homework law in india

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Legal Homework Rights: What’s the Limit on Homework?

Hi, I just read your article Titled “Can You ‘Opt Out’ of Homework?” ( Click HERE  for the original article. ) I enjoyed the article but I guess I need a more concrete answer to the question of my legal homework rights: CAN I LEGALLY OPT OUT OF HOMEWORK FOR MY CHILD? – Dawn, SOAR ®  Parent

The answer is a resounding, Yes!

You have legal rights to put limits on your child’s homework time.

When homework begins to erode family relationships and/or increases the students anxiety, its time to make modifications. First, try communicating and working collaboratively with teachers and administrators.  If that doesn’t work, then you do have legal homework rights…

Legal Homework Rights

You absolutely do have legal rights to put reasonable limits on your child’s homework time. The legal tool you want to use is called a 504. For a link that provides a quick overview to the 504 law, click HERE .

504: The Legal Homework Rights Tool

Basically, the 504 law refers to legal homework rights (known as “accommodations”) that must be made for a child’s “impairment.”  As you’ll read, “impairments” are defined very loosely throughout the law, and this is done purposely to accommodate all students’ various needs. If your child has a diagnosis of ADHD, Dyslexia, etc. that will help, but it’s not necessary.

I have seen the 504 law used throughout my career as an educator for students and families exercising their legal homework rights.  I have also used it with my own children to get schools to accommodate what I felt was appropriate.

The 504 Process

The actual 504 process includes paperwork and a series of meetings. The meetings typically include a school counselor, a teacher, an administrator, and you and your child. In the meeting, all of your concerns will be documented and specific actions or remedies (like limiting homework) will be recorded. This document becomes a legally binding contract that your child’s teacher and administrator are required to uphold.

Legal Homework Rights: What’s a Reasonable Amount of Time for Homework?

So, what is a reasonable recommendation regarding time spent on homework?

We support the “10 Minute Rule.”   That’s a maximum of 10 minutes times the grade-level of the child. So, 10-minute max for 1 st grade, 20-minute max for 2 nd grade, up to 120-minute max for 12 th grade.

The “10-minute rule” is a great accommodation for a 504, because it is set to increase the limit on homework time as the child progresses through school. We’re not talking about eliminating homework just to create an easy path for our children.  Parents that have significant battles over homework, that can easily last an hour or more, understand that homework reaches a point where it is not productive.

Too much homework is destructive t o motivation, self-esteem, and to family relationships.  So, don’t be afraid to exercise your legal rights. This is the point where we want to pursue our legal homework rights.

In addition to pursuing 504 accommodations, you may want to give your students better skills to handle the demands of school.  To learn more about the SOAR ®  Parent Products, click HERE .

Brian Winter, M.Ed.

Co-Author, SOAR Social-Emotional Learning Skills

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4 fundamental laws of India every student should know

Here are very important 4 amendments in the constitution of india that every student should know..

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Students of a country are the most powerful and important resource for better development. Students create the future of a country. As important students are, they sometimes end up being exploited and denied of their rights.

Right to Information (Article 19 (1) (a)):

Right to Information (RTI) is an act of the Indian Parliament that makes the right to information a fundamental right for the citizens of India. This Right to Information was passed by Parliament on June 15, 2005, and came fully into force on October 12, 2005.

Under the RTI Act, any citizen of India can request information from any public authority and the authority will have to revert back at the earliest or within thirty days.

Right to Equality (Article 14):

Right to Equality (Article 14) of the Indian constitution give equality before the law within the territory of India. This law is applicable to anybody and everybody who is inside the territory of India including an Indian citizen, corporations, and foreigners.

• The classification is based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group,
• The differential has a rational relation with the objective of the act

Right to Education (Article 21A):

Right to Education Act (RTE), is an Act of the India Parliament which was made on August 4, 2009. This law describes the modalities of the importance of free and compulsory education for children between 6 and 14 in India under Article 21 (a) of the Indian Constitution.

RTE makes accessibility of education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools.

This law states that all private schools have to reserve 25 percent of seats to children (to be reimbursed by the state as part of the public-private partnership plan).

It also prohibits all unrecognised schools from practice and makes provisions for no donation or capitation fees and no interview of the child or parent for admission.

The Act also provides that no child will be held back, expelled, or required to pass a board examination until the completion of elementary education.

Right to Life (under Article 21):

The Right to life (Article 21) says that nobody, including the Government, has to authority to end your life. Under this law, it is mandatory for the Government to take appropriate measures to safeguard life by making laws to protect you.

Right to Life also makes it necessary for the govt to take appropriate steps to protect you if your life is at risk.

Public authorities should also consider your right to life when making decisions that might put you in danger or that affect your life expectancy.

If a member of your family dies in circumstances that involve the state, you may have the right to an investigation.

Read: 6 important traffic rules in India you should know

I Get Paid to Do Homework for Students Around the World

Students are easily cheating 'state-of-the-art' test proctoring tech, these engineering students built a special pen just for cheating on tests.

"We turn in 15 to 20 assignments a day. Based on those numbers, we’ve probably completed anywhere between 20,000 to 30,000 assignments in the last five years." - Suneer Kumar Singh

The Astronomical Rise of Exam Cheats

An indian college has apologised for making its students wear boxes over their heads for an exam, some lessons from a guy who writes essays for cheating students, original reporting on everything that matters in your inbox..

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Work from home: understanding the gaps in india’s regulatory framework.

Soumya Jha and Ulka Bhattacharyya

The authors are research fellows at Shardul Amarchand Mangaldas & Co., New Delhi.

Introduction

The advent of the CoVID-19 pandemic in early 2020 heralded a world-wide economic downturn, ironically perpetuating the digital transformation phenomenon.

Traditional work-operations are slowly being replaced with automation and digitalization. Further, information and communication technologies (ICTs), and growing digital labour platforms have accelerated the uptake of non-traditional work arrangements. Interestingly, the work from home (WFH) phenomenon, causing many around the globe to make home their office, sped up this replacement, accelerating digital transformation.

As the ILO views it , the pandemic, initiated an “unprecedented experiment in working from home” , predicting that results of the “great working from home experiment” would unfold in the coming years. Experts suggest that “the virus has broken through cultural and technological barriers that presented remote work in the past”, making remote work a significant part of working life, post-pandemic.

Given that non-traditional work modes are the “future of work”, we should consider regulatory frameworks on this, across countries. While not all aspects of remote, non-traditional working are addressable by legislation, developing a coherent regulatory framework on remote work is crucial, especially for India, where 96% of organizations rolled out WFH since the national lockdown last year, and to streamline WFH for certain lines of work most affected.

With increased acceptance necessitated by the national lockdown, WFH continues to persist. Co-incidentally, 2020 also saw the four long-overdue Labour Codes being enacted. While the Codes deal with various issues, they lack the regulatory infrastructure required to address WFH, which is likely to take greater relevance in future. These distinct issues therefore, require fresh deliberation through the WFH lens.

Position under the Labour Codes

Some major definitional and conceptual issues arising under the Labour Codes, vis-à-vis WFH, are discussed herein to emphasize the need to accommodate WFH in Indian labour legislation.

draft Model Standing Orders for Service Sector, 2020 (draft Model Standing Orders): The sole mention of WFH in the Labour Codes is in the draft Model Standing Orders issued vis-à-vis the Industrial Relations Code, 2020. These guide employers at industrial establishments having over 300 workers, on formulating rules of conduct for workers. Accordingly, an employer may allow employees to WFH, subject to conditions of appointment or agreement between the two parties, for a pre-determined period. This however, barely qualifies as guidance for employers to develop a robust WFH framework for their workers.

Alongside, legislators must heed concerns of certain sectors regarding compliance with a WFH regulatory framework. WFH rules may increase compliance burdens on the IT sector, which enjoyed informally the flexibility of WFH pre-draft Model Standing Orders. Further, complications may multiply when the draft Model Standing Orders interact with state rules and orders. The introduction of an omnibus WFH model, without sufficient oversight, therefore, is unreasonable.

Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code): OSH Code defines “Establishment” as a place employing workers, connoting a physical space where work takes place. Any other place is not an establishment; hence questions of occupational safety and health of workers working outside a physical establishment arise.

The definition of “Establishment” is also not as inclusive as that of “workplace” under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), which includes even transportation used for work, as workplace. Though different in its aims, the POSH Act establishes workplace as a fluid concept. With WFH becoming the new normal, the concept of “Establishment” may need broadening, to sufficiently accommodate occupational safety and health of workers working from home.

The ILO attributes responsibility to governments to ensure employers’ compliance with their duty of care and their obligation to provide, as far as reasonably practicable, a safe working environment without risks to physical and mental health. This includes assessing, controlling and mitigating risks in locations beyond the normal workplace, including the worker’s home. OSH Code may therefore address WFH-induced health and safety issues, in light of the pandemic.

Code on Social Security, 2020 (CSS): While CSS defines “home-based work”, concepts like “remote work”, “telework”, “work at home” and “information and communications technology” are absent. International definitions of “remote work” and “telework” are not established, however, creating a definitive legal understanding of these terms, in the Indian context is vital.

The ILO defines “telework” as a subcategory of “remote work”, even though both are carried out outside the default workplace. Further, “Work at home”, while being independent of the default workplace, may overlap with “home-based work” defined under CSS, wherein work is carried out at the worker’s home. Then, the concept of “wage worker” under CSS includes “home-based worker” , both of which are subsets of “unorganized worker” under CSS. Such definitional overlaps are undesirable, more so because different social security schemes are available under CSS, depending on the particular category of worker.

All the Labour Codes presuppose physical presence at the workplace, a point we highlight vis-à-vis “Establishment” under OSH Code. A similar challenge arises regarding providing crèche facilities under CSS, in a WFH context. While the Code and draft Rules envisage provision of crèche facilities physically, no guidance exists on how the same may translate to a virtual context. A suggestion may be inserting provisions on reimbursing nursing/child-care facilities instead.

Code on Wages, 2019 (CoW): Reportedly, stakeholder discussions on revising WFH workers’ salaries have been underway since WFH’s formalization. Accordingly, decision to cut pay of employees moving to smaller towns from Tier-I cities is being contemplated. Further, companies may do away with transport allowances, while reimbursing for WFH infrastructure. The 4.3 million strong IT/ITeS sector, which more-or-less shifted to WFH in March 2020, is expected to be worst-hit by this. While it is important to consider cost-related changes companies have experienced, effects of WFH are ambiguous and may be heterogeneous across individuals depending on underlying motives. Several factors, including human factors, require evaluation to remodel wages and allowances of workers working from home.

Internationally accepted WFH practices

Understanding international practices associated with WFH may help gauge issues which a potential Indian regulatory framework may have to grapple with. Accordingly, we discuss the concepts of “teleworking” and “flexible working arrangements”.

Teleworking

The internationally accepted term for the nature of WFH prevalent in India since March 2020, i.e., “telework” is absent from guidelines or notifications etc. issued by the Government regarding WFH. Telework is broadly defined as the use of ICTs like smartphones, tablets and laptops/desktops, to perform work beyond the employer’s premises. One of its earliest legal references appears in Californian law from 1995 framed to encourage “telecommuting”, i.e., substituting commute to work with computers and telecommunication technology, by state employees. The EU, too, in 2002 introduced a Framework Agreement on Telework delineating a general framework balancing employer and employee interests.

Teleworking has been recognised vide ILO Convention No. 177 on “home-work” aimed at promoting equal treatment between home-workers and other workers. Teleworking as a permanent arrangement, whether full-time or part-time—and not alternating with office-based work was covered under “home-work” set out in the Convention. India, however, has not ratified this Convention.

The Telework discourse has focused on three generations of telework, namely, the stationary home-office utilizing desktops and telephones (1970s), the mobile office utilizing lighter wireless devices like laptops, mobile phones (2000s) and the virtual office, by virtue of which office is accessible from anywhere, at any time due to latest ICTs (until 2020). However, to respond to the challenges resulting from the hurried shift to teleworking, the post-pandemic discourse on telework, commands a paradigm shift. Some key challenges, concern health & mental well-being, work-life balance, technology, data protection & security, skill updation, and productivity.

Finally, WFH enables an ecosystem wherein, employees may be hired to telework from the world-over. While this monumental change in work-culture is owed to technological advancement, the regulatory framework to adopt this change requires development.

Flexible working arrangements

Flexible working arrangements (FWAs) have their genesis in “decent work” , or work balancing “people’s aspirations regarding their work and current work situations” . They afford flexibility in conduct of work, including flexibility in work-hour schedules, number of hours worked, and, place of work. Therefore, FWAs exist across a wide spectrum , and there can be multiple permutations of it depending on the specific needs of employers and employees.

Introducing flexible workplace practices (of which FWAs are part), can not only assist employer needs, but also enhance work-life balance for employees. Additionally, flexibility incentivizes the working population’s under-represented individuals to manage work with other responsibilities. In India, for instance, with labour-force participation rate for women (between ages 15-64, per ILO) at 22%, unsurprisingly women have responded positively to WFH, since the pandemic. Further, surveys of young Indians reveal that FWAs are favoured by most. It is, therefore, only logical that FWAs will constitute a critical element of how labour regulation in India responds to challenges of the pandemic.

This issue merits attention of policymakers also because the newly enacted Labour Codes or the draft Model Standing Orders do not address this largely. While CSS allows women having availed maternity benefits to work from home on certain conditions, the draft Model Standing Orders , broadly provide for WFH, for employees, and flexible working hours for IT sector employees.

Comparative approaches to regulating WFH

We discuss briefly, the experiences Finland, Spain, the United Kingdom and Singapore, and their attempts at legislating around WFH. We focus on Spain’s recent remote work law, and examples of flexible working laws in other nations.

Spain : Spain legislated on remote work in September 2020. Remote work must be voluntary and reversible, and formalized in a written agreement without prejudice to general employment legislation or existing collective bargaining agreements. The law clarifies whom it applies to, i.e., those under an employment contract, and who have rendered “remote work” for a minimum period of three months, for at least 30% of an employee’s working day, or an equivalent percentage based on the contract. It also differentiates between “telework” and “work from home”. Companies are to provide resources, equipment and consumables necessary to perform and maintain work remotely. Further, employees have a right to payment and compensation for expenses on equipment, right to privacy and data protection, and a right to digital disconnection, amongst others. At the same time, the law empowers employers to ensure that remote employees fulfil their duties well.

Finland : Finland has provided flexible working opportunities for years. This is partly because of legislation, allowing employees the right to adjust their working hours for maximum flexibility, since mid-1990s. The Finnish Working Time Act, 2019 was recently amended to introduce key changes towards creating adaptive working arrangements on flexible work hours, flexible working arrangements and the introduction of ‘working time accounts’ . The Act has several features affording flexibility . Employers and employees may agree to flexible working hour arrangements, subject to regular working time not exceeding 40 hours and adjustment of excess hours worked. The Act also permits individual flexible work arrangements where employees decide on placement and performance at least half of the working time, setting out a number of aspects such an arrangement must cover (such as days on which working hours may be allocated, weekly rest periods and fixed working hours). The Act enables agreements on working time accounts, where working hours, earned time-off and monetary benefits can be exchanged for time off. Agreements on working time accounts must cover certain elements.

The United Kingdom: FWAs were allowed via a process of proposal and negotiation in 2002, to assist employees with care-taking responsibilities in requesting FWAs. The UK’s approach to flexible work is predicated on three main pillars viz. qualifying employees proposing changes in relation to hours, time and location of work; an employer’s duty to consider such application in a “reasonable manner” with refusal only on pre-specified grounds (such as additional costs and inability to re-organise work amongst existing employees); and escalation to employment tribunals by employees, in limited circumstances. The UK’s approach is considered “light touch regulation” , and is based on a foundation of dialogue and negotiation between employers and employees. Australia and New Zealand have also adopted similar legislation.

The European Union : The European Union (EU) has a “Work-Life Balance Directive” adopted in 2019, which provides FWAs for parents and carers.

Singapore: An interesting alternative to the rights-based approach to FWAs in the UK, lies in Singapore. Through a set of voluntary “Tripartite Standard on Flexible Work Arrangements” formulated in consultation with multiple stakeholders, employers can adopt practices that assist employees better manage work-life needs, while enhancing productivity. Such employers are employers of choice, and can use a logo-mark in recruitment and marketing.

The onset of CoVID-19 and the national lockdown in March 2020, changed how millions of Indians work. WFH is now a reality for millions, having altered how we spend our working hours and lives, hereon.

Alongside, the passage of three Labour Codes has been a watershed moment in developing labour regulation in India. While these Codes do not dedicatedly deal with WFH, a beginning has been made through the draft Model Standing Orders. We demonstrate how the Codes do not completely address conceptual issues regarding WFH, and how telework and flexible working arrangements have gained ground globally. Therefore, these initial steps require supplementing with a coherent and comprehensive regulatory framework.

We discuss how WFH legislation has developed elsewhere, offering guidance on how our own framework may shape up. For example, Singapore’s approach towards FWAs emphasizes the importance of encouraging employers to support and commit to progressive working conditions through consensus, which is worth exploring, as we seek to create progressive working conditions in the aftermath of the pandemic. As our regulatory framework on WFH evolves, addressing these issues could help develop an India-appropriate regulatory framework that meets needs of both employees and employers in the most balanced manner.

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Home Based Work-Online Work Environment And Labour Laws In India

• Government Policies for Home-based Workers, Vol. 4, Issue No. 2, Labour File. http://www.labourfile.com/section-detail.php?aid=323#:~:text=Despite%20these%20recommendations%20and%20initiatives,offer%20protection%20to%20the%20workers.
• Ostfeld, Lynne R. �WORKING FROM HOME: WHY I WORK FROM HOME.� GPSolo, vol. 28, no. 7, 2011, pp. 12�13. JSTOR, www.jstor.org/stable/23630612. Accessed 5 Apr. 2021.
• Home Based Work in India, Labour Law. https://paycheck.in/labour-law-india/maternity-and-work/home-based-work-in-india#:~:text=There%20is%20no%20specific%20law,under%20the%20Trade%20Unions%20Act.
• Invisible but Vital to Value Chains of Production-Home Based Workers, Women in Informal Employment: Globalizing and Organising.
• Section 29, Industrial Relation Code, 2020.
• Surya Sarathi Ray, New Work from home rule in 2021, Financial Express. https://www.financialexpress.com/industry/govt-proposal-to-formalise-wfh-facility-for-services-sector/2163381/
• Model Standing Order for Service Sector, Government of India, Ministry of Labour & Employment. https://labour.gov.in/whatsnew/draft-model-standing-order-service-sector

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Policies and Laws Pertaining to Education in India

• Legal Blogs
• November 18, 2020

This National Education Policy of 2020 is one of the primary instruction arrangements of 21st century which intends to meet the developing advancement needs of India. The approach proposes to change and modernize all parts of instruction strategy including guideline and administration to make another framework in accordance with the energizing objectives of 21st century training. This is a policy, not a law and therefore is a push to contemplate the features of NEP 2020 and its effect on studies and educators. This examination additionally covers need of the arrangement and the highlights of participation included to serve Indian education system. This aim of this study is to have a look on different laws which are related to education system in India. This work is hereby an effort to have an insight of different activities and implementations done for students by various governments all over India.

Keywords- New Education Policy; students; teachers; Indian government; literacy

INTRODUCTION

Education is essential for the development of an individual’s intellect and knowledge and for the development of the country’s economy. Progress in education directly contributes to the development of the country’s economy as it enhances the skills of the workforce to make the best use of available technology. However, at present, the Indian education system is facing many setbacks, mainly due to lack of accreditation at the school and university or college levels. Thus, in order to control the limitations of existing education a new policy i.e. New Education Policy (NEP) is passed in 2020 [1] .

The NEP was affirmed by the Government of India on July 29, 2020. It was last actualized in 1986 and reestablished in 1991. This methodology intends to give a thorough and high learning structure in all schools and universities [2] . It’s only an objective, not a law. Since, education is a broad subject; the execution of new suggestions will rely furthermore upon the organization of the areas and the state government. Prime Minister said that the instruction strategy was endorsed after broad conversations for more than three to four years and thought of a huge number of recommendations [3] . A board of specialists drove by previous ISRO boss K Kasturirangan talked about issues in the Indian instruction framework – from school to universities and afterward to work. These propositions were incorporated and affirmed by the divisions prompting the improvement of this strategy. The closure of schools and colleges in recent months features imbalances in the Indian instruction framework. With certain students having the option to proceed with the internet learning process, while others are facing issues with online classes. The NEP affirmed by Cabinet, has a clause on computerized studies also to guarantee “fair utilization of knowledge through online studies” [4] .

LAWS RELATED TO EDUCATION SYSTEM IN INDIA (RIGHT TO EDUCATION)

According to Right to Education (RTE) children have the right to a good and compulsory education until they have completed primary education at a neighboring school. The government has defined ‘compulsory education’ as the provision of free primary education to every child between the ages of six and fourteen and the compulsory admission, attendance and completion of primary education. Free actually means that no child is liable to pay fees, charges or expenses for completing and completing primary education. It provides for the admission of children who do not have access to an age-appropriate class [5] . It gives details of all the tasks and duties of parents, governments and local authorities in order to provide free and compulsory education. It also shares financial and other responsibilities between the central and state governments. It sets standards and criteria for buildings, student-teacher ratio, school working days, infrastructure and working hours of teachers. It facilitates the rational recruitment of teachers by ensuring that each school has a certain student-teacher ratio above the state, district or block average, thereby ensuring that there is no urban-rural imbalance in teacher postings. Prohibit the deployment of teachers for extracurricular activities that provide for decades of censuses, local legislative elections to state legislatures, and parliament for disaster relief. It provides for the recruitment of teachers with appropriate training i.e. teachers with the required academic qualifications and knowledge. It prohibits corporal punishment and psychological harassment, screening procedures for child admission, capitation fees, private tuition of teachers and schools operating without accreditation. It helps to develop the curriculum in accordance with the values ​​enshrined in the Constitution. It is to ensure the holistic development of the child, to develop the knowledge, skills and abilities of the child. It provides child-friendly and child-centered learning system to free the child from fear, trauma and anxiety.

The eighty sixth amendment law came in 2002 for education. In this, Article 21-A of the Constitution of India provides for the fundamental right to free and compulsory education prescribed by law for all children between the ages of six and fourteen. The Right of Children to Free and Compulsory Education Act, 2009 refers to the consequential law enshrined in Article 21-A. It means that every child has the right to a satisfactory and equal quality full-time primary education in school. The RTE Act  and article 21-A came into force on April 1, 2010 [6] . The title of the RTE Act contains the words ‘natural and compulsory’. The term ‘Free education’ means that no child other than the child whose parents are enrolled in the school without adequate government assistance will be liable to pay any fees, fees or expenses for obtaining and completing basic education. ‘Compulsory education’ is the responsibility of the appropriate government and local authorities to ensure that all children between the ages of 6-14 receive attend and complete primary education. In line with the provisions of the RTE Act, India has moved towards a framework based on the rights of the Central and State Governments to enforce this fundamental right of children enshrined in Article 21A of the Constitution [7] .

OTHER RIGHTS PROVIDED BY CONSTITUTION TO STUDENTS

The right to freedom of expression

In the petition filed by the law student, the Supreme Court clarified the importance of freedom of speech from the perspective of individual freedom and from the perspective of the democratic form of our government. The Supreme Court has ruled that freedom of speech and expression is important under a democratic constitution that allows for changes in the structure of legislatures and governments.

Right to Information

While allowing the examiners to examine the orders, the Supreme Court held that the right to information was a matter of “freedom of speech and expression” enshrined in Article 19 (1) (a) of the Constitution of India. It is a matter of state interest and security subject to reasonable regulation, concessions and exemptions.

The right to equality

While adhering to the principles that educational institutions must adhere to at the time of admission, the Supreme Court has ruled that violating the right to equality and equal consideration of competing candidates should be fully justified and exceptionally relieved under any special circumstance.

Right to life under Article 21

The Delhi High Court Division Bench, while enforcing disciplinary action under the Delhi School Education Act, 1973, was of the view that children should not be subjected to corporal punishment in schools and should be educated in an environment of freedom and dignity.

Indian Contract Act

A student, who enters the majority age i.e. 18 years, can sign a contract under the Indian Contract Act, 1872. For example, when taking an education loan a student must enter into an agreement with a licensed bank or lease agreement with the owner of the residential property.

Students under the age of 7 are exempted from criminal liability under the Indian Penal Code and liability between the ages of 7 and 12 depends on student maturity. Students under the age of 18 are subject to the definition of the Juvenile Justice (Protection and Protection of Children) Act, 2015 will not be considered serious offenders unless they are found guilty of a serious offense as defined by law. When dealing with such students who are subject to the law, government officials must adhere to certain principles under Section 3 of the Act, which are the principle of innocence, the principle of non-discrimination and the principle of natural justice [8] .

NEED FOR NEW EDUCATION POLICY IN 2020

Around six main policy credentials were brought by Indian government from time to time after 1947. These includes Committee to Advise on the Renovation and Rejuvenation of Higher Education (2008–2009), National Knowledge Commission of 2006-2009, Policy Framework for Reforms in Education in 2000, National Policy on Education came in 1986- 1992, Education Commission came in 1964–1966 and University Education Commission which came in 1948-1949. It is evident that the first policy which came in 1947 trend has dominated not just the colonial rule period but also post-1947 India [9] .

Ministry of Human Resource Development (MHRD) intends to increase the Gross Enrollment Ratio i.e. GRE to 50 percent by 2035 as an education account of 6 percent of current Gross Domestic product i.e. GDP. In addition, NEP will make textbooks available to students in audio books in 22 languages. [10] .

2.1. For Pre-School Students

We welcome the incorporation and consideration given to Early Childhood Care and Education (ECCE). As, it feature the significance of early learning. Kid care and instruction assume a significant job in building an establishment for long lasting learning and prosperity for each kid. The need for this hour is an essential learning and proper understanding of basics [11] .

2.2. For School Students

The long-awaited educational policy for students who adhere to homework given by schools and teaching classes has finally made headlines. The committee did an excellent job on the 440 page document for NEP, explaining the shortcomings of the old method and how they progressed by vision for growth during the first phase of the child. The 5 + 3 + 3 + 5 concept gives school dropouts the opportunity to join school at any time. This is a positive step taken by policy. The ECCE policy framework has been carefully developed taking into account all aspects of child-rearing environments. To implement the new modifications schools must have dedicated and strongly committed teachers and support systems [12] .

Basic curriculum for children aged 3-8 years is divided into two parts:

• From 3-6 years of age in Early Childhood Care & Education (ECCE)
• Before the age of 5, each child will go to “Preparatory Class” or “Balvatica” (ie before Class 1) [13] .

2.3. For Students Undergoing Higher Education

Undergraduate degrees with multiple exit options can last for 3 or 4 years. Upon completion of the year, the student can obtain a Diploma and Advanced diploma after completing two years of study. Bachelor’s degrees will be awarded to students after 3 or 4 years who have completed a set period of study. The definition of higher education and university is now from research-oriented universities to teaching universities and private practice colleges. Tests to enter the new university will be held in 2022 [14] . Teachers will provide long-term guidance and professional assistance at the university and college. The National Mission for Mentoring will be established with advanced and retired technology with excellent teaching ability in Indian languages. Public and private higher education institutions are governed by the same standards of administration, accreditation and education standards. College consolidation should expire in 15 years and a phased process should be instituted to give colleges more independence [15] .

2.4. For Teachers

The National Council for Teacher Education in 2022 will build up the National Professional Standards for Teachers (NPST), in a joint effort with different educators, boards and expert bodies at different levels. Undergraduate teaching degrees by 2030 will be 4 years of B.Ed integration. The National Council for Teacher Education (NCTE) will develop a novel and comprehensive framework for the National Curriculum for Teachers Education i.e. NCFTE 2021 in consultation with National Council of Educational Research and Training (NCERT). Serious actions will be taken against non-standard Institutions who are not abiding by the rules. A National Mission will be established with the advice of a large group of senior or retired members who are willing to provide new and long-term guidelines and professional assistance at a university or technical college [16] .

COLLABORATIVE FEATURES INCLUDED IN POLICY      

NCERT is going to develop a National Curricular and Pedagogical Framework for Early Childhood Care and Education for children coming under 8 years age frame. The Department of Education has asked NEP 2020 to set up a National Mission on Foundational Literacy and Numeracy by the Department of Education. Along these steps, our nation ought to set up a turn out program to accomplish essential education in every school by 2025 for students’ up to class 3. All schools will conduct tests for students of Grades 3, 5, and 8, which will be managed by the relevant authority. The board review will continue for Grades 10 and 12, but is being redesigned for the full development. The NEP also emphasizes the establishment of gender equity and specialized education for disadvantaged and disadvantaged communities. Each state or region is encouraged to establish the “Ball Bhavans” as a special school day for learning and participating in arts, crafts and sports activities. The school can be used as a community center for the construction of public school infrastructure [17] .

National Education Policy is a boon for education system and will surely improve studies framework in India. It aims to increase enrollment in higher education, including vocational education, from 26.3 percent in 2018 to 50 percent by 2035. It will also add new and extra seats to higher education institutions. This study shows that this approach will benefit all students, including teachers and the growth of the Indian state. It will grab the attention of world’s top colleges to enter India, and furthermore urge India’s driving establishments to travel all around. It additionally also proposes to constrain the expenses charged by private associations which will help everyone to proceed for higher education. Thus, NEP may act as an effective approach to minimize limitations of existing education system.

[1] Education In India (Problems and Solutions) |, Khuranaandkhurana.com, Jan 17. 2019, https://www.khuranaandkhurana.com/2019/01/17/education-in-india-problems-and-solutions/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration (last visited Sep 26, 2020).

[2] Priscilla Jebaraj, The Hindu Explains What has the National Education Policy 2020 proposed? The Hindu , Aug 2, 2020

[3] Meenakshi Ray, PM Modi says ‘fully committed’ to ensure complete implementation of NEP 2020 , Hindustan Times, Aug 7, 2020.

[4] UP Police, New Education Policy 2020 School: NEP 2020 Implementation Date , Police Results, Aug 1, 2020.

[5] Sandeep Rana, National Education Policy, 2020 Legalserviceindia.com (2020), http://www.legalserviceindia.com/legal/article-3428-national-education-policy-2020.html (last visited Sep 26, 2020).

[6]   Ministry of Education, Government of India, Mhrd.gov.in (2020), https://www.mhrd.gov.in/rte#:~:text=The%20Constitution%20(Eighty%2Dsixth%20Amendment,may%2C%20by%20law%2C%20determine. (last visited Sep 26, 2020).

[7] Shubham Borkar & Nayanikaa Shukla, Education Policy in India and the legislative framework around it (Problems & Solutions) – Corporate/Commercial Law – India Mondaq.com, Jan 23, 2020, https://www.mondaq.com/india/corporatecommercial-law/773906/education-policy-in-india-and-the-legislative-framework-around-it-problems-solutions (last visited Sep 26, 2020).

[8] Madiha Jawed, Legal Rights of Student in India: Rights and Laws Every Student Should Know Shiksha.com , May 5, 2020, https://www.shiksha.com/law/articles/legal-rights-every-student-in-india-should-know-blogId-12803 (last visited Sep 26, 2020).

[9] Junqing Zhai & Jing Yuan, Politics, policy and higher education in India, Journal of Education Policy 146-148 (2019).

[10] Himanshi Dhawan, MHRD released New Education Policy after 34 years , Du Express, July 30, 2020.

[11] Roshni Chakrabarty, What are education experts saying about the new National Education Policy ?, India Today, July 30, 2020

[12] D Chandrasekharam, The NEP 2020 of India , Times of India Blog, August 2, 2020.

[13] Usha, New Education Policy 2020 (NEP 2020): Highlights and PDF Downloads , Notice Bard, July 31, 2020

[14] Ruma Batheja, NEP 2020 – A quick glance on key changes at school and college level, Times of India Blog, July 30, 2020.

[15] Manish Kumar, New Education Policy 2020- Highlights , Tax Guru, Aug 5, 2020.

[16] Highlights of National Education Policy 2020 , Outlook- The News Scroll, July 29, 2020.

[17] Vikash Aiyappa, New Education Policy 2020: Advantages and disadvantages of NEP , July 31, 2020.

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This Article was contributed by Anjali Rajora, a student at Amity University Uttar Pradesh, Noida.

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The new labour codes, ideally, should incorporate definite guidelines for “remote working”, “work from home” and “tele-working” prior to their enactment and it should be realised that the definition of “home-based worker” may not be sufficient for the interpretation and application of every flexible work practices.

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No poaching pacts: The Indian legal perspective

In India, companies are considering entering into such agreements with their competitors / other companies to reduce employee attrition. However, are ‘No poaching pacts’ enforceable in India? Check out what Indian laws say about this.

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Acts and Rules for school education by Ministry of Education

Find Acts and Rules pertaining to school education and literacy provided by the Ministry of Education. Users can find various Acts such as the National Council for Teachers Education Act 1993 and Right of Children to Free and Compulsory Education Act, 2009.

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Information on rashtriya madhyamik shiksha abhiyan, information about directorate of adult education.

Get information about the Directorate of Adult Education. Details related to functions of the Directorate of Adult Education are provided. Information on activities of the Publication Unit of Directorate of Adult Education (DAE) is available. Details related to training and orientation programmes are provided. Information on status of literacy campaigns is available.

Information on elementary education by Ministry of Education

Find information about the elementary education provided by the Ministry of Education. Users can find detailed information about the role of Universal Elementary Education (UEE), legal framework and programme interventions for compulsory and free education for children. Details of the Sarva Shiksha Abhiyan (SSA), Mahila Samakhya programme, and various educational schemes are available.

Information on Department of School Education and Literacy

The Department of School Education and Literacy is working under the Ministry of Human Resource Development and its mandate is to promote school education through various schemes and welfare programmes. Detailed information about the elementary education, primary educational institutions and educational schemes such as Sarva Shiksha Abhiyan and Mid Day Meal etc. is provided.

National Means-Cum-Merit Scholarship Scheme

The objective of the scheme is to award scholarships to meritorious students of economically weaker sections to arrest their dropouts at class VIII and encourage them to continue the study at secondary stage. Detailed information on this scheme, procedure for selection of awardee students, disbursement, eligibility, implementation, etc. is provided.

Model School scheme

The scheme aims to provide quality education to talented rural children through setting up of 6,000 model schools as benchmark of excellence at block level at the rate of one school per block. You can find detailed information on this scheme, its objectives, target group, assistance, implementation, etc. Details of latest developments related to this scheme are also available.

Information and Communication Technology in Schools Scheme

The Information and Communication Technology (ICT) in Schools Scheme was launched to provide opportunities to secondary stage students to mainly build their capacity on ICT skills and make them learn through computer aided learning process. You can find detailed information on this scheme, its objectives, financial assistance, coverage, etc.

Scheme of Vocationalisation of Secondary Education

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Legal Considerations for Remote Work: Navigating Employment Laws in a Digital Era

Introduction : 

The idea of remote work has been extremely popular in recent years, giving people the freedom to work from the convenience of their homes or any other location of their choice. The conventional workplace paradigm shift has changed the way we think about employment. But, especially in a nation like India, this new manner of working comes with a plethora of legal implications that both companies and employees need to be aware of. In this article, we’ll examine the legal framework for remote work in India and clarify the most important labour rules that apply in the modern digital age.

Employment Contracts and Agreements 

Having valid employment contracts and agreements is still necessary even for remote work. Regardless of the workplace, it is essential for employers and employees to set explicit terms and conditions in writing. The type of remote work, working hours, pay, leave policies, termination clauses, and any other pertinent conditions should all be included in the employment contract. Clarity is ensured, and both parties’ rights are safeguarded.

Compliance with Labour Laws 

Even for remote workers, employers are still required to maintain compliance with Indian labour regulations. Various topics are covered by these regulations, including minimum wages, working hours, social security benefits, and workplace safety. The same perks and legal protections that are offered to on-site employees should also be available to remote workers. In accordance with legal requirements, employers must also keep accurate records of employee attendance, working hours, and any overtime.

Tax Obligations : 

In India, remote workers could have special tax duties that are different from those of typical workers. Remote employment has tax repercussions that both employers and individuals need to be aware of. To ascertain the tax obligations, including income tax and Goods and Services Tax (GST), if applicable, it is important to speak with a tax expert. To guarantee compliance with tax requirements, employees should also keep accurate records of their earnings and outlays.

Intellectual Property Rights 

In the digital age, when distant workers could have access to confidential information and valuable expertise, intellectual property (IP) issues are critical. Employers should lay out specific rules for who owns and protects the intellectual property (IP) produced by remote employees while they are employed. To protect confidential information and trade secrets, non-disclosure agreements (NDAs) and confidentiality agreements should be in place.

Data Protection and Privacy : 

Sensitive data is sent and stored through digital networks when working remotely. The Information Technology (Reasonable Security Practises and Procedures and Sensitive Personal Data or Information) Rules, 2011, require employers to take the necessary steps to safeguard data security and privacy. To protect confidential and personal information, employers should set up data protection rules, deploy encryption techniques, and adopt secure communication channels.

Work-Life Balance and Employee Well-being : 

When it comes to preserving work-life balance and guaranteeing employee well-being, remote employment offers particular difficulties. Employers should create guidelines to handle these challenges, such as rest intervals, a cap on working hours, and channels for reporting complaints or issues with remote work. Regular check-ins and contact may prevent feelings of isolation and provide a positive work environment for remote workers.

Conclusion : 

A new method of working has emerged in the digital age, with remote employment becoming more and more common. While it has many advantages, there are also legal issues that both employers and employees must deal with. Remote employees may make sure their rights are protected and companies can stay in compliance with relevant laws by being aware of and complying to employment laws. In India’s legal system, remote work may flourish with clear employment contracts, adherence to labour regulations, payment of taxes, and adequate safeguards for IP and data security. As we welcome this digital change, let’s remember to protect the rights and interests of all parties involved.

Author: Shruti Gala

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Working from home: key Indian employment law considerations for employers

Back to Diversity and Equality Law Committee publications  

Veena Gopalakrishnan AZB & Partners, Bengaluru [email protected]

Nishanth Ravindran AZB & Partners, Bengaluru [email protected]

The first case of Covid-19 in India was reported in January 2020. [ 1 ] A lot has changed since then. Aspects of everyday life, to which most people never gave a second thought, have now become important considerations in the fight against this deadly disease. One of the biggest global changes that this pandemic has brought about in the employment context is the shift from having to be present at the workplace every morning and clock out (at a reasonable time, if lucky), to now working from home.

The nature of the virus, the urgent and critical requirement for social distancing and the lockdowns that have been imposed in various countries to curb the spread of this pandemic have forced employers across the world to adopt work-from-home policies. With social distancing becoming an essential, the pandemic has forced traditional employers (who were otherwise sceptical of flexible working models) to allow and adapt to remote working. Organisations such as Google, Facebook, Twitter and Slack have publicly announced that they would be adopting the work from home model (either completely or in a limited manner). [ 2 ]

Governments across the world have also been recommending that employers allow their employees to work from home, to the extent this is possible, as this may curb the spread of the virus. They have also, in certain instances, gone to the extent of relaxing laws to allow employees to work from home.

The Indian government, to facilitate organisations enabling their employees to work from home, recently extended certain relaxations that they had previously provided to 'other service providers' (including information technology and information technology enabled services companies) up to 31 December 2020.

Indian employment laws are, however, struggling to keep pace with these rapidly evolving work structures. Many Indian employment laws were drafted at a time when the 'personal computer' was still science fiction and employees primarily worked in the manufacturing or agriculture industries. These laws therefore do not contemplate the modern concept of working from home and the issues and nuances stemming therefrom.

To help ease the already heavy burden on employers, we have highlighted certain Indian employment law issues, of which employers should be mindful when their employees are working from home.

Confidentiality and information security

With employees now working from home, it has become even more important for employers to implement robust and comprehensive confidentiality and information security procedures and process. In many cases, employees rely on standard internet connections or insecure Wi-Fi systems to either connect with their office servers or transmit confidential information. This could significantly expose the employer's confidential and proprietary information to attacks by third parties. In many cases, employees are unaware of the impact that their actions may have on their employers' confidential and proprietary information and the damage that may occur if such information is inadvertently leaked or disclosed. In this regard, callousness on the part of the employees could also result in exposing the employer to damages under Indian data protection laws and cause significant reputational issues. Therefore, it is recommended that employers invest in creating robust confidentiality and information security policies and also in training employees on these policies and on the best practices to be followed.

Productivity monitoring and management

A common concern for employees in the modern workplace has been the struggle to maintain a semblance of separation between work life and personal life. This problem has suddenly been magnified with the shift to working from home. Employers, on the other hand, are now faced with the challenge of ensuring their employees remain productive. Unlike in an office setup, employees who work from home may choose to spread their work across the day, rather than adhere to the regular 9 to 5 schedule. While, on the face of it, this doesn't seem like a big issue, employees working extended hours could expose the employer to claims for overtime. Therefore, it is recommended that employers focus on ensuring that their employees continue to function in a structured manner, in order to ensure productivity when working from home. It is also recommended that employers republish and remind employees about working hours and productivity policies or put in place such policies if they do not already exist.

Overtime working and compensation

The amount of overtime compensation to which employees in India are entitled depends on a number of factors, including the work that the employees are performing, the wages that the employees are earning and the states in India where the employees are located. Working from home has complicated the process of calculation and payment of overtime as employers can no longer have complete visibility into the actual number of hours that employees have worked. Additionally, in many situations employees have gone back to their hometowns and do not work from the same state in which the employer is located. This creates ambiguity regarding which state's overtime law should apply to the employee. To overcome such ambiguity, it is recommended that employers clearly document and publish their overtime policies and practices. This would clarify employees eligibility for overtime.

Discrimination and harassment

Covid-19 struck at a time when it appeared that corporate India was just about getting a handle on issues of discrimination and harassment at the conventional workplace. Working from home has now thrown up a new set of issues and challenges that employers will have to understand and address. While most employers are aware that they have a duty to prevent and punish  the sexual harassment of women at the workplace, very few employers recognise that this obligation would also extend to employees who are working from home. It is therefore important that employers review their anti-harassment and anti-discrimination policies and clarify the extended scope of their policies. It is also recommended that periodic trainings on this subject be conducted for employees who are working form home.

Business infrastructure reimbursement obligations/employee compensation obligations

Various employers across India had previously developed employee compensation structures to ensure that employees were motivated to work. These structures included night working allowances, hardship allowances, travel allowances, meal allowances etc. However, employees are also now required to make some basic investments to be able to work from home in a seamless manner. With employees now working from home many of the allowances in the employee's salary structure have become redundant. It is therefore recommended that employers re-evaluate their compensation structures to rework allowances/heads of remuneration that may have become redundant in the work from home model. This would ensure that employees are not monetarily impacted by working from home .

It appears that working from home is here to stay and may even be the future of certain types of work. Rather than treating this as a temporary measure, employers could consider taking a holistic approach to reviewing their policies and practices and to addressing situations that could arise in a work-from-home model. This could also be an opportunity for organisations to review their human resource policies from a diversity and inclusion perspective, as well as to build in flexibility, effective grievance redressal mechanisms and other tools of inclusion to ensure that this 'new normal ' is an improvement on the previous ‘normal’.

[1] Devesh Kumar ‘Half a million Covid cases in India: How we got to where we are’ (The Wire), see https://thewire.in/covid-19-india-timeline

[2] https://edition.cnn.com/2020/05/22/tech/work-from-home-companies/index.html; https://www.forbes.com/sites/zackfriedman/2020/05/08/google-facebook-amazon-work-home/#4580e7baeaea

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Indian women’s long journey towards equality in law and practice

Julia braunmiller, isabel santagostino recavarren.

Only recently, 22-year-old Sanjana committed suicide after repeated episodes of torture and harassment by her husband and his family over dowry-related disputes, and a man divorced his wife Saba and threatened to burn her alive after constantly abusing her over dowry and gifts demands. The effects of centuries of patriarchal norms that discriminate against women’s property rights are also evident in stories like K. Bina Devi and her sister, which due to the fear of disrupting the relationship with their families, gave up their share of the family property to the benefit of their four brothers in a family ceremony celebrating “haq tyaag.”

These stories underscore how social norms continue to exert a powerful influence on the lives of Indian women, even in the face of legislative efforts to address issues such as property rights and violence against women. While India has made significant strides in enacting laws to protect women, the effective implementation of these laws remains a challenge. 

India has experienced immense economic growth since its independence in 1947, but women and men do not share this growth equally. Women's economic participation remains dismally low, with only 23.0 percent of women in the labor force in 2021, compared to 72.7 percent for men, resulting in a staggering gender gap of nearly 50 percentage points. According to the Women, Business and the Law 2023 report, women in India have only 74.4 percent of the economic rights of men. Up from 49.4 percent in 1970, reforms of inheritance laws and violence against women legislation stand out: they provide the foundations for women’s access to property and their safety which are the underpinnings of socioeconomic participation of all women.

The reform process for protecting women from violence took over 60 years and saw both the Supreme Court of India and a thriving civil society playing key roles. The brutal gang rape of social worker Bhanwari Devi in 1990, during her work to combat child marriage in a village in Rajasthan, triggered an urgent debate over the need for legal protections for women in employment. As a result, the Supreme Court of India issued the Vishaka Guidelines in 1997, which filled the void in statutory law until the government enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013. However, the absence of guidelines, monitoring mechanisms, services, and budgetary allocations, are among the limiting factors to the full implementation of the law.

A similar decades-long journey led to the adoption of legislation on domestic violence, beginning with the Dowry Prohibition Act of 1961 and culminating in 2005 with the Domestic Violence Act. The shift from dowry-related violence only to a comprehensive definition of domestic violence was key. However, despite the laws’ prohibition of giving or receiving a dowry, criminalization of dowry-related violence, and of all forms of domestic violence, in 2021 alone, 6,589 dowry-related deaths were recorded, as well as 13,568 dowry-related incidents, and 136,243 incidents of cruelty by husbands or their relatives (Figure 1).

Figure 1. A Twenty-Year Sample of Crimes Against Women (2001 to 2021)

Source: 230 th Report of the Parliamentary Standing Committee 2021; NCRB 2020,2021.

Dowry, a practice deeply rooted in Indian culture for centuries, has taken an alarming and extortionate turn, putting immense pressure on the bride's family, and resulting in violence and harassment. The practice has contributed to the perception of women as burdens and less valuable than men. However, its original intent was to provide voluntary gifts to daughters upon marriage for their enjoyment and financial security, a gesture intended to support women in a society with limited property rights for them.

Access to property is vital for women's economic participation as entrepreneurs and employees. India’s Hindu Succession Act of 1956 initially denied women the right to inherit ancestral Hindu family property, reserving it for male family members only. Enacted shortly after independence, the Act aimed to codify and harmonize the various customary laws governing the Hindu community (a majority of the country’s heterogeneous society) across states. Over time, states began amending their laws to ensure equal inheritance rights for sons and daughters (see Figure 2). About 50 years after its enactment, following decades of negotiations, in 2005, the Hindu Succession Act was finally amended to secure Hindu women’s inheritance rights at the federal level. While this was considered a remarkable step forward, women across all communities (whether Hindu, Muslim, Christian, Parsi, or otherwise) continue to face challenges in law and practice when attempting to access and own property.

Figure 2. Timeline of the Federal Hindu Succession Act and State Amendments

Source: Women, Business and the Law database.

Continued legal reform, social norms interventions, and awareness campaigns are needed so that Indian women can fully claim their rights to live free from violence and be empowered economically.   Our policy brief series: How Did India Successfully Reform Women’s Rights? - Part I: Answers from the Movement on Equal Inheritance Rights ” and Part II: Answers from the Movement on Protection from Violence examines how the country has been working to overcome this divide and what important next steps should be on the agenda to allow women like Sanjana, Saba, and K. Bina to finally live their lives to the fullest.

This blog is part of a series focusing on reforms in seven economies, as documented by the Women, Business and the Law (WBL) team. Support for the work in India is provided by the Bill & Melinda Gates Foundation.

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Top 10 Supreme Court cases on misuse of Section 498A of the IPC

• August 8, 2020

Sayani Banerjee | Symbiosis Law School, Hyderabad | 8th August 2020

Table of Contents

INTRODUCTION

Previously, cases on matrimonial cruelty of a woman were dealt with by general provisions of Indian Penal Code like hurt, grievous hurt, assault etc. In the year 1983, the Indian Penal Code was amended for inserting Section 498A which primarily concerns “Cruelty against women”. The main objective behind this amendment was to protect women from being harassed by her husband or relatives of the husband. An offence under this section is cognizable, non-compoundable and non-bailable.

Section 498A of Indian Penal Code

 Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.—For the purpose of this section, “cruelty” means—

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. [i]

MISUSE OF SECTION 498A OF IPC

As per the reports of the National Crime Records Bureau (NCRB), out of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%. This provision has been always been in the news with allegations of false complaints and very low conviction rate. [ii]

There are many instances where the woman has filed the complaint with a mala fide intention of causing harassment to her husband and in-laws. In such cases, even though the husband and his relatives get acquitted, they suffer from immense mental and economic distress. The media coverage further hampers the reputation of the accused. According to the Indian Courts, misuse of 498A can be termed as legal terrorism . [iii]

This article would further discuss the Judgments delivered by the Supreme Court on the misuse of Section 498A of Indian Penal Code, 1860.

Given below are the Top 10 Supreme Court Judgments on the misuse of Section 498A of IPC

1. kans raj v. state of punjab [iv] (2000).

Sunita Kumari was found dead at the residence of her in-laws in Punjab. The death was found to have occurred not under the ordinary circumstances but was the result of suffocation. After investigation and prosecution, charges were filed under the husband and in-laws of the deceased.

The Court observed that for the fault of the husband, the in-laws or any other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than the husband are required to be proved beyond a reasonable doubt.

In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case. Thus, charge-sheet and criminal prosecution against the in-laws were quashed.

2. SUSHIL KUMAR SHARMA V. UNION OF INDIA [v] (2005)

The petition was filed under Article 32 of Indian Constitution for declaring  Section 498A  of IPC as unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are no longer falsely accused. Further, prayers were made that if any allegation under this section was unfounded then strict actions must be taken against him.

It was observed that there have been many instances where the complaints were not  bona fide  and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.

The Court opined that merely because the provision is constitutional and intra vires, it does not allow unscrupulous persons to wreck personal vendetta or unleash harassment. Till the time the legislature does not find a solution to the frivolous complaints, the courts have to take care of the situation within the existing framework.

3. NEELU CHOPRA & ANR. V. BHARATI [vi] (2009)

The appellant Neelu Chopra and Krishan Sarup Chopra are husband-wife and the respondent Bharti was their daughter-in-law. According to Bharati, her married life with Rajesh (son of appellants) was not very smooth as there were unreasonable demands for doubts and misbehaviour from Rajesh and his parents. Thus, in 1993, Bharati filed a complaint against her husband and in-laws under Section 498A of IPC. In 2006, Rajesh expired and hence the present case only lies against the in-laws.

The Court observed that the complaint did not show as to which accused had committed what offence and what was the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations were made against him more precisely but he was no more and had already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, on the basis of vague and general complaint which was silent about the precise acts of the appellants. The Court thus directed to quash the complaint under Section 482 of CrPC.

4. MANJU RAM KALITA V. STATE OF ASSAM [vii] (2009)

The wife alleged that her marital relationship was not cordial as her husband used to torture her mentally and physically. She left her matrimonial home and started residing with her father but later got to know that her husband has remarried a lady. The husband was charged under Section 498A of IPC but he denied all the allegations and preferred an appeal before the apex court.

The court relying on several precedents observed that the meaning of “Cruelty” differs in each statutory provision and hence must be established in the context of Section 498A of IPC. The conduct of the man, the seriousness of his acts must be compared with the likeliness of the woman to commit suicide, etc. It must be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint. Petty quarrels would not come under the purview of “cruelty”. Accordingly, the Court set aside the conviction order under Section 498A of IPC.

5, PREETI GUPTA & ANR. V. STATE OF JHARKHAND [viii] (2010)

The complainant Manisha was married to Kamal Poddar in the year 2006. In 2007, she alleged her husband and her husband’s relatives for demanding dowry and assaulting her physically. Thereafter, a complaint was filed under Section 498A and others of IPC.

The present appeal is filed by Preeti Gupta, the married sister-in-law and her husband against the impugned judgment passed by the High Court of Jharkhand.

The Court observed that the tendency of implicating husband and all his immediate relations is not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. Hence, the courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases.

In the present case, the allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Therefore, in the interest of justice, the court directed to quash all the charges filed against the appellants as the same could not be proved.

6. BHASKAR LAL SHARMA & ANR. V. MONICA [ix] (2014)

Monica married Vikas Sharma (son of appellants), who had two children from his first wife. After their marriage, the relationship between the husband and wife deteriorated and Monica left her matrimonial home. Thereafter, she filed a complaint against her husband and other appellants (father-in-law and mother-in-law) under Section 498A, 406 and 34 of IPC. Monica also claimed maintenance of 2 lakhs per month in addition to the interim maintenance.

The Supreme Court observed that all the essential elements required for an offence under Section 498A of the IPC were not fulfilled in the present case. The respondent took all coercive steps to ensure the presence of appellants in India without making any effort at conciliation. The court was of the view that merely because the mother-in-law kicked the daughter-in-law and threatened her with divorce, the same did not amount to cruelty under Section 498A of IPC. Thus, no case was made out against the appellants under Section 498A of IPC.

7. ARNESH KUMAR V. STATE OF BIHAR [x] (2014)

The wife alleged that her in-laws demanded 8 lakh Rupees, a Maruti car, an air-conditioner etc. from her family. When her husband got to know about these demands, he supported his mother and threatened to marry another woman. It was also alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.

Denying these allegations, the husband filed an appeal for anticipatory bail before the Supreme Court.

The Court observed that since Section 498A is a cognizable and non-bailable offence, women often use it as a weapon rather than a shield to harass her husband and his relatives. Sometimes, even the bedridden grandparents of the husband, their relatives living abroad are brought under this provision on false allegations. The Court laid down certain guidelines stating that arrest under this section must be made after reaching reasonable satisfaction and after conducting a proper investigation as to the genuineness of allegation. The Magistrate shall not order detention casually and mechanically. The Court, therefore, granted provisional bail to the accused.

8. BIBI PARWANA KHATOON @ PARWANA KHATOON V. STATE OF BIHAR [xi] (2017)

According to the facts of the case, it was alleged that the husband and his relatives killed the wife by setting her on fire. Aggrieved by the decisions passed by the lower Courts, the brother-in-law and the sister-in-law of the deceased preferred an appeal before the Supreme Court.

The court after going through the oral and documentary evidences observed that the lower courts have erred in giving the conviction orders. The evidences on the brother-in-law and sister-in-law torturing the deceased could not be proved beyond reasonable doubts. Further, the appellants used to reside in a different village and they had no common intention with the husband for committing the crime. Accordingly, the conviction orders were set aside.

9. RAJESH SHARMA & OTHERS V. STATE OF U.P . [xii] (2017)

Sneha’s father gave dowry to Rajesh at the time of their marriage. Rajesh was not happy with the amount of dowry given and hence started abusing his wife. Sneha filed a case under Section 498A of IPC against her husband and his relatives. The present appeal was filed by the relatives seeking for certain directions to prevent the misuse of Section 498A of IPC. The main contention was that in most of the cases, all family members are dragged to settle a matrimonial dispute even when they are not party to the case.

The Supreme Court gave the following directions:

Family Welfare Committee:

• The District Legal Services Authorities must constitute at least one committee in every district comprising of three para legal/volunteers/social workers/other citizen who are willing to work.
• Such constitution and working will be reviewed at least once in a year by the District and Sessions Judge of the district who is also the Chairman of District Legal Services Authority.
• No committee member can be called as witness.
• Any complaint received from the police/the Magistrate under Section 498A of IPC must be referred to and looked into by the committee.
• The committee’s report will be given to the Authority by whom the complaint is referred within one month from the date of receiving the complaint. No arrest can be made before that.

Investigating Officer: The Investigating Officer for complaints under Section 498A should undergo a training of four months for such duration (not less than one week) as may be considered appropriate.

Bail: When a bail application is filed to the Public Prosecutor/complainant with a day’s notice then it must be decided on the same day. Recovery of disputed dowry items cannot be regarded as a ground of bail if maintenance or other rights of wife/minor children can be protected.

NRIs : Impounding of passports or issuing Red Corner Notice must not be a routine for NRIs.

Video Conferencing: Personal appearance of all family members and particularly outstation members may not be required and the trial court can grant exemption and permit video conferencing.

The Court observed that large number of cases under Section 498A on trivial and false issues is a matter of serious concern. Apart from directing the investigating officers and trial courts, involving the civil society in administration of justice can be one of the steps to remedy this situation

10. SOCIAL ACTION FORUM FOR MANAV ADHIKAR & ANOTHER V. UNION OF INDIA MINISTRY OF LAW AND JUSTICE & ORS . [xiii] (2018)

 The petition was filed under Article 32 of Indian Constitution seeking uniform system of monitoring and reviewing the cases filed under Section 498A of IPC. It was contended that there are no concrete data specifying that the section has been misused. The social purpose behind Section 498A is being lost as a result of various qualifications and restrictions prescribed by the apex court in case of Rajesh Sharma and others v. State of U.P and another.

The three judge bench referred to the principles laid down in the cases of Joginder Kumar v. State of U.P [xiv] , D.K. Basu v. State of W.B [xv] ,  Lalita Kumari v. Government of U.P. [xvi] and  Arnesh Kumar v. State of Bihar [xvii] and directed the investigating officers to be careful and be guided by the same.

The Court held that the directions with respect to Family Welfare Committees and their duties are not in accordance with the provision of Code of Criminal Procedure, 1973. The offence of cruelty is a non-bailable and cognizable offence but due to the direction making it impossible to arrest before the report of such committee has made this ineffective. Thus the direction given in Rajesh Sharma case has been modified by the court.

• The direction with respect to the constitution and duties of Family Welfare Committee has been declared impermissible.
• The directions pertaining to the 498A settlement has been modified to include that if a settlement is arrived at, the parties can approach the High Court under Section 482 of CrPC. The High Court, keeping in view the law laid down in the case of  Gian Singh v. State of Punjab, [xviii] shall dispose of the same.

[i] Section 498A of Indian Penal Code, 1860

[ii] “Crime in India 2013 statistics” Published by National Crime Records Bureau

[iii] https://timesofindia.indiatimes.com/city/delhi/Misuse-of-dowry-provisions-is-legal-terrorism Court/articleshow/7615680.cms

[iv] Kans Raj v. State of Punjab, AIR 2000 SC 2324

[v] Sushil Kumar Sharma v. UOI, (2005) 6 SCC 281

[vi] Neelu Chopra & Anr. v. Bharati, AIR 2009 SC(Supp) 2950

[vii] Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330

[viii] Preeti Gupta & Anr v. State of Jharkhand, (2010) 7 SCC 3363

[ix] Bhaskar Lal Sharma & Anr. v. Monica, (2014) 3 SCC 383

[x] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

[xi] Bibi Parwana Khatoon @ Parwana Khatoon v. State of Bihar, (2017) 6 SCC 792

[xii] Rajesh Sharma & Ors. v. State of U.P., 2017 SCC OnLine SC 821

[xiii] Social Action Forum for Manav Adhikar & Another v. UOI Ministry of Law and Justice & Ors., (2018) 10 SCC 443

[xiv] Joginder Kumar v. State of U.P., (1994) 4 SCC 260

[xv] D.K. Basu v. State of W.B., (1997) 1 SCC 416

[xvi] Lalita Kumari v. Government of U.P., (2014) 2 SCC 1

[xvii] Supra note x

[xviii] Gian Singh v. State of Punjab, (2012) 10 SCC 303

• 498a judgments 498b ipc
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the wife filed a complaint against the husband father in-law and mother in-law in the year 2016 under section 498 A. dowry harassment physically and mentally. the marriage was performed in the year 1996. all the years the de-facto complainant lived along with husband. after 26 later she filed a complaint against the husband is it enforceable in the 498 A

the wife filed a complaint against the husband, father -in-law, mother -in-law in the year 2016,under section 498A. the marriage was performed in the year 1996. they blessed with two female child. at the time of filling the complaint they are studying,all the expenses provided by the husband. the de-facto- complainant living with her husband nearly 26 years. is it enforceable under 498A

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Sayani Banerjee

I am a 3rd Year (BBA LLB) student of Symbiosis Law School, Hyderabad. Along with law, I am also pursuing Company Secretary (CS) from ICSI. I was ranked All India 18th in ISC, 2018 examination. My areas of interest includes Corporate Law, Intellectual Property Law and Criminal Law. Apart from studies, I am a trained classical dancer and have received several awards for the same.

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Employment Law Overview India

Cross-border remote work faqs india, employees vs independent contractors india, starting a business in india.

• 01. Hiring Practices
• 02. Employment Contracts
• 03. Working Conditions
• 04. Anti-Discrimination Laws
• 05. Pay Equity Laws
• 06. Social Media and Data Privacy in India
• 07. Termination of Employment Contracts
• 08. Restrictive Covenants
• 09. Transfer of Undertakings
• 10. Trade Unions and Employers Associations
• 11. Employee Benefits

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Introduction

The Constitution of India (“ Constitution ”) is the cornerstone of individual rights and liberties, and provides the basic framework within which all laws in India, including laws relating to labour and employment, must operate. The Constitution guarantees certain fundamental rights to individuals such as the right to life, privacy, equality before the law and prohibition of discrimination in public education and employment on the basis of religion, sect, gender and caste. The Constitution recognises the ‘right to livelihood’ as an integral part of the fundamental right to life.

In addition to fundamental rights, the Constitution also envisages certain ‘directive principles’ which serve as a guide to the legislature towards fulfilling social and economic goals. Given India’s history, social justice has always been at the forefront of a number of Indian regulations, specifically labour and employment laws. It is important to note that several labour laws in India have been designed from a worker emancipation perspective – including those relating to factories, mines, plantations, shops and commercial establishments, as well as those relating to payment of wages, regulation of trade unions, provision of social security, industrial safety and hygiene.

However, given changing economic requirements in recent times, especially in light of the ongoing COVID-19 pandemic, the Indian Government has been increasingly conscious of the needs of businesses as well. In the last 6 months, the Indian Government has already brought in certain significant changes in labour laws with the aim of improving the ease of doing business in India. Further, there are several other big-ticket reforms in the pipeline, which we hope will see the light of day in the near future.

• Labour and employment laws are listed under the Concurrent List in the Constitution, which means that the Union Parliament (federal legislature) and State Legislatures have co-equal powers to enact laws relating to all labour and employment matters in India. Typically, the Union Parliament enacts a Central law, while the States formulate rules thereunder. Additionally, States often enact standalone legislation as well.
• One of the central principles of Indian labour and employment law is that they distinguish between employees who are defined as ‘workmen’ and those who are in management / supervisory / administrative roles (‘non-workmen’). Most of the legislation regulates the service conditions of workmen, which are subject to far greater statutory protections. The service conditions of non-workmen are typically governed by the terms of the relevant employment contracts and the internal policies of the organisation. Determining whether a particular employee is a workman or not, has to be undertaken on a case-by-case basis.
• India does not generally recognise employment-at-will. Further, in terms of the Indian Contract Act, 1872 (“ Contract Act ”), which is the principal legislation governing contracts in India, agreements that restrain trade, business or one’s profession are void – this could have an impact on employment bonds, and on non-compete and non-solicit covenants in employment contracts.
• Trade unions are typically restricted to the more traditional forms of business, such as the manufacturing sector; however, in recent times there has been some unionisation in the Information Technology (“ IT ”) sector as well. The Trade Unions Act, 1926 (“ Trade Unions Act ”) provides for registration of a trade union and the rights and liabilities of a registered trade union. It is also proposed to recognise certain trade unions both at the Central and State Government levels, which would then participate in policy-making.
• The Industrial Disputes Act, 1947 (“ ID Act ”) is the key legislation that governs industrial relations in India. The ID Act aims at securing industrial peace and harmony by providing the process for settlement of industrial disputes arising between two or more employers; between employers and workmen; and disputes among workmen.
• The Equal Remuneration Act, 1976 (“ ERA ”), mandates the payment of equal remuneration to male and female workers who undertake similar tasks. The Contract Labour (Regulation and Abolition) Act, 1970 (“ CLRA ”) is another major legislation that pertains to regulating contract labour in India.

Legal framework

Given that both the Union Parliament (federal legislature) and State Legislatures have co-equal powers regarding labour and employment laws, there are currently hundreds of laws relating to labour and employment in India, including around 50 statutes enacted by the Union Parliament. Most of these laws concern blue-collar employees or workmen, owing to the historical emphasis on improving working conditions for these employees. On the other hand, the legal structure relating to non-workmen (i.e., employees having managerial duties or white-collar employees) is not as comprehensive and has evolved in recent decades mainly through judicial pronouncements.

Difference Between Workmen and Non-Workmen

Section 2(s) of the ID Act defines a workman as a person who is employed to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward. The definition however excludes the following persons: (i) those who are employed mainly in a managerial or administrative capacity; (ii) those who, being employed in a supervisory capacity, draw a salary exceeding INR 10,000 (~USD 136) per month or (iii) those who exercise, either by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature.

That said, it is important to note that the wage ceiling of INR 10,000 (~USD 136) mentioned above is not the definitive criterion in respect of ascertaining whether or not a particular employee will be categorised as a workman. There have been multiple occasions when Indian Courts have held that whether an employee is a workman or not depends on the exact nature of the job responsibilities and duties and the context of his/her role in the organisation, rather than merely the compensation package. Determining whether a particular employee is a workman or not, has to be undertaken on a case-by-case basis. It does not depend on the level of education or the designation. Various judicial precedents have laid down that in order to determine an employee’s status as a ‘workman’, the actual, substantial and predominant work being performed by her is decisive, rather than the employee’s remuneration/designation. The other factors that are useful to determine whether an employee is a workman or a non-workman, is by taking into account whether the employee had any managerial responsibilities and whether he had authority to take any decision on behalf of the organisation.

Employees considered to be workmen under the ID Act have several additional rights – for instance,  changes to their conditions of service and any termination of their employment can only be undertaken as per the specified process guaranteed under the ID Act. Further, they can approach labour commissioners and/or the industrial tribunals/labour courts in case of any unjustified termination and/or unfair labour practice, on part of the employer.

The terms of service of non-workmen (i.e., those who mainly work in a managerial or administrative capacity) are ordinarily governed by the State-specific shops and establishments legislation (“ S&E Act ”), the terms and conditions of their contracts of employment and the internal policies of an organisation. Persons occupying managerial and confidential positions in an organisation are exempt from the S&E Act of certain States such as Karnataka, Andhra Pradesh, Kerala, Madhya Pradesh, Tamil Nadu and Maharashtra, among others. These employees will typically fall outside the scope of the ID Act; there are various judicial pronouncements which have held that non-workmen are not entitled to claim protection under the ID Act.

Other Factors

Apart from the classification of employees into workmen and non-workmen, the applicability of labour legislation also depends on the nature of activity that the employees are engaged in as well as the place of work – for instance, different laws apply depending on whether the place of work is a factory, plantation, mine, shop, or commercial establishment. Certain labour laws also take into account the number of employees engaged at a particular place of work; for instance, the scope and applicability of certain social security benefits varies, depending on the number of employees engaged in an establishment, the wages earned, and the position of the employee at the workplace.

Overview of Key Labour Laws

The various labour and employment laws in India can be broadly categorised into two important themes, namely (i) employer-employee relations; and (ii) service or working conditions, such as wages, social security and working hours. Enactments such as the ID Act, the Trade Unions Act, the Industrial Employment (Standing Orders) Act, 1946 (“ IESO Act ”) and CLRA are focused primarily on employer employee relations, whereas enactments such as the Factories Act, 1948 (“ FA Act ”), the various S&E Acts, the Payment of Wages Act, 1936 (“ Wages Act ”), the Minimum Wages Act, 1948 (“ MW Act ”) and the Payment of Bonus Act, 1965 (“ Bonus Act ”) are focused primarily on service conditions of employees. There are both Central and State rules framed under each of the aforementioned enactments. In addition, there are enactments such as the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (“ EPF Act ”), the Employees State Insurance Act, 1948 (“ ESI Act ”) and the Payment of Gratuity Act, 1972, (“ PG Act ”) which provide for certain social security benefits to employees.

Industrial Disputes Act, 1947 : The scope of this legislation is primarily restricted to workmen alone. However, the principles and processes laid down in this legislation have been replicated in other statutes with wider application. The ID Act inter alia covers industrial disputes, industrial action (i.e., strikes and lockouts), regulation of retrenchment, layoffs, closure, transfer of undertakings, envisages the constitution of works committees and grievance redressal committees, and also regulates changes in certain service conditions of workmen.

Shops and Commercial Establishments Act : The S&E Act is State specific – almost all States in India have enacted their own S&E Act. The S&E Act regulates service conditions of employees engaged in shops and commercial establishments, which includes most private companies and firms. It regulates hours of work, payment of wages, overtime, leave, holidays, and other conditions of service.

Employees Provident Fund and Miscellaneous Provisions Act, 1952: The EPF Act read with all rules and schemes framed thereunder is one of the major social security laws in India. Under the EPF Act, both the employer and employee, subject to certain monetary limitations and conditions, are required to contribute 12% of an employee’s ‘basic wages’ to the Employees Provident Fund / EPF. The employer’s contribution is also directed to a pension fund, from which an employee would be entitled to monthly pension upon retirement. The EPF and pension scheme has extensive rules in relation to contribution and withdrawal of funds. In light of the COVID-19 crisis, the Indian Government had temporarily reduced the above contribution rate to 10 % for the months of May, June and July 2020.

Payment of Wages Act, 1936 : The Wages Act regulates the mode and method of payment of wages to certain categories of employees, namely, those to whom the payable wages do not exceed INR 24,000 (~USD 330) per month, and to those employed in factories and industrial establishments. The Wages Act provides that wages must be paid without deductions of any kind except certain authorised deductions, such as taxes on income, fines, or deductions owing to absence from duty.

Factories Act, 1948 : The FA Act was enacted to regulate working conditions in factories where manufacturing operations are undertaken. It has extensive provisions with respect to the health, safety and welfare of persons who work in factories, and also regulates the working conditions of persons working in a factory.

Minimum Wages Act, 1948 : The MW Act provides for the payment of minimum rates of wages to employees working in specified kinds of employment, termed ‘Scheduled Employment’. Under the MW Act, the Government is required to fix industry-specific daily and monthly minimum wages, depending on the skill of the employee. Once minimum wages have been fixed, an employer is required to pay to every employee engaged in Scheduled Employment, wages at a rate that is not less than the minimum rate of wages fixed by the concerned Government for that class of employees.

Industrial Employment (Standing Orders) Act, 1946 : The IESO Act is generally applicable to every industrial establishment wherein 100 or more workmen are employed, subject to any specific State rules in this regard. Certain States such as Karnataka, Maharashtra and Tamil Nadu have reduced the applicable threshold. The IESO Act requires employers in industrial establishments to formally define conditions of employment, such as classification of workmen, manner of intimating wage rates, working hours, leave periods, recruitment, shift working, attendance, procedure for availing leave, transfer of workmen, termination of workmen, and inquiries for misconduct. Such conditions are referred to as the ‘Standing Orders’. The State specific rules framed under the IESO Act provide for ‘Model Standing Orders’, which are a set of default conditions applicable to those industrial establishments that have not framed their own Standing Orders or to those industrial establishments that are awaiting certification from the Government on their own Standing Orders. In most cases, the internal employee handbook/service regulations of the employers are generally customised and filed as the Standing Orders of that establishment. The IESO Act however provides that while the Standing Orders adopted by an employer need not necessarily be a duplication of the Model Standing Orders, they should, as far as practicable, be in conformity with the same.

Trade Unions Act : The Trade Unions Act provides for registration of a trade union and the rights and obligations of a registered trade union. The minimum number of persons required to apply for registration of a trade union is 7; however, a trade union cannot be registered unless at least 10% of the workmen or 100 workmen (whichever is lesser, and subject to a minimum of 7 workmen), employed in an establishment are its members. While employers in certain States are not legally bound to recognise  trade unions or encourage collective bargaining, a registered trade union can enter into collective bargaining agreements with the employer for better wages and service conditions.

Contract Labour (Regulation and Abolition) Act, 1970 : The CLRA provides for regulation of contract labour in establishments and provides for its abolition in certain circumstances. A ‘workman’ is deemed to be ‘contract labour’ if he is hired in connection with the work of an establishment, by or through a ‘contractor’, with or without the knowledge of the ‘principal employer’. The term contractor is defined to mean a person who undertakes to produce a given result for an establishment through contract labour or who supplies contract labour for any work of the establishment. The manager or occupier of the establishment is the principal employer. Under the CLRA, every principal employer is required to make an application in the prescribed form, for the registration of the establishment with the labour authorities. Every contractor under the CLRA Act must also be licensed and should undertake work through contract labour only in accordance with such license. The contractor is required to pay wages and provide facilities for the welfare and health of the contract labour, which includes providing rest rooms, canteens, wholesome drinking water, toilets, washing facilities, and first aid facilities in every establishment. The above compliances vary depending on the number of contract labour engaged in an establishment. It is important to note that as per the CLRA, in case the contractor fails to pay wages to the contract labour, the principal employer will be responsible for the same.

New Developments

• Codification of Labour Laws

As part of a major rationalising and simplifying exercise, India has  consolidated about 29 of the 44 Central laws into 4 comprehensive labour codes: Code on Wages, 2019 (“ Code on Wages ”); the Occupational Safety, Health and Working Condition Code, 2020 (“ OSHW Code ”); the Industrial Relations Code, 2020; (“ IR Code ”); and the Code on Social Security, 2020 (“ Social Security Code ”).

• Code on Wages

The Code on Wages was notified by the Ministry of Law and Justice in 2019. The Central Government has notified very few of the provision of the Code on Wages. However, it is yet to notify the other provisions of the Code on Wages. The Code on Wages subsumes and amends the following Central labour laws: the Wages Act; the MW Act; the ERA; and the Bonus Act. Further, on 7 July 2020, the Indian Ministry of Labour and Employment published the draft Code on Wages (Central) Rules, 2020 for seeking input from the stakeholders. These rules inter alia, prescribe the process and fixation method of calculating the minimum rate of wages, procedures for making payments, the process of constituting the Central Advisory Board for the purpose of fixing the floor wage, procedures for the deduction of wages and recovery, etc.

• Code on Social Security

The Social Security Code has been passed by both houses of the Indian parliament and received the President’s assent on 28 September 2020.  However, the Social Security Code will enter into force (and likewise become enforceable) on a date yet to be notified by the Central Government. The Social Security Code will subsume the following Central labour laws: the Employees’ Compensation Act, 1923; the Employees’ State Insurance Act, 1948; the EPF Act; the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959; the Maternity Benefit Act, 1961; the PG Act; the Cine Workers Welfare Fund Act, 1981; (h) The Building and Other Construction Workers Welfare Cess Act, 1996; and the Unorganised Workers’ Social Security Act, 2008. One of the most important aspects of the Social Security Code is that it includes within its ambit, certain non-traditional types of occupations/workers such as gig workers, platform workers and unorganised workers, and makes provisions for providing social security benefits to them.

• Industrial Relations Code, 2020

The IR Code has been passed by both houses of the Indian Parliament and received the President’s assent on 28 September 2020. However, it shall come into force and become law on a date yet to be notified by the Central Government. The IR Code shall subsume the following Central labour laws: the ID Act; the IESO Act; and the Trade Unions Act. The applicability of the IR Code (and its Chapters thereof) on industrial establishments depends on various factors, such as the number of workers in an industrial establishment, as well as the nature and type of the industrial establishment.

The IR Code has introduced certain key changes to the current labour law. The IR Code has widened the scope of the term worker to include persons employed in a supervisory category, earning wages up to INR 18,000. Currently, the ID Act defines the term ‘workman’ to, inter alia, include persons in a supervisory category, earning wages up to INR 18,000. Significant changes with respect to the retrenchment process of workers have also been made. In regard to declaring a strike, the IR Code requires workers to give their employer a prior 14 days’ notice before going on strike. This requirement under the ID Act was limited to employers carrying out a public utility service. The IR Code also makes provisions for the recognition of trade unions. Further, penalties under the IR Code have increased significantly.

• Occupational Safety, Health and Working Conditions Code, 2020

The OSHW Code aims to consolidate and amend the legislation that currently regulate occupational safety, health and working conditions of individuals employed in establishments, while providing the required flexibility for making necessary rules and regulations with respect to the subject matter thereof. The OSHW Code has been passed by both houses of the Indian Parliament and received the President’s assent on 28 September 2020. However, it shall come into force (and become enforceable) on a date yet to be notified by the Central Government.

The OSHW Code will subsume the following Central labour laws: the FA Act; the Mines Act, 1952; the Dock Workers (Safety, Health and Welfare) Act, 1986; the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; the Plantations Labour Act, 1951; the CLRA; the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; the Working Journalist (Fixation of Rates of Wages) Act, 1958; the Working Journalist and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1958; the Motor Transport Workers Act, 1961; the Sales Promotion Employees (Conditions of Service) Act, 1976; the Beedi and Cigar Workers (Conditions of Employment) Act, 1966; and the Cine Workers and Cinema Theatre Workers Act, 1981. The OSHW Code is applicable to all ‘establishments’ including: places where an industry, trade, business, manufacturing or occupation is carried out; motor transport undertakings; newspaper establishments; audio-video productions; building and construction works; and plantations, provided that there are a minimum of 10 workers employed in such places of work.

The OSHW Code is also applicable to establishments engaged in hazardous/life threatening activities, mines or ports, regardless of the number of workers engaged therein. With respect to factories, the OSHW Code applies to: i) factories wherein 20 or more workers are engaged in the manufacturing process carried out with the aid of power; ii) factories wherein 40 or more workers are engaged in the manufacturing process carried out without the aid of power.

The OSHW Code imposes certain new obligations on employers, such as the obligation to conduct free health checkups for a certain class of employees, duty to issue appointment letters to every employee, and an obligation to report certain accidents and diseases. Further, the employer shall also provide separate bathing places and locker rooms for male, female and transgender employees.

• Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act, 2019 (“ Transgender Act ”) entered into force in December 2019. The Transgender Act aims to provide for the protection of rights of transgender persons and their welfare, and for matters connected therewith. Amongst other provisions, the Transgender Act prohibits discrimination against a transgender person, including unfair treatment in relation to employment as well as discrimination in matters connected with employment (recruitment and promotion), etc. Employers are also required to designate a complaint officer, who shall be responsible for dealing with complaints with respect to violations of the Transgender Act and shall also ensure compliance with the same.

• Labour law reforms in light of COVID-19 crisis

Several States, such as Andhra Pradesh, Bihar, Punjab, Rajasthan and Karnataka have issued ordinances to relax the applicability of the ID Act to certain establishments, such that provisions relating to layoffs, retrenchment, closure of certain establishments, wherein the number of workmen employed is not less than one hundred, has recently been increased to three hundred workmen. In addition to the above, some States have introduced changes in the retrenchment compensation, which was previously calculated as fifteen days’ average pay for every completed year of continuous service, or any part thereof in excess of six months.

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How to Become Supreme Court Lawyer in India? Step by Step Guide

The judiciary is one of the four pillars of democracy. And in India, the Supreme Court is the highest judicial authority in the country. Thus, it automatically makes the Supreme Court lawyers one of the country’s pivotal professionals. But is it that easy to attain this prestigious position? Certainly not. However, with utmost dedication and sincerity, the chances of being an advocate in the Hon’ble Supreme Court of India rise exponentially. 

Undoubtedly, students are perplexed about their careers after passing class 12th. But we have it sorted out for those who wish to pursue litigation. This blog will explain in detail how to become a Supreme Court lawyer . 

Step-by-Step Guide to Become a Supreme Court Lawyer in India

To see oneself as an advocate in the Supreme Court of India requires enduring many hardships. Along with a solid academic foundation, the candidates should learn how to deal with real-world problems. As in this strenuous journey, the aspirants must dedicate time to practising what they have learned to solve real cases. 

Now, let us see the steps required to achieve the prestigious position of Supreme Court advocate. 

Step 1: Completing the Undergraduate degree in Law 

The very first step towards the goal of becoming a Supreme Court lawyer is to enrol in an LLB programme. Those candidates who have recently cleared the higher secondary will go for a 5 year integrated course through CLAT or other private colleges. Although, those who have graduated in other disciplines would need to do a 3-year LLB programme. 

Step 2: Gaining Experience

One of the most crucial elements in becoming a lawyer is to gain practical experience. To do so, a student can wait for the completion of their LLB programme. However, it is advisable to engage in internships with advocates or law firms during the tenure of the course. 

Absorbing practical knowledge and building the legal skills required to solve real-world problems is essential. It will make you industry-ready with added professionalism. 

Step 3: Enrol with State Bar Council

The profession of a lawyer in India is not only highly respected but is of utmost importance as well. Thus, to ensure sanity in the realm, it is mandatory for any lawyer first to get registered with the State Bar Council to be eligible to practise law as an advocate in the court.

Only after BCI approves them can they use their theoretical knowledge in the courts of India. 

Step 4: Clear All India Bar Examination (AIBE) 

Like other professions that hold a qualifying examination for their candidates, the field of law does the same. Here, aspiring lawyers must clear the All India Bar Exam to practise in the courts of law. This 100 marks exam is held annually by the Bar Council of India. The entire paper is based on objective questions for which the candidates get 3 hours and 30 minutes. And upon passing the examination and obtaining the certificate, the advocates can practise in court.

Step 5: Acquire Required Experience

Being a Supreme Court lawyer in India is a complex process. It takes a minimum of 6 years after completing the LLB programme. Now, how is that so? The answer is experience. 

One can practise as an advocate in the Supreme Court of India after completing 5 years of experience at subordinate courts, i.e., district and high courts. And then can go on to serve as a trainee under a Supreme Court advocate before independently practising the law. 

Step 6: Pass the Advocate on Record Exam

Another mandatory step before practising in the Supreme Court of India is to clear their examination. The Advocate on Record Exam (AOR) is conducted to evaluate the calibre of the lawyer practising in the apex court of India. Therefore, when the lawyer passes the exam, they are qualified to practise law in the Supreme Court of India. They must register as an Advocate on Record Member in the Supreme Court Bar Association.

Step 7: Own an Office 

After completing each required step, the lawyer must register for an office space. One thing that must be taken care of is that the registered office is within 10 miles of the premises of the Supreme Court. Also, the presence of a registered office clerk is mandatory.

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Detailed Structure of AOR Examination

One examination unique to those who aspire to be Supreme Court lawyers is the Advocate on Record exam. It ensures that those practising law there are well-versed with the required knowledge and legal skill. And after passing this exam, the lawyers are given a prestigious title and a huge responsibility. Thus, it is evident that the AOR exam isn’t an easy nut to crack. 

Let us see the complete structure of the Advocate on Record Exam. 

• The AOR examination is conducted once every year to determine which lawyers can practise law and represent their clients in the Supreme Court of India.
• The entire exam is split into 4 sets of papers conducted on 4 different days. 

Paper 1: Practice and procedure of Supreme Court

Paper 2: Drafting

Paper 3: Professional Ethics

Paper 4: Leading Cases

• Each paper has 100 marks and is filled with descriptive questions. There are 27 questions spread over four papers. 
• The time duration for each paper is 3 hours.  
• The lawyer must secure 50% in each paper and a total of 60% marks to pass the examination.
• Although, if the candidate couldn’t secure 60% marks in aggregate but successfully got 50% marks in each paper, or vice versa, they can reappear for the examination. However, the lawyer can only choose one of their preferred papers to repeat. 
• The candidates are only given five attempts to appear in the AOR examination. 
• The pattern of exam papers varies almost every year.
• The committee of three judges, chosen for this task by the Chief Justice of India, appoints special examiners for the AOR examination.

If you are wondering how to become a Supreme Court advocate, enrol in LL.M. in Corporate & Financial Law from JGU to learn from the cutting-edge curriculum about the legal aspect of corporate finance. The course will give you a thorough knowledge of the legal intricacies of corporate law firms, structuring commercial deals, and much more.

What Is Independent Law Practice?

In this journey of being a successful advocate, guidance from seniors is of great value. However, after getting the required training, several lawyers operate their legal firms rather than assist in a larger organisation. In this setup, with the freedom of choosing cases and clients comes an equal cut of unique challenges. 

With autonomy over work schedules come managing administrative tasks and limited resources. Here, one needs to build a reputation with a sound track of clients, which requires strong networking skills. Another element that lawyers in their independent journey must remember is to uphold ethical principles. This will help them gain high credibility and trust, two crucial components of the profession. 

Being an independent law practitioner, one also learns entrepreneurial skills . It also allows young lawyers to choose their niche and specialise in it. 

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Challenges of Young Lawyers Practising in SC/HC

The respect of being a lawyer can only be enjoyed after dealing with its fair share of challenges. Young law practitioners of the Supreme Court or high court especially go through some common issues. These affect them deeply in the initial days of their career. Some of these challenges are listed below:

• Lack of experience
• Dealing with higher expectations 
• Extensive working hours
• Difficulty in dealing with an environment of practise

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Skills to be a successful advocate.

Every profession demands a particular set of skills to ace it. Similarly, in the profession of an advocate, there are a particular set of skills that one must master to be a successful career in practising law. These skills are also the answer to how to become a lawyer of Supreme Court . So, let us dive into it. 

Public speaking skills

The first and foremost quality of a lawyer everyone notices is how they present their argument in a court of law. Therefore, it must be a lawyer’s most vital skill as it holds the power to turn things favourable on their part. 

Some elements that their speech must have are information, logic, clarity, terminologies, and expression. 

Investigating and applying logic

The various things that make a lawyer best at their job is how their mind works. Unlike the common people, they dive deep into a subject and investigate it using their analytical and logical skills.

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It might look like a lawyer works in isolation, but that’s not the reality. They work closely with secretaries, support staff, and some experts. Thus, the skill of working in a team is crucial for lawyers. 

Perseverance

In the journey of being a successful advocate, perseverance is one quality that the lawyer must have. During the initial days and even after attaining a good position, there will be days when the situation will be much more harsh than expected. And in those days, perseverance will help surpass it all.

Learn Law Courses from the World’s top Universities. Earn an LLM Degree to fast-track your career.

To be a Supreme Court lawyer in India demands a lot of dedication, perseverance and honest commitment towards the pursuit of justice. Challenges will come your way even after this, but the entire journey will be rewarding. 

A tip for all young lawyers would be to build strong networks and seek mentorship. Along with this, staying updated with legal developments is essential. All in all, there shouldn’t be any compromise in gaining advocacy skills, as this will only help you reach heights in this esteemed profession.

You can also sign up for LLM in Dispute Resolution to scale your career under the guidance of industry mentors and learn how to become an advocate in Supreme Court . The relevant case studies and dissertation will provide you with in-depth knowledge. 

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Frequently Asked Questions (FAQs)

Becoming a supreme court advocate in India is quite tough, considering its challenging journey. But on average, it can take 5-7 years or more for an aspirant to reach the stage where they can apply to practise as a Supreme Court advocate.

This prestigious career path demands sheer dedication from students throughout the entire process. Whether completing their LLB degree, passing the All India Bar examination, or clearing the AOR exam. This journey includes a post-qualification experience of 5 years divided into 3 years of practice in litigation courts and 2 years in the High Court. Also, training under a Supreme Court advocate is essential.

To become a high court advocate, first, one needs to complete their LLB degree and then move to gain experience as an advocate in lower courts. With the required practical experience, the aspirants should enrol for the All India Bar Examination (AIBE). Only after completing these steps can one practise as a lawyer in any high court.

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Citizenship Law That Excludes Muslims Takes Effect, India Says

The law sparked lethal riots when it was passed. Now, after a four-year delay, it has come into force on the eve of Prime Minister Narendra Modi’s re-election campaign.

By Alex Travelli and Sameer Yasir

Reporting from New Delhi

Weeks before a national election, the Indian government has abruptly announced that it will begin enforcing a citizenship law that had remained dormant since late 2019 after inciting deadly riots by opponents who called it anti-Muslim.

The incendiary law grants Indian citizenship to persecuted Hindus, Sikhs, Buddhists, Jains, Parsees and Christians from a few nearby countries. Muslims are pointedly excluded.

With a characteristic thunderclap, the government of India’s prime minister, Narendra Modi, made a short declaration on Monday night that it had finalized the details that would bring the law, known as the Citizenship Amendment Act, into force.

The government’s action, coming just before India announces the dates for an election expected in April and May, shows Mr. Modi delivering on a promise, and could change the electoral math in districts with Hindu refugees who stand to benefit from the law.

Politics aside, the law is not expected to significantly change the demography of India’s diverse population of 1.4 billion, at least not on its own. But it makes plain the power that Mr. Modi wields to redefine the Indian republic, steamrolling any resistance to his vision of a Hindu-first state.

The law spent more than four years in hibernation after protests by hundreds of thousands of Muslims and other Indians who were outraged by the idea that citizenship would be defined with reference to religious identity.

In February 2020, while President Donald J. Trump was on a state visit, riots broke out in the capital, New Delhi. Whole neighborhoods were devastated in the northeastern part of the city, where gas cylinders were turned into makeshift bombs and tossed into mosques. At least 50 people were killed, most of them Muslims.

A high-profile protest camp at a place called Shaheen Bagh, operated mainly by female protesters from different religious groups, carried on until late March before being dispersed. And then Covid-19 intervened, helping to suppress further protest.

The government justified the new rules as a humanitarian response to the plight of minorities in Pakistan, Bangladesh and Afghanistan, India’s three big Muslim-majority neighbors. Yogi Adityanath, a Hindu monk turned political ally of Mr. Modi, wrote on social media that rescuing communities “who are suffering from religious brutality” would bring “joy to humanity.”

It is hard for many to take this explanation at face value. For one thing, the inclusion of some countries and exclusion of others looks arbitrary. For another, Muslims persecuted because of their faith, for instance the Ahmadiyya and Shiites of Pakistan, do not make the cut for Indian citizenship. The Office of the U.N. High Commissioner for Human Rights called the law “fundamentally discriminatory.”

To critics, the Citizenship Amendment Act looks like one part of a pincer movement against Muslims. It was brought to life at the same time as a national citizenship registry that would allow the government to expel undocumented residents, even if their families had lived in India for generations.

As Mr. Modi’s right-hand man, Amit Shah, said at the time, “Please understand the ‘chronology’: first the C.A.A.,” and then the registry. In other words, first non-Muslim refugees would be allowed citizenship. Then the refugees who remained would be expelled. More than 1,000 “declared foreigners” have been detained in the northeastern state of Assam.

On Monday, protests erupted there and in several other states after the government announced enforcement of the citizenship law. Shaheen Ahmed, a doctoral student in Kerala, said that he and other students came out to protest across his state.

“We were demanding the rollback of the law when police came and started beating us,” Mr. Ahmed said.

One group that rejoiced at the news is a large community of lower-caste Hindus in West Bengal, whose ancestors came to India from Bangladesh. Their support for Mr. Modi in the upcoming election could tip several parliamentary seats into the majority that he is expected to achieve anyway.

Other Hindu refugees, from Pakistan, had already been acquiring citizenship. More than 1,100 have been granted that status in Mr. Modi’s home state, Gujarat, since 2016. The point of the Citizenship Amendment Act will be to make these naturalizations possible on a national level, and more visible.

Alex Travelli is a correspondent for The Times based in New Delhi, covering business and economic matters in India and the rest of South Asia. He previously worked as an editor and correspondent for The Economist. More about Alex Travelli

Sameer Yasir covers news from India and other countries in the region. He is based in New Delhi. More about Sameer Yasir

India says new law saves persecuted refugees. Rohingya ask ‘Why not us?’

As New Delhi claims to help persecuted minorities in South Asia through the law, the mainly Muslim refugees from Myanmar face deportation.

Kolkata, India – Muhammad Hamin has been unable to sleep at night since March 8 when the government of the northeast Indian state of Manipur ordered the deportation of Rohingya refugees.

On that day, the state’s Chief Minister N Biren Singh – who belongs to Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP) – posted on X that his government had deported the first batch of eight refugees from a group of 77 members who had “entered India illegally”.

Keep reading

How is renewed violence in myanmar affecting the rohingya, india police arrest 74 rohingya refugees in latest crackdown, rohingya refugees fled myanmar only to ‘live in fear’ in india, ‘dark day’: india on edge over religion-based citizenship law before polls.

The deportation was later stopped after Myanmar authorities refused to work with India on the matter.

Hamin, a Rohingya who came to India in 2018, is in New Delhi, some 1,700km (1,050 miles) away from Manipur. But the 26-year-old, who is pursuing a bachelor’s degree in business administration in India’s capital, spends his time watching television or scrolling through social media platforms on his mobile phone for any updates on attempts to deport members of his community.

He does this even as he observes the dawn-to-dusk fasts during the holy month of Ramadan.

“The news of deportation has certainly triggered a panic button among most of the Myanmar nationals living in India as nobody knows who would be the next to go out and face the same horror of violence and bloodshed,” he said.

For many Rohingya refugees in India, that fear is tinged with bitter irony. Three days after the Manipur government began its crackdown on Rohingya, Modi’s government on March 11 announced the implementation of a controversial citizenship law aimed at granting Indian citizenship to persecuted minorities from neighbouring countries.

The Citizenship Amendment Act (CAA) grants nationality to six religious minorities – Hindus, Sikhs, Buddhists, Jains, Parsis and Christians – who had come to India from Pakistan, Bangladesh and Afghanistan before 2015 and faced religious persecution.

Missing from the list of potential beneficiaries are Muslim communities from these nations, who are the targets of violence, such as the Ahmadiyya in Pakistan and the Hazara in Afghanistan. Also absent are the Rohingya, from another bordering nation, also persecuted, and also mostly Muslim.

“We are also the victims of religious persecution, just like the citizens of three other countries that will be granted citizenship. We are also a minority in Buddhist-dominated Myanmar. But the Indian government is not bothered about us simply because we are Muslims,” a Rohingya rights activist told Al Jazeera, requesting anonymity for fear of reprisals from the government.

A long struggle

The Rohingya are a mainly Muslim ethnic minority from Myanmar, which denies them citizenship, thereby rendering them stateless and without basic rights. The community, most of whom are residents of Myanmar’s Rakhine State, has been facing violence and repression in the Buddhist-majority country for decades.

In 2017, more than 750,000 Rohingya were forced to flee Myanmar after it launched what the United Nations has called a military campaign conducted with “genocidal intent”. The people fled to the coasts of southern Bangladesh, transforming the region into the world’s largest refugee camp .

Many also fled to neighbouring India or reached the country after fleeing the camps in Bangladesh.

The UN High Commissioner for Refugees (UNHCR) says nearly 79,000 refugees from Myanmar, including Rohingya, live in India, with about 22,000 registered with the UN refugee agency. Most Rohingya in India have been given UNHCR cards that recognise them as a persecuted community.

Hamin arrived in India in 2018 – a year after his family of 11 members landed in Bangladesh’s cramped settlements.

“My family is still in Bangladesh but I came here for my education and started living with my friends who had come here before me,” he said.

But like other Rohingya refugees in India, his existence in the country is precarious.

India is not a signatory to the 1951 UN Refugee Convention, which spells out the rights of refugees and a state’s responsibilities towards them. The South Asian country also does not have a law protecting refugees.

Critics have slammed the government for excluding persecuted minorities such as the Rohingya from Myanmar or the Ahmadis from Pakistan from the scope of the citizenship law, calling it a double standard aimed at pandering to anti-Muslim tropes ahead of the general election starting next month.

‘Reckless statements’

During a hearing last week on a plea challenging the deportation of Rohingya, the government told the Supreme Court the group did not have the fundamental right to live in India.

The Rohingya activist who requested anonymity said: “We have the refugee cards issued by the UNHCR but the Indian government claims we do not have the fundamental right to live in India.”

Supreme Court lawyer Colin Gonsalves condemned the government’s stand.

“The right to live is not only for Indians but covers all citizens in the territory of India, including the Rohingya and others who flee religious persecution. The Indian Constitution protects their rights but it is surprising that senior officers in the government are making reckless statements,” he said.

“The top court makes it clear that protection of the lives of the refugees is a constitutional right. They are protected under [the] non-refoulement or non-return policy that states a refugee cannot be sent back to the place from where he or she had fled due to the fear of physical or sexual assault.”

‘Future seems dark’

Salai Dokhar is a New Delhi-based activist who runs India for Myanmar, a political campaign creating awareness of the rights of refugees. He fears the deportation of Rohingya could endanger the lives of the refugees amid a civil war in Myanmar that arose after a military coup in the country in 2021.

“We fear the refugees might be used by the [Myanmar] army as human shields in the [civil] war or would be treated badly for leaving the country,” he said, adding that if the Indian government was adamant about deporting the Rohingya, it should hand them over to the National Unity Consultative Council (NUCC), a platform of opposition parties in Myanmar.

For years, the Rohingya in India were also subjected to a hate campaign by alleged right-wing Hindu groups on social media. In January, Hamin and a fellow Rohingya, Muhammad Kawsar, 19, filed a petition in the Delhi High Court demanding action against Facebook for providing a platform for an anti-refugee social media campaign. The petitioners urged the court to order the United States-based social media company to remove hate speech and other harmful content.

“We have been noticing that there are hate campaigns against us on Facebook but the company has done nothing to stop them. Some posts are briefly suspended and soon restored on social media. Such posts heighten the risk of attacks on the vulnerable community by branding them as terrorists,” said Hamin.

Germany-based Rohingya activist Nay San Lwin, also the co-founder of the Free Rohingya Coalition, a non-profit fighting for the rights of the community, said the Indian media’s frequent portrayal of the Rohingya as a potential national security threat has compounded their challenges.

“The right-wing Indian government doesn’t hold a favourable outlook towards us and the situation is only made worse by the apathetic attitude of the media,” he said.

“We just need some protection to live here [until] the situation normalises in our country. But the future seems dark for us.”

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Easter 2024

India announces steps to implement a citizenship law that excludes Muslims

FILE- Indians raise their tied hands and shout slogans during a protest against the Citizenship Amendment Act in New Delhi, India, Dec. 27, 2019. Prime Minister Narendra Modi’s government on Monday announced rules to implement a 2019 citizenship law that critics say is discriminatory against Muslims, weeks before the Hindu nationalist leader will seek a third term in office. (AP Photo/Manish Swarup, File)

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NEW DELHI (AP) — Prime Minister Narendra Modi’s government on Monday announced rules to implement a 2019 citizenship law that excludes Muslims, weeks before the Hindu nationalist leader seeks a third term in office.

The Citizenship Amendment Act provides a fast track to naturalization for Hindus, Parsis, Sikhs, Buddhists, Jains and Christians who fled to Hindu-majority India from Afghanistan, Bangladesh and Pakistan before Dec. 31, 2014. The law excludes Muslims, who are a majority in all three nations.

The law was approved by Indian Parliament in 2019, but Modi’s government had held off with its implementation after deadly protests broke out in capital New Delhi and elsewhere. Scores were killed during days of clashes.

The nationwide protests in 2019 drew people of all faiths who said the law undermines India’s foundation as a secular nation. Muslims were particularly worried that the government could use the law, combined with a proposed national register of citizens, to marginalize them.

The National Register of Citizens is part of Modi government’s effort to identify and weed out people it claims came to India illegally. The register has only been implemented in the northeastern state of Assam , and the ruling Bharatiya Janata Party has promised to roll out a similar citizenship verification program nationwide.

Modi’s government has defended the 2019 citizenship law as a humanitarian gesture. It argues that the law is meant only to extend citizenship to religious minorities fleeing persecution and would not be used against Indian citizens.

“These rules will now enable minorities persecuted on religious grounds in Pakistan, Bangladesh and Afghanistan to acquire citizenship in our nation,” Home Minister Amit Shah wrote on X, formerly Twitter.

India’s main opposition Congress party questioned the announcement, saying “the timing right before the elections is evidently designed to polarise the elections.”

Human rights watchdog Amnesty India in a statement called the law “discriminatory” and said it “goes against the constitutional values of equality and international human rights law.” It said the law “legitimises discrimination based on religion” and is “exclusionary in its structure and intent.”

India is home to 200 million Muslims who make up a large minority group in the country of more than 1.4 billion people. They are scattered across almost every part of India and have been targeted in a series of attacks that have taken place Modi first assumed power in 2014.

Critics say Modi’s conspicuous silence over anti-Muslim violence has emboldened some of his most extreme supporters and enabled more hate speech against Muslims.

Modi has increasingly mixed religion with politics in a formula that has resonated deeply with India’s majority Hindu population. In January, he opened a Hindu temple at the site of a demolished mosque in northern Ayodhya city , fulfilling his party’s long-held Hindu nationalist pledge.

Most poll surveys suggest Modi will win a majority in a general election that is scheduled to be held by May.

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