Media Law and the Rights of Women in India


Women’s rights, as a term, typically refers to the freedoms inherently possessed by
women and girls of all ages, which may be institutionalized, ignored or illegitimately
suppressed by law, custom, and behavior in a particular society. These liberties are
grouped together and differentiated from broader notions of human rights because they
often differ from the freedoms inherently possessed by or recognized for men and boys,
and because activism surrounding this issue claims an inherent historical and traditional
bias against the exercise of rights by women.

Issues commonly associated with notions of women’s rights include, though are not
limited to, the right: to bodily integrity and autonomy; to vote (universal suffrage); to
hold public office; to work; to fair wages or equal pay; to own property; to education; to
serve in the military; to enter into legal contracts; and to have marital, parental and
religious rights. Today, women in most nations can vote, own property, work in many
different professions, and hold public office. These are some of the rights of the modern
woman. But women have not always been allowed to do these things, similar to the
experiences of the majority of men throughout history. Women and their supporters have
waged and in some places continue to wage long campaigns to win the same rights as
modern men and be viewed as equals in society.

Evolution of women’s rights in India

Position of women in ancient India

The position of women since long has been pitiable in all aspects of life and her
subjection by males has been throughout a matter of history. She could not feel
independent, and act as so, barring a few exceptions.

The women in Vedic period enjoyed equal status with men and independence in action.
Not only they had the place of honour, but were entitled to participate freely in social
activities. They were allowed to pursue the academic attainments and shared the family
life with full vigour. They were free to select their conjugal partner and exercised free
will in entering into the matrimonial bondage.

The privileges that women enjoyed in the Vedic period were short lived and the position
of women began to decline from the latter Vedic period onwards. Post Vedic period saw
the emergence of Manusmrithi. The injunctions of Manu merged the wife’s individuality
with that of her husband and recommended strict seclusions for women and rigorous
discipline for widows. While glorifying motherhood and allowing women all freedom in
the management of the household, he permitted child marriage and polygamy. In the
Dharma-shastra women are unambiguously equated with the sudras. Even the Gita
places women, vaisyas and sudras in the same category and describes them as being of
sinful birth. Moreover women lead a life in abject misery. The women were denied the
right of equal opportunity in the field of education as well as in employment. The
inhuman system of .Sati. was prevalent as a compulsory custom. Widows were not only
precluded from remarrying, but they were also not allowed to live after the death of their
husband. There also existed the system of Purda, were the women had to cover her face
and body with a robe when she was to be seen in public. These were not only deprivation
of the rights of women but were also social evils which plagued the ancient Indian
society. The other evils which affected the women in ancient India were child marriage,
female infanticide, Dowry system etc.

During the British rule, many new rules were being legislated to abolish certain social
evils which have direct impact on the rights of the women. Many social reformers during
this period including Raja Ram Mohan Roy worked hard for the abolition of the system
of sati and reinstated in its place the right of widows to remarry. More emphasis was
given to provide opportunities for improving the plight of women like improving
opportunities for female education etc.

After Independence, most of the social evils like Sati system, child marriage, female
infanticide etc which affected the rights of women adversely were abolished. More laws
were enacted to provide women equal status with man in the field of education and
employment opportunities, laws were also enacted for preventing discrimination against
women on the basis of gender. Constitution of India also provides for provisions in order
to protect the rights of women. Reservations were made in the public sector to increase
the ratio of women population and to bring it in par with the male population. The Indian
penal code has also adopted stringent measures to deal with crimes against women. Penal
punishments were incorporated for dealing with the crimes of rape, marital violence
against women, prostitution etc. The Dowry Prohibition act also provides for punishment
in giving and accepting of Dowry. Recently a bill was enacted to prevent harassment of
women in their work places.

International conventions for the protection and promotion of women rights

The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW), adopted in 1979 by the UN General Assembly, is often described as an
international bill of rights for women. Consisting of a preamble and 30 articles, it defines
what constitutes discrimination against women and sets up an agenda for national action
to end such discrimination.

The Convention defines discrimination against women as “…any distinction, exclusion
or restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field.”

By accepting the Convention, States commit themselves to undertake a series of
measures to end discrimination against women in all forms, including:
To incorporate the principle of equality of men and women in their legal system, abolish
all discriminatory laws and adopt appropriate ones prohibiting discrimination against
women; Establish tribunals and other public institutions to ensure the effective protection
of women against discrimination; and to ensure elimination of all acts of discrimination
against women by persons, organizations or enterprises.

The Convention provides the basis for realizing equality between women and men
through ensuring women’s equal access to, and equal opportunities in, political and public
life — including the right to vote and to stand for election — as well as education, health
and employment. States parties agree to take all appropriate measures, including
legislation and temporary special measures, so that women can enjoy all their human
rights and fundamental freedoms.

The Convention is the only human rights treaty which affirms the reproductive rights of
women and targets culture and tradition as influential forces shaping gender roles and
family relations. It affirms women’s rights to acquire, change or retain their nationality
and the nationality of their children. States parties also agree to take appropriate measures
against all forms of traffic in women and exploitation of women.

Countries that have ratified or acceded to the Convention are legally bound to put its
provisions into practice. They are also committed to submit national reports, at least
every four years, on measures they have taken to comply with their treaty obligations.

United Nations Declaration on the Protection of Women and Children in Emergency and Armed Conflict

Bearing in mind the need to provide special protection to women and children belonging
to the civilian population, solemnly proclaims this Declaration on the Protection of
Women and Children in Emergency and Armed Conflict and calls for the strict
observance of the Declaration by all Member States:

1. Attacks and bombings on the civilian population, inflicting incalculable suffering,
especially on women and children, who are the most vulnerable members of the
population, shall be prohibited, and such acts shall be condemned.

2. The use of chemical and bacteriological weapons in the course of military operations
constitutes one of the most flagrant violations of the Geneva Protocol of 1925, the
Geneva Conventions of 1949 and the principles of international humanitarian law and
inflicts heavy losses on civilian populations, including defenceless women and children,
and shall be severely condemned.

3. All States shall abide fully by their obligations under the Geneva Protocol of 1925 and
the Geneva Conventions of 1949, as well as other instruments of international law
relative to respect for human rights in armed conflicts, which offer important guarantees
for the protection of women and children.

4. All efforts shall be made by States involved in armed conflicts, military operations in
foreign territories or military operations in territories still under colonial domination to
spare women and children from the ravages of war. All the necessary steps shall be taken
to ensure the prohibition of measures such as persecution, torture, punitive measures,
degrading treatment and violence, particularly against that part of the civilian population
that consists of women and children.

5. All forms of repression and cruel and inhuman treatment of women and children,
including imprisonment, torture, shooting, mass arrests, collective punishment,
destruction of dwellings and forcible eviction, committed by belligerents in the course of
military operations or in occupied territories shall be considered criminal.

6. Women and children belonging to the civilian population and finding themselves in
circumstances of emergency and armed conflict in the struggle for peace, selfdetermination,

national liberation and independence, or who live in occupied territories,
shall not be deprived of shelter, food, medical aid or other inalienable rights, in
accordance with the provisions of the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, the Declaration of the Rights of the Child or other
instruments of international law.

United Nations Declaration on the Elimination of Violence against Women

The declaration mainly aims at protecting women from torture. For the purposes of this
Declaration, the term “violence against women” means any act of gender-based violence
that results in, or is likely to result in, physical, sexual or psychological harm or suffering
to women, including threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the

( a ) Physical, sexual and psychological violence occurring in the family, including
battering, sexual abuse of female children in the household, dowry-related violence,
marital rape, female genital mutilation and other traditional practices harmful to women,
non-spousal violence and violence related to exploitation;

( b ) Physical, sexual and psychological violence occurring within the general
community, including rape, sexual abuse, sexual harassment and intimidation at work, in
educational institutions and elsewhere, trafficking in women and forced prostitution;

( c ) Physical, sexual and psychological violence perpetrated or condoned by the State,
wherever it occurs.

The Declaration aims at making the world a safer destination for women and to enjoy
their rights without any encumbrances.

ACLU Women’s Rights Project

Since 1972, the ACLU Women’s Rights Project has worked to empower women and
advance equality. Many people, before and since, have contributed to our effort.
The Women’s Rights Project focuses on four core areas:


WRP advocates on behalf of low-wage immigrant women workers, works to eliminate
welfare disparities, and seeks to end workplace discrimination.

Violence Against Women
WRP is committed to advancing battered women’s civil rights, assisting women in their
efforts to keep themselves and their children safe, and challenging the housing and
employment discrimination experienced by so many battered women, especially low income and women of color.

Criminal Justice
WRP addresses the harms to women and girls caught up in the criminal and juvenile
justice systems, including their conditions of confinement, and the impact of sentencing
and incarceration policies on women and their children.

WRP is dedicated to ensuring that public schools do not become sex-segregated and that
girls and boys receive equal educational opportunities.

Legislations in India for the Protection of Women
The major women specific legislations in India are the following:

The Immoral Traffic (Prevention) Act, 1956- The Immoral Traffic act aimed at
preventing immoral activities using women. It provides punishment for women
trafficking, carrying on the business of prostitution, keeping a brothel etc.

Role of Media in the protection of women’s rights

Media plays a very important role in creating awareness among the women community
about their inherent rights, which they were deprived of for many centuries. Media plays
the role of a saviour in whom the power to protect and enhance the rights of the women is
arrogated. Media through its visual broadcasting should project the abject and miserable
lives and living conditions of women in rural India. More documentaries and screen plays
projecting women.s rights should be aired through visual media. Media plays an
important role in coordinating the activities of social workers who play an important role
in striving to establish women.s rights. Print media through various journals meant
exclusively for women entails a place in this men dominated world. Media has certain
forums specifically for the promotion and advancement of the interest of women folk.
Media through its various agencies helps to agitate and voice against any intrusion into
the rights of the women. In the modern age crimes against women have also became very
rampant, media was an active tool in voicing against such acts and bringing such illegal
acts to the eyes of the concerned authorities and thus keeping the issue as a hot spot
which requires urgent attention. Media also acts as an effective tool in educating people
against the commission of such atrocious acts against the women community and thus
preserving their purity and sacredness. Media also through various debates and
discussions help the legislators in identifying new areas for legislating laws for the
protection of women.

Negative effects of media on the rights of women

Media has both positive as well as negative effects on the rights of women. Media has
been a cause for the increase in infringement of the right to privacy of a woman. Media
through obscene publication and visual presentations have demeaned the dignity of
women in the modern society. Modern films tend to glorify violence and as a result
infuse such ideas in the minds of the youth. Media has played a significant role in the
promotion and circulation of pornographic materials which in turn will result in
trafficking of women, flesh trade etc. Media is a corner stone in shaping the lives of the
new generation, as majority of the modern generation are glued to them. Media through
films and publications tend to drastically revolutionise the minds of the people without
their knowledge and awareness. Hence there has to be a strict check and control on the
contents that are aired and published through the media. It was this concept which paved
the way for the development of media laws.

Media laws and its Evolution in India

In India the Press is free but subject to certain reasonable restrictions imposed by the
Constitution of India, 1950, as amended (“Constitution”). Before the impact of
globalisation was felt, the mass media was wholly controlled by the government, which
let the media project only what the government wanted the public to see and in a way in
which it wanted the public to see it. However, with the onset of globalisation and
privatisation, the situation has undergone a humongous change.

Before the invention of communication satellites, communication was mainly in the
form of national media, both public and private, in India and abroad. Then came the
‘transnational media’ with the progress of communication technologies like Satellite
delivery and ISDN (Integrated Services Digital Network), the outcome: local TV, global
films and global information systems.

In such an era of media upsurge, it becomes an absolute necessity to impose certain legal
checks and bounds on transmission and communication. In the due course of this article,
we would discuss the various aspects of media and the relevant legal checks and bounds
governing them.

Historical Perspective of Mass Media Laws

Mass Media laws in India have a long history and are deeply rooted in the country.s
colonial experience under British rule. The earliest regulatory measures can be traced
back to 1799 when Lord Wellesley promulgated the Press Regulations, which had the
effect of imposing pre-censorship on an infant newspaper publishing industry. The onset
of 1835 saw the promulgation of the Press Act, which undid most of, the repressive
features of earlier legislations on the subject.

Thereafter on 18th June 1857, the government passed the .Gagging Act., which among
various other things, introduced compulsory licensing for the owning or running of
printing presses; empowered the government to prohibit the publication or circulation of
any newspaper, book or other printed material and banned the publication or
dissemination of statements or news stories which had a tendency to cause a furore
against the government, thereby weakening its authority.

Then followed the .Press and Registration of Books Act. in 1867 and which continues to
remain in force till date. Governor General Lord Lytton promulgated the .Vernacular
Press Act. of 1878 allowing the government to clamp down on the publication of
writings deemed seditious and to impose punitive sanctions on printers and publishers
who failed to fall in line. In 1908, Lord Minto promulgated the .Newspapers (Incitement
to Offences) Act, 1908 which authorized local authorities to take action against the editor
of any newspaper that published matter deemed to constitute an incitement to rebellion.
However, the most significant day in the history of Media Regulations was the 26th of
January 1950 . the day on which the Constitution was brought into force. The colonial
experience of the Indians made them realise the crucial significance of the .Freedom of
Press.. Such freedom was therefore incorporated in the Constitution; to empower the
Press to disseminate knowledge to the masses and the Constituent Assembly thus,
decided to safeguard this .Freedom of Press. as a fundamental right. Although, the Indian
Constitution does not expressly mention the liberty of the press, it is evident that the
liberty of the press is included in the freedom of speech and expression under Article 19
(1)(a). It is however pertinent to mention that, such freedom is not absolute but is
qualified by certain clearly defined limitations under Article 19(2) in the interests of the

It is necessary to mention here that, this freedom under Article 19(1)(a) is not only
cribbed, cabined and confined to newspapers and periodicals but also includes pamphlets,
leaflets, handbills, circulars and every sort of publication which affords a vehicle of
information and opinion:

Thus, although the freedom of the press is guaranteed as a fundamental right, it is
necessary for us to deal with the various laws governing the different areas of media so as
to appreciate the vast expanse of media laws.

Regulations in print media
The Freedom Of Press and the Freedom Of Expression can be regarded as the very basis
of a democratic form of government. Every business enterprise is involved in the laws of
the nation, the state and the community in which it operates. Newspaper publishers find
themselves more .hemmed in. by legal restrictions than many other businesses do .
despite the fact that the freedom of press is protected by the Indian constitution. The
various Acts, which have to be taken into consideration when dealing with the
regulations imposed upon the Print Media, are:

_ The Press and Registration of Books Act, 1867 . This Act regulates printing presses
and newspapers and makes registration with an appointed Authority compulsory for all
printing presses.

_ _The Press (Objectionable Matters) Act, 1951 . This enactment provides against the
printing and publication of incitement to crime and other objectionable matters.

_ _The Newspaper (Prices and Pages) Act, 1956 . This statute empowers the Central
Government to regulate the price of newspapers in relation to the number of pages and
size and also to regulate the allocation of space to be allowed for advertising matter.

Regulations in broadcasting
The broadcast media was under complete monopoly of the Government of India. Private
organizations were involved only in commercial advertising and sponsorships of
programmes. However, in Secretary, Ministry of I&B v. CAB1, the Supreme Court clearly
differed from the aforementioned monopolistic approach and emphasized that, every
citizen has a right to telecast and broadcast to the viewers/listeners any important event
through electronic media, television or radio and also provided that the Government had
no monopoly over such electronic media as such monopolistic power of the Government
was not mentioned anywhere in the Constitution or in any other law prevailing in the
This judgment, thus, brought about a great change in the position prevailing in the
broadcast media, and such sector became open to the citizens.
1 (1995) 2 SCC 161

Cable Television Networks (Regulation) Act, 1995 basically regulates the operation of
Cable Television in the territory of India and regulates the subscription rates and the total
number of total subscribers receiving programmes transmitted in the basic tier. In
pursuance of the Cable Television Network (Regulation) (Amendment) Bill, 2002, the
Central Government may make it obligatory for every cable operator to transmit or
retransmit programme of any pay channel through an addressable system as and when the
Central Government so notifies. Such notification may also specify the number of free to
air channels to be included in the package of channels forming the basic service tier
film . India is one of the largest producers of motion pictures in the world.
Encompassing three major spheres of activity . production, distribution and exhibition,
the industry has an all-India spread, employing thousands of people and entertaining
millions each year. The various laws in force regulating the making and screening of
films are: –

The Cinematograph Act, 1952 . The Cinematograph Act of 1952 has been passed to
make provisions for a certification of cinematographed films for exhibitions by means of
Cinematograph. Under this Act, a Board of Film Censors (now renamed Central Board
of Film Certification) with advisory panels at regional centres is empowered to examine
every film and sanction it whether for unrestricted exhibition or for exhibition restricted
to adults. The Board is also empowered to refuse to sanction a film for public exhibition.
In K. A. Abbas v. Union of India, the petitioner for the first time challenged the validity of
censorship as violative of his fundamental right of speech and expression. The Supreme
Court however observed that, pre-censorship of films under the Cinematograph Act was
justified under Article 19(2) on the ground that films have to be treated separately from
other forms of art and expression because a motion picture was able to stir up emotion
more deeply and thus, classification of films between two categories .A. (for adults only)
and .U. (for all) was brought about2.
2 AIR 1971 SC 481

Advertising communication is a mix of arts and facts subservient to ethical principles. In
order to be consumer-oriented, advertisement will have to be truthful and ethical. It
should not mislead the consumer. If it so happens, the credibility is lost.

In order to enforce an ethical regulating code, the Advertising Standards Council of India
was set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK,
ASCI follows the following basic guidelines in order to achieve the acceptance of fair
advertising practices in the interest of the consumer: –

· To ensure the truthfulness and honesty of representations and claims made by
advertisements and to safe guard against misleading advertising;

· To ensure that advertisement are not offensive to generally accepted standards of public

· To safeguard against indiscriminate use of advertising for promotion of products which
are regarded as hazardous to society or to individuals to a degree or of a type which is
unacceptable to society at large; and

· To ensure that advertisements observe fairness in competition so that the consumers
need to be informed on choices in the market places and canons of generally accepted
competitive behaviour in business are both served.

Media laws and its relation to the Rights of the Women

Media Law has its applicability in ensuring and preserving the rights of the women.
Media has been regulated with regard to its right in publishing and broadcasting by
enacting the media laws. These laws have a direct impetus to the protection of women.s
rights. Media Laws through its enactments regulating the print media takes away from the
press the absolute power vested in them previously. Media laws protect the women.s
right by preventing the print media from publishing articles and journals that goes
detrimental to the interest of the women folk and intrude their privacy.

California Escrow Industry Group Seeks Uniform Regulation

In late May, the Santa Clara County, Calif. District Attorney’s Office charged a former escrow officer with 32 counts of embezzlement and grand theft for allegedly living “high on the hog” on the tab of her clients.

Melanie Melim, a former escrow officer with Alliance Title Co., faces up to 21 years in prison for allegedly stealing more than $1 million from client escrow accounts — funds that were considered to be guarded by a neutral third-party to the real estate transaction.

Instead, Melim used the funds to attend concerts and sporting events, take trips to Las Vegas and go on shopping sprees, authorities alleged.

As much as the allegations against Melim are personally troublesome, they also raise questions about the security of the escrow industry, a staple of the real estate business in California for more than a century.

But as the California escrow industry juggles confronting incidents such as these, waiting for the filing of a controversial rulemaking that would drastically cut its rates and pacing the floor of the state Capitol, one trade group has hinted that the industry may be gearing up for its toughest challenge yet.

‘An aligning of the stars’

Members of the Escrow Institute of California (EIC), a trade group that represents the state’s licensed, independent escrow industry, are laying the groundwork for a cross-industry meeting of the minds to bring stability to an industry confounded by a confusing maze of uneven regulatory oversight.

The EIC has officially opened the door for formal discussion of a proposal to bring California’s escrow practitioners — who, depending on their primary real estate business, must answer to one of five different state regulators — under the umbrella of a comprehensive, uniform escrow law with a single regulator.

According to EIC President P.J. Garcia, it’s a system that could do much to solve the escrow industry’s problems and relieve it of the burden of a regulatory structure that “just doesn’t make sense.”

“There is a broad array of bureaucracries that regulate escrow in California, to the extent that not even the regulators have an integral grasp of the picture,” Garcia said. “If that is the case, how can the consumer possibly understand it and know who to turn to? It’s a question of enhancing consumer protection and streamlining government, both of which we think are good goals.”

However, it’s an idea that has been tossed around before, without much agreement. Still, Garcia describes initial discussions among the various affected industries and regulators as “encouraging.”

“There’s the sense that there is an aligning of the stars,” she said. “But the devil is in the details. What we have to do is build a consensus.”

In the beginning

Independent escrow corporations have been providing closing services to California consumers in California since the late 1940s. The state Escrow Law, which was enacted in 1947, defines escrow providers as neutral, third-party agents for all principals in a real estate transaction.

The Escrow Law requires all corporations engaged in the escrow business as escrow agents to be licensed as independent escrow companies by the California Department of Corporations (DOC). However, in order to reach California’s more rural consumers, the state began to allow other real estate practitioners to provide escrow services to give consumers greater flexibility.

Thus, the state excluded the following groups from the licensure requirements of the Escrow Law:

“Any person whose principal business is that of preparing abstracts or making searches of title that are used as a basis for the issuance of a policy of title insurance by a company doing business under any law of this state relating to insurance companies.” These individuals are regulated by the Department of Insurance (DOI).

“Any real estate broker licensed by the real estate commissioner while performing acts in the course of or incidental to a real estate transaction in which the broker is an agent or a party to the transaction and in which the broker is performing an act for which a real estate license is required.” These individuals are regulated by the Department of Real Estate (DRE).

“Any person doing business relating to banks, trust companies, building and loan or savings and loan associations.” These individuals are regulated by either the DOC or the DRE.

“Any person licensed to practice law in California who has a bona fide client attorney relationship with a principal in a real estate transaction and who is not actively engaged in the business of an escrow agent.” These individuals are regulated by the state bar.
Garcia argued that while the current regulatory structure may have made sense when it was created, times have changed, and so should the system.

“I think the market has changed over the last 60 years or so, particularly in the last 10 or 15 years,” she said. “Technology has made a lot of changes. We’re no longer a predominantly rural state. Even the rural areas aren’t just rural anymore.”

Moreover, escrow practitioners licensed by the DOC are subject to a higher regulatory standard than those who are exempt from the Escrow Law, Garcia said. DOC licensees undergo background checks and fingerprinting by the Department of Justice and are bonded by the Escrow Agents’ Fidelity Corp., while those who are exempt from the Escrow Law get the all-clear from their primary industry regulator.

Such uneven standards may be a factor contributing to incidents such as the one involving Melim, Garcia said.

“Whenever something is reported, it is just reported as escrow. There is no distinction made as to who the regulator is,” Garcia said. “We all sort of get painted with the same broad brush, and that is not something we have been happy about.”

Mike Belote, legislative advocate for the California Escrow Association (CEA), a trade group representing all escrow practitioners, agreed change is needed, but said the discussion has been simmering for 25 years without coming to a boiling point.

“We think if you were creating an escrow regulation system from scratch, you wouldn’t do it this way,” Belote said. “Everyone understands it’s a weird system we have now, but it’s been this way for over 50 years. The question is, how do you conform all of that if there is no political will to do that?”

Winds of change

It’s no secret that for more than a year, the DOI has been focused on implementing regulations to drastically reduce title insurance premiums and escrow rates by $1 billion annually. The DOI has been colorful in its depiction of the title insurance industry as “a system rife with illegal kickbacks and gratuities,” and the department was generous enough with its brush to paint the escrow industry as “middlemen” who only further drive up prices for consumers.

This included DOC licensees, who were baffled that they were lumped into a regulation proposed by a regulatory authority other than their own. The EIC spent most of last year fighting the proposal — and standing beside the group was the California Land Title Association (CLTA), which linked arms with the EIC on many occasions, including a contentious day-long DOI hearing last August.

Bridges built and alliances formed, the EIC is hopeful it will be able to bring the CLTA, the California Association of Mortgage Brokers (CAMB) and the California Association of Realtors (CAR) together to hash out a proposal in time to introduce legislation in the 2008 session. While details are still sketchy at this point, Garcia said one suggestion is to bring all escrow providers under the DOC’s jurisdiction.

“Logistically speaking, all of the people who know escrow best are at the Department of Corporations,” Garcia said. “But again, the devil’s in the details. I couldn’t give any commitment on how that might look in the end. Of course, it will have to be done collaboratively because if the other industries are flat-out opposed to it, it would obviously be a lot more difficult to do.”

Craig Page, executive vice president and counsel of the CLTA, and Jack Williams, president of CAMB’s executive board, both said their groups are open to the discussion, but as pen hasn’t yet been put to paper, they declined to state formal opinions on the proposal. Garcia said the DOC and DOI have also been receptive to initial talks.

CAR and the DRE, which historically have been the most resistant to the idea, did not respond to a request for comment by press time.

“The process of going through the Department of Insurance hearings really brought home to us once again that this is a very fractionated and confusing process,” Garcia said. “2007 is paving the way. We’re pleasantly surprised by the response we have received so far.”

What The Appointment Of Jess Sessions Might Mean For Corporate Criminal Law

One of the biggest reasons people feared a Trump administration is because, being a businessman himself, some Americans worry that he will give special favors to corporations. Since the Attorney General is responsible for prosecuting corporate crimes, many are wondering how Jess Sessions’ appointment might affect corporate prosecutions in the future. Many civil liberties and civil rights groups are in direct opposition to a Sessions’ appointment for significant reasons.

Flashback to when George W. Bush nominated John Ashcroft: many worried that Ashcroft would be more lenient on corporate indiscretions and crime, but that didn’t happen. In fact, he was responsible for one of the highest number of criminal prosecutions in history. With Ashcroft in charge during such scandals as Worldcom, Enron and watching the dot-com burst, the Department of Justice indicted many high-profile offenders during the George W. Bush Administration. Big corporate heads like Arthur Andersen went bust, thanks to Ashcroft’s diligence.

So, should corporate America be happy or not about Sessions’ appointment? Many who know his record believe that they should expect the same from Sessions as they did from Ashcroft — swift and severe punishment for crimes. The Department of Justice consists of very few politicians. It is made almost wholly from career prosecutors, which is unlikely to change. So, although Sessions will have some effect, it is likely to be limited.

Sessions is probably going to enhance the Department of Justice’s enforcement of immigration laws, which means that corporations may face stiffer and harsher punishments when they decide to employ undocumented help. Senator Sessions also has a good record when it comes to white-collar crimes. He has consistently favored a more aggressive approach to enforcing the law. So civil liberties organizations should have their fears calmed, but corporate America may have to be on their toes.

Sessions worked for the Department of Justice for 14 years as an Assistant US Attorney in Alabama, and 12 years as a US Attorney. It is hard to tell from his experience if he will be tough on corporate crime, because very few corporations resided in his district.

He is slated as taking a major role in the Savings and Loan fraud prosecution, however, which occurred when he was a US Attorney. His handling of the situation proved that he took criminal law seriously, regardless of whether it was white-collar crime or not. “A crime is a crime,” in Sessions’ own words.

When BP had the oil spill, Sessions is on record as stating that they should be held liable for what was their responsibility. He went on to say that there is no such thing as being too big to fail. That means that he is unlikely to be swayed by the economic impact that the fall of a corporation could have in relation to their criminal activity prosecution. Crime needs to be punished when it is committed, no matter who the defendant is or what type of influence they have.

Sessions believes the whole notion of “too big to fail” is fundamentally dangerous. If the courts prosecute according to shareholders and stakes, then there is no honesty or realism in criminal law. If a corporation is defrauding people, then they are hurting everyone.

He is also not in favor of allowing boards or any consumer attorney to mitigate the details of any case, nor does he believe corporations should be allowed to handle an investigation alone without the intervention of the Justice Department. Sessions has publicly stated several times that there is no such thing as privilege when it comes to corporate crimes.

Although many on the left are concerned that Sessions is too conservative to become the District Attorney for a Trump administration, they are overlooking his statements and his conduct when it comes to criminal law and corporate crime. With the public statement that a crime is a crime regardless of who perpetrates it, Sessions’ appointment is likely to come down hard on corporate crime, not afford it leniency.

The ones who should probably fear an appointment are those in the corporate world who are guilty of wrongdoing. Shown to be fair-minded and not ascribe to any notions of privilege, Sessions has a record of being tough on crime, even corporate criminals.

A Brief Introduction To The History and Principles of the UN Convention on the Rights of the Child

Although the human rights of children were recognised within the international community more than 50 years ago, by way of the Declaration of the Rights of the Child (1959), this was not binding as an international agreement or treaty. However, in 1978 Poland proposed that a new convention should be adopted in the following year, 1979, which was designated as the International Year of the Child. The proposed convention – later to be named the Convention on the Rights of the Child – was initially proposed to follow the principles stated in the 1959 Declaration, addressing economic, social and cultural rights, but many states favoured a wider scope to incorporate issues of justice, ethnicity and children’s involvement in armed conflicts. These additional aspects of children’s rights reflected the provisions of other conventions that had come into force in the intervening period, such as the International Covenant on Civil and Political Rights (1966). Another criticism of the proposed convention was that it lacked detail, and was not drafted in enforceable terms.

The United Nations General Assembly was supportive of the Convention being settled during the International Year of the Child, but the Commission on Human Rights resisted undue haste and established a working group comprised of representatives of member states to review the initial proposal. Poland then produced a revised proposal that was accepted as an improved basis for negotiations to reach agreement about the Convention. All of the working group’s decisions were by consensus, which meant that some key issues were not included – e.g., child marriage – because consensus could not be reached on those issues. Nonetheless, this process eventually produced an agreed text that could be submitted to the General Assembly without controversy.

Despite the early hopes for a convention that could be adopted by member states in 1979, it took a decade and successive drafts before the Convention was finalised. In the meantime, more countries from Africa and Asia came on board, as well as some Islamic countries, so the Convention became more representative of worldwide concerns. The drafting process was also assisted by progress in the adoption of other international agreements, including instruments relating to juvenile justice, foster care, and adoption. The terms of these agreements informed many principles stated in the Convention.

Besides the United Nations, UN member states, and inter-governmental organisations – e.g., World Health Organisation, the International Labor Organisation, and (belatedly) UNICEF – some non-governmental organisations (NGOs) became involved in the drafting. The NGOs were not there as of right, but could be invited to make suggestions and give feedback on drafts. As some of the NGOs had been involved in drafting other international agreements around that time, their input into the Convention was invaluable. In about 1983, human rights NGOs and children’s NGOs joined forces, creating an NGO Ad Hoc Group that put forward more consistent proposals to the working party established by the Commission on Human Rights. This led to the NGOs having greater influence in the drafting process.

Several controversial issues addressed during the drafting process included the definition of a child, the determination of fundamental freedoms, protecting the best interests of children who are being adopted, and the minimum age that children can be participants in armed conflict.

The definition of a child is open as to when childhood starts, but the preamble of the Convention refers to children before and after birth. The upper age – when childhood ends – was set at 18 because that was the age of adulthood in most countries. The fundamental freedoms include freedom of association, religion, and communication. Adoption was a big issue because certain countries had previously allowed poorly regulated inter-country adoption of their children.

Many states wanted the minimum age that children can be participants in armed conflict to be set at 18, the age when children cease to be covered by the Convention, so that children would effectively be excluded from participation in armed conflict. However consensus was not able to be achieved on that age. In the end, the age was set at 15. In ratifying the Convention since it was adopted, some states have declined to accept the notion of children being engaged in armed conflict and have reserved their position on this provision of the Convention.

It was not until 1989, a full 10 years after the International Year of the Child, that the Convention was adopted by the United Nations General Assembly. As most countries and states in the world have now ratified the Convention, it has truly become “the international legal framework” for protecting and promoting children’s rights (Arbour). Under article 4 of the Convention, states who are parties are required to “undertake all appropriate legislative, administrative and other measures” necessary to give effect to the rights and principles stated in the Convention. This obligation is not discretionary. This means that subject to the resources they have available, all state parties must allocate public funds to ensure that laws, policies and programs within the state are consistent with the rights recognised in the Convention. Australia and New Zealand ratified the Convention in 1990 and 1993 respectively. Although the United States has signed the Convention, it has not ratified it, which means that the United States is not a party state and is not obligated to implement the principles of the Convention.

The general principles of the Convention, as they are now recognised, are the right to non-discrimination (article 2), the primacy of the best interests of the child (article 3), the right to life, survival and development (article 6), and the right to be heard (article 12). These general principles are often used as a guide to the interpretation of other principles, which fall into two categories: negative rights (where the state should not interfere with the exercise of the right) and positive rights (where the state must facilitate the exercise of the right). Another way of categorising rights is to consider their adoption historically, so that civil and political rights may be regarded as ‘first generation rights’, economic, social and cultural rights may be regarded as ‘second generation rights’, and ‘solidarity rights’ such as the right to peace and the right to a clean environment may be regarded as ‘third generation rights’.

In assessing the ‘best interests of the child’, which is not defined in the Convention itself, reference can now be made to the UNHCR Guidelines on Determining the Best Interests of the Child (May 2008). This is an important document that complements the Convention and assists child protection practitioners to identify what is in the best interests of a specific child or group of children in their unique circumstances.

The Convention is also an example of the specialisation of rights. Although the right to not be discriminated against is applicable to both adults and children, the best interests principle and the right to life, survival and development are examples of rights that more specifically apply to children under international law. These specialised rights include the right of children to live with their parents, subject to child protection concerns that might prevent this, and the right to play. In this way, the Convention may be regarded as both a statement regarding the needs of children, and a ‘code of conduct’ that tells parents and other adults how they should behave towards children in their care and in their community. Internationally, the Convention stands as a guide to the minimum level of rights that should apply to children everywhere. Where a state has ratified the Convention, it gains the force of law. In this context, an important optional protocol, adopted in 2011, is the ‘communication protocol’ which allows children (or groups of children) directly or through their representatives to address the United Nations Committee on the Rights of the Child regarding allegations that rights under the Convention have been violated. However, any review rights arising in the home state of the child or children must be exhausted first unless an emergency situation is recognised by the Committee. In some cases the home state may be asked by the committee to take steps to protect a child who comes to the committee’s attention.

An important ongoing feature of the Convention is implemented pursuant to the ‘third optional protocol of the convention’ (the OPIC) which establishes a committee to monitor states’ compliance with the Convention. The committee comprises 18 independent experts who are appointed for terms of 4 years, and who serve personally not on behalf of their home states. States who are parties to the Convention file reports on their compliance. The committee also receives ‘shadow reports’ from NGOs operating in each state. This aspect of the Convention is unique, as no other international treaty expressly reserves a role for specialist agencies in monitoring compliance. Following consideration of the state and NGO reports, the committee will send a list of issues or concerns to the state party. This may lead to dialogue between representatives of the state and the committee, and formal recommendations being issued by the committee. In appropriate circumstances, the committee can offer technical and financial assistance to a state to help it in meeting its obligations under the Convention. The committee also issues formal comments on aspects of the Convention, as a guide to interpretation and implementation.

The issue of children’s rights is closely bound up with children’s well-being and happiness. While obtaining reliable data about well-being and happiness is difficult, particularly in relation to young children, a lot of work has been done in the past couple of decades to measure factors such as children’s physical health, mental health, self-esteem and lifestyle. This kind of well-being data is valuable as a guide to how children are developing towards adulthood, and can help us identify specific issues affecting individual children or groups of children. In 2007, UNICEF published international data in its Report Card Number 7 which included indicators of children’s well-being for the first time (UNICEF, 2007). Although this continuing work is at an early stage, it has the potential to inform further development of the Convention, recognising that children’s happiness is a product of many factors that can have serious lifelong implications for individuals in terms of how they relate to others in society, the contributions they make within society, and the overall quality of life they enjoy.

This evolving view of children’s rights represents a maturation of our awareness of children’s needs and how meeting those needs promotes a better future for us all. It has been suggested that the Convention’s “major accomplishment” is increasing the visibility of children in society, so that children’s rights are not easily ignored (Lee). The Convention stands out amongst all international treaties as the one ratified by the most states, which is an almost universal acknowledgment of the importance of our children to our planet’s future and recognition that the protection of children’s rights must have primacy regardless of other demands on our resources. Moreover, ratification of the Convention by a state has often been closely followed by the establishment of an independent public institution focused on the rights of children. In New Zealand that independent institution is the Children’s Commissioner, while in Australia it is the National Children’s Commissioner. As at 2012, there were more than 200 such institutions throughout the world – under a range of names including ‘ombudsman’, child advocate, and ‘child rights commission’ – engaged to “monitor the actions of governments and other entities, advance the realization of children’s rights, receive complaints, provide remedies for violations, and offer a space for dialogue about children in society and between children and the state” (UNICEF, 2012). In Australia, the Australian Human Rights Commission has described the Convention as “underpin[ning] the work of the National Children’s Commissioner” (AHRC).

Despite the extraordinary efforts of the United Nations Committee on the Rights of the Child, the UN member states that have ratified the Convention, NGOs that report to the committee, and independent public institutions in member states, there is considerable work still to be done to overcome breaches of the Convention, and to address remaining areas of contention such as child marriage and juvenile justice. The criminal law is sometimes criticised for treating children like small adults (Edwards). Even Australia and New Zealand struggle with the divide between care and protection issues and criminality. New Zealand’s Children’s Commissioner has identified the need to “avoid an unhelpful, rigorous split between the youth justice and care and protection provisions [of legislation] by allowing a cross-over between the two parts” echoing a similar warning by the former President of the Children’s Court of New South Wales in Australia. The New Zealand Commissioner describes the “trenchant criticism” by the UN Committee on the Rights of the Child when New Zealand extended the jurisdiction of its Youth Court in October 2010 to include indictable offending by 12 and 13 year olds. Part of the answer here is improved understanding of the neuropsychological factors present in youth offending, and how culpability should be attributed in light of those factors. In a relatively recent decision, Graham v Florida 130 S. Ct. 2011, the Supreme Court of the United States – noting that in the US at that time there were 123 juvenile non-homicide offenders serving sentences of life imprisonment without parole, and that in Florida “a 5-year-old, theoretically, could receive [life without parole] under the letter of the law” – recognised that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds” that must be taken into account when sentencing juvenile offenders.

In relation to child marriage, it is notable that as at 2012 about one-third of girls in developing countries (other than China) were expected to be married before turning 18. Despite a majority of states having ratified the Convention, the same UNFPA report suggests that in the decade from 2010 to 2020 there are likely to be around 142 million child marriages worldwide. Although there are many reasons for the persistence of child marriage, the effects can be devastating. A significant feature of child marriage in some countries is the practice of paying off debts and resolving disputes by giving away a young girl child – a practice sometimes known as ‘swara’ – where the child becomes effectively enslaved to her husband, and is often punished for the alleged wrongdoing of her family.

The widespread ratification of the United Nations Convention on the Rights of the Child stands as a testament to the values expressed within it – values that have been carefully considered and that bring “the weight of the law to the recognition of morally based individual rights for children” (Da Silva et al.) – and the work of innumerable contributors from around the globe. While the Convention is neither complete nor wholly effective, it is nonetheless a major influence on the well-being of children in most developed countries. Even in developing countries, the Convention and its monitoring processes are slowly encouraging positive change. For example, between 2000 and 2014 the number of children engaged in child labour declined by about one-third (UNICEF, 2014). While this might be expressed as still two-thirds too many, for those children who can now attend school instead of work, this change is dramatic and life-changing. Similar patterns can be seen in many other areas of children’s rights. Perhaps most remarkable is that all this has happened in less than 30 years. By any measure that is a laudable achievement.

Sons of Snakes – A Daring Call for the Christian Church Today

I don’t like snakes. I avoid them at all costs and even got an uneasy feeling just writing the title for this article. Yet that reference was the beginning of a passage from the New Testament that ended up challenging the people of first-century Judea, and by extension twenty-first century America, to an extent that we still struggle to grasp.

One of the most interesting characters in the New Testament is John the Baptist. He might have been a distant cousin to Jesus. His mother was named Elizabeth His father was a priest named Zechariah. The gospels suggest that John might have been the second coming of Elijah the prophet. When John saw a group of the religious leaders coming to see him, he called them snakes: “You brood of vipers!” You sons of snakes! His message was simple: “Repent! The Kingdom of God is at hand.” It is here! Run for your lives! Run to the Jordan River and get baptized! Change your lives now! It was hard to fool John the Baptist. He knew who those religious leaders were. He knew what they stood for and how they lived their lives. Without question, he let them know they had better change their ways if they wanted him to baptize them.

We live in an age of individual repentance. How many of you have heard the invitation to turn from your sin, repent, receive the Spirit, and be saved? That is not what John was talking about. It was not like today when a political figure, a television evangelist, or a celebrity can cry, confess their sin, seek forgiveness, and expect everything to be okay. John the Baptist was not seeking individual repentance!

The Pharisees and Sadducees represented the Law and the Temple in the first century. In effect, they stood for the whole nation of Judah, which by this time was only a humble Roman province. When John called those religious leaders to repent, he was calling the national to a corporate or group repentance. He was challenging them to change their tune. His challenge was for them to give up being God’s chosen people in the way they had understood it – the way they had been living it. The repentance for which John was calling would have meant a whole new self understanding for the people and their leaders.

What is the connection to our present day? What would John’s challenge be for the Christian Church in the United States today? It would be to call our nation to corporate, or group, repentance. That challenge is, in fact, to call our nation and its leaders to reconsider how we are being the United States of America. To accept such a challenge will mean that we will have to do much more than vote or even get involved in the political process itself, as important as that is. To accept John’s challenge, we will need to find a way to make our voice heard from the local to the national level. We will need to influence leaders who have the ear of the nation to call all of us to a new national self-understanding.

What might this new national self-understanding be? It must begin with confession — that we as a nation have borrowed far too much of our identity from our status as a military and economic super power. Our true national strength is not based on weapons or economics. It is based on imagination, creativity, hard work, and compassion. How would it be for us to begin to embrace a new image that is actually an old image most of us were taught in school: liberty and justice for all and people created equal? To embrace such a new and old image means we will have to trust that what we have of real value to offer this world is our strong commitment to freedom and an almost radical insistence on civil liberty. Are we not, like the chosen people of Israel, called to be a light to the nations, not lord of the nations? It is in keeping with the challenge of John the Baptist for churches to call the United States to be that light to the nations by being a model of inclusion, and a model for non-violence, justice, and economic opportunity.

To call our nation to group repentance may be the easier challenge John the Baptist places before us today. Beyond that, we are to call the Church to repent and let go being Church as we have always done it. John challenges us to call the Church today to confess and repent – to let go a self-understanding of moral superiority, theological monopoly, and the tendency to lust for power. It is the call to step up and do as a small group of Christian college students did in Donald Miller’s book Blue Like Jazz. They decided the best way to communicate the essential message of faith and the true power of Christianity to their anti-religious peer group was to place a confessional booth right in the middle of a spring Bacchanalian festival on campus. But the point was not that they would hear confessions from their peers. It was that they would confess to their fellow students – confess how they had failed to exemplify Jesus by loving others. They would offer apologies for everything from the crusades to televangelists!

The result of their action was powerful. Rather than being defensive in the face of an attitude of moral superiority, students who came into the confessional booth actually offered forgiveness to those representing the Church. The Christian students felt, at least at some level, a sense of renewed life – born again to what being a follower of Jesus really means.

How can we prepare ourselves for the kingdom of God as John proclaimed it? How can we celebrate the Kingdom that Jesus proclaimed is here among us? We can take the proclamation of John seriously about the need for group repentance. We can take his challenge seriously regarding our responsibilities as citizens of a nation and also citizens of the Kingdom of God.

We live in a modern democratic society with a representative government, a republic, and we have personal responsibility as citizens. Unlike John’s and Jesus’ situation, it is theoretically possible for individuals to address issues with the rulers of our society since we the people are the government. It is important for us to do so. The most effective way to influence government and the society at large, in my experience, is to organize – find a group that reflects your most important priorities and add your voice to theirs.

A great deal of good can happen when we work through channels to address and redress societal issues of injustice, and of moral and ethical concerns. Unfortunately, it is rare for a system of power to change itself fundamentally, even in order to address or redress significant societal problems. Systems of power tend toward self preservation, even to the extent of blaming those who attempt corrections. It will be most interesting to watch the Presidential candidates this year in their efforts to bring about real change – how successful they are and how the system responds to their efforts.

What about group repentance by the church? What might it mean for the Christian church to embrace repentance by giving up being church in the way it has gotten used to being church? Could we let go of our institutional insistence on the exclusivity of Christianity for salvation, giving up an attitude of moral superiority arising from a monopoly on correct doctrine? Can we confess a history of seeking and then abusing coercive power? I suspect nothing less than such a radical giving up will suffice for us to respect other faiths at a deep level and for the world to live in peace.

Being a light to the nations does not mean Christians have to give up faith in the importance of Jesus. It does not mean we need to turn away from worshiping Christ or give up a belief in the rightness of the Christian path. It does mean being open to the possibility of God’s presence in other faith traditions and other belief systems as well as our own. It means being willing to separate the reality of God from our interpretation of that reality.

Jesus’ message was as challenging as John’s for his people to hear and accept. It was the call to return to the path of Moses and the prophets from which they had strayed. It was time to let go, give up, and go back to the basics of their faith. The same is true in this time and place as we prepare to celebrate the birth of Jesus. God still calls us to a way of living that is fundamentally different than the wisdom of self-serving power and self-justifying wealth. God calls us to be new people and to trust that all newness comes as a gift of God.

God sends us out to live in the world, to share good news and a big challenge to change a world of pain into a world of love, justice, and peace. God sends us out to make the earth into a place where the Kingdom is revealed.