There was an error in this gadget

December 22, 2013

Are homosexuals criminals ?SC upholds 377 IPC – A slam on the gay communities…16 - 31st Dec,2013, Just In Print

Are homosexuals criminals ?... SC upholds 377 IPC – A slam on the gay communities…

The court upheld India's 1860 colonial British homosexuality law, which says that gay sex is "against the order of nature" and is punishable by up to 10 years in prison, life time. The court ruled that changing the law would be left up to Parliament, not the courts.

"We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable," the two supreme-court judges who presided,  over the case said in their 98-page judgment, released lateWednesday dated 11/12/2013.

The Supreme Court has set aside the July 2009 ruling of the Delhi High Court decriminalizing gay sex between consenting adults in private. In the world’s largest democracy and its second largest country, gay sex is illegal and the status of homosexuals has become that of criminals once again.

Rights groups say the law—known as Section 377 for its place in a 150-year-old Indian penal code—had been used for decades to harass homosexuals.

A bench of justices G.S. Singhvi and S.J. Mukopadhyaya brushed aside the contentions of Naz Foundation, an NGO which was the first to file the plea for decriminalising section 377 (unnatural offences) of IPC, that penal provision was misused by police to harass and torture persons belonging to the LGBT community.

"Respondent No.1 (Naz Foundation) attacked section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community.

"In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending section 377 IPC," the bench said. 

People across India were shocked by the decision. Most legal experts and activists had expected the country's highest court to uphold the landmark decision, which had been seen as a crucial first step in empowering India's gay community.

The bench said Parliament is authorized to delete section 377 of Indian Penal Code (IPC) but till the time this penal provision is there, the court cannot legalise this kind of sexual relationship.Section 377 (unnatural offences) of IPC makes gay sex a criminal offence entailing punishment up to life imprisonment.

The bench allowed the appeals filed by various social and religious organizations challenging the High Court verdict on the ground that gay sex is against the cultural and religious values of the country.

The bench, however, put the ball in Parliament’s court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on them.

Section 377 is a legacy of British rule and it is disturbing that a postcolonial democratic state like India would hold on to colonial morality codes that blatantly violate human rights. India should join countries like Australia and New Zealand that have already abolished this colonial-era sodomy law that they too inherited, and take the lead on ending such discrimination.

Colonies and countries that retain versions of the British sodomy law include:
In Asia and the Pacific : Bangladesh, Bhutan, Brunei, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar , Nauru, Pakistan , Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa.

In Africa : Botswana,Gambia,Ghana,Kenya,Lesotho,Malawi,Mauritius,Nigeria,Seychelles, Sierra Leone, Somalia,Swaziland,Sudan,Tanzania,Uganda,Zambia, and Zimbabwe.

Eleven former British colonies in the Caribbean also retain sodomy laws derived from a different British model than the one imposed on India.

The United States now is enacting, by both custom and law, the Ordinances of the Amorites; therefore the nation is defiled before the holy God of Israel and faces His judgment. By promoting homosexuality, America has become like the ancient pagan Amorites and has now come under the judgment of God.

America promotes homosexuality by custom with events such as Gay Pride Day, Gay Awareness Month (June), Gay day at Disney land, Gay Day at sporting events and events like Southern Decadence in New Orleans . There are gay clubs in high school and colleges. The political parties are pandering to the homosexuals for their votes. By custom, homosexuality has woven into the fabric of America .

America is continually making ordinances to advance the homosexual agenda. Sodomites can legally marry in California and Massachusetts while many states recognize civil unions. Homosexuals are now able to adopt children and gain custody of children during a divorce. There are now numerous hate speech laws which are being used to silence opposition to the homosexual agenda. America is a long way down the road to enacting all the Ordinances of the Amorites.

The Bible warns of God judging a nation that walks in these ordinances. When the corporate attitude of a nation is friendly toward homosexuality then at this point the iniquity is full. It is apparent that “the cup” of America ’s sin is rapidly filling up. Americans hardly blush anymore at fornication and adultery. The nation kills over one million babies a year with up to 50 million killed since 1973. The legalizing of abortion was an additional Ordinance of the Amorites. Homosexuality is fast becoming a constitutional right.

The ruling means that what is in truth a question of personal liberty has once again become hostage  as it has been for decades now  to the tyranny of public and religious morality, including the beliefs and prejudices of lawmakers. A minuscule fraction of India’s parliamentarians are under 50 (which means the rest likely grew up in an environment in which homosexuality was unequivocally thought of as an aberration), and none are openly gay. This makes it unlikely they will consider the question of gay rights a specially urgent one.

The Judgment represents a victory for the alliance of Hindu, Muslim and Christian religious groups (otherwise almost never in agreement), as well as organizations seeking the codification in law of “Indian cultural values,” that had come together to challenge the 2009 judgment on Article 377. While Justice Singhvi’s decision is one that will distress many Indians who seek a society more receptive to the right of people to make choices about their own sexual lives and orientations, the reality is that it was the judgment of 2009 that was surprising in the unusual maturity of its detached consideration of homosexuality.

While speaking with “South Asian LGBTQ Groups in North America Disappointed with India's Supreme Court Ruling, Recriminalizing Homosexual Sex. According to them the Supreme Court has taken away fundamental rights that their own judicial peers convincingly argue are guaranteed by the Indian Constitution. In 2009, in a historic decision rooted in Indian jurisprudence and culture, the Indian High Court of Delhi declared 377 unconstitutional. For 150 years, 377 was used to brutally persecute sexual minorities across the country, and the Delhi Court correctly argued that the violent and foreign law contradicted the Constitution’s promise of absolute dignity and equality for all Indian citizens. Its decision effectively decriminalized homosexual sex across India for over four years—profound progress that the Supreme Court invalidated on 11th Dec 2013.

The Indian Constitution not only empowers the judiciary but also requires it to protect minority rights. Rather than proving itself equal to the task, India’s highest court has sent the dangerous message that minority rights should be vulnerable to the whims of the majority.  Its decision is nothing short of a dereliction of their duty to uphold the Constitution.

But the fight is not over.  Activists of all stripes are determined to defeat 377.  We stand in solidarity with activists from Naz Foundation, the lead plaintiff calling for a repeal of 377; Humsafar Trust, a leading HIV/AIDS and sexual minority support and advocacy group in India; Voices Against 377, a diverse group of organizations and Indian leaders who oppose the ban; and countless other groups, writers, activists, politicians and community organizers that have worked tirelessly to construct growing spaces where LGBTQ people can live without fear of violence or discrimination in India. We are deeply inspired by their renewed determination to repeal 377.  As immigrant-based groups, we are especially concerned about the impact this setback will have on South Asians who worry that their government does not welcome them. In the days to come, we will create spaces where fair-minded South Asians can protest the Supreme Court’s decision, support each other and assist leaders of the cause.”

Where the Delhi Court’s ruling was bold and powerful, the Supreme Court’s decision is heartbreakingly timid. In overturning the Delhi decision and reinforcing 377, the Court side-stepped many questions on the merits of the case, and provided superficial and incorrect assessments of the rest.  Ignoring history altogether, it claimed that 377 does not discriminate against any group, but “merely identifies certain acts” as illegal.  The bench also implied that protecting the rights of LGBTQ persons was not their job but that of the Indian Parliament. 

"It's a black day for us," said Anjali Gopalan, the founder of the Naz Foundation, a nongovernmental organization that works on HIV/AIDS and petitioned in the original case. "I feel so exhausted right now thinking we are being set back by 100 years. . . . I think it's pathetic and sad."

Activist Sohini Ghosh called the judgment “not just a betrayal of the LGBT community but of the values enshrined in the constitution”. “Our fight will go on. We will fight till the bitter end,” she said.

Pallav Patankar from Humsafar Trust said the verdict was a big blow to the community.

“The Supreme Court has put the decision back to parliament. The reason it went to the SC was because parliament refused to discuss issues related to alternate sexuality. There is a need to address the issue,” he said.

The government had earlier told the apex court that there were an estimated 2.5 million gays in India and about seven percent of them were HIV infected.

Some papers see the verdict as a measure to "deny basic human rights" to a section of the country's population.
The Indian Express says the ruling is "sad and shameful" because Section 377 is "mostly used to harass, humiliate and deny freedom to consenting homosexual adults".

"The court, in this instance, seems to have abandoned its duty to protect fundamental rights, its capacity to lead progressive change, and left this difficult task to parliament," the paper adds.

For The Hindu, the move "has enthroned medieval prejudice and dealt a body blow to liberal values and human rights".
Newspapers also feel such a law has no place in a democratic country that aims to be a global superpower and fear for the future of the homosexual community in India.
The Hindustan Times says the decision has plunged India into "a less tolerant era".

"We cannot lose sight of the fact that fear of persecution may leave the community feeling marginalised and send it into hiding. Importantly, this may deny LGBTs [lesbian, gay, bisexual, transgender] access to healthcare services, thus increasing the risk of sexually transmitted diseases," it adds.

Most editorial writers are sceptical over the chances of the government moving quickly to make a fair law that honours the rights of the gay community.

The Indian Express says "preparing and bringing up the law will be difficult in the last stages of this government's tenure" but urges the MPs to "remember that the right to love whom you love, the need to stop living a lie, is more significant than other abstract political rights".

Adds The Hindu: "Barring a sudden dawning of a humane sense of fairness all around, Section 377 is here to stay in the medium term with all its horrific consequences."

The LGBT community in India has long struggled for recognition and acceptance in the country. Although some citizens in large cities like New Delhi have started to acknowledge gay rights, some homosexuals still encounter police harassment, demands for bribes, attacks and rejection from family. 

It seemed like Gay rights had been progressing in India, and gay pride parades have been taking place in the country since 1999, with larger events in big cities. A prince, Manvendra Singh Gohil, came out publicly in 2006. He has since become an advocate for LGBT issues and HIV/AIDS awareness. Plus, the country might soon legally recognize a third  gender. To many, this ruling is a huge step backwards for India.

Homosexuality and gay relationship is considered as immoral by most of our religions. But LGBTs need not be considered as criminals. They can be morally persuaded to correct themselves. They need not be inhumanly treated as criminals and punished for some aberrations in their personality which are not in their control.

Homosexuality has existed from the beginning of time and is represented in just about every species on earth. Most judgments   about this sexual orientation have been based on religious dogma, the roles of humans in society attributed to this concept of family: father, mother and children.Heterosexuality  is therefore the norm in a societal sense and thus anything else regarded as abnormal.

Homosexuality has always been normal for homosexuals,  the fact that they are in the minority, should have no bearing on how we perceive them. If you are attracted to the opposite sex, imagine someone telling you it was wrong and you had to fall in love and marry a same sex partner. 

People judge what they don’t understand and even worse what a religion tells them to. I am straight, but believe that human beings, regardless of sexual orientation, should have the same rights and opportunities to live a loving and productive life, just like the rest of us.

What’s worse is the psychological trauma that society has bestowed on homosexuals. Imagine being told you were an abomination, a Godless freak that deserved not to live. It’s hard to understand but many people believe this hateful view. And many gays, particularly young ones, can carry this burden, and lose all hope of self-worth.  In the end it is we, the straight members of our community that have created this cavernous gap between the groups. Gays get angry, and so they should, for our cruel and judgmental treatment.

In the end, peace must prevail. Surely love is more important than who is being loved. Sex is only a small part of our lives; companionship, friendship and love are lasting ideals that transcend any belief about sexual orientation.

We have no say in the circumstances and the genetic makeup of our birth. Who and what we are can only be dealt with as we live. Homosexuals are people first, human beings that have the same human aspirations as we do.

And now, the SC’s re-criminalizing homosexuality is a setback. After four and a half years of India’s living as a twenty-first century tolerant democracy that did not discriminate on the basis of sexual preference, the country has suddenly gone back to putting a 150-year-old British law above the immediate needs of today’s citizens.

Now the next government, whether progressive or illiberal, would have to deal with this issue, and decisively balance the country’s religious and cultural sentiments with its humanitarian and health needs. To take a crude example, criminalising homosexuality drives gays underground and makes it near impossible for the government to successfully carry out its HIV/AIDS programmes that hope to target about 4,00,000 ‘high risk’ gay men in India. More importantly, criminalizing consensual sex between adults drives the country back into the dark ages. But the gay movement and sexual politics has come of age in India, and this verdict cannot restrain that for long.

Crime" isnt that a very strong word? Just trying to figure out the definition of "Crime" in real sense. Wondering how ones choice of sexuality is termed crime by law?? Where are we heading to?

Society is the source of all evil. No good thing needs any endorsement, including that of a funny thing named society.

Siddhartha Shankar Mishra,

Kejriwal hits the bull’s eye , 16 - 31st Dec, 2013, Just In Print

Kejriwal hits the bull’s eye

"This is not my victory. It is a victory of people of New Delhi constituency and victory of democracy," said Kejriwal after defeating Sheela Dikshit.

 Arvind Kejriwal’s AAP debut made a massive victory across delhi and an everlasting impression in people’s mind. Arvind Kejriwal has defeated three-time chief minister Sheila Dikshit in her constituency of New Delhi by some 22,000 votes. His one-year-old Aam Aadmi Party made a spectacular electoral debut winning 28 of Delhi's 70 seats, just four behind the BJP, which is on top.

Once Robert Vadra uttered, “mango people in a banana republic".

Rajdeep Sardesai  an eminent Journo is his blog stated , “TN Seshan wasn't the first middle class 'crusader' to make an unsuccessful bid to enter politics and he won't be the last. The latest to throw his hat (or should we say Gandhi topi) in the ring is Jan Lokpal torchbearer Arvind Kejriwal. Both Seshan and Kejriwal were professional civil servants before they captured public imagination through their anti-corruption campaigns. Seshan became a symbol of growing public anger against money and muscle power in elections; Kejriwal tapped into a similar outrage against vaulting corruption by those in high offices. Will Kejriwal succeed where many others before him have failed?

If success and failure is judged by electoral performance, then few will hold out any hope for the former IRS officer and his motley crew. The party system in the country has proved remarkably resilient, ceding very little space to new entrants. The disproportionate influence of money power in elections is an enduring phenomenon. If anything, the scale has only gone up: there are instances in the recent Mumbai municipal elections where candidates spent several crores to be elected as councillors. The amounts only go up as the stakes get higher.

But not everyone who is a hardworking man can become a household name. He has worked his way into the political consciousness in such a way that Indians - political leaders or the common man- can either admire or ridicule him but not be indifferent to him.

After around five years of government service, Kejriwal resigned from the position of Additional Commissioner of Income Tax in Delhi to devote his time fully to fighting corruption in India.

Kejriwal, who came into the limelight as one of the main spokesmen and a close lieutenant of anti-corruption campaigner Anna Hazare during his highly publicised movement in 2011, later parted ways with his mentor to start a political outfit — much against Hazare’s wishes who wanted to keep his movement non-political — in November last year.

Dismissed by the Bharatiya Janata Party (BJP) and the Congress as political upstarts who would not be able to match their popularity or influence, the unheralded AAP was able to catch popular imagination by offering transparency in governance and people-friendly policies to the city residents hit hard by price rise, corruption and insensitive bureaucracy.

Eager to sound neutral before he plunged into politics, Kejriwal spared no one. He leveled charges against Congress president Sonia Gandhi’s son-in-law Robert Vadra and then Law Minister Salman Khurshid of illegal land deals and fund embezzlement.

He also targeted then Bharatiya Janata Party chief Nitin Gadkari, accusing him of grabbing farmers’ land and corruption in collusion with the Nationalist Congress Party’s tainted Ajit Pawar.

His ideas and promises appeared to have convinced people to give the rank outsiders a chance over established parties.

Mr Kejriwal and his party have been criticized for their economic policies and promises of reversing hikes in water and electricity prices.

Arvind Kejriwal’s storm of lethal revelations against the alleged corrupt political parties, Congress and BJP, has upset the tricky equations between the government and industry and their nexus that has been regularly facilitated by the incumbent parties.

Kejriwal’s tricky and difficult corruption questions are bringing out names that were beyond our wildest imagination, beyond suspicion, and names that were once sacrosanct. For example, Manmohan Singh – who was always given a clean chit even by his ardent critics – has been accused by Kejriwal of being overtly sympathetic and soft on Mukesh Ambani. 

Kejriwal has become a symbol of focused and cool-headed bravery, speaking each time with compelling logic and supporting evidence, and that’s where he scores. And he is using the media very intelligently indeed. Today, even getting rid of him has become a very difficult option – as then, Kejriwal’s dream of Tahrir Square in India might really come true.

One secret of Kejriwal’s success may be the stark contrast between his public and private demeanor. A firebrand before a crowd or a camera, he’s mild-mannered and introverted in person, a combination that inspires passion in audiences and confidence and respect from his close colleagues and allies. Short and compactly-built, with neatly-parted black hair and a trimmed moustache, he still looks a little boyish at 43. He has no personal story of extraordinary suffering at the hands of corruption. What led him to quit his job as a senior bureaucrat and become an activist wasn’t anger or bitterness; it was the loss of his own faith in government after a decade in its service.

 Unlike Congress and BJP, Arvind does not have a huge cadre or force or grass root level workers to penetrate every nook and corner of the country and influence the voters. Therefore, with limited, he has to depend on TV and print penetration; and this limits his impact in the country.
Kejriwal travelled to villages across north India to mobilise support for an RTI law. Drawing on his own experiences, he told people that government officials deliberately engineered delays to force the payment of bribes, and argued that a strong RTI law would expose corrupt practices.

In 2004, Kejriwal launched an experimental project in one East Delhi neighbourhood, Nand Nagri, to test ways to hold government officials accountable. Kejriwal formed a committee consisting of 10 local residents who were trained to scrutinize the activities of the member of the legislative assembly (MLA) from their constituency. The committee then demanded public consultations over everything from road paving to drainage repair.

Kejriwal had been given the Ramon Magsaysay Award, widely described as Asia’s Nobel Prize, for Eminent Leadership—“activating India’s right-to-information movement at the grassroots” and “empowering New Delhi’s poorest citizens to fight corruption by holding government answerable to the people.

AAP succeeded in the polls it  offered not only a new leader but a whole new class of politicians to govern the nation. That is the kind of change people want. So could the AAP emerge as the proverbial dark horse?

The real merit lies in the agenda-setting role his party plays in future elections. By stoking the public’s interest on the right issues and providing a contrast to the existing political establishment, Kejriwal could yet prove to be hugely influential in Indian politics.

However, the biggest challenge is still ahead of Kejriwal.

Siddhartha Shankar Mishra,

December 05, 2013

Tehelka on Tehelka : Media and Sex sells , Exclusive, 1- 15,Dec, 2013, JUST IN PRINT

Tehelka on Tehelka : Media and Sex sells

The editor-in-chief of India's leading investigative magazine is being probed over claims that he sexually assaulted a woman colleague. The case came to light after the victim complained in an email to a superior that Tarun Tejpal, founder of the award-winning weekly, Tehelka, assaulted her twice in a hotel elevator during a conference in the resort state of Goa this month.
Tarun Tejpal, who edits the weekly Tehelka, said he was "recusing" himself from his job for the next six months to "atone" for an "unfortunate incident" that involved a female colleague.

The alleged victim's unidentified confidante told the NDTV news channel that the woman had been subjected to "an act of grave sexual misconduct" and that she was "completely shattered and emotionally scarred".
The government of Goa state, where the alleged incident happened in early November, has now ordered a "preliminary inquiry" into the allegations, reports say.

Papers are urging all organizations, including media houses, to set up bodies in compliance with government guidelines to ensure women's right to work in an environment "free of sexual harassment".
"Several disturbing cases of alleged sexual harassment at the workplace have been aired recently, all of which involve senior men in positions of power making advances on vulnerable young women," says The Times of India .
The paper further adds that "sexual harassment gives rise to a workplace that is hostile to women. It amounts to sexual discrimination that is punishable by law. Only institutional checks can address such power imbalances".

The Judiciary, the legislative, the media – the Indian woman is not safe anywhere. Forget the workplace; women bear the most dastardly abuses with a smile on their face within the “safe” confines of their homes. But that is beside the point. The astute arrogance brandished by the man in question, with no sign of the remotest repentance, has sent shivers down the spine of people across the country. As a fan of this journalist, and as a former employee of this organization, it clearly makes me ashamed as a human being.

The pompous letter of atonement, the self-proclaimed recusal and the shoddy defence on part of the organizational head does not inspire confidence in people who would’ve otherwise wanted this episode to pass off as a horrific nightmare. The same magazine that has time and again given voice to the tortured women, taught them to raise their voice against Khap panchayats and moral policing was found to be lacking in action; even worse, brushing the entire narrative under carpet.

Even now, there were people – self-proclaimed women’s rights activists, who care two hoots about state-sponsored surveillance on private citizens, but are overtly eager to publicize their concern for the victim in Tehelka. Then there were those who took voyeuristic pleasure in sharing intimate details of the episode on social media. Media houses were quick to post columns and opinion pieces on sexual harassment at workplace and assume the high moral ground. Some idiots proclaimed their feminism by abusing the daughter of the perpetrator, forcing her to delete her Twitter profile. Somewhere, the victim, the sufferer lost her voice.

When glass houses lie shattered, the ensuing gush of blood is often attended to. Nobody spares a thought for the injured vein.
Reena Mukherjee , a senior journo who had an experience of decade in this field till she took a sabbatical after having a daughter. Resuming her career after 5 years , she got a job as a “ Senior Journalist” in Statesman in Kolkata. Here she had to undergo a rigorous sexual harassment by her senior. When she complaint about this matter to the higher authority in the media house rather she was advised to talk to her boss about the matter but nobody paid heed to her grievance. When she tried to minimize contact with her boss , she was terminated from her job for incompetence in October 2002. She filed a complaint in the labor court for wrongful termination. Finally, in Feb 2013, she was awarded judgment in her favor after a long tedious battles and odds of 9 years.

But what is rare are the women (or men) who actually report the harassment and file official complaints. And when those brave women actually do that, it is rarely acknowledged publicly.
Women who work in the media are generally intelligent, fairly confident and have progressive feminist views on how women should be treated. As a general rule, so do their male counterparts.
Then why is sexual harassment and the culture of sexism still rife in our industry?

Most women, including those who allowed me to quote their experiences, will not discuss this topic. It is a taboo subject because there is a fear of reprisal. Despite most media houses having policies on sexual abuse or any kind of harassment, most women are afraid to stick their necks out in the institutions in which they work.
“It is just not worth it,” said one. “I love my job and don’t want to jeopardize it. I may hate that this happened to me but I deal with it. Besides, what happens if I do complain?” More than anything, women in this industry don’t want to be seen as weak or victims because it would affect their work and how they are perceived in the newsrooms.

India’s new law meant to prevent and redress incidents of sexual harassment of women in the workplace isn’t likely to do much of either, say women’s rights activists. The Sexual Harassment at Work Place ( Prevention, Prohibition and Redressal ) Bill has been passed in parliament last February, 2013 by both the houses , this law comes at a time when Indian authorities have been facing increasing public anger over incidents of rape across the country, particularly after the death of a 23-year-old student who had been gang raped in Delhi in December.

While India already has laws against rape and sexual molestation, the recently passed law is the country’s first dedicated to sexual harassment at work. It defines such harassment broadly as unwelcome physical contact and making “sexually colored” remarks and includes any behavior that interferes with a woman’s work, creates an intimidating, offensive or hostile work environment for her.

As more and more women join the workforce in India, sexual harassment at work has become a growing problem. A 2010 survey of 600 female employees in India’s information technology and outsourcing industry found that 88% of them had faced some form of sexual harassment at work. In most cases, the perpetrator was a superior at work, according to a survey conducted by the Centre for Transforming India, a Delhi-based non-governmental organization.
The new law is meant to prevent such harassment and provide an avenue for women to have their complaints resolved, but activists say it falls short on several fronts.
It is badly drafted. What they gave is mediocrity. The law requires that all companies and employers who have more than 10 employees, constitute an “Internal Complaints Committee” to which an aggrieved woman can take her complaint. This committee, which must be headed by a senior female employee, is supposed to try initially to get the complainant and accused to reach a settlement and only launch an investigation in the case if mediation fails.

If harassment is proved, the law leaves it up to the internal committee to decide a monetary fine to be paid by the perpetrator, depending on their “the income and financial status”. But more chances of mishandling it is there.

Sexual harassment at the workplace is a universal problem. Even though the occurrence of sexual harassment at the workplace is widespread in India and elsewhere, this is the first time it has been recognized as an infringement of the fundamental rights of a woman, under Article 19(1)(g) of the Constitution of India "to practice any profession or to carry out any occupation, trade or business".

Of late, the problem of sexual harassment at the workplace has assumed serious proportions, with a meteoric rise in the number of cases. Surprisingly, however, in most cases women do not report the matter to the concerned authorities.

In India, Articles 14, 15 and 21 of the Indian Constitution provide safeguards against all forms of discrimination. In recent times, the Supreme Court has given two landmark judgments -- Vishakha vs State of Rajasthan, 1997, and Apparel Export Promotion Council vs A K Chopra, 1999 -- in which it laid down certain guidelines and measures to ensure the prevention of such incidents. Despite these developments, the problem of sexual harassment is assuming alarming proportions and there is a pressing need for domestic laws on the issue.

India is rapidly advancing in its developmental goals and more and more women are joining the workforce. It is the duty of the state to provide for the wellbeing and respect of its citizens to prevent frustration, low self-esteem, insecurity and emotional disturbance, which, in turn, could affect business efficacy, leading to loss of production and loss of reputation for the organisation or the employer. In fact, the recognition of the right to protection against sexual harassment is an intrinsic component of the protection of women's human rights. It is also a step towards providing women independence, equality of opportunity and the right to work with dignity.

In the last 50 years, various international human rights organisations have been focusing on promoting and protecting women's rights. The United Nations has acknowledged that women's rights are synonymous with human rights. The same was reiterated in the Beijing Declaration.

Most international women's human rights movements have raised their voice against abuse and violence perpetrated against women in general. In 1979, the UN General Assembly adopted the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). Areas where discrimination was found to be rampant include political rights, marriage, family and employment. The convention emphasised that discrimination and attacks on a woman's dignity violated the principle of equality of rights.

The ground reality is, that, the media in India needs to wake up and look inwards. It needs to see the misogynistic attitude that’s all prevailing.
The fact is that we might fight for the rights of the underdogs and do exposes on corruption etc but not many of us have the guts to speak out against our own fraternity. I mean it took me five years to even write about my experience openly, though I have discussed it with my peers.

What we also need is for the women journalists to stay united to help one another. To be able to stand up for one another and to be empowered enough so that issues are not pushed under the carpet under the garb of ‘internal matter’. In my case it was the NWMI which helped me fight back and supported me.

Ultimately we must have the ability to call spade  a spade and a zero tolerance policy within media houses and organizations for this kind of behavior. Believe me, Tarun Tejpal’s actions  are not an exclusive phenomenon. He just ended up being the face of a deeper malice plaguing the Indian media.

Time the Indian media treats this as a much needed wake up call and put in place measures to ensure such things don’t repeat. At the least provide ways for the victim to feel safe enough to complaint and give hope and support to them.

Now a new story will start, it will be no use. Although Tejpal accepted but the law will do actions accordingly. Chances are that the victim will be hostile later on and the things will be alright. It is a time taking business of medias. it is true that under the power this is now very common things. all round it is happening. Some are suffering and none are opposing. It is very common culture. All are against the act are also enjoying in somewhere in on its way and are silent. It is the cheapest way to achieve goal.

Siddhartha Shankar Mishra,

Sambalpur, Odisha

December 03, 2013

Living Relationship a way of life or a Life out of way , 1-15 , 2013,Dec, JUST IN PRINT

The British ruled India for about two hundred long years.Even after they retreated , they left an indelible mark on the mind of the young India, whether it be in the form of legislation, their culture or most importantly the craze for westernization. We are always in the rush of aping the west be it through western outfits or their lifestyles without delving deep into the consequences or repercussions of those acts on our society. Sometimes  we defy our own culture in order to endorse theirs and label ourselves as the children of the globalized world. One of the such ongoing trends is the culture of live in relationship.

Live-in-relationship is the arrangement in which a man and a woman live together without getting married. This is now a day’s being taken as an alternative to marriage especially in the metropolitan cities. Currently the law is unclear about the status of such relationship though a few rights have been granted to prevent gross misuse of the relationship by the partners.

“Married in haste, we repent at leisure”
The above line by William Congreve  truly defines the mentality of the live in couples.The hectic lives of the metros don’t leave time for nurturing a family in its true sense.Now a days people are becoming more and more individualistic and career oriented. They spend less time at home and more time in offices.With  more and more women going out for work, the nurturer of the family is not giving enough time for family and children. So actually why is there  the need to go into marital bonding and forsake one’s liberty?Everyone likes a life free of tensions and responsibility.After working for night shifts who wants to get up early the next day to prepare children’s tiffin and make ready them for school?
Moreover, the  divorce laws are too cumbersome  in India.If one has to get a divorce then it takes years to finally get it done and  trauma suffered by the partners during these years is too much. This is also one of the biggest reason for live in relations.There are too many legalities involved with the institution of marriage  which one can easily escape in the case of live in relationships. It’s a much popular analogy of live in relationship that its like “taking a car for a test drive “as the couple can easily walk in and walk out of the relationship without any legal bondage. Its better to know the person beforehand than  marrying in haste and getting oneself in a legal mess.
We have to view the relationships from an important perspective of the institution of marriage and our duty to protect and preserve the sanctity of marriage. There are certain venues and spheres which are beyond the realm of law. Those are the norms and dictates of conscience, sanctity of marriage, lifelong commitment and responsibilities of parenthood.

As a lawyer I feel the live in relationships are permissible so long as the person doesn’t undergo the ceremony of marriage. It is alright if the factum of pre – marital relationship is disclosed to the person and it is ignored or condoned. But in several cases the non disclosure of this material fact especially in NRI marriages are resulting in the nullification of the marriage on the ground of fraud under section 5(1)(c) of the Hindu Marriage Act. There are still arranged marriages prevalent and the boys and girls are willing to undergo the same trusting their parents and their experience. The character, the antecedents of the boy or girl assume importance in such marriages. The marriages are made on earth and are broken on earth and that is the accepted state now, especially when we accept and approve the pre-maritial relationships before marriage.
The Fundamental right under  Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants.Live in relationship may be immoral in the eyes of the conservative Indian society but it is  not  “illegal” in the eyes of law.In case of Kushboo,the south Indian actress who endorsed pre- marital sex and live in relationship,22 criminal appeals were filed against her which the Supreme Court quashed  saying that how can it be illegal if two adults live together, in their words “living together cannot be illegal.”
Now the problem is not just limited to the legality of the relationship but now people are coming up about the rights of the live in partners and the status of children born out of such wedlock.The Hindu Marriage Act 1955 gives the status of legitimacy to every child, irrespective of birth out of a void, voidable or valid marriage. However, they don’t have property and maintenance rights.In case the couple break up then who would maintain the child in case none wants to take responsibility remains a big problem.

In S.P.S Balasubramanyam Vs Suruthaya @ Andali Padayachi and Ors. AIR 1992 SC 756, the Supreme court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under section 114 of the Evidence Act, that they Live as husband and wife and the children born to them will not be illegitimate.

In Adan Mohan Singh Vs Rajni Kant, the Supreme Court observed “The courts have consistently held that the law presumes in favor of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. (vide: Mohabbat Ali Khan Vs Mohd. Ibrahim Khan, AIR 1929 PC 135; Gokalchand Vs Parvin Kumar, AIR 1952 SC 231; S.P.S Balasubramanyam Vs Suruttayan (1994) 1 SCC 460; Ranganath Parmeshwar Panditrao Mali Vs Eknath Gajanan Kularni (1996) 7 SCC 681; and Sobha Hymavathi Devi Vs Setti Gangadhara Swamy and Ors., (2005) 2 SCC 244).

In appeal filed by the well know actress, Khushboo seeking quashing of criminal proceedings filed against her mostly in the state of Tamil Nadu, for the remarks made by her in an interview to a leading new magazine. The Hon’ble Supreme court opined that a man and woman living together without marriage cannot be construed as an offence.

The Apex court said there was no law which prohibits Live-in relationship or pre-marital sex.

The Supreme court, held that Live-in relationship is permissible only in unmarried major persons of heterogeneous sex. In case, one of the said persons is married, man may be guilty of offence of adultery and it would amount to an offence under section 497 IPC.

In June, 2008, The National Commission for Women recommended to Ministry of Women and Child Development made suggestion to include live in female partners for the right of maintenance under Section 125 of CrPC. This view was supported by the judgement in Abhijit  Bhikaseth  Auti v. State Of Maharashtra and Others . The positive opinion in favour of live in relationship was also seconded by Maharashtra Government in October, 2008 when it accepted the proposal made by Malimath Committee and Law Commission of India which suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that it is divorced wife who is treated as a wife in context of Section 125 of CrPC and if a person has not even been married i.e. the case of live in partners, they cannot be divorced, and hence cannot claim maintenance under Section 125 of CrPC.

In France, there is the provision of “Civil Solidarity Pacts” known as “pacte civil de solidarite” or PaCS, passed by the French National Assembly in October 1999 that allows couples to enter into a union by signing before a court clerk. The contract binds “two adults of different sexes or of the same sex, in order to organise their common life” and allows them to enjoy the rights accorded to married couples in the areas of income tax, housing and social welfare. The contract can be revoked unilaterally or bilaterally after giving the partner, three month’s notice in writing.

In Philippines, live in relationship couple’s right to each other’s property is governed by co- ownership rule. Article 147, of the Family Code, Philippines provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the UK, live in couples does not enjoy legal sanction and status as granted to married couple. There is no obligation on the partners to maintain each other. Partners do not have inheritance right over each other’s property unless named in their partner’s will. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other’s property on breakdown of relationship. However, the law seek to protect the right of child born under such relationship. Both parents have the onus of bringing up their children irrespective of the fact that whether they are married or cohabiting.

The live in relation were conferred legal sanctity in Scotland in the year 2006 by Family Law (Scotland) Act. Section 25 (2) of the Act postulates that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements, in case of breakdown of such relationship, Section 28 of the Act gives a cohabitant the right to apply in court for financial support. This is in case of separation and not death of either partner. If a partner dies intestate, the survivor can move the court for financial support from his estate within 6 months.

 Supreme Court’s verdict on live in relationships has been welcomed by couples, who are living in, but people who have high respect for tradition still remain on the other side.

Talking about prostitution, it is illegal in India, but do we see a reduction in the number of brothels in the country? Can we legalize this practice in India, which is prevailing for decades now? Same holds for live in relationships.
One big question is that if a living in couple wants same rights as marriage couples, why not they get married then? There are many grey areas. Will the law treat single, married man cohabiting with a man in the same way? For how long the woman or man have to be in live in to qualify for maintenance? If a live in couple has a child and later decide to part ways, what will be the future of the child ? Why should an innocent child suffer without any mistake?

Did we hear of the oldest profession in the world? Is it not true that ever since human memory is recorded, there have been instances of man seducing the other woman or the woman seducing the other man. The Indian values have been undergoing changes. Even 50 years ago, there was a joint family system, all living under one roof; nolonger so, the couple look for a separate apartment even before getting married. With the internet culture overtaking all other cultures nothing is any more taboo. Moreover, there can be many, many genuine reasons that a couple wants to stay together without creating encumbrances. How many young wives are there in India with a child or two, whose legally married husband has deserted? Live-in will avoid at least children and their misfortunes in most cases, and both will have an option open to rectify the mistake, if it was so. Both will not treat the other as their private property and will learn to respect each other and be more matured in the process. So, nothing is wrong. Anyway, no values are left in Indian society, politics, business and even religious activity except one value and that is hypocrisy.

Many people imagine that living together before marriage resembles taking a car for a test drive. The “trial period” gives people a chance to discover whether they are compatible. This analogy seems so compelling that people are unable to interpret the mountains of data to the contrary. 

Here’s the problem with the car analogy: the car doesn't have hurt feelings if the driver dumps it back at the used car lot and decides not to buy it. The analogy works great if you picture yourself as the driver. It stinks if you picture yourself as the car. 

Legalizing live in relationship means that a totally new set of laws need to be framed for  governing the relations including protection in case of desertion, cheating in such relationships, maintenance, inheritance etc.Litigation would drastically increase in this case.

Moreover the psychological impact on children born out of this relationship would be very bad leading to mental diseases and criminal tendencies. All this would give rise to an unstable society.

The most important fact that why do people get in live in relationships? If we would make so many laws regarding it then what will happen to the whole idea of liberty that is attached to such live in relationship. Now it is upon us to weigh the pros and cons of this and then accordingly take a decision for ourselves.

Siddhartha Shankar Mishra,
Sambalpur, Odisha