Expeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping. He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.
While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it. He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.
The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:
The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.
Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.
Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.
VIOLATIONS UNDER THE PNDT ACT AND THE PENALTIES
THE PNDT ACT
Non-availability of copy of the PNDT Act in the registered centre
Non- Display of registration certificate in the centre.
Non-Display of Board in the premises in English and Local Language that ‘Disclosure of the sex of the foetus is prohibited under law’.
Rule No. 17(2)
Rule No. 6(2)
Rule No. 17(1)
|For Minor Offences:
Case may be launched in the court of JMIC u/s 25 of the Act. Punishment may extend to 3 months or with fine, which may extend to Rs. 1,000/-for first offence. Additional fine upto Rs. 500/- per day for the period of contravention for subsequent offence.
Show cause notice u/s 20(1),(2) for temporary suspension of registration.
Under Section 20(3)
|2. Advertisement relating to pre-conception and pre-natal determination of sex.||Section 22(1), (2).||U/s 22(3) of the PNDT Amendment Act, imprisonment which may extend to 3 years and with fine which may extend to Rs. 10,000/-.
Case is to be launched in the court u/s 28 of the Act
|3. Unregistered centres. It includes all such centres where any portable equipment capable of detecting sex before or after conception is used. The owner of such equipment may be having a registered facility somewhere else.||Section 3||Any such equipment has to be sealed and seized by the Appropriate Authority concerned. He/She may
Launch the case in the court u/s 28 of the Act.
Register such centre after receiving 5 times the registration fee as penalty and after taking a undertaking as per the PNDT Rules-Rule 11(2).
|4. Irregularities in registered centre
Owner/employee conducting the ultrasonography not qualified.
More ultra sound Machines /equipments where
as less number register.
Minor deficiency in record
Section 3(2) and Rule 3(b).
Under Rule 4.6 and as per Form ‘A’. Sr. No. 8
Under rule 9.
|The Appropriate Authority or person authorized thereupon may:
Issue show cause notice u/s 20(1)(2) of the Act and with the endorsement of the Advisory Committee, may suspend (for a reasonable period) or cancel the registration, as per the magnitude of the violation.
May take Suo Moto action u/s 20(3) and suspend the registration without issuing show cause notice.
1.During the period of suspension of registration, the equipment needs to be sealed and signed and kept with the owner. After cancellation of the registration, the equipment has to be sealed and seized.
Any body aggrieved by the above decision may appeal to the higher-level Appropriate Authority within 30 days of the action. The appeal shall be disposed of by the higher authority within 60 days of its receipt.
Irregularities in record keeping as per revised form ‘F’ are a major offence.
|Section 4, 29 and Rule-9.||Contravention (a major offence) of provision of section 5 and 6 of the Act and punishable U/s 23(1) of the PNDT Act.|
|6. Sex Selection||Section 3A. 4(5). 6 read with section 2(0)||Violation of section 5 and 6 of the Act and punishable u/s 23 of the Act.|
1. All offences under the Act are cognizable, non-bailable and non-compoundable (Section 27).
Even a case has been registered by the police, no court shall take cognizance except the complaint has been filed by the AA or by the person/group who had served a legal notice of 15 days to the AA already (section 28).
Action u/s 20 and filing of criminal complaint u/s 28 can go simultaneously (section 20).
Compulsory Registration of Marriages The Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denomination should be made compulsorily registerable in their respective States where such marriages are solemnized.
Giving this information in written reply to a question in the Rajya Sabha this week, Shri Salman Khurshid, Minister of Law & Justice, said that it is not correct to say that the process of registration of marriages is cumbersome. The process for compulsory registration of marriage is worked out by respective State Governments and the Union Territory Administrations by making suitable legislation/ rules or by amending existing legislation/ rules on the basis of the situation obtained in their respective territories to make the process simple and easier. Hence, no separate action by the Central Government is considered necessary, Shri Khurshid said.
Dr. Justice A. R. Lakshmanan IN THE HINDU
India has one of the largest road networks in the world — 3,314 million km — consisting of national highways, expressways, State highways, major district roads, other district roads and village roads. About 65 per cent of freight and 86.7 per cent passenger traffic is carried by the roads. The motor vehicle population has recorded a significant growth over the years. Two-wheelers and cars (personalised mode of transport) constitute more than three-fourths of the motor vehicles.
According to a Maruti Suzuki weblog, more than 1,00,000 Indians are dying every year in road accidents. More than a million are injured or maimed. Many years ago, a study found that road accidents cost the country some Rs.550 billion every year.
A recent survey by the Central Road Research Institute shows that more than 90% pedestrians feel unsafe while crossing the roads, while they comprise more than 50% of road victims.
Is it due to a lack of apt provisions in our law that travel through Indian roads is a tryst with death?
All the more so, because despite the Supreme Court’s directions to the police and all other authorities entrusted with the administration and enforcement of the Motor Vehicles Act, 1988 and generally with the control of traffic in regard to traffic safety, reckless driving by government buses has not diminished.
In view of the above, I, as Chairman of the Law Commission of India, prepared a Consultation Paper on this important subject and suo motu made a recommendation to the Government of India through the Law Ministry and the Report No.234 is pending with the Ministry. In this article, I have dealt with the present Law of India IPC 1860, viz., Sec.279, 304A, 336, 337 and 338, the Motor Vehicles Act, 1988, the Road Traffic Act, 1988 and the Road Regulations 1989.
The then Law Commission also submitted its report (42nd Report) in June 1981 and examined the provisions of the IPC.
Any State government may, after previous publication, by notification make rules for the purpose of carrying into effect the provisions/rules, etc., in different areas of the State. Such rules may provide for
- the removal and the safe custody of the vehicles including their loads which have broken down or which have been left standing or have been abandoned on a highway;
- the determination, maintenance and management of parking places for the use of vehicles and animals and the fees, if any, which may be charged for their use;
- prohibiting the use of footpaths or pavements by vehicles or animals;
- prohibiting or restricting the use of audible signals at certain times or in certain places;
- regulating the loading of vehicles and in particular, limiting the loads carried in relation to the size and nature of the tyres fitted;
- a right of way for ambulances and fire brigade vehicles;
- the control of animals likely to frighten other animals or pedestrians;
- the control of children on highways;
- prohibiting the riding by more than two persons at the same time on cycles other than cycles designed for the purpose;
- prohibiting the riding of more than two cycles abreast;
- limiting the age of drivers of vehicles;
- regulating the driving of vehicles and animals at night; and
- regulating the use of highways by pedestrians. The State government may, after previous publication, by notification make rules regulating the construction, equipment and maintenance of vehicles used on highways and public places. Different rules may be made for different areas of the State.
The rules may be made under this Section governing any of the following matters either generally or in respect of public vehicles of a particular class or description or in particular circumstances, namely:
- the width, height and length of vehicles;
- the size, nature and condition of wheels and tyres;
- lamps and reflectors;
- warning devices;
- the inspection of vehicles by prescribed authorities;
- regulating the particulars exhibited on vehicles and the manner in which such particulars shall be exhibited.
The State government may also make rules for regulation of the use of public vehicles, viz., the issue, renewal or cancellation of driving licences, issue of permits etc.
- the documents, plates and marks to be carried by public vehicles, the manner in which they are to be carried and the language in which such documents is to be expressed;
- the badges and uniforms to be worn by drivers;
- the fees to be paid for permits, driving licences, duplicate copies of permits or driving licences, plates, badges, and appeals preferred before statutory authorities;
- the limiting of the number of public vehicles or public vehicles of any specified class or description, for which permits may be granted in any specified area, or on any specified route or routes;
- the fixing of maximum or minimum fares or freights;
- the maximum number of passengers or the maximum quantity of goods that may be carried in a public vehicle;
- the conditions subject to which passengers, luggage or goods may be carried in a public vehicle;
- the construction and fittings of and the equipment to be carried by public vehicles, whether generally or in specified areas or on specified routes; and
- the safe custody and disposal of property left behind in pubic vehicles;
Traffic personnel are not controlling traffic and discharging their duties effectively. People, whether educated or illiterate, have scant respect for traffic rules and regulations. The traffic personnel should give immediate attention to the following and take effective steps to enforce discipline in regard to:
- Non-observance of traffic rules;
- Jumping the red light;
- Crossing the speed limit;
- Driving without valid licence;
- Driving under the influence of liquor/drugs;
- Driving while talking on the mobile;
- Driving without helmet;
- Overloading of passengers in autos/share autos;
- The driver’s seat is occupied by a minimum of three persons in share autos/other autorikshaws and vehicles are parked haphazardly. Over-speed of scooter/motorcycle, crossing the yellow line or violating traffic rules;
- An entire family (minimum four persons) riding a scooter/motorcycle without realising that this is a traffic offence and such travel is at the risk of their lives;
- Government buses, no rule or regulation. Parking them at any place;
- One-way traffic signal/total violation;
- Suffocating jam-packing of stage carriages;
- Confiscation of vehicles fitted with LPG cylinders which are meant for home kitchen, arresting and prosecuting the owners/drivers of such vehicles;
- Weigh bridges should be installed at all entry and exit points to and from a city as well as toll collection centres to keep in check overloading of vehicles;
- Driving schools to impart training at a nominal fee by the government;
- Excess collection of fares by omnibuses during festival seasons. Stringent measures to be taken forthwith to cancel the licence of such offenders;
- There should be no exemption to Government vehicles from insurance against third party risk. Sec. 146 of the Motor Vehicles Act should be amended for the purpose;
- Enormous increase and growth in the population of vehicles in big cities;
- Easy availability of driving licence (reason is obvious);
- Increasing tendency of consumption of liquor while driving;
- There is pride/ego involved in fast driving of costly cars, with a sense of false status, by the children of rich people. (Refer BMW cases);
- Checking/setting and enforcing blood alcohol concentration limit for drivers with random breath testing at sobriety checkpoints;
- Speedbreakers affect traffic flow and are safety hazards, if not properly constructed;
- Speed control
- Entry restrictions
- Separate lane for bus and cycle, etc.
- The situation in respect of State roads is still worse. The private sector also needs to be involved in the maintenance of national highways/State highways.
- Octroi and sales tax barriers are to be done away with now that the VAT system has come into force in many States.
- Mobile court/mobile policing should be introduced round the clock and it should not be limited to peak hours.
- Digging of roads by various agencies like telephones/electricity/corporation causing inconvenience to roadusers.
- Driving in the wrong direction, breaching speed limits, jumping traffic lights are common violations.
- Need for recognised driving training schools
- Auto drivers/share auto drivers fleecing passengers at railway stations.
- Misbehaviour by auto/share auto drivers with poor passengers. Periodical training must be given to them by the police.
- Introduction of mini-buses.
- Steps to prohibit the use of pathways on either side of the road for running tea stalls, petty shops, vending fruits and vegetables, etc., should be implemented.
Measures to prevent road accidents may be preventive, precautionary and punitive. There is no denying that there is a need for improved road-watch, surveillance and detection, effective and holistic regulation of all kinds of traffic on the roads and proper deterrence. Roads are used not only by motorised transport but also by non-motorised transport as well as pedestrians. There is no comprehensive Central legislation to effectively and holistically regulate all kinds of traffic. The Motor Vehicles Act, 1988 is relatable to Entry 35 of the Concurrent List and the National Highways Act, 1956 is relatable to Entry 23 of the Union List. The subject matter of roads, traffic thereon, and vehicles other than mechanically propelled vehicles falls under Entry 13 of the State List and therefore, outside the purview of Parliament. The Seventh Schedule of the Constitution will be required to be amended for such comprehensive Central legislation. The Law Commission feels that there is a need for a comprehensive Central road traffic law.
As an important part of the enforcement measures, there should be compulsorily installed CCTV cameras at all vulnerable points to be determined by an expert committee to curb traffic violations.
There should be a vigorous campaign on the electronic media, including Doordarshan, All India Radio and private TV channels through regular programmes and debates, so as to create awareness among the general public of the imperative necessity to strictly follow traffic rules as well as highlight the consequences of rash and negligent driving.
As an important part of the enforcement measures, there should be established, through public-private partnership, recognised driving training schools in different parts of the country, equipped with simulators and obliged to follow properly devised driving training modules and impart training at a nominal fee.
As an important part of the enforcement measure, Rule 118 of the Motor Vehicles Rules, 1989, making it mandatory for the notified transport vehicles to be fitted with an irremovable or tamper-proof speed governor sealed with an official seal of the Transport Authority, should be enforced more vigorously. Government vehicles should not be exempted from insurance against third-party risk and Section 146 of the Motor Vehicles Act should be amended for the purpose.
(The writer is a former Judge of the Supreme Court of India, and former Chairman of the Law Commission of India. His email is: jusarlakshmanan@ gmail.com)
The ‘National Legal E-Library’ project of the Government is to be dedicated o the nation on 15 August 2011. Dr. M Veerappa Moily, the Minister of Law & Justice had proposed the need for the formulation of a ‘National Legal e-library’ for students and practitioners of Law on 6 December 2009, during his meeting with the vice chancellors of Law University and Colleges across India.
The scope of this program is creation and management of the ‘National Legal e-library’ for 933 schools in India, Bar Associations, Government Legal departments etc. and meet the needs of academic librarians, students, faculty and young practitioners. It aims to provide a practitioners view and a comprehensive understanding of core subject areas of law.
Technology tools that make the concept of E-Library indispensable:
RESULTS CLUSTERING : Familiarises new users with different classes of content by providing an instant, multi faceted analysis of distribution of hits in each result set.
FLEXIBLE DISPLAY AND OUTPUT OPTIONS : Inclusion of full featured tools that allow for printing, emailing and saving.
SMARTINDEXING TECHNOLOGY : Helps users reach the information they need by applying controlled vocabulary terms for several different taxonomies.
POWERFUL SOURCE SELECTION : Identify sources by type, language, topic, geography and other facets.
The project is likely to be implemented in three phases. In the first phase two comprehensive research platforms will be implemented across all law schools in India. In the second phase the services of the comprehensive research platform will be extended to the entire practitioner universe. Further, e-filing and Practice Management will be extended for all the courts in India in this phase. The third phase focuses on sustained usability and development of a comprehensive education development platform. This phase aims at creating a robust system of legal skill enhancement and development.
- Meeting of Consultative Committee on Law & Justice Discussions on E-Courts, Justice Delivery System, Law Commission Report (indialawyers.wordpress.com)
- Dr. Moily Addresses Round Table in St. Petersburg on ‘Legal Security of Business Transactions, Investments and Financial Instruments-New Challenges of the Global Crisis’ (indialawyers.wordpress.com)
- Recent Initiatives of the Government for Justice Delivery and Legal Reforms (indialawyers.wordpress.com)
- Moily promises ‘right to justice’ law (hindu.com)
The Government is taking various initiatives to improve justice delivery system in the country and for improving justice delivery and legal reforms and steps to reduce pendency in courts from 15 to 3 years by 2012. These are as under:
National Mission for Justice Delivery and Legal Reforms: The Government has ‘in principle’ approved setting up of National Mission for Justice Delivery and Legal Reforms. The National Mission would help implementing the two major goals of
(i) increasing access by reducing delays and arrears in the system
(ii) enhancing accountability at all levels through structural changes and setting performance standards and facilitating enhancement of capacities for achieving such performance standards.
The Law Minister has on 28th April 2011 personally written to the Chief Justice of the Supreme Court and the High Courts on the launching of a campaign mode approach for pendency reduction and filling up of vacancies in Subordinate & High Courts. The campaign will be from June-December, 2011 and after a review, will be extended for another 6 months.
Judicial Standards and Accountability Bill, 2010: To bring about greater transparency and accountability in the higher judiciary, the Government has introduced a Bill in the Parliament to lay down judicial standards, to enable declaration of assets and liabilities by the Judges, and to establish a mechanism to enable investigation and follow-up action into complaints against judges. The Bill has been referred to the Standing Committee on 1st December, 2010 and is presently under its consideration.
13th Finance Commission grant: With the objective of improving justice delivery, the Thirteenth Finance Commission (TFC) has recommended a grant of Rs. 5000 crore to be utilized over a period of five years up to 2010-2015. An amount of Rs.1000 crore has been released to State Governments in the year 2010-11. This grant is aimed at providing support to improve judicial outcomes. Many States have already formulated State Litigation Policies as per the requirement for further release of TFC grant.
National Litigation Policy : The Government has already announced a National Litigation Policy effective from 1st July, 2010 to to reduce government litigation in Courts so that valuable court time would be spent in resolving other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time from 15 years to 3 years.
ICT enablement of courts: The Government has implemented a central sector scheme for computerization of the District and Subordinate Courts (e-Courts project) in the country and for upgradation of the ICT infrastructure of the Supreme Court and the High Courts, at a cost of Rs. 935 crore for the first phase which will connect 14,249 courts in the country including video conferencing facilities.
Access to Justice for the marginalized section: Provision of legal aid enables the marginalized sections of the society in accessing justice. To strengthen Legal aid authorities a sum of Rs 200 crores had been provided under the TFC grants. The mission launched for release of under trial prisoners last year had appreciable results and is continuing. In the period 26 January 2010 to 31 May 2011, 562379 under trials have been released on bail, 77940 have been discharged, 68744 convicted, adding to a total of 709081 cases that have been disposed off. Software to trace cases of under trials by courts is also under consideration for integration into the e-courts software.
Gram Nyayalayas : The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram Nyayalayas, a new tier of courts, at the grass-root level for the purpose of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen. The Act came into force on 2 October 2009 and enables the State Governments to establish Gram Nyayalayas at Intermediate Panchayat levels. The Central Government provides assistance to the State Governments for establishment of Gram Nyayalayas(Rs. 18 lakhs/court) and Rs. 3.20 lakhs per court per annum for the first 3 years towards recurring expenses. About 144 Gram Nyaylalays have been set up(notified) in the States of Madhya Pradesh (89), Rajasthan (45), Orissa (1), Maharashtra (9), till date of which 47 are operational – 40 in Madhya Pradesh, 1 in Orissa, and 6 in Maharashtra. Out of the budgeted Rs. 150 crores for Gram Nyayalayas, Rs. 20.92 crores have been disbursed to the 4 states which have notified the Nyayalayas.
Family Courts: The Government has pursued with the States the matter of setting up of Family Courts, providing 50% of the cost of construction and Rs 5 lakh annually. 211 such courts have been set up in 23 states.
Increase in the age of retirement of Judges of High Courts: The Government has introduced ‘the Constitution (One Hundred and Fourteenth) Amendment Bill, 2010’ in the Lok Sabha on 25th August, 2010 for increasing the age of retirement of Judges of the High Courts from 62 to 65 years. It aims at retaining the judges for three more years which would avoid occurrence of new vacancies on account of superannuation and result in continuance of judges to clear the backlog of cases in the High Courts. The Bill has been examined by the Department related Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice is to be slated for discussion in the Parliament.
Infrastructure Development at Subordinate courts: In the financial year 2011-12, the allocation for the Centrally Sponsored Scheme on Infrastructure Development has been increased 5 folds from Rs.100 crores to Rs. 500 crores.
Setting up of a Legal e-Library: The Government is finalizing the setting up a ‘National Legal e-library’ focusing on 933 law schools in India. ,It is expected to benefit the students and practitioners of Law. It is proposed to get operationalised on 15 August 2011.
Rajiv Gandhi Advocate’s Training Scheme: The Rajiv Gandhi Adhivakta Prashikshan Yojna to be launched on 27June 2011, will select about 10 practicing advocates from each state and impart a two-month long professional training by a National Law School/College – to them and encourage them to to serve the need of law professionals at the grass root level.
Creation of All India Judicial services: The proposed to set up an All India Judicial Service is awaiting Cabinet approval. This service is expected to attract the best of talent to the judiciary.
Comprehensive Electoral Reforms:
• The Government has held 6 Regional Consultation on Electoral Reforms. The seventh is scheduled on 12 June 2011 in Guwahati to be followed By the National Consultation in New Delhi on 2-3 July 2011. Following this, Comprehensive Amendments will be brought about to the Electoral System.
• The Government has also passed legislation and has enabled NRI Voting.
• The Maximum limits of Election Expenses have been increased for both Parliament and Assembly Elections.
- Meeting of Consultative Committee on Law & Justice Discussions on E-Courts, Justice Delivery System, Law Commission Report (indialawyers.wordpress.com)
- Judiciary, Executive should have equal say in appointments: Law Commission (indialawyers.wordpress.com)
- Judiciary to the rescue (indialawyers.wordpress.com)
- Collegium system of judges appointment to be revisited (indialawyers.wordpress.com)
- Corruption, land-grab charges slapped on Justice Dinakaran (indialawyers.wordpress.com)
- An incorrigible lot, observes High Court (hindu.com)
The Union Cabinet today approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in the Parliament to ensure a safe environment for women at work places, both in public and private sectors whether organised or unorganized. The measure will help in achieving gender empowerment and equality.
The proposed Bill, if enacted, will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth.
Salient features of the Bill are as follows:
The Bill proposes a definition of sexual harassment, which is as laid down by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997). Additionally it recognises the promise or threat to a woman’s employment prospects or creation of hostile work environment as ‘sexual harassment’ at workplace and expressly seeks to prohibit such acts.
The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.
The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.
Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to ` 50,000.
Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.
The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee.
The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.
Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory. Besides, the State and Central Governments will oversee implementation as the proposed Bill casts a duty on the Employers to include a Report on the number of cases filed and disposed of in their Annual Report. Organizations, which do not prepare Annual Reports, would forward this information to the District Officer.
Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the Law. In this manner, the proposed Bill will create an elaborate system of reporting and checks and balances, which will result in effective implementation of the Law.
- Cabinet clears Sexual Harassment Bill (ibnlive.in.com)
- Protect a Business from Sexual Harassment Allegations (workplace-bullying.suite101.com)
- Bangladesh ‘Eve teasing’ protest (bbc.co.uk)
- What is Sexual Harassment? (brainz.org)
- eBossWatch National Sexual Harassment Registry Will Deter Workplace Abuse (prweb.com)
- Dealing with Accusations of Sexual Harassment in the Workplace (brighthub.com)
- The Sexual Harassment Dice (neatorama.com)
- ABC Exec Resigned Because of Sexual Harassment Probe [Television] (gawker.com)
- Law to protect women from workplace harassment soon (topinews.com)
- Consequences of Sexual Harassment in the Workplace (brighthub.com)
GOVERNMENT OF INDIA/BHARAT SARKAR
MINISTRY OF HOME AFFAIRS/GRIH MANTRALAYA NORTH BLOCK NEW DELHI /CS DIVISION
Dated the 14th July, 2010
ADVISORY ON CRIME AGAINST CHILDREN
1. ‘Police’ and ‘Public Order’ are State subjects under the Seventh Schedule to the Constitution of India. The Union Government, however, attaches the highest importance to the prevention of crime and, therefore, the Union Government has been advising the State Governments/ UT Administrations from time to time to give more focused attention to the administration of the criminal justice system with emphasis on prevention and control of crime.
2. The National Commission for Protection of Child Rights has been undertaking visits to various States and has observed that the level of sensitiveness and care with which crime against children should be handled is not up to the desired level. In its Fifth Report, titled ‘Public Order’, the Second Administrative Reforms Commission has also emphasized the need to combat crimes against vulnerable sections of the society, particularly women and children.
3. The Government of India is deeply concerned about crime against children and would, therefore, advise the State Governments and UT Administrations to take the following steps for effective prevention, detection, registration, investigation and prosecution of all crimes against children within their jurisdiction:-
I. Vigorously enforce all the existing legislations relating to crime against children i.e., Prohibition of Child Labour (Prohibition and Regulation) Act 1986, Juvenile Justice (Care and Protection of Children) Act 2000 (as amended in 2006), Child Marriage Prohibition Act, 2006, Immoral Traffic (Prevention) Act, 1956, Information Technology Act, 2000 (as amended in 2008) and relevant sections of IPC.
II. Sensitize the law enforcement machinery, i.e. the police as well as other functionaries of the criminal justice system, towards crime against children by way of well-structured training programmes. Such training programmes, including inputs on Juvenile Justice (JJ) and Human Rights (HR), may also be incorporated in the syllabi of various Police Training Academies at all levels including those for Constables, Sub-Inspectors and Deputy Superintendents of Police. Assistance of Bureau of Police Research and Development (BPR&D) as well as National Institute of Public Cooperation and Child Development (NIPCCD) could be taken for this purpose.
III. Set up exclusive ‘Crime against Women/Children’ desks in each police station. There should be no delay, whatsoever, in registration of FIRs in all cases of crime against children. All out efforts should be made to apprehend all the accused named in the FIR immediately so as to generate confidence in the victims and their family members. The administration and police should play a more proactive role in detection and investigation of crime against children and also ensuring that there is no under reporting.
IV. Cases of crime against children should be thoroughly investigated and charge sheets against the accused persons should be filed within three months from the date of occurrence without compromising on the quality of investigation. Proper supervision of such cases should be ensured from recording of FIR to the disposal of the case. Speedy investigation should be conducted in heinous crimes like rape, murder etc. The medical examination of rape victims should be conducted without delay.
V. Steps may be taken not only to tackle such crimes but also to deal sensitively with the trauma ensuing the crime. Counselling to the victim as well as to the family may be provided by empanelling professional counsellors.
VI. Ensure all steps for improving the safety conditions in schools/ institutions, public transport used by students, children’s parks/ play grounds, residential localities/ roads etc. Crime prone areas should be identified and a mechanism be put in place to monitor infractions in such areas for ensuring the safety and security of students, especially girls. For this purpose the following steps should be taken:
a. Increase the number of beat constables;
b. Increase the number of police help booths/ kiosks, especially in remote and lonely stretches;
c. Increase police patrolling, especially during nights;
d. Posting police officers, especially women, fully equipped with policing infrastructure in crime-prone areas in adequate number.
VII. For improving general awareness about legislations relating to crime against children and mechanisms in place for safety and protection of the children, the following steps may be considered :
a. Creating awareness through print and electronic media;
b. Involving the community at large in creating and spreading such awareness.
c. Exploring the possibility of associating NGOs working in the area of combating crime against children and other vulnerable sections of the society.
d. Developing a community monitoring system to check cases of violence, abuse and exploitation against children and take necessary steps to curb the same;
VIII. The local police must be advised to collaborate with the ‘Childline-1098 Service’ (which is an emergency service being operated by the Childline India Foundation (CIF) all over the country catering to the needs of children in emergency situations) and NGOs for mutual help and assistance wherever and whenever required.
IX. The juvenile offenders should be dealt with only in accordance with law through proper implementation of the Rules under the Juvenile Justice (Care and Protection of Children) Act 2000 (as amended in 2006), as these contain the procedures and requirements in detail for dealing with children in conflict with law as well as children in need of care and protection.
X. All efforts must be made to stop child labour and exploitation of children in all its forms and manifestations. Law enforcement agencies must extend all necessary cooperation to the State Labour Department in the cases of violation of Prohibition of Child Labour (Prohibition and Regulation) Act 1986.
XI. To save the children from the abuse/ crime of child marriage the State Government must appoint Child Marriage Prohibition Officers as required under the Prohibition of Child Marriages Act, 2006. They should also set up State Commissions for Protection of Child Rights in accordance with the Commissions for Protection of Child Rights Act 2005 (CPCRAct).
The receipt of this letter may kindly be acknowledged.
(Dr. Nirmaljeet Singh Kalsi)
Joint Secretary to the Government of India
Ministry of Home Affairs
North Block, New Delhi-110 001
The Chief Secretaries &
The Principal Secretary / Secretary (Home)
All State Governments and Union Territory Administrations.
Copy also for information and necessary action to:
i. The DGs / IGs (In-charge of Prisons) – All State Governments / UTs.
ii. Ministry of Social Justice and Empowerment, Shastri Bhawan, New Delhi.
iii. Ministry of Women and Child Development, Shastri Bhawan, New Delhi.
iv. Ministry of Labour and Employment New Delhi
v. Ministry of HRD, New Delhi
vi. DG BPR&D, CGO Complex, New Delhi
vii. DG NCRB, RK Puram, New Delhi.
viii. Director, NCPCR
Source : MHA WEBSITE