MAERNITY BENEFITS FOR BUILDING AND OTHER CONSTRUCTION WORKERS IN INDIA UNDER THE SOCIAL SECURITY CODE, 2020

The Maternity Benefits Act of 1961 has been a key piece of legislation in India, enhanced by transformative amendments in 2017 and further expanded under the Code on Social Security, 2020. These improvements include extended maternity leave, work-from-home options, mandatory workplace creches, and benefits for adoptive and commissioning mothers. However, many women are still underserved, particularly in the unorganised construction sector. Although some state schemes provide minimal maternity benefits to registered workers, the support is woefully inadequate and limited to just two instances. This blog, understanding the maternity benefits, highlights the unique challenges these mothers face, advocating for a more inclusive framework for maternity benefits rooted in social justice and equality, so that no mother is overlooked.

Introduction 

India’s workforce is characterized by its diversity, with a significant number of workers engaged in the informal sector. Among these, building and other construction workers (BOCW) represent a substantial group that plays a crucial role in the nation's infrastructure and development. However, they often face instability, dangerous working environments, and insufficient social security. In response to these challenges, the Indian government has initiated reforms to provide maternity benefits to female construction workers, most notably through the Social Security Code, 2020.

India's Maternity Benefit Act of 1961, along with the significant amendments made in 2017, has been termed a potential "Game Changer" by various commentators. This is largely due to features such as the extension of maternity leave from 12 to 26 weeks, provisions for work-from-home options, the requirement for creche facilities in businesses with over 50 employees, and the inclusion of maternity benefits for adoptive and commissioning mothers. With the introduction of the Code on Social Security, 2020, these maternity benefit provisions have been incorporated into its framework.

However, it is essential to note that workers in the unorganised sector do not have direct access to maternity benefits under Chapter VI of the Code. The Central Government is authorized to create welfare schemes for these unorganised workers concerning various issues, including maternity benefits. This raises questions about the effectiveness of these provisions in India, especially considering that more than 90% of the workforce is in the unorganised sector. This paper aims to draw attention to the disparities caused by this exclusion,explicitlyy focusing on the challenges faced by building and other construction workers (BOC workers) from a social justice standpoint in the absence of maternity benefits. It examines the intersection of gender discrimination and the financial difficulties encountered by female workers in the unorganised sector, which further exacerbate their challenges. This blog explores the structure of maternity benefits available for construction workers under the Social Security Code, 2020, the ongoing challenges, and the necessary steps for improved implementation moving forward.

Overview of SS Code,2020

The Code on Social Security, 2020 (SS Code) integrates and supersedes nine central labor laws associated with social security, which include:

• The Maternity Benefit Act, 1961
• The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
• The Employees’ State Insurance Act, 1948
• The Unorganised Workers’ Social Security Act, 2008

The Purpose of this code is to ensure social security coverage for all employees and workers, including those engaged in the unorganised sector.

Who are the Building and other construction workers

In the SS code 2020, as defined by the SS Code, building and other construction workers are those involved in activities such as constructing, modifying, repairing, maintaining, or demolishing structures, including buildings, roads, railways, and power plants. These workers often migrate from rural areas to urban centers and are typically hired on a daily wage or through contracts, lacking permanent job security.

Due to the informal and transient nature of their work, these individuals have historically been left out of social security programs. The SS Code seeks to address this issue by integrating them into a formal benefits framework.  

Maternity Benefits  under the SS Code 

Under Chapter VI of the SS Code, maternity benefits are explicitly discussed. The provisions from the Maternity Benefit Act, 1961 are absorbed and extended to more categories of women workers, including those in the construction sector

provide provisions in detail:- 

Eligibility:

• This eligibility extends to women in the unorganised sector (like BOCW), subject to their registration under the relevant welfare boards  2..A female employee must have worked for at least 80 days in the 12 months preceding the date of expected delivery. Duration of Maternity Leave:

• 26 weeks of paid maternity leave for the birth of the first two children.

• For the third child onwards, 12 weeks of leave.

• An additional 12 weeks of leave for adopting or commissioning mothers (surrogacy)

• Cash Benefits: Maternity benefit equals the average daily wage for the period of actual absence.

• Payment is to be made directly to the woman.
• Medical Bonus: Women not entitled to prenatal and postnatal care from the employer receive a medical bonus (amount to be notified by the government).
• Prohibition of Employment: Employers are prohibited from employing women during the maternity leave period. Dismissal or discharge due to maternity leave is unlawful.
• Creche Facility: Every establishment employing 50 or more workers must provide a creche facility.

Maternity benefits for construction workers especially fall in the ambit of unorganised workers. This registration is a prerequisite to claiming maternity and other welfare benefits. Once registered with the BOCW Board, you are then eligible for Benefits.

Building and other construction (BOC) workers are a specific group within the unorganised sector facing significant disadvantages due to their precarious circumstances, as will be elaborated in subsequent sections. According to Section 18 of the BOC Workers Act, 1996, State Welfare Boards are mandated to be established. Furthermore, Section 22(g) of this Act tasks these Boards with the responsibility to "disburse maternity benefits to eligible female workers." In light of this, various states have developed their own schemes offering maternity benefits, albeit with varying amounts based on specific criteria. Below is a summary of these schemes:

Now, here we illustrate the data accordingly, state-wise, the maternity disbursement of maternity benefits to eligible female workers. Here,  the state of Assam gives a 20,000 benefit amount per/head, allowed only twice. The Uttar Pradesh gives a 3000 only for registered construction workers, a one-time assistance limited to two children. The state of Maharashtra gives 15000 reimbursement for normal delivery, 20,000 for surgical delivery, and the other details mentioned are Contraceptive surgery after the first girl child is born. Delhi gives the benefits of 30,000 for women members and wives of male members,  limited to two children, and Andhra Pradesh gives 20,000 for women workers, limited to two children.

In various states across India, maternity benefits for female workers reflect differing levels of support. For instance, in Jammu & Kashmir, female workers receive a one-time benefit of Rs. 5,000, but this is limited to two children. Rajasthan offers a relatively higher amount of Rs. 21,000 for male children and Rs. 20,000 for female children. In Madhya Pradesh, the amount is unspecified and is provided during the last trimester, with the stipulation that beneficiaries must be at least 20 years old at the time of delivery and limited to two children. Karnataka also has a tiered benefit structure, offering Rs. 20,000 for male children and Rs. 30,000 for female children, again limited to two children. In Kerala, pregnant workers receive a benefit of Rs. 15,000, also restricted to two children. Lastly, Punjab provides Rs. 21,000 for female workers and only Rs. 5,000 for male workers, likewise limited to two children. Each of these state schemes attempts to support female workers during maternity, but varies significantly in terms of financial support and restrictions. 

Various Indian states provide financial assistance to support families during maternity and child-rearing. Haryana offers Rs. 36,000 for maternity and nutrition, limited to two male children or three female. In Nagaland, Rs. 6,000 is available for wives, restricted to two instances. Meghalaya provides Rs. 1,000 during maternity, also limited to two occasions. Manipur allocates Rs. 6,000 for female building workers, available for two miscarriages. Odisha offers Rs. 8,000 after one year, while the Andaman and Nicobar Islands support women employees with Rs. 20,000 and male employees with Rs. 10,000 under specific conditions. Telangana provides Rs. 30,000 for women and families with two daughters, capped at two children. Tripura gives Rs. 5,000 for registered female construction workers, and Mizoram offers Rs. 5,000. These programs reflect varied state approaches to enhancing maternal and child health support.   

                

The disparity in financial assistance across states is striking, with amounts ranging from Rs. 1,000 to Rs. 36,000 per delivery. These sums are often insufficient to meet even the medical expenses associated with pregnancy, let alone the costs of post-natal care. Moreover, most states impose two common requirements: (i) registration with the Welfare Board, and (ii) a limitation to maternity benefits for just two children. It has been noted that registration can be a burdensome process in many states, often requiring annual renewals and proof of employment in the sector for at least a year. As a result, the effective implementation of these schemes comes into question.

The SS Code provides a legal framework for centralizing and unifying these benefits, ensuring consistent and enforceable entitlements nationwide.

Implementation Framework

The Code requires the establishment of a centralised Social Security Fund. It also includes provisions for Aadhaar-linked registration of unorganised workers through a national portal.

Construction workers are required to:

- Register with the welfare board in their respective states.

- Provide Aadhaar details, employment information, and proof of age.

- Regularly update their information to maintain eligibility for ongoing benefits.

Welfare Boards are tasked with:

- Approving and distributing maternity benefits.

- Raising awareness among female construction workers.

- Collaborating with e-SHRAM and other digital databases for effective targeting.

An Added Challenge?

Women workers in the construction industry experience gender-based discrimination not only in India but globally. Key areas such as skills training, education opportunities, issues related to sexual harassment, and prospects for career advancement highlight this gender disparity. Additionally, these workers often struggle with limited economic clout due to low wages, wage inequality, and the relative significance of their earnings compared to those of men. Because men are typically viewed as the primary earners in households, women's work and income are often undervalued. Kimberlé Crenshaw’s intersectionality theory emphasises that various identities- such as race, gender, and class- intersect and shape individual experiences. Just as Crenshaw illustrated the compounded effects of race and gender on Black women, the discrimination against female building and construction workers is significantly influenced by both gender and economic factors.

Focusing specifically on maternity benefits, an interesting trend from the previous section indicates that, in most states, male workers do not receive any financial compensation at all. In some instances, the sums provided to male employees for their wives are considerably lower than what female employees receive. Such practices exacerbate discrimination, leading employers to avoid hiring women or to terminate them upon pregnancy. This is due to the financial responsibility of providing maternity benefits and the loss of the employee for an extended period. The author believes that Telangana’s policy, which grants financial benefits to female workers, the wives of male workers, and two daughters of workers, exemplifies an effective approach to combat discrimination, promote equality, and offer comprehensive protection to workers and their families.

From a demographic perspective, Western Indian states often show a bias against the birth of female children, reflecting entrenched patriarchal values. For instance, Rajasthan offers a higher maternity benefit for male children than for females, while Maharashtra mandates contraceptive surgery after the first girl is born. This infringes on the mother's autonomy and allows the state to impose personal choices. In contrast, South India is noted for its matrilineal traditions and relatively better gender dynamics. This is evident in maternity benefits; for example, Karnataka provides a higher benefit for the birth of a girl child, and Telangana, Andhra Pradesh, and Kerala do not offer extra benefits for male children or impose negative conditions for females.

Additionally, the type of employment or recruitment of female workers is another factor contributing to discrimination. Since many BOC workers are employed on a contractual basis rather than through stable, long-term contracts, this aspect warrants examination. Benefits that are available to regularly employed workers often do not extend to contract workers, necessitating a closer look at how maternity benefits are applied in these situations. The Jharkhand High Court recently ruled that both contractual and non-contractual workers are equally entitled to maternity benefits, based on the definitions provided in the Maternity Benefit Act. Such judicial rulings are crucial in addressing the various forms of discrimination faced by women workers, especially given that a lack of coverage under the Code’s maternity provisions represents an additional challenge. 

Judicial Recognition

In terms of judicial developments, significant cases such as Municipal Corporation of Delhi v. Female Workers Muster Roll and Anshu Rani v. State of U.P. have clarified that female workers on contractual terms are entitled to 26 weeks of maternity leave. These rulings highlight the importance of extending such provisions to women across the unorganised sector as well. It is vital that maternity benefits be universally accessible; any differentiation between the organised and unorganised sectors in this context constitutes a violation of Articles 14, 15, and 21 of the Indian Constitution, which ensures fundamental rights related to equality, non-discrimination, and the right to life and personal liberty.

While these rights are generally enforceable against the 'state,' as per Article 12 of the Constitution, certain principles of labour laws extend these protections to private entities as well. Consequently, private companies are obligated to comply with these maternity benefit provisions and can be held accountable for any violations. This legal framework calls for a more inclusive approach, ensuring that the rights of all women workers, regardless of their employment status, are safeguarded.

Conclusion

It has been noted that fewer than 1% of women in the Indian labor force actually benefit from maternity laws, and a lack of awareness regarding these rights only worsens the issue. The limited scope of the law has been a concern since the inception of the Maternity Benefit Act, and the Social Security Code represents a missed opportunity for lawmakers to address this shortcoming. Women working in the building and other construction sectors encounter several challenges, with gender discrimination being the most prominent. While this paper has focused on the inaccessibility of maternity benefits for BOC workers, similar issues are prevalent in other informal sectors as well.

In light of these realities, simply granting the government the power to implement schemes for unorganised workers is inadequate. It is crucial to extend maternity benefits to all workers. Amending the Social Security Code would be an effective means to achieve this, especially since the Code is still in its early stages and has not yet faced significant legal challenges. Furthermore, the various state schemes should be better aligned to address the stark differences among them. One potential measure is to expand the maternity benefits to male workers for their spouses, albeit under somewhat stricter criteria compared to those for female employees. Making this compulsory could encourage employers to hire more women, as they would need to provide equivalent maternity benefits to male workers. Nonetheless, as a foundational step, granting all women direct access to the provisions of Chapter VI of the Code could significantly transform India's maternity benefit legislation, setting a precedent for other countries worldwide.

A Day of Giants and Inspiration

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3rd January 2025 

Tick-tick, the clock struck 10:45 AM, and I found myself rushing through the corridors of the Supreme Court of India, flanked by my mentors and the ever-commanding presence of Advocate Rohit Pandey Ji. He walked with a heroic aura, his strides radiating confidence and authority that seemed to part the sea of people in the court.

But, as life often does, it threw in a delightful twist. On the bustling path, I stumbled upon Advocate Pawan Reley Ji, stepping out of his sleek, charismatic Lexus—a car that, much like the man himself, oozed inspiration. His journey had always been one I admired, and seeing him in person reignited that spark.

Me:- “Hello, Sir. Good morning!”

 (I greeted him, trying to catch my breath.)

He:- responded with a firm handshake, his phone glued to his ear. “Hey!” he said with a smile, briefly breaking his conversation.

Me:- Sir, I’ll catch up later. I’m in a rush to reach the court.

He:- Yes, yes, go ahead!” he replied graciously, his voice carrying the weight of understanding.

Back on track, I sprinted into the Supreme Court lobby, a space teeming with the essence of legal brilliance. And then, like a dream, I saw them—the legends whose names resound across India’s legal landscape.

There was the G.O.A.T., Advocate Kapil Sibal, exuding quiet brilliance; Advocate Abhishek Manu Singhvi, the epitome of eloquence; Advocate Dushyant Dave, with his unyielding fire; Advocate Prashant Bhushan, the voice of conscience; and the Solicitor General of India, Advocate Tushar Mehta, walking with a calm demeanor, his presence alone commanding reverence.

Unlike the rest of us, they moved with no rush. Their every step seemed to echo the weight of their achievements and the gravity of their influence. Observing them felt like standing in the presence of titans—an unshakable reminder of why I chose this path.

As I hurried towards the courtroom, my heart raced, not just from the run but from the sheer inspiration that filled the air. Today was not just another day at the Supreme Court; it was a day where giants walked beside us, reminding me of the endless heights I could aspire to reach.

Revisiting Justice: The Pune Juvenile Case and Road Safety

    

This blog is written by Pratyush Pratap Singh, from the University of National forensic science University , School of Law. In this As the juvenile in question awaits the outcome of the legal proceedings, this case serves as a catalyst for broader discussions on the enforcement of traffic laws, the role of guardians in instilling road safety, and the need for stringent measures to deter dangerous driving behaviors. It is a call to action for society to collectively work towards safer roads and a more responsible driving culture. Let this be a lesson that guides us towards a future where such tragedies are averted through education, awareness, and accountability.

 Revisiting Justice: The Pune Juvenile Case and Road Safety

In the wake of a tragic car accident in Pune, the Juvenile Justice Board’s decision to cancel the bail of a 17-year-old involved in the fatal incident has sparked a significant conversation about juvenile justice and road safety.

The Incident and Its Aftermath

In the early hours of May 19, a Porsche car, allegedly driven by an intoxicated 17-year-old, struck and killed two motorbike-borne software engineers in Kalyani Nagar, Pune. The initial grant of bail to the teenager was met with public outcry, leading to a review and subsequent cancellation of the bail. The police’s request to treat the minor as an adult due to the heinous nature of the crime underscores the gravity of the situation.

Charges and Legal Implications

The charges against the minor are severe and include:

·         Culpable homicide not amounting to murder (IPC section 304)

·         Causing death by negligence (IPC section 304 A)

·         Rash driving (IPC section 279)

·         Causing hurt by an act endangering human life (IPC section 337)

·         Causing grievous hurt by an act endangering life or personal safety (IPC section 338)

·         Relevant sections of the Motor Vehicles Act

The Motor Vehicles Act, 1988 contains provisions relevant to rash driving, especially concerning juveniles. Section 279 addresses rash or negligent driving on public roads. It stipulates that individuals operating vehicles without due care and attention can be charged. Punishments include imprisonment for up to six months, a fine of up to ₹500, or both. A "public way" encompasses roads accessible to all, connecting towns or leading to them.

Another pertinent section is 304A, which concerns causing death by negligence. It encompasses any negligent act, not solely limited to driving, resulting in death. The accused can be liable even without a guilty mind, as mere negligence without due care is adequate for liability. Both Sections 279 and 304A require the accused's actions to be rash and negligent.

Recent amendments to the Act have intensified penalties for rash driving. Fines for such offenses now range from ₹1,000 to ₹5,000. Driving without a license incurs a ₹5,000 fine, previously ₹500. Juveniles are now tried under the Juvenile Justice Act, with guardians facing severe penalties such as cancellation of vehicle registration, a fine of ₹25,000, and imprisonment for up to three years. Additionally, for offenses committed by juveniles, vehicle registration is canceled for 12 months, and they are barred from obtaining learner's or driving licenses until they reach 25 years of age

These charges reflect the serious consequences of reckless driving and the legal system’s response to such actions.

The Role of Parents and Guardians

The arrest of the boy’s father under the Juvenile Justice Act for allowing his underage son to drive highlights the crucial role that parents and guardians play in preventing such incidents. It is a stark reminder that the responsibility for ensuring young drivers understand and respect the rules of the road begins at home.

A Call for Responsible Driving

This incident is a harrowing reminder of the importance of responsible driving. It is imperative for all individuals, especially young drivers, to recognize the potential consequences of their actions behind the wheel. Adhering to traffic rules and prioritizing safety can prevent the loss of life and the ripple effects of grief and legal repercussions that follow.

As the juvenile in question awaits the outcome of the legal proceedings, this case serves as a catalyst for broader discussions on the enforcement of traffic laws, the role of guardians in instilling road safety, and the need for stringent measures to deter dangerous driving behaviors. It is a call to action for society to collectively work towards safer roads and a more responsible driving culture. Let this be a lesson that guides us towards a future where such tragedies are averted through education, awareness, and accountability.

 

The Legal Drama: Jackie Shroff's Fight for Personality Rights

 

                        The Legal Drama: Jackie Shroff’s Fight for Personality Rights

This blog is written by Pratyush Pratap Singh, from the University of National forensic science University, School of Law. In this The Legal Drama In the digital age, where technology blurs the lines between reality and virtual existence, the concept of personality rights gains paramount importance. These rights safeguard an individual’s unique attributes, such as their name, image, voice, and likeness, from unauthorized exploitation. Recently, the Delhi High Court took a significant step in protecting these rights in the case of Jaikishan Kakubhai Saraf alias Jackie Shroff v The Peppy Store & Ors.

Prologue: The Digital Dilemma

In a world where reality blurs with the digital, the courtroom becomes the battleground for a fundamental right: the right to one's own identity. The characters? A Bollywood legend, a national leader, and an insidious AI technology capable of creating perfect imitations. This is a tale of justice, technology, and the fight to preserve the essence of individuality. In an era where technology intertwines with everyday life, the fine line between public persona and private identity often blurs. This story unfolds in the bustling city of Delhi, where the digital age’s rapid advance has led to a groundbreaking legal battle. Jackie Shroff, a veteran Bollywood actor known for his rugged charm and distinctive voice, becomes the protagonist in a courtroom drama that highlights the significance of personality rights.

Chapter 1: The Discovery

Renowned Bollywood actor Jackie Shroff was scrolling through his social media feed when he stumbled upon a video that left him in shock. His face, his voice, but the words were not his. The video, created by an AI deepfake technology, depicted him endorsing a controversial product. His blood boiled as he realized the extent of the violation of his personality rights. This wasn't just about his reputation; it was about his very identity.

Chapter 2: The Legal Crusade Begins

Jackie immediately contacted his legal team. The perpetrators, an obscure company called "The Peppy Store," had not only used his image without permission but had also created AI-generated deepfake videos and voiceovers, turning his persona into a commercial puppet. The Delhi High Court was about to witness a landmark case in the making: Jaikishan Kakubhai Saraf alias Jackie Shroff v The Peppy Store & Ors.

Chapter 3: The Defense and the Offense

In the courtroom, the defense argued the fine line between artistic expression and blatant exploitation. They claimed their creations were transformative, an homage rather than theft. But Jackie's team was prepared. They showcased the extent of the misuse: AI chatbots mimicking his voice on social media, his likeness plastered across e-commerce platforms, and deepfake videos that blurred reality for millions of unsuspecting viewers.

Chapter 4: The Precedent of Privacy

The courtroom was electric with anticipation. Jackie's lawyers argued that the digital age required robust protection of personality rights. They cited previous judgments and emphasized the need for a clear precedent. The judge, recognizing the gravity of the situation, issued a powerful statement:

"Being a celebrity grants certain rights concerning an individual's personality and associated attributes. Unauthorized exploitation, especially in the digital realm, cannot be tolerated. "The court ruled in favor of Jackie, restraining social media accounts, AI chatbots, and e-commerce websites from using his identity for commercial purposes without explicit consent.

Chapter 5: The Broader Impact

News of the verdict spread like wildfire. Among those paying close attention was Prime Minister Narendra Modi, whose image and voice had also been manipulated by deepfake technology in the past. The implications of the ruling were profound, offering a shield to public figures against the unauthorized use of their identities. The Landmark Judgement After days of intense deliberation, the Delhi High Court delivered its verdict. The judgment was clear and unequivocal: Jackie Shroff’s personality rights had been violated. The court recognized his celebrity status and upheld his rights to control his name, image, and voice. The judgment also struck a balance between protecting personality rights and preserving freedom of expression. While the court upheld Jackie's rights, it refused to take down a YouTube video titled "Jackie Shroff is Savage," acknowledging its artistic expression.

Chapter 6: The Future of Legal Tech

This case wasn't just about Jackie Shroff; it was a clarion call for the legal community to adapt to the evolving digital landscape. Legal technology emerged as a crucial ally in this battle, providing tools to detect and prevent the misuse of identities. For celebrities and public figures, the ruling offered a renewed sense of control over their personas.

Epilogue

As Jackie Shroff walked out of the courtroom, he felt a wave of relief. His victory wasn't just personal; it was a triumph for everyone whose identity was at risk in the digital age. He knew that the fight wasn't over, but this was a significant step in the right direction. The digital doppelgangers had met their match in the form of the law. Prime Minister Modi, observing the case closely, felt a sense of reassurance. The legal system was ready to tackle the challenges posed by technology, ensuring that the essence of individuality remained protected. In the end, justice had prevailed, marking a new chapter in the protection of personality rights. In a rapidly changing digital world, the protection of one's identity is paramount. The Jackie Shroff case sets a crucial precedent, ensuring that no one, regardless of their celebrity status, falls victim to digital impersonation without recourse. This legal drama serves as a reminder of the enduring power of justice in the face of technological advances.

References

• Delhi High Court protects personality rights of Jackie Shroff. Bar and Bench. Link
• Why Celebrities Are Seeking Legal Protection For Their Personality Rights. NDTV. Link
• Jackie’s personality rights case: Court stops AI tools from using Jackie’s attributes. Times of India. Link
• Delhi HC Passes Order To Protect Jackie Shroff Personality Rights. Medianama. Link

 

Daughter have coparcenary rights even if their father was not Alive . cases analysis

This blog is written by Pratyush Pratap Singh, from the University of National forensic science University , School of Law. In this blog discusses the historical aspect of the Hindu Succession Act and the changes brought by the 2005 Amendment, thereby providing various case laws to establish the prolonged change in the patriarchal society in relation to daughter’s equal rights. 

Introduction 

The Constitution of Indian provides the equal rights for both men and women in all respect even in property also because it was the real intention of the framers of our Constitution and specifically Dr. B. R. Ambedkar worked a lot in this regard. In 2020, the rights of daughter to be a coparcener in Mitakshara coparcenary has been given equal to that of a son by the Supreme Court of India. The codification of Hindu law and particularly women's rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices by the steps taken under able leadership of India’s 1st Law Minister Babasaheb Dr. Bhimrao Ramji Ambedkar from 11th April 1947 to 27th September, 1951. After the independence, necessity was by felt Babasaheb Dr. Bhimrao Ramji Ambedkar to give the Constitutional imperatives to bring about equality of status and later on it was codified as the Hindu Succession Act, 1956 which has been amended from time to time till the Hindu Succession (Amendment) Act, 2005. Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 interpreted by the full bench of Supreme Court of India in Vineeta Sharma v. Rakesh sharma & ors., (2020). Therefore, in this paper we have to discuss pre-constitutional position of traditional and religious values with historical perspective of the concept, the Hindu Code Bill, post-constitutional position, the Hindu Succession Act, 1956, the Hindu Succession (Amendment) Act, 2005, Though the women had an ‘absolute ownership’ over their own property, they could not claim coparcenary rights over the ancestral property. This made the Act to be outrightly discriminatory towards women based on their gender and oppressed their fundamental right to equality enshrined under Article 14 of the Indian Constitution.  Outcome of amplification of daughter’s rights and some judicial interpretations with respect to Daughters Equal Right in the Coparcenary Property will be discussed for brief analysis in this vakeelgiri blog.

Hindu succession Act 1956

The Hindu Succession (Amendment) Act, 2005 provided the daughters of a coparcener with the same rights in the coparcenary property as the son. The objective behind the amendment was to change the patriarchal mindset, remove gender discriminatory provisions in the Hindu Succession Act of 1956 and provide equal status to the son and the daughter of a Hindu in matters relating to inheritance to coparcenary property. While this amendment brought changes in recognizing the daughter’s rights.

The Hindu Succession (Amendment) ACT, 2005 

Section 6 of the HSA, 1956 after the substituted provision by the Amendment Act, 2005 is extracted hereunder: 

Sec. 6. Devolution of interest in coparcenary property:- 

 On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- 

 by birth become a coparcener in her own right in the same manner as the son;  have the same rights in the coparcenary property as she would have had if she had been a son

be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to  include a reference to a daughter of a coparcener.

Hindu Succession (Amendment) Act, 2005. This amendment allows daughters the same rights and liabilities as sons in a Hindu undivided family's property. Here are some key points about daughters' coparcenary rights:

• Equal Rights: Daughters are now considered coparceners by birth in their own right in the same manner as sons.
• Retrospective Effect: The Supreme Court of India has clarified that daughters have coparcenary rights by birth, even if the father died before the 2005 amendment came into force.
• Marriage Does Not Affect Rights: A daughter's coparcenary rights are not affected by her marriage, and she remains a coparcener throughout her life.
• Inheritance: Upon the death of a daughter, her share in the coparcenary property will pass by succession to her legal heirs.

What are the coparcenary rights?

 A coparcener refers to a person who has the capacity to assume a legal right in their ancestral property by birth. Here are some key points about coparcenary rights:

• Joint Ownership: Coparcenary entails the joint ownership of ancestral property by all the male descendants of a common ancestor. Each coparcener has an undivided interest in the property, irrespective of their age or birth order.
• Rights by Birth: In the Mitakshara school of Hindu law, the right to ancestral property arises by birth.
• Role of Karta: The head of the coparcenary is called the Karta. The Karta has certain rights in the

Any coparcener can at any time seek a partition of his/her share. The continuing coparceners can choose to buy out the share of the said coparcener by exercising the right of ‘pre-emption’.

A coparcener can also sell/gift away his interest to another coparcener or even a third party.

In cases of legal necessity/benefit of estate when the karta chooses to alienate joint family property, it can be challenged by the continuing coparceners as not being for legal necessity or benefit of estate within 12 years of knowledge of sale/gift.

Daughter have an Absolute ownership ?

Yes, daughters have the same coparcenary rights as sons, including absolute ownership, in the ancestral property of a Hindu Undivided Family (HUF). This was affirmed by the Supreme Court of India in the landmark judgment of Vineeta Sharma vs. Rakesh Sharma on August 11, 2020.

Most significantly, the Hon'ble Apex Court has clarified that irrespective of a coparcener father being alive or not on or before the Hindu Succession (Amendment) Act, 2005, a daughter would be entitled to a share in coparcenary property in the same manner as a son simply by virtue of: 

(i) her birth; and

 (ii) her being alive as on the date of coming into force of the 2005 Amendment.

Important cases;

The court had earlier given two contradictory judgements in two cases

Prakash and Ors v. Phulavati and Ors, 2016

In Prakash v. Phulavati and Ors., 2016, the Supreme Court held that the Amendment Act was prospective in nature. Hence, from the passing date of the Amendment Act, the daughters would be coparceners and have an equal share same as that of sons in a joint Hindu family property. The following points should be noted from this case:

The daughter must live in 2005 in order to claim a share in the joint Hindu family property.

In case, if the daughter dies before the enactment of this amendment act, her legal heir cannot claim a share in the joint Hindu family property.

The daughter’s father should also be alive during the time of the enactment in order to provide an equal status in the coparcenary property.

The amendment act would not affect the alienation or disposition or transfer of any joint family property or a registered partition before the amendment act and it would not be affected by the daughter’s claim as a coparcener in the joint Hindu family property after 2005 Amendment. 

Lokmani v. Mahadevamma & Ors., 2016

In the case of Lokmani v. Mahadevamma, 2016, the High Court stated that Section 6 of the amended HSA is given retrospective effect as when the daughters were denied right in the coparcenary property, pending proceedings and appeals re to be now decided as per the amended provisions and inequality has been removed. The High Court also stated that the oral partition and unregistered partition deeds are removed from the definition of ‘partition mentioned in the amendment Section 6(5) of HSA.

Danamma v. Amar, 2018

In this case, the Hon’ble Supreme Court of India stated that if the father is a coparcener who passed away before 9th September 2005 and a prior suit has been pending for partition by a male-coparcener, then the female coparceners are entitled to a share. 

The court observed that the provisions of Section 6 of the Amendment Act, are operational in a retrospective manner and they confer absolute rights upon the daughter to be coparcener since birth. This decision was in contrast to the judgement given in the Phulavati case. Thus, both the aforementioned judgments conflicted with each other and gave rise to a divergence of questions regarding the coparcenary rights of a daughter in inheriting the coparcenary property of her deceased father. This led to the grant of appeal in the Hon’ble Supreme Court of India. 

Landmark case of daughter’s right to property

 Vineet Sharma v. Rakesh Sharma & Ors., 2018

A 122-page judgement was given by the Hon’ble Supreme Court of India for this particular case. The court stated that women have been subjected to historical injustice when it comes to being a coparcener and they must be given equal rights irrespective of the prospective or retrospective application of the Amended Act, 2005. 

Section 6(1)(a) of the Amendment Act, 2005 explains about the birthright of a coparcener i.e ‘unobstructed heritage’ under Mitakshara coparcenary to inherit the property. The court opined that the coparcener has a right over the ancestral property by birth and hence it is not essential for the father(coparcener) to be alive as on the date of the amendment. It is so because the coparcenary rights conferred by the daughter are by her birth, not by obstructed heritage. Thus, the concept that the father (coparcener) and daughter must be alive on the date when the Amendment Act,2005 came into force as laid down in the Phulavati’s case was overruled.

The Hon’ble Supreme Court of India held that Section 6 of the Amendment Act, 2005 shall be applied retroactively. Explaining the concept of retroactive application of the Amendment Act, 2005, the court held that the said Act enables women to have the benefit of succession based on her birth. 

Through this case, it was ruled that daughters have an equal right in the coparcenary property same as the son, even if the father died before the enactment of the Hindu Succession (Amendment) Act, 2005. 

It also held that the rights under the said amendment apply to living daughters of living coparceners as on 9th September 2005, irrespective of the date of birth of the daughter. 

Conclusion

The Hindu Law regarding the succession of the property was first codified by the Hindu Succession Act, 1956. It dealt with the devolution of interest of the ancestral and self-acquired property of a Hindu dying intestate. The said Act, however, was discriminatory on the grounds of gender inequality and the oppression of the fundamental right to equality enshrined under Article 14 of the Indian Constitution. It conferred coparcenary rights only upon the lineal male descendants of the family and excluded women from having such rights. The reason for such exclusion was that someday the woman will get married and become a part of her husband’s family. Coparcenary property under the Hindu Law means the property which has been inherited by a Hindu from his father, grandfather or great-grandfather. The discriminatory approach towards the gender of a woman and the oppression of her fundamental rights called for an amendment of the Hindu Succession Act, 1956. Accordingly, Section 6 of the said Act was amended and it came to be known as the Hindu Succession (Amendment) Act, 2005. This amendment enabled women to become the coparceners same as their male counterparts. The Amendment Act, 2005, created ambiguity regarding the application of the provisions under it. It was unclear as to how the interpretation of law must be done due to two conflicting cases. The Phulavati’s Case of 2015 and the Danamma’s Case of 2018. The question was whether the Amendment Act, 2005 was applicable in a retrospective manner and whether the father (coparcener) and daughter must be alive on the date when the Amendment Act,2005 came into force. The case of Vineeta Sharma v Rakesh Sharma answered both these questions. The Hon’ble Supreme Court of India held that daughters have an equal right in the coparcenary property same as the son, even if the father died before the enactment of the Hindu Succession (Amendment) Act, 2005. It further held that the rights under the amendment apply to living daughters of living coparceners as on 9th September 2005, irrespective of the date of birth of the daughters. Women have been subjected to historical injustice due to the unavailability of their coparcenary rights and the ambiguity of the interpretation of those rights. The verdict given by the Hon’ble Supreme Court of India in the case of Vineeta Shama v Rakesh Sharma is a step towards gender justice and gender equality.  However, it took a long time for the evolution to take place regarding the coparcenary rights of women under the Hindu Law. 

References ;

• http://egazette.nic.in/WriteReadData/1956/E-2173-1956-0038-99150.pdf
• daughters equal right in the coparcenary property in India https://www.lawjournals.org/assets/archives/2021/vol7issue1/7-3-28-954.pdf
• Hindu Succession(Amendment)Act,2005. https://www.bing.com/ck/a?!&&p=339dc85a61abd0c7JmltdHM9MTcxNDY5NDQwMCZpZ3VpZD0yY2QyOTU5Zi00ZWY3LTZlYjItMzUxNC04MTk2NGZmMTZmMjkmaW5zaWQ9NTUxNw&ptn=3&ver=2&hsh=3&fclid=2cd2959f-4ef7-6eb2-3514-81964ff16f29&psq=topics+on+daughter+corparcenar+rights&u=a1aHR0cHM6Ly93d3cuc2Njb25saW5lLmNvbS9ibG9nL3Bvc3QvMjAyMC8wOC8xMS9kYXVnaHRlcnMtaGF2ZS1jb3BhcmNlbmFyeS1yaWdodHMtZXZlbi1pZi1wYXJlbnRzLWRpZWQtYmVmb3JlLXRoZS1oaW5kdS1zdWNjZXNzaW9uLWFtZW5kbWVudC1hY3QtMjAwNS1jYW1lLWludG8tZm9yY2Uv&ntb=1
• Absolute ownership https://old.wirc-icai.org/images/material/DAUGHTERS-RIGHT-IN-PROPERTY-HUF-vimalp.pdf 
• Prakash and Ors v. Phulavati and Ors, 2016 https://indiankanoon.org/doc/48991214/
• Lokmani v. Mahadevamma & Ors., 2016 https://indiankanoon.org/doc/55762164/
• the amendment Section 6(5) of HSA https://indiankanoon.org/doc/111238562/ 
• Danamma v. Amar, 2018 https://www.escr-net.org/caselaw/2018/danamma-suman-surpur-another-v-amar-others-civil-appeal-nos-188-189-2018
•  Vineet Sharma v. Rakesh Sharma & Ors., 2018 https://indiankanoon.org/doc/177171780/

SC Verdict on electoral Bonds scheme

 

                                                  SC Verdict on electoral Bonds scheme

       SC Verdict on electoral Bonds scheme

Introduction

Electoral bonds were introduced by the Modi government as an alternative to cash donations made to political parties but the instrument is now at the center of a controversy over allegations that it is not only skewed towards the ruling party but flouts the concept of free and transparent elections. According to the report given by the Association for Democratic Reforms also known as ADR for the financial year 2019, political parties have declared income/donations worth Rs 1, 931 crores through these bonds. The Bharatiya Janata Party received around 75 percent of the donations which is Rs 1,451 crores while the congress received around 20 percent of the donations i.e. Rs 383 crore and TMC received 5 percent of the donations i.e. Rs 97 crore.

The donations and funds are the primary sources of income for the groups. The BJP and Congress registered a high concentration of donations in their profits, with donations accounting for nearly 97 per cent, 60.08 per cent respectively of their profits. The BSP stated that most of its revenue came from bank interest while the revenue from fees and subscriptions came from Communist Party of India’s (Marxist) interest. Research by ADR shows that income for BJP increased by 134.59 per cent during this time, while income for Congress increased by 360.97 per cent. TMC’s revenue soared by an incredible 3,628.47 per cent, which is the largest income rise for any party in the century.

Functioning of the Electoral Bond Scheme

 The State Bank of India (SBI) issues electoral bonds in the months of January, April, July and October.

The electoral bonds are available in denominations from Rs 1,000 to Rs 1 crore. The donors can buy electoral bonds and transfer them into the accounts of the political parties as a donation. The name of the donor is kept confidential.  Political parties create a specific account. This account is verified by the ECI. The political parties encash the electoral bonds only in this verified account. The bonds remain valid for 15 days. Within that time, the political parties have to encash the electoral bond in the designated accounts.

SC Verdict 

The electoral Bonds scheme was held as “unconstitutional” in a unanimous judgment by the five-judge bench of Supreme Court (SC) headed by the CJI, which was examining the legality of the electoral bonds scheme. SC held that anonymous electoral bonds are violative of right to information and Article 19(1)(a).

Along with the Electoral Bonds Scheme (EBS), the Supreme Court struck down amendments in the The Representation of the People Act, 1951 (RPA), The Income-tax Act, 1961, and The Companies Act, 2013, which were brought to facilitate corporate donations to political parties.

Issues

Issue 1: Impact of Electoral Bond Scheme on Right to Information

Supreme Court’s Decision: The Supreme Court determined that the electoral bond scheme undermines the right to information protected under Article 19(1)(a), which upholds the freedom of speech and expression.

Court’s Reasoning: The court recognized a significant link between financial contributions and political influence. Since monetary donations can lead to increased access to lawmakers and the potential for reciprocal agreements, such as policy favors, the court emphasized that economic disparities can lead to political imbalances. Consequently, transparency in political party financing is crucial for informed voting decisions.

Issue 2: Limiting Black Money vs. Right to Information

Supreme Court’s Verdict: The Supreme Court clarified that the right to information can be limited only for reasons listed under Article 19(2), which outlines acceptable constraints on freedom of speech and expression. The article does not consider the reduction of black money in electoral funding as a valid restriction.

Court’s Logic: The court found that the limitations imposed by the electoral bonds scheme on the right to information did not pass the proportionality test established in the KS Puttaswamy verdict concerning the right to privacy. The court held that curtailing the right to information to combat black money in electoral funding was not a justified trade-off.

Issue 3: Donor Privacy vs. Right to Information

Supreme Court’s Ruling: The court ruled that the right to privacy regarding political donations does not cover corporate contributions that might be made with the intent to sway policy-making. This right is reserved for donations that represent genuine political support.

Court’s Explanation: The court argued that substantial corporate donations should not obscure the motives behind financial support from other segments of society, ensuring that the reasons for such contributions remain transparent.

Issue 4: Whether unlimited political contributions by companies are unconstitutional

SC Verdict-The court held that the amended section 182 (3) of the companies act 2013 as unconstitutional, as it is violative of Art 14. This amended section permitted unlimited political contributions by companies.

SC Rationale- Contributions made by companies are purely business transactions made with the intent of securing benefits in return. The ability of companies to influence the political process through contributions is much higher compared to individuals.

Why Are Electoral Bonds Unconstitutional?

The court held that the scheme violates:

The right to information: By hiding the source of funding from the public, it infringes upon the fundamental right under Article 19 (1) (a).

The principle of equality: It discriminates between political parties based on their vote share, favoring ruling and major opposition parties while excluding smaller and regional ones.

The constitutional aim of curbing corruption: The scheme goes against the goal of transparency and disclosure in political funding

Conclusion

A clean & transparent electoral funding process is vital to ensure a fair electoral democracy. Most developed countries in the West have robust mechanisms to ensure transparency in their political systems. As India aspires to emulate the West by setting the ambition of achieving developed country status by 2047, it must aspire for similar standards of transparency in the political sphere. Cleaning up electoral finance can be the first step in this regard.  Political parties has created a negative effect over the Electoral Bond Scheme, as the general public would never know about who is donating and who is not.

But if the Identities are disclosed, then it will become a danger for the Donors as they might face problems from the opposite parties who they did not donate to. Now the main thing the government needs to examine is the effect of keeping the Electoral Bond Scheme. If the Electoral bonds are well regulated and do not tilt towards  one political party or are free from any other problem, then this Scheme will be deemed successful, but if there happens to be such acts like illegal lobbying or corruption, this will make the regulation of donations given in elections worse than before. The government has to think about a new scheme which would not only help in transparent political elections but also go hand in hand with democracy and in the interest of the general public as the elections are held to form a government for the welfare of the general public of the country.

Refrences

1. https://forumias.com/blog/electoral-bonds-scheme-explained-pointwise/

2. https://timesofindia.indiatimes.com/india/lok-sabha-elections-2024-electoral-bonds-explained-transparency-and-anonymity-in-political-funding/articleshow/108646815.cms

3. https://blog.ipleaders.in/legality-electoral-bonds/

Yours in logic and legalese,

Pratyush Pratap Singh

Contact me.

pratyushpratapsingh36@gmail.com

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I am PRATYUSH PRATAP SINGH a passionate and driven Law student at the National Forensic Science University, dedicated to pursuing a career in the legal field with a focus on promoting justice and advocating for societal change.

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