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Insights into Editorial: Bills of rights for the vulnerable


Insights into Editorial: Bills of rights for the vulnerable


Introduction:

There are multiple socio-economic disadvantages that members of particular groups experience which limits their access to their rights mentioned in even Constitution of India.

The task of identifying the vulnerable groups is not an easy one. Besides there are multiple and complex factors of vulnerability with different layers and more often than once it cannot be analysed in isolation.

Focus on the vulnerable group is very useful for human rights documentation. It allows review of context specific violations, identify the challenges faced by the specific groups and their access in healthcare

 

Context:

With the dissolution of Parliament, number of bills got lapsed. However, with the 2019 general election yielding a decisive mandate, the attention will undoubtedly turn to whether the new government will attempt to revive some aspects of its erstwhile legislative programme.

Towards the end of the previous government’s tenure, a number of controversial bills were introduced in Parliament.

Political imperatives ensured that they were not, ultimately, enacted into law: some were stalled in the Rajya Sabha after being passed by the Lower House, while in other cases, the government itself decided not to proceed with them.

 

Cases when a bill lapse:

Article 107 enumerates certain situation in which a Bill lapses. A Bill which has lapsed is no more before the Parliament. It has to be introduced again and all steps are required to be taken again.

  • A bill originated in the Lok Sabha but pending in the Lok Sabha – lapses.
  • A bill originated and passed by the Rajya Sabha but pending in Lok Sabha – lapses.
  • A bill originated and passed by the Lok Sabha but pending in the Rajya Sabha – lapses.
  • A bill originated in the Rajya Sabha and returned to that House by the Lok Sabha with amendments and still pending in the Rajya Sabha on the date of the dissolution of Lok Sabha- lapses.

 

Cases when a bill does not lapse:

  • A bill pending in the Rajya Sabha but not passed by the Lok Sabha does not lapse.
  • If the president has notified the holding of a joint sitting before the dissolution of Lok Sabha, does not lapse.
  • A bill passed by both Houses but pending assent of the president does not lapse.
  • A bill passed by both Houses but returned by the president for reconsideration of Rajya Sabha does not lapse.
  • Some pending bills and all pending assurances that are to be examined by the Committee on Government Assurances do not lapse on the dissolution of the Lok Sabha.

 

Some Controversial bills which got Lapsed:

While enacting a law on any specific issue, a democratically elected government must engage with those who are directly impacted by such legislations.

In this backdrop, this article addresses certain lacunae and constraints with respect to the following legislations –Transgender Bill, Surrogacy Bill, Trafficking Bill.

Each of these Bills dealt with intimate subjects such as individual’s decisions of what to do with their body, personal dignity and autonomy and gender identity.

These Bills were about the rights of some of the most vulnerable and marginalised members of our society.

 

The Transgender Persons (Protection Of Rights) Bill, 2016: Flaws that need to be rectified:

The Bill states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender identity.

The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’ in its definition of transgender persons. However, these terms have not been defined.

  • A District Screening Committee would issue a certificate of identity to recognise transgender persons.
  • Criminal laws of India has not been amended to include transgenders. They recognise only man or woman who commit crimes.

 

Issues in Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill,2018:

The Bill criminalised begging without providing any manner of effective alternatives. It failed to distinguish between non-consensual trafficking and consensual sex work which may criminalise livelihoods.

  • The proposed Bill seems to promote ‘rescue raids’ by the police, and the institutionalisation of victims in the name of rehabilitation.
  • UN experts and critics have highlighted that the bill addresses trafficking from a criminal law perspective is not sufficiently complemented by a human-rights based and victim-centred approach.

This makes the Bill fall short of international standards on human rights.

  • The Bill does not provide for applying appropriate screening methods for the identification and referral of victims or potential victims of trafficking and social integration programs which are respectful of their rights.

 

Corrections needed in The Surrogacy (Regulation) Bill, 2016:

The Bill permits surrogacy only for couples who cannot conceive a child. This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.

The Bill does not specify an appeal process in case the application is rejected.

  • It has imposed discriminatory age restrictions upon men and women, and by entirely outlawing “commercial” surrogacy instead of regulating it with appropriate safeguards.

The Surrogacy Bill excluded LGBT individuals from its ambit.

  • Complete ban of commercial surrogacy may lead to underground and unreported exploitation of women thereby effectively creating a black market for surrogacy.
  • The surrogate mother must be a ‘close relative’ of the intending couple. The Bill does not define the term ‘close relative’.

 

Way Forward: What lies ahead:

The last phase of the previous government’s tenure presented a number of examples where these constraints were insufficiently complied with, and the resulting bills have ended up harming those whose rights they were meant to protect, apart from falling foul of crucial constitutional rights.

The government is, of course, entitled to frame its own policies, and draft and implement legislation to enact those policies, there are certain constraints upon how it should go about that task.

At the minimum, the voices of those who will be directly impacted by the policy should be listened to and engaged with in good faith, and basic constitutional principles and values ought to be respected.

It is to be hoped that these lacunae and shortcomings are remedied by the continuing government in power. Apart from the courts, however, this would need a sustained public movement around these issues, which can make its voice heard in the halls of power.