WOMEN ALREADY ON MATERNITY BREAK ALSO ELIGIBLE FOR ENHANCED LEAVE

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The Government on Monday, 8th May 2017, clarified that it is mandatory on the part of employers to extend the benefit enhanced maternity benefit of 26 weeks, as modified by the Maternity Benefit (Amendment) Bill, 2016, to those women workers who were already on maternity leave on the date of enforcement of the Maternity Benefit (Amendment) Act, 2017, that is April 1, 2017.

The Labour Ministry had notified the Maternity Benefit (Amendment) Act, 2017 on March 28, 2017 and the provisions of the Amendment Act have come into force with effect from April 1, 2017, “except those relating to crèche facility [Section 4(1)], which would come into force from July 1, 2017”.

Keeping in view queries received from various quarters, the Ministry had on April 12, 2017 issued certain clarifications on various provisions of Maternity Benefit (Amendment) Act, 2017.

One of the clarifications issued stated that the enhanced maternity benefit, as modified by the Maternity Benefit (Amendment) Bill, 2016, can be extended to women who are already under maternity leave at the time of enforcement of this Amendment Act.

It is now “mandatory” for employers to extend enhanced leave to women already on maternity leave.

Salient Features of the Act:

  1. Maternity leave available to the working women to be increased from 12 weeks to 26 weeks for the first two children.
  2. Maternity leave for children beyond the first two will continue to be 12 weeks.
  3. Maternity leave of 12 weeks to be available to mothers adopting a child below the age of three months as well as to the “commissioning mothers”. The commissioning mother has been defined as biological mother who uses her egg to create an embryo planted in any other woman.
  4. Every establishment with more than 50 employees to provide for crèche facilities for working mothers and such mothers will be permitted to make four visits during working hours to look after and feed the child in the crèche.
  5. The employer may permit a woman to work from home if it is possible to do so.
  6. Every establishment will be required to make these benefits available to the women from the time of her appointment.

 

While India’s private sector employers lagged behind the government sector and many other countries in terms of providing extended maternity benefits, with the enactment of the Maternity Amendment Act, India has become one of the most progressive countries in terms of providing maternity benefits. The Maternity Amendment Act is definitely a welcome step taken by the Indian Government enabling women to combine their professional and personal roles successfully and to promote equal opportunities and treatment in employment and occupation, without prejudice to health or economic security.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

DILUTIONS UNDER THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016

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Real Estate (Regulation and Development) Act, 2016 came into force on May 1, 2016 culminating the eight year long efforts in this regard and setting in motion the process of making necessary operational rules and creation of institutional infrastructure for protecting the interests of consumers and promoting the growth of real estate sector in an environment of trust, confidence, credible transactions and efficient and time bound execution of projects.

Ministry of Housing & Urban Poverty Alleviation had notified 69 of the total 92 sections of the Act. A proposal for a law for Real Estate was first mooted at the National Conference of Housing Ministers of States and Union Territories in January, 2009.

Early setting up of Real Estate Regulatory Authorities with whom all real estate projects have to be registered and Appellate Tribunals for adjudication of disputes is the key for providing early relief and protection to the large number of buyers of properties.

The Act empowers appropriate Governments to designate any officer preferably Secretary of the Department dealing with Housing, as the interim Regulatory Authority until the establishment of Regulatory Authority under the provisions of the Act.

Under the directions of the Minister of Housing & Urban Poverty Alleviation Shri M. Venkaiah Naidu, a Committee chaired by Secretary (HUPA) has already commenced work on formulation of Model Rules under the Act for the benefit of States and UTs so that they could come out with Rules in quick time besides ensuring uniformity across the country.

Major dilutions under the Realty Act

States such as Odisha and Bihar have notified rules that are completely in sync with the one notified by the Union housing and poverty alleviation ministry.

Haryana’s draft rules have completely left out disclosures by builders on the sanctioned plan, layout and specifications at the time of booking with all subsequent changes till date.

In Maharashtra, a provision has been included to allow builders to take out or divest from a project after occupancy certificate has been issued. This means, the builder can pull out its entire investment before completion of common areas, facilities and amenities.

In UP, the norms related to compounding of offences have been diluted as no specific amount has been mentioned.

In Delhi, the Urban Development Ministry has allowed relaxation, where rules specify that promoters need to provide details of only those court cases which have been disposed of during the last five years.

Till 29th April, 2017, 13 states and Union Territories had notified their final rules.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

 

ANALYSIS OF DEATH PENALTY IN THE RAREST OF RARE CASES

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In the past few years, the Government has brought a number of legal advancements, policy reforms for protection of women from various sources of violence and atrocities and schemes for launching women helpline, prevention of trafficking and sexual exploitation, for setting up of one stop centres to assist women affected by violence, etc. The courts have also awarded stringent punishments to offenders who commit offences against women including death penalty in the rarest of rare cases.

The Supreme Court, in Bachan Singh v. State of Punjab 1980, had laid down that life imprisonment is the rule and death sentence is an exception and thus, certain guidelines should be followed before a court may award death penalty:

  1. Only in the gravest cases of extreme culpability, this extreme penalty of death may be awarded;
  2. The circumstances of the offender along with the circumstances of the crime have to be taken into consideration.
  3. When the sentence of life imprisonment seems inadequate having regard to the nature and circumstances of the crime, only then death sentence may be awarded; and
  4. The aggravating and the mitigating circumstances have to be balanced.

 

Whereas, in Machhi Singh v. State of Punjab 1983, the Supreme Court had held that in the rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty, then death penalty may be sanctioned.

Applying the aforesaid principles, the Supreme Court in a recent judgment of Mukesh and another vs. State of NCT of Delhi 2017 (Nirbhaya case) involving the brutal rape and murder of para-medical student, has taken into consideration all the evidences and investigation reports including the dying declaration, statements of witnesses, medical examination reports, etc. The mitigating factors as contended by the appellants include absence of pre-meditation to commit a crime of the present nature, poverty-stricken background, no criminal antecedents, the suffering that their family will face if they are awarded death sentence, etc. Whereas, the aggravating circumstances include the brutal and barbaric nature of the crime involving assault on the deceased victim with iron rods, pulling out vital organs, sexual violence, etc that would have caused her extreme mental and physical trauma, that ultimately, led to her death. These circumstances led to the indictment and death penalty of some of the rapists.

According to the Supreme Court, the medical reports and other evidences have established the fact that the accused persons had treated the deceased-victim in a devilish and perverse manner, which is bound to shock the collective conscience of the community. Thus, the Court has held that the aggravating circumstances have outweighed the mitigating factors, and as a result, this case has fallen under the ‘rarest of rare case’ category. Therefore, the SC upheld the order of the High Court to sentence the accused persons to death.