional, national, and international concepts. Therefore, the media is responsible for shaping the thinking ability of hundreds of people. In democratic state freedom of the press is considered as a cornerstone of democracy. And today India has four pillars in the nation. After guaranteeing Article 19 (1) (a) that is “freedom of speech and expression”[1] has given rise to the fourth pillar that is “Media”.[2] The role played by media is crucial it works as a watchdog. It tries to bring in notice all the wrongs exist in society by creating awareness with an intention for correction.[3] The fact is that press is a source of providing information to individuals. “the press is for them, the only window which opens upon the world, the sole means of escape through the prison whose walls are private interests, personal ties, and domestic concerns.” It is, therefore, in the interest of the people to ensure the freedom of the press for it is the best guarantee of their freedom (Justice George).

But as we know every coin has two sides with the right to press there comes attached right to privacy which may get violated. With the increased role and responsibilities of the press in daily life, the media needs to realize its boundaries. There is a duty on the media to respect the dignity of individuals by acknowledging the privacy of others. The individual has a “right to privacy”[4] which is guaranteed in Article 21 of the Indian Constitution.

FREEDOM OF PRESS:

In the Indian constitution, the freedom of the press has been guaranteed under Article 19(1) (a) that is freedom of speech and expression. The purpose of Article 19 is to protect the rights of freedom of speech and expression. Every citizen has a right to freedom of speech and expression. Article 19 holds the freedom to hold opinions. And restrictions on freedom are present in article 19 (2) that state can enforce in the interest of sovereignty and integrity, the security of the state, friendly relations with foreign states, public order, decency, and morality or in relation to contempt of court, defamation or incitement to an offense. The Freedom of Press has a long history in India from the British Rule. The Government of the British has enacted a number of legislations like the Indian Press Act, 1910, Indian Press (Emergency) Act, etc. There existed censorship on publication of news on activities related to the congress. But, after the period of independence, the outlook was changed and Article 19(1) (a) came into existence. It says: “All citizens shall have the right, to freedom of speech & expression.” The words speech and expression in India include freedom of the press. It means that the state cannot interfere with the content and circulation of the newspaper.[5]

Romesh Thapar v/s State of Madras[6]

In this case, it was observed by Patanjali Shastri a Chief Justice that “Freedom of speech and press lay at the foundation of all democratic organization, for without free political discussion no public education, so essential for the proper functioning of the process of popular government is possible.” In this case, the English journal “Cross Road” was banned by the Government of Madras. It was claimed to be violative of freedom of speech and expression.

Indian Express Newspapers v/s Union of India^[7]

In this case, it was realized that the press is a crucial part of a democratic setup. The court has an obligation to preserve the freedom of the press. The court can invalidate laws and executory actions that violate freedom. The case has given three components and they are as follow:

1. Freedom of access to all sources of information;
2. Freedom of publication;
3. Freedom of circulation

Restriction on Freedom of Press in India:

Though India is blessed with freedom of speech and expression but the right comes with reasonable restrictions under Articl2 19 (2). Therefore, freedom of speech and expression is not absolute. The right can be restricted only on the grounds mentioned above. The restrictions adhered are important in order to maintain regularity. The following are the restrictions:[8]

1)    Sovereignty and integrity

2)    Security of the state

3)    Friendly relations with foreign states

4)    Public order

5)    Decency or morality

6)    Contempt of court

Sakal Papers v/s Union of India[9]

The Daily Newspapers (Price and Page) Order, 1960 which fixed the number of pages and size which a paper could distribute at a cost was held to be violative of the opportunity of the press and not a reasonable restriction under Article 19(2).

Bennett Coleman and Co. v. Union of India[10]

In this case, Bennett Coleman and Co. fixed the maximum number of pages, and the court struck down by the court by observing it as violative of the provision of Article 19 (2).

Right to Privacy:

Privacy is the newly emerging concept in the framework of law and still developing. It is difficult to define privacy and especially in terms of the law. the right to privacy is a crucial element for protecting individuals and protect the basis of individuality. The Indian constitution does not expressly deal with the Right to Privacy. But the scope of the right to privacy is explained under Article 21 which says: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[11] the article is always explained by the judiciary broadly and deemed to include the right to privacy”. The journey of right to privacy started with “Kharak Singh v. State of Uttar Pradesh and Others.”[12] In the case “Govind v. State of Madya Pradesh”[13] the Supreme Court acknowledged “The Right to be let alone.” And, for the first-time court acknowledged that it is true that the Indian constitution does not explicitly have declared the right to privacy. After “Govind v. State of Madya Pradesh” and Another, the court included the right to privacy into the ambit of right to life and personal liberty. Therefore, the right to privacy is a fundamental right under the Indian constitution and needs to be protected in any scenario.[14]

Interconnection Between Media and Press

At present we can witness that media has grown unpredictably due to over-commercialization and violating the right to privacy of individuals it has gone beyond the limits of its liberties. The right to privacy has a strong legal basis it is our basic, inherent, and inalienable right. Another view that deals with the same point are by Andra Pradesh in the case of “Liberation Front v. State of Andra Pradesh.” It was held that “Once an incident involving a prominent person or institution takes place, the media is swinging into action virtually leaving very little for the prosecution or the Courts to examine in the matter. Recently, it has assumed dangerous proportions, to the extent of intruding into the very privacy of individuals. Gross misuse of technological advancements and the unhealthy competition in the field of journalism resulted in obliteration of norms or commitments to the noble profession. The freedom of speech and expression, which is the bedrock of journalism, is subjected to gross misuse. It must not be forgotten that only those who maintain restraint can exercise rights and freedoms effectively”[15] The same decision was upheld in a decision of “R. Rajagopal and Another v. State of Tamil Nadu and Others”[16] that press should consider the right to privacy.[17] Indian Constitution does not have any provision talking about the right to privacy explicitly. It is a deemed right under the right to life Article 21. For inter-relating right to privacy has to be understood in the context of two fundamental rights that is Article 21 and Article 19.

Though the press is playing a crucial role in public welfare it needs to act responsibly. For example, the writ petition filed by Ratan Tata before the apex court of India to deal with unauthorized publication of his private talk with Nira Radia infringing the right to his privacy. The writ filed before Supreme Court challenged the publication. The present issues highlight the issue that exists between media and privacy.[18] The issue is right to privacy is not a positive right it comes into existence only when it gets encroached. The law has only evolved through judgments. The right to privacy is often compromised when it comes to public welfare and state security. The Indian media breaches privacy in our daily life. We are experiencing a conflict between media activism and the right to privacy. If we sum up the basis it declares a dispute between the public’s right to know and infringement of privacy. With power comes responsibilities and right granted under Article 19 (1) (a) of the constitution brings an obligation not to violate the law. so, while exercising the freedom of the press the human dignity and privacy need to be respected. The current picture of the right to privacy is blurred and requires the check. A plausible press brings matter into the public domain which needs to be checked but all it requires to mandate in mind requirements of privacy and law seems nowhere in reality.

Remedy for protection of privacy:

India being a signatory of the United Nations has adopted almost every principle into our constitutional framework. Universal declaration on human rights declared privacy as the most fundamental requirement and gave it the foremost position in Article 12. But freedom of speech and expression was only a part of Article 19 and it comes with restrictions under Article 19(2). Though libel and slander have no place in restrictions which gives right to press to use it’s right in an indecent manner. Freedom of the press was recognized in case Romesh Tapper state of Madras where the court held that the press has the right to propagate including the right to circulate. The above-mentioned aspects gave birth to the right to press. But at the same time, the right to privacy right to privacy does bot hold any independent status into our constitution so it does come at the same footing with right of the press in our constitution. This may be due to no presence of article right to privacy explicitly into the constitution and embedding its scope into Article 21 does no justice. Article 21 is an interim relief but to provide remedy protection of the right to privacy is needed and recognition of slander and libel into restrictions could enhance the scope to withhold the principles of UDHR as well.[19]

CONCLUSION:

Due to a lack of constitutional upliftment to protect the right of privacy, it receives setback and it fails to protect the interest of victims of the press. Though IPC provides punishment for the offenses of slander and libel but not for privacy. Legislators have ignored making powerful laws for privacy and scope till now has only be expanded by the judiciary. The only ground which can enhance the procedure of justice is Article 21 of the constitution as to date there is no way to codify laws on the same. The victims have to be dependent on the decisions of the courts to get justice. once it will be recognized it will stand at par with freedom of the press. I suggest if any action could be made like the Privacy Act. The right to privacy needs protection, especially in the digital arena. The establishment of any regulatory body for controlling the actions of the press can even both.

SUGGESTIONS:

·       Codification of laws related to the right to privacy.

·       While exercising freedom of press terms of privacy should be respected

·       Setting up the regulatory body for checking the work of the press

·       Including slander and libel into the reasonable restrictions

References:

·       http://www.legalservicesindia.com/article/217/Freedom-of-Press-In-India.html

·       http://www.advancedjournal.com/download/169/1-10-16-525.pdf

·       https://shodhganga.inflibnet.ac.in/bitstream/10603/40105/17/17_summary.pdf

·       https://madhavuniversity.edu.in/right-to-media.html

·       http://ijsae.in/index.php/ijsae/article/download/231/142

·       http://www.lawjournals.org/download/45/2-5-26-273.pdf

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The transgenders are one of the marginalized sections of society and they face much discrimination in all forms whether social, economical and political. To save them from these atrocities, the ministry of Social Justice and Empowerment on 26 Nov passed the transgender persons (protection of rights )Act 2019 and the president gave assents on 5 Dec 2019 and finally enforced from 10 Jan 2020.

But in April 2020, the Ministry of Social Justice and Empowerment proposed the Transgender Person (Protection of Rights) Rules 2020, for accompany and clarification of the 2019 Act.

Problems faced by Transgender-

1. Societal Norms– if the child is behaving in an inappropriate way or like opposite genders, then they not accept him or even scold and start threatening him.

2. Economic injustice– they are usually not so much educated due to various reasons and one of them is most of the school and colleges do not accept their admission. There is no reservation in schools and colleges. Even in jobs they have very limited employment opportunity. Sometimes they become the victim of Human Trafficking, involved in begging and dancing to just feed themselves.

3. Personal laws– there is no specific laws regarding same sex marriage and issues involved in it. There is no properly mentioned in property law that how that how a transgender claims their property rights. They also faced difficulty in adoption of child.

4. Healthcare system– there is no proper public toilet or places to be used by them. In hospital there are no transgender wards, so they admitted to males wards and faced humiliations. Some people even deny their medical services. There is no proper hygiene facility for them.

5. Political injustice- according to article 326 of constitution all citizens have right to vote but in 1994, the transgender persons got right to vote. But during issue of voter card they caught in question of male and female, similarly in many government documents they have to face a similar situation.

History of evolution of laws for the welfare of Transgender:

This all was started on 15 April 2014, when the SC pronounced the judgment in national legal service authorities of India v/s.UOI2, in this the court recognize the rights of transgender person and prohibit the discrimination against them and also to make welfare policies and reservations in jobs.

The main thing in this, it upheld the right of self perceived gender for them. The judgment also got its confirmation in Justice K.S.Puttaswamy & UOI (2017)3 and Navtej singh johar v/s. UOI (2018)4.

But in Jan 2014 i.e. before the NALSA judgment, the expert committee report was published after consultation with ministry of Social Justice and Empowerment.

Meanwhile, a private member bill i.e. right of Transgender person bill 2014was introduced in Rajya Sabha by DMK party. The government asked to withdraw bill. But as they have majority in house, it passed. But Transgender called that they are haven’t involved in any process. So, after receiving the comments from transgender, bill sent to Ministry of Law and Justice. Then known as Transgender Person bill, 2015. The bill was again introduced in Lok Sabha in 2016 and debated but 2014 bill was passed by Rajya Sabha and still pending and government gave Transgender Person (Protection of rights) bill 2016.

The bill was severely critized by the Transgender community then it send to the standing committee. The committee sends report in 2018. The government made 27 amendments but not follow committee report and Transgender comments and Loksabha dissolved.

In 2019, the Lok Shaba reconstituted and bill again reintroduced and passed in Lok Sabha on 5 Aug 2019, the day of scrapping art.370 of constitution. Rajya Sabha passed on 26 Nov 2019 and then Act comes in effect from 10 Jan 2020, after the notice by ministry Social Justice and Empowerment in official gazette.

Transgender Person (Protection of rights) Act of 2019    

“Person whose gender does not match with the gender assigned to that person at birth and include trans-man or trans-women, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra. Aravani and jogta”5

The Act deals with the 9 chapters:

Chapter 1- preliminary (sec 1-2)

Chapter 2-prohibition against discrimination (sec 3)

Chapter 3- recognition of identity of transgender person (sec 4-7)

Chapter 4- welfare measures by government (sec 8)

Chapter 5- obligation of established and other person (sec 9-12)

Chapter 6- education, social security, and health of transgender person (sec 13-15)

Chapter 7- National council for transgender person (sec 16-17)

Chapter 8- offence and penalty (sec 18)

Chapter 9- miscellaneous (sec 19-22)

 But this Act was protested on the following reasons:

• They have problem with the name of Act because they used the word “transgender” and they rejected this word as nomenclature.

• The mandate certificate from D.M. is against the principle of self determination. One of the principle in Human Right (ICCPR 1977).

• The Act doesn’t talk about health care needs.

• The Act doesn’t talk about re-assignment surgery, free of cost or on subsidized amount.

• The sexual abuse is punishable for 2 years only.

• It doesn’t provide reservation in education and jobs, as this is against Article 16(2) as discriminate on the basis of sex and in Art.16 (4) state is bound to take action.

• The Bill not give civil rights such as marriages, adoption ,social security, pension etc.6

Transgender Person (Protection of Rights) Rules of 2020 –

The key features of these rules-

• It contains the specific process and manner that how the certificate will be issued to them.

• Along with affidavit, they also have to submit the psychologist report.

• The D.M. gave certificate only to those who are residence under their jurisdiction for period of one year.

On 16 April 2020, the government circulated the draft of rules for the public feedback.

Comparison between the provision of  2019 Act and 2020 rules.

Key issues related to transgender rules 2020

1. The certification of identity, the requirement of psychologist’s report-    the transgender has the right to self perceive their identity and identity card to be issued by the D.M. to confer the rights and benefits of the Act.

The purposes of the psychologist report are not clear and thus violate the principle of self determination.     It is not specified that what the contents of the psychologist report are because already the affidavit is provided by the transgender.

               Post of clinical psychologist  are not sufficient; According to NHRC 2019 report there are only 898 psychologist whereas demand is for 20,25

2.) Before summiting application, has to be resident for one year under D.M jurisdiction. This has increased the burden upon transgender because they have no proper       employment and homelessness.

3.)Purpose for collecting and sharing data is not properly specify: that whom the information is given and for what purpose whether it is for security purpose , send to state government or central government or elsewhere.

  Why peoples are objecting against transgender person (protection of rights) rules 2020:

1. These rules come in April 2020 i.e. in lockdown period, where people are anble to meet and discuss the issues regarding it.

2. The timeline to give objections was from 18 April to 30 April in lockdown period where as in normal bill time period of 30 days is given. When the lockdown 2 starts they also extends the date up to 18 May which is unacceptable to many peoples8.

3. The rules are only provided in the English language and become problematic for many people to understand it.

4. Many activists say that during this time the they are struggling for food and shelter.

5. The punishment for sexual abuse in IPC is not less than 7 years whereas in this Act is only 2 years.

6. These rules does not contain the penalty and punishment for the violation of these rules and incite the practice for discrimination.

7. There is arbitrary power on District Magistrate to reject the application and no provision of appeal, that who is the appellant authority and in what time period they have to close the appeal.

8. It also violates the right of self identity as there is no need of psychologist report.

Conclusion:

The transgender person (protection of rules) 2020 are to justify the Act of 2019 and for the broad view of it .To clarify the provisions like the manner of issue of identity card and other welfare policies. But the people are protesting against it because it works like a toothless tiger as this Act doesn’t marked upon the expectation of peoples and having various anomalous as its contain less punishment than prescribed in IPC etc. But these types of Acts should be encouraged for the protection of the disadvantaged and minorities’ peoples like transgender to save them for the discriminations and other social stigmas. As in article 14,15,16 in constitution of India clearly saves the person from all forms of discriminations. So, state should make the Acts to preserve their fundamental rights.

_____________________

1. Twelve five year plan(2012-2017):faster more exclusive and sustainable growth, vol.1 foreword page no.6  

2. NALSA v. UOI AIR (2014) SC1863

3. K.S.puttaswamy v. UOI AIR (2019) 10 SCC 1

4. Navtej singh johar v. UOI AIR (2018)SC 4321

5. Transgender Person (Protection of Right) Act 2019 sec 2(k)

6. Ramaya Kannan, what are the objections to the Transgender Person Bill Dec  01, 2019 (13:27) IST https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.e

7. https://www.prsindia.org/billtrack/draft-transgender-persons-protection-rights-rules-2020               

8 G.Ram Mohan, half implementation of trans act 201: activist (5 June 2020).   https://thewire.in/lgbtqia/trans-act-2019-rules-feedback-activists__   

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An under-trial prisoner is a one who faces trails in the competent court. These prisoners to speak technically, are the ones who face trials and during the thus are kept in the prison. The purpose of imprisonment or confining an under trial within a prison is not to punish, but as a means of keeping the accused of a crime detained until the actual punishment could be carried out and to prevent him from tampering with the evidence or to prevent him from committing the further crime. However, the existence of an disproportionate number of remands, undertrials and other unconvicted inmates in prisons has given rise to increasing public and professional concerns regarding non-compliance with human rights in institutions. This is particularly due to the protracted detention during the pendency of investigation and the trial which take a long time. By taking note of NCRB Annual Prison Statistics Report, one might express their concern about the number of the undertrial and unconvicted prisoners, which had reached alarming and disproportionate dimensions in the recent years[2]. The pathetic situations of the undertrials in the prisons are being revealed through some writ petitions such as the case of Rudul Sah.

The concept of human rights of under-trials was embraced under The Standard Minimum Rules for the Treatment of Prisoners (1955) also known as ‘NELSON MANDELA RULE’ which has been adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, where some of the important guidelines were laid down relating to the Under trials such as segregation of Under trials from convicted so as to not to get influenced by the attitude of convicts and for the provision of legal aid etc[3].  

India being a signatory to the convention made so many efforts and exemplified the human rights for under trials through various Acts, guidelines, manuals and commissions. The National Human Rights Commission has been taking steps to arrange the release of under trials from various prisons in the country, contemplating the problems both from human angle and Prison Management perspective. The NCRB, which submits the Annual Prison Statistics to the government helps the NHRC to assess the Conditions of the under trials in the Prisons. The NALSA and SALSA were also very keen about the conditions of the undertrials in the prisons. Supreme Court in various instances had issued orders to mitigate the problems of the undertrials. It had ordered for the constitution of the “Under trials Review Committee” in 2013 to review the conditions of the Undertrial and to examine how many are eligible for the bail under Sec.436A of Crpc. The State Legal Services Authority has proposed for the fast track courts to dispose the matters relating to the undertrials effectively.[4]

Analyzing the Prison Statistics Report, 2018:

The NCRB, which comes under the auspices of Ministry of Home Affairs, is responsible for providing the annual statistics relating to the prison, which includes various aspects such as Number of Prisons, Number of Prisoners, Categories of Prisoners, Deaths in Prisons and Age and Sex of Prisoners etc. Here, I Just focused on the data relating to the undertrial prisoners.

From the Prison Statistics Report, 2018[5], it evident that there is a steep rise of undertrial prisoners in the prisons from 2016-2018, that is about 10.4% from 2016. The Population of undertrial prisoners in prison by the end of 2016 is 2, 93, 058 and by the end of 2018 is 3, 23, 537, which constitutes 69.4% of the total prison population[6]. Out of 3, 23, 537 undertrials, 51.3% were in District Jails, 35.9% were in central Jails and 10.5% in the sub jails[7]. The UP, Bihar and Maharashtra stands in first 3 consecutive places with highest number of undertrial prisoners[8]. From the above data it can also be inferred that the women undertrials were 12, 663 in number and accompanied by children who stands at 1, 590[9]. The Foreign Undertrials stands at 2, 611.[10]

It is also clear from the above statistics the most of the undertrials are of the age group of 18-30 years and they have come from unprivileged backgrounds with no formal education and belonging to the lower castes[11]. Moreover, there are 5, 104 (1.6%) undertrials who have been languishing in the jails for more than 5 years[12]. There are 1, 822 undertrials, who are eligible for release under Sec.436 but were not released due to the procedural delays[13].

It is pity to mention that there are only 1, 339 jails to accommodate the whole prison population, which constitutes around 3, 96, 223[14]. This depicts the problems of overcrowding in the Indian Prisons. Moreover, the overcrowding, per se, has its own affects. Such as, due to overcrowding all categories of prisoners are clubbed at one place and it may leads to the negative impact on the Juveniles, First time offenders and Petty offenders etc. It also may lead to the violence in prisons and the convicted/ Brutal offenders takes the advantage of the First time (or) petty offenders and name call them with their castes since most of the undertrials belongs to the lower and unprivileged castes and could not afford the legal aid. It also creates the kios in the prison administration. The prison administration instead of being a reformation center just confines itself into a “clerical workshop” by just jording down the names of the prisoners. In the case of Sri Ramamurthy v. State of Karnataka[15], the court has identified the 9 major problems which afflict the prison system and requires the immediate action. “They are: (1) overcrowding; (2) delay in trial; (3) torture and ill- treatment; (4) neglect of health and hygiene; (5) insubstantial food and inadequate clothing; (6) prison vices; (7) deficiency in communication; (8) streamlining of jail visits; and (9) management of open air prisons”.

The 3 major hindrances[16], which are coming in the way of the undertrials, are

(i)              Lack of quality legal aid services for undertrial prisoners who cannot afford the services of good lawyers to defend themselves in court. While the state does provide free legal aid services to needy persons through the district legal services authorities, often the quality and consistency of these services are questionable. There are too many complaints against these lawyers about irregular appearances in courts, lack of communication with their clients about the status of their cases.  

(ii)            Financial system of bail that exists in our country. This means that an accused has to deposit the bail amount in the court till the end of the trial in case of cash bail, or produce a surety who can prove that he can pay the bail amount specified in the bail order in case the accused absconds. This implies that if a person is poor and cannot pay the cash bail or produce a surety, he/she will continue to languish in prison till the trial ends. This, though relaxed with the substitution of Section 436A of Crpc has becoming difficult for the undertrials to get the bail as we can see from the above data.

(iii)          Delay in trial process. There are number of factors which are attributed to the delay in the trial process, one of such is the very poor judge–population ratio in India, which stands at 19 judges per million population[17], as compared to between 35 and 50 judges per million population in most advanced countries. There are some other factors which attributes the delay in trial such as Non Appearance of witness, Non Production of Accused in Courts and tactics by the advocates for protracting the case.

Legal Provisions and Judicial Attitude towards Undertrials:-

There is no specific provision in the Constitution which deals with rights of the undertrial prisoners. In order to uphold the Rule of Law and Fairness, the Supreme Court had to interpret Articles 14, 19 and 21 in Part III along with Articles 38, 39, 39A and 42 in Part IV to provide various fundamental rights available to the undertrial prisoners.

Besides the Constitutional guarantees, there are so many legal provisions which guarantee the rights to the undertrial prisoners Such as Section 41, 41A, 41B, 41C, 41D, 436, 436A of the CrPC, Section 7 and 29 of the Indian Police Act, 1861 and Section 376(1) (b) of the Indian Penal Code, 1860.

The study of the various rights of the prisoners, enunciated in the catena of judgments in the post Maneka Gandhi[18] period can be done under 3 subheadings[19]:

(a)  Right to Speedy Trial

The right to speedy criminal trial is one of the most valuable fundamental rights guaranteed to a citizen under the Constitution, which is integral part of right to life and liberty guaranteed under Article 21. In Kartar Singh vs. State of Punjab[20], it was observed: The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages till it consummates into finality.

In the leading case of Hussainara Khatoon v. State of Bihar[21], it was held that where the under-trial prisoners have been in jail for periods longer than the maximum term to which they could have been sentenced if convicted, then their detention in jail is unjustified and violative of Art. 21. It further held that the right to speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21.

(b)  Right to Legal Aid

It was also held in Hussainara Khatoon’s Case[22] that “Right to free legal aid as given under Art.39A was implicit in Art. 21 because a procedure which does not make available legal services to an accused person, who owing to his poverty cannot afford a lawyer and who would, therefore, have to go through the trial without legal assistance cannot possibly be treated as just, fair and reasonable procedure and is thus, violative of Art. 21.”

In Khatri v. State of Bihar[23], it was held that the legal aid should not be provided at the commencement of the trial only, but it should be provided when the person is brought before the magistrate for the first time. Lastly; in the chain of these cases ensuring justice to the prisoners, comes the case of Suk Das v. Union Territory of Arunachal Pradesh[24], which held that it was an obligation on the part of the Magistrate or Session Judge to tell the accused of his right to have a lawyer at State’s cost.

(C) Right to Compensation:-

An Undertrial Prisoner can approach the Supreme Court under Art.32 and High Court under Art.226 and claim for compensation for the violation of his rights while in custody of the police. In D.KBasu v. State of West Bengal[25], the court had talked about the right of compensation of the victims and held that “The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 21 and 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen”.

In Rudul Sah v. State of Bihar[26], it was observed that “One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffered, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights”.

In Bhim Singh v. State of J&K[27], the court while awarding the compensation to the victim Bhim Singh observed that, “Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct”.

Some other Notable Cases:-

In Moti Ram v. State of Madhya Pradesh[28], the court observed that “The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

In the case of In Re: Inhuman Conditions in 1382 Prisons[29], the Supreme Court had issued directions to setup Undertrial Review Committee in every district which should specifically look into aspects pertaining to effective implementation of Section 436 of the Code of Criminal Procedure and Section 436A of the Code of Criminal Procedure so that undertrial prisoners are released at the earliest and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason. The Under Trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society

In the case of Maliyakkal Abdul Azeez v. Assistant Collector, Kerala[30], the court while examining the views of Joint committee on Sec. 428 of the CrPC observed that, “The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are undertrial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil.“

Recommendations of Various Committees on Undertrial Prisoners:-

There have been so many recommendations made by various committees, commissions and International Organizations on the Conditions of Undertrial Prisoners. Here, I’m going to deal with 3 Recommendation Reports. They are 78^th Law Commission Report, Mulla Committee on Prison Reforms and Amnesty International Report.

(i)    78^th Law Commission of India Recommendations:-

The 78^th Law Commission Report on Congestion of Undertrial Prisoners in Jails had made a few suggestions in respect to the mitigating the problems of the undertrials. Some of the Recommendations[31] are:-

(a)   To deal with the problem of congestion of undertrials, the prisoners had to be segregated into 3 types:-

(i)    Persons being tried for non-bailable offences in respect of whom courts have declined to pass an order for their release on bail.

(ii)  Persons being tried for non-bailable offences in respect of whom courts have passed order for bail but who, because of difficulty of finding appropriate surety or because of some other reason, do not furnish the bail bond.

(iii)                     Persons who are being tried for bailable offences but who, because of the difficulty of finding appropriate surety or some reasons, do not furnish the bail bond

and to implement measures mentioned in 77^th Law Commission to reduce delays and arrears in the trial courts.

(b)  In order to prevent interested parties from prolonging pendency of cases, a certain amount of strictness is necessary to ensure prompt disposal.

(c)   Trial Magistrates should furnish periodical statements of cases in which the accused are in custody and which are not concluded within the prescribed time.

(d)  In times of some agitation, numerous persons defy law and court arrest, causing a sudden spurt in the number of undertrial prisoners.  Most of them would not offer bail.  Such persons should be put up for trial soon after their arrest in order to avoid congestion in jails.

(e)   Quite a substantial number of persons who are being proceeded against in security proceedings for keeping peace and for good behavior are detained in jail as undertrial prisoners because of their inability to furnish the requisite bond. The cases against those persons should be heard with due promptness and despatch. Efforts should be made to conclude these proceedings within 3 months.

(f)   Inordinate delay in the investigation of cases should be avoided. The diversion of police officials concerned with investigation to other duties relating to law and order should be avoided. It causes delay in investigation, as pointed out in 77th Report.

(g)  Where the accused is in jail, adjournments of cases should not be granted unless absolutely necessary.

(h)  There should be separate institutions for the detention of undertrial prisoners, the induction of a large population of undertrial prisoners in a building essentially meant for convicts being undesirable. However, the creation of such institution is a matter of long-term planning and of financial implications. Other steps to reduce the number of undertrial prisoners may therefore have to be taken.

(i)     The question of providing for bail hostels for persons who, though ordered to be realeased on bail, cannot offer bail, has not been considered in the Report as a part from its financial implications and need for long-term planning, its prospects in the present conditions are rather remote

(ii) Mulla Committee on Jail Reforms:-

Committee on Prison Reforms headed by Justice Anand Narain had submitted a report in which it had made some of the recommendations regarding the undertrial, unconvicted prisoners. Some of the Recommendations are as follows[32]:-

(a)   Lodging of under trials in jail should be reduced to bare minimum and they should be kept separate from the convicted prisoners. Since under trials constitute a sizable portion of prison population, their number can be reduced by speedy trials and liberalization of bail provisions.

(b)  A Board of Visitors should be appointed in every district to visit regularly all police lockups in the district and report the conditions of the undertrials.

(c)   Institutions meant for lodging the undertrial prisoners should be as close to the courts as possible. Undertrial prisoners shall not be taken to the court on foot or roped with each other

(d)  Release of Accused person on personal recognizance should be encourage in certain cases.

(e)   The time spent by the undertrials in the jails should be put to the benefit of both prisoner and the society. They shall be made to work and to be paid on the basis of work done.

(iii)  Amnesty International Recommendations:-

Amnesty International in its report “A Study of Pre Detention Trial in India”, had made some of the Suggestions[33]. They are:-

(a)   Standardize the remuneration paid to legal aid lawyers across India, and ensure that lawyers are paid competitive salaries in a timely manner.

(b)  Set up a computerized database and tracking system for prisoners in all prisons, which will regularly alert prison authorities on undertrials eligible for release which will be  maintained and updated at the state-level.

(c)   Appoint more legal aid lawyers according the the needs of the state.

(d)  Strengthen the monitoring of legal aid lawyers’ effectiveness to ensure accountability and quality representation.

(e)   Ensure that legal aid lawyers at the state, district and taluk levels are required to submit regular reports on the status of their cases, and hold lawyers failing to do so accountable.

(f)   Ensure that legal aid lawyers are paid on a monthly basis.

(g)  Undertake regular awareness programs in prisons to ensure that all undertrials are informed about their legal rights, including access to legal aid, procedural safeguards and bail.

Other Recommendations and Conclusions:-

I believe that some of my recommendations will also contribute to mitigate the adversities and problems, which are being faced by the undertrials. They are:-

(a)     At present NHRC is responsible to deal with the cases of torture in custody but the NCRB should also be included to deal with this cases so as to gather the statistical information and date more precisely.

(b)  In order to uphold the justice the court has to adapt to the speedy trails where the under trail prisoners can get quick access to the justice, in which ad hoc courts shall be establishes and Special Public Prosecutors shall be appointed. The registrar of courts shall be bestowed with the duty to oversee the list of cases where the undertrials are being held in prisons for a long time.

(c)   The officials who deal with prison administration at ground level comes from the minimal educational backgrounds which brings in the necessity of providing adequate training. Besides the work pressure channelizes the workforce to use inappropriate means of treating the prisoners. So, there has to be given adequate training and the knowledge of law which governs the prison administration.

(d)  The cases which are compoundable in nature and the offence which are not grievous in nature should be allowed for the plea bargaining and the duty lies with the Jailer and the court.

(e)   There should be prisoner unions which are capable for availing their rights.

(f)   There should be real time governance through implementation of the state of art technology.

The Conditions of the undertrials are so pathetic in India. Though, this problem is not unique to India, but it must focus on finding the solutions to the problems of undertrials. With the effective implementation of the above recommendations from the committees, commissions and some of my suggestions, I believe we can reduce the problems of the undertrials.

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With globalization and a dynamic environment, a need for change and development must be one of the essential features for development in Emerging Technologies. In this digital era, everything is driven by social technology, making it a more important aspect of a country’s. The digital age began in 1939 with the development of the first digital computer. Human rights are those lawful and ethical rights that all people have primarily as people. Within the current computerized age, human rights are progressively being either fulfilled or abused within the online environment. In this article, I give away of conceptualizing the connections between human rights and data innovation. I do so by indicating out several errors of human rights evident in the new ear on the Web. This article will be segregated into two major components of human rights in the digit era: Introduction and the challenges faced by the human right in the digit era or world.

INTRODUCTION

We live in a world nowadays where tremendous Data and Communications Innovation (ICT) infrastructures and broad streams of data have gotten to be shared and unchallenged features of advanced life. Quickly developing online services— everything from social media to the E-Commerce and virtual collaboration—have come to characterize our day-to-day lives in ways incredible fair a decade ago. Focusing on human rights in the digital age is a key to go into the digital era.

Data collection is already happening in all three sectors of our country, from agriculture to the industrial sector. As more and more aspects of our lives are digitally tracked, stored, and save. Advanced innovation conveys numerous benefits. Its esteem for human rights and improvement is enormous. We can connect and communicate around the globe as never sometime recently. We will enable, illuminate, and investigate. Able to utilize scrambled communications, disciple symbolism, and information streams to specifically protect and advance human rights. We can indeed use artificial intelligence to foresee and head off human rights infringement. But we cannot overlook the dark side of the computerized time. I cannot express it more unequivocally than this: The digital transformation could be a significant global human rights issue. Its apparent benefits don’t cancel out its apparent dangers. If we look upon the Issue of human rights in this digital age more closely, we will see that the digital revolution is one of the significant problems in the human rights context—intimidation, Harassment, etc.

Shreya Singhal v. Union of India, 2015, Subject: Right to freedom of speech and expression

The apex Court held that section 66A of the Information Technology Act allowed arrests for objectionable content posted on the internet as unconstitutional and hence, struck down by the impugned section.

RECENT BOYS LOCKER ROOM CASE

The case became so popular and gained much attention after a second of posting a story on Instagram. The story (screenshot) states that there was a chat group on Instagram where school students were members, and they were having a conversation related to Rape and sharing obscene pictures of Underage Girls. The Cyber cell took Suo Moto cognizance of the matter registered a case under section 67,67A OF the information technology act, section 465,469, and 471 of Indian penal code.

In one of the other critical cases where the Human rights investigators found that Facebook – and its algorithmically driven news feed – had helped spread hate speech and incitement to violence. This Issue takes place online on various social media platforms, and all these examples are the clear cut example of human rights violations in this digital world. Human rights investigators found that Facebook – and its algorithmically driven news feed – had helped spread hate speech and incitement to violence.

CHALLENGES FACED BY THE HUMAN RIGHTS IN DIGITAL ERA

Our digitally associated world postures genuine challenges to human rights. Web utilize and portable network, low-cost and quick computing frameworks, and rapid progresses have, on the one hand, given unused openings. But, on the other hand, they show uncommon challenges to the protections of core human rights.Present-day innovations like artificial intelligence have a huge potential to damage security, polarize social orders, and prompt prejudice, extremism, racism, hatred, and savagery over the globe in a brief span of time. Breaches of information security conventions and social media campaigns can make opportunities for blackmail and impact political processes. Shields of human rights and majority rule government ought to address these challenges as a priority.

There’s an urgent need to look at the worldwide treaties and conventions that codify human rights to provide strict arrangement rules with respect to worldwide participation for the assurance of human rights within the computerized age.International courts, tribunals, and national courts, for illustration, ought to translate international human rights traditions and national crucial rights laws to clarify obligation of care, sharpen the right to privacy, and ensure rights to speech, religious flexibility, and affiliation within the computerized context.

CONCLUSION 

Today, due to tall web infiltration, Human rights is one of the greatest requirements of the world as we are at a critical moment for assurance of human rights within the digital world. 

These rights have to be compelled to be secured and advanced both in the physical as well as a virtual world. Web and social media have given individuals the opportunity and has empowered them to freely express their views and opinions. For rights just like the right to protection, which is one of the foremost esteemed rights of our society, in case not legitimately secured and advanced, postures a threat of being damaged by different substances of the internet. For financial, human rights like copyright, this world of web offers both modern openings as well as genuine dangers to the proprietors of imaginative works. As the worldwide players whose activities affect the satisfaction of human rights, particularly governments who affirm to be supporter of human rights, must lead within the reaffirmation of the universal human rights system as a central column for security, improvement, and flexibility within the 21st-century advanced environment.

REFERENCES:

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25158&LangID=E

https://www.hrw.org/news/2014/12/23/human-rights-digital-age

https://core.ac.uk/download/pdf/45680873.pdf

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