HC directs govt to clarify on exemptions under RTI

The Madras High Court on Tuesday directed the Tamil Nadu Government to clarify whether the exemption granted under the provision of Right To Information Act (RTI) and a government order could be made applicable to cases in which information relating to corruption charges were made.

Justice V Dhanapalan gave the direction while disposing of a petition of one Vishwanath Swami, seeking a direction to the Commissioner of Police and Superintendent of Police, CBCID to supply information sought by him and to take departmental acton against officials who failed to furnish the information.

The judge said the government has to clarify the position of exemption available under Section 24 (4) of RTI Act, as the notification has not made anything clear about the exemption granted.

Since the issue in question related to corruption charges, the applicability of the Act precludes certain documents to be revealed can be considered only when the Government Order (G.O) was clarified. Therefore, the public department has to clarify the G.O dated October 14, 2005, the judge added.

The judge said the petitioner, police officials and the Secretary to Tamil Nadu Information Commission can approach the government, which has to come out with the clarification to make it clear as to whether the applicability of the act can be considered in case of allegations of corruption.

Therefore, it was left open to the parties to clarify the position from the government, the judge added.

Domestic violence Act may cover child abuse

The government is planning to extend certain provisions of the Domestic Violence Act to make beating of children by their parents an offence as is the case in many western countries.

The politically "progressive" move is aimed at protecting kids from being harassed by their parents. The domestic violence law, primarily meant to provide protection to the wife from violence at the hands of the husband or male partner — as also his relatives and female members — is now being extended to children.

WCD minister Renuka Chaudhary said: "We have proposed an integrated child protection scheme under the 11th Plan. Till the time the scheme is finalised, we are likely to extend protection to children under the domestic violence law."

"After the amendment, a child facing frequent harassment at home can directly approach the protection officers appointed under the domestic violence act," said a WCD official.

Even though the changes are possibly being proposed to contain abuse and regular violence, they might have their flipside. In UK, juvenile rowdyism is often not tackled for fear of provisions against holding and restraint being brought to bear.
Times of india, 31st october, 2007

New laws to rein in 'womb business'

Foreigners lining up to rent a womb in India will soon have to face legal regulations being planned by the ministry of women and child development (WCD).

Surrogacy, an area unregulated till now, meant that childless couples from abroad as well as in the country could get away with renting a womb at terms often to the disadvantage of a needy women who stood the chance of being exploited.

Women and child development minister Renuka Chaudhary said that the ministry was considering a law to regulate the business of surrogate motherhood and sperm banks on the lines of similar laws in other countries.

Women's organisations have long been demanding a law on surrogate motherhood and hiring of wombs in India.

"The sensitive issue of surrogacy in the absence of laws or regulations has become a free playing field for unscrupulous intermediaries who lure and push uneducated and poor women into surrogate motherhood," a WCD ministry official said, emphasising the need for the law.

It is argued that there was every possibility of misuse of children born out of surrogacy for terrorism, prostitution or unethical genetic engineering research as the foreigners who pay for the child would not have any emotional bonding with the kid.

India is emerging as a major destination for surrogacy as childless couples from US and Europe are lured by the prospect of a surrogate child for around Rs 100,000 ($2,250) to Rs 225,000 ($5,060) each pregnancy compared with some $40,000 or even more in the US. Many say the country can become a centre of "reproductive tourism".

There is no law in India surrounding surrogacy. However, the Indian Council of Medical Reseach (ICMR) has framed national guidelines in 2005 to regulate surrogacy. The clinics that provide ART facilities take recourse to the guidelines that state that the surrogate mother has to sign a contract with the childless couple. But even then, it is not clear whether such a contract has any legal sanctity.

"The rights of the surrogate mother over a baby she carries and issues like if mother dies during pregnancy remains unclear," said an official. And, the real problem arises after the birth of the baby. In the absence of any clear laws on the issue, foreigners are unable to get legal assistance when it comes to taking their child back to their home country.

Times of India, 31st October, 2007

Why can't mothers be legal guardians, asks SC

Why can't mothers be legal guardians, asks SC
18 Sep 2007, 0123 hrs IST , Dhananjay Mahapatra , TNN, Times of India

NEW DELHI: A young widow, who has remarried, on Monday asked the Supreme Court: Can a mother not claim equal rights as that of a father in regard to her child's guardianship?

The query touches upon an issue - of men being more than equal to women when it comes to guardianship - that has evoked the resentment of women's rights activists and led to a National Commission for Women (NCW) recommendation for an amendment to Guardianship and Wards Act, 1890. The amendment suggested by NCW aimed to give the mother rights similar to those of father.

While in cases of divorce, courts tend to give custody of children to the mother, the case is different with regard to guardianship. Section 19 of the Guardianship and Wards Act prohibits appointment of a guardian by the court where the father is alive, unless he is found unfit to look after the welfare of minor children.

The woman in question married one Sharad Singhi in 1991 and was living with him in Jorhat, Assam. A son was born to them in 1993, but a year later Sharad died in a tragic road accident. After a lot of persuasion from friends and relatives, the woman remarried in 1997.

At the time of her second marriage, she was apprehensive about the welfare of her son in the new matrimonial home and entrusted the custody of her son to his paternal grandparents. A Jorhat court appointed the late Singhi's parents as guardians in 1998 following their application to that effect.

While the courts do not appoint a guardian if the father is alive, in the case being considered by SC, the widow chose to entrust her child to his grandparents. But six years into her second marriage, the woman decided that she could look after the welfare of her minor child in her new family and moved the court. She was fully supported by her husband and his children.

Yet, the district judge as well as the Gauhati HC rejected her claim saying her petition was not maintainable as she had consented to the guardianship of her son being given to his paternal grandparents. Appearing for the woman, advocate P S Narasimha argued before an SC Bench comprising Justices C K Thakker and Altamas Kabir that after the Hindu Minority and Guardianship Act, 1956, which recognised the mother also to be a natural guardian, came into force, the much older 1890 law on guardianship should also be interpreted afresh so that both father and mother can have equal rights over the custody of their child.

Any interpretation to disentitle a mother guardianship of the minor child, especially in cases of young widows, would have an adverse impact on remarriage of widows and would be a disincentive to these women picking up the threads of their lives again, Narasimha argued. He said the circumstances under which the woman had consented to entrusting the guardianship of her child to his paternal grandparents had changed. She had been apprehensive of his welfare in her new home but concern over such a possibility no longer existed.

When the mother of a child is confident of her child's welfare, can she be deprived of the custody of her son just because the court under the 1890 Act has appointed the grandparents as guardians, the counsel asked. After hearing the arguments, the Bench agreed to examine the legal issues raised by the counsel and issued notices to the grandparents.

Mother is not always the natural guardian

Mother is not always the natural guardian
16 Feb 2004, 0518 hrs IST , Rakesh Bhatnagar , TNN, Times of India

NEW DELHI: There has been an increasing demand for restoring to children the right to live, as they want to, and be in the company of both parents, however bitter their relations.

In a recent judgment, the Supreme Court has sought to remove the impression that only the mother can be a good guardian of the child whose parents have separated.

The Karnataka High Court had given custody of a nine-year-old girl to her mother, who divorced her stockbroker father to marry a known cricketer.

The couple had been married for about 12 years and got a divorce through mutual agreement without making accusations against each other, something rare in matrimonial disputes. At the time of their separation, the child was four years old.

After their separation, the parents settled down though they were still litigating over the child's custody. Their daughter, therefore, lived like a shuttlecock.

Insecurity and helplessness naturally gripped her. But the parents continued their tryst with justice right up to the Supreme Court.

The trial court said the husband, who had not married and regulated his life to be with his daughter, should be given her custody. Her mother's new lifestyle, after her marriage to a well-known cricketer, came in the way of securing the child's custody.

As was expected, her second husband was a sport in the real sense of the term. He also assured the courts that he would do his best for the betterment of the child and ensure that she loved her natural father.

He said his wife had left a corporate job and was expecting. Under such circumstances, the child would enjoy the company of a younger member in the family.

During her personal meetings with the high court judges, the daughter did not show any malice towards her natural father, mother or stepfather.

The parties showed exemplary courtesy and respect for each other. In fact, they were concerned about the child's welfare at all cost.

Obviously, it was not child's play for the Supreme Court Bench of Justices Shivaraj V Patil and D M Dharmadhikari to decide the appeals filed by the divorced couple.

What troubled the court most was that the high court's "general" comment that the mother should be preferred to the father as far as custody of the child is concerned.

Rejecting such a "general" observation in a matter, which solely affects a child born out of a disturbed wedlock, the Bench said: "Such generalisation in favour of the mother should not have been made."

The judges also refused to accept the view that "the mother always can claim superior right to retain the custody of the child".

Thus, the old belief that in a dispute between an estranged couple over the custody of their child, the mother's right would be superior over the father's has been given a go by.

The paramount importance for the courts would now be the interest of child alone, and not the old theory that the mother enjoys an inherent right over her child's custody

16-10-2007

Anti-sexual harassment cells needed in colleges, offices

Anti-sexual harassment cells needed in colleges, offices

NEHA SHARMA
I NEW DELHI
Sexual harassment cases in the capital refuse to die down. Allegations by students of Ramjas College that their vice principal B.N. Ray tried to sexually harass them in exchange of good marks is the latest case in point. A couple of days back, a government enquiry had found the Unicef country head in India, Cecilio Adorno guilty of sexually harassing a female colleague.
While educational institutes maintain that they take a tough stand against the offence, the Unicef case comes to light just months after the Delhi high court came down heavily on the offence and said that only a tangible legislation could curb sexual harassment at work through effective measures.
Delhi University (DU) students say students should turn to the sexual harassment committee, which should take care of everything, first of which should be filing an FIR against the accused.
Says Nirmika Singh, coordinator Women Development Cell (WDC) Lady Shri Ram College, "Going by what the victims are saying, incidents of sexual harassment have been happening in Ramjas since some time and it is sad that the administration kept pushing it under the carpet. Every college is supposed to have a committee against sexual harassment, which should take cognisance of such offences. LSR was the first college to have a WDC and it has been active throughout. No one will mess with students when they know that they have a committee to turn to."
Sexual harassment at workplace has been a matter of concern for many years now. Very often, the accused holds an important and influential position, which makes it difficult for the victim to fight him. Internal committees are often not viable and organisations tend to ignore unpleasant incidents fearing a "bad name" for the company.
Social activists say that though the sexual al harassment at workplace bill 2007 is ready to be tabled, it might be neglected in the winter session of the Parliament due to the nuclear deal.
Social worker Nafisa Ali says that every office and educational institute needs to have a cell to deal with the situation, but a legislation will definitely go a long way in giving teeth to the entire arrangement.
"It is essential not just for a corporate house or a hospital, but also schools and colleges to have a special cell to look into these matters because it has become a very common phenomenon. Such cells should look not only at cure but also prevention. They should do counselling and equip the workers and students to speak up if need be. Of course, what is most desirable is a legislation regarding the same," she says.
Legal experts say it is pertinent that an act should come into being regarding sexual harassment at work. They say that the Vishaka guidelines of 1997, which came into being to tackle the menace, should give way to a law. While laying down the guidelines, the Supreme Court had observed that "these guidelines were to be implemented until a legislation is passed to deal with the issue".
Advocate Abhishek Aggarwal says, "Generally a guideline laid down by the Supreme Court becomes a law. Even otherwise, the lower court has to acknowledge the guidelines while judging a case. However, many in the field feel that this issue is highly politicised. There are sections dealing with sexual harassment in the IPC and a separate section for workplace is not required if we judge every case fairly within the ambit of what is already provided for," he adds.




Source: Deccan Chronicle, 29th October, 2007.

Lamy seeks focus on green issues in WTO

At a time when India is faced with a "false" NGO campaign on child labour and human rights violation by its industry, World Trade Organisation (WTO) chief Pascal Lamy said environment is linked with the multilateral trading system which must play a "bigger role" as required in the Doha Round.
"There is no doubt in my mind that for the WTO to accomplish bigger things on the environment, it must first complete the first ever environmental negotiating agenda that has been placed before it," Mr Lamy said in his address at the Yale University in the US.

Mr Lamy reminded the global trade negotiators that the Doha Round was the first ever round of negotiations to include an ‘environmental or green chapter'. It was also the "first ever round of negotiations to encourage members to conduct environmental reviews at the national level," he said.

India and many other developing countries have maintained that issues like environment and labour standards should not be linked with the global trade since these norms could well be used as "non-trade barriers" by the developed countries, particularly the European Union where the ‘green movement' is quite strong.

At a time when India is faced with a "false" NGO cam- paign on child labour and human rights violation by its industry, World Trade Organisation (WTO) chief Pascal Lamy said environ- ment is linked with the multilateral trading system which must play a "bigger role" as required in the Doha Round. "There is no doubt in my mind that for the WTO to accomplish bigger things on the environment, it must first complete the first ever environmental negotiating agenda that has been placed before it," Mr Lamy said in his address at the Yale Uni- versity in the US. Mr Lamy reminded the global trade negotiators that the Doha Round was the first ever round of negotia- tions to include an ‘envi- ronmental or green chap- ter'. It was also the "first ever round of negotiations to encourage members to conduct environmental reviews at the national level," he said. India and many other developing countries have maintained that issues like environment and labour standards should not be linked with the global trade since these norms could well be used as "non-trade barriers" by the developed countries, particularly the European Union where the ‘green movement' is quite strong.

Source: DC. 29/10/07

Child labor

Gap unit using India\'s child labour\'

Interna tional clothing firm Gap Inc has called an emergency meeting with its suppliers in India after a report in a newspaper claimed that some of its clothes were made in a sweatshop in New Delhi by using child labour.
The investigation by the Observer has revealed that children as young as 10 years old were found working in filthy conditions in a textile factory in Shahpur Jat area of South Delhi.
The children, working in conditions close to slavery, were producing clothes destined for Gap Kids for the Christmas season. The children, according to the report, revealed that they worked long hours, up to 16 hours a day, without any salary and faced threats and beatings too.
The children said they had been sold to the sweatshop by their families in Bihar and West Bengal and would not be allowed to leave until they had repaid that fee.
The unnamed employer had told the children that they could not be paid as they were trainees.
"I was bought from my parents' village in Bihar and taken to New Delhi by train," a 10-year-old boy called Amitosh is quoted in the report as saying. "The men came looking for us in July. They had loudspeakers in the back of a car and told my parents that, if they sent me to work in the city, they won't have to work in the farms. My father was paid a fee for me and I was brought down with 40 other children. The journey took 30 hours and we weren't fed. I've been told I have to work off the fee the owner paid for me so I can go home, but I am working for free. I am a shaagird (an apprentice). The supervisor has told me because I am learning I don't get paid. It has been like this for four months."
Another boy from West Bengal told the Observer that some of the boys in the sweatshop had been badly beaten.
"Our hours are hard and violence is used against us if we don't work hard enough. This is a big order for abroad, they keep telling us that," young Jivaj, who is described as looking about 12 years old, has been quoted as saying.
"Last week, we spent four days working from dawn until about 1 o'clock in the morning the following day. I was so tired I felt sick," he said with tears streaming down his face.
"If any of us cried we were hit with a rubber pipe. Some of the boys had oily cloths stuffed in the mouths as punishment."
The children were discovered in a filthy sweatshop working on piles of beaded children's blouses marked with serial numbers that Gap admitted corresponded with its own inventory, the report added.
The hand-stitched tops, which would have been sold for about £20, were destined for sale during the Christmas season.
Gap said it was unaware that order for clothing had been improperly subcontracted to a sweatshop using child labour. It also announced it had withdrawn the garments involved and had started an investigation of breaches of the ethical code imposed by it three years ago.
"At Gap, we firmly believe that under no circumstances is it acceptable for children to produce or work on garments," a spokesperson was quoted as saying. "It is clear that one of our vendors violated this agreement, and a full investigation is under way."
Source: Deccan Chronicle, 29th October, 2007

BPOs & Tax

T HE INCOME-TAX DEPARTMENT HAS moved the Supreme Court against its earlier judgement exempting foreign BPO units from tax. Seeking quashing of the court's July 9 order on a case involving a BPO firm Morgan Stanley Advantage Services, the department submitted that the MSAS was carrying out core business activities for the parent and not just back office operations. The court had earlier upheld the authority for advance ruling order that the MSAS was not a permanent establishment as it was performing only back office operations in India and cannot be taxed under the rules.

Source:DC, 29/10/07