Archive for June 7, 2012

Women: Married to Personal Laws?

Girls India

In India, caste and religion seem to be the considering factors for deciding the marriageable age of a woman, rather than her constitutional right to self-determination

By Indira Jaising

The Delhi High Court ruling upholding the marriage of the 15-year-old Muslim girl, exposes the fault lines in the Indian Constitution. As usual, these cracks emerge where women reside. Why are women bereft of fundamental rights, why must “personal laws” and not the right to be human determine the public space which we inhabit?

The Delhi HC is not the only example of religious considerations influencing court judgements. Take this recent example of divided and contradictory policies on marriage from Rajasthan. The newly enacted Compulsory Registration of Marriages Act- 2009, requires the consent of the parents to register a marriage, if the girl is below 21 years of age. This means that though a girl may marry without parental consent after 18, she will not be able to register the marriage (make it legal) till she reaches the age of 21. The object here is to prevent inter-caste marriages and give parents an opportunity to oppose the marriage when a girl marries outside of caste.

The Rajasthan High Court also gave a judgement that Arya Samaj marriages cannot take place without parental consent. The Arya Samaj, a movement which came into existence in opposition to caste hierarchies, is now compelled to give way to caste based objections to marriage.

Perhaps what we need is a universally applicable law, regardless of religion, which makes all marriages below 16 void; make those marriages between 16 and 18 voidable; and rape within marriage outlawed. We also need to alter our laws relating to “kidnapping from lawful guardianship” which enable parents to file complaints of kidnapping when a daughter marries outside the caste, while they do not object to getting 15-year-olds married within caste.

Would the Delhi case ruling have been different if this had been a Hindu girl? She would have had the protection of a law which fixes the age of lawful marriage at 18, and not puberty. But that is only half the battle won. A marriage below the age of 18, even for a Hindu girl, is not void, just nearly voidable, putting the onus of avoiding the marriage on her.

Deciding ‘marriageable age’ is normally done on the basis of the right to health, to avoid early pregnancies, to ensure a degree of maturity at the age of marriage and the ability to protect oneself against exploitation and rape within marriage (which is however still not an offence)

Last month, India, in its attempt to tackle child sexual abuse, proposed to raise the age of consent for sex from 16 years to 18. Considering this, one wonders whether it makes any sense to permit marriages at 15, when the consent to sexual relations is raised to 18? The ability to feel sexually engaged is not dependent on laws fixing the age of consent. It is by and large recognised that a girl is capable of giving consent to sexual relations at the age of 16. Raising it to 18, however, will only enable more parents to bring charges of rape when they disapprove of the person with whom sex has taken place, making it a matter of “honour” for the family.

We need to look at age of marriage, age of consent, rape within marriage and kidnapping in an outer connected manner, recognising the dynamics of societal pressures but always in the context of the right to live a life of dignity and recognising the agency of the woman. In the Delhi HC case, marriage at 15, with the possible consequence of pregnancy, affects a girl child’s right to education, health and well being. It is these considerations rather than religious codes that must prevail when looking at the age of marriage.

Indira Jaising is the Additional Solicitor General of India and the Executive Director of Lawyers Collective.

Featured photo by Ramlath Kavil

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Kerala State to Police Migrant Labourers

Migrant workers photo by Ramlath Kavil

Human rights activists protest Kerala government’s new registration system for migrant workers

By Team FI

Kerala, with its widely unionised work sector, believed to be one of the best states for workers in India, has been pulled up by the human rights activists for its treatment of migrant labourers.

A recent decision taken by the state government for migrant workers to be registered with the police on their arrival in the state, has come under severe criticisim by some rights activists. They allege that the government decision to police migrant workers is only a means to tarnish the workers’ image and push them further into the margins of the society so that the State and the vested interests can continue extracting their labour without providing any social security.

Since the last 10 years, Kerala has become a favoured destination for workers from Assam, West Bengal, Bihar, Orissa, Jharkhand, Chhattisgarh etc. The Labour Department estimates that there are about 20 lakh to 30 lakh migrant workers in Kerala and they include skilled, semi-skilled, and unskilled workers.

The unskilled labourers, brought in by inter-state contractors, are mostly employed at construction sites, quarries, hotels and factories and earn 30-50% lesser than the native workers. Many are employed as domestic helps. Migrant workers are preferred by employers since their wages are lower compared to local workers.

Activists say most of the migrant labourers are expected to do the hazardous and arduous labour. They live in labour camps and ghettoized neighborhoods away from mainstream Malayali life. A petition submitted to the State Home Minister by concerned citizens and activists has also noted that prior to this, police authorities in the state had attempted similar forms of registration and profiling with varying degrees of success.

In 2009, in Perumbavoor, one of the largest migrant settlements in the state, the local police insisted that migrant workers must bring a police clearance card from their villages of origin certifying the absence of a criminal record. Many workers had to leave Perumbavoor and stop working as obtaining  such a card was expensive and nearly impossible.

However, activists like T.K Anandi are not against the registration per se. Anandi, who has also studied the issue of migrant workers in the state, believes that the government’s intention to give identity cards to migrant workers and the requirement of their registration can be used to ensure fair wages and good working conditions.

“One should realise that migrant workers are paid daily wages far lower than what is paid to a Keralite. Within this, the worker has to not only manage his/her life here but also send money back home. The ID cards should be used in lieu of ration cards so that they can access the PDS system in Kerala – where rice is available at Rs 2 per kg to the BPL ration card holders.”

“During my study of migrant workers in Kerala, an employer, addressing migrant workers as animals, responded that, “They work from 7 am to 7 pm. Around 11 am, if we buy a Pan Paraag (a tobacco product) and give it them they will work till night. That is enough for them.” For such conditions to exist in a state like Kerala where the value of a labourer and his labour power has been epitomized and encouraged is shameful.” says Anandi.

The state government and the police has not given any evidence as to why registration is being made compulsory except to that of the Home Minister’s claim to the media that registration would enable the police to identify whether the workers have any links with terrorist groups.

Sign Petition here

Featured photo by Ramlath Kavil

 

Delhi High Court: Marriage at 15 Acceptable for Muslim Girls

Delhi HC ruling on Muslim marriage Photo by Ramlath Kavil

The Delhi High Court upholds the marriage of a minor Muslim girl and allows her to stay  with her husband

By Team FI

The Delhi HC ruling that a minor Muslim girl, if she has attained puberty, can marry as per her choice, has sparked a debate in the community with activists being upset over this reduction in marriageable age of Muslim girls.

The judgment was passed on a case of alleged kidnapping and forced marriage of a 15-year-old Muslim girl. In March 2011, the girl’s mother filed a habeas corpus petition at the Delhi High Court alleging that her minor daughter was kidnapped by a youth and forced into marriage. In her petition she alleged that she had filed an FIR, but the police did not take any action.

However, the girl deposed to the court on April 18th  2012, that she had voluntarily gone with the man of her choice and married him. The girl also told the Court that she did not wish to go back to her parents and wanted to stay with her husband.

Accepting the plea of the 16-year-old, a bench of Justices S S Ravindra Bhat and S P Garg ruled that “This Court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18….”.

The presiding bench citing various Supreme Court judgments on the issue of minor Muslim girls’ marriage said “….a Muslim girl who has attained puberty, i.e. 15 years, can marry and such a marriage would not be a void marriage. However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, i.e 18 years.”

While the All India Muslim Personal Law Board has welcomed the decision, women’s rights activists have begun voicing protests over the ruling.

“This is regressive, why should Muslim women/girl be separate from other women in the eyes of law? The law in India stipulates that the eligible age for marriage for women as 18 and one wonders what is this ruling implicating to?  Isn’t it time we have family laws which have nothing to do with any religion?,” asks Sakina Bahora, an activist living in Mumbai. She, however, finds it problematic when parents file cases against their children if the marriage is taken place without parental consent as it happened in this case. “One must not forget that in most cases, it is parents who force their children into early marriage,” says Sakina Bahora.

Noorjehan Safia Niaz of the Bharatiya Muslim Mahila Andolan (BMMA) does not consider this ruling positive either. She states that this ruling only strengthens the BMMA’s demand for a codification of the Muslim Personal Law. “If we have a codified Muslim law set in place, we will not have to deal with these sorts of contradictory interpretations and rulings.”

Ammu Abraham of Women’s Centre, Mumbai, finds it quite arbitrary that the bench has counted the age of puberty as 15 for all Muslim girls in India. “How does anyone fix puberty, on the basis of religion? One can medically fix an average age of puberty for girls, in a country or a region, though it is better to give an age range rather than one fixed year. But can that be fixed on the basis of Sharia?” she questions.

Ammu feels that in this particular case one is sympathetic to the girl who has chosen to rebel against the tradition of parental control and has left her home to be with the man she loves. “Of course, the law does not want her to suffer the humiliation of being deserted after she has eloped with a man. It is hard do justice in such situations, supporting parental power entirely against the will of a young girl goes against my grain”

In India, the practice of child marriage is not exclusively to Muslims. A report (2007-2008) published by UNICEF states that 40% of the world’s child marriages take place in India and 43% percent of women aged 20 to 24 get married before the age of 18. India abolished child marriage in 1929 and as per the Special Marriage Act, 1954, eligible age for marriage is 21 for men and 18 for women.

 

Human Rights: India’s disappointing response to UN

child-labour

UN Human Rights Council’s Universal Periodic Review urges India to ratify UN Convention against Torture and the UN Convention on Enforced Disappearances and repeal the Armed Forces Special Powers Act (AFSPA) while India defers response till September

By Team FI

The draft report of the Universal Periodic Review of India’s human rights record, conducted by the UN Human Rights Council (HRC) on 24 May 2012 and adopted on 30 May 2012, has submitted 169 recommendations to the Government of India (GoI). The review prepared by 80 countries includes recommendations to ratify the UN Convention against Torture and the UN Convention on Enforced Disappearances; to repeal the Armed Forces Special Powers Act (AFSPA); to adopt the Prevention of Communal and Targeted Violence Bill; to enact comprehensive reforms to address sexual violence and all acts of violence against women; to improve human rights training of police officers; to strengthen efforts to combat trafficking and address the inequities based on rural-urban divide.

Government of India declined to comment on the recommendations, deferring its response till before the plenary session of the HRC in Geneva in September 2012. According to Miloon Kothari, Convener of Working Group on Human Rights in India and the UN (WGHR), “We look forward to a constructive response from the GoI as it formulates responses to the many useful suggestions that are contained in the document adopted by the UN on May 30, 2012. These responses from the GoI should be formulated after thorough consultations with the Parliament, human rights institutions, civil society and independent institutions.”

However, as per the WGHR, India’s initial response during the UPR session  saw a “lack of acceptance of human rights challenges in the country and a mere reiteration of domestic laws, policies and Constitutional provisions by the Government of India” The press release of the organisation regretted that “the answers of the government did not address critical issues related to gaps in implementation of laws and enjoyment of rights, with India’s Attorney General who led the government delegation, stating in his opening address that, “India has the ability to self-correct.”

“By employing a defensive and largely self-righteous position at the HRC, GoI has, at least in its initial response at the HRC, once again lost the opportunity to constructively engage with the UN human rights system and in accepting the enormous human rights challenges it is faced with.”  Says Kothari.

During India’s first UPR in 2008, GoI had accepted recommendations to ratify the UN Convention against Torture (CAT) and the Convention against Enforced Disappearances (CED) which have however remained unfulfilled. The current UPR had several of the 80 countries which participated, reiterating these recommendations. However WGHR points out that while the GoI spoke about the Prevention of Torture Bill (PTB) which is pending before Parliament, it ignored the fact of the Bill’s non-compliance with the CAT’s definition of torture.

WGHR states that not only did the GoI didn’t comment on the ratification of CED but also “dodged the recommendations for repeal and review of the Armed Forces Special Powers Act (AFSPA) by referring to the Supreme Court’s upholding of its constitutionality and by citing Army’s human rights cell as a redressal mechanism.”

Ms. Vrinda Grover, human rights lawyer and member of WGHR, expressed serious concerns at GoI’s misleading response to the HRC, “The refusal and reluctance of GoI to squarely address the issue of impunity under AFSPA, in spite of numerous recommendations by international bodies, government appointed committees and UN Special Rapporteurs is unacceptable in a country that proclaims to be the largest democracy in the world.”

In response to the several recommendations to ratify the Optional Protocol (complaint mechanism) to the Convention on the Elimination of Discrimination against Women (CEDAW), India during the UPR session had stated that its domestic legal remedies were adequate to address gender-based discrimination. WGHR regretted the fact that GoI did not engage substantially with recommendations made on issues relating to women, including maternal mortality, pre-natal sex selection, infanticide, sexual and gender-based violence, political participation of women, sexual harassment at the workplace, early/child marriage, harmful traditional practices, honour crimes, and trafficking.

WGHR was however appreciative of the GoI’s stand on the issue of homosexuality, where the government affirmed its support of the High Court of Delhi judgment decriminalizing homosexuality and stated that it would take a sensitive view of the matter that has been appealed in the Supreme Court.

Featured Photo by Ramlath Kavil