This is a series of articles with an attempt to apprise the readers of the important provisions added (or modified or deleted) via the Amendment Bills passed or about to be passed by the Legislature in the present Session, as underneath the gamut of details written and deliberated upon in the Legislature various important provisions are foreshadowed.
The Protection of Children from Sexual Offences (Amendment) Bill, 2019
- Penetrative sexual assault: The Bill increases the minimum punishment for committing a penetrative sexual assault from seven years to ten years. Furthermore, it adds that if a person commits a penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine. According to the Act, a person commits a ‘penetrative sexual assault’ if he:
- Penetrates his penis into the vagina, mouth, urethra or anus of a child; or
- Make a child to do the same; or
- Inserts any other object into the child’s body; or
- Applies his mouth to a child’s body parts.
- Aggravated penetrative sexual assault: The definition of ‘aggravated penetrative sexual assault’ includes cases when a police officer, a member of the armed forces, or a public service commits penetrative sexual assault on a child. It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant. The Amendment Bill adds two more additional grounds to the definition which includes: (i) assault resulting in the death of the child; and (ii) assault committed during a natural calamity, or in any similar situations of violence. The Bill also increases the minimum punishment from then years to twenty years, and the maximum punishment is the death penalty.
- Aggravated sexual assault: Under the Act, the definition of ‘sexual act’ includes a person’s act of touching the vagina, penis, breast or anus of a child with sexual intent without penetration, whereas, ‘aggravated sexual assault’ includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child. The Amendment Bill adds to more grounds which constitute offenses which are: (i) assault committed during a natural calamity; and (ii) administrating or help in administering any hormone or any chemical substance, to a child for purpose of attaining early sexual maturity.
- Pornographic purposes: The Act penalizes a person using a child for pornographic purposes to fulfill its sexual gratification. The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including, but not limited to, photograph, video, digital or computer-generated image. In addition, the Bill enhances the punishment for certain offenses, a few which are:
|Offense||2019 Bill||POCSO Act, 2012|
|Use of a child for pornographic purposes.||· Minimum: 5 years.||· Maximum: 5 years.|
|Use of a child for pornographic purposes resulting in penetrative sexual assault.||· Minimum: 10 years (in case of a child below 16 years = 20 years).
· Maximum: life.
|· Minimum: 10 years.
· Maximum: life.
|Use of a child for pornographic purposes resulting in aggravated penetrative sexual assault.||· Minimum 20 years.
· Maximum: life or death penalty.
|· Life imprisonment.|
|Use of a child for pornographic purposes resulting in sexual assault||· Minimum: Three years.
· Maximum: Five years.
|· Minimum: Six years.
· Maximum: Eight years.
|Use of a child for pornographic purposes resulting in aggravated sexual assault.||· Minimum: Five years.
· Maximum: Seven years.
|· Minimum: Eight years.
· Maximum: Ten years.
- Storage of pornographic material: The Bill provides that the punishment for the storage of pornographic material for commercial purposes can be imprisonment between three to five years, or a fine, or both. Furthermore, the Bill adds two more offenses for storage of pornographic material which are: (i) failing to destroy, delete, or report pornographic material involving a child; and (ii) transmitting, displaying, distributing such material except for the purpose of reporting it.
The Protection of Human Rights (Amendment) Bill, 2019
- Composition of NHRC: Under the Act, the Chairperson of the NHRC is one who has been a Chief Justice of the Supreme Court. The Bill adds a Judge of the Supreme Court can also be considered to be a chairperson of NHRC. Furthermore, the Act provides for two persons having special knowledge of human rights to be appointed as a member of the NHRC. The Bill amends this to allow three members to be appointed, of which at least one will be a woman. Under the Act, Chairpersons of various commissions such as the National Commission for Scheduled Caste (NCSC), National Commission for Scheduled Tribes (NCST), and National Commission for Women (NCW) are the members of NHRC. The Bill provides for including the Chairpersons of the National Commission for Backward Classes (NCBC), National Commission for the Protection of Child Rights (NCPCR), and the Chief Commissioner for Person with Disabilities as members of NHRC.
- Chairperson of SHRC: Under the Act, the Chairperson of a SHRC is a person who has been a Chief Justice of High Court. The Bill amends this to provide that a person who has been Chief Justice or a Judge of a High Court will be Chairperson of SHRC.
- Reduction in tenure: Under the present Act, the Chairperson and members of the human rights bodies will hold the office for five years or till the age of seventy years, whichever is earlier. The amendment provides a reduction in the tenure of Chairperson of national and state human rights bodies to three years from the current five years. The Bill also removes the five year limit for re-appointment, which was allowed under the present Act.
- Powers of Secretary-General: The Act provides for a Secretary-General of the NHRC and a secretary of a SHRC, who exercise powers as delegated to them. The Bill amends this and allows the Secretary-General and Secretary to exercise all administrative and financial powers, subject to the respective chairperson’s control.
- Functions of Union Territories: The Bill provides that Central Government may confer on SHRC, functions being discharged by Union Territories. The functions related to human rights in Delhi will be treated by NHRC.
The Unlawful Activities (Prevention) Amendment Bill, 2019
- Who may commit an act of terrorism: Under the Act, the Central Government may designate an organization as a terrorist organization if it commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism and otherwise involved in terrorism. The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.
- Approval for the seizure of property by NIA: If the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director-General of NIA would be required for seizure of properties that may be connected with terrorism.
- Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill provides the authority to officers of the NIA, of the rank of Inspector or above to investigate the cases.
- Insertion to the schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill adds the International Convention for Suppression of Acts of Nuclear Terrorism (2005) in the treaty list.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019
- Declaration of talaq to be void and illegal: The Bill makes all declaration of talaq, including in written or electronic form, to be void and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
- Offense and penalty: The Bill proposes to declare the practice of triple talaq as void and illegal and made it an offense punishable with imprisonment up to three years and fine, and triable by Judicial Magistrate of the first class. The offense will be cognizable only if the information of offense is given by the married against whom the talaq has been declared or any other person related to her by blood or marriage. The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman, and if Magistrate is satisfied that there are reasonable grounds for granting bail.
- Allowance: A Muslim woman, against whom talaq has been declared, entitled to seek subsistence allowance from her husband for herself and her children. The amount will be determined by the Magistrate.
- Custody: A Muslim woman, against whom talaq has been declared, entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
– Kiranpreet Kaur
Associate Partner at Aggarwals & Associates, S.A.S Nagar (Mohali)