No Heartbeat for the Highest Court

(By K. Ramakumar, Sr. Advocate, High Court of Kerala)

“Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless.”Welcome and wise words indeed from the highest Court of the country (See Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle & Ors. (2008 (3) KLT OnLine 1136 (SC) = (2008) 9 SCC 407). The Apex Court later amplified the position inKranti Associates Pvt. Ltd. v. Masood Ahmed Khan  (2010 (4) KLT SN 9 (C.No.10) SC = (2010) 9 SCC 496).

“The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the Judgement of this Court in in A.K.Kraipak & Ors. v. Union of India & Ors., reported in (1969 KLT SN  15 (C.No. 29) SC = AIR 1970 SC 150.”

Long prior to that, in the well-known Mohinder Singh Gill v. Chief Election Commission, New Delhi (1978 KLT OnLine 1006 (SC) = AIR 1978 SC 851), Shri Justice Krishna Iyer in his inimitable style declared as follows,

“Aside from these is yet another, bearing on the play of natural justice, its nuances, non-applications, contours, colour and content. Natural justice is no mystic testament of judge-made juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm of acivilized justice system and minimum of good government – crystallized clearly in our jurisprudence by a catena of cases here and elsewhere.”        (underlining supplied)

A civilized justice system therefore mandates reasoned order and not a cryptic or one-lined one leaving the litigants to conjecture or guess.

A Constitution Bench of the Supreme Court in S.N.Mukherjee v. Union of India (1990 (2) KLT OnLine 1104 (SC) = AIR 1990 SC 1984) had emphasized the need for recordingreasons. Please note the words,

“…including exercise of judicial or quasi-judicial functions.”

The Supreme Court adds,

“Therefore except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons.”

This is because reasons exclude chances of arbitrariness and assures a degree of fairness in the process of decision making.The recording of reasons therefore is very much part not only of the principles of natural justice but also the part of the right to know.
Shri Justice Mathew described reasons as,“the links between the materials on which certain conclusions are based and the actual conclusion”  (See Union of India v. Mohan Lal Capoor 1973 KLT OnLine 1179 (SC) = (1973) 2 SCC 836).Two Division Benches of the High Court of Kerala in Mathew Joseph v. State of Kerala (2021 (2) KLT 925) and Thadevoos v. Kochi Corporation (2022 (1) KLT 65) have echoed the heartbeat theory evolved by the Supreme Court and declared in unmistakable terms the necessity of a “speaking order”, an expression coined by Lord Chancellor Earl Caims. Judgements therefore must speak for themselves and should not be like “the inscrutable face of a sphinx”. See the catena of decisions on the point (See Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjunwala (1961 KLT OnLine 1232 (SC) = AIR 1961 SC 1669), (AIR 1967 SC 1806), Mahabir Prasad Santosh Kumar v. State of U.P. (1970 KLT SN  22 (C.No. 27) SC = AIR 1970 SC 1302), Travancore Rayon Ltd. v. Union of India (1969 KLT SN  37 (C.No. 75) SC = AIR 1971 SC 862),
Woolcombers of India Ltd. v. Woolcombers Workers Union (1974 KLT OnLine  904 (SC) = AIR 1973 SC 2758), See Union of India v. Mohan Lal Capoor (1973 KLT OnLine 1179 (SC) = AIR 1974 SC 87) and Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India (1976 KLT OnLine 1054 (SC) = AIR 1976 SC 1785).

In H.H. Shri Swamiji v. Commissioner (1979 KLT OnLine 1011 (SC) = AIR 1980 SC 1),
the Supreme Court said,

“Reason is the soul of the law and when the reason of any particular law ceases, so does the law itself.”

Large amount of caselaw exists on the point and it is not expedient to refer to all of them. Suffice to say that the principle is far too embedded in our legal system that reasons are not only its soul, and the link, but also its life and its heartbeat.

Every litigant has a right to know for what reasons his case is either rejected or accepted. This is part of his Fundamental Right. It is the backbone of every civilized legal system as well, as decision-making is not confined to administrative authorities but to judicial forums as well. If the right to know is part of a citizen’s right, is he not entitled to know why the highest Court of the country negates his final and pulsating knock at the doors of that Court? The Apex Court however ordinarily rejects a Special Leave Petition filed under Article 136 of the Constitution of India with a one-lined order. The article no doubt states “the Supreme Court may in its discretion”. However the Rules of that Court mandate that every Special Leave Petition must by compulsion state the substantial grounds of law on which the Special Leave Petition is supported.

Yet the Supreme Court rejects a Special Leave Petition ordinarily by a one-lined order: ‘The Special Leave Petition is dismissed’ or ‘We are not inclined to grant special leave.’

Should not the heartbeats and the soul of law and the life-links move the highest Court of the country when the principle of law is that, even a judicial decision must be supported by reasons, discretionary powers not excepted? It is humbly and respectfully submitted – ‘Yes’.

It looks anomalous that the highest Court of the country which commands all authorities whether administrative, quasi-judicial or judicial, to support their decisions with reason, failing,inviting invalidation, does not ensure its own orders are in line with that great principle.

Female Genital Mutilation within the Cultural Context,
Combined with the Insights of Foucault’s Bio-power

(By Dr. Lini Priya Vasavan, Assistant Professor, Government Law College, Thrissur and Non-official Member, Kerala Legal Service Authority)

Underlying cultural and gender dynamics that contribute to the vulnerability of women and girls and Female Genital Mutilation is one among the severe manifestation. Female Genital Mutilation (FGM) refers to the practice of altering or injuring the female genitalia for non-medical reasons.¹  It is often carried out for cultural, religious, or social reasons within certain communities. The evolution of the terminology surrounding Female Genital Mutilation (FGM) reflects a growing awareness of the need for accurate and sensitive language to address this harmful practice. The shift from “female circumcision” to “female genital mutilation” highlights the severity and the violation of human rights associated with the procedure. The term “female circumcision” was criticized for downplaying the severity of the practice and creating a misleading parallel with male circumcision, which is a medically accepted and culturally different practice.²

FGM encompasses various procedures, including Clitoridectomy, Excision, and Infibulation. Clitoridectomy involves the amputation of the clitoris or the removal of clitoral prepuce, while in Excision, either or both the inner and outer labia are cut away. Infibulation is the most severe form, involving the narrowing of the vaginal opening by creating a seal, often through stitching.³

FGM is often deeply rooted in cultural traditions and is seen as a way to control and regulate female sexuality, based on the notion of “religious purity.” However, it’s crucial to recognize that FGM is a violation of human rights and has no medical justification. The physical and psychological effects can be severe and long-lasting, affecting the overall health and quality of life for the individuals who undergo such procedures.⁴

The cultural motivations behind FGM are complex, often rooted in gender norms, societal expectations, and the desire to control female sexuality. The belief that the clitoris is considered a “masculine” part of the female genitalia, and the fear of its potential growth being perceived as larger than the male reproductive organ, reflects deep-seated gender biases and societal norms.It’s important to emphasize that FGM has no medical benefits and can lead to severe health consequences, both physical and psychological. Additionally, there is a crucial need to dispel myths and misconceptions surrounding the practice, as well as to address the potential risks of HIV transmission associated with certain forms of FGM.

The severe complications associated with Female Genital Mutilation (FGM) highlight the urgent need to address and eliminate this harmful practice.⁵The physical and psychological consequences can have profound and long-lasting effects on the health and well-being of women and girls who undergo FGM. Excessive bleeding is a common immediate risk of FGM and can lead to severe complications, including death. The procedure itself causes intense pain, and shock can follow due to the traumatic nature of the experience. Inadequate sterilization of instruments used in the procedure can lead to tetanus, a potentially life-threatening bacterial infection. Difficulty in urination is a common complication that can result from FGM. The cutting and alteration of genital tissues can lead to ulceration and injury, causing further complications. The open wounds resulting from FGM are susceptible to infections, which can affect both the genital region and the urinary tract. Infections can lead to systemic conditions like fever and septicaemia, which can be life-threatening,  FGM increases the risk of complications during childbirth, including prolonged labor, increased need for cesarean sections, and harm to both the mother and the newborn.⁶  The scarring resulting from FGM can lead to the formation of keloids, raised overgrowths of scar tissue, Chronic bleeding and infections associated with FGM can contribute to the development of anaemia.

Long-term consequences include the formation of cysts and abscesses, which can cause ongoing health issues, FGM can result in damage to the urethra, leading to problems such as unrestrained urinary flow. The altered genital anatomy can cause pain during sexual intercourse and lead to sexual dysfunction. FGM can result in heightened sensitivity, contributing to ongoing discomfort. Certain forms of FGM have been associated with an increased risk of HIV transmission, emphasizing the broader public health implications, Beyond the physical consequences, the psychological impact of FGM can include trauma, anxiety, depression, and long-term emotional distress.⁷

FGM is considered a violation of human rights and the World Health Organization (WHO) and various human rights organizations have been actively working to raise awareness about FGM, its consequences, and to eliminate this harmful practice.

The UN General Assembly and the Commission on the Status of Women have adoptedresolutions to ban FGM worldwide. Several countries, including some U.S. states and 28 African countries, have specific laws against FGM. Burkina Faso, in 2020, urged global governments to take a comprehensive, multisectoral, and rights-based approach to eliminate and prevent FGM.⁸ In conjunction with international organizations, governments, and NGOs play a crucial role in advocating for the eradication of FGM, supporting affected communities, and promoting gender equality. Additionally, healthcare professionals are essential in this effort.9

In contrast, there seems to be a challenge in India, where there’s resistance to acknowledging the persistence of FGM. Costa Rica, during the Universal annual review of Human Rights at the UNHRC session, urged India to take progressive steps to prevent FGM from the country. The report from Sahiyo,¹⁰a non-governmental organization working against FGM in India, highlights the prevalence of Khafd¹¹within the Dawoodi Bohra community. The religious leaders of this community affirm that the practice is legal and must continue. Despite being categorized as a form of FGM by the UN, the lack of specific legislations in India to prohibit this practice means that it continues legally. This absence of legal provisions is seen as a violation of the rights and freedom of women within the Dawoodi Bohra community. The issue gained international attention when cases related to the Bohra communities practicing FGM were reported in Australia and the United States. The international legal arena has acknowledged FGM as a human rights violation, and cases outside India have prompted legal scrutiny. The Ministry of Women and Child Development initially called for the Bohra community to voluntarily stop the practice or face criminalization. However, the Government later reversed its stance, claiming a lack of official data on the existence of FGM in India.

It is noteworthy that the absence of specific references to FGM in the Quran, and the practice has been banned in several Muslim-majority countries.¹²The religious text followed by the Bohra community, Daim al-Islam, does endorse the practice of Khafz contributing to its continuation. The complexity of the issue, involving religious beliefs, legal considerations, and human rights, underscores the challenges in addressing FGM within specific cultural and religious communities.

The complex interplay between cultural practices, religious beliefs, and legal considerations underscores the challenges in addressing and eradicating FGM in India. Ongoing efforts, both at the legal and societal levels, are crucial for meaningful progress in eliminating this harmful practice and protecting the rights of women and girls.The Public Interest Litigation (PIL) filed by Sunitha Tiwari on FGM was admitted by the bench led by then Chief Justice Ranjan Gogoi.¹³  The Supreme Court expressed explicit concerns over the health of girls and women, emphasizing the harmful effects of the practice. The Court suggested scrutinizing female circumcision through the lens of the Protection of Children from Sexual Offences (POCSO) Act, asserting that if women do not want it, it cannot be imposed.It also highlighted the need for even essential religious practices, like FGM, to pass the test of constitutional morality. The protection of women’s rights, including bodily integrity and autonomy, was a central concern. The PIL was bundled with other petitions addressing women’s rights in various religious contexts, reflecting a broader examination of issues related to gender equality and equity.

The PIL filed was referred to a seven-member bench in 2019, which was later confronted with overarching religious questions. A review bench constituted in November 2019 referred the matter to a nine-member bench. The court’s consideration of various issues related to women’s rights, combined with constitutional morals, was deemed necessary for a comprehensive and coherent judgment.14The Supreme Court of India has, in various instances, emphasized individual autonomy and bodily integrity. Recent judgments, such as the one stating that bodily integrity is protected under Article 21, affirmed that individuals cannot be forced to be vaccinated.¹⁵

The participation of the State Government and the Supreme Court in this process is analysed in this context through the Foucault’s concept of bio-powerie. the State’s capacity to regulate individuals by controlling their bodies.¹⁶ Concept of biopower describe the ways in which modern States exert control over populations through regulation of life itself. It involves the management and control of populations through various institutions and practices, including health policies, surveillance, and other forms of social regulation.The State, through various techniques, seeks to use bodies as a means to control populations. The acknowledgment that female bodies are treated as property, regulated through the practice of FGM, presents an opportunity for the Supreme Court to examine the role of the State in regulating women’s bodies. According to Foucault, the human body is the site through which power is exercised. FGM, as a practice, fits within the Foucauldian conception of using bodies to control populations. In the case of khafz, it is argued that such mutilation is necessary for the attainment of purity, contributing to the control of women’s behaviour and restricting their bodies solely for reproduction.Foucault’s concept extends beyond the State to include institutions such as religious establishments. The prescription of women’s bodies, negating their right to bodily autonomy and privacy, is seen as an exercise of biopower by institutionalized religion. The Dawoodi Bohra community’s claim that FGM is necessary for purity aligns with the notion of using bodies to control behaviour within a religious context.Foucault discusses bio-politics, where biological issues become subjects of political discourse and policy development. Issues related to women’s bodily autonomy, such as FGM, are debated politically.

In India, the practice of khafz within a minority religious community becomes a subject of political discussion, often under the banner of religious freedom. It is emphasized that the Supreme Court should recognize the rights of women and children to control their bodies and challenge religious claims to govern them. This aligns with the idea that biopower should be justified rationally, and explanations regarding the protection of life, well-being, and health play a crucial role in nurturing biopower.

In applying Foucault’s bio-power framework to the issue of FGM allows for a nuanced understanding of how power operates in the regulation of bodies, particularly within religious and cultural contexts. It provides a theoretical lens through which the Supreme Court can critically examine the practice of khafz and its implications for the rights and autonomy of women and children.

In conclusion, the efforts to combat FGM should be comprehensive, involving a combination of legal, educational, and healthcare measures. By addressing the root causes, raising awareness, and providing support to those affected, societies can work towards eliminating this harmful practice and promoting the rights and well-being of women and girls worldwide.The efforts to address FGM involve not only raising awareness but also implementing legal measures to prohibit and penalize the practice. Community engagement and education are essential components of any strategy to eliminate FGM, as it is often deeply embedded in norms and beliefs. Empowering women and girls with knowledge about their rights and providing support for those who have undergone FGM are critical steps toward ending this practice.The process including raising awareness, advocating for legal measures, and providing support for affected communities. These efforts could eliminate the practice, protect the rights of women and girls, and promote gender equality on a global scale.

Foot Note:

1.Dame Karlene Davis and Christine McCafferty, Female Genital Mutilation, Radcliffe Publishing, Oxford, Seattle, p.1, 24 (2005).

2.Bret L. Billet, Cultural Relativism in the Face of the West, The Plight of Women and Female Children, Palgrave MacMillan, 2007.p.46-53

3.Female Genital Mutilation/Cutting, A Statistical Exploration, UNICEF, 2005.

4.Charlotte Proudman, Female Genital Mutilation When Culture and Law Clash, Oxford University
Press, OX26DP, United Kingdom, p.45-47.

5.   Kyoko Nakamura, Kaori Miyachi, Yukio Miyawaki, Makiko Todo Editor, Female Genital Mutila-tion/Cutting, Global Zero Tolerance Policy and Diverse Responses from African and Asian Local Communities,Springer.

6.A systematic review and meta-analysis of the consequences of female genital mutilation on maternal and perinatal health outcomes in European and African countries, Fatoumata Syllal, Caroline Moreaul, Armelle Andro, accessed from  https://gh.bmj.com/content/5/12/e003307.

7.Health care providers’ and mothers’ perceptions about the medicalization of female genital
mutilation or cutting in Egypt: a cross-sectional qualitative study, Omaima El-Gibaly, Mirette Aziz and Salma Abou Hussein, BMC International Health and Human Rights, 19, Article Number 26 (2019), accessed from https://bmcinthealthhumrights.biomedcentral.com/articles/10.1186/s12914-019-0202-x.

8.Ngianga, Bakwin Kandala, Paul Nziga Komba, Female Genital Mutilation around The World, Analysis of Medical Aspects, Law and Practice, Springer, p.206-233.

9.Kopelman LM. Female circumcision/genital mutilation and ethical relativism. Second Opin. 1994, 20(2), p.55-71.

10.This was the first such large-scale survey on the subject and Sahiyo conducted it from July
2015 to January 2016. Nearly 400 Bohra women from around the world answered the
questionnaires emailed to them through the snowball method, and Sahiyo found that 80% of
the respondents had been cut. Female Genital Cutting, A media Workshop conducted by
Sahio. Accessed from sahiyo.org/images/resource-pdf/media-workshop-report-for-fgc_updated_
all-pages.pdf

11.Caroline Lisa,Talking about Female Genital Mutilation A Guide to Safeguarding for Professionalswho Work with Children, Routledge, 2022, p.24,76.

12.Social effect and female genital mutilation (FGM) OUEDRAOGO, Salmata Université de Sherbrooke, HEC Montréal. P.15.

13. In  the  case  of  Sunita  Tiwari  v.  Union  of  India (2018 (3) KLT OnLine 3177 (SC) = (2019) 18 SCC 719),
which has recently been referred to a constitutional bench, a comprehensive set of remedies is being pursued. It advocated for a comprehensive prohibition of the practice of female genital mutilation in India. Urged the court to declare it a criminal offense, characterized by cognizability, non-compoundability, and non-bailability. Additionally, the plea calls for the court to issue directives to the State, urging the formulation of more stringent laws to address and prevent this practice. Further seeked a declaration from the court regarding the illegality and unconstitutionality of the practice, thereby reinforcing the stance against female genital mutilation within the legal framework.

14. Kantaru Rajeevaru v. Indian Young Lawyers Association(2019 (4) KLT OnLine 3029 (SC) = (2020) 2 SCC 1). The Supreme Court’s recent decision involves the referral of the Sabarimala temple case, along with three other pending cases addressing women’s rights in religious
contexts, to an expanded seven-judge constitution bench. This places the Apex Court in
potentially contentious and conflicting legal territories. The newly constituted bench is entrusted with the challenging task of striking a balance between the Right to Freedom of Religion and other constitutionally-guaranteed rights, particularly the Right to Equality.

15. Jacob Puliyel v. Union of India (2022 (3) KLT SN 55 (C.No.43) SC = 2022 (3) KLT OnLine 1003(SC) = Writ Petition (Civil) No. 607 of 2021, is notable for its comprehensive reflection on the significance of upholding personal autonomy. The court underscored that any mandate conflicting with personal autonomy must be based on sound reasoning and proportionality. The judgment reinforces the existing legal stance that any unwarranted infringement upon personal autonomy is deemed unconstitutional. Moreover, it establishes that executive decisions in such matters, even those related to critical public health, are subject to judicial review. This reaffirms the principle that the protection of personal autonomy is paramount, and any limitations must be justifiable and proportionate under the law

16.Michel Foucault, Power: The Essential Works of Michel Foucault 1954-1984, Penguin Books Limited, 2019.Also see Nick J. Fox, Foucault, Foucauldian and Sociology, the British Journal of Sociology, Vol.49, No. 3, 1998, p. 416, for similar results also check- Bingham, Charles W, A Dangerous Benefit: Dialogue, Discourse, and Foucault’s Critique of Representation, Interchange, 2000, p 354. Michel Foucault (1926-1984) emerged as a preeminent intellectual of the twentieth century, significantly impacting various fields such as history, sociology, philosophy, and literary criticism, and standing out as a key figure in postwar France. His influential body of work has left a lasting imprint on these disciplines, shaping scholarly conversations and prompting critical reflections on power, knowledge, and societal structures. Michel Foucault’s concept of “biopower” is a key element of his later work, particularly explored in his lectures and writings from the 1970s. Biopower refers to the ways in which modern States and institutions exercise power over individuals and populations by regulating and controlling various aspects of life, particularly in terms of health, reproduction, and overall well-being.

The Marrakesh Treaty and the Indian Copyright Act Amendment: Have they Really Benefitted the Differently Abled ?

(By Dr. Raju Narayana Swamy, IAS)

Introduction

In 2013, the Member States of the WIPO adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled.  The Treaty addresses the ‘book famine’ – a nomenclature for the low number of books and other copyright protected material that is accessible to the visually impaired.  To quote none other than the President of the World Blind Union, “The Marrakesh Treaty is much more than a Treaty about books.  It is a historic human rights instrument.  Access to published works means the potential for blind and partially sighted children and adults to live integrated, productive lives.” 

As the preamble proclaims, “The aim of the Treaty is to build a solid foundation to ensure the widespread dissemination of accessible material recognizing that many Member States have established limitations and exceptions in their national copyright laws for persons with visual impairments or with other print disabilities, yet there is a continuing shortage of available works in accessible format for such persons.” To put it in simple terms, the Treaty addresses copyright as barrier to accessibility. It requires its contracting parties to adopt exceptions to their copyright laws to allow making, distributing, exporting and importing copies in accessible formats. It requires the Member States to ensure that they comply with the obligations under the Berne Convention, the TRIPS Agreement and the WCT (WIPO Copyright Treaty). This is because the copyright works that are in the centre of the ‘book famine’ problem are governed by these instruments.

In June 2014, India became the first country to ratify the Treaty.  On September 30, 2016,  the Treaty came into force by formally gathering 20 nations that acceded the Treaty (viz) India, El Salvador, UAE, Mali, Uruguay, Paraguay, Singapore, Argentina, Mexico, Mongolia, Republic of Korea, Australia, Brazil, Peru, Democratic People’s Republic of Korea, Israel, Chile, Ecuador, Guatemala and Canada.

The Background

Electronic text is more accessible than printed books.  For a blind person in a physical library, the only option to access the information is to have it read out loud.  On the contrary in the case of a text file, it can be sent to a braille display or alternatively text-to-speech software can be used to read it out loud.  Thus compared to paper and ink, text files are wide open to the blind. In fact, today technological advances have enabled the visually impaired to access material in ways that might have been qualified as fanciful some decades ago.  These include Screen Readers, Talking Newspapers (audio recordings of news articles in newspapers), Magnifiers, Optical Character Recognition (OCR), Braille Translation software and the like .

But Digital Rights Management (DRM) - which is often used to lock down content – can restrict those uses.  Moreover law continued to lag behind and it was almost impossible for the blind to access a wide cornucopia of works without the permission of copyright owners.

Beginning in 2004, WIPO examined access to works for the blind.  A WIPO study in 2007 estimated that only about 5% of published books are available in an accessible format.  For the rest, if the book is to be read, someone must convert it in to an accessible format.  A series of discussions lasting nearly a decade led to the Marrakesh Treaty. As countries change their laws to allow making accessible format copies of works, this will allow the conversion of a greater portion of works to accessible formats. The biggest change ushered in may be that as people create accessible copies, they can share them across borders.  This means that the cost and effort to convert something to an accessible format is less likely to be duplicated globally.

Salient Features of the Treaty

a) Works Covered

Article 2(a) of the Treaty defines “works covered.”  This refers to the types of material which can be transcribed or distributed under the terms of the Treaty. Works such as literary and artistic works in the form of text, notation and/or related illustrations  made publicly available in any media have been covered.  This definition is rather narrow as it does not cover photographic works,  cinematographic works, sound recordings, dramatic works, broadcasts, performances etc.  The exclusion of audio visual works, films and data bases is an unfortunate choice.

b) Beneficiaries

Article 3 of the Treaty defines “Beneficiary Persons”.  The beneficiaries under the Treaty includes.

1.    Blind persons

2.    Persons with visual impairment that prevents them from reading like a normal person and

3.    Person who cannot hold or manipulate a book or move eyes like a normal person to read a work.

Visually Impaired Persons or dyslexic persons, it needs to be mentioned here, range from those with only light impairment to the inability to read  a text without   assistive technology.

The inclusion of ‘print disabled’ - anyone who cannot access print  due to any form of disability – as a beneficiary furthers the objective of nondiscrimination and  equal opportunity.  It reminds us of the concept articulated by George Kerscher to describe persons who cannot “access print because of a visual, physical, perceptual , developmental, cognitive or learning disability.”However it does not cover people with auditory issues, mental disability etc, who also have problems with accessing printing works.  Moreover, Article 3 does not clarify the qualifying indicators for ‘blindness’, ‘visual impairment’ etc.  The Treaty leaves the specifications of the spectrum of impairments and disabilities to be decided by national laws – hoping that all nations follow a social model of  disability and include all who are in real need.

c) Authorized Entities and Cross Border Exchange

Article 2(c) of the Treaty defines “authorized entity” as an entity that is authorized or recognized by the Government to provide education, instructional training, adoptive reading or information access to beneficiary persons on a non-profit basis.  The Article specifically states that authorized entity also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations. It is worth mentioning that to qualify as an authorized entity there is no specific process.

Article 4(2) seeks to address the exceptions created by the member states in their national copyright laws.  It seeks to permit authorized entities, without the authorization of the copyright right holder, to make an accessible format copy and supply these copies to beneficiary persons by any means, including non-commercial lending or by electronic communication when all of the following conditions are met:-

  i)  the authorized entity wishing to undertake the said activity has lawful access to that work or a copy of that work.

  ii)   no changes are introduced other than those needed to make the work accessible to the beneficiary person.

  iii)  such accessible format copies are supplied exclusively to be used by beneficiary persons and

  iv)   the activity is undertaken on a non-profit basis.

To put it a bit differently, this gives them the right to reproduce, the right to distribute, the right to make it available to public and the right to make changes to the work to convert it in to an accessible format.

Article 5(2) which deals with cross border exchange of accessible format copies specifies that a contracting party may fulfill Article 5(1) by providing a limitation or exception in its national copyright law such that authorized entities shall be permitted (without the authorization of the right holder) to distribute or make available for the exclusive use of beneficiary persons accessible format copies to an authorized entity or to a beneficiary person in another Contracting Party.  Read with Article 6, it gives authorized entities access to the material from the importing country without the prior consent of the copyright owner.

Thus the Marrakesh Treaty mandates national laws to allow cross border exchange of works in accessible format provided the following conditions are met:-

  a)    Accessible works are exclusively distributed to differently abled persons.

  b)   The Three Step Test as laid down in the Berne Convention and later in TRIPS and     WCT is satisfied.

       i)  The exception or limitation must be a special case.

       ii)  It does not conflict with the normal exploitation of the work and

       iii)  It does not prejudice the legitimate interests of the copyright holder.

To be true to facts, Article 11 orders that Governments carve exceptions so as to make sure that the interests of authors are not unreasonably prejudiced.

The Indian Saga

On May 17, 2012 – much before the Marrakesh Treaty came into picture – the Indian Parliament introduced a rather liberal disability friendly copyright exception.  More specifically under Section 52 of the Act, which concerns fair use dealing, Section 52(1)(zb) was introduced which exempts from infringement “the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format by

  i) any person to facilitate persons with disability to access to works including sharing with any person with disability of such accessible format for private or personal use,  educational purpose or research or

  ii) any organization working for the benefit of the persons with disabilities in case the normal format prevents the enjoyment of such works by such persons.

Provided that the copies of the works in such accessible format are made available to the persons with disabilities on a nonprofit basis but to recover only the cost of production.  Provided further that the organization shall ensure that the copies of the works in such accessible format are used by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business.”

Thus the section brings with its ambit the following broad kinds of activities:-

  i)     Conversions by the disabled persons for his/her own use and for sharing with others in the community.

  ii)    Conversions by third parties (individuals or organizations) working for the benefit of the disabled on a nonprofit basis.

In case the conversion and distribution are done for profit, the concerned entity will have to apply under Section 31 B (Compulsory License for benefit of disabled).

The Indian copyright disability exception marks a watershed in the history of copyright and disability jurisprudence The provisions therein apply not just to the visually impaired, but to the disabled in general.  It was the culmination of more than a decade of concerted advocacy by a diverse and disparate group of experts.  It helped build significant momentum for an international treaty.

ABC & Sugamya Pustakalaya

No discussion on the Marrakesh Treaty will be complete without a reference to the ABC(Accessible Books Consortium) which is a public private partnership led by the WIPO.  It includes libraries for the blind, standards bodies, organizations representing authors, publishers and collective management organizations apart from of course organizations that represent people with print disabilities such as the World Blind Union.  The goal of ABC is to increase the number of books in accessible formats worldwide and to make them available to the visually impaired.  On the Indian front, Sugamya Pustakalaya represents the country’s largest collection of online accessible books.

The field reality in India

Several studies have been conducted on whether the provisions in the Indian Copyright Act have been effectively used for the benefit of the visually impaired persons and  whether the amendments therein have offered any ideal benefits to the disabled community such as bringing them closer to the copyrighted material.Of these, special mention must be made of the research paper by Ms.Anjana Girish and Ms.Saraswathy Vaidyanathan which concludes that although India has hit the mark in drafting suitable legislation, there are deficiencies in its implementation. To quote just an example, even State Government websites used for payment of employees’ salaries are inaccessible to visually impaired persons as it is not compatible with screen reading assisting software.

The study highlighted:-

●     The provisions in the Marrakesh Treaty to facilitate cross border exchange of accessible format copies has been scarcely utilized.

●     Awareness of copyright law and needless to say of the amendment therein is abysmally low.  In fact even government functionaries are unaware of the policy per se and the beneficial provisions.

●     Limited financial help or capacity and low technical capacity

●     Poor communication with authorities with respect to grievance redressal

●     Lack of volunteers to convert literature texts to audio books.

●     No steps are taken to ensure that the accessible format copies are available in regional languages.  This creates a barrier in the holistic development of the visually impaired community.

To put it in simple terms, incorporation of the provisions beneficial to the visually impaired persons has not aided in improving their access to copyright works. This is an alarming situation which calls for immediate intervention.  One possible  solution could be issue of a mandatory directive to publishers with respect to printing multiple accessible formats like the United States.  Another step could be to ensure that websites are designed with a World Wide Web Consortium (W3C) format which makes every content available to visually impaired persons.  Public libraries need to be mandated to devote space for the blind. Needless to say,  all these have to be preceded by serious conscientisation efforts  and establishment of a database comprising of audio books.  Only a multi stakeholder approach in collaboration with all the key players - governmental bodies, authorized entities  etc - can save the day.  Otherwise the fruits of the Marrakesh Treaty will never reach the 63 million visually impaired people in the country – of whom 8 million are blind.

Conclusion

The Marrakesh Treaty symbolizes an attempt to bring in a more balanced approach between authors and users and marks a huge step forward towards inclusivity.  It underlines the need for social integration and cultural participation of the 285 million visually impaired people across the globe - of whom 39 million are blind.  It is to be viewed in the back drop of the reality that the shortage of accessible materials for them is due in part to gaps in international and national IP laws. Its importance lies in the fact that it is the first time human rights principles are enshrined in an international copyright treaty.

The Marrakesh Treaty is part of a growing body of internationally recognized disability rights law and involved a decade of negotiation and advocacy.  It follows the rapid and widespread ratification of the CRPD (Convention on the Rights of Persons with Disabilities) which recognizes the rights of equality and non – discrimination, the right to accessibility, the right to education and the right to participate in political and cultural life among others.  States that comply with the Marrakesh Treaty also may be able to better respect, promote and protect rights contained in the UDHR.

Copyright, it must be mentioned here, is perceived as a hindrance to the free flow of information.  The main reason why copyright owners are reluctant to provide accessible format copies for the disabled is that they feel the market that caters to visually impaired persons’ needs is unprofitable.  Therefore they are not considered by the publishers as a commercially viable customer group.  Another concern of publishers is that  converted books are also often used by persons who are not visually impaired, thereby leading to a loss in the market. 

To put it more succinctly, the intersection of technology, market failure and copyright laws creates a complex access dilemma for the visually impaired, depriving them of equal opportunity.  It is in this background that the Treaty is to be viewed – as the first international legal instrument that seeks to address a specific impediment (i.e.,) the issue of book famine for the visually impaired.  Though the Treaty does not take into account the interests of persons with other disabilities, it is no doubt a step in the right direction.  It proves that positive change can be made even in giant global institutions and against great odds.  But the picture in the field is not so rosy.

Despite perceptions to the contrary, the rise of internet availability and mobile communications technology does not mean automatic accessibility for vision impaired persons.  The logistic of practical access and integration with educational opportunities remain challenging. Conversion of books to Braille, large audio or electronic files  requires political will, time and resources that not all Governments have been willing to support.  However the progressive developments recognizing State obligations to respect, protect, promote and fulfill the rights of persons who are differently abled in the backdrop of advocacy by DPOs (Disabled Persons Organisations) is a silver line in the horizon.  One can only hope and trust that the glorious day on which the noble objectives of the Marrakesh Treaty are realized in letter and spirit is not too far away.

References

1.   N cube CB, Reid BE, Oriakhogha DO, “Beyond the Marrakesh VIP Treaty: Typology of copyright access – enabling provisions for persons with disabilities”, JWorld Intellect Prop. 2020 : 23.

2.   Lida Ayoobi, “The Marrakesh Treaty, Fixing International Copyright Law for the  Benefit of the Visually Impaired Persons”, New Zealand Journal of Public and International Law 2015 : 13.

3.   Rahul Cherian Jacob, Sam Taraporevala and Shamnad Basheer, “ The Disability Exception and the Triumph of New Rights Advocacy”, NUJS Law Review, 2012 : 5.

4.   Marketa Trimble, “The Marrakesh Puzzle”, International Review of Intellectual Property and Competition Law, 2014 : 45.

5.    Abbe Brown and Charlotte Waelde, “Human Rights, Persons with Disabilities andCopyright”, in Research Handbook on Human Rights and  Intellectual Property edited by C.Geiger, Cheltenham, Edward Elgar Publishing, 2015.

6.   Aaron Scheinwald, “ Who could possibly be against a Treaty for the Blind ?” Fordham Intellectual Property, Media & Environment Law Journal, 2012 : 22(2).

7.  Convention on the Rights of Person with Disabilities and its Optional Protocol 2515 UNTS 3 (opened for signatures on 30 March 2007, entered into force 3 May, 2008).

The Role of the Judiciary in the Empowerment of Indian Women

(Speech by Hon’ble Mrs. Justice B.V. Nagarathna, Judge, Supreme Court of India,
in the 28th Justice Sunanda Bhandare Memorial Lecture, organized by
Justice Sunanda Bhandare Foundation, New Delhi on 5th January, 2024*)

Namaskar and a very Good Evening to All.

Hon’ble Shri Justice Manmohan, Acting Chief Justice, Delhi High Court, who was my classmate in the Campus Law Centre, Delhi University between the years 1984 and 1987,

Shri Fali S.Nariman, learned Senior Advocate, who, besides being a sterling constitu-tionalist, has also been a forthright votary of gender justice,

Shri M.C.Bhandare, learned Senior Advocate and life long companion of Justice Sunanda Bhandare and his family.

Justice Madan B. Lokur, Former Judge, Supreme Court of India and the Chairman of the Justice Sunanda Bhandare Foundation, along with its other office bearers, Rahul Bhandare (Justice Bhandare’s son) and Manali Singhal (Justice Bhandare’s daughter).

Hon’ble Judges who are present – Both Sitting & Retired

Learned Senior Advocates and Members of the Bar,

Distinguished invitees,

Members of the Media,

Ladies and Gentlemen and all present through digital media.

I deem it a privilege to deliver the 28th Sunanda Bhandare Memorial Lecture and make my humble contribution to the stream of socio-legal thinking that this memorial lecture series signifies.

I thank the office bearers of Justice Sunanda Bhandare Foundation and particularly Mr.Murlidhar Bhandare and his family for this opportunity because I have always believed that a legal culture that would not remember its icons would recede into what, Dr.Upendra Baxi observes, a ‘world of unjust amnesia - a world without memory or history.’¹

Born on 1st November 1942, Justice Bhandare was a trailblazer. She wasrecommended for appointment as an Additional Judge at the young age of 42 on 1st June 1984 and as Permanent Judge on 12th March 1985. I fondly remember that Late Justice Bhandare and Sri Muralidhar Bhandare had visited our home in Delhi and met my father just before her elevation as a Judge of the Delhi High Court. I have known of the illustrious legacy of Justice Bhandare as a Judge and an advocate who, through her exemplary virtues of head and heart, demonstrated an unsurpassable combination of excellence and empathy. She was not only a compassionate and strong judge and a versatile lawyer, but also a remarkable daughter, a doting daughter-in-law, a loving wife, and a mother. She considered the law as an instrument of social progress and judiciary as an active facilitator of the progressive realisation of human rights.²

It is said that even a monarch has to obey when fate summons. Even though she did not live for long, she has left behind her a great legacy to be continued by her family and well-wishers. I think that but for her untimely demise, she would have perhaps become the first woman to grace the office of the Chief Justice of India.

While still an undergraduate in Bombay, Sunanda married Murlidhar. She graduated after their first child, Rahul, a son was born. The birth of a daughter Manali, followed soon after and it was only then that she joined the Law College, subsequently getting a first division in her law examination.

Justice Sunanda Bhandare was a young mother of two when she was enrolled on the rolls of the Maharashtra Bar Council. She shattered the widely held belief that a woman succeeds at work only at the cost of her home. Maintaining a fine balance between professional and personal life, she went on to make exemplary contributions to the legal profession and jurisprudence. Speaking at a seminar on the problems and concerns of women organized by the United Lawyers Association she remarked, “A woman’s place in society marks the level of civilization.”

Since she was both vivacious and versatile, her collection of art was only rivalled by her deep immersion in the world of music, especially classical music.

Since the family’s move to New Delhi in 1970, Sunanda began practising in the Supreme Court. She was a popular member of the Bar and was elected to the Supreme Court Bar Association as Vice President with the highest percentage of votes ever in favour of any candidate. One of the most impactful contributions that Justice Bhandare made as an advocate was in the Bai Tahira v. Ali Hussain Fissalli Chothia case³ in which Justice Krishna Iyer ruled that a divorced Muslim woman was entitled to maintenance from her former husband.

The true measure of a Judge’s character and personality is through her judgments. Before proceeding to deliver my lecture, I deem it fit to mention a few judgments of Justice Bhandare that have not only endured the test of time and circumstance but contributed to the glowing constellation of judicial opinions that have preserved constitutionalism and the rule of law.

Justice Bhandare’s judgments on criminal law and procedure reflect a strong ethical commitment to constitutional rights that ought to be essential guard rails in any prosecution. She allowed a writ petition challenging the order of preventive detention in Harbhajan Singh Jaura @ Doctor v. Union of India 46 (1992) DLT 82 by propounding a relief-realizing construction to the word “as soon as may be” occurring in Article 22(5) of the Constitution. Deprecating the delay caused by the bureaucratic practice of calling for comments from different departments and secretaries, Justice Bhandare asserted that the representation made by a detenue seeking reasons for detention should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay.

It is no wonder that she is remembered today as a Judge who was humane and independent. She believed passionately in the dignity of individuals and the right to equality.

Her judgment in service law is testament to the golden rule that the “the history of personal liberty is largely the history of insistence upon procedure.”⁴ Authoring the opinion for the Full Bench of the Delhi High Court in Ex.Major N.R.Ajwani v. Union of India (55 (1994) DLT 217), Justice Bhandare held, that persons subject to the Army Act are entitled to certain procedural safeguards in the matter of termination of their services. Notwithstanding the textual exclusion of defence services from the protective umbrella of Article 311 of the Constitution, Justice Bhandare reasoned that the doctrine of camouflage being a safeguard against punitive termination, would be a facet of judicial review. Hence, the court was empowered to determine the true character of the order under challenge where it apprehended that power was used for a collateral purpose. Therefore, even though defence personnel served at the pleasure of the President in terms of Section 18 of the Army Act, their right to non-arbitrariness would be deserving of judicial protection.

Justice Bhandare delivered this judgment just two days before she left for her last treatment to England. Her act of delivering this erudite judgment amidst extreme pain and with a body ridden with disease is perhaps monument of all the personal discomfort and sacrifice that judges endure to uphold the oath of their office in full measure.⁵ It is a matter of relief, her judgment came to be affirmed by the Supreme Court, one week after her death.

Having paid my tribute to the living memory of Justice Bhandare, I shall speak on the ‘Role of the Judiciary in the Empowerment of Indian Women.’

Freedom Movement

Before elaborating on the subject, it is essential to underline the aspirations that our Founding Mothers had for our Constitutional Republic, and how these aspirations shaped the grundnorm of our polity. I begin by quoting from a speech made by a legendary freedom fighter Rajkumari Amrit Kaur in 1932, at Jalandhar:

“The women of India are no longer willing to submit to standards, whether local, political or ethical, which have been set for them by the male conscience of the community; we are passionately aware that such standards have often been allowed to imply the complete subordination or even degradation of whole classes of women; we are aware of the necessity of finding and being judged by our own standards of free human beings, voluntarily accepted; we are determined to face the facts of life, to fight the battles of our sex and take the risks.” ⁶

This solitary statement is a roaring reflection of the socio-political churn that crystallised into the constitutional values of gender equality and justice. As a student of history, I have always viewed the anti-colonial struggle as not merely a quest for political independence but a mission of social transformation and moral and spiritual recovery. Gender justice, as reflected in the concomitant struggles for abolition of sati, widow remarriage and women’s education, was nothing short of the cornerstone of this moral mission.

The freedom movement and our founders imagined a new Indian woman with ‘a complete individuality and self-sufficiency.’ A bare glance at the preamble as well as the chapters on Fundamental Rights and the Directive Principles of State Policy shows that our Constitution sought to break the shackles of gender-based discrimination and disadvantage.

1.  The preamble, read with Article 25(2)(b) and Article 38 accentuates the crying need for a just social order.

2.  The right to equal protection and right against non-discrimination under Articles 14, 15(1), 15(2) and 23 outlaw all forms of prejudice, stigma, stereotypes and exploitation against women;

3.  Article 15(3), read with Articles 39(a), (d), (e) and 42 (maternal health) reflects a strong commitment towards special measures to ensure equality within both the public and private spheres, a concept which has been given an impetus by none other than the Hon’ble Chief Justice of India Dr.D.Y.Chandrachud.

4.  Article 16 and 46, concerning equal opportunity and advancement of weaker sections, further deepen the resolve to enhance women’s voice and participation in public services and education.

The Indian judiciary has played a yeoman’s role in the noble national endeavour for gender equality. The institutional role of the judiciary in this quest has three distinct, yet intersecting dimensions:

First,the judiciary has subjected gender-biased laws, policies and norms to constitutional scrutiny. Thus, the courts – as guarantors of equal protection - have played a critical role in ensuring that non-discrimination and fairness emerge as the central governing principle of state policy in all spheres of public life.

Second,the judiciary has amplified special laws and policies enacted for women by accentuating the constitutional intent. Therefore, it has assumed the role of ‘affirmative action enabler’ by ‘reading up’ statutes which protect and preserve women’s rights and striking down those laws which discriminate against women.

Third,the judiciary has crafted creative remedies to redress systemic injustice and exploitation of women and taken up the role of an initiator of societal reform and transformation.

Guarantors of equal protection

The concept of equal protection requires greater elucidation. Article 14 of the Constitution goes beyond guaranteeing equality before the law which is of quintessence to any republic but also prohibits the State from denying to any person the equal protection of the laws.

What is critical is that the state law or practice aggravates or perpetuates the subordinate position of a specially disadvantaged group.⁷ Another problem area which arises is from state action that in fact discriminates among persons: the discrimination is based on a criterion that seems innocuous on its face and yet nonetheless has the effect of disadvantaging women.

In V.Tulasamma v. Sesha Reddy,⁸ the Supreme Court emphasised how the advent of independence necessitated a transition where old human values assumed a new complex. Thus, in the context of succession by a Hindu woman, the Supreme Court held that abolition of discrimination based on right to property is the prime need of the hour and temper of the times.

The decision of the Supreme Court in C.B.Muthamma v. Union of India⁹  is highly instructive in this regard. The great Justice Krishna Iyer, rendered a judgment finding such disabilities based on marriage to be a facet of stark bias against women, and observed that,

“If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member.”

Personally speaking, I find cultural norms that see women as inferior to men to be highly unscientific, irrational and inefficient.

It naturally follows that equal protection is quite distinct from protectionism. Protectionist laws and practices are those which seek to ‘protect the woman’ or ‘their family’ or‘their community’ by imposing restrictions on the exercise of their rights. However, such so-called ‘protectionist’ laws are bound to suffer judicial scrutiny for violating equal protection of the law.

In a case challenging Section 66 of the Factories Act, 1948, R.Vasantha v. Union of India¹⁰, the Madras High Court unequivocally held that women cannot be excluded from employment during night shifts when they are being employed in the same factory during the two day shifts and denial of employment on the sole ground of sex is violative of Art. 15 and it is discriminatory and therefore unconstitutional.

The Supreme Court had the occasion to scrutinise such protectionist stereotypes in Anuj Garg v. Hotel Association of India¹¹ which concerned Section 30 of the Punjab Excise Act prohibiting the employment of any man under 25 and ‘any woman’ (presumably, on grounds of decency) in premises in which liquor is consumed. The Apex Court held that instead of prohibiting women employment in the bars altogether, the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated.

Of recent vintage is a case where restrictions upon exercise of right to freedom of profession were struck down for disproportionately impacting women. In Indian Hotel and Restaurant Association v. State of Maharashtra¹² the petitioners had challenged Sections 33A and 33B of Bombay Police Act which prohibited dance performances in eating houses, permit rooms, beer bars, and other places, except three-star hotels and government associated places on the ground that it created unreasonable classification of women employed in bars and three star hotels was violative of their right to work under Article 19(1)(g). The Supreme Court held the provisions were violative of Article 14 because there was no justification for treating women differently.

Relatively recently, the Supreme Court scrutinised administrative requirements rooted in stereotypes about women’s ability and physiological characteristics in the Babita Punia and Lt. Col. Nitisha’s cases ¹³  relating to female defence service personnel. The judgments not only protect the right of women to equal opportunity to serve the armed forces at senior positions but as Justice Chandrachud presently the Chief Justice reasoned, it rescues “the true spirit of the equality” from being rendered “superficial and symbolic.”

In a similar vein recently in a judgment that I happened to author, in the case of Association of Old Settlers of Sikkim v. Union of India, I found that the marital status of Sikkimese woman marrying a non-Sikkimese man on or after a particular date was made a basis for denial of income tax exemption meant for Sikkimese subjects. It was noted that no such restriction existed vis-à-vis a Sikkimese man marrying a Sikkimese or a non-Sikkimese woman. Thus, it was held that when a benefit is being given to a Sikkimese individual which would include all genders under the provision, a certain category of married Sikkimese women cannot be deprived of the said benefit of exemption.

Affirmative Action Enabler

Another facet of the judiciary’s role in furthering the cause of gender equality is emphasising the constitutional mandate of laws and policies enacted for the empowerment and emancipation of women, or for prevention of violence and exploitation against them.¹⁴ Equality would be reduced to a mere slogan in the absence of persistent and targeted state action for the empowerment of women. It bears repetition that despite social reform and progress, the social structure remains biased against women. Such bias is pernicious that it afflicts women from womb to tomb.

At the same time, it needs to be mentioned that the enlightened commitment of the Parliament and the Political Executive to its constitutional mandate is manifest in special laws enacted to protect women. The Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (for short, “PCPNDT Act”) reflects this commitment to preventing female foeticide. In this regard, the judiciary is duty-bound to strengthen the hand of other organs of the State to optimize the achievement of the hallowed constitutional objective of equality of women.

Affirmative action to enhance the representation of women in all spheres of public life is a bounden duty of all organs of the State. The cornerstone of the constitutional mandate of affirmative action are the provisions for equitable representation of women in the political realm, and most importantly in local self-governance institutions. One of the achievements that every Indian can be proud of is that we have the largest number of elected women representatives in the world. Judiciary has played a key role in reinforcing the principles of representative governance.

In Karnataka, not less than 50% of the representatives in local bodies must be women. Therefore, 50% is the minimum threshold of membership. In a 2011 judgment authored by me while in Karnataka High Court in T.Venkatesh v. State of Karnataka¹⁵ and State of Karnataka v. Vishwanath¹⁶, - led to the change of the discriminatory Rule 13
of the Karnataka Municipalities (President and Vice-President) Election Rules that forbade two women from holding the office of President and Vice-President in local bodies simultaneously.I found that such a bar was not applicable when it came to reservation in the male category. It was reasoned that when a separate reservation for women had to be compulsorily complied with, in furtherance of Article 15(3) there could not be a further discrimination in that regard. I observed:

“If the intention of the legislation is that 50% of the seats in taluk Panchayat must be reserved for women candidates and 50% of the post for Chairpersons must also be reserved for women candidates, then, the restrictions that two women cannot hold the post of Chairpersons in a Taluk Panchayat simultaneously and two women cannot hold the post of Chairperson consecutively irrespective of the category to which they belong are unreasonable restrictions and antithetical to empowerment of women in a democracy and particularly in the context of local self-government.”

As held by the Apex Court in Madhu Kishwar v. State of Bihar,¹⁷ Article 15(3) of the Constitution of India positively protects such special policies.

Property is one of the important endowments or natural assets to accord opportunity, right to equal status and dignity of person.

Therefore, the Parliament enacted the amendments to the Hindu Succession Act in the year 2005. Supreme Court’s judgment in Vineeta Sharma’s case¹⁸ held that the daughters are entitled to equal share with that of the son in the coparcenary properties. Further, the Supreme Court has clarified in the said judgment that Section 6 is retroactive and not prospective. Therefore, even if partition has taken place but till the actual division of the property is by leaps and bounds, the amended provision can be applied for a recalculation of the shares and for division of properties on an equal footing between the sons and daughters.

Another instance of this commitment towards women, is in the enactment of the Protection of Women from Domestic Violence Act 2005 (‘D.V. Act’, for short). Women MPs especially emphasized how it was critical to ensure access to justice for women to strengthen ‘democracy in our household.’¹⁹

Equal property rights can promote greater social equality between men and women. This can help to reduce harmful gender norms that contribute to domestic violence, such as the belief that men have the right to control women.

I had the privilege of authoring the Supreme Court’s view in Prabha Tyagi v. Kamlesh Devi,²⁰ where the right to a shared household under Section 17 of the DV Act was held to be an independent right and a remedy being available under the Act. The right to reside was interpreted not to be conditional upon the existence of domestic violence, given the social reality of dependence of women, especially young brides in their matrimonial family, on shelter and finance, if they have no independent source of income.

There is no gainsaying the fact that the most enduring protection against economic exploitation within households is the financial independence of women. I often say that women can get into formal workforce but are often hindered from getting up in the profession or career due to the lack of sharing of household duties and responsibilities such as bringing up children or carrying out domestic chores. That is why the 2023 Global Gender Gap report pegged the gender gap score at 68.4%, and said it would take 131 years to equalise earnings between men and women at the current rate of progress.

To correct this mischief of unequal compensation for equal contribution, the Parliament enacted the Equal Remuneration Act, 1976 to mandate that employers to make equal payments to men and women for the equal work done by them. While the gap still persists, it has shrunk from 84% in 1979 to 56% in 2019.

In Mackinnon Mackenzie & Co. Ltd. v. Audrey D’ Costa²¹, the Supreme Court held that the petitioner company therein had an unequal pay structure for male and female stenographers which violated the Equal Remuneration Act, 1976. Justice Venkataramiah concluded that the company’s justification for the pay disparity, namely, female stenographers’work was “confidential” was not a valid reason for paying them less.

But unfortunately, the Supreme Court’s judgments in Nergesh Meerza²²  and Air India Cabin Crew Assn. v.Yeshaswinee Merchant²³  on discriminatory service conditions of female flight attendants leaves much to be desired and calls for a course correction.

After all, learned Senior Advocate Fali S.Nariman, has emphasised that while laws may provide a framework for change, societal attitudes play a more significant role in shaping the professional landscape for women.

The judiciary has advanced the protection of the Maternity Benefit Law to ensure that women don’t have to strike a bargain between motherhood and employment. That is why child care rooms or playrooms for children in offices and child care leave would go a long way for young mothers to balance between their office work/profession and attending to the needs of their children.

Delhi High Court judgment in Inspector (Mahila) Ravina v. Union of India ²⁴  concerned a Writ Petition by a female police inspector who had challenged her omission from the promotion list on the ground that her participation in the pre-promotion course had been delayed because she was pregnant while similarly-placed employees in her batch underwent it. The Delhi High Court held pregnancy could not be considered an impediment for a female employee’s promotion in service.

When I was in the Karnataka High Court, we had a case where a Judicial Officer who was recruited, could not take oath as she had delivered a child on the day of the oath. Question was whether she would lose her seniority. Some of my male colleagues were of the opinion that she would lose her seniority as she had not taken oath on the day she was asked to take. However, on my insistence, the Hon’ble Chief Justice agreed to my view point that a woman should not be deprived of her career prospects merely because of her pregnancy and delivery of the child. The Judicial Officer took oath on the 5th day after her delivery and her seniority was restored in terms of her merit in the recruitment.

I am informed that recently the High Court of Karnataka permitted lady candidate who was over eight months pregnant to write the Karnataka State Judicial Services Exam at her home town so as to avoid travelling to the examination center owing to her delicate phase of pregnancy. It is such sensitivity which would go a long way in empowering woman who, by their physiological and biological nature are the ones who bear and rear a child. Similarly, grant of earned leave after the completion of the maternity leave would go a long way in aiding a young mother to make a transition between nascent motherhood and return to work or engage in her professional duties.

These instances where the judiciary has enabled affirmative action for women should further the march of the law towards gender equality and justice.

Initiator of Social Reform

The Judiciary’s role as the protector of fundamental rights is not limited to checking State action but also in some circumstances, initiating a transformative social dialogue as a part of transformative constitutionalism.

In the landmark Vishaka v. State of Rajasthan²⁵, the Supreme Court facilitated the evolution of a grievance redressal mechanism for survivors of sexual harassment at the workplace by invoking Article 142 of the Constitution. The Supreme Court emphasized the fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment.

Vishakhawas successful in securing wide ranging protections for women at workplacesagainst sexual harassment, a hitherto unprotected area, with the enactment of the Prevention of Sexual Harassment of Women at the Workplace [‘PoSH’] Act, 2013.

I need not detain this enlightened audience of the critical role that the Judgement of the Supreme Court in Shayara Bano’s case which led to invalidation of the Triple Talaq, and culminated in the filling of the legislative vacuum in that regard.

Similarly, the unanimous conclusion in Joseph Shine has not only decriminalised adultery but also initiated a progressive conversation about status of women in marital relationship.

Another subject on which the judiciary has initiated robust social dialogue and reform is the question of marital rape. In 2017, the Supreme Court in Independent Thought v. Union of India²⁶ read down Exception 2 to Section 375 of the IPC, and raised the age of consent to 18 for married girls.

At this juncture, I must highlight one of the path-finding initiatives of the Supreme Court which is set to further the cause of gender inclusion and justice. The publication of the Handbook on Gender Stereotypes would further deepen public trust by correcting pernicious anti-woman prejudice that continues to haunt the legal profession and women’s quest for justice through the judicial process.

Grant of due value and recognition to household work is another frontier of gender justice where the judiciary has been leading a transformative conversation.

Every society in the world is built on the unpaid or underpaid work of women. In spite of women stepping into the paid work sphere, they continue to be presumed to be managers of the household. Therefore, even if a woman works similar hours as her brother, husband and father, and contributes to the income of the household, she returns home to do another shift of work, typically invisible, all alone, and usually unassisted by the male members of the family. Corporates and even the legislature has recognised over the years that women’s dual burden needed to be addressed and ameliorated. Thus, it would not be out of place to delineate what constitutes the double shift that women work.

The de-facto responsibilities of women include mundane and essential household chores including cleaning and laundry. A woman has to devote a certain duration of time, all days of the week, all year round without any break, unless she has fallen ill or has other pressing obligations to address at the same time.

Women are also obliged to perform caregiving duties irrespective of their engagement in the public work sphere. Women also manage important miscellaneous activities such as maintenance of bank accounts, planning meals and purchasing groceries, shopping, paying for utilities, sending invites for occasions, buying gifts for ceremonies, and getting odd jobs fixed to optimize the family’s well-being all on a strict budget so as to save from the family’s finances.

Thanks to the progressive jurisprudence emanating from courts across the institutional hierarchy, this unpaid domestic and care work of homemakers has come to be counted in cases pertaining to compensation under the Motor Vehicles Act, 1988 i.e., only when a house wife dies in a road traffic accident. In National Insurance Co Ltd. v. Minor Deepika, 2009 (1) TN MAC 671(D.B.) the High Court of Madras, speaking through another trailblazer, Justice Prabha Sridevan, provided compensation to a deceased housewife’s daughter, while stating that unpaid domestic and care work was the foundation of human experience, and that it must be valued by the Courts.

For many centuries – the institution of marriage and family – has been nurtured by the toiling labour and incommensurable care work of women – as mothers, wives, sisters, daughters, aunts, and so forth.

Widespread perceptions persist that an ideal marriage match is one between an “educated and well-trained” man and a woman with the kind of education and background in domestic skills that would make her a good homemaker.

Both women and men must realise that they are the pillars of the institution of marriage. Different pillars serve different but equally important purposes. No family can subsist without a healthy balance of economic or care work. A condescending attitude towards women in the family is the cause of the cracks and, domestic violence and infidelity are the outcome of the emerging cracks.

I would like to emphaise that it is high time that the institution of marriage and family is protected and sustained in our country and that, its very sustenance is dependent upon happiness, comfort and well-being of women and everybody in the family must make concrete efforts towards that objective.

Just as the erosion of the proper and just function of an organ of the State can have damaging consequences on the entire structure of governance, the erosion of the identity of women, in whatever capacity in the family, is bound to cause eventual breakdown of family and marriage.

It is often said that behind a successful man is a woman but I would say that behind a successful woman should be a family.

If it is a mother’s responsibility to provide necessary psychological and emotional support for a child’s learning and education in all realms. It is also her children, including her male children’s obligation to ensure her all-around well-being.

Further a narrow view of marriage, between a dominating “male person to a subordinated female” is now acknowledged as a significant cause of subordination of women and their resultant exploitation in society, especially within the private confines of their household. It is when men fail to realise that education and financial independence of women make them empowered and that they cannot be dominated upon, that cracks develop in a marriage leading to abuse, mudslinging, leading to a discord and sometimes a separation. This vitally affects their children who are victims of marital discord.

I would like to also emphasise that education and financial independence of women cannot result in a woman trying to dominate her husband or other male members of her family. Education should result in development of tolerance and resilience within the family and not lead to ego, vanity and looking down upon others. Respect for the other members of the family and cultivation of a sense of humility would go a long way in sustaining marriage and families. To be humble is not a sign of weakness but one of strength and is antithetical to arrogance.

The path-braking work of last year’s Nobel Laureate in Economics, Prof.Claudia Goldin speaks poignantly to the grim labour market outcomes of women in India. Intra-household dynamics have a lot to say about whether women work or not.²⁷

Therefore, all this requires a greater understanding between the spouses and one should not always look at it as a sacrifice by the wife vis-à-vis her career/profession for the sake of the welfare of the family. A woman, being a home-maker has to face several challenges such as being punctual for others and having no spare time for herself and if she is not recognized for all her commitments towards her family, I can only feel sad for the men. At the same time spouses living in different places for the sake of work and meeting during weekends/holidays is also gaining acceptance. This is owning to the women making their presence felt in their workplace due to their knowledge and skills on the one hand and the need for additional income for the family on the other. Such adjustments by spouses would go a long way for providing better education for children and having a higher standard of life for the family.

Conclusion

Women have come a long way but we are yet to reach a point where a woman like her male colleagues or her husband/brother/father will be able to enjoy the satisfaction of having a secure, stable work-life and a healthy family.

Before I conclude, I must emphasise an issue that remains critical to improving the quality of judicial review and adjudication that, We, the People, and more importantly, We, the Women, of India, deserve. There is an urgent need for all organs of the state, institutions engaged in the regulation and growth of the legal profession and institutions engaged in legal education to work within their mandate to make the Indian judiciary more inclusive and diverse. Having more women on the bench can contribute to a more effective space for the delivery of justice in India. I will only point to three reasons for this.²⁸

1.    the first, is the matter of the credibility and legitimacy of courts,

2.    the second, is about the language and vocabularies of judgments and the

3.    third, is the administration of courts and the need for different experiences to ensurecourts become more gender-neutral spaces.

The participation of women in the judiciary is not only a constitutional imperative but also a necessary step to achieve the goal of robust, transparent, inclusive, effective and credible judicial process.

In many ways, that would be the best tribute to the memory of Late Justice Sunanda Bhandare.

I express my gratitude to Shri Muralidhar C.Bhandare and his family and Justice Sunanda Bhandare Foundation for giving me the opportunity to share a few of my thoughts.

I thank you for your kind attention.

Namaskar.

Foot Notes

*     This speech is reproduced with permission from Her Ladyship Hon’ble Mrs.Justice B.V.Nagarathna, Judge, Supreme Court of India.

1.   Upendra Baxi, 25th Sunanda Bhandare Memorial Lecture.

2.   In 1989 she presented a paper on “Judges as Instruments of Social Change” at the Conference of National Association of Women Judges in Washington.

3.  1979 KLT OnLine 1021 (SC) = AIR 1979 SC 362.

4.   ADM Jabalpur v Shivkant Shukla, (Khanna J.).

5.   Source: Write Up received from Sunanda Bhandare Foundation.

6.Amrit Kaur, Speech Delivered in Jullundur, 1932, in Kaur, Challenge to Women, 15. Cf.Achyut Chetan, Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution (Cambridge University Press, 2022) 88.

7.   Owen Fiss, ‘Groups and the Equal Protection Clause’ Philosophy & Public Affairs, Vol.5, No.2 (Winter, 1976), pp.107-177.

8  1977 KLT OnLine 1107 (SC) = (1977) 3 SCC 99.

9  1979 KLT OnLine 1008 (SC) = AIR 1979 SC 1868.

10.2000 (3) KLT OnLine 1030 (Mad.) = 2000 SCC OnLine Mad 856.

11.2008 (2) KLT SN 69 (C.No. 83) SC = (2008) 3 SCC 1.

12.2019 (1) KLT OnLine 3159 (SC) = 2019 SCC OnLine SC 41.

13. 2021 (2) KLT OnLine 1034 (SC) = 2021 SCC OnLine SC 261.

14.Tarunabh Khaitan, ‘Constitutional Directives: Morally-committed Political Constitutionalism’     (2019) 30(1)Modern Law Review 1.

15.2014 SCC OnLine Kar.12291.

16.2017 SCC OnLine Kar.6551.

17.1996 (1) KLT OnLine 1024 (SC) = (1996) 5 SCC 125.

18..Vineeta Sharma v. Rakesh Sharma (2020 (4) KLT OnLine 1009 (SC) = (2020) 9 SCC 1).

19.. Shrimati Sumitra Mahajan, Debate dated 23.08.2005, Lok Sabha Fifth Session, No. 20, Fourteenth Series, Vol.XII, Date of Publication: August 23, 2015.

20. 2022 (6) KLT SN 1 (C.No.1) SC = 2022 (3) KLT OnLine 1007 (SC) = (2022) 8 SCC 90.

21. 1987 (1) KLT OnLine 1008 (SC) = (1987) 2 SCC 469.

22. 1981 KLT OnLine 1007 (SC) = (1981) 4 SCC 335.

23. . 2003 (3) KLT SN 20 (C.No. 30) SC = (2003) 6 SCC 277.

24. 2015 (3) KLT OnLine 1150 (Del.) = W.P.(C) No. 4525/2014.

25.1997 (2) KLT SN 72 (C.No. 72) SC = (1997) 6 SCC 241.

26.2017 (4) KLT SN 37 (C.No. 42) SC = (2017) 10 SCC 800.

27.Claudia Goldin, Career and Family: Women’s Century-Long Journey Toward Equity (Princeton University Press, 2021).

28.Siddharth Peter de Souza and Medha Srivastava-Kehrer, ‘The Lack of Women in the Indian Judiciary: The Inadequacies of the Judicial Appointment Process’, in Tanja Herklotz and Siddharth Peter de Souza (eds.) Mutinies for Equality Contemporary Developments in Law and Gender in India (2021).

Two-finger Application – A Preparatory for Judicial Surgery

(By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commision,                                                                                                           Thiruvananthapuram)

A salutary judgement of the Apex Court in State of Jharkand v. Shailendra Kumar Rai, reported in 2022 (6) KLT 194 (SC), which declared the two-finger application or two-finger test or per vaginum examination is an aggression into the privacy of a victim. It led to upholding the dignity of the victims of sexual violence. A victim complained of sexual violence before the authorities expecting relief but authorities, without heed to her voice, subjecting her to undergo a preparatory for judicial surgery is a violation of the dignity of the victim and pushed her more traumatized than the trauma she faced. Hence the Apex Court held that testing the hymen of the victim, to testify about her chastity is a foolish journey to judicial surgery.

The facsimile of the case is that the accused entered the house of the victim and pushed her to the ground and committed rape upon her while threatening to kill her if she sounded an alarm. She called out for help, at which point the accused poured kerosene on her and set her on fire with a matchstick. Her cries for help led her grandfather, mother, and a village resident to come to her room. The accused have fled the scene upon seeing them. The victim’s family (along with the villager) extinguished the fire and took her to Hospital, where she was admitted and underwent treatment for the injuries sustained by her. Later she succumbed to her injuries. Section 307,341,376,448 and later 302 IPC were charged upon the accused.

To understand the preparation for judicial surgery of the victim of every sexual assault, we must first look into the methodology of evidence collection. Here she has to undergo a medical examination though such examination is another form of mental torture to the victim. The doctors are indeed shown a sympathetic approach towards the victims and her consent is the most vital to it, the mode and methodology are to push her more traumatised than the trauma she faced.

The methodology of evidence collection from victims of sexual assault especially from rape victims is of extreme privacy and is to be done by a female Registered Medical Practitioner. The examination is of with the consent of the victim alone. If no female Medical Practitioner is there, then a male Medical Practitioner can examine with the permission of the victim. If that event occurs, a lady relative should be present at the time of examination. But if the victim is below the age of 18 years then the examination shall be done by a female registered Medical Practitioner. It is mandated that no reference shall be made by the examining doctor to another hospital on any flimsy or other reasons or no refusal for examination would be made.

The two-finger test is an explicit and intrusive physical examination wherein a doctor inserts two fingers inside the vagina of rape victims to check whether the hymen is intact and to determine the laxity and rugosity of vaginal muscles. It is done by inspecting the size of the vaginal opening and for tears in the hymen to determine if the women have engaged in or have been subjected to sexual intercourse.

Before moving to the methodology of evidence collection, let us examine what are the tools used for this procedure.

The first tool is three different coloured vacutainers. It is to be used for the collection of blood samples. A vacutainer is a sterile glass or plastic test tube with a coloured rubber stopper (tip) that creates a vacuum seal. Out of which, a Gray top vacutainer is used for the collection of blood. Whenever we have a suspicion that the victim has been intoxicated with certain drugs, the blood contained in this vacutainer is to be sent for chemical analysis to find out whether a possibility of any intoxication. Secondly, the violet top vacutainer is used for the collection of blood for the use of examination for DNA analysis. Finally, the red top vacutainer is used for all other purposes.

Four number coloured churidars or other like materials in Medium, Small, Large, and Extra-Large sizes and innerwear of different sizes were kept in the examination room. At the time of examination, the victim is to be requested to remove the entire dress including the underwear and all the same are to be packed and sealed by the examiner for further evidence. The victims are to be provided with a full set of new dresses instead of one she removed.

Another tool is four numbers of 5 Cubic Centimeter syringes. It is meant for drawing the blood from the victim and the accused for sending for examination.

A pair of hand-powderless gloves is another tool which is used by the examiner at the time of examination.

A bowl with normal saline or distilled water is also prepared to dip the swab stick for moisture. Because the dry swabs will not pick up evidence.

Toluidine blue solution can be used to improve the visibility of injuries. Sometimes the injuries are not visible as lesion injuries, especially on the body of the external genital area.To improve the visibility, the examiner is expected to apply 1% toluidine blue solution with a cotton tip swab. The application of toluidine solution in the genital area is of sufficient light, then only the lesions of injuries became more visible.

If the woman had unprotected sexual intercourse then she is likely to become pregnant. To avoid this, if the survivor comes within three days (i.e., 72 hours) of the incident, then these contraceptives shall be provided to her free of cost. This is a single pill that has to be taken within three days of unprotected sexual intercourse. It prevents unwanted pregnancy.

Another tool is NACO, National Aids Control Organization’s colour-coded kit. It supplies five different colour-coded kits and depending on the suspicion of the clinical features to prevent sexually transmitted infections as part of unprotected sexual intercourse. Out of which a grey kit contains two Tablets. Tab.Azithromycin 1g(1) and Tab.Cefixime 400 mg(1) are those. While examining the victim, if any trace of Urethral Discharge (UD), Cervical discharge (CD), Ano-Rectal Discharge (ARD), or Painful Scrotal Swelling (PSS)
Presumptive treatment (PT) then the above tablets are to be advised. The Green colour-coded kit contains Tab.Secnidazole 2mg(1) and Tab.Fluconazole 150 mg(1). While examining the victim if any trace of Vaginal Discharge (VD) then these tablets are to be advised. White colour-coded kit contains Inj. Benzathine penicillin 2.4 MU(1) and Tab. Azithromycin 1g(1) and Disposable syringe 10 ml with 21 gauge needle (1) and Sterile water 10ml(1) which are to be advised if there is any trace of Genital Ulcer Disease- Non-Herpetic (GUD-NH). Blue coded kit contains Tab. Doxycycline 100mg (30) and Tab. Azithromycin 1g(1) and if any trace of Genital Ulcer Disease-Non-Herpetic (GUD-NH) – for patients allergic to penicillin then these medicines are advised. Finally, the Red colour-coded kit contains a Tab. Acyclovir 400 mg. These tablets will be advised for Genital Ulcer Disease- Herpetic (GUD-H).

A nail cutter, scissors and empty covers are some other tools in the hand of the examiner.

In addition to the tools, some envelopes are also in the hands of the examiner. It contains a white sheet.The woman is requested to stand on the white sheet and directed to undress herself. While she is undressing and then opening up the scalp hair,there is some possibility of falling dry leaves or mud, if the alleged incident has happened in the outside area of the home. All the same is to be collected in the debris sheet and folded back and kept in the envelope. It is the first step of evidence collection. For this purpose,strict privacy has to be maintained for the survivor. Speculums and slides are other tools.

Now let’s examine the protocol and procedure for the collection of evidence.

Two slides of vulva swabs are to be collected for evidence from the survivor. The
vulva is the part of the female genitalia on the outside of the body. It includes labia, clitoris, vaginal opening, and the opening to the urethra. Collecting the swab from this area is most important for proving the case of sexual intercourse before a court of law.

The procedure for taking the vulva swab from this area is, first to direct the victim to lay on the procedure table and then to fold her legs at 90 degrees or place her legs on the table stand. Then gently separate the vulva with the left hand of the examiner. Then a cotton tip swab is to be taken and moistened with saline water and then rolled from the top left side to the last down point of the vulva.It is very important to swab from the top to last downpoint of the vulva.After the roll, the same is to be smeared on the glass slide. This procedure is to be followed on the right side of the vulva with another swab stick and smear it into another glass slide noted as the right side of the vulva swab. After taking the vulva swab the glass slides should be left to dry then promptly put the slide in the slide box.After taking the vulva swab the swab sticks are to be properly put into the folder provided in the examination kit.

The next procedure is urethral swab collection. The urethra is nothing but a small hole through which the urine is passed. For a collection of urethral swabs, a cotton-tipped swab is to be used. Soak it into the saline water and then the excess of the saline is to be squeezed out. Then gently separate the urethra and gently pass the swab stick and then turn it in a clockwise direction to remove. After removing it, smear it on the glass
slide. Then the glass slide is kept for some moments to allow it to dry and then it is placed in the slide box.

The next procedure is for the collection of vaginal swabs. To collect vaginal swabs, two types of speculums are used. One is a round speculum and the other is Sim’s vaginal Speculum. Select the smallest one if the victim is young. The speculum is to be selected to suit the age of the victim and the nature of her physical status. Before this procedure, the victim is to be informed about the examination and its procedure and then obtain her consent. After that, the procedure is to be explained to her and leave 5 to 10 minutes for her own decision. Thereafter, if she gives consent then ask her to relax for some moment. Thereafter complete privacy is ensured for examination. The victim is again directed to lie on the procedure table and place her legs on the procedure stand fixed on the table. Then gently separate the vulva with the left hand and gently place the speculum after its sterilisation and turn it ninety degrees. Thereafter, took another one and gently placed and turned it in the opposite ninety-degree direction. If the speculum is expandable with hinges then there is no need to turn. Now the cervix and the upper vagina can be visualised clearly. If the woman is married or sexually active then a round speculum can be used. Three cotton-tipped swabs after moisturising with saline,are placed at the mouth of the vulva then go below it and gently turn around. The swab is to be wiped in a glass slide and leave the glass slide to air dry. The second swab stick is to be wiped out below the cervix and the swab is to be wiped in the glass slide. The third swab is to be used to collect swabs from the inner side of the cervix.So the swab is to be collected one from the above portion of
the cervix one from the below portion of it and the last one is through the cervix.

Another envelope is meant for the collection of scalp hair. In that envelope, a form is attached and a comb is placed inside. The victim is advised to scrub her hair and the loose hair is collected and placed in the envelope.

The hair present in the vulva is to be collected. The victim is requested to comb her pubic hair and the hair placed either in the comb or from the procedure table is to be collected.

The fussed hair present in the vulva is to be identified. It is the hair which stuck to each other due to the sexual relationship. The same is severed gently by using scissors and place in the envelope for cut strands of public hair.

Loose pubic hair collection is another method for evidence collection. It is the most important envelope meant for the collection of foreign pubic hair. The collected foreign pubic hair is to be placed in the envelope for loose foreign pubic hair.

A nail cutter is also provided in the examination kit. The nail clippings of the victims of all the fingers of the hand are to be collected and put in the envelope.

A nail prong is also provided to the examiner. The nail scrapings of the victims are to be collected with the help of the nail prong and the same is to be put into the envelope provided for the purpose. The nail scraping is to be collected from all the fingers of the hands.

The collection of nail stains is another mode of evidence collection. If any stain is found on the nail beds then with a swab stick after dipping it in the saline, roll it on the nail bed and apply over the glass slides. Thereafter the glass slices are placed for air drying and put in the box.

The next most important evidence collection is the buccal swab collection. Buccal relates to cheek. The buccal swab is not a routine thing if a history of suggestive oral sex then we are expected to collect the buccal swab from the right side of the mouth and thereafter the left side of the mouth. For this,the examiner requested the survivor to open her mouth widely and to swipe from the left cheek. After obtaining the swab smear it to the glass slide and allow it to air dry. The above steps are to be repeated on the other cheek.

After examination, the instruments which have been used are to be disposed of. All instruments are dipped into a 5 per centchlorine solution.The confidential report of the medico-legal examination is to be provided to the police for investigation and a copy is to be retained in the hospital for further reference.

These are the cumbersome procedures for evidence collection from the victim. It is regretful to say that being subjected to these types of examinations by the victim may lead a mental trauma for her. The finger test and the examinations are preparatory for judicial surgery. Though these types of evidence collections are water-tight compartments to prove the case of the prosecutions some slight contradictions may lead to the acquittal of the accused. Several victims were carried out after the incident. The contraceptives are only advisory to the victims and not a compulsory one. If the lady reports the incident after the incubation period then the contraceptives have no use at all. No pregnancy tests are directive and under the realm of medical examination.

It is highly necessary and essential to subject all the victims of sexual assault to pregnancy tests and if they are found positive, immediately subject them to Medical Termination of Pregnancy to avoid unwanted children. Moreover, it is high time to pass a judicial directive or an executive order to flexibly the rigidity of MTP to the victims of sexual assault.