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)
Prabha Sridevan in THE HINDU
|Section 15 of the Hindu Succession Act that determines the order of succession in the case of a Hindu woman who dies intestate should be amended for, it reflects an entrenched system of subjugation of women.|
The family that had sent a young woman back to her parents after her husband’s death, surfaced when she died. There was a contest between her mother and the husband’s sister’s sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”
“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “ The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women‘s Rts. L. Rep. 175 (1982), adding that “women’s equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”
This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.
The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.
If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman’s horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”
Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband’s family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.
Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father’s heirs, and any property she inherited from her husband or father-in-law will go to the husband’s heirs.
The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”
In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.
Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”
A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband’s heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.
Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts ( Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father ( Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).
In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.
In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband’s sister’s children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents’ support. These are the ground realities.
Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.
Justice Bhattacharjee’s criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man’s estate and the woman’s estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.
Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.
Professor Williams’ article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.
(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)
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
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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.
KUMKUM SEN IN THE BUSINESS STANDARD
It’s been more than fifteen years since the Supreme Court passed its judgment in the Vishaka Vs. State of Rajasthan (Vishaka), and ten since the Medha Kotwal case. Vishakha constitutes the Indian Judiciary’s first pronouncement on gender justice in the workplace.“Harassment”was interpreted to include physical contact and advances, sexually coloured remarks, any physical verbal/non verbal overture or a demand/request, as being indicative, and not comprehensive. The Court prescribed certain guidelines and norms as representing the minimum standards to be followed by employers and other responsible persons in containing and dealing with harassment, bearing in mind that neither civil or penal laws provided adequate protection, till such time a law was enacted. Certain acts of sexual harassment constitute criminal offences, as under section 209 of the Indian Penal Code for performing an obscene act or utterance, and also under Sections 354 and 509 for outrage of modesty of women. But these provisions can not address the various insidious forms sexual harassment can take, and more important, the redressal is not the organisation’s responsibility.
In the absence of indigenous jurisprudence, the Supreme Court relied heavily on the International Convention of All Forms of Discrimination Against Women (CEDAW) which India had recently signed and ratified, and the Protection of Human Rights Act, 1993. However the Government took no interest in pushing the law.
On the other hand, various corporations, multinationals as well as domestic, particularly listed companies, which are subjected to higher degrees of transparency and disclosures, established their internal systems, including grievance cell and a Committee with a senior woman employee as the Chair. Welfare and safety requirements of the women in the work place, such as late night transport, night were firmed up after the murder of a BPO female employee by the cab driver. Instances of complaints and incidents usually do not escalate beyond the HR Department and the Committee. To the limited extent I have been involved as a legal adviser, such issues are usually effectively resolved, or any one party or both move out with or without a gentle nudge from the management. Otherwise, there is complete opacity, particularly in the fast growing services sector, where women are a significant part of the work force, in the implementation of all or any of the Vishakha safeguards, as there is no threat in non-compliance, in the absence of a law. Even then several complaints have reached the High Courts, and the victims have secured justice, notably in the Tata Metallic and Apparel Export cases. More often, the breach has been in the constitution and functioning of the Committee and this was exposed in Medha Kotwal’s Petition before the Supreme Court, wherein on the revelation that the Government was the worst offender, the Court called upon the Central & State Governments and various professional bodies, such as the Bar Council of India to disclose the measures taken by them.
The Bill, introduced in 2010 and referred last month to a Standing Committee, has finally moved, notwithstanding enormous resistance. It.has its critics, but is well drafted., and endeavours to include every type of victim in its definition of an “Aggrieved Women”, who does not have to be an Employee to qualify and to bring within its ambit , students, research scholars, patients. “Employee” has been amplified to include trainees, apprentices, contract and adhoc workers. Perhaps inclusion of “service provider” and “customer” would have provided a more inclusive connotation. Contrary to media reports, the Bill specifically includes domestic worker and “dwelling house” belying the popular impression that this sector has been ignored.
“Workplace” definition deals with every kind of environment which would qualify, in the private and government sectors as well as dwelling places, vehicles, aircrafts, different destinations, hotels in trying to capture all possible locations where harassment having a nexus with workplace or the victim can be perpetrated. The acknowledgement of this concept is critical in the context of the diversity of locations where harassments are perpetrated, rape of a female complainant in a police station being an example.
Interestingly “sexual harassment” is not defined. Section 3 of the proposed bill describes this to include unwelcome sexually determined behaviour, and the various items conceptualised in Vishakha, making it clear that is not limited to any assurance of preferential or threat of detrimental treatment, conduct which is humiliating or inducive to a hostile and unhealthy work environment.
While laws should aim at obliterating sexual harassment and the mindset that evokes such behaviour, panic levels should not be escalated. Every light flirtation or a wolf whistle is not necessarily an act of sexual harassment. Every environment and not all classes of harassment cannot be subject to a uniform policy.
What doesn’t make headlines is the gender neutral subtle and non-violent harassment in the workplace, unrelated to sexual expectations or quid pro quo, which can be based on colour, caste, religion, nationality, age, political affiliations, and the aggression is manifested by way of belittling observations, persistent criticism of work, withholding resources. Till such time the law makers and the Government acknowledge this,,,the victims of such harrasment are without recourse.
Kumkum Sen is a partner at Bharucha & Partners Delhi office and can be reached at firstname.lastname@example.org
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Notwithstanding many legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies.
Vineet Kapoor in The Tribune
VIOLENCE in the private sphere of the family and the victimisation of women in the intimate relationships has acquired legitimacy and urgent attention in the legal discourse. Starting from its recognition as a crime in the last 40 years, the issue is now actively advocated by women’s rights group as an important concern of their human rights.
This recognition identifies violence in the private sphere not merely as a crime, but locates the context of this crime into the systemic process of structural subordination of women in a gendered social order where violence reconfirms and reproduces those gender hierarchies through fear, which produce this violence in the first instance.
That is why the criminal justice response is not similar to other crimes happening in the public sphere. There is a gap between the normative and legal framework on the one hand and the accessibility of justice and law enforcement on the other. Though progressive and social justice based laws have been enacted for the emancipation of the subordinated people and groups, the laws related to domestic violence remain victim to gaps.
The central context of the problem of domestic violence and women’s access to justice is that despite a proliferation of laws, domestic violence is still perceived as less condemnable than other forms of abuse. Locating violence against women as denial of human rights raises fundamental concerns for the women’s access to justice and how the legal order of any country addresses this issue.
The context of subordinated social existence of most women, when seen through a human rights angle, depends on how best a domestic legal order responds to these expectations (Dairam: 2004). Despite a proliferation of laws in this direction, there is a lack of proper law enforcement in case of domestic violence reflected by an international phenomenon cutting across different countries.
This phenomenon confirms to a gendered social order of subordination in which women exist and struggle against their victimisation. The high stakes the Indian Constitution attaches to the question of equality, by enshrining it as a fundamental right, whose mandate covers the issue of non-discrimination on grounds of sex, gives much credence to human rights readings of legal discourse and women’s rights in India.
The women’s emancipation and rights realisation on the ground, however, forms a different context. The brutalised and subordinated existence of a large proportion of women within their social environment gives formidable challenge to visions of equality and human rights which inform most of the ‘progressive’ laws designed to promote social justice and social change.
The evaluation of women’s access to justice gains primacy when we find that the progress in law has not often matched with the progress in providing justice to women.
Some scholars working on women’s human rights maintain that certain sections of society may encourage a culture of violence due to the socially constructed view of women as flawed and wayward creatures who require chastisement for their own and social good. The encouragement may stem from a dominant focus on male self-identity, using violence against women to define and differentiate men from the inferior ‘other’.
It was until late 1960s that the problem was seriously scrutinised and the public concern started mounting against it internationally. The issue of domestic violence came under the sharp focus of second wave feminism from 1970s onwards when the feminists attacked the patriarchal legitimacy of violence and talked of women’s rights to security within the family and their claims to equality and liberty within the private sphere.
They argued that “personal is political” and that the inner world of family should be open to public scrutiny so that the inequalities and power relations within the family could be made visible.
Since the popular conception of violence at home did not merit much consideration as a punishable offence, the feminist movement, aimed at attaining substantive equality for women, regarded the domestic violence as one of the chief disabilities for the promotion of women’s rights and their claims to equality. Women’s rights movement struggled hard to campaign for the inclusion of various manifestations of domestic violence as a crime within the criminal justice system to get law on the side of the women in their struggle for justice. The feminist movement exerted influence in extending the reach of criminal law within the insulated world of private sphere manifested by family and the home.
By 1980s and 1990s, many countries legislated for inclusion of domestic violence within the criminal law while most countries still did not legislate and were slow to respond. Most countries which did not legislate against domestic violence as a distinct crime continue to treat it under its criminal assault laws.
There was growing realisation since late 1980s that domestic violence needs special attention and is closely associated with women’s rights. Due to the growing influence and impact made by the women’s movement between 1970s and 1990s, the issue of domestic violence attained a primacy in at least the formal stance taken in public policy and criminal justice system of many countries.
The local women’s movement in many countries, inspired and energised by the international women’s human rights movement greatly contributed in exerting pressure on their respective governments to change their policy stance especially in the criminal justice system to comply with the ongoing international standard setting.
The international developments in this direction gave strength to the demands from the women’s rights groups in India. The recognition of domestic violence as a crime in India was brought about in the early 1980s after a sustained campaign by feminist groups and women activists all over the country. There was a huge demand for tackling the criminalisation of dowry death and domestic violence which lead to the enactment of Section 498A in the IPC in 1983, Section 304B in 1986 and corresponding provisions in the Indian Evidence Act, 1872.
The criminalisation of domestic violence in the form of Sections 498A and 304B (dowry death) were considered significant developments in law in correcting historical, legal, and moral disparities in the legal protections afforded to abused women. It sought for the first time to bring the issue of domestic or family violence out of the protected private realm of the family and into the public domain in India.
Despite these legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies done by several organisations and NGOs.
There are problems in access to justice and implementation of these laws. The police often exercises discretion in avoiding arrest while responding to domestic violence incidents and emphasises on mediation and conciliation.
Public prosecutors fail to actively pursue cases of domestic violence under Section 498A, as often women turn hostile during the prosecution and agree to drop the charges. Sentences tend to be less serious for those convicted of domestic violence.
The result of these processes has been a higher dismissal rate for domestic violence cases at the prosecution stage, compared to other violence cases, and less serious sentences. The passing of the specialised legislation in October 2006, called The Protection of Women from Domestic Violence Act, is a significant development in this direction as it provides the much-needed civil law remedies to help victims of domestic violence.
These criminal laws and the civil law provisions now make an impressive set of laws designed to deal with the domestic violence and to provide justice to the victims of domestic violence. Despite this, the question that arises is how far these laws are being used by the victimised women.
The delivery of these laws within a gendered social order raises a number of concerns regarding the human rights of victimised women who exist in a position of structural subordination, which leads to formidable barriers in access to justice.
As a background to discuss women’s access to justice in case of domestic violence, it is useful to first discuss the domestic violence as an issue of women’s human rights. Violence against women is also an issue of the women’s human rights as the systematic perpetration of violence on women is a result of the subordinated position of women in society which in itself raises questions on the right to equality based on grounds of sex.
Since violence against women mostly occurs in the private sphere of the family, the human rights of women as an individual need to be considered while dealing with policy issues attached to domestic violence. The human rights tenets give credence to the responsibility of the state. Therefore, the role of the state in providing for need-based policy provisions for access to justice for women need to be urgently addressed.
As for policy, the government will have to consider that the women’s lack of access to justice in cases of domestic violence remains victim to the structural issues of women’s subordination which gets reflected in the delivery of justice and its distance from the victim, throwing challenges at law, justice and governance in the country. How this law reaches women and how and in what context it is delivered would determine whether women have access to justice as equal citizens.
THE LAW: ITS SCOPE & DIMENSIONs
- The Protection of Women from Domestic Violence Act, 2005, which came into force from October 26, 2006, is the first significant attempt to recognise domestic abuse as a punishable offence.
- Its provisions have been extended to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.
- Of all forms of criminal behaviour, domestic violence is among the most prevalent and among the least reported. One reason for this anomaly is that till 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited.
- Earlier, there was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser. Relationships outside marriage were not recognised.
- Women and children are the primary beneficiaries of this Act. Section 2(a) of the Act will help any woman who is or has been in a domestic relationship with the ‘respondent’ in the case.
- Children are also covered under the Act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.
- The law recognises live-in relationships. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him. It also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in Law
The writer, a senior IPS officer of Madhya Pradesh cadre, specialises on human rights. He is the Assistant Inspector-General of Police (Training),Bhopal
In an unusual order, the Supreme Court let off three gang rapists after they claimed a ‘compromise formula’ with the victim and agreed to pay her a fine of Rs 50,000 each for their offence. The judgement is reproduced here. Readers are requested to send their comments.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 749 OF 2007
STATE OF PUNJAB …..Respondent (s)
O R D E R
The facts of the case have been set out in the judgment of the High Court and hence we are not repeating the same here, except where necessary. The prosecution case is that on 03.03.1997 at about 6.30 A.M. the prosecutrix was coming to her house after answering the call of nature. The three appellants caught her and took her into a house and raped her and beat her. After police investigation the appellants were charge sheeted, and after a trial were convicted under Section 376 (2) (g) and Section 342 I.P.C. and sentenced to 10 years R.I. and to pay a fine of Rs.1,000/- each. The sentence was upheld by the High Court, and hence this appeal.
Admittedly the appellants have already undergone, about 3 and ½ years imprisonment each. The incident is 14 years old. The appellants and the prosecutrix are married (not to each other). The prosecutrix has also two children. An application and affidavit has been filed before us stating that the parties want to finish the dispute, have entered into a compromise on 01.09.2007, and that the accused may be acquitted and now there is no misunderstanding between them.
Section 376 is a non compoundable offence, However, the fact that the incident is an old one, is a circumstance for invoking the proviso to Section 376 (2) (g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision, as we think that there are adequate and special reasons for doing so.
On the facts of the case, considering that the incident happened in the year 1997 and that the parties have themselves entered into a compromise, we uphold the conviction of the appellant but we reduce the sentence to the period of sentence already undergone in view of the proviso to Section 376 (2) (g) which for adequate and special reasons permits imposition of a lesser sentence. However, we direct that each of the appellant will pay a sum of Rupees 50,000/- by way of enhancement of fine to the victim envisaged under Section 376 of the IPC itself. The fine shall be paid within three months from today. In the event of failure to pay the enhanced amount of fine it will be recovered as arrears of land revenue and will be given to the victim.
The appeal is disposed off.
[GYAN SHDHA MISRA]
NEW DELHI; FEBRUARY 22, 2011
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A bench of justices Markandeya Katju and Gyan Sudha Mishra reduced to three and half years the 10-year sentence awarded to three gang rapists who took the plea that both the convicts and the victim were now happily married to different people and “wanted to live peacefully.”
Under Section 376(G) of the IPC, the minimum sentence to the gang rapists is 10 years, which may extend even to life imprisonment. Though Justice Gyan Sudha Mishra was not initially inclined to compound (close the case by way of fine)the matter as it was not a compoundable offence, the apex court later relented and agreed to let them off provided the convicts paid Rs 50,000 each to the victim.
The apex court ordered that ” the amount shall be paid to the victim within three months”, failing which the same shall be recovered under the Land Revenue Act from the trio and paid to the victim. In this case, the convicts Baldev Singh, Gurmail Singh and Hardeep Singh, all said to be agricultural farmers, had gangraped the victim in Punjab’s Ludhiana district on March 5, 1997.
The sessions court had awarded 10 years imprisonment to the convicts. The Punjab and Haryana High Court had dismissed the convicts’ appeal, following which they appealed in the apex court.
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