May 2, 2013
by Manojna
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IPR Workshop for students of L’ecole de Design Nantes Atlantique

 The following is a guest post by Amrita Vasudevan, a 4th year student of Christ University School of Law, who is currently interning with CLPR.

CLPR in association with L’ecole de Design Nantes Atlantique organized a four day workshop on Intellectual Property Rights at the Sristi School of Art, Design and Technology based in Bangalore. The work shop was conducted from the 23rd to the 26th of April, 2013 and was tailored to address the needs of the students of the Trans-cultural Design programme of L’ecole de Design.

The class consisted of about fifteen students, mostly from France. The workshop was therefore suitably tailored to give the students a more conceptual understanding of intellectual property (IP) rather than procedural, which would have been more country specific. The objective of the workshop was to give the students a working knowledge of Intellectual Property so that they become aware of their rights over the products they might design or collaborate on, either as part of their coursework or professional obligations.

The workshop dealt with five kinds of intellectual property rights over 3 days, and these were Copyright on Day 1, Trademarks and Geographical Indications on Day 2, Design Rights and Patents on Day 3. The fourth day of the workshop comprised a session on important concepts relating to contracts and licensing, and ended with a brief overview of all the intellectual property rights covered over the past three days. Every session comprised brief topical presentations accompanied by exercises designed to test the student’s working knowledge of the concepts.

Day 1:

The first session of the workshop was an introductory session conducted by Ms Jayna Kothari, who provided the students with a basic understanding of intellectual property and the rights associated with it. The session examined the need for protecting intellectual property, the ownership of these rights and what acts constitute infringement.

The second session of the day was taken by Ms Manojna Yeluri. In the course of her presentation she covered the key elements of Copyright, which included identifying the elements of copyrighted material; the idea – expression dichotomy; authorship; infringement, fair dealing/use and the significance of moral rights. She provided the students with various illustrations and cases to aide their understanding of these concepts.

The last session of the day, conducted by Ms Jayna Kothari covered the contentious topic of art appropriation and copyright.  The session highlighted the growing tension between, the stringent protection of copyright law and modernist tendencies in art like abstract expressionism, Dadaism and minimalism. She also touched upon the copyright of dramatic works and traditional art.

Day 2:

The second day was divided into three sessions; all three conducted by Ms. Nayana Udayashankar. The first session on trademarks, explored the key components of trademark law such as the different types of marks, the effects of registration, what constituted infringement and passing off. She referred to  several examples of infringement and passing off found in India, making it easier for the students to contribute to the discussion with many instances of infringement that they had encountered.

The next session briefly covered domain names and the slow encroachment of trademark law into domain names, while ending with a brief but informative discussion on Geographic indicators, and their relevance to artists and designers.

Day 3:

The day began with a session on Design Rights conducted by Ms. Manojna Yeluri. The session examined design rights, and the manner in which they provided additional protection to designers and their works, with particular reference to the aesthetic elements of their works.

The second session of the day dealt with Patents and was conducted by Ms. Jayna Kothari who provided the students with interesting examples of patent applications, while emphasising the commercial value of such rights.

Day 4:

The first session conducted by Ms. Guilia Cabianca discussed a burgeoning trend of licensing in intellectual property called the Creative Commons. Creative commons is an alternate licensing regime meant to foster creativity and has proven to be especially appealing to those people who consider the present regime of intellectual property law, stifling.

All licenses under the Creative Commons regime require attribution to the creator of the intellectual property, and in addition, may contain a permutation and combination of non-commercial use, non derivative use, and share alike terms. The creator of the work may also prescribe a license with a ‘no rights attached’ condition, better known as the zero license. Creative commons has permeated into various fields including software, beverages, medicine, media and design. Still in its nascent stage, Creative Commons is gradually being recognized in domestic legislations and courts.

The last session of the workshop conducted by Mr. Sudhir Krishnaswamy covered integrated property rights as well as contractual elements and commercial aspects of intellectual property. This session addressed the various kinds of agreements that the students may enter into in their line of work, focusing mainly on conditions of use of their works.

Two kinds of employment models were identified namely, consultants and independent product designers. The students were then made to identify the main features of an agreement entered into with either model for use products developed by them. Through this exercise the students learnt what to look out for in any agreement entered into by them for use of their services, and how best to protect the intellectual property in the work they produce.

In conclusion, the workshop proved to be a great experience to the members of CLPR, and we hope that the students who attended the workshop, benefitted from the brief but informative sessions we provided them with.

April 17, 2013
by Manojna
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Working Paper 1/2012 “Moving Towards Autonomy and Equality: An Analysis of the New Mental Health Care Bill, 2012″

CLPR’s Jayna Kothari and Dharmendra Chatur have written a Working Paper titled “Moving Towards Autonomy and Equality: An Analysis of the New Mental Health Care Bill, 2012″. They blogged about the 2012 Bill in the past and their previous post can be found here.

Here’s the abstract:

The new Mental Health Care Bill 2012 marks a complete shift from the existing Mental Health Act 1987 – the change is one that involves viewing persons with mental disabilities as persons with autonomy, equal recognition of their rights and full legal capacity, rather than simply in need of institutionalization. This shift has been in view of India’s ratification of the UN Convention on the Rights of Persons with Disabilities 2006 (“UNCRPD”). In this paper, the authors seek to analyse the provisions of the Bill specifically in the context of the proposed changes in mental health care law, keeping in mind the rights to autonomy and equality of persons with mental disabilities. Furthermore, this paper seeks to ascertain the effectiveness of the changes with reference to the UNCRPD and the United Kingdom’s mental health law.

April 15, 2013
by Manojna
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The Hindu: Why Novartis case will help innovation

In an article titled “Why Novartis case will help innovation” published in the Hindu on April 15, 2013, Achal Prabhala and CLPR’s Sudhir Krishnaswamy sought to highlight the key impacts of the judgment passed by the Supreme Court of India in the matter of Novartis v. Union of India decided on April 1, 2013.

In their article, Achal and Sudhir illustrate three key lessons – (1) The dispute was never about the patentability of the imatinib drug, but instead was about whether Novartis’ beta crystalline form of imatinib was capable of earning patent protection; (2) Indian patent law has so far never been challenged at the WTO and (3) the Novartis judgment has re-cast Indian patent law in a light that is more conscious of domestic politico-economic forces, and global influences.

The Supreme Court’s decision will serve to reduce the hackneyed narrative of patents that has emerged over the past few years, and furthermore has redefined ‘inventiveness’ and industry innovation. The Supreme Court has held that Imatinib will continue to be made  available to patients in India from multiple suppliers at a price that is 10 times lesser than the current cost of Glivec. Approximately 27,000 cancer patients in the country who pay for their imatinib will continue to have access to the medicine in the public and private sectors at the lowest cost possible; and if  Novartis ever suspends its charitable programme, then all 15,000 of the cancer patients who currently receive imatinib free from Novartis will continue to have similar access to the medicine.

April 6, 2013
by Manojna
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Karnataka HC passes interim order in Consumer Law PIL

This is a guest post by Basavangouda Patil, a final year student of NLSIU, Bangalore and one of the petitioners in a PIL filed to ensure the proper implementation of the Consumer Protection Act, 1986. 

On April 1, 2013 the Hon’ble High Court Bench: Chief Justice Wagela, and Justice Nagarathna passed an Interim Order directing the State Government, Department of Food, Civil Supplies and Consumer Affairs and the Karnataka State Consumers Disputes Redressal Commission to fill up the vacancies at the State Commission and also several District Forums across Karnataka by May 31, 2013. The High Court’s Order came after months of hard work  and the help of CLPR’s Jayna Kothari who has been arguing on our behalf.

The order was passed with reference to a writ petition filed in public interest by 5 students of the National Law School of India University, Bangalore who are seeking the proper implementation of the Consumer Protection Act, 1986. The petition deals with six issues which are:

a)      Vacancies in the various Consumer Forums;

b)      Case pendency in the various Consumer Forums across the State of Karnataka;

c)      The setting up of additional District Forums;

d)     The non-disposal of cases within the mandated statutory time;

e)      The setting up of a State Council and District Councils; and

f)       The consequent non utilization of the funds allotted for these purposes.

We began collecting documents pursuant to RTI applications since September last year. Our initial responses arrived only several months after having made our RTI applications. The responses were the basis on which we drafted Volume I of our Implementation Report titled “State of Consumer Protection in Karnataka: An Analysis of the Institutional Implementation of the Consumer Protection Act, 1986, its Allied Rules and Regulations in the State of Karnataka” released under the Chair on Consumer Law and Practice, Ministry of Consumer Affairs.

After submitting our Report to the Ministry of Consumer Affairs, we expected the system to act upon the findings in the Report however the Government had ignored the findings and had conveniently overlooked the vacancies that were being created every month at several District Forums across Karnataka. It was shocking to note the steadily increasing number of vacancies in the District Forums. Besides the vacancies, a large number of District forums were now defunct, thus causing a huge pendency in consumer matters. Nearly six District Forums across the State of Karnataka became defunct owing to a lack in quorum. The case pendency in the various Consumer Forums in Karnataka has reportedly reached its highest ever mark since the establishment of these Forums – the number in the State Commission alone is nearing five thousand.

The interim order of the High Court of Karnataka comes not a day too soon, although it remains to be seen whether the Government will heed the order of the Court, and take measures to fill up the existing vacancies by the stipulated time.

For now, the matter has been adjourned to the June 3, 2013.

April 2, 2013
by giulia.cabianca
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German national hopes to find her biological mother

Police asked to help her, she suspects she was a child trafficking’s victim

Chaya Maria Schupp is a 36-year-old resident of Dieburg, 30km from Frankfurt in southern Germany, was adopted by a German couple when she was about 6 years old under suspicious circumstances.

Since 1999, she has made around 25 trips to India, and spent around 25.000 EU ( r.s 18 Lakh) to trace her biological mother and unearth details of her past. Chaya is currently working on a PhD  on sex workers in Mumbai as part of an exchange programme between the University of Kassel, Germany and the Tata Institute of Social Sciences (TISS), Mumbai.

Chaya’s search for her biological mother met a dead-end in 2009 when authorities at the welfare centre refused to show her the relevant records. The centre had a licence for inter-country adoptions but it did not renew this licence. Chaya has asserted she was at this centre when she was adopted and fears that she might have even been kidnapped. Thus she has movedthe Hingh Court.

The support of her lawyer, Jayna Kothary of CLPR, friends, and her adoptive mother, Ingrid Shupp, has kept her going. 

Though Chaya says she was born a Hindu in Ullal, there’s a certificate of baptism issued by St Sebastian’s Church, Permannur (Ullal) which states she was baptized on January 15, 1980. When Chaya went there, the parish priest said there were no records about her baptism. Chaya said the baptism may have been done because the German couple who adopted her wanted a Christian child.

Chaya smelt something was amiss and even alleged she may have been kidnapped. “I still feel I may have been a victim of child trafficking. If it was a legal adoption, why are the centre’s authorities blocking my attempts to find my mother?” she asked.

How did they come to adopt her? “We thought she was an orphan and adopted her,” said Ingrid. The couple had three children of their own and also took another child into foster care.

The then Ullal inspector Ganapathy had told: “Though Chaya has complained of kidnapping, there was no evidence of this. The incident happened almost two decades ago and there was no complaint from her mother that her daughter was missing or kidnapped. In these circumstances, we cannot register a case of kidnapping,” he had said. Also, he said that Chaya herself mentions she’d been left at the centre.

Sr Veera, superior of the Nirmala Convent, told: “Let the police come and inquire. We have nothing to hide. Earlier when they (Chaya and police) came, we showed all the documents we had. They were not satisfied. We have maintained up-to-date documents from 1984. She was adopted at Madurai and the only proof she was here is the baptismal certificate at St Sebastian’s Church, Permannur, Ullal. We have nothing more to say on this issue.”

Now, the Karnataka HC tells government to provide Chaya her assistance to find her biological mother. A division Bench comprising Justice K.L Manjunath and Ravi Malimath passed the order while setting aside the 2009 order of a singl.e judge bench, which had refused to order a probe against the Society for Sisters of Charity, Nirmala Social, Welfare Centre, Ullal, Mangalore.

The Court said that it is the duty of the police to investigate whenever a complaint is lodged. Meanwhile, the Court directed Ms.Shupp and the centre to assist the police in investigation by providing details or information that they have in connection with the case.

Ms.Shupp’s mother sounds bewildered about the High Court decision, . “I’m very exited” says Maria Chaya on the phone from Germany.

 

April 1, 2013
by Manojna
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Karnataka HC recognises the adoptee’s right to know the identity of their birth mother

On March 21, 2013 the Karnataka High Court directed the Ullal police to assist Ms. Maria Chaya Schupp in her search for her biological mother and to investigate the conditions under which she was given up for adoption in 1981. The Court’s order comes at the end of a 6 year old legal battle and as a result has become a victory not just for Maria Chaya, but for adoptees from all over the world, in search of their biological parents in India.

The Court’s order is an open acknowledgment of the adoptee’s Right to Know – a principle that has received a great deal of international acceptance, but very little to no attention in India. It is the recognition of a person’s psychological need to know one’s own origins, as a human right. The Right to Know is considered a part of one’s Right to Life and Right to Privacy; and has also been guaranteed by the 1989 Convention on the Rights of the Child and the 1993 Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption.

The Right to Know has not yet been fully accepted or awarded the status of a fundamental human right in India, however the Right to Life has been expanded by the Supreme Court in India in many cases to include under its fold, the right to privacy and dignity. With respect to this, it can be said that  the judgment delivered in Maria Chaya’s case is extremely important in that it sets a precedent for the use and acknowledgment of a hitherto unknown rule in Indian law.

According to CLPR’s Jayna Kothari who appeared on behalf of Maria Chaya, “a person’s right to know her biological or genetic origins raises some of the hardest legal and ethical issues that we have had to face in the last several years.” According to the Hindu Op-Ed piece , “A difficult road to her roots” published on March 30, 2013; Maria Chaya’s case emphasises the need to articulate a policy and legal mechanism for openness in adoption records, and the need for a comprehensive child-centric adoption law in India. 

March 11, 2013
by Manojna
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Talk by Bhanwari Devi on March 9, 2013

The Alternative Law Forum organised a talk by Smt. Bhanwari Devi at the CSI Vishranti Nilayam Hall, Bangalore on Saturday, March 9, 2013. CLPR’s Manojna Yeluri was present at the talk. The talk was open to the public, and specifically dealt with Bhanwari Devi’s struggle with the courts and political institutions following her gang-rape in 1992. The brutal assault against her was perpetrated in response to her work as a ‘saathin’ or social worker with the Government of Rajasthan, and specifically, due to her work against the then widely-prevalent practice of child marriage. Bhanwari Devi and her husband had both been victims of violent assault – their courage and battle for justice resulted in the landmark judgement of Vishaka v. Stae of Rajasthan.

Primarily communicating in Rajasthani, Smt. Bhanwari Devi spoke of her work as a ‘saathin’; her varied experiences with social work in her community; the atrocities committed against her; and finally the need to unite and continue the struggle for justice – justice for her, and for the larger community of women everywhere.

Smt. Bhanwari Devi was asked several questions by the audience members, most notably; a question on whether policies or measures had been implemented to safeguard the ‘saathins’ who continue to work in their States, in light of the guidelines on Sexual Harassment as laid down in Vishaka. Smt. Bhanwari Devi noted that besides the meager increase in salary, no other efforts had been taken towards improving the professional lives of the ‘saathins’.

Smt. Bhanwari Devi however, ended her talk on a bright note – stating that the struggle to rid society of violence against women, was not the cause of one person or one organisation alone, and thus requested the co-operation of various organisations in collaborating to seek the goal of justice for all women.

 

March 8, 2013
by giulia.cabianca
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Sexual Harassment at the Workplace in the view of the Justice Verma Commitee

In the Vishakha Judgment the petitioner sought to enforce the fundamental rights of working women. The said petition wanted an enforcement of Article 14, 19 and 21 ‘in view of the prevailing climate in which the violation of these rights is not uncommon’. The petition was presented as a class action by certain social activists and NGOs.

The Court, in Vishakha:

  • took notice of Articles 15 and Article 42 of the Constitution. Article 42 provides that The State shall make provision for securing just and humane conditions of work and for maternity relief.
  • observed that “gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.”
  • refers to the principles of independence of judiciary. In this context in Sheela Barse the Supreme Court said: “Usually the most important encounter which the citizen has with the law is at the primary level. This level, in fact, frightens many citizens, and has\ given a feeling of helplessness that the administration of law does not necessarily lead to justice in the predominance of Truth. Even the secondary and the Tertiary level courts i.e. the High Court and the Supreme Court to function, they too depend upon the impressions of the primary level courts. Thus, if an error creeps in there, it becomes an error which may not perceptible of correction by the secondary and the tertiary levels”

Recommendation of the Justice Verma Commitee report

Inadequacy of judicial personnel can be immediately addressed in the following manner:

  • Retired Judges of the Supreme Court, High Court and the District Courts could be appointed as ad- hoc judges to expeditiously dispose pending cases;
  • Parliament should consider equalisation of age of retirement of the subordinate judiciary, the High Court and the Supreme Court so that manpower will be immediately available
  • Infrastructure for ad hoc judges can be easily identified in respect of unutilised government buildings and be made available.
  • Adjournment should not be allowed as a matter of course in respect of cases specially fixed for hearing before the ad-hoc courts, or even before regular courts.
  • Public prosecutors should be appointed on the basis of merit in accordance with the recommendations made by the Chief Justice of the High Court and not on the basis of any political considerations.
  • Cases of rape and sexual assault should be tried by women prosecutors, and, to the extent possible, by women judges. In any event, all judges of the subordinate and higher judiciary should receive training in gender sensitivity
  • In case of an offence like rape there would be a constitutional violation of Articles 14, 14, 19 and 21 and which would also enable the victim to claim right to compensation1. The Commitee is of the view that a right to claim compensation will lie against the State in the event the State is unable to secure safe conditions / safe spaces for women2

 

The Committee has arrived at the conclusion that, read as a whole, the Sexual Harassment Bill of 2012 is unsatisfactory, the spirit of the judgment in Vishakha is not adequately reflected.

Suggestion for a more effective legislation:

  • definition of sexual harassment: in determining whether the behaviour or act complained of is unwelcome, one of the factors to be given due weight shall be the subjective perception of the complainant;
  • the present structure mandating the setting up of an Internal Complaints Committee to which any complaint must be filed is counter-productive to the ends sought to be met;
  • the Commitee propose an Employment Tribunal: it should comprise of two retired judges (of which one must be a woman), two eminent sociologists and one social activist, who has sufficient experience in the field of gender-based discrimination;
  • that Tribunal ought to follow a summary procedure for the disposal of complaints so as to expedite the resolution of disputes. It is apprehended that if the complaint of sexual harassment is tried as a full blown civil trial then the parties concerned will be adversely affected in the workplace for a prolonged period of time which can cause a prejudicial effect to both or either party. It is suggested that parties shall not as a matter of right be free to call upon witnesses, unless permitted by the Tribunal in the facts of the case. The Tribunal ought to also be mandated to conduct periodic inspectionto obtain information on the state of the enforcement of the proposed legislation. The purpose of these inspections should also extend to activities relating to gender sensitization.
  • Establishments to which the proposed Act shall apply: any legislation must apply to all government institutions, all public bodies, all panchayats, all establishments covered under the Factories Act and the Industrial Disputes Act and all employers in the private sector who are not otherwise covered by the categories listed above.
  • Definition of workplace: the proposed legislation should also cover women in unorganized sector, in the armed forces and police, agricultural workers, women students and staff of all schools and educational institutions and domestic workers.
  • The employer should be imposed (under penalty in the case of act or omission which facilitates or permittes sexual harassments) to inform employees of their right to raise, and how to raise, the issue of harassment, and develope methods to sensitize all concerned. Employers should be free to set up an internal committee, if they so desire, however, a complainant cannot be compelled to approach such an internal committee prior to approaching the proposed Employment Tribunal. Particularly, all employers must have a nodal female officer to whom all complaints of sexual harassment may be made, whether in writing or otherwise4.
  • We propose that complainants may be free to approach the Tribunal directly to state a complaint orally (not only in writing), which may then be transcribed into the written form in the manner prescribed by the Tribunal, because often lack of education and illiteracy don’t allow them to make a wrote complaint. The power to compulsorily transfer or grant leave to the aggrieved woman should only be exercised with the consent of the woman.
  • No fixed time period of limitation be prescribed and that the only expectation be that a complaint shall be made within a reasonable period of time with regard to the facts and circumstances. A determination of what amounts to a reasonable period of time shall be made by the Tribunal which may then be refined through the development of case law on the point.
  • A conciliation should not be permitted, nor shall withdraw the complaint. The cases should be treated according to the law of the land. This to prevent pressurizing influences on a valid complaint.
  • The Sexual Harassment Bill, 2012 provides an action in relation to false or malicious complaints or giving of false evidence: the said provision has to be deleted to prevent abuses.
  • In compliance with the judgment in Vishakha v. State of Rajasthan, universities such as the Jawaharlal Nehru University and the University of Delhi have formulated policies and constituted mechanisms to prevent and redress complaints of sexual harassment. Those universities, in which Internal Complaint Committees have functioned successfully to deal with sexual harassment, should share their internal guidelines on combating sexual harassment in their University with other Universities across India5.

Notes:

1 Nilabati Behera v, State of Orissa & Others (1993) 2 SCC 746

2 Comparison with Italian law: Article 185 Each offence requires refunds in accordance with the civil laws. Each offence, which has caused a patrimonial damage or non-pecuniary damage, requires the offender to pay compensation and the people, in accordance with the civil law must respond to the fact of him

3 Municipal Corporation of Delhi v. Female Workers’ Muster Roll AIR 2000 SC 1274

4 Comparison with italian law: Article 2087 Civil Code: a contractual obligation to be paid by the employer to ensure the safety of workers. The entrepreneur, who has become aware of sexual harassment within his undertaking,has to act and adopt disciplinary action (dismissal, suspension, etc..) and all appropriate measures to ensure the full protection employees, otherwise the right to compensation for non-pecuniary damage for the worker. There is also the responsibility borne by the employer (or principal) for tort committed by its employee in the performance of assigned functions, but there must be a chain between the exercise of the duties and the damage event. Specifically, in the sense that the job has created a situation which facilitate or make possible the offence and the loss. Our legal system considers the criminal liability arising personnel only, any form of objective responsability is viewed as a dictatorial fascist one. It’s required at least fault or negligence, carelessness, inexperience.

5 As an example, the internal complaint committee of JNU is known as Gender Sensitisation Committee against Sexual Harassment, which is stated to have been extremely effective in its working partly due to the diverse nature of its constituent members. This model may be examined.

March 8, 2013
by giulia.cabianca
0 comments

Gender Justice and India’s Obligations Under International Conventions

A brief of the most important international rules in the matter of male/female equality.

The Universal Declaration of Human Rights, 1948, it’s not a treaty in itself but defines ‘fundamental freedoms’ and inspired ICCPR and ICESCR

Art. 16: (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The International Covenant on Civil and Political Rights, 19661

Art.3 places an obligation on all covenanting parties to: “…undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”.

Art. 23:

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

International Covenant on Economic, Social and Cultural Rights, 19662

Art. 7 obligates state parties to: “recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers (…); (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays”

Beijing Principles of the Independence of the Judiciary3

The objectives and functions of the Judiciary include the following:

(a) To ensure that all persons are able to live securely under the Rule of Law; (b) To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) To administer the law impartially among persons and between persons and the State.

Convention on the Political Rights of Women, 19544

(a) Women shall be entitled to vote in all elections on equal terms with men, without any discrimination; (b) Women shall be eligible for election to all publicly elected bodies, established by national law, on equal terms with men, without any discrimination; and (c) Women shall be entitled to hold public office and to exercise all public functions, established by national law, on equal terms with men, without any discrimination.

The Declaration on Elimination of Violence against Women (DEVW) 1993

art. 14: State should develop penal, civil, labour and administrative sanction and domestic legislation to punish and redress wrongs caused to women; women who are subjected to violence should be provided with access to the mechanism of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered; State also informed women of their rights in seeking redress through such mechanisms.

Convention on Elimination of all forms of Discrimination against Women (“CEDAW”)5

- art. 1 defines “discrimination against women” as “…..physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non- spousal violence and violence related to exploitation….”

- art. 1 is clarified by Recommendation 19 to include gender based violence: “The definition of discrimination includes gender based violence, i.e., violence that is directed against woman because she is a woman or that affects woman disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender based violence may breach specific provisions of the Convention regardless of whether those provisions expressly mention violence…”

- art 11(1): States parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure on the basis of equality of men and women, the same rights in particular (a) the right to work as an inalienable right of all human beings; (b) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

- art. 22: equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place

- art 24: State parties to include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the workplace

The UN Committee on the Elimination of Discrimination against Women (“CEDAW Committee”) has recommended that the country should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…”

The Indepth Study on all forms of Violence against Women6clearly finds that non-implementation or ineffective implementation of existing domestic laws in most countries was the single most important reason for continued immunity to perpetrators of violence against women particularly in intimate relationships.

The Justice Verma Committee is of the opinion that substantive equality and women’s rights as human rights have been established both in domestic and international legal regimes: the Constitution embraces the substantive equality approach as provided in Article 15(1) and Article 15(3)7; the concept of formative action under sub-article (3) of Article 15 is not merely an enabling provision but, in the context of Article 14, may be a mandatory obligation.

The violence against women has a dual characteristic. It is an offence under the principles of penology but, more importantly, it is a direct constitutional violation.

Dowry Prohibition Act, 1961, as well as the Protection of Women from Domestic Violence Act, 2005, were enacted in India to prevent and remedy the occurrence of dowry and domestic violence in Indian society. offences of cruelty and violence by the husband and his family against the wife (for dowry or otherwise) constituted over 3% of the total number of crimes against women in 2006-2007. Why Parliament had to enact special legislation in respect of dowry and domestic violence if the provisions of the IPC were being effectively enforced?

1 India acceded to the ICCPR on April 10, 1979. India has, however, not signed or ratified the optional protocols to the ICCPR (including the Second Optional Protocol, which abolishes death penalty)

2 India acceded to the ICESCR on April 10, 1979. India has not signed or ratified the optional protocol to the ICESCR

3 drawn up and agreed to in 1995 by the Chief Justices of countries in the Asia-Pacific region

4 India signed the Convention on the Political Rights of Women on April 29, 1953 and ratified it on November 1, 1961

5 was ratified by India on 25th June 1993. The only reservation which has been made by India is to Article 29, paragraph 1, relating to dispute resolution between States by arbitration. Editor’s note is that art. 29 is relay important to create effective protection of rights

6 Report of the Secretary General, July 2006, UN General Assembly Document A/61/122/Add.1

7 Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1

March 8, 2013
by Manojna
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“A promise is a promise: Time for action to end violence against women” – IWD, 2013

Every year, March 8 is celebrated the world over as International Women’s Day. As an event, International Women’s Day first gained global attention in 1977, when the United Nations General Assembly invited member states to proclaim March 8 as the United Nations Day for Women’s rights and World Peace.

Every year, International Women’s Day is celebrated in accordance with a theme – this year’s United Nations theme “A promise is a promise: Time  for action to end violence against women“ aims to encourage free dialogue between member states, in an effort to put an end to gross human rights violations that nearly 7 in 10 women, the world over, are victims of. The 2013 United Nations theme for International Women’s Day fits into the theme of the 57th Session of the Commission on the Status of Women being held at the United Nations Headquarters, New York. Making the elimination of all forms of violence against women and girls its major theme, the session seeks to focus on two key areas – (1) the prevention of violence and (2) the provision of support systems and rehabilitative measures to victims of violence.

Far from New York, International Women’s Day is celebrated as an official holiday in many countries including Afghanistan, Angola, Armenia, Azerbaijan, Belarus, Burkina Faso, Cambodia, Cuba, Georgia, Guinea Bissau, Eritrea, Kazakhastan, Kyrgyztan, Laos, Moldova, Mongolia, Montenegro, Russia, Tajikistan, Turkmenistan, Uganda, Ukraine, Uzbekistan, Vietnam and Zambia. In some countries, like China, Macedonia, Madgascar and Nepal – the holiday is meant to be taken by women only.

This year, the United Nations has taken a great deal of effort in trying to further its theme, and will be making available a live webcast of the events as they unfold in the United Nations Headquarters.