Introduction

The huge amount of physical and mental work put in by millions of daily wage workers across the world and especially in India is a fascinating yet a disheartening study. Not only their work is quantified into small pockets of “wages” but also this quantification further spirals them downward into the social and the economical strata of the society. The end of the day wages received by the workers are akin to the concept of ‘pocket money’ only the not-so-subtle nuance is that the former is for existence and the latter’s role is debatable. Thus, the wages form a very fundamental role in the overall being of the workers and their families.

The disparity, especially in India comes to surface when we have already witnessed a huge amount of time and resources being wasted on debating both real wages and wage policy prevalent in the country during different eras. The omnipresent question as to setting up a national floor-level minimum wage along with the implementing of myriad calls of minimum wages across states has always stared into the faces of the policy makers. The author also would like to point out that there is zero correlation between India’s status as an emerging economy and being a part of the G20 League to the grim picture of daily wage earners.

A good policy, according to the author should have clarity in objectives along with a proper and a well-structured strategic design. Financing and the outcomes of the policy follow suit to make it error proof. However, in the context of the wage earners and various policies laid out for them have found wanting and have hugely missed the point of taking everyone to the finish line and not isolating the downtrodden. The current pandemic exacerbated the deplorable state of the daily wage workers in India. Factors like labour market institutions (particularly minimum wages and collective bargaining) influence the wage levels and their distribution. The author would also be the covering the gender disparity across the wage earners and its massive effect on the overall shaping of the economy.

Theories of Wages

“Pay the worker his wage before his sweat is dry”- Quran.

The above mentioned adage means the high regard and the sine qua non a worker plays in the society from time immemorial. Wage remuneration or earning is not a new concept, however, the various theories of wage and the study as to what encompasses what is a fairly new field. The author tries to list some of the most common wage theories.^[1]

1. Subsistence theory- As the name suggests it, only the amount which is sufficient to maintain the labourer and his family is paid. Nothing more, nothing less. David Ricardo was the propagator of this theory at large.
2. Standard of Living Theory-The standard of living of the labourer is deciphered and he/she is paid wages according to that standard. Here, it is to be noted that ‘subsistence’ of the labourer is not brought into question.

• Residual Claimant theory- Francis A. Walker explained this theory where factors of production in a business activity viz. labour, land, capital, and entrepreneurship were found as determinants. The ‘leftover theory’, here, the labourer is paid the wages from the residual amount which remains after all the different factors of production have been already paid. This sometimes give rise to disputes as the amount is not fixed beforehand giving rise to ambiguity and the labourer feeling disenfranchised and without a recourse to claim his/her rightful wage.

1. Wages Fund theory- Contrary to the Residual Claimant Theory and founded by Adam Smith, here the wages are distributed from a fund which is already pooled in depending on the population of the workers. Following the simple principles of demand-supply, here the wages received by the workers is inversely proportional to the number of the workers present.
2. Marginal Productivity theory- Phillips Henry Wick-steed and John Bates Clark gave this theory according to which wages is determined according to the contribution of the last worker who worked, the so called ‘marginal worker’.

Five Year Plans and wages in India: A simple reconstruction

The urgent need for a well-developed wage structure with a demand to raise the real wages was felt post-Independence. The consciousness grew due to our society and especially our daily workers feeling free from the clutches of the colonial rule.

Primarily an agricultural society (the contribution of agriculture to the overall GDP was a whopping 54.1% during 1951)^[2] made the people at the helm of power realize the importance of daily wage workers and their future role if India were to thrive.

First Five Year Plan and its subsequent impact

With agriculture and giving flippant to the economy as its core, the First Five Year Plan was very worker friendly, so to speak. The workers’ right to association, organization and collective bargaining were to be accepted as the basis of mutually satisfactory relationships. Also, The Minimum Wages Act, 1948 fixed the minimum wages for a particular type of employment, which included agriculture too.

Second Five Year Plan and India flexing its muscles

Although, agriculture was still the focus (agriculture contributing 49.1% of the GDP)^[3], now a paradigm shift to include other industries’ workers started to come into light. Norms including that of creation of industrial peace and subsequently of a holistic ‘industrial democracy’ were accepted during the Second Five Year Plan (1956–61). Socialism was given an impetus and a strong trade union was seen as a prerequisite to attain the same.^[4]

The wage policy got tweaked significantly to achieve this aim and the following pointers were laid down: –

1. Emphasis on rising real wages by increasing productivity through better layout of plants, improving the working conditions along with the training of the workers and assuring them minimum wages and protection to all was laid down. To bring wages into conformity with the expectations of the working class
2. Setting up of wage boards (which usually consisted of an equal number of both the representatives of employers and workers and an independent chairman) in individual industries in different areas for the settlement of wage disputes.

The Indian Labour Conference, in 1958, also adopted “A Code of Discipline in Industry” in 1958, which followed the principles of natural justice subjecting all the future differences, disputes and grievances arising to a systematic process of mutual negotiation, conciliation and voluntary arbitration. By forcing the employers to recognize trade unions as bargaining agents, the Code thus helped in “facilitating the process of collective bargaining”.^[5]

The wage policy under the Second Plan was investigated by A Tripartite Committee of the Indian Labour Conference which declared certain norms They were:

1. One earner of was supposed to be having three consumption units as ‘The standard working-class family’ sans the earnings of women, children and adolescent.
2. The net calorie intake was the basis of calculating the Minimum food requirement of the individuals and their families.
3. Eighteen yards per annum per person of clothing and seventy-two yards per annum for four persons was the norm.
4. The Government Industrial Housing Scheme was the nodal authority according to which the rent of the minimum area of a particular place was decided.

The Third Five Year Plan

Bringing gender disparity in employment and wages, the Third Five Year Plan (1961-1966) recognized the need of the hour and pledged to encapsulate the Gandhian principle of “equal pay for equal work. The emphasis also shifted towards generating employment-based policies and the other benefits which follow with it. The need to consider price stability and to link wages to productivity and good industrial relations was emphasized in the Fourth Five Year Plan (1969–74).

Sixth Five Year Plan and the rise of the unorganized sector

Detracting from the earlier plans, the Sixth Five-year Plan (1980-85) focused on the unorganized and not just the organized sector. This included artisans, fishermen, agricultural labourers et al. This plan gave the power to fix and revise the minimum wages and to devise a wage structure without violating the freedom of the parties to negotiate freely. Social factors (minimum basic needs, adjusting real wages for rise in cost of living, allowances for occupational hazards, bonus, social security benefits, among others) and economic factors (capacity to pay, profitability and productivity, consumption pattern, cost of living and regional disparities, among others) were given due preference. Recognizing minimum wages for low-paid workers to achieve a minimum standard of living and to attain industrial harmony for maximum output, this era while admitting collective bargaining as a necessary tool also gave respect to the before mentioned factors for economic progress, particularly in the core sectors.

The Latest Five-Year Plans: Consolidating the obvious

The post-Independence Five Year Plans were robust in the sense that India wanted to prove that it has got able minds and hands to run it. However, the subsequent plans like the Eighth (1992–97) and the Ninth (1997–2002) Five Year Plans again stressed the safe and humane working conditions, social security benefits, improvement in the productivity of labour and reducing malpractices in wage payment. The author would like to argue that maybe the economic liberalization following 1991 had shifted India’s focus towards a more open society to the outside world that sometimes the people already suffering are left behind could have been the case. Shifting the focus towards labour flexibility, labour law reforms and skill development so that foreign countries and businesses get attracted to set up their shops in India, the question of minimum wages was thus raised.

Wage-Setting Institutions

The two wage-setting institutions in India, the role of which will be discussed are as follows-

1. Wage boards
2. Collective bargaining

Wage Boards

The idea to provide wage-fixing machinery and to work out a wage structure (for the organized sector) was central to the recommendations made by The Committee on Fair Wages, 1948. At the state level, the wage boards were a tripartite body formed by the government, comprising representative of employers, representatives of workers and independent members which represented the public at large. Their main tasks ranged from recommending wages to getting compensation, setting the gratuity, and also fixing the number of hours for the workers, etc. The cotton textile and sugar industries, influenced by the wave of Swadeshi still around the country saw the rise of the firs wage board set up in 1957.^[6] The enormous success in these industries led to the normalizing of wage boards which soon mushroomed throughout the country in huge numbers and in myriad industries mainly on the demands of the worker and the trade unions. The print media, probably given their ‘esoteric’ and ‘erudite’ level in the hierarchy of industries got their wage boards registered as statutory while every other wage board was non-statutory in nature. Maybe a pen is mightier than sword. Maybe. A region-cum-industry approach to determine the wage levels and the structure of wages was adopted throughout the country, however, this soon went out of fashion and since the liberalization of our economy in the early 1990s, the number of these wage boards have dwindled.

This has had a huge impact on the lives of workers and especially on that of various daily wage earners who have found it difficult to make their voices hear over the humdrum of ‘economic growth’ and ‘inclusive growth’. The author would like to make the point of ‘exclusivity approach’ adopted by the industrialists where more often than our daily wage earners are left out of the discussion. The discourse on how “India has cheap labour due to its large population” must shift towards that each worker and their families) are literally living for survival every day, a grim picture unseen by us, either voluntarily or due to our sheer foolishness.

Collective Bargaining

Collective bargaining has been adopted in several developed nations such as the UK and the USA. It has been taken up in India as well in the form of compulsory adjudication but the implementation of the same has been extremely poor.

The term “collective bargaining” was coined by Sydney and Beatrice Webb. Though there is not unanimity between scholars as to the definition of the term, it is essentially taken to mean any sort of agreement between the employers and employees with respect to the conditions of employment and term of service. It involves 2 parties namely- the employers either on their own or represented by the employers’ union/federation and the workers represented by their unions. Sometimes when the law provides for collective bargaining, the trade unions are also referred to as bargaining agents. There has been a long-standing debate that a representative of the public/government must also be allowed to be a part of the bargaining table.

The ILO has divided the subject matter of collective bargaining into 2 categories-

1. Those which set out standards of employment and regulate employer- employee relations. E.g., wages, working hours, etc.
2. Those which regulate the relations between the parties to the agreement and do not affect the employer-employee relationship in any way. E.g., methods of enforcing collective bargaining, methods of settling individual disputes, etc.

The International Confederation of Free Trade Union has referred to collective bargaining as a ‘worker’s bill of rights’ and has laid down the following objects of collective bargaining-

1. To establish recognition of trade unions.
2. To increase the standard of living of workers and to give them a fair share in the company’s profits.

• To practically express their demands and to ensure democratic participation.

1. To settle day to day disputes in the establishment.
2. To achieve general objectives such as defending and promoting the interests of workers in the country.

Minimum Wage Policy in India: How Far Are We from Security?

By adopting “living wage as an objective”^[7], India passed The Minimum Wages Act, 1948 soon after attaining Independence. This showed the far sightedness and the necessary coverage the daily workers should have got during a period of an uncertain future of the country. A tripartite committee comprising employees, employers and government representatives was constituted in 1948 and christened as The Fair Wages Committee (the Committee), which looked after the sole task of maintaining minimum wages across the strata of economic ladder. The recommendation served as steppingstones for future legislations to be shaped up accordingly and the subsequent wage-fixing machinery of the country got fuel from the Committee itself.

How were the Wages defined?

The Committee focused on segregating the wages into various forms. Among the most popular forms were:

1. Living wage

The highest and the most important level, this comprised the basic coverage of clothing, shelter, education of children, health insurance and old age insurance. This basically meant that an all-encompassing approach which looked after oneself from birth till his old age was covered.

2. Fair wage

This basically meant that not only the subsistence but also the standard of living should be looked into while envisaging a wage structure. So that the country keeps on the path of growing employment, this wage structure, after giving due consideration to the national income, productivity and the capacity to pay of the industry concerned, wanted people to come out of the clutches of poverty and inequality for the various generations which were to follow.

3. Minimum wage

The most talked about aspect and probably which is the most abused one too due to inept policy implementations even today, ‘minimum wage’ started off as a noble concept. The basic aim was to provide for the sustenance of life and also to provide a cushion where the worker (and his family) could enjoy basic education, could meet medical requirements and conserve the efficiency of the worker. “The “bare minimum” or the bare necessities were covered via this wage structure, below which, quantification of work for money was considered simply barbaric.”

Recommendations given

Setting up of a wage board for each state and a ‘regional’ board for each industry in order to fix and regulate wages. The Standing Labour Committee, following the guidelines of the Committee given held various meetings in order to establish the ‘statutory wage-fixing machinery’ on the lines of the Minimum Wages Act, 1948.

Implementation and the flawed state of affair

The idea of minimum wage, though operationalized by various central and state policies (although not properly), living wage remains at a theoretical level an no actions have been taken to bring that to paper. Fair wages, on the other hand, though not having a fixed and a precise character were still given due thought by the various wage boards. However, as already mentioned by the author before, the economic reforms in India soon led to a demise of wage boards and subsequently to the concept of fair wages in India.

The Minimum Wages Act, 1948 itself does no good to determine any criteria of the minimum wage by leaving it undefined. The recommendations of the Committee (1949) and the decisions taken by the 15^th Session of the Indian Labour Conference (1957) along with the decision given by the Apex in the historic Raptakos Brett judgement (which held that the “need based reforms laid out in the 15^th Session of the Indian Labour Conference” should act as the guiding light) serve as the seminal works and the torch bearer to define minimum wages in 1992.

After effects of The Minimum Wages Act, 1948: Post scenario

It was only after the first National Commission on Labour (1966–69) formed that a question of wages was asked extensively. The Commission recommended the formation of a wage policy which would ensure industrial harmony and increase productivity and the workers’ share in it. Also, the Commission took into consideration the basic workers’ level of living and the impact it would have on prices. The Bhoothalingam Committee set up in 1978 recommended the rationalization of wage differentials, wage disparities, the linking of wages with productivity and a national minimum wage.

In 1987, the Regional Minimum Wage Advisory Committees worked to deal with the disparities prevalent in minimum wages across the states in the country. These committees together got together and were renamed as the Regional Labour Ministers’ Conference, which made a number of recommendations including-

1. Reducing the disparity in minimum wages between states of a region.
2. Setting up of an interstate coordination council.

• Consulting with neighboring states while fixing/revising minimum wages. However, there is hardly any evidence to suggest that these recommendations are being seriously followed.
• Also, in order to protect fixed minimum wages against inflation, they have been linked to the Consumer Price Index for Industrial Workers (CPI-IW) after this was recommended at the Labour Ministers’ Conference in 1988.

Getting forward, in the year 1996, a National Floor Level Minimum Wage was formed based on the recommendations of the National Commission on Rural Labour, 1991. Though statutory backing was not provided, the Floor Minimum wage is revised time and again and it is imperative for the state governments to fix their ‘minimum wage’ above the floor level fixed.

As already discussed, the advent of post liberalization shifted the focus of the country and the second National Commission on Labour (1999–2002) did the same by fixating upon labour flexibility, technological changes, and economic growth as considerations in wage setting. A policy based on a principled set of norms was envisaged wherein attainment of social justice and higher employment levels were given emphasis to. Capital formation and price stability, likewise, came into the milieu.

A statutorily backed National Minimum Wage along with a National Minimum Social Security and Minimum Conditions of Work to ensure the safety and health of workers was suggested by the National Commission for Enterprises in the Unorganized Sector (NCEUS).^[8]

The various committees, commissions and wage boards have done their work, but on paper only. The stark reality is disheartening as till date, only a limited proportion of workers (66% to be precise) receive minimum wages and the rest are still in the left out of the coverage. Though a debate has been ensuing and boiling amongst the academicians, scholars, and the like as to what should be the “right” approach to the wage policy, where some even suggesting the introduction of “binding national minimum wage for all workers”, not much has come to fruition due to the red tapism and vote bank politics played during elections.

Diversity in India is what gives it its uniqueness, its binding force. Thus, the debate between trade unions who want a single, consolidated minimum wage structure and employer organizations who want a region-wise and sector-wise wages is diverse and vivid in its nature. The daily wage earners thus get lost in between and are therefore left without any actual way out of this humdrum since different states have different policies. Knowing that these workers are also migrants in many cases, they are thus left with no option but to acquiesce to what the big corporates or the big industries tell them.

Judicial Stance

The main legislative instruments regulating wages in India are:

1. Minimum Wages Act, 1948
2. Payment of Wages Act, 1936
3. Payment of Bonus Act, 1965
4. Equal Remuneration Act, 1976

The main objective of these laws has been to ensure that labour was not employed in precarious conditions.

In India, the concept of a laissez faire state and payment of wages based on market forces had withered away long back. With the advent of the concept of the welfare state, the government was expected to take active part in determination of such wages.

The wage structure in the Indian context is controlled by various factors such as the strength of trade unions, different industrial relations practices, approach to strike strategy as a consequence of non-agreement, competitive price of products, attitude of competitors, availability of raw materials, etc.

In Workmen v. Management of Reptakes Brett & Co. Ltd., the SC stated that a minimum wage shall consider factors like children’s education, medical requirements, minimum recreation including festivals or ceremonies and provision for marriage, etc.

In Crompton Greaves Ltd. vs Its Workmen, it was held that the wages must be fixed keeping in mind the wages prevalent in the same industry in the region or otherwise.

Article 43 of the constitution has enshrined a DPSP as per which the state must endeavor to secure by way of legislation, a living wage for its workers.

In RB Employees Association v. Reserve Bank, it was held that living wage is that which should not only provide for the essentials but a fair measure of frugal comfort and an ability to provide for evil days and old age.

The factors which need to be kept in mind while fixing wage rates in a socialistic set up are as follows-

1. Wages cannot be set in vacuum. They depend not just on employers and employees but also on consumer and the community.
2. Wages must be paid so that the worker enjoys a decent standard of living and he and his family lead a dignified life as provided under DPSPs.
3. Wages are not set at such high levels as cannot be afforded by the industry.

Exclusion faced by women

Women wages have been ridiculously lower than that to men. The fact that men have already exceptionally low minimum wages (especially the daily wage earners) makes the study of women workers (and daily wage earners) a very painful one.

According to Oxfam, women in India are massively underpaid to their male counterparts; the gender pay gap presently is at 34%.^[9] The age-old patriarchy which still holds India by its neck, or the education received by the women or be it whether they are not ‘suited’ for the employment has only worsened the situation vis-à-vis women and the wage gap.

Exclusion faced in mines: Painting our women employees back

If not already the working in mines is hazardous, the fact remains that even here women face huge setbacks. Technological advancement and policy changes forced some Adivasi and marginalized women out of the workforce which also depended on what the males wished the labour force to look like.^[10]

Tea plantations and where choice of women does not brew

Although, on the face of it, via movies or social media picture of a woman working in a tea plantation in Assam or Darjeeling might give a high number of women employed in this industry, the actual reality cannot be starker. The fact of the matter remains that by ‘employing’ women into the plantations (by their kin who already are a part of the trade unions) have made sure that their wages remain low, and the actual control is still with the male fraternity. Also, it is argued by the author that women hardly get to exercise their choice and get swayed by what their family members (especially males) tell them.^[11]

Exclusion from agriculture workforce: excluding the Annapurna

Landless women labourers, by far are the most distinct and the most visible workforce in the country. These women usually belong to the poorest rural households and also are the marginalized and backward ones. Also, they face serious disadvantages as compared to men to find employment opportunities and whenever they do, they get paid meagerly.^[12]

The author has found that the disparity is not only present in these specific case studies but also is there in almost every employment of the country where there is hardly any respite and no end in sight for these women.

Understanding the New Labour Code

Introduction

The bill was introduced with the intent to codify relevant provisions of four existing laws and to increase the legislative protection of minimum wage to the entire workforce. The codification proposes to simplify 32 central labour laws into four codes to bring them in sync with the emerging economic situation. Done to facilitate easier compliance by establishments, promote ease of living and ensure labour welfare and wage and social security for workers.  Further to ensure national minimum wages throughout the country. The 4 laws compiled are – Payment of wages Act, Minimum wages Act, Payment of Bonus Act, Equal Renumeration Act.

Critical Analysis of the Code

The Wage Code is backed by the central government’s claim that it will address the wage crisis by simplifying the multiplicity of definitions and authorities involved. Yet, the reality is somewhat contrary. The Wage Code has made definitions unclear by leaving much to the discretion of government authorities or to the interpretation of judicial bodies. For instance, no attempt has been made to define and outline the methodology for setting minimum wages, leaving the procedure to be formulated by the centre as seen fit.

Another claim by the government was that these codes will bring the vast unorganized sector under its ambit and ensure compliance. Again, contrary to this claim, minimum wage law was meant to cover sectors that suffered from weak collective bargaining power, especially those with a high concentration of casual labour.

The main challenge rather was the faulty and poor implementation of existing laws.

One of the biggest drawbacks of this code is that it did away with the formula stated in Supreme Court ruling in the Raptakos Brett case of 1992. Now the Wage Code leaves the setting of minimum wages to the discretion of administrators, disregarding the rights of workers to wages that are adequate for leading a dignified life. Moreover, there is no clarity on the particular authority designated for setting the minimum wages, or the procedure which is to be followed. The danger of using ambiguous language for establishing minimum wages was revealed in the government’s recent announcement, which set the national floor for the minimum wage under the Wage Code, at a mere Rs 178.  The amount has been referred to as the “starvation wage,” and it is only Rs 2 higher than the previous national minimum wage, which was set two years ago

Additionally, the setting of different state-level minimum wages is now in the hands of respective state governments, so long as they do not place their minimum wages below the floor set by the central government for that state or region. This might lead to a race to the bottom between states that are competing with one another to lower wage rates and bring in greater investments.  The consequence of this competitive federalism, based on labour cheapening between states, would lead to repressed wages throughout the country^[13] For instance, this was seen in the case of the Okhla Industrial Area in Delhi, wherein businesses shifted out from Okhla to Haryana and Uttar Pradesh to take advantage of lower minimum wage rates in the latter (WPC 2019)

The other provisions of the code states that the central or state-level advisory boards, whose functions include maintaining checks and balances, and ensuring representation of all stakeholders would not be binding on state governments. Further the composition of the board has been altered and the number of employees has been limited to three members, all of whom would be nominated by the government. The representation of women among the nominated employees has been reduced from 50% (as under previous legislations) to one-third. This move has undone years of work spent to make the government accountable to stakeholders.

The Wage Code also takes away the jurisdiction of courts in providing justice to workers who have faced violations with respect to their wages. The employers are now to approach the quasi-judicial body and appellate authority set up under the provisions of the Wage Code. The government is claiming that the setting up of an appellate authority to redress violations regarding workers’ wages will lead to speedy, cheap and effective resolution of wage disputes. However, it gives the appellate authority, whose membership is not defined, the sole power to adjudicate on wage disputes, which are not subject to review by the courts. This is in clear violation of the Civil Procedure Code, Section 9, which mandates that every law or decision made under its authority be subjected to review by the judiciary.

Conclusion

The need of the hour is a drastic focus shift from policy making to policy implementation.  Further the wage gap that exists between men and women needs to be abridged. This can be done through the means of ensuring women access to education and basic nutrition to create a level playing field for women to represent themselves.  Discrimination based on pure stereotypes e.g., women cannot handle technology, and women can only work in labour intensive environments etc. need to be shunned and done away with. Equal pay for equal work mindset is to be adopted.

meaning

In Indian Society, marriage is considered as a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. Before 1955,there was no relief available to either party in case of a failed marriage. They had to continue with the marriage and couldn’t break the marriage. After the passage of Hindu Marriage Act, 1955 things changed in favor of both parties to the marriage. Now, in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation or by a decree of Divorce.

Judicial separation is defined as a legal process which allows parties in a marriage to formalize a de facto separation / be legally separated without the commission of any matrimonial offence.

The Marriage Laws (Amendment) Act, 1976 makes the ground for judicial separation and divorce common. It is upon the parties to choose between the two methods of dissolution. The legal effect of judicial separation and divorce is however different. A divorce puts the final nail in the coffin of marriage where as judicial separation leaves the scope of settlement between parties.

Section 10 of the Act file a petition for judicial separation. After a decree is passed in favor of the parties, they are not bound to cohabit with each other.Some matrimonial rights and obligation, however, continue to subsist. They cannot remarry during the period of separation. They are at liberty to live separately from each other. Rights and obligations remain suspended during the period of separation. The grounds for judicial separation are same as for divorce. Under Section 13(1), judicial separation may be sought on the following

Grounds:

1. Adultery: If other spouse had a voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.

2. Cruelty: If after solemnization of marriage, one of the spouse treats the other with cruelty.

3. Desertion: If the other party has deserted the spouse for a continuous period of years without any reasonable ground immediately preceding the presentation of the petition.

4. Conversion: If one of the spouses has ceased to be a Hindu.

5. Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.

6. Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.

7. Venereal disease: If the other party has been suffering from venereal disease in a communicable form.

8. Renounced the world: If the other spouse has renounced the world by entering any religious order.

9. Has not been heard alive for seven years.

In addition to these grounds some of the grounds are exclusively reserved for women:

1. Bigamy: Bigamy is the state where one person is married to two people at the same time. In the situation the other party can file the petition for judicial separation on the ground that his or her partner is married to another person.

2. Guilty of rape, bestiality or sodomy: The wife can file the petition for the judicial separation if her husband is guilty in the case of bestiality, rape or sodomy.

3. Repudiation of marriage: If the marriage of a girl is solemnized before the age of fifteen years, the girl can ask for the decree of separation. It will not affect the petition that the marriage was consummated or not.

Advantages of judicial separation

 The decree of judicial separation can be used to take the divorce

 Benefits from the military can be kept.

 It gives some time to the spouses to enjoy life without staying with their spouse.

 It gives them time to the spouse to think that is they really want to breakdown the marriage or not.

 The parties get the chance to take the advice from their parents or relatives or any wise person who can advise for a better future.

Disadvantages of judicial separation

 It is as complex as taking divorce

 The spouses feel so much stress as divorce.

 It can be unnecessary for the relationship

What is the purpose of a judicial separation?:

Judicial Separation is a step prior to a divorce. The purpose of judicial separation is to provide an opportunity to the parties to reconcile their difference

The Effect of a Decree of Judicial Separation:

(a) The parties are no longer bound to co-habit with each other.

(b) If either party dies Intestate whilst the Decree is in force and the separation is continuing, his or her property devolves as if the other party to the marriage had been dead.

(c) Marriage between the parties still exists therefore they cannot remarry. If either party remarries, has committed offence of bigamy punishable under Section 494 & 495 of Indian Penal Code.

(d) If a woman is judicially separated, her husband cannot have sexual intercourse with her without her consent. If he does, he can be prosecuted under section 376-A of the IPC. Note that consent under pressure (e.g. because of threats to injure or to stop paying maintenance) is not considered valid.

(e) A Decree of Judicial Separation is not a bar to a subsequent Divorce.

When can petition for judicial separation be filed?

Both the parties can file for judicial separation any time post marriage, whereas in case of divorce, the parties can only file for divorce after completion of one year of marriage.

Can I marry after judicial separation?

Judicial Separation does not allow spouses to remarry. After divorce, the parties can remarry. A petition for judicial separation can be filled at any time after the marriage. The parties have to wait for one year from the time of solemnization of marriage, before filing the petition of divorce.

What to do in case after judicial separation where the parties want to resume cohabitation?

Since a decree for judicial separation is a judgment in rem, if the parties want to resume cohabitation, it is necessary for them to get the order of judicial separation annulled by the court. Normally, the court rescinds the degree on presentation of the petition by consent of both the parties.

Consideration by Court

It has also to be kept in mind that before granting the prayer to permanently snap the relationship between parties to the marriage every attempt should be made to maintain the sanctity of the relationship which of importance not only for the individuals or their children but also for the society (Section 23). It would be too hazardous to lay down a general principle of universal application Hirachand Srinivas Managaonkar v. Sunanda, AIR 2001 SC 1285.

Alternate Relief

Section 13-A of the Hindu Marriage Act, 1955 prescribes alternate relief in Divorce Proceedings. As per this Section, If any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Difference between Judicial Separation and Divorce.

JUDICIAL SEPARATION	DIVORCE
Can file a petition at any time post marriage	Can file only after completion of one year of marriage.
Only one stage of judgement. If grounds are satisfied, decree granted.	Judgement is a two-step process. First reconciliation, then divorce.
Temporary suspension of marriage.	Brings marriage to an end.
Cannot remarry after the passage of decree	Can remarry once decree in favor of divorce is passed.
It is a ground for divorce. A single instance of adultery sufficient for Judicial Sep	Living in an adulterous relationship necessary.
The possibility of reconciliation.	No possibility of reconciliation.

How to file a petition for divorce or judicial separation?

A petition for divorce or judicial separation can be filed in a district court within the jurisdiction of whose:

The marriage was solemnized.

The respondent, at the time of presentation of petition, resides.

The parties to marriage last resided together.

The petitioner is residing, in case the respondent is outside territory of India.

Under Section 21 of the Act,all proceedings under this Act shall be regulated by the Code of Civil Procedure.

Under order VII, rule 1 of CPC every petition for divorce or judicial separation must contain:

The place and date of marriage

Affidavit of being a Hindu

Name, status, and domicile of husband and wife.

Name of children, their sex, and date of birth.

Full particulars of any litigation filed before the presentation of the petition for divorce.

Evidence of the grounds for divorce or judicial separation. For example- in case of cruelty, specific act of cruelty, medical report, place of cruelty, etc.

After filing of the petition, the other party is summoned. Both the parties are required to furnish evidence to strengthen their claim. After furnishing of evidence is over,the judge hears the argument of each side and passes a decree. Appeals against the decision of the lower court can be made in a higher court.

Case laws:

In the case of Vimlesh V. Prakash Chandra Sharma, AIR 1992 All 260 In the court held that a single instance of cruelty is not so grave to pass a decree of divorce. Thus, the court granted a decree of judicial separation to provide an opportunity for the parties to reconcile.

In Subbarama Reddiar v. Sakaswathi Ammal (1966) 79 LW 382 (Mad) (DB)., the Madras High has exhaustively discussed about the nature and scope of Judicial Seperation (here in relation to ground of Adultery) and has observed that on grounds specified under Section 13 of the Hindu Marriage Act, 1955 if a spouse seeks judicial separation the same may be granted when the petitioner spouse successfully proves the adulterous relation.

 In Trimbak Narayan Bhagwat v. Kumudini Trimbak Bhagwat AIR 1967 Bom 80, the Bombay High Court held that the aggrieved wife is entitled to get a decree of judicial separation and defence of insanity is no good defence

Conclusion:

judicial separation means to separate spouse to each other for some period legally. After a decree is passed in favor of the parties, they are not bound to cohabit with each other. Some matrimonial rights and obligation, however, continue to subsist.They cannot remarry during the period of separation. While in diverse case parties are free to to marriage.It is a ground for divorce.

Meaning

“Zero hour” is the time set by the parliament when members of parliaments raise issues of public interest next to the speaker

While the dictionary meaning of ‘Zero Hour’ is “the critical moment” or “the moment of decision”, in parliamentary parlance, it is the time gap between the end of Question Hour and the beginning of the regular business. The other rationale behind naming it so can be attributed to the fact that it starts at 12 noon.

Zero Hour is the time when Members of Parliament (MPs) can raise Issues of Urgent Public Importance. For raising matters during the Zero Hour, MPs must give the notice before 10 am to the Speaker/ Chairman on the day of the sitting. The notice must state the subject they wish to raise in the House. However, Speaker, Lok Sabha / Chairman, Rajya Sabha may allow or decline a Member to raise a matter of importance.

‘Zero Hour’ is not mentioned in the Rules of Procedure. Thus, it is an informal device available to MPs to raise matters without any notice 10 days in advance. This is because, generally, the matters are of public importance and such matters cannot wait for 10 days.

Origin of Zero Hour

• The emergence of Zero Hour can be traced to the early sixties, when many issues of great public importance and urgency began to be raised by members immediately after Question Hour, sometimes with prior permission of the Chairman or some other times without such permission.
• A practice started developing that as soon as the Chairman declared “Question Hour is over” a member would be on his feet to raise a matter which he considered or felt to be of utmost importance to be brought to the attention of the House, and through the House, to the Government, and which could not brook any delay nor could it await to be raised by following the normal land available procedures. 
• The Zero-Hour proceedings started stealing the limelight in the media, thereby encouraging more and more members to take resort to this quick and handy device.

When was Zero Hour introduced in Parliamentary Affairs in India?

• Zero Hour is an Indian innovation in the field of parliamentary procedures and has been in existence since 1962. 
• During the sixties, members of parliament used to raise many pressing issues of national and global import after Question Hour. 
• On such an occasion, a member raised an issue about announcements of policy made by ministers outside the parliament when parliament was in session. 
• This act caused an idea among other members who called for another provision for discussing important matters in the House.
• Rabi Ray, the ninth Speaker of the Lok Sabha introduced certain changes in the proceedings of the House to create more opportunities for the members to raise matters of urgent public importance. The Question Hour is the first hour of the Lok Sabha session in the Parliament, where Members of Parliament question the Government
• He proposed a mechanism to regulate the proceedings during the ‘Zero Hour’, raise matters in a more orderly manner and optimize the time of the House.
• For the Rajya Sabha, the day starts with the Zero Hour and not the Question Hour as it is for the Lok Sabha.

What is the maximum time of Zero hour in Rajya Sabha / Lok Sabha

The duration of the Zero Hour is 30 minutes. The Hour is to raise critical questions or matters without notice in advance.

The Zero Hour is an Indian Parliamentary innovation which starts at 12 Noon immediately after the Question Hour. The duration of the Zero Hour is 30 minutes. The Hour is to raise critical questions or matters without notice in advance.

Conclusion

Since the 1960s “zero hour” has become an essential parliamentary tool for holding the government accountable for urgent public matters. Although parliamentary sessions and zero hour have been repeatedly disrupted, it has repeatedly held the government accountable for urgent issues. “Zero hour” has been proved as an important parliamentary tool which is completely an Indian innovation created for bringing up urgent matters subjected to public importance without any advance notice.

Introduction

The protection of children is one of the guarantees the State must abide by if  Article 21 is considered carefully. India is also a signatory of the UN Convention on the Rights of the Child. Hence, special laws need to be put into effect to safeguard children’s interests and their innocent childhood in the best possible way.

The constitution, before the POCSO Act came into effect, was grossly inadequate to deal with sexual offenses against children. The only act that mentioned a specific part about child abuse was the Goa Children’s act of 2003. All sexual offenses and misdoings against children were processed under these sections of the Indian Penal Code (IPC):

• I.P.C. (1860) 377- Unnatural offenses
• I.P.C. (1860) 375- Rape
• I.P.C. (1860) 354- Outraging the modesty of a woman

There was a lack of laws that especially catered to the best interest of the children, as this approach had its fair share of drawbacks. It had several loopholes that prevented the proper and effective care to protect the child, like;

IPC 375 does not protect male victims from sexual offenses involving penetration.

The word ‘modesty’ is vaguely ambiguous in terms of definition in the constitution. Hence, its violation carries little weight regarding a penalty as it does not qualify as a compoundable offense. It also doesn’t cover the modesty of a male child.

IPC 377, which was annulled in the landmark judgement in 2018, did not define ‘unnatural offenses’. It did not necessarily criminalize the act on children but was rather limited to the sexual act of the attacker.

These discrepancies and insufficient measures were the reason enough for wanting a reform that was driven by its objective to protect children against such crimes.

In September 2010, the Ministry of Women and Child Development prepared a draft Protection of Children from Sexual Offences Bill, 2010 which after several rounds of revisions came into force as the POCSO Act on Children’s Day – 14 November, 2012. The Act was passed in the Indian Parliament in May 2012. The Act under its ambit defines child as a person below the age-group of 18 and is gender neutral and have a clear definition for all types of sexual abuses like sexual harassment, penetrative or non-penetrative sexual abuse, and pornography.

Is POCSO only for girls?

“It’s a misconception that only girls are sexually abused and that POCSO only covers girls. POCSO is actually a gender-neutral law which addresses the gender-neutrality of sexual offences

• In Vishaka v. State of Rajasthan (1997), the Supreme Court held that the offence relating to modesty of woman cannot be treated as trivial.
• In Pappu v. State of Chhattisgarh (2015), the High Court of Chhattisgarh, though it acquitted the accused under Section 354 of the IPC as the offence was found lacking in use of ‘criminal force or assault’, convicted him for sexual harassment under Section 354A which requires ‘physical contact’ and advances as a necessary element.
  • This case also pertained to squeezing the limbs and breasts of a 13-year-old girl but the High Court did not venture into the area of skin-to-skin contact.

What is difference between Posco and Pocso?

POSCO Act:The Protection of Children from Sexual Offences (POCSO) Act, 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children through legal provisions.

Salient features of the Act

• The Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of the child.
• The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
• It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
• People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
• It defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child;’

POCSO Act Punishment

The following table contains the sections that come under the POCSO Act 2012 by which the accused is punished by the law:

Provision	Name of the offense	POCSO Act Punishment
Section 4	Sexual assault that is penetrative in nature on a child below 16 years of age	A minimum of 20 years of imprisonment that may be extended up to imprisonment for the remainder of natural life + fine
Section 4	Sexual assault that is penetrative in nature on a child between 16 and 18 years of age	A minimum of 10 years of imprisonment that may be extended up to imprisonment for the remainder of natural life + fine
Section 6	Penetrative sexual assault that is aggravated in nature	A minimum of 20 years of rigorous imprisonment that may be extended to a life sentence + fine
Section 8	Sexual assault	3-5 years of imprisonment + fine
Section 10	Aggravated sexual assault	5-7 years of imprisonment + fine
Section 12	Sexual harassment	Upto 3 years of imprisonment + fine
Section 14(1)	Use of a child for pornography	Upon the first conviction, 5 years of imprisonment will be given However, upon further convictions, the jail time can go upto 7 years + fine
Section 14(2)	Use of a child for pornography while committing an offence under Section 3	A minimum of 10 years of imprisonment that may extend upto imprisonment for life + fine
Section 14(3)	Use of a child for pornography while committing an offence under Section 5	A rigorous imprisonment term for life + fine
Section 14(4)	Use of a child for pornographic purposes while committing an offence under Section 7	A 6 to 8 years of imprisonment term + fine
Section 14(5)	Use of a child for pornographic purposes while committing an offence under Section 9.	An 8 to 10 years of imprisonment term + fine
Section 15	The offence of storing pornographic material involving a child for commercial purposes	A term of imprisonment that may extend upto 3 years + fine OR both

IPC and POCSO: Differences

• The definition of ‘assault or criminal force to woman with intent to outrage her modesty’ given in the IPC is generic whereas in POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts or doing any other act which involves physical contact without penetration.
• ‘Sexual assault’ in POCSO specifically excludes rape which requires penetration; otherwise the scope of ‘sexual assault’ under POCSO and ‘outraging modesty of a woman’ under the IPC is the same.
• Whereas the IPC provides punishment for the offence irrespective of any age of the victim, POCSO is specific for the protection of children.
• Higher punishment is provided under POCSO not because more ‘serious allegations’ of sexual assault are required but because the legislature wanted punishment to be more deterrent if the victims are children.
• Therefore, once the act of ‘outraging modesty with the use of assault or criminal force’, which is nothing but ‘sexual assault’, is proved, the requisite punishment must be slapped under POCSO if the victim is a child.
• It is overseen by NCPCR (National Commission for Protection of Child Rights), 2005.

The POCSO (Amendment) Act, 2019

• The act aims at making offences against children gender-neutral.
• The definition of ‘Sexual Assault’ has been extended to incorporate administration of hormones or chemical substances to children to attain early sexual maturity for the purpose of penetrative sexual assault.
• The Act defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.
• The amendments also penalize the transmitting of pornographic material to children and propose to synchronise it with the Information Technology Act.
• The Act seeks to enhance punishment for sexual offences against children, with a provision of death penalty.
• According to the amendment act, those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.
• In case of aggravated penetrative sexual assault, the act increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
• To curb child pornography, the Act provides that those who use a child for pornographic purposes should be punished with imprisonment up to five years and fine.
• However, in the event of a second or subsequent conviction, the punishment would be up to seven years and fine.
• The government has also sanctioned over one thousand fast track courts for speedy disposal of pending cases under POCSO.