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JUSTICE FOR THE COMMON MAN
(Retd.) Justice Bhagwati said that the development of public interest litigation in India could be attributed to his role as a judge. When he was a judge, and even when he was Chief Justice of India, he travelled to the poor regions in Bihar, Orissa, and Uttar Pradesh and saw “stark naked poverty”.
“People came to me in large numbers out of a sense of admiration for me because already I had made a name for myself, and I could see that many of them were in tattered clothes, some of them with sunken bellies, they’d hardly had any food. I realised that my justice was not reaching them at all. My justice was confined to a few fortunate rich people who could come to the court and could afford the luxury of litigation. If you want to go to court, you have to go to a lawyer. You have to brief him and pay him, and then in the Supreme Court it means a lot of costs, which poor men cannot afford, and so they were deprived of justice. So I felt something must be done to bring justice to the doorstep of the common man. So I invented this doctrine of public interest litigation, and I held that where any right of a person is infringed or he has any legitimate grievance and is unable to go to court because of poverty or illiteracy or ignorance, then any public spirited individual or any N.G.O can file an action on his behalf to ask the court to intervene to see that the human rights of poor people are restored.”
Another problem that he faced was that NGOs did not have money to brief a lawyer and file a writ petition. “So I said, it is enough if they write a letter to the court. It is called epistolary jurisdiction – jurisdiction that is invoked by writing letters or epistles to the court. Letters started coming to me from NGOs and poor people. I actually had to set up a department in the Supreme Court to sort them out and whatever appeared to be genuine were placed before me and the court. They would be numbered and then I would issue notice to the other side – usually it was the government or a government officer. On the day fixed, I would take up the case and appoint a lawyer on behalf of the claimant.” Under Article 32 which was very wide in its terms, (Retd.) Justice Bhagwati had vast jurisdiction.
The doctrine of public interest litigation received acceptance overseas as well. When he went to South Africa, Justice Bhagwati was welcomed by Albie Sachs, a famous judge of the Constitutional Court, who publicly called him, “the father of public interest litigation.”
The former Chief Justice of India added that it was now for the lawyers to see public interest litigation prosper. “There are some judges who are against it.” These judges, he said, did not believe that a person without cause of action should be allowed to come to court. “I want the Bar, I want the public, I want the press to ensure that public interest litigation does not die out. He said that it was a mechanism that ensures the balance of power, and it keeps the government under check. He also denied that the judiciary had ever gone overboard with its activism. “In fact, in recent years, the judiciary has been much too reticent. Judiciary must keep only one thing in mind – that they are appointed to do justice, and justice to the common man, not only to those who can afford to go to court, but to the large millions of India. Let them not be obsessed by the British system of justice, which originated and exists under different circumstances. Ours is a poor country, where a large number of people are deprived of their basic human rights.
JUDICIAL CORRUPTION AND APPOINTMENTS
When asked about the process of appointment of judges, (Retd.) Justice P.N. Bhagwati was clear: he had seen the collegium system develop before his eyes, and did not approve of it. “I am against the collegiums system; the former system – where the Chief Justice of India and the Law Minister would consult senior colleagues such as the Attorney General (as I did in my tenure as Chief Justice) in order to see that they had made the right recommendation — was much better. If there is a collegium of five, bargaining will go on amongst them. That is why the quality is going down.” He was vociferous about going back to the old system, which would be most suited for selecting the best person for the judiciary.
The next question raised was one raising a lot of furore lately – relating to judicial accountability. How can judges be held accountable without impinging on the independence of the judiciary? Justice Bhagwati opined that it was a difficult question; the only definite was that the independence of the judges should not be encroached upon at all. “My view is that the Chief Justice should set up a small committee to look into this matter. Whenever the allegations of corruption occur, they must come straight to the Chief Justice alone. He, with his two senior most colleagues should look into the whole question… There must be a mechanism to check corruption, but it must be manned by an independent body, not the legislature or the executive.”
ADM JABALPUR CASE – SUPREME COURTS DARKEST HOUR
“The instances of the Apex court‘s judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen.” A Supreme Court bench comprising Justices Aftab Alam and A. K. Ganguly recently lamented thus, referring to the majority judgment in the infamous A.D.M. Jabalpur v. Shivkant Shukla case, popularly known as The Habeas Corpus case. Former Chief Justice of India, Hon’ble Mr. Prafullachandra Natwarlal Bhagwati, who was part of that tainted majority, concurs with Justice Alam and Justice Ganguly, only much later in time and context.
The discussion began with the role of political ideology in the bench; judges come from different backgrounds, for example, Justice Krishna Iyer had a clear background with the communist government. Recently, the Supreme Court has been very critical of the developmental attitude of the Central government. Justice Bhagwati was emphatic on the point: “The question of interpretation is the most important — how the court reads and interprets facts and relates it to the law requires a lot of skill, insight and vision. So your political ideology is bound to colour your judgment, you cannot avoid it. But it should not blind you to the words used by the Legislature.”
Asked to discuss the Supreme Court’s attitude during the Emergency — what some advocates refer to as the “dark days” — Justice Bhagwati held some regrets. “The Supreme Court’s attitude was far from satisfactory; it should have been more bold. It should have tried to uphold the rights of the people, but the Supreme Court failed; there is no doubt about it.”
Speaking about the ADM Jabalpur case specifically, Justice Bhagwati said that if not a disgrace, the case was something for which the Supreme Court should be ashamed. He did not absolve himself: “I was there — I plead guilty. I don’t know why I yielded to my colleagues. In the beginning, I was not in favour of the view that the majority took. But ultimately, I don’t know why, I was persuaded to agree with them. I still feel that the whole judgment was against my conscience. I have always been for freedom, freedom of speech and freedom of expression; I have always believed and always stood by these principles. It was an act of weakness on my part.”
Justice Bhagwati re-iterated that the Supreme Court’s willingness to expand the scope of Part III and Part IV of the Constitution came about because of its guilt for passing the ADM Jabalpur judgment. “I realised that I had made a big error and so I started developing Articles 14, 19, 21, 32, as no one else has done. I practically re-wrote these articles.”
He also recalled that Maneka Gandhi was a wonderful case; though he didn’t remember who argued the facts, but it gave him an opportunity to mould the law and develop it. “She had been deprived of her rights, and I upheld them. After the judgment was over, I met Manekaji at some function and I couldn’t help but remark, “I have made you immortal.” Everyone cites that judgment now. “
BHAGWATI ON HIS CAREER
“I started practice in February, 1948 February, and soon acquired a very large practice. There were some very good lawyers. I used to sit in the library of the Bombay High Court, and next to me a gentleman called Mr. J. C. Bhat, a very able lawyer, used to sit. There was Mr. Seervai, who has written a book on the Constitution, who was also an excellent lawyer.” He recounted it being a wonderful experience.
He was eventually elevated to the Bench. “In 1960, the Chief Justice of the new state of Gujarat, Justice S.T. Desai invited me to be a judge in the Gujarat High Court. I readily accepted, because I had always aspired to be a judge – as a judge you get an opportunity to mould the law and develop it. I was also the Chief Justice of the Gujarat High Court for six years. But my real opportunities came when I came to the Supreme Court in 1973.” Law, as per Justice Bhagwati, is like plasticine in the hands of a great judge, which he can mould as he likes, provided he has the vision and the requisite craftsmanship. “I started moulding and developing the law. Then came Articles 14, 19, 21, and 32, and I practically re-wrote Parts III and IV of the Constitution. I still remember, those days it was a thrilling experience. I would get up at five in the morning and start writing my judgments (I rarely dictated, I always wrote my judgments, because only then the best of you comes out).”
Aju John then asked him about his time in the Supreme Court, and the advocates and his colleagues on the Bench. In terms of advocates, Justice Bhagwati particularly recalled two, the likes of which he doesn’t see anymore: “The Attorney General, Mr. Motilal Setalvad was an outstanding lawyer, as was Mr. C.K. Daphthary.” He was also full of praise for his brother judges, saying that some of them were very good. “Two eminent ones I remember were Justice Krishna Iyer and Justice Dhirubhai Desai (people don’t remember him but he did a lot for industrial law, he was very pro-labour). Justice Eradi from Kerala was also a good judge — these three I distinctly remember.”
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The Supreme Court has issued notice to all States and Union of India on the issue of Rehabilitation. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.
Ravi Kant , Advocate Supreme Court of India & President, Shakti Vahini
Recently the Supreme Court had issued notice to all states while noting down the concern on the pathetic conditions of Sex Workers:
“ Although we have dismissed this Appeal, we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. As already observed by us, a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed herself.
We propose to have the response of the Centre and the States in this regard and hence the case shall be listed before us again on 04.05.2011 to be taken up as first case on which date the first compliance report indicating therein the first steps taken by the Central and the State Governments in this regard shall be submitted. Issue notice to the Central Government and all the State Governments which will also file responses by the date fixed for hearing.”
The court was expressing anguish and concern about failure of the Union of India and the States to effectively implement the National Plan of Action 1998 to combat trafficking and Rehabilitation has caused irreparable damage to lakhs of victims who have been caught in this illegal trade. The applicants states that this Honourable Court in Gaurav Jain Vs Union of India keeping in view of the legislative inertia and the consequent failure of the government directed that a high level committee be constituted to make an indepth study of these problems and to evolve such guidelines to protect the rights and interest of victims of sexual exploitation. It also laid down certain guidelines and further directed that a high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines.
The central government pursuant to the directions issued by this Honurable Court in Gaurav Jain case constituted a “Committee on the Prostitution , Child Prostitutes & Plan of Action to combat trafficking and commercial and Sexual Exploitation of Women and Children”. In 1998 a Report containing an Action Plan was prepared by the Department of Women and Child Government of India . Apart from the highlighting the problems faced in addressing issues of commercial sexual exploitation which are set out hereinafter detailed recommendations were made with a view to arrest the systematic problem , including issues relating to law enforcement and legal reforms.
The above recommendations have not been implemented. In fact there has never been any serious attempt by Respondents to address the issues /recommendations made by the committee. Further the Action Plan does not have any budgetary or non budgetary support from the Government. The petitioner believes that there has been no study relating to the economic cost of implementing the recommendation and the sources through which such costs could be met. In the years from 2001- 2010 the Government of India has focused its initiatives on the issue to combat trafficking. It has formulated the Swadhar and Ujjwala initiatives which are primarily aimed at rehabilitation of trafficked victims. The Government of India in 2010 has formed special Anti Human Trafficking Units across the country under the Ministry of Home Affairs . Apart from the above mentioned initiatives the respondents have failed miserably to formulate special schemes for rehabilitation of women who are in prostitution and also failed to implement the guidelines which were formulated in the National Plan of Action 1998 for rehabilitation of women in the red light area.
The Govt of India , UNIFEM and National Human Rights Commission undertook a study on the issue of Human Trafficking and to propose recommendations to combat this crime. The NHRC report came out with a set of recommendations which have till date not been complied with. The failure to implement the measures set out in 1998 Plan of Action and also the recommendations of the NHRC report has caused severe injury and prejudice to the victims of prostitution . The legislative deficit, coupled by callousness displayed by the respondents continues to ruin the lives of lakhs of women who are caught up in the Illegal Sex Trade being openly run from the red light areas. The respondents have failed and neglected to accept responsibility and discharge their duty as mandated by law.
Due to the callous attitude of the Union of India and the various state governments the trade in the red light area has been thriving. Combined with lax law enforcement and insufficient support structures the trafficking in Human Beings is on the increase. It is due to the problem of trafficking the victims are forcefully pushed into this illegal and viscous trade. The victims are mostly minors when they are brought and are sold to the organized crime thriving in the red light areas. From there these victims are tortured and forced into prostitution. The victims are kept in bonded conditions and are forced to live a life of bondage , sexual slavery , repeated and forced rape , deprivation of basic human rights and hidden away from law enforcement agencies. The victims after repeated human rights violation , continued torture and bodily harm are forced to do and act as there captors desire. These victims are then forced to cater to ten to fifteen men each day . This bonded conditions continue for at least seven to ten years or until the victim can be rescued. The seven to ten years of bonded and sexual slavery is serious violation of Article 23 (3) and Article 21 of the Constitution of India. During this period the victims is forced to suffer repeated rape ten to fifteen times and also during this process of forced and sexual slavery the victim also gets exposed to Sexually Transmitted diseases and HIV/AIDS. The economics of the illegal trade of human misery and also the the exploitation has been vividly explained in the NHRC / UNIFEM
The victim after immense suffering and years of exploitation and sexual slavery multiplied with lax law enforcement is left with no choice but to continue in the illegal trade. The victims cannot return to their homes for the fear of stigma and shame. They are left to their pathetic situations. Some of them are forced to continue in the trade and many with no choice left become part and parcel of the illegal trade. The Victims continue to suffer and with no rehabilitation or support from the government are left to beg and die in utter neglect. They don’t even venture out as they will be further exploited. Thus the suffering and violation of basic human rights and fundamental rights continue .
The Honourable Court in VishalJeet Vs Union of India explained the pathetic situation of the victims:
“No denying the fact that prostitution always remains as a running sore in the body of civilisation and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making its way onwards leaving a track marked with broken hopes. Therefore, the necessity for appropriate and drastic action to eradicate this evil has become apparent but its successful consummation ultimately rests with the public at large.
It is highly deplorable and heart-rending to note that many poverty stricken children and girls in the prime of youth are taken to ’flesh market’ and forcibly pushed into the ’flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions–indeed there is none–that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”
The Honurable Supreme Court in Vishaljeet Vs Union of India laid down certain guidelines for eradication of the malady :
This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers. The Courts in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences. Apart from legal action, both the Central and the State Government who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction.Bhagwati, J. (as he then was) in Lakshmi Kant Pandey v.Union of India,  2 SCC 244 while emphasizing the importance of children has expressed his view thus: “It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ’supremely important national asset’ and the future wellbeing of the nation depends on how its children grow and develop.”
We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard. Accordingly, we make the following directions:
1. All the State Governments and the Governments of Union Territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.
2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women’s organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and associations etc., the main objects of the Advisory Committee being to make suggestions of:
(a) the measures to be taken in eradicating the child prostitution, and
(b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution.
3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatarists and doctors.
4. The Union Government should set up a committee of its own in the line, we have suggested under direction No.(2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children.
5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
6. The Advisory Committee can also go deep into devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.
7. The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commissioner of Police, Delhi for necessary action. We may add that we are not giving an exhaustive list of the members for the constitution of the committee. Therefore, it is open to the concerned Government to include any member or members in the committee as it deems necessary.
We hope and trust that he directions given by us will go a long way towards eradicating the malady of child prostitution, Devadasi system and Jogin tradition and will also at the same time protect and safeguard the interests of the children by preventing of the sexual abuse and exploitation.
The Honourable Supreme Court in Gaurav Jain vs Union of India had keeping in view the legislative inertia and the consequent failure of the Government to protect the rights and interest of the victims ,laid down certain guidelines and further directed high level committee be constituted to make an indepth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines. The Supreme Court realizing the enormity of the problem and the need to urgently mend the systematic and symbolic failures proceeded to give further directions in the manner as follows:
“The Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women the Child Development as the chairperson and three or four Secretaries from the concerned State Governments, to be nominated by the Minister of Welfare. They would make an in-depth study into these problems and evolve such suitable schemes as are appropriate and consistent with the directions given above. The Committee should be constituted within one month from the date of the receipt of this judgment. The Committee should finalise the report within three months thereafter. As soon as the report is submitted. the same may be communicated to all the State Governments and the concerned Ministries for their examination. Within two month from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decision. The Committee should finalise the report with further suggestions or amendments, if suggested in the conference. Thereafter, the report should be finalised and then direction would be given to the State Governments for effective implementation of the schemes. The nodal Department would enforce and regularly be supervised by the Ministry of Welfare, Government of India. A permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis, and to take such other steps as may be expedient in the effective implementation of the schemes. Periodical progress as to funding and enforcement of the scheme should be submitted to the Registry of this Court. If further directions would be needed, liberty is given to the parties to approach this Court. In that view of the matter, it is believed and hoped that the above law and directions would relieve the human problem by rehabilitation of the unfortunate fallen women cought in the trap of prostitution ; their children would be brought into the mainstream of the social order ; these directions would enable them to avail the equality of opportunity and of status, with dignity of person which are the arch of the Constitution.”
The Advisory committee formed pursuant to the judgement of this Honourable Court in Vishal Jeet vs Union of India have remained defunct and many states have not even convened meetings of the committee. The Central Advisory Committee formed by the Government of India , Ministry of Women and Child has been meeting regularly since 2005 and has been addressing the problems of trafficking. Though the committee has not focused on the issue of rehabilitation of women in prostitution. These committees were formed with the intention to promote inter department cooperation and approach the problem in a unified manner.
When Shakti Vahini (Writ Petition 190 0f 2002) had petitioned to the Supreme Court that such committees were not functional and pursuant to the Supreme Court notice many governments had formed the committees just to file affidavits in the Supreme Court. After that again these committees became non functional. The National Plan of Action 1998 formed pursuant to the Honourable Supreme Court order has remained a dead document as nothing much has been done for the emancipation of women victims.
The National Human Rights Commission in 2006 has also framed a Plan of Action to combat Trafficking but the same has also remained as a dead document. The Government of India has initiated several initiatives in collaboration with NGOs to combat trafficking and has also formed a special cell in the Ministry of home Affairs , Government of India as the Nodal Agency for the Anti Human trafficking Units. The law enforcement agencies are also being sensitized on the issue of Trafficking and several modules for police trainings have been formulated by United Nations office on Drugs and Crimes ( UNODC) , Bureau of Police Research and Development (BPRD) and Ministry of Home Affairs. The Union of India in collaboration with NGOs has launched Ujjwala and Swadhar Schemes which are more focused towards trafficked children and as short stay homes.
The Government of India unfortunately has till date not devised any proper scheme for rehabilitation for women in prostitution so that they can become part of the mainstream.
Ratification of the UN Protocol on Human Trafficking
The Government of India has recently ratified the UN Protocol . This also implies that Government of India formally adopting definition of Human Trafficking which is :“Trafficking in persons” which shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
The UN Protocol makes Human Trafficking and Smuggling a organised crime and call upon states to provide victim support , victim repatriation , witness support and protection , Joint Investigations between member nations etc. It specially calls upon nations to ensure implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. It mandates nations to ensure that take into account the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. It also provides for nations to provide for the physical safety of victims of trafficking in persons while they are within its territory and ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered. It takes a commitment from nations that they shall establish comprehensive policies, programmes and other measures inter alia to prevent and combat trafficking in persons; and (b) to protect victims of trafficking in persons, especially women and children, from revictimization. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.
It mandates that nations shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: (a) whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons; the types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and the means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them.
It ensures that nations shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with nongovernmental organizations, other relevant organizations and other elements of civil society.
The Government of India and the various states have failed in their duty as the problem of prostitution is a serious violation of Fundamental Rights as enshrined in Article 21 and Article 23 of the Constitution of India. India is also a signatory to international conventions such as the Convention on Rights of the Child (1989), Convention on Elimination of all forms of Discrimination Against Women (1979), UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000) and the latest South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002). The Constitutional , International, Statutory obligations and orders of the Honourable Supreme Court makes it mandatory for the Government of India and the different state Government to combat this heinous organised crime and also to provide support to the victims of Prostitution.
Rehabilitation / Compensation approach
The Supreme Court in Bandhua Mukti Morcha 1984 (3) SCC 161 has elucidated the rehabilitation of Bonded Labour and directed the Government to award compensation to Bonded labour under the provisions of Bonded Labour System (Abolition) Act 1976 after taking note of serious violation of Fundamental & Human Rights :
“The other question arising out of the implementation of the Bonded Labour System (Abolition) Act 1976 is that of rehabilitation of the released bonded labourers and that is also a question of the greatest importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion.
The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and (illusory) security’ as against a world of freedom and starvation. The State Governments must therefore concentrate on rehabilitation of bonded labour and evolve effective programmes for this purpose. Indeed they are under an obligation to do so under the provisions of the Bonded Labour System (Abolition) Act 1976. It may be pointed out that the concept of rehabilitation has the following four main features as admirably set out in the letter dated 2nd September 1982 addressed by the Secretary. Ministry of Labour, Government of India to the various States Governments:
(i) Psychological rehabilitation must go side by side with physical and economic rehabilitation;
(ii) The physical and economic rehabilitation has 15 major components namely allotment of house-sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, horticulture, animal husbandry, training for acquiring 134 new skills and developing existing skills, promoting traditional arts and crafts, provision of wage employment and enforcement of minimum wages, collection and processing of minor forest produce, health medical care and sanitation supply of essential commodities, education of children of bonded labourers and protection civil rights;
(iii) There is scope for bringing about an integration among the various central and centrally sponsored schemes and the on-going schemes of the State Governments for a more qualitative rehabilitation. The essence of such integration is to avoid duplication i.e. pooling resources from different sources for the same purpose. It should be ensured that while funds are not drawn from different sources for the same purpose drawn from different sectors for different components of the rehabilitation scheme are integrated skillfully;and
(iv) While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would need the total requirements of the families of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.
We would therefore direct the Government of Haryana to draw up a scheme on programme for “a better and more meaningful rehabilitation of the freed bonded labourers” in the light of the above guidelines set out by the Secretary to the Government of India, Ministry of Labour in his letter dated 2nd September 1982. The other State Governments are not parties before us and hence we cannot give any direction to them, but we hope and trust that they will also take suitable steps for the purpose of securing identification, release and rehabilitation of bonded labourers on the lines indicated by us in this Judgment.”
The compensation since 1978 has undergone a change and presently the compensation is Rs20,000 and access to Government schemes of poverty alleviation and also housing under Indira Awas Yojana .
Supreme Court in MC Mehta vs State of Tamil Nadu and Others – Writ Petition (Civil) No.465/1986 seeing the severe violation of fundamental rights in cases of child labour laid down guidelines for compensation and rehabilitation :
“ It may be that the problem would be taken care of to some extent by insisting on compulsory education. Indeed, Neera thinks that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. therefore, unless the family is assured of income allude, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are, however, of the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain a will-o’-the wisp. Now, if employment of child below that age of 14 is a constitutional indication insofar as work in any factory or mine or engagement in other hazardous work, and if it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfillment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs.20,000/-; and the Inspectors, whose appointment is visualised by section 17 to secure compliance with the provisions of the Act, should do this job. The inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs.20,000/- which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the concerned child. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high yielding scheme of any nationalised bank or other public body.
As the aforesaid income could not be enough to dissuade the parent/guardian to seek employment of the child, the State owes a duty to come forward to discharge its obligation in this regard. After all, the aforementioned constitutional provisions have to be implemented by the appropriate Government, which expression has been defined in section 2(i) of the Act to mean, in relation to establishment under the control of the Central Government or a railway administration or a major port of a mine or oil field, the Central Government, and in all other cases, the State Government.
Now, strictly speaking a strong case exists to invoke the and of an Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39(e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child. This would also see the fulfillment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unni Krishnan. We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”. The very large number of child-labour in the aforesaid occupations would require giving of job to very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector establishment or, for that matter, in a public sector organisation., we are not issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as above-mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5,000/- for each child employed in a factory or mine or in any other hazardous employment.
The aforesaid would either see an adult (whose name would be suggested by the parent/guardian of the concerned child) getting a job in lieu of the child, or deposit of a sum of Rs.25,000/- in the Child Labour Rehabilitation-cum- Welfare Fund. In case of getting employment for an adult, the parent/guardian shall have to see that his child is spared from the requirement to do the job, as an alternative source of income would have become available to him.”
The Supreme Court in Delhi Domestic Working Women’s Forum Vs. Union India and others writ petition (CRL) No.362/93 in recognition of severe violation of Fundamental rights of Rape Victims had directed the National Commission Women to evolve a “scheme so as to wipe out the tears of unfortunate victims of rape’’. The Supreme Court observed that having regard to the Directive Principles contained in Article of the Constitution, it was necessary to set up a Criminal Injuries Compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial and in some cases are too traumatized to continue in employment.
“ In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well- acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
(3)The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
(5)The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.
(6)In all rape trials anonymity of the victim must be maintained, as far as necessary.
(7)It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.
(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.
16. On this aspect of the matter we can usefully refer to the following passage from The Oxford Handbook of Criminology (1994 Edn.) at pages 1237-38 as to the position in England:
”Compensation payable by the offender was introduced in the Criminal Justice Act, 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where ‘injury, loss, or damage’ had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penological thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1988 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, impose a duty on the court to give reasons for not doing so. it also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review ….
The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.”
17.Section 10 of the Act states that the National Commission for men shall perform all or any of the following functions, namely:, (a) Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws. (b) Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal.
18. Having regard to the above provisions, the third respondent will have to evolve such scheme as to wipe out the tears of such unfortunate victims. such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall necessary steps for the implementation of the scheme at the earliest.
The National Commission for Women pursuant to the orders of the Honourable Supreme Court has drafted a scheme for Compensation. Some states have already started the implementation of the scheme. The scheme The scheme has proposed a compensation of Rs2 to Rs3 Lakhs for Rape victims.
The Government of India has recently amended the The Code of Criminal Procedure 1973 as amended by The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation.
“357A. Victim compensation scheme. — (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section
(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”.
Article 23of the Constitution of India prohibits ,”Traffic in Human Beings” this Honourable Court has held that the expression “Traffic in Person” in Article 23(1) of the Constitution of India is evidently a very wide expression which includes the prohibition of traffic in women for immoral and other purposes . In the case of women in prostitution the failure to implement the National Plan of Action drafted pursuant to the Judgement in Gaurav Jain vs Union of India has resulted in serious deprivation of fundamental rights.
The trafficked victims and women in prostitution go through serious fundamental rights violation which includes bondage and sexual slavery and repeated rape and gang rape. The crimes are very serious in nature which results in deprivation of Fundamental Rights and therefore the state is liable. As mentioned above this Honourable Court has already ordered compensation in Bonded Labour and for victims of Rape , the victims of Human Trafficking and women in Prostitution also are eligible for compensation from the State.
The failiure of the Union of India and the State Governments to draft a suitable rehabilitation scheme for women in prostitution is a serious violation of orders of this Honourable Court and also violation and deprivation of Article 21 and Article 23(1) of the Constitution of India. Article 23 read with Article 39, 41 and 42 together constitute inalienable rights and the failure to grant such right would constitute deprivation of basic fundamental rights. The problem of trafficking and prostitution is also serious violation of Article 14 , Article 19 of the Constitution of India.
A way forward – Suggested Recommendations
Shakti Vahini after held several meetings with women victims of the red light area of GB Road on the issue of Rehabilitation after the Honourable Supreme Court issued notice to the Union of India and all states in the present case. The victims have provided suggestions as to how the State can formulate schemes which can help them to reintegrate back to the society. The victims have also come out with suggestions so that they can be reintegrated in the society and also be rehabilitated which are as follows:
1. Compensation to be paid for serious violation and deprivation of Fundamental rights.
2. The women in prostitution are in bondage condition for several years . As a result there is a serious loss of identity and the organised crime changes their names frequently. This ultimately leads to having no identity and hence access to government schemes and government facilities are completely not available to the Victims. The Government of India and the State Government should at once issue identity cards , Ration Cards , UID Cards so that domicile can be proved. Without these documents the women have no approach to the government facilities.
3) The Women victims of prostitution and Human Trafficking undergo serious violation of Fundamental rights and are forced to live a life of sexual slavery and bondage. They have no source of income and they should be treated as Below Poverty Line. This will enable them to access the schemes for Poverty Alleviation.
4) Most of the victims of Human Trafficking and Women in Prostitution belong to the lower strata of the society and are tribals and belong to the SC and ST communities. The schemes for alleviation of these communities should be open to all those victims who belong to such communities
5) The Government should provide schemes for training and Income generation programme and also link these schemes with Nationalised Banks and agencies like Rashtriya Mahila Kosh . The training provided should encourage entrepreneurship and this needs to be supported by easy and low interest credit. Services of NGOs can be asked to provide mentor support.
6) The victims of trafficking and prostitution who want to leave the place should be provided residential facilities and rehabilitation scheme as soon as possible.
7) All schemes of social security and Health facilities should be accessible to victims of trafficking.
Legal aid and legal support should be provided to the victims .
9) States in destination area should also accept responsibility of victims as they are liable because their fundamental rights violation has taken in the destination areas. This is because many a times states pass on the responsibility of the victims on the home state and the home states accepts no responsibility.
10) The present schemes of swadhar and Ujjwala are completely irrelevant compared to the magnanimity of the crime.
11) Any scheme devised by the Government of India should have strong budgetary support.
12) The victims of trafficking and women in prostitution categorically state they are victims of organised crime and have landed in this situation due to they were forced in this situation. They all agree that in no case prostitution should be allowed or regulated.
13) Government should frame stringent laws to convict traffickers who indulge in trafficking of women and children. The Law enforcement agencies should take action against such criminals.
14) The whole illegal business of prostitution is run by organised crime who have links across the country. The honourable court should direct the law enforcement agencies to launch investigation against these perpetrators
When the Supreme Court said that the victims of Commercial Sexual Exploitation should be provided “ a life of dignity” it should not be meant that the court is talking about legalization. Organizations and individuals with vested interest who have to gain from such illegal trade start speaking about the legalization issue.
It is a reality that Govt of India has never had a serious view on the issue of rehabilitation. It may be thing of past as the Government of India with the liberalization of the economy has now no dearth of the funds to do it. The Government is already spending huge amounts in National Rural Health Mission, Sarva Shiksha Abhjiyan , National Rural Employment Gurantee Scheme, Integrated Child Protection Scheme (ICPS) & etc.
Recently the Government of India has launched Anti Human Trafficking Units across the country. This is a specialised force which will work exclusively to combat Human Trafficking. The results are already being felt with more such gangs being busted. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action.
The writer is practising advocate in the Supreme Court of India and is President of Shakti Vahini a leading non governmental organization working on anti trafficking. He can be reached at : firstname.lastname@example.org
By Naziya Alvi in New Delhi IN MAIL TODAY
A DAY AFTER five rape cases were reported within a span of 48 hours in the Capital, the ministry of women and child development came up with a scheme to compensate the victims by providing them financial assistance up to ` 3 lakh.The scheme was announced after the Delhi High Court rapped the central and the state governments for the delay in setting up a compensation scheme for rape victims. The court ordered the implementation of the scheme within the next six weeks.
Under the scheme, if a rape case is prima facie made out, the victim will receive an interim financial assistance of ` 20, 000 within 15 days. After giving due consideration to the physical injury and emotional trauma faced by the victim, she will be provided with further financial aid up to ` 50,000.
However, in view of the rampant trend of rape victims turning hostile or going missing after lodging the FIR, the major chunk of the compensation amount— ` 1.30 lakh — will be handed over to the victim only after she makes the final deposition before the court.
The scheme has fixed the compensation amount for victims at ` 2 lakh, but can it be enhanced up to ` 3 lakh if the victim is a minor, differently- abled, mentally challenged or in any other case where the designated authority finds it necessary.
The scheme, prepared with the assistance of NGOs, lawyers and activists, aims at providing psychological, medical and legal assistance to the affected woman. It also has the provision to provide counselling support to the victim, including her spouse if the affected woman is married.
Depending upon their needs, the victims will also be provided various support services such as educational and vocational training so as to help them overcome the trauma and lead an independent life.
A Criminal Injuries Relief and Rehabilitation Board will be set up at the district, state and national level for the implementation of the scheme. The announcement of the scheme on Wednesday evoked mixed responses from social activists, lawyers and academicians.
“ I think it will lead to so much ugliness. My concern is that the government promises a lot but its delivery mechanism is so poor that everything becomes either a farce or a source of corruption,” social activist Madhu Kishwar said.
“ What a woman needs more than anything else is swift, speedy and dignified judicial process and a police station that works lawfully. What is most worrisome is how they will ensure that the compensation reaches the victim,” she added.
“ The Supreme Court, while pronouncing the judgment in the Delhi Domestic Workers Association case in the early 90s, had directed the government to formulate a similar scheme.
They should have ideally done it within a year. The fact that they have not done it till date shows the intent and prioritisation of the government and the bureaucrats towards women’s issues,” Meenakshi Lekhi, a Delhibased advocate, said.
Yasmeen Abrar, chairperson of the National Commission for Women, said she was happy that the government finally came up with such a scheme. “ However, we feel that ` 2 lakh is not a sufficient amount and should be increased to at least ` 5 lakh,” Abrar said. But for some, the scheme is just an eyewash. “ Compensation is meaningless so long as the guilty are not punished.
Rape is not an accident where a money claim will heal the wounds,” a rape victim said.
20,000 will be given to the victim in the event a rape case is prima facie made out. The district board shall order the assistance as far as possible within 15 days and, in any case, not later than 3 weeks from the date of receipt of the application ` 50,000 is the maximum amount the victim will receive as further aid after giving due consideration to the physical injury and emotional trauma faced by her
1.3 lakh will be given to the victim as final assistance within one month from the date on which the victim gives her evidence in the criminal trial or within one year from the date of receipt of the application in cases where the recording of evidence has been unduly delayed for reasons beyond her control
ENHANCEMENT OF AID IN SPECIAL CASES
3 lakh is the enhanced compensation an affected woman will be entitled to if she
- is a minor
- is mentally challenged or differently abled
- is infected with STD, including HIV/ AIDS as a consequence of rape
- gets pregnant
- in case of severe physical and mental ailments
- any other ground as may be deemed fit by the board
WHEN CAN THE BOARD REJECT THE CLAIM?
- Avictim’s claim can be rejected under the following circumstances
- she fails to inform, without delay, the police or any other appropriate authority about the incident
- she fails to give reasonable assistance to the board in connection with the application
- the FIR is filed so late that it is difficult to verify the facts of the case
- she turns hostile during the trial
- the case appears to be collusive in nature
- bona fides of the victim are suspect, such as in a case involving solicitation, and not based on verifiable facts
- case is of elopement of girls above 16 years of age
WHO MAY APPLY AND BY WHEN?
An application for financial assistance and support services has to be filed within 60 days from the date of recording of the FIR either by the victim or by any person/ organisation/ department/ commission on her behalf, with the application duly signed by her
WHERE THE AFFECTED WOMAN IS:
A minor: By her parent/ guardian . Mentally ill or is mentally challenged: By the person with whom she normally resides or a duly authorised medical officer of the institution
ON THE DEATH OF THE AFFECTED WOMAN:
by her legal heir( s) . Where the application is filed after 60 days, the board may condone such delay where it is satisfied with the reasons for the same.
- Complaints of growing abuse by placement agencies in Delhi (shaktivahini.wordpress.com)
- Two alleged human traffickers held (shaktivahini.wordpress.com)
- Indias Efforts to Curb Trafficking in Persons Recognised by the Us Trafficking in Persons Report. India Upgraded to Tier 2 (equalityindia.wordpress.com)
- Trafficking victim allegedly raped by agent (shaktivahini.wordpress.com)
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
It is too early to say whether Dominique Strauss-Kahn was framed by a woman employee of a hotel. It cost him his job as IMF chief and cast a shadow on his ambition to become French president. After prosecutors developed doubts over veracity of the victim’s charges, Kahn got unconditional bail. Will the relief save his image, reputation and political prospects? It is difficult to say but, generally, allegations of sexual assault or exploitation against the rich, powerful and famous are taken to be true.
But the most equipped investigation, able prosecution and hawk-eyed judicial scrutiny sometimes fail to unravel the facts. Actor Shiney Ahuja, who probably would be finding similarities of his case with that of Strauss-Kahn, will agree. The Supreme Court faced an identical dilemma just last year, relating to dowry harassment cases under Section 498A of Indian Penal Code. “It is common knowledge that unfortunately, matrimonial litigation is rapidly increasing in our country… this clearly demonstrates discontent and unrest in the family life of a large number of people of society,” it said.
On the one hand, the law was the social legislation giving women protection against harassment at the hands of the husband and his relatives, who demand more and more dowry. The court was concerned with the rapid rise in such cases. But on the other hand, it was aware that “a large number of such complaints are not bona fide and are filed with oblique motive”.
It admitted, “To find out the truth is a herculean task in a majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth.”
The SC wanted a way out of the vicious cycle of litigation that mostly ruins innocent husbands and in-laws, who are falsely roped in, but seldom affects the real perpetrators who exploit loopholes in the system to escape the law.
The court was worried by the overkill of Section 498A. It did not want a socially beneficial legal framework to be turned into a mechanism of legal terrorism. It requested the Law Commission to examine the issue and suggest changes that could help create an ambience where the perpetrators could be adequately punished and at the same time, leave some room for negotiations to arrive at an amicable settlement. The commission invited suggestions from all quarters, including NRIs. And the overwhelming response was in favour of thorough investigations into the complaint of the wife under Section 498A before police arrested the husband and in-laws.
The commission is in the process of finalizing its decision which appears to be in favour of providing for a settlement clause between the victim and in-laws, which could be a welcome breather. However, it is against making the offence under Section 498A bailable.
Before any change is made in the law that was enacted to protect women from dowry harassment, it needs to be debated whether a woman’s complaint under Section 498A be thoroughly probed before effecting arrest of the husband and her in-laws.
Right now, once a Section 498A complaint is lodged, the police arrests the person named by the wife. The SC had said, “The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.”
The commission, before sending its recommendation to the government, must examine this aspect — what should be the protection to husbands and in-laws who have been framed in a complaint under Section 498A. But it must also not lose sight of the gruesome treatment meted out to women who fail to satisfy the greed of husbands and their in-laws.
- Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code (indialawyers.wordpress.com)
Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code
1. Keeping in view the representations received from various quarters and observations made by the Supreme Court and the High Courts, the Home Ministry of the Government of India requested the Law Commission of India to consider whether any amendments to s.498A of Indian Penal Code or other measures are necessary to check the alleged misuse of the said provision especially by way of over-implication.
2. S.498A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression ‘cruelty’ has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of ‘cruelty’. The offence under s.498A is cognizable, non-compoundable and non-bailable.
3. In a recent case of Preeti Gupta v. State of Jharkhand, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases”. The Court took note of the common tendency to implicate husband and all his immediate relations. In an earlier case also – Sushil Kumar Sharma v. UOI (2005), the Supreme Court lamented that in many instances, complaints under s.498A were being filed with an oblique motive to wreck personal vendetta. “It may therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with”, it was observed. It was also observed that “by misuse of the provision, a new legal terrorism can be unleashed”.
4. The factum of over-implication is borne out by the statistical data of the cases under s.498A. Such implication of the relatives of husband was found to be unjustified in a large number of decided cases. While so, it appears that the women especially from the poor strata of the society living in rural areas rarely take resort to the provision.
5. The conviction rate in respect of the cases under s.498A is quite low. It is learnt that on account of subsequent events such as amicable settlement, the complainant women do not evince interest in taking the prosecution to its logical conclusion.
6. The arguments for relieving the rigour of s.498A by suitable amendments (which find support from the observations in the Court judgments and Justice Malimath Committee’s report on Reforms of Criminal Justice System) are: Once a complaint (FIR) is lodged with the Police under s.498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. When the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all. The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest by the Police will thus be counter-productive. The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family. Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over-zealous/callous actions on the part of the Police by taking advantage of the harsh provisions of s.498A of IPC together with its related provisions in CrPC. It is pointed out that the sting is not in s.498A as such, but in the provisions of CrPC making the offence non-compoundable and non-bailable.
7. The arguments, on the other hand, in support of maintaining the status quo are briefly:
S.498A and other legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is diluted. The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests. The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made. Further, the first recourse should be to effect conciliation and mediation between the warring spouses and the recourse to filing of a chargesheet under s.498A shall be had only in cases where such efforts fail and there appears to be a prima facie case. Counselling of parties should be done by professionally qualified counsellors and not by the Police.
7.1 These views have been echoed among others by the Ministry of Women and Child Development.
7.2 Further, it is pointed out that a married woman ventures to go to the Police station to make a complaint against her husband and other close relations only out of despair and being left with no other remedy against cruelty and harassment. In such a situation, the existing law should be allowed to take its own course rather than over-reacting to the misuse in some cases.
7.3 There is also a view expressed that when once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly. It is contended that in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A is not warranted. Secondly, during the long–drawn process of mediation also, she is vulnerable to threats and torture. Such situations too need to be taken care of.
8. There is preponderance of opinion in favour of making the said offence compoundable with the permission of the court. Some States, for e.g., Andhra Pradesh have already made it compoundable. The Supreme Court, in a recent case of –*—, observed that it should be made compoundable. However, there is sharp divergence of views on the point whether it should be made a bailable offence. It is pleaded by some that the offence under s.498A should be made bailable at least with regard to husband’s relations.*Ramgopal v. State of M. P. in SLP (Crl.) No. 6494 of 2010 (Order dt. July 30, 2010.
8.1 Those against compoundability contend that the women especially from the rural areas will be pressurized to enter into an unfair compromise and further the deterrent effect of the provision will be lost.
9. The Commission is of the view that the Section together with its allied CrPC provisions shall not act as an instrument of oppression and counter-harassment and become a tool of indiscreet and arbitrary actions on the part of the Police. The fact that s.498A deals with a family problem and a situation of marital discord unlike the other crimes against society at large, cannot be forgotten. It does not however mean that the Police should not appreciate the grievance of the complainant woman with empathy and understanding or that the Police should play a passive role.
10. S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale.
11. While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution – legislative or otherwise.
12. There is also a need to create awareness of the provisions especially among the poor and illiterate living in rural areas who face quite often the problems of drunken misbehavior and harassment of women folk. More than the women, the men should be apprised of the penal provisions of law protecting the women against harassment at home. The easy access of aggrieved women to the Taluka and District level Legal Service Authorities and/or credible NGOs with professional counsellors should be ensured by appropriate measures. There should be an extensive and well-planned campaign to spread awareness. Presently, the endeavour in this direction is quite minimal. Visits to few villages once in a way by the representatives of LSAs, law students and social workers is the present scenario.
13. There is an all-round view that the lawyers whom the aggrieved women or their relations approach in the first instance should act with a clear sense of responsibility and objectivity and give suitable advice consistent with the real problem diagnosed. Exaggerated and tutored versions and unnecessary implication of husband’s relations should be scrupulously avoided. The correct advice of the legal professionals and the sensitivity of the Police officials dealing with the cases are very important, and if these are in place, undoubtedly, the law will not take a devious course. Unfortunately, there is a strong feeling that some lawyers and police personnel have failed to act and approach the problem in a manner morally and legally expected of them.
14. Thus, the triple problems that have cropped up in the course of implementation of the provision are:(a) the police straightaway rushing to arrest the husband and even his other family members (named in the FIR), (b) tendency to implicate, with little or no justification, the in-laws and other relations residing in the marital home and even outside the home, overtaken by feelings of emotion and vengeance or on account of wrong advice, and (c) lack of professional, sensitive and empathetic approach on the part of the police to the problem of woman under distress.
15. In the context of the issue under consideration, a reference to the provisions of Protection of Women from Domestic Violence Act, 2005 (for short PDV Act) which is an allied and complementary law, is quite apposite. The said Act was enacted with a view to provide for more effective protection of rights of women who are victims of violence of any kind occurring within the family. Those rights are essentially of civil nature with a mix of penal provisions. Section 3 of the Act defines domestic violence in very wide terms. It encompasses the situations set out in the definition of ‘cruelty’ under Section 498A. The Act has devised an elaborate machinery to safeguard the interests of women subjected to domestic violence. The Act enjoins the appointment of Protection Officers who will be under the control and supervision of a Judicial Magistrate of First Class. The said officer shall send a domestic incident report to the Magistrate, the police station and service providers. The Protections Officers are required to effectively assist and guide the complainant victim and provide shelter, medical facilities, legal aid etc. and also act on her behalf to present an application to the Magistrate for one or more reliefs under the Act. The Magistrate is required to hear the application ordinarily within 3 days from the date of its receipt. The Magistrate may at any stage of the proceedings direct the respondent and/or the aggrieved person to undergo counseling with a service provider. ‘Service Providers’ are those who conform to the requirements of Section 10 of the Act. The Magistrate can also secure the services of a welfare expert preferably a woman for the purpose of assisting him. Under Section 18, the Magistrate, after giving an opportunity of hearing to the Respondent and on being prima facie satisfied that domestic violence has taken place or is likely to take place, is empowered to pass a protection order prohibiting the Respondent from committing any act of domestic violence and/or aiding or abetting all acts of domestic violence. There are other powers vested in the Magistrate including granting residence orders and monetary reliefs. Section 23 further empowers the Magistrate to pass such interim order as he deems just and proper including an ex-parte order. The breach of protection order by the respondent is regarded as an offence which is cognizable and non-bailable and punishable with imprisonment extending to one year (vide Section 31). By the same Section, the Magistrate is also empowered to frame charges under Section 498A of IPC and/or Dowry Prohibition Act. A Protection Officer who fails or neglects to discharge his duty as per the protection order is liable to be punished with imprisonment (vide Section 33). The provisions of the Act are supplemental to the provisions of any other law in force. A right to file a complaint under Section 498A is specifically preserved under Section 5 of the Act.
15.1 An interplay of the provisions of this Act and the proceedings under s.498A assumes some relevance on two aspects: (1) Seeking Magistrate’s expeditious intervention by way of passing a protective interim order to prevent secondary victimization of a complainant who has lodged FIR under s.498A. (2) Paving the way for the process of counselling under the supervision of Magistrate at the earliest opportunity.
16. With the above analysis and the broad outline of the approach indicated supra, the Commission invites the views of the public/NGOs/institutions/Bar Associations etc. on the following points, before preparing and forwarding to the Government the final report:
1) a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC? What should be their approach and plan of action?
b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR? Would the objective of s.498A be better served thereby?
2) a) The Supreme Court laid down in D.K. Basu (1996) and other cases that the power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person’s complicity as well as the need to effect arrest. Don’t you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest?
b) What steps should be taken to check indiscriminate and unwarranted arrests?
3) Do you think that making the offence bailable is the proper solution to the problem? Will it be counter-productive?
4) There is a view point supported by certain observations in the courts’ judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides. In other words, the possibility of exploring reconciliation at the outset should precede punitive measures. Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be completed with utmost expedition? Should there be a time-limit beyond which the police shall be free to act without waiting for the outcome of conciliation process?
5) Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage? Do you have a different view?
6) a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators – the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District?
b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications?
7) a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counselling/conciliation, apart from according interim protection?
b) Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate?
c) Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed?
8) Do you think that the offence should be made compoundable (with the permission of court)?
Are there any particular reasons not to make it compoundable?
9) Do you consider it just and proper to differentiate the husband from the other accused in providing for bail?
10) a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement? Is there a need for better coordination between LSAs and police stations?
b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages?
c)Are the Mediation Centres in some States well equipped and better suited to attend to the cases related to S,498-A?
11) What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people?
12) Do you have any informations about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them?
13) What according to you is the main reason for low conviction rate in the prosecutions u/s 498A?
14) (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A? If so, what should be its composition and the qualifications of women police deployed in such a cell?
(b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training. In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station?
- Oppressor’s case (indialawyers.wordpress.com)
- Conflicting signals (indialawyers.wordpress.com)
- The Protection of Women Against Sexual Harassment at Work Place Bill, 2010 (indialawyers.wordpress.com)
- The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 (indialawyers.wordpress.com)
- Weighing The Scales (indialawyers.wordpress.com)
J. Venkatesan IN THE HINDU
|The draft has been approved and is expected to be released shortly for comments|
There must be a bar on assembly for discussing young persons marrying as per their choice
Village elders have no right to interfere with the life and liberty of such couples
NEW DELHI: To tackle the menace of ‘honour killings‘ in some parts of the country and deal with illegal orders from by ‘khap panchayats,’ the Law Commission has proposed legislation to prosecute persons or a group involved in such endangering conduct and activities.
The proposed legislation, ‘The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011,’ drafted by Law Commission Member and senior advocate R. Venkataramani, has been discussed and approved by the Commission, which is headed by Justice P. Venkatarama Reddi. It is expected to be released shortly for comments.
The Commission has turned down the demand for introducing a clause in Section 300 of the Indian Penal Code (murder) to bring ‘honour killings’ under the ambit of this Section. It says: “There is no need to introduce a provision in Section 300 in order to bring the so-called honour killings within the ambit of this provision. The addition of such a clause may create confusion and interpretational difficulties. The existing provisions in the IPC are adequate to take care of the situations leading to overt acts of killing or causing bodily or other acts to the targeted person who allegedly undermined the honour of the caste or community.”
The idea behind the provisions in the draft legislation is that there must be a threshold bar on congregation or assembly for discussing and condemning the conduct of young persons above the age of majority in marrying as per their choice even if they belong to the same ‘gotra’ (which is not prohibited) or they belong to different castes or communities. ‘Panchayatdars’ or village elders have no right to interfere with the life and liberty of such young couples and they cannot create a situation in which such couples are placed in a hostile environment in the village/locality concerned.
Under the proposed law, “the act of endangerment of life and liberty shall mean and include any manner of acts of threat, encouragement, commending, exhorting and creating an environment whereby loss of life and liberty is imminent or threatened and shall include (a) enforcement of measures such as social boycott, deprivation of the means of livelihood, denial of facilities and services which are otherwise generally available to the people of the locality concerned and (b) directly or indirectly compelling the persons concerned to leave or abandon their homestead in the locality.”
“Further, it shall be unlawful for any group of persons to gather, assemble or congregate with the … intention to deliberate, declare on, or condemn any marriage or relationship such as marriage between two persons of majority age in the locality concerned on the basis that such conduct or relationship has dishonoured the caste or community or religion of all or some of the persons forming part of the assembly or the family or the people of the locality concerned.”
It shall be presumed that any person or persons found to be part of the unlawful caste assembly did so with the intention to act in endangerment of life or liberty. Such an assembly shall be treated as an unlawful assembly and those present in it shall be punished with imprisonment for a period of not less than three years and extending up to five years and a fine of Rs.30,000.
The draft legislation says: “Any person or persons instrumental in gathering of such an assembly or who takes an active part in the execution of the assembly shall also be subjected to civil sanctions,” viz., they will not be eligible to contest any election to any local authority and will be treated as a disqualified candidate.
- Halt honour killings, rules SC (shaktivahini.wordpress.com)
- Government Officials will be held responsible for Honour Killings (equalityindia.wordpress.com)
- Government Officials will be held responsible for Honour Killings (indialawyers.wordpress.com)
- Govt sits on report wanting khap curbs (shaktivahini.wordpress.com)
- India decries ‘honour killings’ (bbc.co.uk)
- Stamp out khap panchayats: court (indialawyers.wordpress.com)
- Botched probe (mediacoalition.wordpress.com)
- Treat ‘honour’ killings as rarest of rare cases: court (hindu.com)
- India’s top court urges death penalty for honour killings (cbc.ca)
PRS LEGISLATIVE REVIEW
The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.
Highlights of the Bill
- The Bill defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.
Key Issues and Analysis
- There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.
- The Internal Complaints Committee has been given the powers of a civil court. However, it does not require members with a legal background nor are there any provisions for legal training.
- The Bill provides for action against the complainant in case of a false or malicious complaint. This could deter victims from filing complaints.
- Two different bodies are called ‘Local Complaints Committee’. The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees.
- Cases of sexual harassment of domestic workers have been specifically excluded from the purview of the Bill.
- Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.
PART A: HIGHLIGHTS OF THE BILL
India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). However, India does not have a specific law to address the issue of sexual harassment of women at the place of work. Currently, the Indian Penal Code (IPC) covers criminal acts that outrage or insult the ‘modesty’ of women. It does not cover situations which could create a hostile or difficult environment for women at the work place.
In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place.1 The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.
A draft Bill was circulated by the Ministry of Women and Child Development for public feedback in 2007. The current Bill establishes a framework to be followed by all employers to address the issue of sexual harassment.
The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.
Prohibition of Sexual Harassment at the Work Place
- Sexual harassment is defined to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature.
- The Bill prohibits sexual harassment at the work place which may include promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems.
- The Bill defines a work place to include all organizations, and any place visited by an employee during the course of work. It covers every woman at the work place (whether employed or not) except a domestic worker working at home. It defines employer as the person responsible for the management, supervision and control of the work place.
Duties of the employer
- The Bill assigns certain duties to each employer. These include (a) providing a safe working environment; (b) constituting an Internal Complaints Committee and conspicuously displaying the order constituting the Committee; (c) undertaking workshops and training programmes at regular intervals for sensitizing employees; (d) providing assistance during an inquiry; and (e) initiating action against the perpetrator.
Structure for redressal of complaints
- Every employer is required to constitute an ‘Internal Complaints Committee’ at all offices and branches with staff strength of 10 or more employees. Members of the committee shall include a senior woman employee, two or more employees and one member from an NGO committed to the cause of women. A member of this Committee may not engage in any paid employment outside the duties of the office.
- A ‘Local Complaints Committee’ is required to be constituted in every district. An additional ‘Local Complaints Committee’ shall also be constituted at the block level to address complaints in situations where the complainant does not have recourse to an Internal Complaints Committee or where the complaint is against the employer himself.
- The ‘Local Complaints Committee’, to be constituted by the District Officer, shall include an eminent woman as the Chairperson, a woman working in the area, two members from an NGO committed to the cause of women, and a Protection Officer appointed under the Protection of Women from Domestic Violence Act, 2005.
- At least 50 percent of the nominated members in any Internal or Local Committee must be women.
Procedure for filing complaints and initiating inquiry
- An aggrieved woman may complain to the Internal Committee. In the absence of such a committee, she may file a complaint with the Local Committee. All complaints must be in writing. The complainant may also pursue other remedies, including filing a criminal complaint.
- The Committee shall provide for conciliation if requested by the complainant. Otherwise, the Committee shall initiate an inquiry.
Penalties and appeal
- If the allegation is proved, the Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act. In addition, it may provide for monetary compensation to the complainant.
- If the allegation is proved to be false or malicious, the Committee may recommend action against the complainant. However, action may not be taken against a complainant merely on the inability to substantiate a complaint or provide adequate proof.
- Appeals against the recommendations of either Committee shall lie with the courts.
- Penalties have also been prescribed for employers who fail to comply with the provisions of the Act. Non-compliance shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration required for carrying on the business.
PART B: KEY ISSUES AND ANALYSIS
Feasibility issues in the composition of the Internal Complaints Committee
Constitution of an internal committee at each administrative unit
The Bill requires that every office or branch with 10 or more employees constitute an Internal Complaints Committee. This requirement differs from the one proposed in the draft Bill circulated by the National Commission for Women (NCW) in 2010.2 The NCW draft Bill prescribed that if units of the work place are located at different places, an Internal Committee shall be constituted ‘as far as practicable’ at all administrative units or offices. A similar requirement was laid down in the 2007 draft Bill circulated by the Ministry of Women and Child Development.3
NGO representation in Internal Committees
Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country with 10 or more employees needs to have one such person in the Committee. As per the Economic Census 2005, there are at least six lakh establishments that employ 10 or more persons.4 There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available.
Bar on engagement in additional paid employment
No member of the Internal Committee is allowed to engage in any paid employment outside the duties of her office. This implies that even the external person in the Committee (who is with an NGO) may not hold any other part-time employment. It is not clear why this condition has been prescribed.
Powers of a civil court
The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. The composition of the Internal Committee does not require any member to have a legal background. Moreover, the Bill does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge.
Ambiguous guidelines for the constitution of the Local Complaints Committee
Two different bodies are called ‘Local Complaints Committee.’ The Bill provides that every District Officer shall constitute a Local Complaints Committee in the district. It also prescribes that an additional Local Complaints Committee shall be constituted at the block level to address complaints in certain cases.
The jurisdiction and functions of these committees have not been delineated. It is also unclear whether the block level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases.
Availability of Protection Officers
The Bill prescribes that a Protection Officer (PO), appointed under the Domestic Violence Act, 2005, shall be a member of the Local Complaints Committee. These Local Committees shall be established at the district level and may also be set up at the block level.
There is wide variation across states in the number of POs appointed per district.5 For instance, Maharashtra has appointed an average of 98 POs per district. Bihar, on the other hand, has appointed one PO for every two districts. This could lead to unavailability of POs in some areas for appointment to the Local Complaints Committees.
Scope for misuse of some provisions
Punishment for false or malicious complaints
The Bill provides that in case a committee arrives at a conclusion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. The clause also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant.
Though there may be merit in providing safeguards against malicious complaints, this clause penalises even false complaints (which may not be malicious). This could deter women from filing complaints. Recent Bills such as the Public Interest Disclosure Bill, 2010 (commonly known as the Whistleblower’s Bill), penalise only those complaints that are mala fidely and knowingly false.6 The National Advisory Council (NAC) has recommended that the entire clause be removed as it might deter victims from seeking protection of the proposed legislation.7
Exclusion of domestic workers
The definition of ‘employee’ specifically excludes ‘domestic workers working at home’. The draft Bill circulated by the Ministry in 20073 and that circulated by the NCW in 2010,2 both included this category of employees in the definition.
The NAC recommendedthat the Bill should be applicable to domestic workers as these employees, ‘especially live-in workers, are prone to sexual harassment and abuse, without access to any complaint mechanism or remedial measures.’7 However, the government stated that ‘it may be difficult to enforce the provisions of the Bill within the privacy of homes and it may be more practical for them to take recourse to provisions under criminal law.’8
Sexual harassment is a form of illegal employment discrimination in many developed countries including the US, UK and the European Union countries.9 In these domains, the definition of sexual harassment includes employer-employee relationship as well as a hostile work environment. This is similar to the current Bill. However, those laws differ in one important aspect, in that they are gender neutral. This Bill provides protection only to women, and not to men.
. Vishaka and others V. State of Rajasthan and others [1997 (6) SCC 241]
. Revised Draft Bill, ‘The Prohibition of Sexual Harassment of Women at Workplace Bill, 2010’, National Commission for Women, http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf
. Draft Bill, ‘The Protection of Women against Sexual Harassment at Workplace Bill, 2007’, Ministry of Women and Child Development, http://wcd.nic.in/protshbill2007.htm
. 5th Economic Census (2005), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/index_6june08.htm
. ‘Agenda No. 7 Review of implementation of Protection of Women from Domestic Violence Act, 2005’, Ministry of Women and Child Development, June 16, 2010, http://wcd.nic.in/agenda16062010/agenda_16062010_item7.pdf
. Clause 16 of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010
. Press release, National Advisory Council, January 10, 2011, http://nac.nic.in/press_releases/10_january_2011.pdf
. Rajya Sabha unstarred Question 3706, answered on December 13, 2010
. The Civil Rights Act of 1964, United States; Sex Discrimination Act (1975) and Employment Rights Act (1996), United Kingdom; Sexual Harassment in the Workplace in EU Member States, Government of Ireland, 2004
Tonusree Basu Rohit Kumar
DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it.
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Related news articles
THE HINDU / NEW DELHI
Three pronouncements made on three consecutive days this month by the Supreme Court of India have brought relief to different groups of economically and socially deprived people. The beneficiaries include children sold out by poor parents to work in circuses as child labour; young men and women determined to get married crossing caste barriers and harassed for that very reason by ‘khap panchayats’; and the hungry poor across the country denied their right to food, even as thousands of tonnes of food grains rot in government godowns.
Interestingly, the media, by and large, have been playing a proactive role in bringing the issues on to the public agenda. Daily newspapers and magazines have published several articles about hundreds of children, mostly girls, who were brought to India from neighbouring countries, especially Nepal and Bangladesh, to work in circus companies that have proliferated across the country. The living conditions were inhuman, resembling slavery. Thanks to some dedicated NGOs working in India and Nepal, the Indian media have exposed the trafficking in girls, who end up being exploited and sexually abused by circus owners and their men. This is the pathetic life of girls bought for paltry sums of money from poor parents not only from adjacent countries but also from Indian States such as Uttar Pradesh and Bihar. This is the price these hapless children and their families pay to keep our children laughing. BBC News and international news agencies have also reported on the girls’ sufferings, while performing high-risk high-wire programmes.
Two decades ago, the hundreds of circus companies were in deep trouble owing to a gradual decline in public patronage. They sought State help to keep them going and save their performers and the emaciated animals that trek with them from camp to camp. The emergence of a large middle class with real purchasing power restored the economic health of the circuses, which have become one of the favourite entertainers for middle class children.
A rights-based judgment
In a rights-based judgment delivered on April 18, the Supreme Court banned the employment of children in circus companies. The court directed the Central government to take immediate steps to rescue the suffering circus workers and arrange for their rehabilitation. Passing orders on a petition filed by the Bachpan Bachao Andolan, an organisation working for children, a Division Bench comprising Justice Dalveer Bhandari and Justice A.K. Patnaik directed the central government to issue suitable notifications prohibiting employment of children in circuses within two months, in order to implement the fundamental right of children under Article 21-A of the Constitution, which guarantees the right to “free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” The Bench asked the government to raid all circuses and liberate children and check violation of their fundamental rights.
Another Supreme Court judgment delivered on April 19 was highly critical of the caste system and declared ‘khap panchayats” illegal. They were instrumental, the court observed, in encouraging honour killings and indulged in other atrocities against boys and girls married or tried to marry from outside their castes. The Bench, comprising Justice Markandey Katju and Justice Gyan Sudha Misra, wanted the government to ruthlessly stamp out the barbaric practice. A significant aspect of the judgment was that it directed the administrative and police officials to take strong steps to prevent such atrocious acts as honour killing. The court also asked for departmental action against officials who failed on this score.
It may be recalled that when States such as Haryana and Rajasthan reported a series of honour killings a few months ago, the media went all out against the spread of the crimes and the failure of the State police and administration to arrest it. When the Central government floated the idea of a ban on khaps, even Chief Ministers and ex-Minister sought to scuttle the move.
No less important is the serious concern expressed by Justices Dalveer Bhandari and Deepak Verma over the increasing number of starvation deaths in the country. They were hearing petitions relating to the streamlining of the public distribution system (PDS). The Supreme Court has once again questioned the approach of the Central government to the eradication of malnutrition and its failure to arrest starvation deaths in some areas. Justice Bhandari also questioned the Planning Commission‘s estimate that 36 per cent of the population was below the poverty line, which was inconsistent with the claim of several States, including Congress-ruled States, that the percentage was much larger. The judge wondered how the Planning Commission could fix a per capita daily income of Rs. 20 for urban areas and a per capita daily income of Rs. 11 for rural areas to determine BPL status. He also wanted the Deputy Chairman of the Planning Commission to file a detailed affidavit within a week “because the entire case rests on your figures.”
Progressive voices, including economists, scientists, and social activists, have been articulating in the media the demand for a universal PDS. When the National Advisory Committee was about to endorse it, the government ruled it out once again. At a time the Supreme Court has stepped up the pressure for a pro-people solution, a well-informed and decisive media push will certainly help.
- Halt honour killings, rules SC (shaktivahini.wordpress.com)
- India bans child circus workers (bbc.co.uk)
- India court orders circuses to stop employing kids (sfgate.com)
- India court orders circuses to stop employing kids (seattletimes.nwsource.com)
- Stamp out khap panchayats: court (indialawyers.wordpress.com)
19 April 2011/ PTI News
In CRIMINAL APPEAL NO._958__of 2011 Arumugam Servai Vs State of Tamil Nadu ( Respondent) The Bench of Justice Markandey Katju and Justice Gyan Sudha Mishra has passed a order on the Honour Killings being reported across India. The bench stated that in recent years `Khap Panchayats’ (known as katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh’s case (supra), there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.
Hence, we direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to
be directly or indirectly accountable in this connection.
Copy of this judgment shall be sent to all Chief Secretaries, Home Secretaries and Director Generals of Police in all States and Union Territories of India with the direction that it should be circulated to all officers up to the level of District Magistrates and S.S.P./S.P. for strict compliance. Copy will also be sent to the Registrar Generals/Registrars of all High Courts who will circulate it to all Hon’ble Judges of the Court.