ROLE OF POLICE
IN THE IMPLEMENTATION OF SOCIAL LEGISLATION
Legal Reference and Case Studies
I N D E X
1. Introduction 2
2. Preface 3
LEGISLATION RELATED TO HIV/AIDS
3. HIV/AIDS & Law 5
4. HIV/AIDS Bill 2006 12
5. HIV/AIDS & Section 377 IPC 13
6. HIV/AIDS & Media Reporting Guidelines 14
7. Immoral Traffic (Prevention) Act 1956 15
8. HIV/AIDS & Immoral Traffic (Prevention) Act 1956 26
9. Protocols for Rescue for the Police during Raids 28
10. Narcotic Drugs and Psychotropic Substances Act, 1985 30
LEGISLATION RELATED TO CHILDREN
11. The Bonded Labour System (Abolition) Act, 1976 35
12. The Child Labour (Prohibition and Regulation) Act, 1986 42
13. Juvenile Justice (Care and Projection of Children) Act, 2000 50
14. The Probation of Offenders Act, 1958 57
15. The Prohibition of Child Marriage Act 2006 59
LEGISLATION RELATED TO WOMEN
16. Indecent Representation of Women (Prohibition) Act, 1986 63
17. Protection of Women from Domestic Violence Act, 2005 66
18. The Dowry Prohibition Act, 1961 73
19. Sexual Harassment at Work Place 78
20. The Pre-Conception and Prenatal and Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 83
LEGISLATION RELATED TO CIVIL RIGHTS
21. The Scheduled Caste and Scheduled Tribe Atrocities Act, 1989 91
22. The Protection of Civil Rights Act 1955 97
23. The Mental Health Act, 1987 103
24. Legal Services Authorities Act, 1987 108
25. National Commission for Women 112
26. National Human Rights Commission 114
27. National Commission for the Protection of Child Rights 118
NEW GUIDELINES /AMMENDMENTS
28. CrPC Amendment 2008 119
29. NHRC Guidelines on Child Sex Abuse 122
In present times the Police have evolved from primarily being a law enforcement agency to being the major implementing agency of various social legislations. Today the job of Police varies from law enforcement to protection of human rights. It has to cater to the special demands of the Children, Women, Aged, Disabled & Marginalised Communities.
Today Police cannot work in isolation. Every year various legislation are enacted and most of them advocate a joint approach of Police and Civil Society. In the Police Training Academies the training is more emphasised towards law enforcement which is the primary duty of the Police. This leads to a gap in sensitization level with regard to social legislations. Our experience in training interaction with the Police personnel strongly supports the need of information dissemination and sensitization with regards to various social legislations which affect the society at large.
The police today have to work in partnership with NGOs, Civil Society, Panchayati Raj Institutions etc. who are all important stakeholders in the implementation of Social legislations.
While preparing this Handbook on Social legislations for Police Personnel it was decided to have a comprehensive manual containing various aspects of law related to the HIV/AIDS epidemic in India. In the preparation process it was thought worthwhile to include all such social legislations related to Women, Children and Civil Rights so as to make the manual more useful.
The researchers have also included the working of the various Commissions related to Women, Children and Human Rights. In all legislations Landmark Judgements of the Supreme Court, examples of Police NGO cooperation, Role of police forces in the implementation of social legislations have been included.
All Public servants including Police officers should be committed to the social philosophy as enshrined in the Constitution of India. The Constitution is the supreme law of the land. It is also the source of all social legislations enacted since 1950.
As far as the Police are concerned, the prime need of the hour is inspiring and dynamic leadership. The efficacious way of enforcing law is obeying the law faithfully. The Police officials must have faith in law as an effective instrument of social change and as a means of promoting and protecting human rights.
Enforcement of social legislation is quite different from the implementation of traditional criminal law like the Indian Penal Code (IPC). It is not coercive but conducive to social justice. For successful enforcement of social legislation, cooperation amongst all concerned is essential. There are voluntary organizations engaged in doing the welfare activities. The police officials should get in touch with them with a view to ensure harmonious cooperation. The involvement of NGOs and Panchayats could go a long way to implement the social legislation.
Social legislations seek to abolish all kinds of inequities and disparities and to remove social imbalance and conflict. The object is to ensure equality and equal opportunity for all. It gives sustenance to the rule of law and significance to the idea of a welfare state.
The roles of the Police are manifold and they may broadly be outlined under the following four heads:-
1. Police as a law enforcement agency.
2. Police as an arm of the executive government.
3. Police as a protector of rights and liberty of the citizens.
4. Police as an instrument of social service and social change
The Ministry of Home Affairs in partnership with UNAIDS is implementing programmes for HIV prevention among the Central and State police forces. The strategy for HIV programming with the uniformed services has a twin objective of reducing the vulnerability of the personnel to the risk of HIV infection and proactive police support to agencies working with most-at-risk populations.
There is now a growing demand upon the police for rendering various kinds of social services to the people. The police is a well-knit and disciplined organization spread over the entire country. The police officials are public servants available everywhere and round the clock, which is a major positive factor.
At the request of UNAIDS, the Ministry of Home Affairs sent a circular to all states, pursuant to which the states have designated Nodal Officers at the State and District levels to interface with civil society for HIV prevention initiatives. Though designated in the specific context of HIV prevention, this is a powerful structural intervention to foster police – civil society coordination. The police can successfully use it to enhance the effectiveness in implementation of laws on various social issues relating to women and children (e.g. Violence against women, child labour, anti trafficking etc.), where police alone have limited success.
Who Can Use this Handbook?
This handbook on “Role of Police in Implementation of Social legislations”: Legal Reference and Case Studies” is intended to provide comprehensive, step-by-step guidance to Nodal police officers for NGO Coordination at State and District levels on how best to fulfil their duties under the various Social legislations. Written especially for a predominantly non-legal readership and based on the author and research team’s extensive legal knowledge, the Handbook is an essential resource not just for the Nodal Police officers. It is also beneficial for lawyers, NGOs, research institutions, social workers, journalists, organisations providing services to marginalized populations and those infected and affected by the virus, for gaining full insight to the rights especially relevant to people living with HIV.
This handbook will be an effective instrument for advocacy and action to all stakeholders, and empower them to implement the law effectively, resourcefully and in a manner consistent with their legal obligations and the law’s overall objective of human rights and justice.
Feedback on the Handbook
A document of this scope requires regular review and updating. UNAIDS welcomes your feedback and suggestions for improvements in this regard.
Please send your feedback and suggestions to
Ranjan Dwivedi, Technical Advisor, UNAIDS India, A-2/35 Safdarjung Enclave
New Delhi 110029, Phone: (+91-11) 41354545 Extn: 317, Email: firstname.lastname@example.org
Sarita Jadav, Programme Associate, UNAIDS India, A-2/35 Safdarjung Enclave, New Delhi 110029, Phone: (+91-11) 41354545 Extn: 315, Email: email@example.com
HIV/AIDS & LAW
HIV/AIDS has raised over the course of the epidemic various legal, ethical and human rights issues. Protecting and promoting the rights of people living with HIV/AIDS (PLHAs), as well as those affected by the epidemic and those most vulnerable to it, is central to creating an environment whereby stigma, violence and inequity is reduced, if not eradicated. It has been observed and established that the creation of a non-discriminatory environment based on the principles of human rights is the best public health strategy in controlling the spread of HIV/AIDS.
Legislation on HIV/AIDS
The Lawyers Collective HIV/AIDS Unit was requested by Shri. Kapil Sibal(MP) and the National AIDS Control Organisation (NACO) to prepare a draft legislation on HIV/AIDS. This initiative received commitment from the Indian government. After various rounds of Consultations and focused discussions involving all stakeholders, draft legislation on HIV/AIDS was submitted to NACO in August 2005. The Final Draft of Law is pending with the Government of India.
In the absence of the Law on HIV/AIDS , the courts have provided several judgments which protect the rights of the People living with HIV/AIDS
P v. Union of India (2001) — Kolkata High Court
(Negligence in blood transfusion):
The Petitioner, a pregnant lady was admitted for delivery of her child at a hospital under the administrative control of the Indian Navy. After delivery the Petitioner required blood transfusion. A sailor donated fresh blood to hospital, which did not come from the blood bank of the hospital as required under the provisions of the Drugs & Cosmetics Act.The sailor’s blood was not tested for HIV at the time of donation. He was later found to be HIV+. It was clear that the petitioner became HIV+ on account of the negligent transfusion of blood to her.
The Court felt that since the hospital was under administrative control of the Indian Navy the Indian Navy had a duty to compensate the petitioner. Correspondence was exchanged between the Petitioner and Respondent Indian Navy during the pendency of the petition. Finally the respondent made an offer of compensation which included:
a. A Government job at Kolkata or the place where she desired
b. Accommodation on her appointment on the usual terms and conditions.
c. A sum of Rs. 10 lakhs from the date of filing of the writ petition @ 18% interest.
d. Medical treatment at the cost of the Government
The petitioner was agreeable to the offer and the Court passed the judgement in terms of the compromise arrived at by the parties.
M. Chinnaiyan v Sri Gokulam Hospital & Queen Mary’s Clinical Laboratory (National Consumer Dispute Redressal Commission, 2006):
The Appellant’s wife underwent a hysterectomy operation, at the 1st Respondent hospital in 1990 where she was transfused 2 units of blood in the post-operative period which was procured from the 2nd Respondent laboratory in 1990. In mid-1994 the Appellant’s wife developed recurrent loose motions, weight loss, respiratory infection and difficulty in swallowing etc. On being tested she was found to be HIV+ and showed symptoms of full-blown AIDS. In July 1995, she developed left-sided hemiparesis, oral candidiasis and TB. Later she was diagnosed with glioma of the brain and died in August 1995.
Her husband filed a complaint before the State Consumer Redressal Forum suing the hospital and pathology laboratory for deficiency of services under the Consumer Protection Act. His Complaint was rejected. Aggrieved by this order he appealed to the National Consumer Dispute Redressal Commission (National Commission). The National Commission held:
a. The 1st Respondent gave blood transfusion without obtaining the consent of the patient and that the concerned doctor negligently transfused blood, as he did not inform the Petitioner’s wife about the benefits, risks or alternatives of blood transfusion, which amounted to deficiency of service under the Consumer Protection Act.
b. Furthermore, the Drugs and Cosmetics Rules, 1945, requires that every licensee of a blood bank get samples of every blood unit tested for freedom from HIV antibodies, which the 2nd Respondent had failed to do.
c. As compensation, the Commission awarded Rs. 4,00,000 (Rs. 4 lakh) with interest at the rate of 6% p.a. from the date of filing the complaint, which was to be paid jointly and severally by the Respondents and Rs 10,000 as costs.
An appeal by one of the Respondents to the Supreme Court was dismissed.
RIGHT TO MARRIAGE OF PLWHA
Mr X v Hospital Z Right to Marry
2. Mr X v Hospital Z(Right to marry),
2002 SCCL.COM 701, AIR2003SC664, 2003(2)ALD24(SC), 2003(1)AWC571(SC), 2003(1)BLJR437, JT2002(10)SC214, (2003)1MLJ89(SC), (2003)1SCC500
This case was filed by lawyers collective HIV/AIDS Unit on behalf of its client Mr.X, seeking clarifications and challenging the judgment of the Supreme Court in the case of Mr.X v. Hospital Z, in 1998 wherein the court had suspended the right of PLHAs to marry although it was never an issue before it.
The Supreme Court held:
a. All observations relating to marriage in Mr. X v Hospital Z 1998 were not warranted as they were not issues before the court.
b. The Supreme Court’s pronouncements regarding the role of hospitals to make disclosure of HIV+ status in Mr. X’s judgment remain as they were made regarding an issue before it in the case (Mr. X’s case concerned the issue of breach of confidentiality of the petitioners HIV+ status by a hospital blood bank to the petitioners relatives).
c. The Supreme Court’s judgment in Mr. X v Hospital Z to the extent that it suspended the right of People living with HIV/AIDS to marry is no longer good law. The right of an HIV + person to marry is restored. However, this does not take away from the duty of those who know their HIV+ status to obtain informed consent from their prospective spouse prior to marriage.
MX v. ZY AIR 1997 Bom 406
A person living with HIV cannot be terminated or discriminated against in his job only on account of his HIV status, if he is fit to perform his job functions, is otherwise qualified, and does not pose a substantial risk to fellow workers.
In cases where a person can show that s/he would not be able to prosecute his/her if his status is disclosed and in the interests of the administration of justice, the Court will permit the plaintiff or petitioner or party before it to suppress his/her identity and prosecute or defend the proceedings in an assumed name.
Mr. Badan Singh v. Union of India & Anr. (2002)
Mr. Singh was enrolled in the Border Security Force on 12.6.1990. In March 1997 it was discovered by the Respondents that he was suffering from HIV Infection (Tuberculosis of Lungs and Abdomen with Infective Hepatitis). Mr. Singh had undergone medical examination, inter alia, at the AIIMS, New Delhi, and at the National Institute of Communicable Diseases, New Delhi. He appeared before a Medical Board on 16.4.1998 and was considered unfit for further service.
X v. State Bank of India (2002) – Bombay High Court
A person living with HIV cannot be denied opportunity of employment merely on ground of his HIV+ status. He tested positive for HIV. He was orally informed by his supervisor at the bank that he was rejected on grounds of his HIV positive status. X kept visiting the bank but he was not asked to undergo further fitness test or given a letter rejecting his application.
G v. New India Assurance Co. Ltd. (2004)
A person cannot be denied employment only on the ground that the person is HIV positive, but otherwise fit. In our opinion, HIV positive status cannot be a ground for rejection for employment as it would be discriminatory and violative of the principles laid down in Articles 14, 16 and 21 of the Constitution.
G was a widow whose husband had died while in employment of New India Assurance Co. Ltd. (the company).
X v The Chairman, State Level Police Recruitment Board
Order 70(3) of the A.P. Revised Police Manual that permitted the state to not employ HIV +ve persons was struck down as being violative of the fundamental right to life and livelihood.
The Petitioner, a Reserve Police Constable, had applied for the post of Sub-Inspector of Police (Civil). Though he qualified both the physical and written tests and was provisionally selected as Sub-Inspector of Police, he was denied appointment on the ground that he had tested HIV positive.
RR v Superintendent of Police and others
RR v. Superintendent of Police & others [Unreported (2005) Karnataka Administrative Tribunal]
The Petitioner had been provisionally appointed as a police constable but his appointment was cancelled solely on the ground of his HIV+ status. He challenged the same in court. The court inter alia held that his employment should date back to the day that he was found physically fit and eligible yet he was considered unsuitable, solely on the ground that he was tested HIV positive, and accordingly the service benefits shall flow to the applicant which shall include counting of past service for purposes of pensionary benefits etc”.
Indian Inhabitant of Mumbai
S. Indian Inhabitant of Mumbai v. Director General of Police, CISF and others [Unreported (2004) High Court at Bombay in WP No. 202 of 1999]
The Petitioner a widow whose husband had died of HIV/AIDS was denied compassionate employment. The court held that there should be no delay in appointment in all cases of compassionate employment and in cases where no such post exist a supernumerary post must be created. S (the petitioner) was a widow. Her husband was a Head Constable working with CISF.
A v Union of India
A v Union of India [Unreported (28 November 2000) In the High Court at Bombay, WP No. 1623 of 2000 and Review Petition No. 3 of 2000] :
The High Court directed the Respondents to entertain the Petitioner’s application requesting for a change in job profile vide the review petition.
The Petitioner (A) had joined the Indian Navy as a Direct Entry Artificer in October 1985 and was posted in the Submarine branch of Indian Navy. The Petitioner was deputed in the crew, to bring the submarine INS Sindhurakshak from Russia in 1997.
Chhotulal Shambahi Salve
Chhotulal Shambahi Salve (CSS) v. State Of Gujarat (2001) [Unreported Special Civil Application No. 11766 of 2000 (Gujarat High Court) (17 February 2001)] :
A person cannot be denied opportunity of employment solely on the ground of his HIV+ status, if he is otherwise medically fit. CSS was selected for the post of unarmed police constable in the Gujarat State Police force. He appeared for the medical fitness test.
Lucy R D Souza v State of Goa
Lucy R. D’Souza v. State of Goa 1990 Mh.L.J. 713 , AIR1990Bom355
The Goa, Daman and Diu Public Health Act (1985) authorized the State of Goa to mandatorily test any person for HIV and isolate persons found to be HIV positive and on such conditions as may be prescribed for AIDS for such period. Dominic D Souza had gone to donate blood. He was found to be HIV+ve whereupon he was quarantined in a TB hospital.
LX v. Union of India, Delhi High Court (order dated 5 May 2004) :
LX, an undertrial, tested HIV-positive. A drop in his CD4 count necessitated his commencement on antiretroviral therapy (ART). Subsequently, LX was released on bail. LX then filed a petition praying that the Government ought to continue to provide him ART despite his release.
In a series of interim orders, the Delhi High Court directed the government to continue to provide ART to LX. Later, LX was directed to present himself at the All India Institute of Medical Sciences (AIIMS) with his past records for the continuation of his treatment.
Shri Subodh Sarma & Anr. v. State of Assam & ors.(2000)– Guwahati High Court :
This case was of the nature of a Public Interest Litigation for the proper utilisation of funds from the Centre allocated for the AIDS programme of the State of Assam. The grievances of the Petitioners included, amongst others, lack of systemised data, general awareness among the public and proper documentation, blood banks operating without license and control, misallocation of funds, discrimination against HIV infected persons etc.
India Network of Positive People v T.A. Majeed & Ors.(Order of the Supreme Court in SLP (Civil) No(s). 5527/2004 dated 03/01/2007)
In 1993 the Drug Controller of Kerala issued a licence to one T.A. Majeed to manufacture ‘Immuno QR’ powder – an ayurvedic medicine claiming to increase the resistance of persons for certain ailments, like night sweats, fever, cough and skin problems. Majeed started selling Immuno QR as a “cure” for AIDS. Consequently, in September 1997 the Drug Controller cancelled Majeed’s licence. Majeed challenged this order before the Kerala High Court which stayed the Drug Controller’s order; this meant that Majeed could continue manufacturing and selling the drug till the final disposal of the case. As a result, Majeed was also able to continue advertising and selling Immuno QR as a “cure” for HIV/AIDS.
Between 2000 and 2001, petitions were filed in the Bombay and Kerala High Courts by the Maharashtra Network of Positive People (MNP+) and the Peoples Union for Civil Liberties (PUCL) respectively to prevent Majeed and others from advertising any cure for HIV/AIDS. Both Courts restrained Majeed from advertising Immuno QR as a cure for AIDS.
However, Majeed was allowed under the Kerala High Court’s previous order to continue the manufacture and sale of Immuno QR. It was in this case, originally filed by Majeed to challenge the Drug Controller’s order, that the Indian Network for People living with HIV/AIDS (INP+) filed an intervention application.In December 2001, the Kerala High Court restrained Majeed from manufacturing any drug for which a licence was required. In response, Majeed filed a Special Leave Petition (SLP) in the Supreme Court, which sent the matter back to the Kerala High Court directing Majeed not to manufacture Immuno QR.
When the matter was taken up by the Kerala High Court in August 2003, it was informed by the government pleader that a committee consisting of experts in the field of ayurvedic medicine had been set up but had failed to meet. The government asked for three months’ time. However the High Court allowed Majeed to manufacture and sell Immuno-QR as long as he did not advertise it as a cure for AIDS until the committee gave its report. The High Court further directed the government to clinically test the drug and submit its report to the Court. Effectively Majeed continued to manufacture and sell the drug.
INP+ then filed an SLP in the Supreme Court against the order of the Kerala High Court. On the 3rd of January 2007, the SLP filed by INP+ came up for hearing before the Supreme Court, the Court;
• Passed an order setting aside the order of the Kerala High Court which had suspended the Drug Controller’s order of cancellation of the drug and substituted that order with its own earlier order that directed Majeed not to manufacture Immuno QR till the final disposal of the case.
• Said that it cannot be a valid ground to stay the order of the Drug Controller that the committee had not been able to examine the drug and file its report.
• Directed the Kerala High Court to expedite the hearings and dispose of the Petitions pending before the court preferably within three months.
Majeed was thus restrained from manufacturing and selling Immuno QR till the final disposal of the cases pending in the Kerala High Court.
(Source: Lawyers Collective, http://www.lawyerscollective.org/hiv-aids/judgements/indian)
HIV/AIDS Bill 2006
The Bill on HIV/AIDS has been prepared by The Lawyers Collective and supported by NACO
Lawyers Collective conducted nationwide consultations on the draft legislation on HIV/AIDS by involving and learning from representatives of the various sectors that are impacted by the epidemic. The consultation process, which took place, entailed different processes in order to be able to exchange views with the widest spectrum of individuals and institutions as feasible. The consultation feedback that Lawyers Collective received through various processes held at national and state level was then filtered and incorporated in its Draft Legislation. The consultation processes involved all types of affected people and marginalized communities. The participation of People living with HIV/AIDS was ensured in all consultations.
HIV/AIDS Bill 2006 is a Bill to provide, keeping in view the social, economic and debilitating effects of the HIV epidemic in India, for the prevention and control of the HIV epidemic in India, the protection and promotion of human rights in relation to HIV/AIDS, for the establishment of National, State, Union Territory and District Authorities to promote such rights and promote prevention, awareness, care, support and treatment programmes to control the spread of HIV, and for matters connected therewith or incidental thereto.
The key issues addressed in the HIV Bill are: –
Substantive provisions include: –
Prohibition of Discrimination, guidelines on disclosure and informed consent , access to Testing treatment and counseling, safe working environment , Information education and communication.
The bill also has details of state obligations and appointment of Health Ombudsman. The bill also has details of Special procedures in courts. The Bill also has details of having National, State and District level HIV/AIDS authorities.
HIV/AIDS & Article 377
Article 377 Indian Penal Code / Unnatural offences
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Naz Foundation Vs Government of NCT of Delhi and Others
WP(C) No.7455/2001 Delhi High Court
A writ petition was filed by Naz Foundation, a Non Governmental Organisation (NGO) as a Public Interest Litigation to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described as “unnatural offences”, to the extent the said provision criminalises consensual sexual acts between adults in private. The challenge is founded on the plea that Section 377 IPC, on account of it covering sexual acts between consenting adults in private infringes the fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the Constitution of India.Limiting their plea, the petitioners contended that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors. Homosexuals, according to the petitioner, represent a population segment that is extremely vulnerable to HIV/AIDS infection. The petitioner claims to have been impelled to bring this litigation in public interest on the ground that HIV/AIDS prevention efforts were found to be severely impaired by discriminatory attitudes exhibited by state agencies towards gay community, MSM or trans-gendered individuals, under the cover of enforcement of Section 377 IPC, as a result of which basic fundamental human rights of such individuals/groups (in minority) stood denied and they were subjected to abuse, harassment, assault from public and public authorities.
We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.We allow the writ petition in the above terms.
The Supreme Court is hearing the petition and has refused to stay the Delhi High Court order.
AIDS and the Media – DO’S and DON’TS
Media must inform and educate the people, not alarm or scare them
Be objective, factual and sensitive
Keep abreast with changing realities of fast-evolving infection
Use appropriate language and terminology that is non-stigmatising
Ensure headlines are accurate and balanced
Be responsible; give all sides of the picture, using voices of people living with HIV and AIDS (PLHIVs)
Dispel misconceptions about prevention and transmission
Debunk myths about miracle cures and unscientific claims of protection from infection
Highlight positive stories without underplaying seriousness of the issue
Uphold confidentiality of infected people, their families and associates
Ensure photographs do not breach their confidentiality
Ensure photo captions are accurate
Ensure gender sensitive reporting and avoid stereotyping
Obtain data from authorised sources as inaccurate reports have adverse impact on morale and increase stigma
Journalists are responsible for ensuring interviewees understand repercussions of revelations/identification
Ensure informed consent, in written form wherever possible
Balance coverage of a negative story like HIV-related suicide or incidence of discrimination by including contacts of helplines/counselling centres
Broaden reportage to examine impact of infection on economic, business,
political and development issues
When in doubt contact the local network of positive people or state aids control society or existing terminology guidelines for clarification
Ensure questions are not deeply personal or accusatory
Show PLHIVs in a positive light by portraying them as individuals instead of ‘victims’
Don’t sensationalise the story
Don’t make value judgements that seek to blame PLHIVs
Don’t use terms like ‘scourge’ to describe the infection or describe PLHIVs as AIDS carrier, prostitute, drug addict, AIDS patient/victim/sufferer.
Don’t focus needlessly on how a PLHIV was infected
Don’t identify children infected and affected by HIV and AIDS by name or
through a photograph even with consent
Don’t use hidden cameras
Avoid alarmist reports and images of the sick and dying that convey a sense of gloom, helplessness and isolation
Don’t use skull, crossbones, snakes or such visuals as graphics
Avoid references to caste, gender or sexual orientation
Don’t reinforce stereotypes about sexual minorites including those who are lesbian, gay, bisexual or transgender (LGBT)
Don’t portray infected persons as victims, culprits or objects of pity
Don’t promote misleading advertisements related to HIV, STIs, skin diseases, tuberculosis and other opportunistic infections
Don’t breach the confidentiality of those opting for voluntary testing
IMMORAL TRAFFIC (PREVENTION) ACT (1956)
The Immoral Traffic (Prevention) Act , 1956 is central law which deals with commercial sexual exploitation of women and children.
The Constitution of India under Section 23 guarantees , rights against exploitation , prohibits traffic in human beings for any purpose whatsoever (which includes trafficking for CSE, exploitative labour or any other form of exploitation ).
Definition provided in ITPA
(a) “brothel” includes any house room, [ conveyance] or place or any portion of any house, room, [ conveyance] or place, which is used for purposes [ of sexual exploitation or abuse] for the gain of another person or for the mutual gain of two or more prostitutes;
[(aa) “child” means a person who has not completed the age of sixteen years;]
(b) ” corrective institution” means an institution, by whatever name called (being an institution established or licensed as such under section 21), in which [persons], who are in need of correction, may be detained under this Act, and includes a shelter where [under trials] may be kept in pursuance of this Act;
(ca) “major” means a person who has completed the age of eighteen years;
(cb) “minor” means a person who has completed the age of sixteen years but has not completed the age of eighteen years;]
(f) “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly;
(g) “protective home” means an institution by whatever name called (being an institution established or licensed as such under Section 21), in which [persons], who are in need of care and protection, may be kept under this Act [and where appropriate technically qualified persons, equipment and other facilities have been provided.
(h) “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance;
(i) “special police officer” means a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act;
(i) “Trafficking police officer” means a police officer appointed by the Central Government under sub-section (4) of section 13.
Table of Punishment under ITPA
Section Offence Imprisonment
Sec 3(1) Managing or Keeping a brothel or assisting in either First Conviction
Rigourous Imprisonment of not less than 1 year and not more than 3 years and fine of Rs2000
Rigourous Imprisonment of not less than 2 year and not more than 5 years and fine of Rs2000
Sec3(2) Allowing premises to be used as a brothel First Conviction
Imprisonment which may extend upto 3 years and fine of Rs2000
Rigorous Imprisonment which may extend upto 5 years and fine of Rs2000.
Sec 4 Living on the earnings of a Prostitute Prostitution of a adult
Imprisonment which may extend upto 2 years
Prostitution of a minor
Imprisonment not less than 7 years and may extend upto 10 years.
Sec 5 Procuring taking or inducing a person for prostituion Rigorous Imprisonment not less than 3 years but upto 7 years and fine upto Rs2,000
If offence is committed against the will of a person than imprisonment of a maximum term of 7 years which may extend upto 14 years.
If the person against whom the offence committed is a CHILD:
Rigorous Imprisonment for a term not less than seven years but may extend upto life.
If the person against whom the offence committed is a MINOR:
Rigorous Imprisonment for a term not less than seven years and not more than 14 years.
Sec 6 Detaining a person in Brothel for the purpose of prostitution Imprisonment for not less than 7 years but upto life or Imprisonment of upto 10 years and also fine.
Sec 7 Prostitution in vicinity of Public Place First Conviction:
Imprisonment of upto 3 month and fine upto Rs 200.
Imprisonment of upto 6 month and fine upto Rs 200.
Sec 8 Soliciting for prostitution First Conviction:
Imprisonment of upto 6 month and fine upto Rs 500.
Imprisonment of upto 1 year and fine upto Rs 200.
Section 9 Causing or aiding seduction of a person in care or custody for prostitution
Imprisonment for a term which shall not be less than seven years and may extend upto 10 years.
Important Provisions of Indian Penal Code on Human Trafficking
Sections Offence Punishment
120 B Party to Criminal Conspiracy Rigorous imprisonment for a term of two years or upwards.
327 Voluntarily causing hurt to constrain to an illegal act Punishment with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
329 Voluntarily causing grievous hurt to constrain to an illegal act Punishment with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
339 Definition of wrongfully restrained
340 Definition of wrongfully confined
350 Definition of Criminal force
351 Definition of Assault
354 Criminal force with the intention of outraging modesty Punishment with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
366 Kidnapping, abducting or inducing woman to compel her marriage Imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine
366A Procuration of minor girl
Imprisonment which may extend to ten years, and shall also be liable to fine
367 Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc Imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine
370 Buying or disposing of any person as a slave Imprisonment of either description for a term, which may extend to seven years, and shall also be liable to fine
371 Habitual dealing in slaves Imprisonment of either description for a term, which may extend to seven years, and shall also be liable to fine
372 Selling minor for purposes of prostitution, etc Imprisonment of either description for a term which may extend to ten years, and shall be liable to fine
373 Buying minor for purposes of prostitution, etc Imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
375 Definition of Rape
376 Punishment for Rape Punishment with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine
377 Unnatural Sexual exploitation Punishment with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Special Police Officer
Under Section 13 of the ITPA the State Government has to appoint a Special Police Officer for each area to be specified. The special Police officer should not be below the rank of the Inspector of Police. All state government have notified the Special Police Officer.
Non official advisory body
Under Section 13(b) the state government may associate with the special police a non official advisory body consisting of five leading social workers which will include women social workers.
State Advisory Body
Under Section 13 each state has to form a State Advisory Body to oversee inter department coordination. This has been mandated by the Judgement of Supreme Court in Gauruv Jain vs Union Of India.
Central Advisory Body
Under Section 13 Govt. of India has to form a Central Advisory Body to oversee inter department coordination among various ministries and different state governments. This has been mandated by the judgement of Supreme Court in Gauruv Jain vs Union Of India.
Trafficking Police Officer
Under Section 13(4) the Government of India may appoint a Trafficking Police Officer for investigation offences under this Act committed in more than one state.
Role of Police:
1. All offences under this Act are cognizable offences.
2. Arrest without warrant can be made only by a special police officer or under his direction or guidance subject to his approval.
3. Section 15 empowers the special police officer to enter and search premises without warrant.
4. It also provides for the special police officer to be accompanied by two respectable inhabitant of the area.
5. Any women or girl removed from the area can be interrogated by a women police officer or recognized welfare organization.
6. Under Section -16 a magistrate may direct a police officer to enter any brothel and remove any person there from. After removing the person the police officer must forthwith produce the person in front of the magistrate.
7. Under Section 15 (5A) The police has to produce the rescued person to a Medical practitioner for the purpose of determining the age and for the presence of any sexually transmitted disease.
Police NGO Cooperation
(Source: Handbook for Law Enforcement Agencies in India, PM Nair ,UNIFEM, UNODC)
Role of NGOs in law enforcement and justice delivery under ITPA
ITPA is a social legislation which envisages a large role for NGOs/CBOs and social workers. The following are noteworthy:
Advisory Body: The State Govt. may notify, u/s 13(3) (b) ITPA, a nonofficial advisory body of leading social workers (upto a maximum of five persons), including women social workers. This body has powers to advise the SPO on questions of general importance, regarding the working of ITPA. Therefore, this body can advise and facilitate the police to :
(a) carry out rescue,
(b) ensure that the rights of rescued persons are protected
(c) initiate steps for victims’ best care and attention, keeping in view victims’ best interests,
(d) take steps for empowerment and rehabilitation of victims
(e) take steps for stringent action against traffickers and other exploiters
(f ) initiate and implement steps for prevention of trafficking
(g) network with all concerned government and non government agencies.
Accompanying Police during search: The SPO while carrying out search for victims or even accused persons should arrange two or more respectable persons of the locality (one of whom should be a woman, as provided u/s 15(2) ITPA to attend and witness the searches. NGOs are the appropriate agencies to be contacted by police in such situations. The male witness should be from the locality, whereas the female witness could be from any where, vide proviso to S.15 (2) ITPA. It would be better to take a lady social activist along. Police officials should maintain a list (ready reckoner) of women activists and NGO’s, whose services can be called upon in such situations. This section gives a legal right to NGOs to be part of the rescue process.
Interviewing rescued/removed persons: U/s 15(6A) ITPA, any female person rescued or removed during a search (this includes victims, suspect and accused) can be interviewed by the police officer only in the presence of a female police officer or a female member of NGO. This gives a legal right to NGOs to be part of the investigation process.
Home verification of rescued persons: A mandatory duty is cast upon the Magistrate u/s 17(2) ITPA to cause home verification of the rescued person before taking a final decision regarding her rehabilitation. Direction is to be given to the Probation Officer (under the Probation of Offenders Act, 1958). The Magistrate can call upon NGOs to carry out the task. Even the Probation Officer who has been tasked for the same can, in turn, entrust the job to NGOs. This gives a legal right to NGOs to be part of the rehabilitation process.
NGOs to advise Magistrate on rehabilitation: The Magistrate may, as provided u/s 17(5) ITPA. Summon a panel of five respectable persons, three of whom shall be women, to assist him in taking decision in home verification and rehabilitation of the rescued person. It would be better that the Magistrate is provided with a list of NGOs who are working in the field so that their services can be utilized at the appropriate time. This section also gives a legal right to NGOs to be part of the justice delivery process and an opportunity to ensure that the processes confirm to the principles of human rights and the decisions are in the best interest of the rescued person.
Can a witness refuse to cooperate with police in search and rescue?
As per S.15 (3) ITPA, any person who, without reasonable cause, refuses or neglects, to attend and witness a search when called upon to do so by an order in writing, delivered or tendered to him, shall be deemed to have committed an offence u/s 187 IPC (Refusal to assist public servant when bound by law to give assistance). Though, it is a non-cognizable and bailable offence, it entails punishment upto 6 months imprisonment and fine.
How to carry out Home verification of the Rescued persons?
As per the mandatory requirements u/s 17(2) ITPA, Home verification of the rescued person needs to be carried out. The points of verification include
(a) the correctness of age,
(b) character and antecedents,
c) the suitability of the parents/guardian/husband for taking charge of the person,
(d) the nature of the influence which the condition in the home is likely to have on the person if she is sent home,
(e) the personality of the person and
(f ) the prospects of rehabilitation u/s 17(5) ITPA.
Since the task of verification can be entrusted to NGO’s, the law enforcement officials need to network with appropriate NGO’s and bring to the notice of the Magistrate the name, address and other details of the NGO’s. Once the task is assigned to the NGO’s, it needs to be facilitated and followed up so that the verification is expedited. Objectivity is called for in the process of verification. The verifying authority should consult the victim, her well-wishers, friends, parents, guardians, neighbours and all persons who can share information. There are instances where the guardians themselves have indulged in trafficking. Therefore extreme care is called for in arriving at conclusions.
Protection and safety (estoppels) for police officers and NGO’s against litigation.
S. 15(6) ITPA provides a safety clause for bonafide work. The authorized police officer, the witnesses, and the NGOs who take part, attend, or witness a search shall not be liable to any litigation, civil or criminal proceedings, against them for any bonafide work in connection with or for purposes of the search being carried out u/s 15 ITPA.
Land Mark Judgments
Razia v. State of U.P., AIR 1957 All. 340.
A prostitute is a woman who offers her body to indiscriminate sexual intercourse, especially for hire. [Oxford Dictionary]
In re: Ratnamala, AIR 1962 Madras 31.
Residence of a single woman who practices prostitution for her own livelihood, will not amount to a brothel.
In re: John, AIR 1966 Madras 167
Prostitution of a woman should be for the gain of another person as to the premises to be called as brothel.
Sushila v. State of T.N., 1982 Crl. L.J. 702 (Madras)
Solitary instance of prostitution in a place does not make the place a “brothel”.
Gurcharan Singh vs Haryana, AIR 1972 SC 2661
Victim is never an accomplice.
Delhi Domestic Working Womens Forum vs UOI, 1995 (1) SCC 14.
Legal representation is a legal right. In The requirement of legal representation and counseling has been extended to the victim right from the Police Station itself.
Sheela Barse vs UOI, 1986 (3) SCC 632
It is the constitutional obligation of the state to devise such a procedure as would ensure speedy trial.
State of Maharashtra vs Dr. Praful B. Desai 2003 (4) SCC 601
The Supreme Court, in its landmark decision, has underscored the validity of video conferencing and enumerated the safeguards to be ensured during the trial of cases.
‘Sakshi vs Union of India’
The Supreme Court of India (Refer Judgement dated 26 May 2004, in) has directed that in-camera trial should be extended to all cases of sexual assault on children.
Smt Sudesh Jakhu vs Narender Verma 2004
Right to anonymity is a legal right.
Haryana vs Prem Chand and others, 1990 (1) SCC 249, Maharashtra vs Madhukar Narayen Marvikar, AIR 1991 SC 207
Character and antecedents of the victim has no bearing or relevance… and can never serve either as mitigating or extenuating circumstance. No stigma should be implied against the victim/witness. ‘After all it is the accused and not the victim of sex crime who is on trial in the court’.
Punjab vs Gurmeet Singh, AIR 1996 SC 1393 and Andhra Pradesh vs Gangula Satyamurthy, JT 1996 (10) SC 550.
In cases involving sexual assault minor contradictions or insignificant discrepancies in the statement of the witnesses should not affect the case
In Rampal vs State of Haryana, 1994 Supp(3) SCC 656
Conviction was based on the sole testimony of the prosecutrix. Though the doctor did not find any visible injuries, the court held that, there was no reason to suspect the testimony of the victim and upheld the conviction of the accused.
Vishaljeet vs Union of India
The court ordered the Government to devise special scheme for the Victims of commercial sexual exploitation and their children.
Gaurav Jain Vs Union of Indian
Committee formed by the Court to study the plight of Sex Workers and to combat Trafficking. On the basis of this committee report the First Action Plan to combat Trafficking came out in 1998.
Guria, Swayam Sevi Sansthan vs State of U.P. & Ors
In cases of victims being arrested and then letting off on bail which leads to further victimization the Supreme Court observed in its judgment in Guria, Swayam Sevi Sansthan vs. State of U.P. & Ors (CA No 1373 of 2009).
“ It is unfortunate that the Investigating Officers and the Courts ordinarily fail to bear in mind a distinction between the rescued children including girls, on the one hand, and the persons who have been organizing such immoral traffic in a systematic manner and have otherwise been aiding and abetting the commission of offences thereunder. The Legislature as also the Executive have also failed to draw a well-thought out plan for rehabilitation of the rescued children in the society by bringing in suitable legislations or schemes. The victims of immoral trafficking, most of whom are minor or young girls, are let off on bail. They again in most of the cases are forced to go back to the brothels from where they have been recovered and are subjected to prostitution again at the instance of the same persons. Bails are also granted to other accused who are arrested from the brothels without bearing any distinction in mind as to whether they work from behind or may be held to be guilty of offences of higher magnitude.”
Role of POLICE / NGO’s partnership in the trial of cases in courts:
(Source: Handbook for Law Enforcement Agencies in India, PM Nair ,UNIFEM, UNODC)
NGOs can pay a constructive role in the process of trial of accused persons and, thereby, help in the conviction of offenders. This is an area which is largely untapped, though there are some examples of ‘good practices’ in the past. The police and prosecutors can associate NGOs in the following ways:
NGOs are of great help as counselors to orient and prepare the victim/ witness to face the court and proceedings in the court. They can assist in interpreting children’s perceptions and views.
NGOs can act as ‘child minders’ in the court to help out the child victim. The Supreme Court of India, in its judgement dated 26th May 2004, (Sakshi vs UOI) directed that such provision be made in the trial of all cases of sexual assault on children.
NGOs can assist in providing translators when the victim speaks a different language (i.e. STOP, a Delhi-based NGO assisted the court in translating Bengali to Hindi when child victims trafficked from Bangladesh to Delhi were tendering their evidence in the Delhi Court).
NGO as prosecutor: According to an order passed by the High Court of
Calcutta, SLARTC, a Kolkata-based NGO, has been authorized to handle
the prosecution work of all trafficking cases. The NGO has substituted State prosecutors and is utilizing the services of private lawyers to argue the case on behalf of the victim and the state. This experiment has been working well for several years.
NGO Networks are a very good tool for police in addressing inter state and trans-border trafficking. Several strong and effective networks of NGOs are available. Their services can be utilized for rescue, repatriation, transfer of information and such other services and processes in combating and preventing trafficking. Since government agencies are bound by rules and procedures which have jurisdictional restrictions, NGOs come handy as they have no such limitations. However, all such information and intelligence need to be formally brought through official channels, if they are to be utilized as evidence in the court of law. Moreover confidentiality of the information and the integrity of the NGO are relevant issues in decision making.
NGO Resource centres: Many NGOs have set up vast resource centres and networks which can be effectively utilized by the police in understanding the issues, for training and sensitization, as reference manuals and as guide books.(for example, the Resource centre of PRERANA, an NGO based at Mumbai).These resource centres are also helpful for evidence collection against offenders and in understanding the processes involved in trafficking.
Training police and other law enforcement agencies: Experience shows that NGO association has been fruitful and effective in the training processes, for developing training modules, getting appropriate resource persons, organizing training camps, supplying resource materials, process documentation of training programmes and impact assessment. During training sessions, NGO’s can present the ‘other side of the story’ which the law enforcement official may not be aware of. This would help in getting a complete picture and a holistic understanding of the issues.
SOME NGO WORKING ON TRAFFICKING
Saarthak (Dr Achal Bhagat) has brought out a Manual for forming therapeutic relationships. This is a guide book for counseling of trafficked persons from a human rights perspective, keeping in view their best interests. This NGO has set up a vast resource bank of trained counselors.
STOP, Delhi, has brought in revolution in the history of anti trafficking in India by their Human Rights approach in addressing the issues. They were instrumental in getting several trafficked persons rehabilitated appropriately by understanding the capability/need/interest of the person. Many have been respectfully married and settled by STOP. Many have got back to their original homes and are comfortably settled in their own private ambience.
The initiative by SANLAAP in networking with NGOs in Bangladesh and the police agencies (including BSF) in India, led to the safe transfer of persons trafficked from Bangladesh to India. The ‘push back’ system of illegal immigrants gave place to right-based ‘hand over’ of trafficked persons with dignity.
Prajwala, Hyderabad, has demonstrated the best of kinship and partnership among the Government- NGO-Corporates. The AMUL experiment, wherein the Corporate has employed trafficked persons and settled them properly, has made history in the world of rehabilitation in India.
The initiative by INGON Network of Meghalaya (some of them facilitated by the author) has brought about radical changes in the law enforcement and justice delivery scenario of Meghalaya. The state which never knew (or rather officially acknowledged) about trafficking, had to come to reality to the fact that several young women were trafficked and exploited to many metros like Mumbai, Pune etc. The network by this NGO has been instrumental in resuscitating several young girls and providing them with adequate strength to carry on with a life free from exploitation.
Shakti Vahini has been instrumental in bringing out the linkage of trafficking to illegal marriages and illegal organ transplant. Their initiative has brought succour to lot of victims and prevented many crimes. The various dimensions of trafficking, hitherto not recognized, have been exposed.
TI PROJECT at GB road, New Delhi being run in collaboration with NGOs Shakti Vahini and IMDT have made a coordination committee with the Police and TI functionaries which also includes Peer Educators in order to provide a platform where issues related to police are addressed. This has led to reduction of complaints against the Police and restored the community’s confidence in the Police. The outcome of this coordination committee has resulted in the proper functioning of HIV/AIDS programme. The coordination committee meets quarterly. The community also has pledged to support the fight against trafficking and will support police raids for forced prostitution.
Case of Puja
Puja a Trafficked victim was trafficked to Delhi, GB Road from Latur in Maharashtra. Her two children were also with her. She was in captivity for four years till she met Targeted Intervention Project workers of Shakti Vahini when she went for a HIV test at VCTC. She expressed her willingness to escape and asked for help. The TI workers arranged for all the logistics and after two days she escaped from the Red Light Area. The NGO placed her at Bapnu Ghar a short stay home in Delhi. In the meanwhile her HIV Test came and it was found out that she was HIV Positive. At once her treatment was started and after a brief stay at Bapnu Ghar Puja was shifted to a Short Stay Home run by Shakti Vahini in Faridabad. There Puja stayed for 1 year and she was trained to work as a counsellor for issues connected with HIV/AIDS. With her training she gained strength in her self esteem and was never undaunted by being HIV positive. After Training she got a job at Shakti Vahini as a telephone operator in Childline Gurgaon. She performed very well and also started going out on awareness campaigns. Meanwhile she placed her children at SOS Children Villages of India were they are studying and getting the best education. Puja occasionally visits her children and concentrates on her work. Her ART Treatment is going on very well at Ram Manohar Lohia Hospital . After three years of work experience Puja has now become a trainer in Police Training programmes and very bravely she explains the criminal side of the Red Light Areas. After three years of her job in Shakti Vahini she visited her home in Latur and was reunited with her family. She told her family that she works in an NGO on Child Rights in Delhi and happily displayed her ID Card. In 2006 she caught her trafficker while visiting the New Delhi Railway Station for her ART treatment. She caught hold of her trafficker and rescued the victim who was being trafficked. She lodged a complaint against her traffickers and also got the brothel owners arrested. She testified in the courts against the traffickers and perpetrators of the Crime. The case led to the closure of Brothel No 40 at GB Road .
Her aim is to educate as many people on HIV/AIDS and also spread awareness on human trafficking which is a trade in human misery
HIV/AIDS and Immoral Traffic (Prevention) Act 1956
In organized prostitution a lot of exploitation and abuse takes place which lead to unprotected sex. This has made sex workers one of the worst victims of many sexually transmitted diseases including HIV/Infection.
The Government of India under the auspices of the National AIDS Control Organization has launched various National Programmes which allows NGOs and Health Department officials to work with these marginalized groups. Presently the National AIDS Control Organization is implementing the National AIDS Control Programme Phase 3 (NACP III). One of the important aspects of NACP III is to work for the community organization of the marginalized women.
NACP III has the following four-pronged strategy:
• Prevent infections through saturation of coverage of high-risk groups with targeted interventions (TIs) and scaled up interventions in the general population.
• Provide greater care, support and treatment to larger number of PLHA.
• Strengthen the infrastructure, systems and human resources in prevention, care, support and treatment programmes at district, state and national levels.
• Strengthen the nationwide Strategic Information Management System.
Under NACP III, NGOs are running the Targeted Intervention Project across the country in the Red Light Areas or even in places where flying sex workers are present. The main objects of the Projects are to reduce vulnerability of women toward HIV/AIDS and Sexually Transmitted Diseases.
The Targeted Intervention Projects run by NGOs and AIDS Control Society work very closely with sex workers many of them who are now recruited as Peer Educators. The Peer Educators are workers from the community who reach out to sex workers for condom promotion and usage for reduction of vulnerability of women towards HIV/AIDS and STDs.
Police and Targeted Intervention Projects
As the Targeted Intervention Projects are being supported by the National AIDS Control Organization, Ministry of Health and Family Welfare, Government of India, the Police have an important partner in the fight against Trafficking of women and children in the form of Targeted Intervention Projects. Using this forum the police can work closely with NGOs and community workers and forge out a partnership which will ensure reduction of violence against women and also identification of the real perpetrators involved in human trafficking. This will also lead to zero reduction of re victimization of women who are themselves victims of trafficking.
Police can have regular interaction with these Targeted Intervention Projects and understand the various problems affecting the community. The role of peer educators needs to be understood by the Police and steps should be taken that the Peer Educators are not victimized in any police action. The role of peer educators in distribution of condoms and community empowerment has been given a very prominent place and is the core strategy in prevention of HIV/AIDS.
Immoral Traffic (Prevention) Act 1956 and Victims
Immoral Traffic (Prevention) Act 1956 purports to prohibit human trafficking and exploitation n of people in prostitution. However the Act has been misinterpreted and misused to arrest and harass sex workers who many a times are themselves victims of this inhuman trade.
The Action Research on Trafficking in Women and Children initiated by the National Human Rights Commission in 2002 uncovered several distortions in law enforcement. On the one hand there is the non utilization On the one hand, there is non utilization of sections of ITPA against traffickers and exploiters, and on the other hand, there is grave misuse of Section 8 ITPA, wherein victims are arrested, prosecuted and even convicted on the charge of soliciting. The legal concept of mens rea has to be investigated and the person should not be chargesheeted or convicted if mens rea is lacking. A person who is made to solicit under coercion, duress, threat, etc., cannot be charged with the offence of soliciting, as there is no mens rea.
A victim of trafficking should not be arrested at all. This calls for sensitivity and accountability of all concerned. Even if the person is wrongly charged, she should not be convicted. If the investigation is perfunctory, the court can call for further investigation. The protection of Human Rights of the victims needs to be ensured.
Protocols for Rescue during Raids for the Police
(Source: Protocols on Trafficking, MWCD, India and UNODC))
The Ministry of women and child has drafted certain protocols to be observed by the raiding team in carrying out investigation and rescue. They are as follows.
1. The Police agencies should develop effective partnership with appropriate NGOs working in this field. The Nodal Officer should take steps for getting Government notifications issued for the ‘Advisory body’ under Sec. 13 (3) (b) ITPA. However, pending such notification, nothing prevents the police from associating an NGO of its choice.
2. The police should prepare a list of officials which should include the details of the responders like Police officials, Prosecutors, Welfare officers etc. and all referral services including health care and all NGOs working in this field.
3. A trafficked person, irrespective of the nationality, place of domicile, sex or age is a ‘victim of crime’ and therefore, should never be treated as an accused.
4. The trafficked person’s rights have been violated; dignity robbed and they are highly traumatized. Therefore, every effort should be made to ensure that the harm is validated, and that they are not traumatized or victimized further
5. Take steps to ensure anonymity of the rescued persons. Try and maintain confidentiality of the rescue operations. S. 21 of JJ Act mandates ensuring anonymity of child victims. S. 228 A IPC provides anonymity to all victims of rape. If media comes to know of it, do brief the media persons about the need and method of maintaining anonymity.
6. Non – discrimination is a right of the rescued person. Take steps to ensure that rescued person is treated with dignity and provided access to all services of care and support without discrimination.
7. The rescued victims have a right to be informed as well as consulted on all matters and decisions that affect them.
8. Rescue cannot and should not wait. As and when information reaches the Police Station, through whatever means, the PS official should consult the District Superintendent of Police (SP) / Deputy Commissioner of Police (DCP) and the Special Police Officer.
9. Trafficking is an organized crime and a continuing offence. FIR can be registered, u/s. 5 (3) ITPA at the place of demand / destination area, or the place of transit, or at the place where the person was trafficked from (source area). It can be registered on the statement of any person (including NGO), therefore, in case of inter state rescue the visiting team should register an FIR in their jurisdiction before proceeding for inter – state rescue. However, in case of emergency rescue is possible even without an FIR.
10. Do carry out a reccee of the place to be searched. An official conversant with the local language should be sent to the place incognito. The help of local officers/ NGOs be taken, provided their identity remains undisclosed. Empowered survivors, who are willing to co-operate, could be ideal sources for reccee.
11. Identify persons under 18 years of age so that they can be sent to the Child Welfare Committee as they are ‘children in need of care and protection’ under the JJ Act.
12. The rescued adult persons are to be sent to the Magistrate. The Leader of the rescue team in consultation with NGO partner, and based on the prima – facie appearance of the person should take a decision as to whether the rescued person is a child or an adult. It would be appropriate to leave it to the decision of the CWC, if there is any doubt regarding the age.
13. Detailed interview of the rescued persons be carried out to know about their personal details like age, nativity, health status, family history, etc.; to identify their best interests so that actions can be oriented accordingly, and to understand the entire dimension of the crime. Interview must be carried out by a female police officer or in the presence of a female NGO worker as mandated u/s. 15 (6 A) ITPA.
14. Medical care and attention (including mental health) of the rescued persons is the responsibility of the HT. The rescued persons be sent to the nearest hospital for treatment of injury, and for age – determination. Steps should be initiated for De-addiction counseling / activities if called for.
15. Legal counseling of the rescued person will be a positive step in empowerment. The HT should network with lawyers and contact District Legal services Authority or the Bar Council for the same. A list of willing lawyers should be maintained at all PS.
16. For collection of evidence, ensure that:
a) The scene of crime is fully searched
b) All materials, exhibits, documents, are collected and preserved (such as mobile phones, diaries, registers in the brothel, financial records and networking with other traffickers, customers, electricity, water, telephone bills, ration cards, municipal tax receipts, travel documents, photographs, albums, condoms, etc.). Proper documentation be done by carrying out the seizure in front of two independent witnesses.
c) Videography / photography of the scene of crime
d) Videography / photography of the offenders
Narcotic Drugs and Psychotropic Substances Act, 1985
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act ) is the anti-drug law of India.
Drug Abuse in India
India has braced itself to face the menace of drug trafficking both at the national and international levels. Several measures involving innovative changes in enforcement, legal and judicial systems have been brought into effect. The introduction of death penalty for drug-related offences has been a major deterrent. The Narcotic Drugs and Psychotropic Substances Act, 1985, were enacted with stringent provisions to curb this menace. The Act envisages a minimum term of 10 years imprisonment extendable to 20 years and fine of Rs. 1 lakh extendable up to Rs. 2 lakhs for the offenders. The Act has been further amended by making provisions for the forfeiture of properties derived from illicit drugs trafficking. Comprehensive strategy involving specific programmes to bring about an overall reduction in use of drugs has been evolved by the various government agencies and NGOs and is further supplemented by measures like education, counseling, treatment and rehabilitation programmes.
The spread and entrenchment of drug abuse needs to be prevented, as the cost to the people, environment and economy will be colossal. The unseemly spectacle of unkempt drug abusers dotting lanes and by lanes, cinema halls and other public places should be enough to goad the authorities to act fast to remove the scourge of this social evil. Moreover, the spread of such reprehensible habits among the relatively young segment of society ought to be arrested at all cost. There is a need for the government enforcement agencies, the non-governmental philanthropic agencies, and others to collaborate and supplement each other’s efforts for a solution to the problem of drug addiction through education and legal actions.
This Act prohibits:
1. Cultivation of opium poppy y, cannabis and coca plants
2. Production, manufacture, possession, sale, purchase, transport, warehousing, use, consumption, import, export or transhipment of any narcotic drug or psychotropic substance except for medical and scientific purposes and as per the rules or orders and conditions of licence issued.
3. NDPS Act empowers central government to frame rules for certain purposes and state governments to frame rules for certain others. Thus, there are NDPS Rules, 1985 of the central government and state NDPS Rules of different states. Violation of any rule of either the state or central NDPS Rules attracts punishment under the NDPS Act.
POWERS OF THE POLICE UNDER THE NDPS ACT
Officers of the following departments can be empowered by the government by a general or a special order to enforce the NDPS Act:
1. Central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military and armed forces.
2. Revenue, drugs control, excise, police or any other department of the state government. They enjoy the following powers for enforcement of the Act.
1. A gazetted officer can authorise any officer subordinate to him (but superior in rank to sepoy, peon or constable) to search any building, conveyance or place by day or night (Section41 (2)).
2. Any officer superior in rank to sepoy, peon or constable can, without warrant (from a magistrate) or authorisation (from a gazetted officer), search any building, conveyance or place between sunrise and sunset (Section 42). He can also search between sunset and sunrise under certain circumstances.
IMMUNITIES FROM DRUG CASES
1. Officers Officers acting in discharge of their duties in good faith under the Act are immune from suits, prosecution and other legal proceedings (Section 69).
2. Addicts Addicts charged with consumption of drugs (section 27) or with offences involving small quantities will be immune from prosecution if they volunteer for deaddiction. This immunity may be withdrawn if the addict does not undergo complete treatment (Section 64 A ). It is pertinent to note that it is not essential that the drug, if any, found with the addict in small quantity, need not be for personal use.
3. Offenders Central or state governments can tender immunity to an offender in order to obtain his evidence in the case. This immunity is granted by
4. Minors All offences committed under any law by persons under the age of 18 will be covered by the Juvenile Persons (Care and protection) Act. This Act seeks to reform such juveniles rather than punish them under the respective Acts. It prevails over any other Act in respect of persons below the age of 18. Hence such persons cannot be prosecuted under the NDPS Act also.
Drug traffickers can be detained to prevent their illicit traffic through an executive order issue under the Prevention of Ilicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Proposals for preventive detention along with justification can be sent to Joint Secretary (NC) in the Department of Revenue or to designated detaining authorities of the state governments.
Forfeiture of Illegally acquired Property
You can never hurt the drug traffickers unless you deprive them of their ill-gotten wealth. Illegally acquired property of drug traffickers, their relatives and associates can be frozen or seized by the investigating officer under Chapter VA of the Act. A quasi-judicial authority called the
Competent Authority and Administrator decides the confirmation of such freezing/seizing order and the ultimate forfeiture of the property.
Any officer superior in rank to sepoy, peon or constable can seize drugs, materials used in their manufacture, controlled substances (i.e., precursors), conveyances, evidentiary material, etc. (Section 42).
DETENTION SEARCH AND ARREST OF PERSONS
Any officer empowered under Sections 41 and 42 can detain, search and if he thinks proper , arrest , any person whom he has reason to believe to have committed an offence punishable under the Act (Section 42 (1) (d)).
Any officer of the departments empowered to enforce NDPS Act can search ,seize and arrest in public places (Section 43).
Section 4(1) Central Government shall take all such measures as it deems necessary or expedient for the purpose of preventing and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein.
Section 4 2(d) Central Government may take under that sub-section include measures with respect to Identification, treatment, education, after care, rehabilitation and social reintegration of addicts
Section 7(A)(2) The Fund shall be applied by the Central Government to meet the expenditure incurred in connection with the measures taken for-
(a) Combating illicit traffic in narcotic drugs, psychotropic substances or controlled substances;
(b) Controlling the abuse of narcotic drugs and psychotropic substances;
(c) Identifying, treating, rehabilitating addicts;
(d) Preventing drug abuse;
(e) Educating public against drug abuse; and
(f) Supplying drugs to addicts where such supply is a medical necessity
64A. Immunity from prosecution to addicts volunteering for treatment
Any addict, who is charged with an offence punishable under section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances: Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.
71. Power of Government to establish centres for identification, treatment, etc. of addicts and for supply of narcotic drugs and psychotropic substances.
(1) The Government may, in its discretion, establish as many centres as it thinks fit for identification, treatment, education, after-care, rehabilitation, social re-integration of addicts and for supply, subject to such conditions and in such manner as may be prescribed, by the concerned Government of any narcotic drugs and psychotropic substances to the addicts registered with the Government and to others where such supply is a medical necessity.
ROLE OF POLICE
Before searching any person, explain to him that he has a right to be searched before a gazetted officer or a magistrate. If he so requires, take him to a gazetted officer or a magistrate before whom he can be searched. (Section 50.)
If you have reason to believe that it is not possible to take him to a gazetted officer or a magistrate without giving him a chance to part with the drug, controlled substance, etc. you can search him under Section 100 of the Cr. P. C.(Section 50(5) and 50 (6)).
Take down any information given by any person in writing before authorizing a search (Section 41).
If the search is under Section 42, also send a copy of the information taken in writing or the grounds of belief for search within 72 hours to your immediate superior officer.
Inform the arrested person, as soon as may be, the grounds of his arrest (Section 52 (1)).
If a person is arrested or an article has been seized under a warrant issued by a magistrate, forward the person/seized article to that magistrate (Section 52 (2)).
If the person has been arrested or the article has been seized otherwise than under a warrant , forward it to the nearest police station or any other officer empowered under section 53 (Section 52 (3)).
Assist officers of any other department empowered under Section 42 if they give you a notice or make a request (Section 56).
Whenever you arrest any person, make a full report to your superior within48 hours (Section 57)
Role of NGOs in prevention of drug abuse and spread of HIV among IDUs
Society for Promotion of Youth and Masses (SPYM)
Society for the Promotion of Youth and Masses (SPYM) recognize that substance abuse is a widespread affliction. The personal, social and economic costs are borne by the individual and the community as a whole is enormous. Drug dependency leads to productivity loss, domestic violence, depletion of family resources, increased street crime, etc. To address this menace, SPYM has been working closely with the Ministry of Social Justice & Empowerment since 1985. SPYM runs several Drop in Centres for Drug Addicts
Activities of the Drop in Centre includes needle exchange program , doctor consultations and referrals to other free medical services , referrals to ICTC for blood tests , abscess treatment, mobile exhibitions, for the sensitization of the local population concerning drug use, STIs and HIV/AIDS, counseling and follow-up visits for drug users , consistent monitoring program for drug users, to ensure a successful treatment regime and bipunorphine treatment for cocaine harm reduction (since August 2007)
De-addiction cum Rehabilitation Centres for Substance Abusers
SPYM has detoxification centres in Delhi, Jammu, Guwahati and Darjeeling, and these centres have been offering de-addiction cum rehabilitation for more than a decade. SPYM works in tandem with the Ministry of Social Justice & Empowerment. The objectives are to provide a well-formulated de-addiction and rehabilitation program covering motivational counseling, detoxification, sustained rehabilitation, relapse prevention and after-care.
The services include detoxification and emergency treatment , psychotherapy, family work and recreational therapy, individual/group counseling and family counseling , counseling and de-addiction camps, anti-drug film shows, follow-up program (vocational training for client who have just completed his/her rehabilitation) , narcotics anonymous (a safe space where substance dependents can offer mutual support)
SPYM also actively works on HIV Reduction among the IDUs .
The Bonded Labour System (Abolition) Act, 1976
Constitution of India:
Article 23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
The Bonded Labour System (Abolition) Act, 1976
An ordinance was promulgated by the President of India on 24th October, 1975 to prohibit bonded labour and to punish those who indulge in such illegal activities. That ordinance was subsequently transformed into an enactment vide the Bonded Labour System (Abolition) Act 1976.
(1) The basic object of this Act is to provide for abolition of bonded labour. It is intended to prevent the economic and physical exploitation of the weaker sections of society.
(2) Bonded Labour means any labour or service rendered under the Bonded labour system vide section 2(e) of the Bonded Labour System (Abolition) Act, 1976.
(3) “Bonded Labourer” means a labourer who incurs or has or is presumed to have incurred a bonded debt.
(4) Bonded Debt means an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance of the Bonded labour system.
(5) This system is known by different names in different regions, such as Adiyamar, Holya Kathiya. Essentially, it involves loan transactions under compulsive conditions with oppressive rates of interest and lingering liability to repay over the years and even through generations. Bonded Labour system is violation of human rights, infringement of equality and opposed to dignity of the individual.
(8) The Act provides for:-
(i) Abolition of Bonded Labour System.
(ii) Agreement / Custom / Tradition etc. for doing work or rendering service as bonded labour declared void and inoperative.
(iii) Liability to pay bonded debt is extinguished by operation of the law.
(iv) Property of bonded labour to be freed from mortgage.
(iv) Freed Bonded Labour not to be evicted from homestead etc.
(vi) Creditor not to accept payment against extinguished debt.
(10) Implementing Authorities.
District Magistrate, on being empowered by the State Government or any other officer subordinate to the DM to whom the powers and functions of the DM may be delegated by the DM. (In short, the District Magistrate or any other officer authorized by him.)
(11) The basic functions and duties of the Implementing Authorities:-
(a) Identification of bonded labourers.
(b) Release of the bonded labourers.
(c) Economic and Social rehabilitation of bonded labourers.
(d) To arrange for adequate credit in favour of freed bonded labourers.
(e) To bring the alleged offenders, against whom there exists reasonable evidence, to justice, through criminal trial.
(f) To defend civil suits against bonded labourers or members of their families.
(g) To restore possession of homestead or other premises back to the bonded labourer.
(12) Offences created under this Act:-
(i) Enforcement of bonded debt (Punishment up to 3 years and fine up to Rs.2,000/- (Sec -16).
(ii) Advancement of bonded debt (3 years & fine up to Rs 2,000, (Sec-17).
(iii) Extracting bonded labour under the bonded labour system – Three years imprisonment and fine up to Rs. 2,000/- (Sec 18).
(iv) Omission or failure to restore possession of property to bonded labourers one year or fine up to Rs. 1,000/- or both – (Sec 19).
(v) Abetment in the commission of any of the offences indicated in clauses (i), (ii) and (iii) above (Sec 20).
(13) Cognizable and bailable offence: Every offence under the Act shall be cognizable and bailable. (Sec 22)
(14) Triable by: Offences to be tried by Executive Magistrates.
(15) Summary Trial: An offence under the Act may be tried summarily.
Landmark Judgments on Bonded Labour
In Chakkalackal T v State of Bihar and Other SC 1999-III-LLJ
It has been held that with the enforcement of the Bonded Labour System (Abolition) Act , 1976 the obligation of bonded labour to repay any bonded debt does not exist
PUCL v State of Tamil Nadu and others WP (civil) No 3922 of 1985
The Supreme court has directed the NHRC to be involved in the monitoring of the Implementation of the Act
In Niraj Chaudri Vs M.P.Government. (1984,3, Supreme Court, 243)
The State should not be satisfied with the mere identification and release of the bonded labourers. The released bonded labourer thus should be rehabilitated properly. This is very important. If these are not properly rehabilitated because of poverty and helplessness, they may lose hope and return to the bonded labour system. This danger is always there. So releasing bonded labourers, without rehabilitating them is useless.
In Chanthal Burgana and Anthothia Ashram, the Government of Bihar (1987, Supreme Court, 141)
Each bonded labourer must be issued a certificate, immediately after he is released to the effect that he has once been a bonded labourer has now been released. Again, after the State Government should take immediate measures to rehabilitate them permanently.
Bandhua Mukti Morcha Vs Union of India and others
Ordinary course of human affairs would show, indeed judicial notice can be taken of it, that there would be no occasion for a labourer to be placed in a situation where he is required to supply forced labour for no wage or for nominal wage unless he has received some advance or other economic consideration for which he is required to render service to the employer or is deprived of his freedom of employment or of the right to move freely wherever he wants. Therefore, whenever it is shown that labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is, therefore a bonded labourer. This presumption may be rebutted by the employer and also the State Government if it so chooses but unless and until satisfactory matter is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act.”
Vigilance Committee to Combat Bonded Labour
Vigilance Committees should be constituted at the district and sub-divisional levels. District Vigilance Committee ought to consist of not more than 10 members, including three persons belonging to Schedules Castes or Schedules Tribes and two social workers. All of them should be local residents, to be nominated by the District Magistrate. That apart, there shall be not less than three persons to represent the official or non-official agencies connected with rural development, to be nominated by the state Government.
Similarly, Sub-Divisional Vigilance Committee should consist of 11 persons, including 3 members of the SC or ST, 2 social workers and not more than 3 persons to represent the official or non-official agencies in the sub-division.In each of these committees, there should be one person to represent the financial and credit institutions.
District Magistrate with the assistance of vigilance committees established under Bonded Labour System (Abolition ) Act 1976 makes a plan of rehabilitation of rescued bonded labour and gets it implemented. He is also responsible to provide release certificate which entitles the victim to get state compensation and also acess to other Government schemes.
Role Of Vigilance Committee
(i) To advise and ensure that the provisions of the Act are properly implemented.
(ii) To arrange for economic and social rehabilitation of freed bonded labourers.
(iii) To secure adequate credit in favour of freed bonded labourers.
(iv) To monitor prosecution of offences.
(v) To keep an eye on the number of cases where cognizance ought to be taken.
(vi) To defend any suit against any freed bonded labourer or any member of his family.
(vii) To co-ordinate the functions of the rural banks and co-operating societies.
The help of local officers/ NGOs be taken, provided the information remains confidential. Rescue team should, where ever possible, be accompanied by a Sub Divisional Magistrate (SDM), who is the implementing authority under the Bonded Labour System (Abolition)
Since the SDM is the implementing authority under the Bonded Labour Act, any complainant including an NGO can approach the SDM for rescue/ identification.
Interview of the victims should be done by a member of a recognized welfare institution or organization (NGO) or a qualified social worker.
Secure help of NGOs to act as witnesses.
Role of Police
As all the offences mentioned in The Bonded Labour System (Abolition) Act 1976 are cognizable offences the Police as soon as they come to know of such offence or if they get any information about Bonded Labour shall take a complaint under Section 154 Cr PC and reduce the same in writing and start investigation of as per Section 156 CrPC.
The Police should maintain a list of officials of labour department and NGOs working on Anti Human Trafficking in the area. If no NGO is available, the services of any Government employee/ panchayat representatives, etc. may be utilized during rescue operation.
Role of NGO and Civil Society:
It is evident that Vigilance Committees have been duly authorized by law to play vital roles in the implementation of the Act. The Vigilance Committees have more non-official than official members.
NGOs by and large, represent the interests of the poor & powerless, and are expected to have intimate knowledge about the local conditions. It is for them to keep a vigil and to activate the implementing machinery for translating into action the scheme as envisaged in the Act.
NGOs are expected to support the vigilance committee or Police department in the raids conducted for freeing bonded labour.
The police and the vigilance committee need to play a proactive role in rescue and rehabilitation of Bonded Labour and to provide all support to NGOs to conduct rescue operations.
NGOs working in the field and having reputation are likely to be inducted into the Vigilance Committees, either as social workers or members of the SC / ST or otherwise.
Even if they are not extended the membership of the committees, they may lend informal support or offer their assistance within the parameters of the Act.
That apart, NGOs may build up an informal support system, give information, and assist in the identification, detection of bonded labourer, their rehabilitation and social integration. That is the promotional role, which they are more oriented to play and equipped to perform.
NGOs play a very crucial role through the process of restoration and rehabilitation of a victim. NGOs officials participating in the rescue play a good role in evidence.
Compensation & Rehabilitation
According to the Centrally Sponsored Scheme for rehabilitation of bonded labour (as modified in May, 2000) each released bonded labour (after rescue and issuance of Release Certificate by DM) will get a rehabilitation grant of Rs. 20000/-, out of which Rs. 1000/- would be paid immediately on release as subsistence allowance.
(Abolition of Bonded Labour System: A Manual on Identification Release and Rehabilitation of Bonded Labour, Government of India, Ministry of Labour, New Delhi, February 2004)
Rehabilitation of bonded labour has two distinct components:
1. Psychological rehabilitation: The released bonded labour needs to be assured that s/he is a human being, entitled to earn an economic livelihood and have a decent living. Unless s/he is psychologically assured that debt need not regulate her/ his destiny, there is every possibility of him/ her being vulnerable to the vicious circle of trafficking and bondage.
2. Physical and economic rehabilitation has the components of –
Protection of civil rights
Allotment of house site and agricultural land
Land development (including irrigation of lands already in their possession and irrigation of lands allotted)
Provision of low cost dwelling units
Agriculture, animal husbandry, dairy, poultry, fodder cultivation, etc.
Training for acquiring new skills or developing existing skills
Traditional art and craft
Wage employment, enforcement of minimum wages, etc.
Collection and processing of minor forest produce
Health, medical care, sanitation, etc.
Education of children of released bonded labourers
(SOP on Investigation of Crimes of Trafficking for Forced Labour, 2008 UNODC)
NGO Police partnership
BAL VIKAS ASHRAM , ALLAHABAD
Bal Vikas Ashram is a rehabilitation center for children aged 8-14 who have been rescued from slavery in Uttar Pradesh, in northern India near Allahabad. The Ashram organizes raids to free children who have been taken hundreds of miles from their home villages and sold to carpet loom owners. In the 2008 , the Ashram carried out 19 raids and released 111 children. The children the Ashram rescues are often in a miserable state: they have been forced to weave rugs for 12-15 hours a day, locked in, fed only what it takes to keep them alive and kept in constant fear in order to prevent them from trying to escape. The freed children (with their parents’ consent) are taken to the Ashram and given medical care. Informal education is a high priority in the children’s busy but relaxed daily schedule. Once the children are literate and understand their rights, it is almost impossible for them to be enslaved again. Usually by the end of their 6 months to 1 year stay at the Ashram, they are able to attend the appropriate school class for their age. Older children are encouraged to explore their aptitudes for various types of vocational training, such as carpentry and tailoring. The Bal Vikas Ashram take the support of the Police Department in carrying out Rescue operations. The NGO Police partnership has been very successful in tackling the problem of Bonded Labour in the area. The Bal Vikas Ashram also networks with the District Administration to provide the rescued victims the release certificate and compensation. (Source : website Free the Slaves )
The Chandigarh Police have developed a Plan of Action in collaboration with local NGOs and Local clubs to keep a vigil on children being used for forced labour as well as on the village of Harpur Bazar and Siswania district as these are the main source of child labour. The police have also initiated a social awareness programme for child labour prone villages to raise awareness on the consequences of forced labour and the risk of falling prey to the traffickers while at work.The local NGOs have started non formal education for the children of identified villages in collaboration with Department of Women and Child , Chandigarh. ( Source : Compendium of Best Practices on Anti Human Trafficking by Law enforcement Agencies,UNODC ,2008)
THE CHILD LABOUR (PROHIBITION AND REGUALTION) ACT, 1986 AND RULES
Article 21 A
Right to Education
The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State, by law, may determine.
Prohibition of employment of children in factories, etc.
No child below the age fourteen years shall be employed in work in any factory or mine or engaged in any other hazardous employment.
The State shall, in particular, direct its policy towards securing:-
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
Under Section -2 of this Act a child means a person who has not completed the age of 14 .
Prohibition under the Act
Prohibition of Employment of Children in certain Occupations and Processes
Section – 3.
Prohibition of employment of children in certain occupations and processes No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on
Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by or receiving assistance or recognition from, Government.
Child Labour Technical Advisory Committee
This section empowers the Central Government to constitute the Child Labour Technical Advisory Committee for giving advice in the matter of inclusion of any occupation and process in the Schedule.
Settlement of Dispute with regard to Age
Section- 10. This section makes provision for settlement of disputes as to age of any child labour.
If any question arises between an Inspector and an occupier as to the age of any child who is employed or is permitted to work by him in an establishment, the question shall, in the absence of a certificate as to the age of such child granted by the prescribed authority, be referred by the Inspector for decision to the prescribed medical authority.
Section 14 makes provision for penalty for contravention of the provisions of the Act.
Section 14. (1)
Whoever employs any child or permits any child to work in contravention of the provisions of Sec. 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.
Whoever, having been convicted of an offence under Sec. 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years.
(3) Whoever –
(a) fails to give notice as required by Sec. 9, or
(b) fails to maintain a register as required by Sec. 11 or makes any false entry in any such register; or
(c) fails to display a notice containing an abstract of Sec. 3 and this section as required by Sec. 12; or
(d) fails to comply with or contravenes any other provisions of this Act or the rules made thereunder;
shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both
This section makes provision of penalties under the Act even when any person is found guilty and convicted of contravention of any of the provisions of Sec. 67 of the Factories Act, 1948, Sec. 40 of the Mines Act, 1952, Section 109 of the Merchant Shipping Act, 1958 and Sec. 21 of the Motor Transport Workers Act, 1961.
Section 15 – (1)
Where any person is found guilty and convicted of contravention of any of the provisions mentioned in sub-section(2), he shall be liable to penalties as provided in sub-sections (1) and (2) of Sec. 14 of this Act and not under the Acts in which those provisions are contained.
(2) The provisions referred to in sub-section (1) are the provisions mentioned below:
(a) Section 67 of the Factories Act, 1948 (63 of 1948);
(b) Section 40 of the Mines Act, 1952 (35 of 1952);
(c) Section 109 of the Merchant Shipping Act, 1958 (44 of 1958); and
(d) Section 21 of the Motor Transport Workers Act, 1961 (27 of 1961).
Complaint and Procedure of Disposal
This section lays down that any person, police officer or Inspector can make a complaint regarding commission of offences. It also lays down the procedure for disposal of such a complaint.
(1) Any person, police officer or Inspector may file a complaint of the commission of an offence under this Act in any Court of competent jurisdiction.
(2) Every certificate as to the age of a child which has been granted by a prescribed medical authority shall, for the purposes of this Act, be conclusive evidence as to the age of the child to whom it relates.
(3) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.
Appointment of Inspectors under the Act
This section empowers the appropriate Government to appoint inspectors for securing compliance of the provisions of the Act. Such Inspector is deemed to be a public servant with in the meaning f the Indian Penal Code
The appropriate Government may appoint inspectors for the purposes of securing compliance with the provisions of this Act and any inspector so appointed shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 0f 1860).
Provision of other Laws
Section-20 Certain other provisions of law not barred –
This section lays down that the provision of this Act shall be in addition to and not in derogation of, the provisions of the Factories Act, 1948, the Plantations Labour Act, 1951 and the Mines Act, 1952.
Subject to the provisions contained in Sec. 15, the provisions of this Act and the rules made there under shall be in addition to, and not in derogation of, the provisions of the Factories Act, 1948 (63 of 1948), the Plantations Labour Act, 1951 (69 of 1951) and the Mines Act, 1952 (35 of 1952).
(See Sec. 3)
Any occupation concerned with: –
(1) Transport of passengers, goods or mails by railways;
(2) Cinder picking, clearing of an ash pit or building operation in the railway premises;
(3) Work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from the one platform to another or in to or out of a moving train;
(4) Work relating to the construction of a railway station or with any other work where such work is done in close proximity to or between the railway lines;
(5) A port authority within the limits of any port;
(6) Work relating to selling of crackers and fireworks in shops with temporary licenses;
(7) Abattoirs/Slaughter House;
(8) Automobile workshops and garages;
(10) Handling of toxic or inflammable substances or explosives;
(11) Handloom and power loom industry;
(12) Mines (underground and under water) and collieries;
(13) Plastic units and fiberglass workshops;
(14) Domestic workers or servants and
(15) Dhabas (roadside eateries), restaurants, hotels, motels, tea shops, resorts, spas or other recreational centres.
(3) Cement manufacture, including bagging of cement.
(4) Cloth printing, dyeing and weaving.
(5) Manufacture of matches, explosives and fire-works.
(6) Mica-cutting and splitting.
(7) Shellac manufacture.
(8) Soap manufacture.
(11) Building and construction industry.
(12) Manufacture of slate pencils (including packing).
(13) Manufacture of products from agate.
(14) Manufacturing processes using toxic metals and substances such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos.
(15) “Hazardous processes” as defined in Sec. 2 (cb) and ‘dangerous operation’ as notice in rules made under section 87 of the Factories Act, 1948 (63 of 1948)
(16) Printing as defined in Section 2(k) (iv) of the Factories Act, 1948 (63 of 1948)
(17) Cashew and cashewnut descaling and processing.
(18) Soldering processes in electronic industries.
(19) ‘Aggarbatti’ manufacturing.
(20) Automobile repairs and maintenance including processes incidental thereto namely, welding, lathe work, dent beating and painting.
(21) Brick kilns and Roof tiles units.
(22) Cotton ginning and processing and production of hosiery goods.
(23) Detergent manufacturing.
(24) Fabrication workshops (ferrous and non ferrous)
(25) Gem cutting and polishing.
(26) Handling of chromite and manganese ores.
(27) Jute textile manufacture and coir making.
(28) Lime Kilns and Manufacture of Lime.
(29) Lock Making.
(30) Manufacturing processes having exposure to lead such as primary and secondary smelting, welding and cutting of lead-painted metal constructions, welding of galvanized orzinc silicate, polyvinyl chloride, mixing (by hand) of crystal glass mass, sanding or scraping of lead paint, burning of lead in enameling workshops, lead mining, plumbing, cable making, wiring patenting, lead casting, type founding in printing shops. Store type setting, assembling of cars, shot making and lead glass blowing.
(31) Manufacture of cement pipes, cement products and other related work.
(32) Manufacture of glass, glass ware including bangles, florescent tubes, bulbs and other similar glass products.
(33) Manufacture of dyes and dye stuff.
(34) Manufacturing or handling of pesticides and insecticides.
(35) Manufacturing or processing and handling of corrosive and toxic substances, metal cleaning and photo engraving and soldering processes in electronic industry.
(36) Manufacturing of burning coal and coal briquettes.
(37) Manufacturing of sports goods involving exposure to synthetic materials, chemicals and leather.
(38) Moulding and processing of fiberglass and plastic.
(39) Oil expelling and refinery.
(40) Paper making.
(41) Potteries and ceramic industry.
(42) Polishing, moulding, cutting, welding and manufacturing of brass goods in all forms.
(43) Processes in agriculture where tractors, threshing and harvesting machines are used and chaff cutting.
(44) Saw mill – all processes.
(45) Sericulture processing.
(46) Skinning, dyeing and processes for manufacturing of leather and leather products.
(47) Stone breaking and stone crushing.
(48) Tobacco processing including manufacturing of tobacco, tobacco paste and handling of tobacco in any form.
(49) Tyre making, repairing, re-treading and graphite benefication.
(50) Utensils making, polishing and metal buffing.
(51) ‘Zari’ making (all processes)’.
(53) Graphite powdering and incidental processing;
(54) Grinding or glazing of metals;
(55) Diamond cutting and polishing;
(56) Extraction of slate from mines;
(57) Rag picking and scavenging.
(58) Process involving exposure to excessive heat
(59) Mechanised fishing
(60) Food Processing
(61) Beverage Industry
(62) Timber handling and Loading
(63) Mechanical Lumbering
(64) Ware housing
(65) Process involving exposure to free silica such as slate , pencil industry ,stone grinding,slate stone mining , stone quarries , agate industry.
Supreme Court Judgements:
On 10th December 1996 in MC Mehta vs State of Tamil Nadu & Ors (Writ Petition (Civil) No.465/1986) the Supreme Court of India, gave certain directions on the issue of elimination of child labour. The main features of judgment are as under:
1. Survey for identification of working children;
2. Withdrawal of children working in hazardous industry and ensuring their education in appropriate institutions;
3. Contribution @ Rs.20,000/- per child to be paid by the offending employers of children to a welfare fund to be established for this purpose;
4. Employment to one adult member of the family of the child so withdrawn from work and it that is not possible a contribution of Rs.5,000/- to the welfare fund to be made by the State Government;
5. Financial assistance to the families of the children so withdrawn to be paid -out of the interest earnings on the corpus of Rs.20,000/25,000 deposited in the welfare fund as long as the child is actually sent to the schools;
6. Regulating hours of work for children working in non-hazardous occupations so that their working hours do not exceed six hours per day and education for at least two hours is ensured. The entire expenditure on education is to be borne by the concerned employer.
National Child Labour Projects (NCLP)
This is the major scheme for the rehabilitation of child labour. Under the scheme, Project Societies at the district level are fully funded for opening up of special school/Rehabilitation Centres for the rehabilitation of child labour.
The special schools/Rehabilitation Centres provide non-formal education, vocational training, supplementary nutrition, stipend etc. to children withdrawn from employment.
The child workers identified in the survey are put in the special schools and provided the following facilities:
a) Non-formal/formal education
b) Skilled/craft training
c) Supplementary nutrition @ Rs. 5/- per child per day
d) Stipend @ Rs. 100/- per child per month
e) Health care facilities through a doctor appointed for a group of 20 schools.
Role of Voluntary Organizations
1. NGOs and voluntary organization can be members of the various committee under this Act
2. NGOs and Voluntary organization can receive grant in aid for the welfare and emancipation of Child Labour under the various schemes mandated by this Act .These schemes are NCLP & INDUS.
3. NGOs and civil society are empowered to register complaints regarding child labour to the court of competent jurisdiction.
4. NGOs and Voluntary agencies can help the labour department in rescue of child labour.
5. NGOs and Civil society can undertake awareness programmes within a community for the eradication of Child labour.
Role of Police
1. The police need to take cognizance of child labour and carry out rescue of child labour after informing the labour department.
2. Involve the civil society and voluntary organizations while carrying out raids for rescue of child labour.
BACHPAN BACHAO ANDOLAN
On 4 May 2007, a complaint was filed by Bachpan Bachao Andolan (BBA) with the Sub Divisional Magistrate (SDM), Karol Bagh, New Delhi for release of bonded labourers engaged in making jewelry articles, under the Bonded Labour System (Abolition) Act, 1976.
On 19 May 2007, 93 children were rescued in a joint operation by SDM, police, labour department officials and activists of BBA from jewelry units of New Delhi. All the children had been trafficked from West Bengal to New Delhi. The rescued children were immediately taken to a short stay home where the SDM recorded their statements.
On 19 May 2007, the SDM also directed that FIR be registered against all employers u/S. 367, 374 of IPC and Sec. 16 of Bonded Labour Act. The labour department initiated action under the Child Labour (Prohibition and Regulation) Act, 1986 against the employers.On 25 May 2007, the Resident Commissioner of West Bengal was approached for repatriating the victims back to West Bengal. In the first week of June all the victims were repatriated to their families.Based on the statements of these 93 victims and the modus operandi of their traffickers, the Police in West Bengal was approached and investigation against all traffickers was commenced by the West Bengal Police.
A Public Interest Litigation was filed in the High Court of Delhi against child labour in jewelry units to put an end to all trafficking and forced labour in jewelry units and on orders of the Court many more trafficked children were rescued from the area.
On 29 May 2007, all the children were provided with a Release Certificate under the Bonded Labour Act which entitled the victims to a rehabilitation package of Rupees 20,000/- and many other social welfare benefits totaling to more than Rupees 20lakh.
As a result of all the actions taken by BBA, on 31 May 2007, the employers first attacked the rehabilitation home to forcibly take away the children. When they were not successful, they brought the parents over from West Bengal to move applications for handing over custody to the parents without holding any inquiry. However, the SDM counseled the parents himself and repatriated the children through the correct legal process.
(Source: SOP on Investigation of Crimes of Trafficking for Forced Labour,UNODC 2008)
Juvenile Justice Act (Care & Protection Act) 2006
An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.
The salient features of this Act is to :
1. To lay down the basic principle for administering Justice to a Juvenile.
2. To make the juvenile system meant for a juvenile or the child more appreciative of the development needs in comparison to criminal justice system as applicable to adults.
3. To prescribe a uniform age of eighteen years for both boys and girls
4. To ensure speedy disposal of cases by the authorities with regard to cases related to Juveniles
5. To spell out the role of the state as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the Act
6. To create a special juvenile police for a more humane approach through sensitization and training of police personnel..
7. To enable increased accesability to a juvenile or the child by establishing Juvenile Justice Board and Child Welfare Committee and homes in each district or group of district.
8. To minimize the stigma keeping with the development needs of the juvenile or the child.
9. To provide for effective an various alternatives for rehabilitation and social integration such as adoption , foster care , sponsorship and aftercare of abandoned destitute and neglected child.
The Act was again amended by The Juvenile Justice (Care and Protection of Children) Amendment Act 2006.The aim of the amendment was
1. To clarify that the Juvenile Justice Act shall apply to all cases involving detention or criminal prosecution of juveniles under the law.
2. To remove doubts regarding the relevant date in determining the juvenility of a person
3. To have a procedure laid down whenever claim of Juvenility is raised in the court.
4. to have a minimum period of 24 hours within which a child should be produced before the Juvenile Justice Board and Child Welfare Committee.
5. To provide for alternatives to detention in the observation homes to achieve the intention of Juvenile Justice Act.
6. To do away with the association of a Police Officer from the inquiry process for child in need of care and protection as the same is transferred to the Child Welfare Committee.
In this Act, unless the context otherwise requires,-
a. “advisory board” means a Central or a state advisory board or a district and city level advisory board, as the case may be, constituted under section 62;
b. “begging” means-
i. soliciting or receiving alms in a public place or entering into any private premises for the purpose of soliciting or receiving alms, whether under any pretence;
ii. exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;
c. “Board” means a Juvenile Justice Board constituted under sec 4;
d. “child in need of care and protection” means a child –
i. who is found without any home or settled place or abode and without any ostensible means of subsistence,
ii. who resides with a person (whether a guardian of the child or not) and such person-
a. has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or
b. has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person,
iii. who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,
iv. who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,
v. who does not have parent and no one is willing to take care of or whose parents have abandoned him or who is missing and run away child and whose parents cannot be found after reasonable injury,
vi. who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,
vii. who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
viii. who is being or is likely to be abused for unconscionable gains,
ix. who is victim of any armed conflict, civil commotion or natural calamity;
e. “children’s home” means an institution established by a State Government or by voluntary organisation and certified by that Government under section 34;
f. “Committee” means a Child Welfare Committee constituted under section 29;
g. “competent authority” means in relation to children in need of care and protection a Committee and in relation to juveniles in conflict with law a Board;
h. “fit institution” means a governmental or a registered non-governmental organisation or a voluntary organisation prepared to own the responsibility of a child and such organisation is found fit by the competent authority;
i. “fit person” means a person, being a social worker or any other person, who is prepared to own the responsibiliy of a child and is found fit by the competent authority to receive and take care of the child;
j. “guardian”, in relation to a child, means his natural guardian or any other person having the actual charge or control over the child and recognised by the competent authority as a guardian in course of proceedings before that authority;
k. “juvenile” or “child” means a person who has not completed eighteenth year of age;
l. “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence;
m. “local authority” means Panchayats at the village and Zila Parishad at the district level and shall also include a Municipal Committee or Corporation or a Cantonment Board or such other body legally entitled to function as local authority by the Government;
n. “narcotic drug” and “psychotropic substance” shall have the meanings respectively assigned to them in the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985);
o. “observation home” means a home established by a State Government or by a voluntary organisation and certified by that State Government under section 8 as an observation home for the juvenile in conflict with law;
p. “offence” means an offence punishable under any law for the time being in force;
q. “place of safety” means any place or institution (not being a police lock-up or jail), the person incharge of which is willing temporarily to receive and take care of the juvenile and which, in the opinion of the competent authority, may be a place of safety for the juvenile;
r. “prescribed” means prescribed by rules made under this act;
s. “Probation officer” means an officer appointed by the State Government as a probation officer under the Probation of Offenders Act, 1958 (20 of 1958);
t. “public place” shall have the meaning assigned to it in the Immoral Traffic (Prevention) Act, 1956 (104 of 1956);
u. “shelter home”
v. “special home” means an institution established by a State Government or by a voluntary organisation and certified by that Government under section 9;
w. “special juvenile police unit” means a unit of the police force of a State designated for handling of juveniles or children under section 63;
x. “State Government” , in relation to a Union territory, means the Administrator of that Union territory appointed by the President under article 239 of the Constitution;
y. all words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that code.
JUVENILE IN CONFLICT WIL LAW
Sec 4 Composition of JJ Board
Sec 6 Powers of JJ Board
Sec 8 Observation Homes establishment
Sec10 Apprehension of Juvenile in Conflict with law.
No juvenile shall be put in a lock up or lodged in Jail
It also provides for role of voluntary organizations for the production of juvenile in front of JJ Board
Sec 11 Restriction on a bail of a juvenile if there is a chance that he may come in contact with known criminals or expose him to moral or psychological danger
Sec18 No joint proceeding of a juvenile or a adult
Sec 21 Prohibition of publication of the name of a juvenile in conflict with law or chld in need of care and protection involved in any proceeding under the Act.
PUNISHMENTS UNDER THE ACT
Sec23 Punishment for cruelty of a Juvenile: extends upto six month or fine or both.
Sec 24 Employment of Juvenile or child for begging : extends upto 3 years
(2) abets the crime will be punished upto one year and liable for fine.
Sce 25 Penalty for giving intoxicating liquor or narcotics drugs to a juvenile or a child shall be punishable upto three years and shall also be liable for fine.
Sec 26 Exploitation of Juvenile or child Employee shall be punished upto three years and also liable to fine.
Sec 27 All offences under the Juvenile Justice Act are cognizable
Sec28 If greater punishment is available for the offence that law will be applicable which provides for a higher degree of punishment.
CHILD IN NEED OF CARE AND PROTECTION
Sect 29 Formation of Child Welfare Committee. This provides for women members and child rights experts to be part of the Committee.
Sec 31 Powers of the committee: to dispose of cases for the care , protection , treatment ,development and rehabilitation of children so as to provide for there basic needs and protection.
Sec 32 Production of Child in need of care and protection may be produced by any public spirited person, NGOs , Childline, social workers or child welfare officer
Sec 33 Enquiry shall be completed in a time bound period i.e. four month.
Sec 34 Establishment of children homes.
All children homes , govt or private need to be registered under this act.
Sec 35 Shelters homes of reputed voluntary organizations to be provided support. The same needs to be recognized by the State Governments.
Sec 50 Provision of Home Investigation Report by Social workers NGO or Probation officer
Sec 62 Formation of Central, State District and city advisory boards
Sec 62A State Government shall constitute a Child Protection Units for states and such unit for every district for the overall implementation of the Act
Sec 63 Provision of a Special Juvenile Police Unit
Role of Police
There is a constant effort to decriminalize the Juvenile Justice System and view the child as a victim of social system created by adults – the role of the Police is very crucial. The Role of the Police in the Implementation of the Juvenile Justice (Care and Protection Act) ,2000 is more significant in the Child in need of Care and Protection:
1. If a Child in need of Care and protection is presented to the Police , the police need to produce the Child in front of the Chil Welfare Committee.
2. The investigation of Crimes against children need to be completed in time bound .
3. The rescue of children from exploitative condition can be undertaken by the Police under Section 32 of the Juvenile Justice (Care and Protection ) Act 2000.Childline, Social Workers , Public spirited persons can produce the child to the police.
4. The Juvenile Justice (Care and Protection ) Act 2000 mandates for the protection of the identity of the child and the police needs to ensure it.
5. Assist the Child Welfare Committee and the JJ Board
6. Present a report to the CWC or JJB
7. Escort children in tracing and repatriation
8. Take the child to the hospital for age verification and medical examination.
9. Record evidences and present it to the CWC.
10. As the Police department is many a times the first contact of children who are in conflict with law or are in need of care and protection a sensitized and a Child friendly police staff is a must for the implementation of the Act.
Role of NGOs
The mobilization of the entire civil society is necessary to protect the rights of the vulnerable children. Only when society gets sensitized and become aware of the issues of the Children and recognize they are the nations future will there be significant contribution towards the promotion of child rights.
1. The NGOs have a role to play in the implementation of the Juvenile Justice Act.
2. They can be part of the Child Welfare Committee or associate with the Juvenile Justice Board.
3. NGOs and Voluntary organization need to get themselves registered under the Juvenile Justice Act .
4. Reputed NGOs and Voluntary organization can run Observation homes and child shelters and get supported by the state .
5. They can also be part of the Child Protection Unit in State level or District Level
6. They can also be part of Central State and District advisory Boards .
7. NGOs, Civil Society and Social Workers can produce Children in need of care and protection to the Police or the Child Welfare committee.
8. NGOs and Voluntary organization can be authorized by the Child Welfare Committee to get Home Investigation report for children who need to be repatriated to different states.
9. NGOs and Civil Society can undertake Police sensitization programmes to make them child friendly
10. NGOs can become part of CHILDLINE 1098 and provided 24 hours support to children in distress and in need of Care and protection.
Shakti Vahini runs the Gurgaon Childline which is a 24 Hour emergency helpline for children in distress. It also rescues lot of Child Victims of Trafficking for labour and commercial sexual exploitation. To get the support of the Police forces Shakti Vahini has conducted several Police sensitization programmes in Haryana. In Gurgaon it has undertaken 2 Police training programmes and maintains a network with all Police Stations in Gurgaon. This initiative has helped Shakti Vahini to ensure a child friendly police. It also gets complete support of the police in matters of crime against children. Also the network of Police created by its police sensitization programmes has helped Shakti Vahini to conduct many rescue operations against child rights violation.
CHILDLINE 1098 is a 24 hour emergency helpline for the support of Child in Need of Care and protection. It is being run in 82 cities in India and is supported by the Ministry of Women and Child Government of India.
PRAYAS in Delhi runs various observation homes in collaboration with the Govt of NCT of Delhi. Prayas also is a part of the Childline network . Prayas provides alternative education to 50,000 street, neglected and working children. Most of these are in Delhi but Prayas education centres are also located in Bihar, Gujarat, Assam, Haryana and the Andaman and Nicobar Islands. Children who have fallen out of the government education system are provided with quality non-formal education in order to allow them to catch up and reintegrate into the state system. Students are given mid-day meals and regular health check ups. Prayas is one of India’s leading advocacy groups for the rights of children. It has consistently lobbied the government for more resources for education and health for children and stronger legislation protecting children. It has carried out major studies on issues including child labour and trafficking. Prayas was selected by the government to help carry out the National Child Abuse Study, the largest project of its kind ever carried out in India.
THE PROBATION OF OFFENDERS ACT, 1958
An Act to provide for the release of offenders on probation or after due admonition and for matters connected therewith.
Areas of concern
Releasing of offenders instead of sentencing them in case of the conviction in an offence where the punishment is not more than two years or with fine, or with both.
Releasing offenders after admonition: (Section 3)
The court has power to release an offender after admonition, if he/she is convicted for the first time .The court will also consider the nature of the offence committed and character of the offender.
Releasing the offenders on probation of good conduct: (Section 4)
The court has the power to release the offenders on probation of good conduct for a maximum period of three years. Under Section 5 The court may order the offender to pay compensation to such person who has got injury because of the commission of such offence.
Specific power in dealing with offenders under 21 years of age (Section 6)
A person under twenty-one years of age has committed an offence, which is not punishable with imprisonment till life, can be released on admonition or probation of good conduct instead of sentencing. The court can also order for imprisonment if it thinks necessary after giving reason for doing so. The court can ask for the report from probation officer to know about the character and physical and mental condition of the offender.
Section 8(3) -The court if it thinks proper, on the application of the probation officer that the conduct of the offender does not require to be kept under probation, discharge the offender from the bond entered by him.
Section 9- The court may issue a warrant for the arrest or summon the offender if he fails to comply with any of the condition of the bond. The offender can be arrested or released on bail Or sentenced for the original punishment.
Section -14 Functions of the Probation Officer
• To inquire as per the direction of the court about the character, circumstances and surroundings of an accused and submit a report to the court so that it can take appropriate decision with regard to the punishment for him.
• To supervise the probationers and find if necessary, suitable employment for them.
• To advise and assist the offenders in paying the cost imposed by the court.
• To advice and assist the persons who have been released on probation of good conduct.
• To fulfil any other prescribed duty.
Institution / Authorities Created
• Police as an agency to deal with law and order and investigate an offence is permanently created by the state.
• Court is also a permanent body .Its role in matters related to this Act is vital. It is the court, which can release a person under the provisions of this Act.
• The District Magistrate of the area where the offender resides may appoint any probation officer at the place of the offender as mentioned in the supervision order.
• Probation Officer-The state govt. should appoint a person or a person provided by a registered society to work as a probation officer.
Section 9(1) To fail in observing any of the condition of the bond.
• The court may issue a warrant of arrest or summon such person.
• It may release him on bail or sentence him for the original sentence.
When the offender is released on the probation of good conduct, it is very often that he is released on a condition to work in any of the NGOs as may be prescribed by the court for a certain period and the report of his conduct is required from such NGOs.
Role of NGO
Under Section 13(1) The act gives the civil society organization a responsibility to provide for a person to work as a probation officer.
THE PROHIBITION OF CHILD MARRIAGE ACT, 2006
The Act defines a child as a person who if male is below the age of 21 years of if female is below the age of 18 years. In a marriage, when either of the party is a child, it is considered to be a child marriage. It is not necessary that both the parties have to be children for the marriage to be a child marriage. It is sufficient for one of the parties to be a child, for the marriage to be a child marriage.
Sec 2 (a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;
Sec 2 (b) “child marriage” means a marriage to which either of the contracting parties is a child;
Sec2 (c) “contracting party”, in relation to a marriage, means either of the parties whose marriage is or is about to be thereby solemnised;
Sec2 (d) “Child Marriage Prohibition Officer” includes the Child Marriage Prohibition Officer appointed under sub-section (1) of section 16;
Sec2 (e) “district court” means, in any area for which a Family Court established under section 3 of the Family Courts Act, 1984 exists, such Family Court, and in any area for which there is no Family Court but a city civil court exists, that court and in any other area, the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;
Sec2 (f) “minor” means a person who, under the provisions of the Majority Act, 1875 is to be deemed not to have attained his majority.
Child Marriages Voidable:
Sec3 States that Child marriages are voidable at the option of contracting party being a child. Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.
Maintenance and residence to female contracting party to child marriage.
Sec 4 (1) While granting a decree under section 3, the district court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage.
Sec 4 (2) The quantum of maintenance payable shall be determined by the district court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party.
Sec4 (3) The amount of maintenance may be directed to be paid monthly or in lump sum.
Sce 4 (4) In case the party making the petition under section 3 is the female contracting party, the district court may also make a suitable order as to her residence until her remarriage.
Children out of Child Marriage:
Section 5 provides for maintenance of children born out of child marriage whereas Section 6 provides for legitimacy of children born out of child marriage even though the marriage has been declared a nullity.
Section 9. Punishment for male adult marrying a child.- Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.
Section-10 Punishment for solemnising a child marriage.- Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
Punishment for promoting or permitting solemnisation of child marriages. –
Section11 (1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees. Provided that no woman shall be punishable with imprisonment.
Section 11(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.
Section 12. Marriage of a minor child to be void in certain circumstances.-
Where a child, being a minor-
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.
Power of court to issue injunction prohibiting child marriages.
Section 13 (1) Notwithstanding anything to the contrary contained in this Act, if, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage.
Section 13 (2) A complaint under sub-section (1) may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.
Section 13 (3) The Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also take suo motu cognizance on the basis of any reliable report or information.
Section 13 (4) For the purposes of preventing solemnisation of mass child marriages on certain days such as Akshaya Trutiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officer with all powers as are conferred on a Child Marriage Prohibition Officer by or under this Act.
Section 13 (5) The District Magistrate shall also have additional powers to stop or prevent solemnisation of child marriages and for this purpose, he may take all appropriate measures and use the minimum force required.
Nature of Offence
Section 15 makes all offence under Child Marriage Prohibition Act cognizable and nonbailable
Child Marriage Prohibition Officer
Section 16. (1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification.
Members to assist the Child Marriage Prohibition Officer
Section 16 (2) The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any non-governmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly.
Duties of Child Marriage Prohibition Officer
Section 16 (3) It shall be the duty of the Child Marriage Prohibition Officer-
(a) to prevent solemnisation of child marriages by taking such action as he may deem fit;
(b) to collect evidence for the effective prosecution of persons contravening the provisions of this Act;
(c) to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages;
(d) to create awareness of the evil which results from child marriages;
(e) to sensitize the community on the issue of child marriages;
(f) to furnish such periodical returns and statistics as the State Government may direct;
(g) to discharge such other functions and duties as may be assigned to him by the State Government.
Role of NGOs
Child marriage is a social evil and hence it is the duty of the NGOs to spread awareness of the ill effects of Child marriage
Under the Act NGO have been provided a role to inform the Child Marriage Prohibition Officer/Police or Magistrate the solemnization of such marriages.
Also the Act provides for a role of NGOs to assist the Child Marriage Prohibition Officer.
Role of Police
As all offences are cognizable and non bailable the police have a role to investigate the crime.
THE INDECENT REPRESENTATION OF WOMEN
(PROHIBITION) ACT, 1986
An Act to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.
Definitions: (Section 2)
“advertisement” includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas;
“distribution” includes distribution by way of samples whether free or otherwise;
“indecent representation of women” means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals;
“label” means any written, marked, stamped, printed or graphic matter, affixed to, or appearing upon, any package;
“package” includes a box, a carton, tin or other container;
“prescribed” means prescribed by rules made under this Act.
Prohibition of advertisements containing indecent representation of Women (Section-3)
No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.
Prohibition of publication or sending by post of books, pamphlets, etc; containing indecent representation of women. (Section-4)
No person shall produce or cause to be produced, sell , let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph , representation or figure which contains indecent representation of women in any form:
Provided that noting in this section shall apply to-
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure –
(i) the publication of which is proved to be justified as justified as being for the public good on the ground that such book, pamphlet, paper, slide , film, writing, drawing, painting, photography, representation or figure is in the interest of science, literature, art, or learning , art, or learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purpose;
(b) any representation sculptured, engraved, painted or otherwise represented on or in –
(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (24 of 1958); or
(ii) any temple, or on any car used or the conveyance of idols, or kept or used for any religious purpose;
any film in respect of which the provisions of Part II of the cinematograph Act, 1952 (37 of 1952), will be applicable.
Powers to enter and search. (Section 5)
Subject to such rules as may be prescribed, any Gazetted Officer authorized by the State Government may, within the local limits of the area for which he is so authorized will have the powers to enter search and seize the advertisement, book or pamphlet. The same he has to produce as soon as he may to the Magistrate.
The Gazetted officer can also examine any record, register, document or any material record found when he enters a place in connection with this Act and can seize such material if he finds it useful for evidence.
The authorised officer will prepare a list of the advertisement or any other material seized , in the form annexed in the Rules. This list will be signed by the authorised officer, by the person from whose custody such seizure has been made and two respectable inhabitants of the area.
The authorised Officer will pack and seal the advertisement with due care to ensure that the integrity, utility or saleable value of such advertisement or article is not affected in any way.
Penalty. (Section 6 )
Any person who contravenes the provisions of Sec 3 or Sec 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.
Offences by Company (Section 7)
When an offence under this Act has been committed by a company all those who were in charge of the project at the time will be liable to be proceeded and punished.
All offences under this Act are cognizable and bailable
Role of NGO:
For the implementation of such an act the role of the NGO is to bring to the notice of the concerned department /official the publication of the indecent representation.
It can create awareness about various monitoring agencies created by the government to deal with publication and advertisement
An NGO can render its assistance to the authorised officer when asks to do so, while he goes for search and seizure of illegal materials under this Act .It can sign the list of the seized materials as a witness thereof.
The NGOs can assist and refer the cases related to this Act to the Police and keeping in view of the social understanding of the NGO, the Police may will take appropriate action.
THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005
Article 14 & 16(4) intend to remove social and economic inequality. Article 15(3) permits special provisions for women and children. Article 21 spells that no person shall be deprived of his life or personal liberty. Article 51A(e) imposes the duty of every citizen in India to renounce practices derogatory to the dignity of women.
An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.
This act takes into account domestic violence in all type of relationship. The Domestic Violence Act is a proactive law which takes into account all types of violence in modern day families.
In the definition of Child this act recognizes adopted, step or foster children
The Act recognizes relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
Definition of Domestic Violence
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.-For the purposes of this section,-
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes-
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes-
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Protection officers are empowered for receiving the complaint of a domestic violence In each district the govt. shall appoint protection officers by notification . Such protection officers shall be women preferably.
Duties of Protection Officers:
9(1)(a) To assist the Magistrate
9(1)(b) To make a domestic Incident Report and forward it to Magistrate and Police Officials.
9(1)(c) Make application for claiming relief of issuance of protection order
9(1)(d) If desired to provide legal aid under Legal services authority Act.
9(1)(e) To maintain list of all service providers
9(1)(f) To make available safe shelter homes
9(1)(g) To get aggrieved person medically examined
9(1)(h) To ensure that monetary relief under Sec 20 of CrPC
9(1)(i) To perform other duties
9(2) Protection officer to be under the supervision of magistrate
Under Sec 10 Voluntary organizations registered under Society Registration Act / Companies Act or any other Law with the objective of protecting the rights of women and providing legal aid, medical financial and other assistance can get themselves registered as service providers under the Act. The service providers have the powers of recording the domestic incident report, get the aggrieved person medically examined and ensure that the aggrieved person is provided shelter. The section provides immunity to service providers from law suits.
Duties of Government
The Central as well as State Govt shall publicize the provision of this Act for general public, sensitise and train its officials, ensure effective coordination for the implementation of the law under Section 11.
Application of an aggrieved person is submitted to the magistrate(Sec-12).The magistrate can direct for counseling (Sec 14) and also take support of an expert (Sec15).
Right to reside
This act provides the right to residency even during pendency of the case and also ensures that the aggrieved person shall not be evicted or excluded from the shared household except by procedure established by law (Sec 17).
The magistrate can pass a protection order and prohibit the respondent from committing any domestic violence , aiding or abetting such violence, entering the school or work place, attempt to communicate in any form, alienting from property bank account and stridhan. It also protects the aggrieved persons relatives and dependants from any violence by the respondents (Sec 18).
The magistrate after hearing may pass orders providing Residence orders (Sec 19) and monetary reliefs (Sec 20).
Act not in derogation of any other law
The provisions of this Act shall be in addition to and not in derogation of any other law.
Under Sec 31(1), A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
Under Section 31(3) While framing charges under sub-section 31(1), the Magistrate may also frame charges under section 498A of the Indian Penal Code 1860 or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
Role of Police :
Under Section 5 of the Act the Police officer has a duty to provide the following information to the aggrieved person when it receives a complaint of domestic violence or is present at the place of incident of domestic violence or if a incident of domestic violence is reported:
(a) Right to make application for obtaining relief by way of protection order, an order for monetary relief ,a custody order, residence order or any order under the act
(b) The availability of service providers
(c) The availability of services of Protection officers
(d) The right to free legal services under the Legal Services Authorities Act
(e) Of her right to file a complaint under Section 498 A.
Also Section 5 states that nothing in this act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of cognizable offence.
Under Sec 19(5) the magistrate may pass an order to the officer in charge of nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
Under Section 20(5) The Magistrate shall send a copy of the order for monetary relief to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides. This is to ensure that the monetary relief is provided by the respondent to the aggrieved parties.
Under Section 36 nothing stops the police from filing cases under provisions of other law.
Role of NGOs
This act under Sec 10 provides for Voluntary organizations to be registered as service providers. The service providers have a role to record the domestic incident report and forward the same to the magistrate. They also have a role for medical examination of the aggrieved person and ensure that a shelter is provided if a aggrieved person requires.
This Act also provides for social workers and voluntary organization to undertake Counselling (Sec 14) and as welfare expert (Sec15).
The Act provides immunity from legal proceedings against service providers who is acting under the act.
Vimlaben Ajitbhai Patel vs Vatslaben Ashokbhai Patel
“The domestic violence Act provides for higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right.The said right as per the legislation extends to joint property in which a husband has a share”.
Aruna Parmod Shah v. UOI WP (Crl.) 425/2008, High Court of Delhi, (Decided on 07.04.2008)
A woman who is facing the brunt of harassment in a domestic relationship is more concerned with being rendered destitute rather than punishment being handed down to the perpetrator of the harassment. In this connection, the preceding Section 17 is legally path-breaking since it introduces the right of every women in a domestic relationship to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
Dennison Paulraj and Ors. v. Union of India and Ors. WP No.28521 of 2008 and M.P.No.1 of 2008, High Court of Madras, (Decided on 03.04.2009)
The Madras High Court agreed with the contention of the respondents and noted that when the Constitution itself provides for making special provision for women, the contention that there could be no special treatment for women cannot be accepted. The court highlighted the fact that the PWDVA was enacted as a special legislation for women in keeping with Article 15(3) of the Constitution. It was also pointed out that this provision on special measures has been widely used to enact legislations and executive orders for women and the courts have upheld their validity. The Madras High Court went on to cite several judgments of the Supreme Court where sex was held to be a sound classification under Articles 14 and 15.
Vandana v. Mrs. Krishnamachari & Ors. (2007) 6 MLJ 205 (Mad)
The respondent-husband contested the right of the aggrieved wife to reside in the shared household under Section 17 of the PWDVA because the parties had not “lived together” in the shared household for even a single day after their marriage. The parties disputed even the very fact of marriage. The Court, upholding the right of the aggrieved wife to reside under Section 17, held that she has a de jure right to live in the shared household because of her status as a wife in the domestic relationship.
Milan Kumar Singh & Anr. v. State of U.P. & Anr. 2007 Cri LJ 4742
It held that as the PWDVA is a social legislation, its purpose is to help the aggrieved person and not impose strict procedural requirements. The Court held that a plain reading of Section 12(1) shows that the aggrieved person can file complaint directly to the Magistrate concerned. The court referring to the word ‘or’ used in Section 12(1) stated that it is her choice that instead of directly approaching the Magistrate, she can approach the Protection Officer and, in case of emergency, the service provider. There is no bar in directly approaching the Magistrate for taking cognizance in the matter. The Court further explained that, “it is for the Magistrate concerned to take help of Protection Officer and service provider after receiving the complaint provided, if he feels it necessary for final disposal of the dispute between the parties”. The DIR therefore, is to be recorded only if the Magistrate or the parties require the assistance of the Protection Officer.
Mahila Samakhyas/Sanghas in Andhra Pradesh
Although it has not been registered as an Service Provider under the PWDVA (2005), one federation in the Mahila Samakhya scheme in Andhra Pradesh is fulfilling many of the functions of an SP and is described here as a case study. Mahila Samakhya is a programme of the Andhra Pradesh government, currently operating in 12 districts of the state. It aims to mobilize women at the grassroots level to form collectives that implement
educational initiatives, thus facilitating women’s empowerment. At the mandal level, Mahila Samakhyascan form federations that are recognized as societies under the Societies Registration Act, 1860. One such federation that is now autonomous has approached the Integrated Child Development Scheme (ICDS) at the District level, seeking to be registered as an Service Provider under the PWDVA (2005).
Among other gender-related initiatives, this federation’s legal literacy programme imparts awareness on various laws related to women, which has led to the formation of a socio-legal Nyaya Committee that seeks to resolve issues of violence against women at the village level. The Nyaya Committee is a gender sensitive forum that provides rural women with easy access to legal information and support and is emerging as a compelling intermediary between the victim and the formal justice system. The Nyaya Committee works closely with Samakhya members, local lawyers, police and, when needed, the District Legal Services Authorities (with whom they have been identified as paralegal volunteers). They refer cases, as needed, to the District Project Directors of ICDS who are appointed as POs under the PWDVA (2005).
(Source : Staying alive ,Second Monitoring and Evaluation Report 2008. Lawyers Collective / UNIFEM)
Special Cells for Women and Children (“Special Cells”)
The Special Cells for Women and Children (“Special Cells”) are an example of a registered SP under the PWDVA (2005). The Special Cells were started in 1984 as a joint collaboration between the Department of Women and Child Development (Government of Maharashtra), Maharashtra state police and Tata Institute of Social Sciences (TISS). Although the police are the first port of call for a woman in crisis, they are rarely trained and frequently unwilling to provide the kind of specialized help that a woman in crisis needs. The Special Cells aim to ameliorate this situation by placing trained social workers at police premises, thus enabling a woman to access a range of expert assistance under one roof. At present, the Special Cell has branches in 17 districts of Maharashtra and, in October 2007, was registered as an SP by the Government of Maharashtra. Each Special Cell employs two full-time, fully-qualified social workers housed in a police station. The Special Cell shares infrastructure with the police station, which provides it with administrative assistance, such as office space and furniture, telephone, vehicle, etc.
As an SP, the Nanded branch office deals with cases of domestic violence, conducts counselling, completes Domestic Incidence Reports (DIRs), forwards cases to Protection Officers and Magistrates, undertakes home study visits, follows-up with cases referred to POs, accompanies women to court and provides them information on legal provisions and procedures, thus playing an important role in helping women navigate the legal system. The primary goal of the Special Cell is immediate crisis intervention and its pre-litigation role is pivotal: it seeks to give the aggrieved woman assistance as fast as possible and remove her from the
crisis situation. Only if the woman so desires, does it focus on long-term intervention. In its capacity as an SP, the Special Cell acts as a catalyst for the implementation of the PWDVA (2005). Since it is located at the police station, it is able to coordinate with the police (whom it assists in the execution of court orders), POs (whom it assists in the discharge of their duties), shelter homes and District Legal Services Authority. It also conducts training programs for the police and women’s groups. As of March 2008, the Special Cell, Nanded Branch, had received 59 complaints, out of which it filed 10 cases under the PWDVA (2005). It sought the following orders: Protection Orders (6 cases); Interim Orders (6 cases); Ad Interim Order (1 case); Residence Orders (4 cases); and Compensation Orders (1 case). According to the Nanded branch, if the DIR is completed properly and the application drafted cautiously, then Courts tend to play a very proactive in passing orders. The Nanded branch has been successful in restoring the woman’s right to residence, securing the return of the woman’s assets, restraining the respondent from further harassing the victim, etc.
(Source : Staying alive ,Second Monitoring and Evaluation Report 2008. Lawyers Collective / UNIFEM)
THE DOWRY PROHIBITION ACT, 1961
Prohibition of Dowry
It is to prohibit the practice of dowry and to put an end to this evil.
Dowry for the benefit of Woman
To ensure that the bride becomes owner of all the property given in connection with the marriage by way of dowry, presents, gifts to either of the parties to the marriage by anybody. All the presents or gifts which is being given to the bride on marriage by either of the party should be given to the girl within three months of her marriage or within three months of the receipt of such gifts.
Section 6 (1) & (3) If the girl dies, in unnatural circumstance without taking her gifts back and she does not have an issue also, the property should be returned to her parents. If she has her own issue, it should be transferred to them or should be kept in trust till the transfer is complete.
“Dowry” has been defined as:
Any property or valuable security given or agreed to be given directly or indirectly in connection with the marriage is called dowry excluding dower or mehr If demanded by: Any of the party of marriage to another party of marriage or the parents of either party to the parents of other party or any other person of one party to the other party,
Time of demand:
At the time of marriage, Before the marriage .Any time after and in connection of the marriage. [S.2]
Punishment [S.3 (1)]
Under Section 3 (1) Penalty for giving, taking or abetting the giving or taking dowry is imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. The court may after giving reasons reduce the duration of imprisonment.
Section 4 – Penalty for demanding dowry from bride or member of bride’s family or from the groom or his family, is imprisonment between six months up to two years and fine which may be up to ten thousand rupees. Court may, with giving reasons impose a sentence for less than six months.
Section 4-A – There is a ban on advertisements for marriage in lieu of consideration .The person who is giving such advertisement can be imprisoned for a term between six months to five years and fined with rupees fifteen thousand. Court may, after giving reasons impose a sentence for less than six months.If the stridhan of a woman is not given to her within the specified time, such person is liable for punishment between six months to two years and fine up to five thousand rupees.
Under Section 6 (3-A)
• There is a right of a woman whose stridhan has not been transferred to her and the person has been convicted. The court would direct the convicted person to transfer the stridhan to the woman or any other person as the case may be.
• If such transfer is not made within the time specified, the court will order the person to pay the amount equal to the stridhan as if it is imposing penalty on him.
Section 8 A Burden of proof in certain cases – Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on him.
Under Section 8B (1) Appointment of Dowry Prohibition Officers
The state may appoint the Dowry Prohibition Officers as many as it requires for undertaking certain tasks mentioned in this Act. It may also specify their work area. The state may confer some power of a police officer to the Dowry Prohibition Officer.
Section 8 B (2) Special functions assigned to the Dowry Prohibition Officer:
(a) To see that the provisions of this Act are complied with;
(b) To prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;
(c) To collect such evidence as may be necessary for the prosecution of persons committing offence under the Act; and
(d) To perform such additional the State Government may assign functions as to him, or as may be specified in the rules of this Act.
Appointment of an Advisory Board Section 8B (4)
The state government should appoint for one area an Advisory Board for advising and assisting the Dowry Prohibition Officer on efficient discharge of his function. This board will comprise of maximum five social workers and two of them should be women.
Authorities under the Act
The Police is the first and common authority for all those matters which is cognizable. It is empowered to take action in such matters on its own.It can register the F.I.R. and proceed with the investigation in such matters as prescribed in the Code of Criminal Procedure,1973.
Demanding dowry , Taking dowry, Abetting giving and taking dowry
Advertising for offering dowry
Type of offence
Cognizable, non-bailable and non compoundable.
Police /NGO Partnership
• The advisory board, consisting of social worker , all of whom are likely to be members of the NGOs has enormous scope for participation in the implementation of the Act. They can participate by tendering advice or rendering assistance to the Prohibition Officer in the discharge of his duties under the Act.
• The NGOs have been given specific responsibilities for efficient functioning of the Prohibition Officers including prevention of offences and collection of evidence.
• The member of the advisory board should be given the responsibility by the state to sensitise the Dowry Prohibition officer and other police officer of that area on the issues related to dowry.
• It is known that all cases reported are not registered by the Police and in this case, the NGOs may play a promotional role to ensure that all offences reported are duly registered.
• Since the offences under this Act being cognizable, it is a mandatory duty of the police to register a case as soon as an information disclosing the commission of an offence is reported to the police.
• More and more dowry Prohibition Officers should be vested with Police Powers, so that they could exercise such power in carrying out the objective of the Act more efficiently and effectively and thereby relieving the Police to the extent possible of the heavy work load.
• Moreover, expectation is the dowry prohibition officer should be more sensitive and efficient and more oriented towards eradication of dowry.
Provision Promoting NGOs
Under Section 7(b)ii – The scope of contribution by NGOs is inherent in the provision that empowers any social welfare organization or any other registered organization to make a complaint to the Metropolitan Magistrate or a Judicial Magistrate about an offence committed under this Act.
Under Section 8 (B) 4 The role of NGO is also recognized in the constitution of the Advisory Board consisting of a maximum of five social workers who are lawfully authorized to advice and assist the Dowry Prohibition Officer.
State of Himachal Pradesh vs Nikku Ram 1996 AIR (SC) 67
The addition of the word “any time” before the expression “after the marriage” clearly shows that even if the demand is long after marriage the same would constitute dowry if other requirements of the sections are satisfied.
S Gopal Reddy V State of Andhra Pradesh 1996 AIR 2184
The definition of the term ’dowry’ under Section 2 of the Act shows that any property or valuable security given or “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become ’dowry’ punishable under the Act. Property or valuable security so as to constitute ’dowry’ within the meaning of the Act must therefore be given or demanded “as consideration for the marriage”
NGO WORKING ON DOWRY
Mahila Dakshata SamitiFamily Counseling Centre
Having recognized the enormity of the problem and the need for urgent action, the Central Social Welfare Board under the aegis of the Government of India, has entrusted NGO’s for women with the task of setting up Family Counseling Centres. One such centre is run by the Mahila Dakshata Samiti (Karnataka) in Bangalore.
The qualified staff at the Centre, constantly net working with lawyers, counselors and psychiatrists provide holistic solutions to the problems ranging from harassment by husband and in-laws and other problems faced by women in a family to problems encountered by teenagers and students.
However the primary focus at the centre is ensuring the stability and health of the family unit. When people with marital or family problems approach us, our priority is to help the family overcome their differences and to promote cordial relationship between the members so that the health of the family is restored.
Help is also rendered in the form of investigation and assessment in the case of dowry harassment and aid in registering a case if that is called for, free legal advice and aid, invoking police assistance in the case of domestic violence, psychiatric counseling, student counseling, shelter for women rendered homeless because of domestic discord and violence. Apart from this a variety of seminars and workshops are conducted on a regular basis by the centre to help women become aware of their legal rights and legal recourses available to them.
Very often crimes are perpetrated against women with impunity because of the feeling that women are defenseless and without support, with nobody to hold the perpetrator accountable. Family Counseling Centres therefore play a very important role. These centres with the backing of the law, the government and the police can be powerful deterrents to crimes against women because they form a support system for women and they have the resources to help women bring the culprits to book.
NARI RAKSHA SAMITI , NEW DELHI
Nari Raksha Samiti has started a Online Complaint System for solving the problems like Dowry, Family Dispute Etc. any body can lodge her or other’s problem without any fear and we will give our helping hands to them.
Nari Raksha Samiti has been actively engaged in creating social awareness on women’s issues. It’s main objective is to give voice to women who constitute the most neglected. Deprived and exploited sections of our society. It holds seminars and workshops from time to time on various issues such as dowry, gender discrimination, domestic violence, child marriage, reproductive health etc. People from all walks of lives including the representatives from various community based voluntary organizations and media are invited to participate in these discussions. It holds group meetings in slums and rural areas and organizes women against all types of neglect and exploitation. Street plays are also held on issues related to women’s problem. These shows receive overwhelming response from community.In its social awareness programme, the organization extensively makes use of traditional forms of mass communication such as Puppetry, Storytelling, Folk theatre, Group Dances etc. with tremendous success.
SEXUAL HARRASMENT AT WORK PLACE
Sexual harassment of women has been a pervasive and long-standing problem. Sexual harassment of women at the workplace is a specific aspect of sexual harassment that adversely affects women in their places of work. Although the work place occupies a prominent place in the life of adult citizens, women continue to be discriminated against in the workplace. Women employed in both the organized and unorganized sectors are adversely impacted by the harassment.
Judiciary on Sexual Harrasment at Work Place
Sexual harassment at the workplace typifies the phenomenon of violence against women and perpetuates the broader problems of discrimination on grounds of sex. The link between sexual harassment and sex discrimination has also been emphasized by the Supreme Court in Apparel Export Promotion Council v. AK Chopra. The court held that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication.
(i) Constitutional Law : One primary guarantee of the Constitution of India is the guarantee of equality against the State through Article 14. This principal equality guarantee is supplemented by a number of provisions that elaborate the equality code under the Constitution. Article 15 injuncts the State from discriminating against any citizen on the grounds of sex, among other grounds. Article 15(3) encourages the State to make special provisions for women and children. Article 16 guarantees equality in all matters of public employment. Article 19(1)(g) protects the freedom to practise any profession or carry on any occupation, trade or business. The right to life in Article 21 has been interpreted to include the right to live with dignity.
Sexual harassment has not been legislated upon as a separate issue. The class action was brought with a three-fold aim – firstly, to assist in finding suitable methods for realization of the true concept of ‘gender equality’, secondly, to prevent sexual harassment and thirdly, to fill the vacuum in the existing legislation. The case in point is Vishaka v. State of Rajasthan , where a writ petition was filed for the enforcement of fundamental rights of working women under Articles 14, 19 and 21. The facts of the case themselves involved the rape of a saathin or village level worker in retaliation to her work to prevent child marriages in Rajasthan. The Supreme Court held that each incident of sexual harassment of women at the workplace resulted in the violation of the fundamental rights to gender equality and the right to life and liberty, including the right to work with dignity. In the absence of domestic law occupying the field, the court formulated measures to prevent sexual harassment, relying on the content of international conventions and norms.
Sexual Harassment of Women at Workplace in Vishaka & other Vs. State of Rajasthan & others (AIR 1997 SC 3011)
In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Art.32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Art. 141 of the Constitution.
The guidelines and norms prescribed herein area as under :-
Having regard to the definition of .human rights. in S. 2 (d) of the Protection of Human Rights Act, 1993, Taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time.
It is necessary and expedient form employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women :
1. Duty of the Employer or other responsible persons in work places and other institutions :
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition :
For this purpose,sexual harassment includes such unwelcome sexually
determined behaviour (Whether directly or by implication) as :
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non – verbal conduct of sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage
her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Step :
All employers or persons in charge of work place whether in the public or
private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings :
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action :
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism :
Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer.s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee :
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers. Initiative :
Employees should be allowed to raise issues sexual harassment at workers. meeting and in other appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings.
9. Awareness :
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.
10. Third Party Harassment :
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. TO BE IMPLEMENTED IN PRIVATE SECTOR
The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the
Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.
In Writ Petition (Crl.) No. 173-177/1999 Medha Kotwal Lele & ors. Versus UOI & Ors.
The Supreme Court has said that .Complaints Committee as envisaged by the Supreme Court in its judgement in Vishaka.s Case, 1997 (6) SCC 241 at 253, will be deemed to be an inquiry authority for the purposes of Central Civil Services (conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the complaint Committee shall be deemed to be
an inquiry report under the CCS rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.Similar amendments shall also be carried out in The Industrial Employment
(Standing Orders) Rules.
While the Vishaka judgement attempted to fill the lacunae in the law, criminal law provisions contained in the Indian Penal Code are substantially relied upon in the courts of law.
Section 354 of the Indian Penal Code is the criminal provision that applies in most cases of sexual harassment, and punishes assault or criminal force with intent to outrage the modesty of a woman.
Section 509 of the Indian Penal Code makes punishable any word, gesture or act intended to insult the modesty of a woman. Although the word ‘modesty’ has not been defined in the Penal Code, it has been interpreted to cover a wide variety of situations.
(Source: National Comission for Women)
THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994
An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.
Section 2 (c) “Genetic Counseling Centre” means an institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counselling to patients;
Section 2 (d) “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedures.
Explanation- For the purposes of this clause, ‘Genetic Clinic’ includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used.
Section 2 (e) “Genetic Laboratory” means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic test.
Explanation- For the purposes of this clause, ‘Genetic Laboratory’ includes a place where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used.
Section 2 (j) “Pre-natal diagnostic techniques” includes all pre-natal diagnostic procedures and prenatal diagnostic tests;
Section 2 (k) “Pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or haemoglobinopathies or sex-linked diseases;
Section 2 (o) “Sex selection” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex;
Section 2 (p) “Sonologist or imaging specialist” means a person who possesses any one of the medical qualifications recognized under the Indian Medical Council Act, 1956 or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology;
The PNDT Act is a comprehensive piece of legislation which prohibits sex selection before or after conception and misuse of pre-natal diagnostic techniques for determination of sex of foetus, leading to female foeticide as also advertisements in relation to such techniques for detection or determination of sex. The Act also specifies the punishment for violation of its provisions. Accordingly, the Act imposes the following:
Section3(1) No genetic counselling centre or genetic clinic or genetic laboratory shall conduct; or associate with; or help in conducting pre-natal diagnostic techniques unless registered.
Section4 No genetic counselling centre or genetic clinic or genetic laboratory shall conduct or cause to be conducted a pre-natal diagnostic technique except for the purposes specified in the Act.
Section6 (a) No genetic counselling centre or genetic clinic or genetic laboratory shall conduct or cause to be conducted a pre-natal diagnostic technique including an ultrasonography for the purpose of determining the sex of the foetus.
Section 19(4) The Registration certificate has to be displayed prominently on a board in such place.
Section3(2) Employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess prescribed qualifications.
Section 18(1) No person shall open any genetic counselling centre, genetic clinic or genetic laboratory including clinic, laboratory or center having ultrasound or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection unless such centre, clinic or laboratory is duly registered separately or jointly.
Section3(3) No qualified person shall conduct or aid in conducting himself or through anyother person a pre-natal diagnostic technique at any place other than the place registered.
Section18(1) No person shall render any services to any facility, after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 unless such facility is duly registered under the Act.
Section4(4) No person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in clause (2) of Section 4 of the Act.
Section4(5) No person including a relative or husband of a woman shall seek or encourage the conduct of any sex-selection technique on her or him or both.
Section 6(b) No person shall conduct or cause to be conducted any pre-natal diagnostic technique including ultrasonography for purpose of sex determination.
Section 3A No person, including a specialist or a team of specialists in the field of infertility, shall conduct or cause to be conducted or aid in conducting by himself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.
Section 6(c) No person shall, by whatever means, cause or allow to be caused selection of sex before or after conception.
Section5(2) No person including the person conducting a pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner whatsoever.
Section22(1) No person, organization, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or center having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such center, laboratory, clinic or at any other place.
Section22(2) No person, organization including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.17
Section 3B of the Act read with Rule 3A of the PNDT Rules No person shall sell, distribute, supply, rent, allow or authorize the use of any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus whether on payment or otherwise to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person or body not registered under the Act.
(A) Offence by persons
I If any person acts contrary to the prohibitions listed above including under Sections 22(1) and 22(2) relating to advertisement, he will be liable to be punished with:
Section 22(3) , 23(1) and 23(3) of the Act
Imprisonment which may extend to 3 years; and fine which may extend to Rs.10,000/-.
Any subsequent conviction entails: imprisonment which may extend to 5 years and fine which may extend to Rs.50,000/-.
II Section23 (3) In case of a person seeking the aid of the bodies or persons referred to above for sex selection or for conducting pre-natal diagnostic techniques on any pregnant woman for the purposes other than those specified in Section 4(2), he shall be liable to be punished with imprisonment which may extend to three years; and fine which may extend to Rs.50,000/-.Any subsequent conviction entails imprisonment which may extend to 5 years; and fine which may extend to Rs.1 lakh.
III. Section 23(2) In case of a registered medical practitioner, his name shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if charges are framed by the court and till the case is disposed of; and for the removal of his name from the register of the council on conviction for the period of five years for the first offence and permanently for the subsequent offence.
IV. Section 24 Husband and relatives of the pregnant woman who undergoes a pre-natal diagnostic technique for the purposes other than those specified in sub-section (2) of section 4 shall be presumed to have compelled the woman to undergo the pre-natal diagnostic technique unless the contrary is proved; and liable for abetment of offence under Section 23 (3) and punishable for the offence under Section 23 (3).
If the contrary is proved, the woman can also be likewise punished. For the removal of doubts, it has been made clear under the amendments that the provisions of Section 23 (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection.
V. Section 25 If any person contravenes any provision of the Act or the Rules made there under for which no penalty has been specified, he will be liable to be punished with imprisonment which may extend to three months; or fine which may extend to Rs.1000/- or • with both.
Any subsequent contravention entails an additional fine which may extend to Rs.500/- for every day during which such contravention continues after conviction for the first such contravention.
(B) Offence by company
Section26 (1) In case of offence by a company: every person incharge of and every person responsible to the company for the conduct of the business of the company at the time the offence was committed shall all be deemed to be guilty and accordingly proceeded against and punished.
This is subject to the qualification that if any such person proves that the offence was committed without his knowledge or that he had exercise due diligence to prevent the commission of such offence, he may not be so liable.
Section 26(2) If consent, connivance of or that it was attributable to any neglect on the part of Director and in relation to a firm, a partner in the firm , Manager , Secretary or other officer they shall also be deemed to be guilty and accordingly proceeded against and punished.
Section 27 The offences under the Act are cognizable, non-bailable & non compoundable.
Who Can make a complaint?
Section 28(1) (a) : the Appropriate Authority concerned;
Section 28(1) (a) : any officer authorized in this behalf by the Central Government or State Government or the Appropriate Authority;
Section 28(1) (b) : a person who has given notice of at least 15 days to the Appropriate Authority of the alleged offence and of his intention to make a complaint in the court i.e. if the Appropriate Authority fails to take action on the complaint made by a person, on the lapse of 15 days, that person can directly approach the court.
Every public spirited person can activate the PNDT law for the violation of the same and he /she can seek the assistance of a lawyer, an NGO and even a group of persons can file a complaint together. Once the complaint is made in the Court the public prosecutor will take on from there and the complainant need not be present on every date of hearing.
Significantly such person includes “Social Organization”
Section 28(3) In such a case, the court, on demand by such person, may direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.
Institutional Bodies formed by the Act
I A Board under Section 7(1) is required to be constituted by the Central Government which is known as the Central Supervisory Board The Act makes provision for inclusion of government officials, specialists as well as representatives of welfare organizations in this Board.
Proviso to Section 9(1) of the Act makes it mandatory for the Board to meet at least once in six months.
Section 16 states the functions of the Central Supervisory Board as specified under the Act are:
i) to advise the Central Government on policy matters relating to use of pre-natal diagnostic techniques, sex selection techniques and against their misuse;
ii) to review and monitor implementation of the Act and the rules made thereunder and to recommend to the Central Government changes in both;
iii) to create public awareness against the practice of pre-conception sex selection and pre-natal determination of sex of foetus leading to female foeticide;
iv) to lay down code of conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics;
v) to oversee the performance of various bodies constituted under the Act and take appropriate steps to ensure its proper and effective implementation.
II. Under Section 16 A (3) of the Act, a State Supervisory Board or the Union Territory Supervisory Board is required to be constituted by each State and Union Territory having a Legislature. It is mandatory for the Board to meet at least once in four months
The functions of the Board as specified Section 16 A (1) are:
i) to create public awareness against the practice of pre-conception sex selection and pre-natal determination of sex of foetus leading to female foeticide in the State;
ii) to review the activities of the Appropriate Authorities functioning in the State and recommend appropriate action against them;
iii) to monitor the implementation of provisions of the Act and the rules and make suitable recommendations relating thereto, to the CSB;
iv) to send such consolidated reports as may be prescribed in respect of the various activities undertaken in the State under the Act to the Board and the Central Government; and
v) any other functions as may be prescribed under the Act.
(B) IMPLEMENTING AUTHORITIES
The role of the implementation of the Act has been assigned to the appropriate authorities. The Appropriate Authorities (Section 17) are to function with the aid and advice of an Advisory Committee. Under the Act:
Under Section 17(1) the Central Government is required to appoint one or more Appropriate Authorities for each of the Union territories;
Under Section 17(2) the State Government is required to appoint one or more Appropriate Authorities for the whole or part of the States having regard to the intensity of the problem of pre-natal determination of sex leading to female foeticide;
Under the directions of the Supreme Court, Appropriate Authorities are to be appointed at District and sub-district levels as well. At the District level, the Chief Medical Officers or the Civil Surgeons have been designated as the Appropriate Authorities while at the sub-district level, the practice varies from State to State.
Functions of the Appropriate Authority – Section 17(4)are:
to grant, suspend or cancel the registration
to enforce the standards for genetic counselling centre, genetic clinic and genetic laboratory.
to investigate complaints of breach of provisions of the Act and the Rules;
to take the complaints to the court.
to take appropriate legal action against the use of any sex selection technique by any person at any place, suo motu or brought to its notice and also to initiate independent investigations in such matter;
to create public awareness against the practice of sex selection or pre-natal determination of sex;
to supervise the implementation of the provisions of the Act and rules;
to recommend to the CSB and State Boards modifications required in the rules in accordance with changes in technology or social conditions;
to take action on the recommendations of the Advisory Committee made after investigation of complaint for suspension or cancellation of registration.
The Appropriate Authority has been invested with the following powers,
namely (Section 17A)
1. Summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder;
2. Production of any document or material object relating to clause (a);
3. issuing search warrant for any place suspected to be indulging in sex
4. Selection techniques or pre-natal sex determination; and any other matter which may be prescribed.
Under the directions of the Supreme Court dated 4.5.2001, all State/Union Territory Appropriate Authorities are required to furnish quarterly returns to the Board giving a report on the implementation and working of the Act. These returns are to cover information, inter alia about:
i) Survey of bodies specified in Section 3 of the Act;
ii) Registration of bodies specified in Section 3 of the Act including bodies
using ultrasound machines;
iii) Action taken against non-registered bodies operating in violation of
Section 3 of the Act, inclusive of search and seizure of records;
iv) Complaints received by the Appropriate Authorities under the Act and
action taken pursuant thereto;
The intervening period between any two meetings of the Advisory Committee shall not exceed 60 days.
In the case Centre for Enquiry into Health And Allied themes [CHEHAT] & Ors vs Union of India & Ors.Writ Petition Civil No 301 of 2001 the court laid down detailed guidelines for the Central Advisory Committee , State and District Appropriate Authority. The court among other things directed the :
The Central Government is directed to create Public awareness against the practice of Pre-natal determination of sex and female foeticide through appropriate releases/programmes in the electronic media.
The Central Government is directed to implement with all vigor and zeal the PNDT Act and the Rules framed in 1996.
In this case the Supreme Court has been undertaking regular monitoring of the Implementation of the Act
Role of Police:
If the Police has any information or any information is brought to it notice, of the violation of the Act it has to inform the Appropriate Authority .
The Police has to accompany the appropriate authority to carry raids at the clinic.
To register cases as per the instruction of the appropriate authority.
Role of NGOs:
Every public spirited person can activate the PNDT law for the violation of the same and he /she can seek the assistance of a lawyer, an NGO and even a group of persons can file a complaint together. Once the complaint is made in the Court the public prosecutor will take on from there and the complainant need not be present on every date of hearing.
NGOs working in the field of women and children can get representation in the Central Supervisory Board . NGOs and civil society organizations can get representation in State Appropriate Authority and District Appropriate Authority.
NGOs also need to undertake awareness programmes for the eradication of the social evil of Female Foeticide.
THE SCHEDULED CASTE AND SCHEDULED TRIBE ATROCITIES ACT, 1989.
To prevent commission of offences of atrocities against scheduled castes and scheduled tribes, to set up special courts for trial of such offences and for relief and rehabilitation of the victims of such offences and for matters connected thereto
Whoever not being member of the scheduled castes or scheduled Tribes
Section Description Punishment
3(1) i Forces a member of SC& ST communities to drink or eat any inedible or obnoxious substance
Not less than six month but may extend to five years and fine
3(1) ii Act with a intent to cause injury, insult or annoyance to a member of SC& ST communities to intent . Not less than six month but may extend to five years and fine
3(1) iii Forcibly removes clothes from the person of a member of a Schedul-ed Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity; Not less than six month but may extend to five years and fine
3(1) iv Wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred Not less than six month but may extend to five years and fine
3(1) v wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water; Not less than six month but may extend to five years and fine
3(1) vi compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do ‘begar’ or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government; Not less than six month but may extend to five years and fine
3(1) vii forces or intimidates a member of a Scheduled Caste or a Schedul-ed Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;
Not less than six month but may extend to five years and fine
3(1) viii institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe.
Not less than six month but may extend to five years and fine
3(1) ix gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe; Not less than six month but may extend to five years and fine
3(1) x intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
Not less than six month but may extend to five years and fine
3(1) xi assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty Not less than six month but may extend to five years and fine
3(1) xii being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed; Not less than six month but may extend to five years and fine
3(1) xiii corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or a Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;
Not less than six month but may extend to five years and fine
3(1) xiv denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to; Not less than six month but may extend to five years and fine
3(1) v forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence,
Not less than six month but may extend to five years and fine
Whoever not being member of the scheduled castes or scheduled Tribes
Section Description Punishment
3(2) i Whoever gives false evidence against a member of SC/ST so that person may get punishment which is capital
Whoever gives false evidence against a member of SC/ST so that person gets executed
Imprisonment of life
3(2) ii gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards,
shall not be less than six months but which may extend to seven years or upwards and with fine
3(2) iii commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe,
imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
3(2) iv commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe,
imprisonment for life and with fine
3(2) v commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe
Life and fine
3(2) vi knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false
shall be punishable with the punishment provided for that offence
4 Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year.
5 Whoever, having already been convicted of an offence under this Chapter is convicted for the second offence or any offence subsequent to the second offence, shall be punishable with imprisonment for a term which shall not be less
than one year but which may extend to the punishment provided for that offence.
Under Section-8(a) if a accused rendered any financial support to the person accused of any of the offence in this act ,the special court unless proved contrary , will presume the person has abetted the crime.
Under Section-8(b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object
Under Section 10, there is a provision of removal of a person who is likely to commit an offence from the any area included in ‘Scheduled Areas’ or ‘tribal areas’, as referred to in article 244 of the Constitution. If the person fails to remove himself from the are than Section 11 states that the Special Court may cause him to be arrested and removed in police custody to such place outside such area as the Special Court may specify.
Under Section-14 for the purpose of providing for speedy trial, the State Government shall, Court. with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act.
Under Section 20 this act will override all other laws.
Under Section 21(1) the state govt and central govt will take steps for effective implementation of the law.
Under Section 21(2)In particular, and without prejudice to the generality of the foregoing provisions, such measures may include,-
(i) the provision for adequate facilities, including legal aid to the persons subjected to atrocities to enable them to avail themselves of justice:
(ii) the provision for travelling and maintenance expenses to witness-es, including the victims of atrocities, during investigation and trial of offences under this Act;
(iii) the provision for the economic and social rehabilitation of the victims of the atrocities;
(iv) the appointment of officers for initiating or exercising supervision over prosecutions for the contravention of the provisions of this Act;
(v) the setting up of committees at such appropriate levels as the State Government may think fit to assist that Government in formulation or implementation of such measures;
(vi) provision for a periodic survey of the working of the provisions of this Act with a view to suggesting measures for the better implementation of the provision of this Act;
(vii) the identification of the areas where the members of the Schedul-ed Castes and the Scheduled Tribes are likely to be subjected to atro-cities and adoption of such measures so as to ensure safety for such members
Section 17(1) states that the District magistrate can undertake preventive detention if he is assured or gets information that a group of persons not belonging to scheduled caste or scheduled tribes can commit offences under this Act .
All the offence under this act are cognizable and nonbailable. Under Section 18 the Section 438 of the Cr PC will not apply to this act.
Role of Police
Section 9 states that the State government can confer powers to a police officials the the powers exercisable by a police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular, the powers of arrest, investigation and prosecution of persons before any Special Court.
Under Section 9 (2) All officer of police and all other officers of Government shall assist the officer referred to in sub-section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.
The State should ensure that for the better implementation of the Act the following should be undertaken by the Police Department:
1. The sensitization of police personnel in implementation of the Protection of Civil Rights Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
2. instructions to Police to have more empathetic approach while dealing with cases of atrocities against them, circulation among field officers a detailed note indicating the scope and responsibility of police personnel investigating such offences
3. Recruitment of sufficient number of persons belonging to SCs/STs/Minorities as police personnel especially at the cutting edge level,
4. Setting up of special cells to deal with such offences, programmes for creating awareness among the vulnerable sections of society and legal recourse open to them, evaluation of the working of special courts,
5. Identification of atrocity prone areas for prevention of crime
(Source: No. 24024/9/2004-SC/ST Cell Ministry of Home Affairs SC/ST CellNew Delhi dated the 3rd February, 2005)
Role of State
The state shall take measures to be taken for economic and social rehabilitation of victims of atrocities.
Role of NGOS
Many proactive NGOs and individuals representing the vulnerable and socially ostracized sections of society are actively collaborating with the government to not only work for the prevention atrocities, but also to provide a dignified and humane status in society to the members of Scheduled Castes and Scheduled Tribes.
Reputed Non Governmental Organisations are given Grant-in-aid to supplement Government efforts in generating awareness among the masses in general and Scheduled Castes and Scheduled Tribes in particular about the provisions of the Act and the Rules notified there under and to also bring about social harmony through posters, hand bills, group discussions, staging of dramas at different important public places.
THE PROTECTION OF CIVIL RIGHTS ACT, 1955
An Act to prescribe punishment for the preaching and practice of “Untouchability” for the enforcement of any disability arising therefrom and for matters connected therewith. Article 17 of the Constitution declares that untouchability is abolished and that it will be an offence to practice untouchablity.
Section 2 (a) ”civil rights” means any right accruing to a person by reason of the abolition of “untouchability” by article 17 of the Constitution
(A) Punishment for enforcing Religious Disabilities
Whoever on the ground of “untouchability” prevents any person:
Section Charges Punishment
3(a) from entering any place of public worship which is open to other persons professing the same religion or any section thereof, as such person;
Shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees
3(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in or using the waters of, any sacred tank, well, spring or water-course (river or lake or bathing at any ghat of such tank, water-course, river or lake) in the same manner and to the same extent as is permissible to other persons professing the same religion or any section thereof, as such person;
(B) Punishment for enforcing social Disabilities
Whoever on the ground of “untouchability” enforces against any person any disability with regard to-
Section Charges Punishment
4(i) access to any shop, public restaurant, hotel or place of public entertainment
shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees
4(ii) the use of any utensils, and other articles kept in any public restaurant, hotel, dharmshala, sarai or musafirkhana for the use of the general public or of any section thereof
4(iii) the practice of any profession or the carrying on of any occupation, trade or business or employment in any job
4(iv) the use of, or access to, any river, stream, spring, well, tank, cistern, water-tap or other watering place, or any bathing ghat, burial or cremation ground, any sanitary convenience, any road, or passage, or any other place of public resort which other members of the public, or any section thereof, have a right to use or have access to
4(v) the use of, or access to, any place used for a charitable or a public purpose maintained wholly or partly out of State funds or dedicated to the use of the general public or any section thereof
4(vi) the enjoyment of any benefit under a charitable trust created for the benefit of the general public or of any section thereof
4(vii) the use of, or access to, any public conveyance
4(viii) the construction, acquisition or occupation of any residential premises in any locality, whatsoever
4(ix) the use of any dharmshala, sarai or musafirkhana which is open to the general public, or to any section thereof
4(x) the observance of any social or religious custom, usage or ceremony or taking part in, or taking out, any religious, social or cultural procession
4(xi) the use of jewelry and finery
Whoever on the ground of “untouchability” prevents any person:
Punishment for refusing to admit person to hospitals etc.
Section Charges Punishment
5(a) Refuses admission to any person to any hospital dispensary, educational institution or any hostel, if such hospital, dispensary, educational institution or hostel is established or maintained for the benefit of the general public or any section thereof
shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees
5(b) Does any act which discriminates against any such person after admission to any of the aforesaid institution
Punishment for refusing to sell goods or render services
Section 6- Whoever on the ground of “untouchability” refuses to sell any goods or refuses to render any service to any person at the same time and place and on the same terms and conditions at or on which such goods are sold or services are rendered to other persons in the ordinary course of business shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.
Punishment for other offences arising out of “untouchability”
Section Charges Punishment
7(1) (a) prevents any person from exercising any right accruing to him by reason of the abolition of “ untouchability” under article 17 of the Constitution shall be punishable with imprisonment for a term of not less than one month and not more than six months, and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees
7(1) (b) molests, injures, annoys, obstructs or causes or attempts to cause obstruction to any person in the exercise of any such right or molests, injures, annoys or boycotts any person by reason of his having exercised any such right
7 (1) (c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice “untouchability” in any form whatsoever
7(1)d insults or attempts to insult, on the ground of “untouchability” a member of a Scheduled Caste
7(1A) Whoever commits any offence against the person or property of any individual as a reprisal or revenge for his having exercised any right accruing to him by reason of the abolition of “untouchability” under article 17 of the constitution, shall, where the offence is punishable with imprisonment for a term exceeding two years, be punishable with imprisonment for a term which shall not be less than two years and also with fine
7A.(1) Whoever compels any person, on the ground of “untouchability” to do any scavenging or sweeping or to remove any carcass or to flay any animal or to remove the umbilical cord or to do any other job of a similar nature, shall be deemed to have enforced a disability arising out of “untouchability Shall be punishable with imprisonment for a term which shall not be less than three months and not more than six months and also with fine which shall not be less than one hundred rupees and not more than five hundred rupees.
10 Whoever abets any offence under this Act shall be punishable with the punishment provided for the offence. A public servant who willfully neglects the investigation of any offence punishable under this Act shall be deemed to have abetted an offence punishable under this Act.
11(a) Whoever having already been convicted of an offence under this Act or of an abetment of such offence is again convicted of any such offence or abetment, shall, on conviction, be punishable for
the second offence, with imprisonment for a term of not less than six months and not more than one year, and also with fine which shall be not less than two hundred rupees and not more than five hundred rupees.
11(b) Whoever having already been convicted of an offence under this Act or of an abetment of such offence is again convicted of any such offence or abetment, shall, on conviction, be punishable for
he third offence or any offence subsequent to the third offence, with imprisonment for a term of not less than one year and not more than two years, and also with fine which shall be not less than five hundred rupees and not more than one thousand rupees.
Offences to be cognizable and triable summarily
Section 15(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and every such offence, except where it is punishable with imprisonment for a minimum term exceeding three months, may be tried summarily by a Judicial Magistrate of the first class or in a metropolitan area by a Metropolitan Magistrate in accordance with the procedure specified in the said code.
Participation of the people including NGOs in the implementation of the Act.
(a) There is no specific or express provision in the Act involving public/NGOs participation in the implementation of the Act.
(b) It should however, be remembered that laws by themselves are not enough. In order to make them potent and effective, they must be supported by social consciousness, fortified by people’s participation, backed by sensitized public servants and propelled by strong political will.
(c) The Act provides for constitution of committees at appropriate levels as the State Govt. may think fit. The idea is to assist the State Govt. in formulating or implementing appropriate measures for execution of the law. This is a distinct legislative recognition of peoples’ participation, who may suggest measures for better implementation of the Act and help identification of the areas where untouchability prevails. There is scope for coordination between the State Govt. & Civil Society through these committees. Such committees will provide a Forum for promoting and protecting the civil rights of the members of the Scheduled Castes as envisaged in the Act itself.
Powers of the Police under the Act.
(a) May register FIR U/s 154 of Cr.P.C. when offence reported.
(b) May investigate any offence under the Act, without any order of the Magistrate or the Court.
(c ) May exercise all or any of the powers of the Police as laid down in Chapter XII of Code of Criminal Procedure.
(d) May submit a report in the final form- Charge sheet or final report, as the case may be, at the end of investigation U/s 173 Cr.P.C.
(e) A police officer, who willfully neglects the investigation of any offence under this Act shall be deemed to have abetted an offence under this Act.
What the people including NGOs may do
(a) To ensure coordination between the Govt. departments including Police and Voluntary organizations including NGOs.
(b) To create awareness amongst the people about the evils of untouchability.
(c) To launch social movement and to mobilize public opinion.
(d) To consult the affected people and aggrieved persons including the victims.
(e) To involve the social bodies such as Zila Parishad, Panchayats etc.
(f) To create social preparedness for implementation of the Act.
(g) To organize social and cultural functions involving all castes and tribes, to develop mutual understanding and to foster a spirit of fraternity.
Commitment to constitutional values
(a) To create a human rights culture based on equality and dignity.
(b) To develop a positive attitude and social justice-oriented perspective.
(c) To give effective training to enhance the levels of knowledge, skill and values of all the functionaries.
(d) Police officer involved should be given inputs in sociology, social psychology and behavioral sciences.
(e) It is not a simple law and order issue or mere crime control measure. It should be an endeavor to achieve the goals of equality, human rights and social justice.
THE MENTAL HEALTH ACT, 1987
TO CONSOLIDATE THE LAW RELATING TO MENTALLY ILL PERSONS, PROVIDE FOR BETTER MANAGEMENT OF THEIR PROPERTY AND OVERALL PROTECTION AND CARE.
Terminologies used in the Act
1. Reception order: Means an order for admission and detention of a mentally ill person in a psychiatric hospital or nursing home.
2. Psychiatric hospital or nursing home: It is a hospital for the mentally ill persons maintained by the government or private party with facilities for outpatient treatment and registered with appropriate licensing authority. Admitting a mentally ill to a general nursing home is an offence.
3. Medical officer: A registered medical practitioner.
4. Medical officer in-charge: Is a medical officer who is in-charge of a psychiatric hospital or nursing home.
5. Mentally ill person: Is a person suffering from mental disorder, other than mental retardation, needing treatment.
6. Mentally ill prisoner: Is a mentally ill person, ordered for detention in a psychiatric hospital, jail or other places of safe custody.
Objectives of the act Section 5
1. To establish central and state authorities for licensing and supervising the psychiatric hospitals.
2. To establish such psychiatric hospitals and nursing homes.
3. To provide a check on working of these hospitals.
4. To provide for the custody of mentally ill persons who are unable to look after themselves and are dangerous for themselves and or, others.
5. To protect the society from dangerous manifestations of mentally ill.
6. To regulate procedure of admission and discharge of mentally ill persons to the psychiatric hospitals or nursing homes either on voluntary basis or on request.
7. To safeguard the rights of these detained individuals.
8. To protect citizens from being detained unnecessarily.
9. To provide for the maintenance charges of mentally ill persons undergoing treatment in such hospitals.
10. To provide legal aid to poor mentally ill criminals at state expenses
11. To change offensive terminologies of Indian Lunacy act to new smoother ones.
The Police may inspect psychiatric hospital and psychiatric nursing home and visit patients. May call for production of any records which may be kept confidential. If the officer feels that the inmate is not getting proper care he may report matter to licensing authority.
Police officer has been given the power to take any mentally ill person into protective custody in order to ensure the safety of not only the mentally ill person but also of the public at large. It may take or cause to be taken into police protection any person within limits of his station whom he has reason to believe to be mentally ill.
Shall inform the mentally ill person regarding the grounds of his protective custody or explain the same to his relatives or friends. Shall in accordance with the mandate of respecting human rights, inform every person so detained regarding the grounds of his / her protective custody.
Shall be produced before the nearest magistrate within 24 hours of being taken into protection. Police shall safeguard the detained person’s fundamental right by producing him before the nearest Magistrate within 24 hours of such detention.
All the powers and procedure relating to examination of mentally ill person to be exercised by Magistrate, may also be exercised by Commissioner of Police. Police has been given the powers to make an assessment of the sanity and mental state of a person whose mental health is suspected.
After completion of proceedings, Commissioner of Police may even pass a reception order. Police has been vested with the power to pass a reception order thereby authorizing the detention of such a mentally ill person.
Police Officer has the power to report to Magistrate in case he has reasonable grounds to suspect that any person who is mentally-ill and not under proper care and control, or ill-treated or neglected by relative or friend. Police officer has the authority to keep a check on the status of treatment being meted out to a mentally ill person who is under the care and custody of a relative or friend.
Commissioner of Police may by order in writing authorize detention of mentally ill person under proper medical custody in the ward of a general psychiatric hospital or nursing home. Police has been authorized to pass an order which would have the effect of detaining a mentally ill person in a hospital or nursing home
Commissioner of Police may discharge and exercise powers of magistrate under Sections 23, 24 and 28. Police has been vested with judicial powers.
Institution – State Authority for Mental Health Services
(1) The State Government shall establish an Authority for mental health with such designation as it may deem fit.
(2) The Authority established under sub-section (1) shall be subject to the superintendence, direction and control of the State Government. [State Authority for Mental Health Services]
(3) The Authority established under sub-section (l) shall –
(a) be in charge of regulation, development and co-ordination with respect to Mental Health Services under the State Government and all other matters which, under this Act, are the concern of the State Government or any officer or authority subordinate to the State Government;
(b) supervise the psychiatric hospitals and psychiatric nursing homes and other Mental Health Service Agencies (including places in which mentally ill persons may be kept or detained) under the control of the State Governments;
(c) advise the state Government on all matters relating to mental health; and
(d) discharge such other functions with respect to matters relating to mental health as the State Government may require.
Judicial initiatives on mental health
Courts in India have repeatedly extended that there lies a positive duty on the part of the government to promote health in the society.
Tamil Nadu v. Union of India 2002 INDLAW SC 86.
The case of Tamil Nadu v. Union of India and others involved the death of twenty five chained inmates in a fire in an asylum at Ervadi in Ramanathapuram district. The Supreme Court acted suo motu on the basis of news items published in leading national dailies about the gruesome tragedy. The Apex Court held that there is slackness on the part of the concerned authorities to implement the Mental Health Act, and gave certain guidelines to be followed by the Government Authorities in this regard. The guidelines stated that every State and Union Territory must undertake a district-wise survey of all registered and unregistered bodies, by whatever name called, purporting to offer psychiatric/mental health care in accordance with the Act. All such bodies should be granted or refused license depending upon whether minimum prescribed standards are fulfilled or not. In case license is rejected, it shall be the responsibility of the concerned police station to ensure that the body stops functioning and patients are shifted to Government Mental Hospitals. The process of survey and licensing must be completed within 2 months and the Chief Secretary of each State must file a comprehensive compliance report within 3 months from date of this order. Further both the Central and State Governments to undertake a comprehensive awareness campaign with a special rural focus to educate people as to provisions of law relating to mental health, rights of mentally challenged persons, the fact that chaining of mentally challenged persons is illegal and that mental patients should be sent to doctors and not to religious places such a Temples or Dargahs.
State of Gujarat and Another v. Kanaiyalal Manilal and Etc, 1997 INDLAW GUJ 142.
Also in another leading case, that of State of Gujarat and Another v. Kanaiyalal Manilal and others the Court referred to the provisions of cost maintenance to be borne by the Government in case of mentally ill person under Section 78 of the Mental Health Act. The Court opined that it in a welfare state like India, it is not merely a matter of grace, but it is a statutory obligation of the State Government to bear the cost of mentally ill persons.
Sheela Barse v. Union of India, Ms Sheela Barse, 1993 INDLAW SC 564
In Sheela Barse v. Union of India3, on a petition filed by an activist for the rights of the mentally ill persons in prison, the Supreme Court took the initiative by declaring that non-criminal mentally ill persons detained in jails is illegal and unconstitutional. Mentally ill persons had to be examined by a Mental Health Professional/Psychiatrist and if advised by the experts, could be sent to the nearest certified place of treatment and care. Therefore, the Courts have taken the initiatives to safeguard the rights of the mentally ill persons and adherence to the Mental Health Act, 1987 for proper functioning of the mental health care facilities.
Role of NGOs
NGO / Civil Society are working in close collaboration with the Government, to increase awareness about mental health through targeted campaigns and concerted action, to establish rehabilitative centers. NGOs like Saarthak are trying to formulate campaigns and are creating replicable models of service delivery of mental health that are low cost and self-sustaining. Sarthak specializes on the mental trauma care of victims of trafficking , gender violence and sex abuse.
SANJIVINI is a registered non-profit voluntary organization that has been addressing the mental health needs of the community since 1976. It provides free and confidential counselling to anyone faced with a situation that causes emotional and mental distress.
The Organization was started by a small group of self-motivated individuals inspired to prevent people from committing suicide. Over the years, it has grown into an institution of stature helping a large number of people with a wide range of problems, including suicide. Today it runs two centers and has become a major resource center for other organizations in and around Delhi. The two main services it provides are emotional counselling and rehabilitation of persons suffering from severe mental illness.
Sanjeevani programmes are designed and conducted with the aim to increase awareness on how certain situations and problems affect our lives. Prominently, it cover subjects like suicide, divorce, substance abuse, HIV/AIDS, depression, self-esteem, performance anxiety, stress, communication, mental illness and adolescent issues.
The Rehabilitation Centre provides services for those whose mental illness has effected their functioning in the world around them but who are not beyond hope. The objective of the Rehabilitation Centre is to help persons with schizophrenia regain their social skills and enhance their psychological resources, so that they can cope with the world outside. The Centre offers a comprehensive rehabilitation programme to help them integrate with society
Legal Services Authorities Act, 1987
To constitute Legal Services Authorities and Lok Adalats to ensure that people from weaker economic strata and those who have other disability are not denied access to justice.
Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.
Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society.
Includes rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter.
INSTITUIONAL SETUP FOR LEGAL AID
National Legal Services Authority- (Section 3)
The central government shall constitute this body, to exercise the powers and perform the functions conferred on, assigned to Central Authority.
Supreme Court Legal Services Committee- (Section 3A)
The Central Authority shall constitute this body for the purpose of exercising such powers and performing such functions as may be determined by regulation by the central authority.
Functions of the Central Authority (Section 4)
It gives perform all or any of the following:
Lay down policies and principles for making legal services available to the needy,
Frame the most effective and economical schemes for the purpose of making legal services available,
Take up social justice legislation in matters related to consumer protection, environ-mental protection or any other matter of special concern to the weaker section and to give training to the social workers in legal skills
Utilize the funds at its disposal and make allocation of funds to State and District Authorities
Organize legal aid camps, especially rural and slum areas with the purpose of educating people about their rights as well as encouraging them for settlement of their dispute through Lok Adalats
Encourage for settlement of dispute through negotiation, conciliation and arbitration.
Undertake and promote research in the field of legal services and its need
Take steps for ensuring the commitment to fundamental duties,
Monitor and evaluate implementation of the legal aid programmes
Provide grants in aid for specific schemes to various voluntary organizations, state and district authorities,
Develop in consultation with the Bar council of India, programmes for clinical legal aid in colleges,
Universities and other institution,
Put effort to enlist the NGOs working at the grassroot level, with women and children or with scheduled caste and schedule tribes
Take measures to spread legal literacy and legal awareness,
Coordinate and monitor the functioning of all the body created under this Act.
State Legal Services Authority- (Section 6)
Every state government shall constitute one such body; it will exercise the powers and perform the functions as assigned to it.
Functions of the State Authority (Section 7)
To give effect to the policies and directions of the Central Authority,
To give legal service to eligible persons,
Conducting Lok Adalats
Undertaking preventive and strategic legal aid programmes
To perform such other function as the State Authority may, fix by regulation.
High Court Legal Services Committee-(Section 7)
The state authority shall constitute this committee for every high court. for the purpose of exercising such powers or function as may be prescribed by a regulation by the State Authority.
Function of District Authority (Section 10)
To perform such of the function of the state authority in the district as may be delegated by state authority,
Coordinate the activities of the taluk legal services committee and other legal services in the committee,
Organize Lok Adalats within the district
Taluk Legal Services Committee-(Section 11A)
The state authority may constitute it, for a taluk or mandal or for a group of taluks or mandals.
Function of Taluk Committee: (Section 11B)
Coordinate the activities of legal services in the taluk,
Organize Lok Adalat within the taluk
Function such other functions as the district authority may assign to it.
Organization of Lok Adalats- (Section 19)
Any of the above mentioned institution/body created above under this Act may organize Lok Adalats at any place or time as it thinks fit.
Permanent Lok Adalats-(Section 22B)
The Central Authority or state authority may establish permanent Lok Adalats for any area as may be prescribed in the notification, for one or more public utility services.
Criteria for giving legal services (Section 12)
Every person who has to file or defend a case shall be entitled to legal services under this Act if that person, is-
(a) A member of a Scheduled Caste or Scheduled Tribe;
(b) A victim of trafficking in human beings or beggar as referred to in
Article 23 of the Constitution;
(c) A women or a child;
(d) A mentally ill or otherwise disabled person;
(e) A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) An industrial workman; or
(g) In custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956), or in a juvenile home within the meaning of clause (j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986), or
in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987)
Possible role of NGOs
There are many organization working on the issues of social interest such as; on environment, consumer ,street children, child labour etc ,human trafficking, Central Authority can take report from such organizations and initiate social justice litigation on these issues.
The Central State District and Taluka Committee shall also have one member a social worker who is engaged in the upliftment of the weaker sections of the people including Scheduled Castes, Scheduled Tribes, women, children, rural and urban labour.
NGOs can impart trainings to the social workers in legal skills as required by this Act. NGOs can do research work on issues related to legal services and its need as required by this Act Central Authority is required to provide grants in aid to voluntary organizations .It is required from the Central Authority to enlist the support of voluntary social welfare institution working at the grassroot level and among poor and SCs and STs.[S.4 (m)]
As per Section 15 (f) NGOs can undertake publicity to Legal Aid Schemes and programmes to make people aware about legal aid facilities;15 (c) Accreditation of NGOs for Legal Literacy and Legal Awareness campaign;
National Commission for Women
(National Commission for Women Act, 1990)
The National Commission for Women was set up as statutory body in January 1992 under the National Commission for Women Act, 1990 ( Act No. 20 of 1990 of Govt.of India ) to :
1. Review the Constitutional and Legal safeguards for women ;
2. Recommend remedial legislative measures ;
3. Facilitate redressal of grievances and
4. Advise the Government on all policy matters affecting women.
In keeping with its mandate, the Commission initiated various steps to improve the status of women and worked for their economic empowerment during the year under report. The Commission completed its visits to all the States/UTs except Lakshdweep and prepared Gender Profiles to assess the status of women and their empowerment. It received a large number of complaints and acted suo-moto in several cases to provide speedy justice. It took up the issue of child marriage, sponsored legal awareness programmes, Parivarik Mahila Lok Adalats and reviewed laws such as Dowry Prohibition Act, 1961, PNDT Act 1994, Indian Penal Code 1860 and the National Commission for Women Act, 1990 to make them more stringent and effective. It organized workshops/consultations, constituted expert committees on economic empowerment of women, conducted workshops/seminars for gender awareness and took up publicity campaign against female foeticide, violence against women, etc. in order to generate awareness in the society against these social evils.
Functions of the National Commission for Women
The commission shall perform all or any of the following functions, namely :-
a. Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;
b. Present to the Central Government, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguard;
c. Make in such reports recommendations for the effective implementation of those safeguards for the improving the conditions of women by the Union or any state;
d. Review, from time to time, the exiting provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae, inadequacies or shortcomings in such legislations;
e. Take up cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities;
f. Look into complaints and take suo moto notice of matters relating to:-
i. deprivation of women’s rights;
ii. non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development;
iii. non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take up the issues arising out of such matters with appropriate authorities;
g. Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal;
h. Undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity;
i. Participate and advice on the planning process of socio-economic development of women;
j. Evaluate the progress of the development of women under the Union and any State;
k. Inspect or cause to inspected a jail, remand home, women’s institution or other place of custody where women are kept as prisoners or otherwise and take up with the concerned authorities for remedial action, if found necessary;
l. Fund litigation involving issues affecting a large body of women;
m. Make periodical reports to the Government on any matter pertaining to women and in particular various difficulties under which women toil;
n. Any other matter which may be referred to it by Central Government.
National Commission for Women
4, Deen Dayal Upadhayaya Marg,
New Delhi-110 002
NATIONAL HUMAN RIGHTS COMMISSION
(Protection of Human Rights Act, 1993)
How are human rights defined in the Protection of Human Rights Act, 1993 ?
In terms of Section 2 of the Protection of Human Rights Act, 1993 (hereafter referred to as ‘the Act’), “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed under theConstitution or embodied in the International Covenants and enforceable by courts in India. “International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the Unitednations on the 16th December, 1966 .
What functions have been assigned to the Commission under the Act ?
The Commission shall, perform all or any of the following functions, namely:-
a) Inquire, on its own initiative or on a petition presented to it by a victim or any person on his behalf, into complaint of-
i) violation of human rights or abetment or
ii) negligence in the prevention of such violation,by a public servant;
b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection tostudy the living condition of the inmates and make recommendations thereon ;
d) review the safeguards by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;
g) undertake and promote research in the field of human rights;
h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
i) encourage the efforts of non – Governmental organizations and institutions working in the field of human rights;
j) such other functions as it may consider necessary for the promotion of human rights.
What powers have been vested with the Commission relating to inquiries?
While inquiring into complaints under the Act, the Commission shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular the following, namely;
a) Summoning and enforcing the attendance of witnesses and examining them on oath;
b) discovery and production of any document;
c) receiving evidence on affidavits;
d) requisitioning any public record or copy thereof from any court or office;
e) issuing commissions for the examination of witnesses or documents;
f) any other matter which may be prescribed.
Does the Commission have its own investigation team?
Yes, the Commission has its own investigating staff headed by a Director General of Police for investigation into complaints of human rights violations. Under the Act, it is open to the Commission to utilise the services of any officer or investigation agency of the Central Government or any State Government. The Commission has associated, in a number of cases, non – Governmental organizations in the investigation work.
How does the Commission inquire into complaints?
The Commission while inquiring into complaints of violations of human rights may call for information or report from the Central Government or any State Government or any other authority or organization subordinate thereto within such time as may be specified by it; provided that if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own; on the other hand, if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly.
What steps are open to the Commission after inquiry?
The Commission may take any of the following steps upon the completion of an inquiry:
1) Where the inquiry discloses the commission of violation of human right or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority theinitiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
2) Approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
3) Recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary.
What is the responsibility of the authority/State/Central Governments to which reports / recommendations have been send by the Commission?
The authority/State Government/Central Government has to indicate its comments/action taken on the report/recommendations of the Commission within a period of one month in respect of general complaints and within three months in respect of complaints relating to armed forces.
What has been focus of the Commission’s Working ?
Inquiring into complaints is one of the major activities of the Commission. In several instances individual complaints have led the Commission to the generic issues involved in violation of rights, and enabled it to move the concerned authorities for systemic improvements.
However, the Commission also actively seeks out issues in human rights which are of significance, either suo motu, or when brought to its notice by the civil society, the media, concerned citizens, or expert advisers. Its focus is to strengthen the extension of human rights to all sections of society, in particular,the vulnerable groups.
The Commission’s purview covers the entire range of civil and political, as well as economic, social and cultural rights. Areas facing terrorism and insurgency, custodial death, rape and torture, reform of the police, prisons, and other institutions such as juvenile homes, mental hospitals and shelters for women have been given special attention. The Commission has urged the provision of primary health facilities to ensure maternal and child welfare essential to a life with dignity, basic needs such as potable drinking water, food and nutrition, and highlighted fundamental questions of equity and justice to the less privileged, namely the Scheduled Castes and Scheduled Tribes and the prevention of atrocities perpetrated against them. Rights of the disabled,access to public services, displacement of populations and especially of tribals by mega projects, food scarcity and allegation of death by starvation, rights of the child, rights of women subjected to violence, sexual harassment and discrimination, and rights of minorities, have been the focus of the Commission’s action on numerous occasions.
What are its major initiatives?
Review of statutes, including Terrorist & Disruptive Activities Act Protection of human rights in areas of insurgency and terrorism
Guidelines to check misuse of the power of arrest by the police
Setting up of Human Rights Cells in the State/City Police Headquarters
Steps to check custodial deaths, rape and torture
Accession to the Convention against Torture, Additional Protocols to the Geneva Conventions.
Discussion on adoption of a Refugee Law for the country
Systemic reforms of police, prisons and other centers of detention
Visit to Jails, mental hospitals and similar other institutions
Review of laws, implementation of treaties, and the international instruments on human rights
Economic, Social & Cultural Rights
Elimination of bonded labour and child labour
Issues concerning Right to Food
Prevention of maternal anaemia and congenital mental disabilities In the child
Human Rights of persons affected by HIV/AIDS
Public Health as a human rights issue
Rights of the vulnerable groups
Rights of women and children, minorities, scheduled castes and scheduled tribes
People displaced by mega projects
People affected by major disasters such as the super-cyclone in Orissa and the earthquake in Gujarat.
Monitoring the functioning of the Mental hospitals at Ranchi, Agra and Gwalior, and the Agra Protection Home, under a Supreme Court remit.
Action Research on Trafficking
Promotion and protection of the rights of the disabled.
Rights of Denotified and nomadic tribes
Welfare of the destitute widows of Vrindavan
Elimination of manual scavenging
Promotion of human rights literacy and awareness in the educational system and more widely in society.
Human rights training for the armed forces and police, public authorities, civil society, and students
Research through well-known academic institutions and NGOs on various issues relating to human rights
Where is the Commission located and what are its contact numbers?
National Human Rights Commission
Copernicus Marg, New Delhi – 110 001.
Facilitation Centre (Madad): (011) 23385368
Mobile No. 9810298900 (For complaints-24 hrs.)
Fax: (011) 23386521 (complaints)/23384863 (Administration)/ 23382734(Investigation)
Email: firstname.lastname@example.org. (General)/ email@example.com(For complaints)
firstname.lastname@example.org (Research Division)
Web site: http://www.nhrc.nic.in
NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS
One of the Core Mandates of the Commission is to inquire into complaints of violations of child rights. The commission is also required to take suo moto cognisance of serious cases of violation of child rights and to examine factors that inhibit the enjoyment of rights of children.
1. Complaints may be made to the Commission in any language of the 8th Schedule of the Constitution
2. No fee shall be chargeable on such complaints
3. The complaint shall disclose a complete picture of the matter leading to the complaint
4. The Commission may seek further information/ affidavits as may be considered necessary
While making a complaint, please ensure that the complaint is:
1. Clear and legible and not vague, anonymous or pseudonymous
2. Genuine, not trivial or frivolous
3. Not related to civil disputes such as property rights, contractual obligations and the like
4. Not related to service matters
5. Not pending before any other commission duly constituted under law or sub-judice before a court/ tribunal
6. Not already decided by the Commission
7. Not outside the purview of the Commission on any other grounds
8. Complaints may be addressed to:
National Commission for Protection of Child Rights,
5th Floor, Chanderlok Building, 36, Janpath,
New Delhi – 110 001
Phone : 23731583/ 23731584 23724027/ 23724028
MAIL : email@example.com
THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2008
Definition of a Victim:
In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:—‘(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;’
Victim Can engage Advocate to support and help the Prosecution
In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:— “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”
Statement of the Victim to be done in a safe place or a place of her choice and by a women police officer
In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:—
“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.
Use of Audio Video for Statements
In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:—
‘‘Provided that statement made under this sub-section may also be recorded by audiovideo electronic means.’’.
Use of Audio Video for Confession/Statement
In section 164 of the principal Act, in sub-section (1), for the proviso, the
following provisos shall be substituted, namely:—
“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:
Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”
Investigations of Child Sex Abuse to be done in time bound
In section 173 of the principal Act,—
(a) after sub-section (1), the following sub-section shall be inserted, namely:—
“(1A) The investigation in relation to rape of a child may be completed
within three months from the date on which the information was recorded by the officer in charge of the police station.”;
b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—
“(h) whether the report of medical examination of the woman has been
attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.”.
Witness Can Be Done By Using Electronic Means
In section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—
“Provided that evidence of a witness under this sub-section may also be
recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.
In Camera Trials and identity protection
In section 327 of the principle Act,—
(a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—
“Provided further that in camera trial shall be conducted as far as
practicable by a woman Judge or Magistrate.”;
(b) in sub-section (3), the following proviso shall be inserted, namely:—
“Provided that the ban on printing or publication of trial proceedings in
relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.
After section 357 of the principal Act, the following section shall be inserted, namely:—
(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation,
the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section
(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”
Right to appeal for the Victim against the verdict of the Trial Court
In section 372 of the principal Act, the following proviso shall be inserted, namely:—
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.
NATIONAL HUMAN RIGHTS COMMISSION
GUIDELINES FOR SPEEDY DISPOSAL OF CHILD RAPE CASES.
(i) The complaint relating to child rape cases shall be recorded promptly as well as accurately. The complaint can be filed by the victim or an eyewitness or anyone, including a representative of non-governmental organization, who has received information of the commission of the offence. The case should be taken as follows:
a) Officer not below the rank of SI and preferably lady police officer.
b) Recording should be verbatim
c) Person recording to be in civil dress
d) Recording should not be insisted in police station, it can be at the residence of the victim.
(ii) If the complainant is the child victim, then it is of vital importance that the reporting officer must ensure that the child victim is made comfortable before proceeding to record the complaint. This would help in ensuring accurate narration of the incident covering all relevant aspects of the case. If feasible, assistance of psychiatrist should be taken;
(iii) The Investigating Officer shall ensure that medical examination of the victim of sexual assault and the accused is done preferably within 24 hours in accordance with Cr. PC Sec. 164 A. Instruction be issued that the Chief Medical Officer ensures the examination of victim immediately on receiving request from I.O. The gynaecologist, while examining the victim should ensure recording the history of incident;
(iv) Immediately after the registration of the case, the investigation team shall visit the scene of crime to secure whatever incriminating evidence is available there. If there are tell-tale signs of resistance by the victim or use of force by the accused those should be photographed;
(v) The Investigation Officer shall secure the clothes of the victim as well as the clothes of the accused, if arrested, and send them within 10 days for forensic analysis to find out whether there are traces of semen and also obtain report about the matching of blood group and if possible DNA profiling;
(vi) The forensic lab should analyze the evidences on priority basis and send report within couple of months;
(vii) The investigation of the case shall be taken up by an officer not below the rank of S.I. on priority basis and, as far as possible, investigation shall invariably be completed within 90 days of registration of the case. Periodical supervision should be done by senior officers to ensure proper and prompt investigation;
(viii) Wherever desirable, the statement of the victims u/s 164 Cr. PC shall be recorded expeditiously;
(ix) Identity of the victim and the family shall be kept secret and they must be ensured of protection. IOs / NGOs to exercise more caution of the issue.
i) Fast Track courts preferably presided over by a lady judge and trial to be held in camera;
ii) Atmosphere in the court should be child friendly;
iii) If possible, the recordings be done in video conferencing / in conducive manner so that victim is not subjected to close proximity of accused;
iv) Magistrate should commit case to session within 15 days after the filing of the charge sheet.
Source: http://www.nhrc.nic.in/child rape case (new guidelines).doc