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THESIS
LEGAL PROTECTION OF WOMEN : AN ANALYTICAL STUDY
WITH SPECIAL REFERENCE TO DOWRY DEATHS IN THE
STATE OF JHARKHAND
THESIS SUBMITTED BY
BHANU GIRI
PURSUED UNDER SUPERVISION AND GUIDENCE OF
PROF. (Dr) SHIV SAHAI SINGH (Retd.)
DEPARTMENT OF LAW
UNIVERSITY OF BURDWAN
BURDWAN
WEST BENGAL
713104
Prof. (Dr.) Shiv Sahai Singh (Retd.) THE UNIVERSITY OF BURDWAN
M.A.,LL.M,Ph.D GOLAPAG, BURDWAN - 713104
Professor of Law West Bengal, India
Residence : Director (H), C.B. Singh law College Sonegaon (Dostpur Rd.) Akbarpur, Ambedkarnagar – 224122 (U.P) Mob : +91 943405934
CERTIFICATE
I have great pleasure to certify that Mr. Bhanu Giri, Guest lecturer in Law, has
done his research work on “LEGAL PROTECTION OF WOMEN : AN ANALYTICAL
STUDY WITH SPECIAL REFERENCE TO DOWRY DEATHS IN THE STATE OF
JHARKHAND” under my supervision and guidance for the award of Ph.D Degree in Law.
He has complied with all the formalities including delivery of two seminar lectures for
submitting the thesis leading to the Ph.D Degree in Law, University of Burdwan.
This is also to certify that no research work has, to the best of my knowledge, been done
on this topic in such format in any Indian or Foreign university and that work has been
done by the Researcher himself
Burdwan
(Prof. S S Singh)
CONTENTS
i) Preface I - IV
ii) Acknowledgement V
iii) Abbreviations VI
iv) Figures & Table VII - XIII
Chapter – 1
INTRODUCTION 2 - 48
Chapter – 2
EXISTING LAWS ON WOMEN IN INTERNATIONAL
LAW 49-173
2.1 Universal Declaration Of Human Rights ( UDHR) 49
1.0 Women In Western World 5
1.1 Women In Eastern World 7
1.2 Position Of Women In Nineteenth Century 10
1.3 Position Of Women In Ancient India 15
1.4 Position Of Women In Medieval Period 17
1.5 Position Of Women In Modern Period 18
1.6 Position Of Women After Independence 19
1.7 Women’s Liberty 22
1.8 Attempts For Empowering Women 28
1.9 Requirement Of 21st Century 36
1.10 Empowerment Of Women 39
1.11 Joint Effort Of Women And Society 42
2.2 Bangkok Declaration 59
2.3 Convention On Political Rights On Women 60
2.4 The Convention On The Nationality Of Married Women 64
2.5 Declaration On Elimination Of Discrimination Against Women, 1967 67
2.6 Convention On The Elimination Of All Forms Of Discrimination Against Women 69
2.7 Members And Ratification 74
2.8 Convention On Preventing And Combating Violence Against Women And Domestic
Violence 85
2.9 Global Implementation Plan To End Violence Against Women And Girls 90
2.10 United Nations Commission On The Status Of Women 93
2.11 Global Implementation Plan 97
2.12 United Nations Millennium Declaration, 2000 113
2.13 World Summit 2005 115
2.14 Legal Protection Of Women In Pakistan: 119
2.15 Legal Protection Of Women In Bangladesh 125
2.16 Legal Protection Of Women In Sri Lanka 138
2.17 Legal Protection Of Women In China 147
2.18 Legal Protection Of Women In UK 152
2.19 Legal Protection Of Women In Russia 156
2.20 Legal Protection Of Women In USA 163
2.21 Legal Protection Of Women In Australia 166
2.22 Legal Protection Of Women In South Africa 170
Chapter – 3
LEGAL PROTECTION OF WOMEN IN INDIA 172 -232
3.1 Legal Protection Of Women In India 175
3.2 Legal Provisions 179
3.3 Special Initiatives For Women 181
3.4 Protection Of Women From Domestic Violence Act 2005 182
3.5 State Legal Services In India 187
3.6 Women-Specific Legislations 188
3.7 Women-Related Legislations 189
3.8 The Immoral Traffic (Prevention) Act, 1956 192
3.9 The Dowry Prohibition Act, 1961 195
3.10 Other Provisions : 197
3.11 The Indecent Representation Of Women (Prohibition) Act, 1986 199
3.12 The Commission Of Sati (Prevention) Act, 1987 (3 Of 1988) 201
3.13 Fundamental Opposition 204
3.14 Indian Penal Code 206
3.15 Protection Of Women From Domestic Violence Act, 2005 213
3.16 The Protection Of Women Against Sexual Harassment At Work Place Bill, 2010: 222
3.17 Amendments To The Indian Penal Code 230
Chapter – 4
THE JUDICIAL EFFORTS TOWARDS WOMEN
PROTECTION 233-287
4.1 Efforts Of Supreme Court Of India 234
4.2 Trial Court Can Issue Direction To Initiate Disciplinary Proceedings Against Corrupt
Io, Medical Officer 249
4.3 Judicial Responses To Domestic Violence 254
4.4 Enforcing Laws 255
4.5 Exercising Discretion 256
4.6 Establishing Policies And Procedures 258
4.7 Advocacy Strategies For Judicial Reform 260
4.8 Legislative And Judicial Initiatives Towards Women Empowerment 262
4.9 Public Interest Litigation In India 268
4.10 A Defence Of ‘Judicial Activism’ 271
4.11 Khap Panchyat 275
4.12 Court Judgement Against Khap 281
4.13 Some Cases Of Honour Killings In India 284
4.14 Supreme Court's Criticism On Khap Panchayats 286
4.15 Conclusion 287
Chapter – 5
DOWRY DEATH - A CASE STUDY OF JHARKHAND
STATE 289-368
5.1 Introduction 289
5.2 History Of Dowry System In India 292
5.3 Law Against Dowry System 293
5.4 Case Study On Dowry Death In The State Of Jharkhand 294
5.5 Some Case Studies Of Dowry Deaths In Jharkhand 302
5.6 Special Cell To Check Crime Against Women 366
Chapter – 6
Conclusion 370 -386
Bibliography 387-395
i
PREFACE
Women constitute about half of the global population, but they are
placed at various disadvantageous positions due to gender difference
and bias. They have been the victims of violence and exploitations by
the male dominated society all over the world. Ours (India) is a
tradition bound society where women have been socially, physically,
economically and sexually exploited from time immemorial.
Sometimes in the name of religion, sometimes in the pretext of
customs and sometimes by the social sanctions.
The Universal Declaration of Human Rights (UDHR) 1948
proclaims: ‘All human beings are born free and equal in dignity and
rights’. But women’s freedom, dignity and equality are constantly
deprived all over the world, in the last two-three decades in particular.
So far many global initiatives have been taken to promote women’s
right. They include the declaration of decade for women (1975-85),
World conferences on women, the adaption of Beijing’s declaration
and platform for action. Inspite of all these initiatives, progresses in
the achievement of women’s rights have become slow worldwide.
More than 65 years after independence – the Indian women are still
unfree, exploited, sold as commodity, and liquidated without the law
held hostage by and exploitative combination.
The incidence of domestic violence against women has been
increasing over the years. Women are subjected to violence mainly
cruelty by husband or his relatives, dowry deaths, grievous heart etc. it
is matter of irony that instead of Protection of Domestic Violence Act,
2005 passed by Indian legislature. It is indeed true that the crime
ii
graph of atrocities on women has scaled alarming peaks in our
country, cases of dowry deaths, bride burning; honour killing and
suicide etc. have become a regular affair.
Dowry and dowry related murders and suicides are such evils in the
society which are putting the society to a great shame. As the law for
consumerism is increasing, so is the greed for dowry. Some bride
groom and his parents / family members want their needed consumer
articles to be supplied by the bride parents/family members. Failing to
get them satisfied, they sometime twist the arm of the bride so much
that it breaks. They either murder her or induce her to commit suicide
by their persisting cruelty, harassment, taunts, insults and humiliating
behaviour.
To eradicate these evil designs the criminal law has been amended but
with not much successes. It has been laid down that if a married
women dies within 7 years of her marriage in suspicious
circumstances, the matter has to be investigated. It may be a dowry
murder or induced suicide. New sections in Indian Panel Code i.e,
section 304B, section 498A have been inserted in respect of dowry
deaths and cruelty by husband or relatives of husbands.
Similarly, law of evidence has also been amended and section 113A
and 113B have been inserted which have been strengthened the hands
of prosecution by permitting a presumption to be raised if certain facts
are established and the unfortunate event has taken place within 7
years of marriage.
It’s really important to note that the offences against married women
are normally committed within their houses, therefore it’s not expected
iii
that physical torture or abuses couldn’t cause to the women. Dowry
deaths occur within four walls of the in-laws house of the bride. There
can be no direct evidence available for the offense of dowry deaths.
Therefore, the courts are to rely on circumstantial evidence.
It is of course true that every effort is been made to control it by
legislation. The legislation on the subject enacted by parliament i.e.
the Dowry Prohibition Act, 1961 and the far reaching amendments
which have been made in the Act by number of states have not been
subsided in combating the evil.
Its therefore, appears that there are legal provisions no doubt, but how
far these provisions safeguard women’s interest? The laws, both
substantive and procedural have failed to facilitate the punishment to
the guilty and to create fear in the minds of culprits.
The judicial system at the higher level seems to be alive to this social
melody but this progress attitude is a poor substitute of injustices and
harassment of suffering families. The casual manner, in which the
cases of bride burning are investigated, prosecuted and tried shows a
lack of concern by various functionaries of the criminal justice system.
The husband and in-laws escape punishment on account of many
loopholes in our existing criminal justice system. Thus, the present
study will undertake an impact analysis of existing legal system in
India combating such type of crimes. Then it will spell out the
justification for a special law for the protection of women. In this
context case studies of Jharkhand state have been undertaken. The
effective functioning of the family courts, the role of various NGO’s
and national commission for women has also been undertaken
iv
thoroughly which will recommend a legal strategy on its impact.
Further, it will help to identify the lacunas and limitations in the
existing legal regimes.
( Bhanu Giri )
v
ACKNOWLEDGEMENT
Writing of thesis on the subject of problems of women was not at all
an easy task for a researcher like me. This could not have been
possible without the able guidance and encouragement of my
supervisor. I express my heartfelt respect and gratitude to my guide
Professor(Dr) Shiv sahai Singh , the retired professor of Department
of Law, University of Burdwan, Golapbag, Burdwan ( W.B) for his
untiring supervision and good guidance in writing and presenting the
thesis for Ph. D degree in Law. I also express heartfelt thanks and
gratitude to Dr. Manik Chakraborty, Dr Sarit Sadhu and other faculty
members of the Department of Law, University of Burdwan for their
moral support.
I extend heartfelt thanks to my wife Kumudji, loving sons Ved
Prakash and Siddharth for their unflinching support in writing and
collecting the datas, figures etc. whenever and wherever required. The
help and support of the Librarian and other staffs of Indian Law
Institute, New Delhi is unforgettable.
I am indebted to all my friends and well wishers of Lions Club of
Bokaro Steel City, especially Mr K. O. Oommen and Mrs Shanta
Oommen, Principal, M G M Junior School , Bokaro Steel City, Dist-
Bokaro in the State of Jharkhand for their good wishes and
encouragement for writing the thesis.
( Bhanu Giri )
vi
A B B R E V I A T I O N
BIHR - Bangladesh Institute Of Human Rights
BPfA - Beijing Platform for Exchange
BLAST – Bangladesh Legal Aid And Services Trust
CEDAW – Convention on Elimination of Discrimination of all forms of Women
Cr.P.C - Criminal Procedure Code
EEA - European Economic Area
EGM – Expert Group Meeting
HDI – Human Development Index
ICC – Internal Complaints Committee
LCC – Local Complaints Committee
MDG – Millennium Development Goal
NGO – Non Governmental Organisation
NPAGE – National Plan Of Action on Gender Equality
NRM - National Referral Mechanism
NCW – National Commission for Women
PA – Public Association
PO – Prosecuting Officer
R2P/RtoP – Responsibility to Protect
UKBA – United Kingdom Border Agency
UNDP – United National Development Programme
VAWA – Violence Against Women’s Work
WHRN – Women’s Human Right Network
WIDM – Womens Independent Democratic Movement
1
1
Introduction
2
Twenty first century has brought in its trail a new hope for women.
Dramatic changes have happened in the role, ambitions and attitude of
women in the last few decades of twentieth century. Women have
departed from their traditional role of reproducers, mothers and wives
only. From a non-entity, they have been able to establish an identity of
their own in the modern society.
The whole situation in today’s women world leads to some basic
questions. Do women feel insecure, unhappy and dissatisfied more than
their predecessors? Why are they confused about women’s role and
position in modern society? Is employment making women
economically strong, but socially and emotionally broken? What can be
done to empower women? Is there any mid-way, which could make
women secure, aware, confident and happy without disturbing the
familial1 peace and social harmony?
1 familial - relating to or having the characteristics of a family; "children of the same familial background"; "familial
aggregation"
3
1. Why women are relegated to secondary position? Women comprise of
50% of the world population1. It is an anomaly that though they possess
diverse capabilities and are of valuable service in various nation-building
activities, they had been relegated to secondary position till very recent
past by the modern society. Why? Is it because they belong to weaker
sex? Or they are incapable or incompetent? No, it is not so.
2. It is appointed to ponder why modern women are still insecure and
unhappy, despite attaining so much success in almost every sphere of
modern world. Women have played multiple roles in life and in each
role their performance is par excellence. Still Women-folk have to suffer
innuendo2 physical and emotional problems despite of all the changes
and developments happened in the modern women’s world. The position
of women in real life is still far from satisfactory. There is still a deep
entrenched discrimination against them almost in every walk of life. It
crosses all the borders, age of region, caste, class or community.
3. Why is she confused about what her role should be in real-life?
Feminist Movement3 for empowerment
With changing times, women risen up to situation
Modern women have proved that they are second to none, whether it is
home or outside home at their workplace. Even in areas which are far
away from their traditional role as a housewife. With changing times,
they have risen up to the occasion and managed the work both inside and
outside the home at her work place. – Such as in industry, media, IT,
1 Empowerment of Women in modern India . “An enlightened women is a source of infinite energy” by Swami Vivekanand 2 innuendo - an indirect (and usually malicious) implication 3 The feminist movement (also known as the Women's Movement, Women's Liberation, or Women's Lib) refers to a series of campaigns for reforms on issues such as reproductive rights, domestic violence, maternity leave, equal pay, women's suffrage, sexual harassment, and sexual violence, all of which fall under the label of feminism.
4
politics, technology, administration/ management, armed forces or civil
services.
At home, they rear children with love and affection at home and manage
household activities. They have shown their capability to deal with
the recent economic depression - a situation of – with ingenuity. Like a
financial expert they meet the challenges of the present times of ever
rising prices in their own income.
Outside, they work shoulder-to-shoulder with men almost in all the
areas. They are educated. Many of them are financially independent.
Modern women1 are more aware than their predecessor of their rights
and are keen to exercise them. They know their worth in within the
family, in the society and in the world.
It did not happen overnight. Women fought a fierce battle to reach up-to
present position. They continuously worked hard to get equality, liberty
and opportunity.
Movement for empowerment of women
Woman’s movement for empowerment in India is quite different from
the similar movements in Western nations.
1 Modern Women referring to women of 20th Century.
5
1.0 WOMEN IN WESTERN WORLD
In the West, since beginning its focus was on establishing an
independent identity of a woman free from male domination. The
feminist movement in the West laid great stress on the freedom and
liberty of women. It resulted in reacting aggressively against patriarchal
system of society and male chauvinism.
Since Feminist movement for liberation and other revolutions took place
in western world, the western society realized much earlier the need to
improve the position of women in society. There the governments and
the society made many efforts/reforms – legal, social, economic and
political too gave to women more and more freedom and liberty to take
their own decision without being influenced by the men-folk.
Women of Western world today enjoy more privileges in matters of
education, employment, freedom, liberty & equality than their
counterparts in eastern world.
Margaret Thatcher1, the Prime Minister of United Kingdom during late
eighties led her country from a bad economic condition to success. She
has shown to the world that in a democracy, it is not necessary to bow
down before the unreasonable demands of pressure groups or abandon
useful but unpopular policies in order to win an election. Gorabachov’s2
Soviet Union watched with interest her efforts for economic
development. She has shown to the world that women are capable of
wielding political power even in a “Developed country” like England.
1 Margaret Hilda Thatcher, Baroness Thatcher, LG OM PC FRS was a British politician who was the Prime Minister of the United Kingdom from 1979 to 1990 and the Leader of the Conservative Party from 1975 to 1990. 2 Mikhail Sergeyevich Gorbachev is a former Soviet statesman, having served as General Secretary of the Communist Party of the Soviet Union from 1985 until 1991, and as the first president of the Soviet Union from 1990 until its dissolution in 1991
6
“But the erosion of family values and decay of day today ‘social life’ has
always been a matter of concern USA and the West. There people and
leaders regularly call for the restoration of social/family values and
systems, which basically depend on culture of ‘inclusiveness’ and not on
the concept of ‘exclusiveness’, which Western societies glamorizes.”1
1 Ref. Patricia Jeffrey, Frogs in a Well: Indian Women in Purdah (New Delhi: Vikas, 1979), p. 174.
7
1.1 WOMEN IN EASTERN WORLD
The eastern world, especially nations in Asia are still struggling to give
to its women their rightful place. Problems of high female mortality rate,
sexual harassment, deaths during childbirths still exist there. There are
millions of women who have go through sexual harassment, domestic
violence, discrimination, abuse or are denied of pleasures of life because
of their gender. Their problems are deeply ingrained in the history, laws
and cultures of complex and sophisticated Asian societies.
Beauty of Indian movement1
In India, initially the focus of the movement for emancipation
/empowerment of women-folk were to improve and not to denounce
the traditional values and systems. It was to lead women to freedom and
remove darkness spread all over due to the apathy of powerful lobbies of
the society, which crushed the spirit of men and women alike. It aimed to
empower not only the women, but the nation as a whole. Therefore,
under the guidance, encouragement and support of eminent male leaders
like Gandhi, Nehru, Patel and social reformers like Raja Ram Mohan
Roy, Ishwar Chandra Vidyasagar, Vivekananda etc., women in India
also challenged those quarters which were interested in holding all
backwards.
Being under the foreign domination, India suffered for a long time due to
multiple ills – poverty, illiteracy, ignorance due to superstitions and
blind following of outdated customs and social practices, women being
the worst victim. Therefore, the movement for empowerment focussed
on education, social and legal reforms like equal civic, personal and
1 Indian Movement refers to the various movements started during the pre-independence period in early19th century.
8
property rights to men and women. Stress was laid on ‘Stree Dharma’1
(fundamental duties of women). The strength of the whole movement
was based on its being above party, caste or communal politics.
Confusion in women’s mind about their role in life
There is a confusion in women’s mind as well as to what should be their
role in life – that of a home-maker or a career woman. On one hand they
are under constant pressure, because psychological strains are created by
the need to conform to socially induced images of femininity – to be a
good wife, perfect mother and efficient home-maker. On the other, desire
to establish their own identity or financial strains in family life force
them to become career women.
Why Indian women feel insecure in general?
Generally women suffer deprivation, discrimination, humiliation and
denial of basic human rights in varying degrees at some point or the
other. Discrimination against them is at every stage of life and
everywhere. It may be a girl child, a married woman, a single woman, a
working woman, refugees or women belonging to lower, middle or
upper strata of society.
In India, women in general form one of the most vulnerable sections of
Indian Society. Women are at disadvantage due to:
Class oppression due to poverty,
Economic dependence on male counterpart,
Caste oppression due to inter caste clashes
Social taboos and
Gender oppression
1 Shweta Singh (2009). Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti - In The Woman Question in the Contemporary Indian English Women Writings, Ed. Indu Swami, Sarup: Delhi.
9
Increasing number of crimes.
Many transitions in one life for a woman
A woman faces many transitions in one life. Almost every tenth year
brings a major change in her life. With each transition, her role and
position in society changes drastically. She needs attention, support, care
and love of her near and dear ones during transition from one phase to
another – in her childhood of her parents and close relations, in her youth
of her spouse, in her old age of her sons and daughters. It is usually
apathy of people concerned, at every stage of her life, which makes a
woman’s life miserable. Discrimination against her starts much before
she is born- in the form of feticide and continues till her last breadth.
Unfortunately, most of the times, it is her own family and people, who
are responsible for her sufferings. Women generally prefer to suffer
silently than to go to courts or seek justice in the courts/state authorities
or any outside agency. The consumerist culture has increased atrocities,
domestic violence and physical assaults on women.
10
1.2 POSITION OF WOMEN IN THE NINETEENTH
CENTURY
Up-till the beginning of twentieth century women in India along with
other women all over the world were hedged in by many social,
economic, legal and religious restrictions. Most of them were illiterate,
ignorant and confined them within the four walls of the house for
centuries. They were not aware of their rights. Ignorance and deprivation
were accepted as their lot. They were far away from the mainstream, cut
off from all the communications with outside world and generally
confined within the four walls of their house.
Still victims of social evils and discrimination
A large number of women are still victims of many evil social customs
and traditions, which are ingrained in the history, culture and laws of the
patriarchal system of society. Most heinous crimes are still done against
women irrespective of caste, creed, time or place such as infanticide,
feticide, physical abuse, early marriage, illiteracy, unequal rights in
marriage, divorce, rape, molestation, dowry deaths, inheritance,
polygamy, inauspicious widowhood with severe disabilities and
restrictions, restrictions on widow remarriage or Sati etc.etc,. The list is
endless. Crimes against women are increasing every day.
Declining Sex-ratio
Societal bias against women continues as revealed by falling sex-ratio.
India may be progressing economically, but socially it is on its back
gear. On gender issues it lags behind alarmingly – be it sex-ratio or
number of crimes, as statistics show, against women1. On paper there are
1 "CIA Fact Book". The Central Intelligence Agency of the United States.
11
enough laws to tackle the issues, but without much positive results. The
sex ratio has steadily declined over the 20th century
1. The sex ratio in
1901 census was 975 female to every 1000 males. Now according to
provisional data of Census 2011, released on 31st April 2011, national
sex ratio is 940 females for every 1000 males in 2011; child sex
(0-6years) has worsened to 914 in 2011 from 927 in 2001. Decline is
unabated since 1961 Census.2
Poor statics in other spheres as well
As for health-care, the National Sample Health Survey showed that over
50% of women are anaemic. India’s maternal mortality ratio is highest in
South Asia: 540 deaths per 1, 00,000 live births. Though 70% of the
female labour force works is in agriculture, less than 10% of women
farmers are landowners. Nearly half the women in India are still
illiterate. Literacy rate 65 years after independence has reached for
females only up to 65% (total being 74% and for males 82%).3
Reasons for sufferings/insecurity of women-folk are many like -
Indifferent attitude – The male-dominated society and callous
government usually turns a blind eye to the gender issues, “Women have
to face an uphill task for taking women’s issues as, firstly most people
are indifferent to atrocities that do not affect them, and it is only a
microscopic minority, which reacts. Secondly, the administration and
judiciary are very slow in reaching and taking any kind of measure and
sometimes even stall the proceedings.”4
1 Grech, V; Savona-Ventura, C; Vassallo-Agius, P (2002). "Unexplained differences in sex ratios at birth in Europe and
North America". BMJ (Clinical research ed.) (BMJ, NCBI/National Institutes of Health) 324 (7344): 1010–1. PMC 102777. PMID 11976243. 2 Source : http://censusindia.gov.in/2011census/hlo/HLO_Tables.html 3 Source : (TOI, 8.3.07, P.18) 4 Mr. P.A. Sebastian, Secretary of the Committee for People’s Democratic Rights
12
Strains on modern families – A modern woman, when in need, does not
find enough support systems to fall back on, which usually her own
family used to provide earlier. Due to fast-pace of modern life, busy life-
style, lack of time and other constraints on modern families, it has
become almost impossible to get earlier kind of emotional or physical
support. Many surveys show that a significant number of women leave
workforce when they start a family. Maternity is usually seen as a
disruption in career. There is a dramatic decline in the share of women as
they move up the hierarchy.
Growing intolerance amongst youths – The tolerance level of people is
continuously decreasing. Aspirations and ambitions have increased
beyond limits. Everybody wishes to touch the sky with least effort and
with no loss of time. Failure in achieving one’s targets due to one reason
or the other, make a person intolerant and angry.
Liberal ‘divorce’ laws – In metros and modern families, marriages are no
more considered to be a lifelong commitment. Intolerance amongst
youth is increasing. A woman cannot be sure due to lack of mutual
understanding, how long her marriage will last. It does not take much
time or effort for both the couple to walk out. A little bit of intolerance
or misunderstanding puts her married status in danger and compels her to
cope up with all kinds of problems and difficult situations single-
handedly.
Adversities of life arising out of economic, social, psychological and
environmental situations hit women’s world worst. During times of war,
struggle, unstable economy, natural calamities and infighting amongst
various sections of society or inter-group or intra-group clashes, women
along-with children are the primary victims and are worst hit.
At times in an attempt to safeguard/uphold their independence/authority
within the family or at working place, some women become insensitive,
13
narrow minded and sometimes ruthless. Too much of assertion of their
independence or authority create complications in their own life and in
others’ lives as well, which ultimately develop insecurity in
women’s minds.
Government of India has made some draconian1 laws in favour of
women with an intention to protect them from violence and
discrimination. Instead of gaining the sympathy of society or the
opposite sex, they have earned the wrath/ire of menfolk and the society.
Such laws are being misused by some shrewd women to teach
men/society a lesson. Male members or his relatives cannot even raise
their voice against the misuse of such legislations.
Government’s inefficiency/failure to implement honestly and sincerely
the laws passed to protect the interests of women.
Disoriented psyche of Modern Woman
It has been observed that too much stress on women’s liberty has
developed in women a disoriented form of psyche, where nothing but
‘self’ matters – ‘I, my and me’. Women too like men are now in a rat
race for power, position and money. Self-gratification and heroism
(feeling of being super women) is taking prevalence over social
responsibilities. Breaking down of value system is affecting adversely
familial bonds or bonds of marital loyalty. They are in a hurry to fulfil
their desires and in the process end seems to justify means. Such an
attitude has led to a situation, where they do not want to compromise in
any way their time and resources, most of the times not even for their
own children. Modern women many a times do not find or devote
enough time to inculcate positive values in the minds of growing-up
1 A code of laws prepared by Draco, the celebrated lawgiver of Athens, that, by modern standards, are considered exceedingly severe. The term draconian has come to be used to refer to any unusually harsh law.
14
children. Rising number of different kinds of crimes and lawlessness in
the society as well as in the nation is to some extent.
15
1.3 POSITION OF WOMEN IN ANCIENT INDIA
The position of women was not always so bad in India. In ancient India,
during the Vedic period1, women were placed on a high pedestal. In her
role of a good wife and a worthy mother, she commanded a great deal of
respect and honor in the society. They were known for their mental
alertness, intuition and spiritual qualities of love and service. The best of
qualities a human being can possess like knowledge, wealth, strength
and ability to provide food and shelter were all visualised in the form of
woman – Saraswati, Laxmi, Durga, Annapurna respectively. She had
freedom and access to education and knowledge. Gargi2 and Maitreyi
3
are well known for their pursuit of knowledge. “Yatra Naryastu
Pujyante, Ramate Tatra Devata”4, meaning where woman is worshipped,
there resides god.
During later period of Vedic age, as described
in Brahamanas and Sutras, women lost their independence and their
status was degraded to that of ‘Shudras’5. Women were regarded as unfit
for independent life. After the revival of Hinduism, according to Chinese
traveller’s, marriages between men of higher castes and women of lower
castes were permitted and their offspring’s were given a recognised
1 D.N. Jha, Ancient India: An Introductory Outline (New Delhi: People's Publishing House, 1981), p. 11. The Early Vedic or kg Vedic age which begins from 1500 B.C. and the post-Vedic age which extends from 1000 B.C. to 500 B.C. 2 Gargi, the Vedic prophetess and daughter of sage Vachaknu, composed several hymns that questioned the origin of all existence. When King Janak of Videha organized a 'brahmayajna', a philosophic congress centered around the fire sacrament, Gargi was one of the eminent participants. She challenged the sage Yajnavalkya with a volley of perturbing questions on the soul or 'atman' that confounded the learned man who had till then silenced many an eminent scholar. Her question - "The layer that is above the sky and below the earth, which is described as being situated between the earth and the sky and which is indicated as the symbol of the past, present and future, where is that situated?" - bamboozled even the great Vedic men of letters. 3 Maitreyi :The Rig Veda contains about one thousand hymns, of which about 10 are accredited to Maitreyi, the woman seer and philosopher. She contributed towards the enhancement of her sage-husband Yajnavalkya's personality and the flowering of his spiritual thoughts. 4 Maharshi Manu, who set the code of conduct for Indian society. 5 Shudra is the fourth Varna, as prescribed in the Purusha Sukta of the Rig veda, which constitutes society into four varnas or Chaturvarna. The other three varnas are Brahmins; Kshatriya, and Vaishya.
16
position in society. Marriages of widows were dis courage, custom of
Sati was established, but child marriage was unknown. Women were
taught Arts and Shasta’s as well.
17
1.4 POSITION DURING MEDIEVAL PERIOD
Seventh century onwards, with the downfall of Hindu Raj and
continuous invasions of Turks, Afghans and Mughals, the position of
woman deteriorated fast. Right to education was taken away from them.
They became the victims of illiteracy, ignorance, complete male-
domination and many kinds of religious and social restrictions.
Patriarchal system institutionalized unequal nature of family laws and
traditions. Property was inherited only by sons.
In some parts of northern India, Bengal and Rajputana, women from
families of Rajah, Chiefs, Zamindars and upper castes suffered from
social evils like ‘Purdah system’ 1, ‘Sati Pratha,
2 ‘dowry’ ‘polygamy’
and ‘infanticide’, renunciation of all the comforts and happiness by
widows (young or old). In Maharashtra, these evils were curbed to some
extent by the energetic steps taken by Peshwa.3
Nevertheless, this does not mean that there were no exceptions to this
rule. Even during those days, there were a few great women like Rani
Laxmibai, Chand Bibi, Milya Bai, Razia Sultana etc. who came into
forefront, led people and earned fame and respect of people.
1 Ref. Asha, S. “Narrative Discourses on Purdah in the Subcontinent.” ICFAI Journal of English Studies 3, no. 2 (June 2008): 41–51: Purdah has "visual, spatial, and ethical dimensions".It refers to three main components: veiling of women, segregation of sexes, and a set of norms and attitudes that sets boundaries for Muslim women’s moral conduct. 2 Ref. Doniger, Wendy (2009). The Hindus: An Alternative History. Penguin Books. p. 611. ISBN 9780143116691.: A social funeral practice among some Indian communities in which a recently widowed woman would immolate herself on her husband’s funeral pyre 3 A Peshwa is the titular equivalent of a modern Prime Minister. Maratha ruler Shahaji created the Peshwa designation in order to more effectively delegate administrative duties during the growth of the Maratha Empire.
18
1.5 POSITION OF WOMEN IN MODERN PERIOD
During the second half of the nineteenth century, modern education drew
the attention of some sensitive Indians and reformers like Swami
Dayanand, Maharshi Karve, Raja Ram Mohan Roy, and Gandhiji etc.
towards the oppressive and evil social customs, practices and traditions.
They tried to put to an end those evil practices. They worked for the
better future and emancipation of women community. Inspired by
Gandhiji, many women from well to do and middle class families not
only received education, but also came out to take part in public life.
Women’s Associations were formed all over the country. All India
Women’s Conference 1was formed in 1926 and is working since then to
support legitimate demands of women.
All India Muslim Ladies Conference2 was started in 1914. Leading
Muslim ladies demanded abolition of Purdah system3, restrictions on
polygamy and spread of education for women. They were supported by
reformists.
Wives of some viceroys showed interest in the uplift and
education of women and helped in opening some colleges and institution
for them. In 1923, due to sincere efforts of Mrs. Ramabai Ranade,
Women India Association was formed with branches all over the
country. It rendered valuable service to the cause of women.
1 The All India Women's Conference (AIWC) is an organization based in Delhi. It was founded in 1927 by Margaret Cousins, "as an organization dedicated to upliftment and betterment of women and children". As well as continuing its original mission, the AIWC has since diversified into various social and economic activities involving women. Today there are more than 100,000 members in over 500 branches. AIWC is recognized worldwide as a premier organization working for women's development and empowerment. 2 Father and Daughter: a political autobiography. Lahore: Nigarishat, 1971. Also: Karachi: Oxford University Press, 2002 0195796462 3 An MRG International Report Muslim women in India by Seema Kazi 1999
19
1.6 POSITION OF WOMEN AFTER INDEPENDENCE:
Brighter Side of Women’s development
Since Independence, India is passing through times of rapid changes in
social behaviour. It is still in transitional phase. Government took upon
itself responsibility of protecting its women, providing them better
conditions of living, better education, better medical facilities, better job-
opportunities and opening up enough avenues for them to grow to their
fullest stature1.
Constitution of India gave them freedom, equality and access to
education and employment. Government of India issues guidelines, from
time to time, to Central and State Government for formulating and
implementing action programs for women2. It has identified areas of
health, family planning, nutrition, education, vocational courses for
women, employment, legal provisions and social welfare for its future
action plans.
Woman herself has become aware and confident of her mind,
capabilities and rights. She started questioning the stereo type
assumptions that went with womanhood. Gradual and greater awareness
has led her to make her own decisions. She made her own efforts for
welfare of women and secured more space in economic, political and
social spheres for them through the intervention of government’s
authorities. The older typical image, slowly and slowly, started getting
diffused. Women got a foothold in modern world and started leading
active life.
1 "Women in History". National Resource Center for Women. Retrieved 24 December 2006.
2 Kalyani Menon-Sen, A. K. Shiva Kumar (2001). "Women in India: How Free? How Equal?". United Nations. Archived
from the original on 11 September 2006. Retrieved 24 December 2006.
20
A separate Department of Women & Child Development
In 1985, a separate Department of Women & Child Development 1was
set up within the Ministry of Human Resource development to
implement/monitor the comprehensive programs and to ensure all round
development of Women. National Perspective Plan (NPP) for women2
1988-2000 A.D. prepared a base for future strategies. It put a major
thrust in the programs for women development, particularly to raise the
social and economic status of women. It also instructs the Government to
ensure that women are properly covered by developmental schemes.
There had been many changes during last few decades of twentieth
century. Many bright and dynamic young women came forward and
joined the national mainstream through working and reaching at decision
making levels in different disciplines like politics, administration,
economics, technology, industry, journalism and other developmental
fields, which are far away from her traditional role of a housewife. Many
of them made their presence felt in Indian society. The name of Mrs.
Indira Gandhi, former Prime Minister (1965 to 1984) is worth
mentioning here. At present, everybody is well aware of the important
place occupied by Sonia Gandhi and her role in Indian politics. However
the number of women who have joined the main-stream is very small.
1 Department of Women and Children: The broad mandate of the Ministry is to have holistic development of Women and Children. As a nodal Ministry for the advancement of women and children, the Ministry formulates plans, policies and programmes; enacts/ amends legislation, guides and coordinates the efforts of both governmental and non-governmental organisations working in the field of Women and Child Development. Besides, playing its nodal role, the Ministry implements certain innovative programmes for women and children. These programmes cover welfare and support services, training for employment and income generation, awareness generation and gender sensitization. These programmes play a supplementary and complementary role to the other general developmental programmes in the sectors of health, education, rural development etc. All these efforts are directed to ensure that women are empowered both economically and socially and thus become equal partners in national development along with men official website: http://wcd.nic.in/aboutus.htm 2 National Perspective Plan for Women, 1988-2000 A.D.: Report of the Core Group Set Up by the Department of Women & Child Development, Ministry of Human Resource Development, Government of India, 1988 India. Dept. of Women and Child Development
21
Twenty first century has brought a new hope for women. Many women
have joined the workforce and become quite ambitious about their own
career in the same manner as men are. However the number of women
who have joined the main-stream is very small.
Darker Side - In general, women are still victims of discrimination.
22
1.7 WOMEN’S LIBERTY
The darker side of women’s lib is that woman who acted as a pivot
around which the whole familial and social life revolved, is losing her
grip and is under the influence of her whims and fancies. She is
becoming more and more aggressive and rude, most of the time shouting
on others and showing all kinds of tantrums – emotional and violent
outbursts1.
Is Child-care a dilemma2? -Child care and proper upbringing of small
children, who need twenty four hours mothers’ attention and presence at
home has become a dilemma for career women. Parenting and
inculcating right values in children requires a lot of time and patience
during a child’s growing years.
Dearth of time and required attention of parents at right time, lack of
stimulation at home, while children are growing up, tense atmosphere
and impaired relationships between parents, dictatorial handling of
children during their tender age and easy availability of and access to
money tempts children to bad habits.
The concept of spending ‘quality’ or ‘quantity’ time with children does
not work well. Many parents buy materialistic goods for them to clear
their guilt conscience of not being there for them. In the dual worker
families with dependent children, the concerns can range from sheer
logistic problems associated with providing proper child-care to
emotional challenges tied to not being there, when one’s children are
growing.
1 Jayapalan (2001). Indian society and social institutions. Atlantic Publishers & Distri. p. 145. ISBN 978-81-7156-925-0.
2 Pruthi, Raj Kumar; Rameshwari Devi and Romila Pruthi (2001). Status and Position of Women: In Ancient, Medieval
and Modern India. Vedam books. ISBN 81-7594-078-6.
23
It is the irony of the modern times that when children need their mothers
the most, a modern career mother hardly gets time to spend with them.
Her mind remains busy in unresolved problems of work-place and her
career prospects, even at that time too, when she is at home. When she
finds spare time, her children do not need her much, as they get involved
in schools or in other activities elsewhere and remain busy in their own
world.
Alienation1 – Sometimes, improper handling during their tender age may
make children irritant or undisciplined or hamper normal growth of
children’s abilities. Many children develop the feeling of alienation and
revolting indulgence. They may become uncommitted to values of their
parents or the ‘establishment’. Some of them become the victim of
harmful evils like drug addiction (an evil, which has come across as
shockingly and poignantly) in order to escape from problems that may be
real or imaginary.
To prevent such harmful evils from spreading in the society, it is
necessary that parents shall find out enough time for their children. It
would develop in children feeling of interdependence and a feeling of
being wanted and being loved. They should provide them a secure and
stable home environment. Children can be kept busy with sports, hobbies
and other useful activities, which could which could slant them away
from evil outlets.
Support systems – There exist many support systems, but not without
constraints. If young couple depend on their old parents or in-laws for
taking care of their children and in performing daily household chores,
they become overburdened and find it difficult to cope with the
1 Shweta Singh (2009). Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti - In The Woman
Question in the Contemporary Indian English Women Writings, Ed. Indu Swami, Sarup: Delhi
24
responsibilities properly due to their failing health. If they depend on
servants, they are expensive, unreliable, untrained and do not stay around
for long.
Crutches/day care centre, are overcrowded and are run more on
commercial basis rather than paying attention required for proper
upbringing of children. Besides a mother’s role is so crucial that nobody
else can substitute her for cultivating positive qualities, which once
imbibed, would inevitably became part of one’s nature and provide the
guidelines for wholesome behaviour patterns.
In short, career women themselves are overburdened. Neither they could
do full justice to home-tasks nor to their duties at work place. At home,
their kids are deprived of the tender and affectionate care and love of the
mother. The nation is at loss from having confident and healthy citizens
– mentally, physically and economically. Such a dilemma is seen not
only in India, but in advanced countries too, where government has
created enough facilities and arrangements to make their citizens secure
and comfortable.
Plight of an urban woman1
Two income families are fast becoming the norm of urban modern
society. It puts a great pressure on urban women. Modern trend of
nuclear family system and desire of liberated woman for complete
freedom have aggravated their problems2.
The urban women have to suffer mainly due to lack of support systems.
Old traditional support systems are gradually vanishing and new systems
1 Advani, Abhishek (17 November 2009). "JP Morgan's India CEO". Forbes. Retrieved 23 January 2012
2 "Women of India: Frequently Asked Questions". 19 December 2006. Retrieved 24 December 2006
25
supposed to replace them are not up to the expectations and satisfaction.
For some couples day-care or crutches are too expensive.
In addition to it, increased necessities due to consumerism and lure for
luxury items have added to the miseries of urban women, who suffer
more than a rural woman due to social evils like infanticide1, dowry,
divorce, child care, polygamy2 etc.
Plight of rural women
In rural India, most of the women are victim of poverty, ignorance,
illiteracy and unemployment. Rural women irrespective of caste or class
have to suffer more than urban women in three critical areas: –
Ø Access to education,
Ø Reproductive health, and
Ø Credit Resources.
Illiteracy is wide spread in rural areas, which has made rural women
superstitious, unemployable and victim of different kinds of oppressions.
Poverty frequently pushes unemployed men to go to distant places in
search of jobs and leave their families behind. Most of rural women in
about 30% to 35% rural households, women are sole breadwinner with
complete responsibility to raise children and run the household3. They
mostly work in unorganized sector and are usually oppressed or
exploited by their employers4.
1 Infanticide (or infant homicide) is the intentional killing of infants, generally female infanticide is more common than the killing of male offspring. 2 Polygamy, (translated literally in Late Greek as "many married") is a marriage which includes more than two partners. When a man is married to more than one wife at a time, the relationship is called polygyny; and when a woman is married to more than one husband at a time, it is called polyandry. If a marriage includes multiple husbands and wives, it can be called group or conjoint marriage. 3 Carol S. Coonrod (June 1998). "Chronic Hunger and the Status of Women in India". Retrieved 24 December 2006
4 Bhatt, Ela R. We are Poor but So Many: the Story of Self-Employed Women in India. New York: Oxford UP, 2005
26
Most of the women in rural areas become victims of abuse, harassment,
humiliation and exploitation because of the laziness, drunkenness, debts,
vices or violent attitude of their own men-folk1. Wife beating, desertions,
polygamy are the common practices amongst them.
Male members of the family are incapable to protect own women. They
tolerate atrocities on their women by others with down cast eyes.
Nobody comes forward to rescue the victims or has the courage to
condemn exploitation of their own women. In addition to it women’s
own helplessness, unawareness or inherent weaknesses put them in
difficult situations.
However, women belonging to lower castes get laxity in regard to all
those social or religious restrictions, rituals and observances, by which
urban women or caste Hindu women suffers like Pardah system,
polygamy, Sati Pratha etc. Widows have lesser ritual or religious
restrictions. Divorce or remarriage is allowed to rural women.
Caste Colour to gender issues2
Generally, the suppression and slave like conditions of women do not
evoke much sympathy in the hearts of men-community. On the contrary,
many male members of the society try to cash on women’s sufferings. In
fact the male-dominated society and callous Government turns a blind
eye to the gender issues.
In the present atmosphere of politicization of caste, Caste-colour is given
to gender issues. Gender issues are very conveniently turned into caste
issues by vested shrewd persons/politicians. Such an attitude pushes the
oppressed women into the background unnoticed. It is done purposely to
1 Victoria A. Velkoff and Arjun Adlakha (October 1998). "Women of the World: Women's Health in India" (PDF). U.S.
Department of Commerce. Retrieved 25 December 2006 2 The Danger of Gender: Caste, Class and Gender in Contemporary Indian Women's Writing" by Clara Nubile, p.9
27
evoke public sentiments against other castes living there. Politicians reap
benefit out of it.
28
1.8 ATTEMPTS FOR EMPOWERING WOMEN1
Reality is much deeper than what one sees on the surface or in the
papers. The attempts done so far in India towards women’s development
could make a small section of women educated and aware. They are
doing several things which women were not allowed to do a few years
back. But these attempts are just like few drops in the ocean. Much more
is required to be done in this area.
The pace of women’s advancement has been very slow. It is very
difficult to make a breakthrough in age old traditions, customs and
accepted norms/values in the society. Despite all the efforts made for
women’s uplift, plight of average women has not been changed much.
She still remains the most maligned/ill-treated person even in modern
society.
Deep thinking of authorities, national determination and political-will are
needed to assess women’s properly problem-areas and to remove hurdles
lying on their way to join the mainstream2. It necessitates toning up
social, legal, political and economic systems. It involves social
mobilization and transformation of outdated social values. Plans for
women’s development need to be made very carefully, so that not only
they, but also the whole society and nation could benefit.
There is a need to create supportive infrastructure for women to enhance
their confidence and ensure their security. For it, policy makers need to
understand that liberation means liberation from atrocities and
oppression3. The policies, they make or programs they initiate should be
directed to educate all the women, so that they could become confident,
1 "India country data - Women, Business and the Law - World Bank Group". Wbl.worldbank.org. Retrieved 3 April 2012
2 "Status of Women in India" by Shobana Nelasco, p.11
3 "National Policy For The Empowerment Of Women (2001)". Retrieved 24 December 2006.
29
self-sufficient, and capable to participate in nation building activities. It
is necessary to inculcate in women scientific temper and courage to fight
against evil social practices. They should be made aware of the legal
infrastructure of the nation, especially about the special legal measures
taken to protect them from atrocities and exploitation.
Education of a girl child1
So far, Government has attempted to educate all the women, but without
desirable results. According to 2011 census the literacy rate amongst
women could reach only up-to 65%. Reluctance of parents to send their
daughters to co-educational institutions or hostels, or their economic
difficulties creates problems for girls to get educated. Quite often
talented and hard-working girls are by-passed, while arrangements are
made for the brother.
Challenge of education, A Policy Perspective 1985 has observed “As far
as the participation of girls in education is concerned, it is clear that even
after considerable acceleration in recent years because of deliberate
measures to facilitate their participation, girls are still way behind the
boys2. To a great extent this disparity is more the result of economic and
occupational problems and cultural biases of society than the
accessibility of educational facilities. Even though the performance of
girls compares favourably with the boys, relatively fewer girls seek
admission to professional courses other than those pertaining to
medicine, teacher training and nursing.”
Many parents still do not like to send their daughters to far away schools.
They still hesitate to send girls to co-educational institutions and are
1 Victoria A. Velkoff (October 1998). "Women of the World: Women's Education in India" (PDF). U.S. Department of
Commerce. Retrieved 25 December 2006. 2 "Human Development Report". United Nations Development Programme. 2013. p. 156
30
particularly averse to those, in which there are male teachers. A large
number of girls get little education or no education at all due to financial
constraints or domestic responsibilities or early marriage or early child
birth etc.
As a result of this attitude, many girls seldom get opportunity to develop
their personality and fulfil their ambitions. Half of the
opportunities/career-courses available to them are not known to many
girls especially those belonging to poor families or living in remote
areas. It is still difficult for them to get free access to modern facilities
like computer or internet.
Their easy access to Open University1 and distance education programs
could solve these problems to a great extent.
Sound system of education and training makes any person broad-
minded, liberated and financially independent and to inculcate in them
knowledge. Training imbibes in them attitude, work-habits and skills.
Swami Vivekananda has said when you educate a man you educate only
one person. But when you educate a woman you educate a whole family.
Prepare them to join mainstream2
The number of employed women is also not at all satisfactory. It is only
12% of the total number of women3. Even this employment figure is the
result of the contribution made by those uneducated rural women, who
work as marginal labour in agricultural sector without increasing
productivity4. It means that majority of Indian women, whether educated
or uneducated whether living in urban areas or in rural areas, remain
1 "National Policy For The Empowerment Of Women (2001)". Retrieved 24 December 2006
2 "Human Development Report". United Nations Development Programme. 2013. p. 156
3 Mishra, R. C. (2006). Towards Gender Equality. Authorspress. ISBN 81-7273-306-2
4 "Asia's women in agriculture, environment and rural production: India". Retrieved 24 December 2006
31
either unemployed or underemployed. Economically woman is still
dependent on man.
Women population consists of about 50% of total population. They form
a vast reservoir of human resource, which is yet to be tapped and utilized
fully1. At present, career opportunities have no matching training
facilities. There is absence of enough job oriented courses for women.
Many girls are left with no alternative but to join local
colleges/universities just to pass time, keep them busy till they get
married and obtain degrees in Arts, Science or Commerce.
Therefore, more and more job oriented vocational course, professional
education, training and refresher courses need to be created for them. It
would inculcate in them knowledge, attitude, work-habits and skills and
to create groups of skilled women. Also enough special short term
refresher training and coaching programs need to be arranged in order to
fill the gap incurred in their career due to familial liabilities. There is a
need to create enough job-opportunities for women. It also requires that
information about the opportunities should be available to them.
Entrepreneurship among women needs to be promoted2. Government can
facilitate credit by providing financial assistance to them. There should
be no age-bar for women to join jobs in organized sector. It would
enable them to join organized sector at appropriate point of time in their
life and fill the gap incurred in their career due to familial liabilities.
More and more job oriented vocational courses and a good and congenial
atmosphere to work.
If planned properly the education and family-life, with the norm of two
children in a family, most of women could be free from their 1 "National Policy For The Empowerment Of Women (2001)". Retrieved 24 December 2006
2 "Human Development Report". United Nations Development Programme. 2013. p. 156
32
motherhood liabilities and could find enough time to join the mainstream
and plan their career without hindrance. Arrangements of short term
refresher training or coaching programmes can solve the problem of
filling the gap incurring between their graduation from educational
institutions and start of a regular career. Benefit of Open University and
distance education programs could be taken for this purpose. It would
enable women to get employed again. The gap incurred in their career
would not block their way to enter into the mainstream once again.
Views on position of women1
There are different views about what the position of women in society is
and what should be their role. There are two extreme views about it -
Feminists’ point of view – Till mid-seventies, feminists concentrated
more on issues like discriminatory laws of inheritance, domestic
violence, rape, equal pay etc. They blamed oppressive practices of
society, hypocrisy of men, religious beliefs and socio-economic-political
systems, for enhancing women’s miseries. Now they are in stiff
competition with male members of society. Their attention is more on
countering the space given to males in patriarchal society rather than on
how to tackle women issues.
According to them, society still considers woman a “Problem”. Hindu
religion trains them to seek fulfilment in self-denial and tolerate
humiliation throughout her life. It is dinned into woman’s head right
from the beginning that a woman’s world begins and ends with the
happiness of her family. That there could be something else more
exciting, fulfilling and different, never crosses her mind.
1 "Status of Women in India" by Shobana Nelasco, p.11
33
They feel that forceful and aggressive qualities of body and mind of man
has imposed on women many kinds of restrictions. The traditional and
historical demarcation of activities, in which male members leave the
home for paid labour and women remain at home performing longer
hours of unpaid work is a great injustice. Patriarchal system of society
has relegated women to secondary status in the society, strengthened and
institutionalized unequal family laws and traditions1. Feminists advice
women, “do not work hard on your relationship. Work smart”.
Feminists accuse the Government for not taking appropriate policy
measures addressed to woman’s problems seriously. All principles,
programs and laws which guarantee freedom, equality, liberty, humanly
treatment to all remain inapplicable in the case of women.
Traditional point of view2
Traditionalists assert that equality, for which some feminist women are
clamouring, is worthless. It is difficult, how-so-ever hard one tries to
ignore/get over those inherent gender dissimilarities, which nature has
created in their physique, style and attitudes. Women, by nature are more
patient, tolerant, responsible and understanding than man.
Healthy relationship between husband and wife makes the world more
colourful, comfortable and give each other purpose of life. It gives both
of them incentive to work hard, move forward and make everybody
happy within the family.
There is no substitute for a mother’s loving care. Constant interaction of
parents with children is the key learning tool needed in growing years. A
mother can guide better the physical and mental growth of her children,
1 "The Danger of Gender: Caste, Class and Gender in Contemporary Indian Women's Writing" by Clara Nubile, p.9
2 Pruthi, Raj Kumar; Rameshwari Devi and Romila Pruthi (2001). Status and Position of Women: In Ancient, Medieval
and Modern India. Vedam books. ISBN 81-7594-078-6.
34
develop their character and mould them into civilized young
citizen. While doing so, women get inner satisfaction and sense of
fulfilment. Absence of mother from the house hampers the proper
growth of a child. Quite often insecurity, vengeance, emotional
deprivation creeps in within the minds of children.
Except for a few exceptions, concept of “family” and “home, sweet
home” is vanishing from the Indian scene as well. Centuries old
institution of ‘family’, which has, so far, provided emotional support to
all family members is no longer remained a cushion either for husband,
children, elders or sick.
Too much stress on liberty and freedom of women has taken away sheen
from the centuries old social institution known as ‘family’. An impulsive
mind cannot think rationally. Till now, they have given refuge and
emotional support to all – young or old. Now their absence from home
has developed insecurity in minds of children and old people. The
increasing burden of work within and outside the house has often
resulted in domestic quarrels, which at times end up in divorce.
Divorce creates unhappy situations for both the couples. The most
bitterly contested issue is that of child custody. And given the parallel
increase in number of divorced people remarrying, the issue takes on an
added complexity. Increasing number of divorce cases or cases of mental
depression amongst women due to stress/pressures are the living
examples of it.
Idea of the development of women in Indian atmosphere does not match
the idea of the western women’s liberation movement. Western women
have progressed a lot and enjoy the freedom in their own way. But has
anyone peeped in their personal lives? They are only independent. There
35
are no finer nuances in their relationship. Familial ties do not carry much
meaning to them. Marriage, divorce, re-marriage, custody of children,
insecurity amongst children are causing severe problems for Western
society.
36
1.9 REQUIREMENTS OF 21ST
CENTURY1
The need of the modern times is to maintain a balance between
femininity and ambition. The measures for improving the status of
women should not destroy those valuable components of Indian culture,
which sustains life, activity and happiness of all within a family. Without
them a woman’s life becomes just like a bouquet of paper flowers, which
does not have any fragrance and after some times loses its charm.
Nucleus family system gives enough space and opportunity to grow and
adjust with each other. Her husband shares all her familial liabilities and
willingly takes care of her parents and blood relatives. Both have equal
share in matters relating to finances. Husband shares the responsibility
for parenting/child-rearing and home-management. Still many couples
are not able to create an environment of partnership that is comfortable
to all the nucleus family members, leave aside the extended family.
Now in most of the families, elders cannot interfere in young couple’s
decisions. It is considered to be absolutely personal matter. There is no
emotional pressure of on the woman of a nucleus family. However, the
more she gets, more she desires. Now she wants complete freedom from
all familial responsibilities including that of her own household.
An Indian woman has various dimensions to her personality – that of a
daughter, sister, wife, a mother, a grandmother – each one adds to her
happiness. She does not need to ape West’s materialistic value system,
where it has already been shifted from “are being”to“having”2. The finer
values of life have given way to sheer selfishness, chasing money,
materialism, commercialism and desire to possess more and more
1 Singh, S., & Hoge, G. (2010). Debating Outcomes for ‘Working’ Women – Illustration from India, The Journal of
Poverty, 14 (2), 197-215 2 "A Place at the Multicultural Table: The Development of an American Hinduism" by Prema Kurien, p. 171
37
luxurious goods/comforts. Modernization has increased their necessities
& economic expectations.
Psyche of modern liberated women1
Recent transition has made some of women over-confident and over-
ambitious. The psyche of such modern, educated and liberated women
has led them to be in ruthless competition with men. In their hurry to win
the race and further their career, they overlook their social
responsibilities. They desire to have similar freedom, liberty and carefree
life, as usually male counterparts enjoy. They prefer to act or behave like
men.
Many women desire to set themselves free from all bondage of kinship.
Some of them prefer to go far away from their homes and settle down in
unknown places or in foreign lands, where she enjoy anonymity, get total
control over activities of their spouses and enforce on everybody their
own will/manifesto.
As movement of women’s lib is gaining momentum, a drastic transition
is taking place in the attitude of both the sexes. Role of man in
performing household chores and responsibilities in rearing up infants
and toddlers is increasing. His say in family matters is diminishing.
Usually voice of woman in a house prevails, men finds themselves
helpless.
Such women take all major decisions in the family and to dictate their
own terms. They want to control the destiny of everybody around them.
They do whatever they want and enjoy life in their own way. To them,
1 Singh, S., & Hoge, G. (2010). Debating Outcomes for ‘Working’ Women – Illustration from India, The Journal of
Poverty, 14 (2), 197-215
38
nothing matters in life except for their own self. Is it a true
empowerment or it is a mirage?
Women need to be careful by exercising some self-control and self-
discipline, so that they do not hurt the feelings or rights of others in the
family or society. A woman needs to understand that she should not try
to act or behave like a man. There is much more grace in femininity. The
roles of man and woman in a society are not competitive but
complementary. A woman can remain more safe, secure, confident and
successful, till she lives in protected atmosphere in the company of her
male counterpart.
39
1.10 EMPOWERMENT OF WOMEN
“Empowerment”1 is only a political slogan as of date. Presence of a few
persons of a section in power structure does not change the condition of
its majority. These political campaigns mislead people and betray the
cause. What is needed for empowering women is toning up social, legal,
political and economic systems2. True empowerment requires clear cut
policies by identifying the specific problem areas and then based on
them, the approach for its solution to be followed.
Reservations for women3
Some leaders suggest that Reservation of jobs for women is one of the
ways, which can empower women. If Government, political parties and
its leaders have real faith in Policy of Reservation4, then on the grounds
of deprivation, discrimination and under-representation, no other section
of society deserves Reservation more than women.
However women have set a classic example that they can make progress
without crutches. Though the progress is slow, but it is definitely
sustainable. Women’s march towards progress/empowerment is
unstoppable and irreversible. Reservation Policy will not necessarily lead
to the sustainable growth of women-folk.
If women can do so without Reservation, why cannot men of SCs, STs
or OBCs? If for any reason or rhyme, government finds itself to provide
1 Empowerment refers to increasing the spiritual, political, social, educational, gender, or economic strength of individuals and communities. 2 United Nations Research Institute for Social Development. 2010. Combating Poverty and Inequality: Structural Change, Social Policy and Politics. Geneva: UNRISD “Gender Inequalities at Home and in the Market.” Chapter 4, pp. 5–33 3 "Rajya Sabha passes Women's Reservation Bill". Chennai, India: The Hindu. 10 March 2010. Retrieved 25 August
2010. 4 Reservation is a process of setting aside a certain percentage of government jobs and vacancies in educational institutes for members of backward and under-represented communities (defined primarily by caste, religion, gender status as a domicile etc). Reservation is a form of quota-based affirmative action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations.
40
reservation to women, then it should abolish immediately this
discriminatory policy of reservation.
The need of special attention in case of women arises not because they
are intellectually inferior to men, but because they miss many
opportunities, when some crucial years of their life are spent in fulfilling
familial responsibilities. That time they serve humanity and the nation by
taking care of the future generation, cultivating in them positive
qualities, which once imbibed, inevitably become part of one’s nature
and provide guidelines for their wholesome behaviour pattern.
For their valuable contribution to the society and the nation, if they could
not be rewarded, then at least, they should not be punished.
Fifth Pay Commission1
Fifth Pay commission for central government employees made certain
useful suggestions. After assessing specific needs of women, the Vth Pay
Commission observed, “Representation of women at the supervisory
decision-making/managerial levels both in Government and Public
Sector Undertakings is very limited…”
Therefore, it suggested “Age of recruitment for women employees may
be enhanced to 35 years, as by that time in a majority of cases, family
commitments would be more manageable and children would be fairly
grown up.” It recommended the concept of flexi-time and flexi-place on
trial basis. Voluntary system of option for serving women-employees to
work half time for a maximum of six years in a career, when the children
are young and family commitments are at the maximum. It also
recommended the government to sympathetically take care of
1 "Pay commission in india". Retrieved 12 October 2011
41
their accommodation, nature of posting, transport facilities, child-care
facilities at day care centres or crèches etc.
Such concessions for women are required, so that Women can continue
to take responsibility of her dependent children, elderly relatives. They
can do justice to their familial responsibilities. Their increasing
participation in work outside home should not become inexorably taxing.
They can balance work and family responsibilities together.
42
1.11 JOINT EFFORT OF WOMEN AND SOCIETY
A joint effort of women themselves and that of the society and the nation
is urgently needed in order to cope with the challenges posed due to
recent changes in the attitude and role of women of twenty first century1.
It would be a blunder, if society does not realizes that women are the
backbone of Indian society. They not only provide management at home,
but also work they work shoulder-to-shoulder with men almost in all the
areas. They contribute, both directly and indirectly, in nation-building
activities. Women have always been good managers and decision-
makers. Till now their qualities/skills have benefitted ‘family’ only.
There is a need to maintain balance between femininity and ambitions of
women. With modernity, technological advancements, info-tech
revolution has changed the role of women, her equations with others, her
perspective and ambitions. Economic independence has made them
stronger, confident and more vociferous2. They are aware and informed
about the solutions of the needs and problems of their own and their
children more than their spouses.
Immediately after independence, in 1950′s, free young India embodied a
liberal and inclusive vision of India. People understood and interpreted
liberally the problems of caste, gender, community, rural-urban areas,
meaning of social-economic-legal justice and attempted to resolve the
issues rationally.
1950′s and 60′s was the time, when society was in general conservative,
attitude hardly rebellion against social norms, talks being all about
1 Singh, S. 2010. "Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti" – As part of an Anthology
titled The Woman Question in the Contemporary Indian English Women Writings, Ed. Indu Swami Publishers Sarup: Delhi 2 Singh, S. & Singh, P. (2011). "Shobha De: Deconstructed for Maverick Feminism." In Contemporary Indian Women
Novelists In English, Ed. Indu Swami, Sarup: Delh
43
sacrifice. 1970′s and 80′s was the period of transition, when though
people were still family and society-oriented, rebellion attitude started.
Those were the years of social and political turmoil. Women gradually
achieved success in various fields. Gender bias started vanishing.
Women acquired more education, economic and social power on their
own without craving for any concession unlike other so-called weaker
sections of society like SCs, STs or OBCs. A new wave swept across the
woman’s world – many young women joined the workforce becoming
students, teachers, administrators or activists in different social
movements. With it, gender relationships and norms have undergone a
sea-change because of changed socio-economic atmosphere and a
change in expectations1. It has ironically increased conflicts.
In 1990′s, rebellion attitude became dominant2. Family and society were
considered major obstacles on the way to progress. In matter of
employment, it is not so difficult for women to ` get jobs as it was
earlier. Women were placed more or less on equal footing with men.
Earlier main women issues were of physical strain, constant
psychological pressures, to conform to socially induced images of
femininity – to be a good wife, perfect mother, efficient home-maker and
on the other to work hard in office to prove her worth. Their concerns
then revolved around issues like dowry, domestic violence, rape, equal
opportunities and equal pay etc. Now the focus is on teaching menfolk a
lesson and be ahead of them everywhere. Today’s woman wants her man
to do all that, which previous generation of women did for their
counterparts.
1 "InfoChange women: Background & Perspective". Retrieved 24 December 2006
2 Ray, Raka. Fields of Protest: Women's Movements in India. University of Minnesota Press; Minneapolis, MN. 1999.
Page 13.
44
The attitude of people in twenty first century became increasingly
individualistic. Both men and women bothered about their own issues
and commitments. More importance is being given to self-identity, less
attention to family-matters. Youth do not tolerate any opposition or
interference of elders in their family matters. Any restriction on
pleasures of life is just not tolerated1. They want life free from tensions
and stress.
Independent, but undisciplined life style, pressures due to lack of family
support systems, clash in old and new value systems, fatigue due to
erratic sleep patterns due to late night entertainment culture, running
after money, numerous temptations due to market-oriented economy,
fascination for glamour and excitement are responsible for making
modern life awry with full of tensions.
Women issues needs to be nurtured very carefully, so that not only they,
but also the community and nation can benefit. A woman should not care
for her own needs only, but also needs to see the welfare of all the
persons around her. To be educated means to be enlightened, to be aware
of her surroundings and to be conscious of her responsibilities.
At present families and communities do not have time to spare for
inculcating required values in children. Now a days, schools/educational
institutions are expected by modern society to inculcate in young
children good values and mannerism. From schools required values are
expected to be reinserted into society. For inculcation of moral values,
modern society should not depend on educational institutions. It can
make children learn to stand on their feet and be politically and
economically independent, but often, in life they end up “Bowling
1 Women in the face of globalisation. New Delhi: Serials Publications, 2007
45
Alone” (in sociologist Robert Putnam’s memorable phrase) and
unhappy.
Why should a woman consider maternity, motherhood and household
responsibility a burden? That is their source of power as the next
generation is in her domain. There is an urgent need to pay attention to
the future of family as an institution. Values cannot be taught like texts
nor tested in written examinations. Good values are inculcated at home,
in one’s family and society. They are learned by living. Woman is the
hope of the future1.
Success in life is not dependent on legal document, or on laid down rules
and regulations. It depends on maturity, mutual understanding and
willingness to make adjustments for each other’s happiness.
As far as the ambitions of woman are concerned, she should set her
priorities rightly at different points of her life. If she wants to pursue a
career first, she should devote her efforts and energy towards it. But once
she decides to enter into a family life, she should not take it for granted.
She needs to be mentally prepared to shoulder its responsibilities as well.
She should find out enough time for her family and children.
As a householder she along with her spouse is responsible to provide a
secure and stable home environment. A well knit family promotes a
feeling of inter-dependence and a feeling of being wanted and being
loved.
As far as government is concerned, it should have liberal policies for
making jobs available to women as employment makes women not only
economically strong, but socially and emotionally strong. Women like
1 Shweta Singh (2009). Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti - In The Woman
Question in the Contemporary Indian English Women Writings, Ed. Indu Swami, Sarup: Delhi.
46
men have every right to feel secure, confident and happy and to be
participating actively in the mainstream of a nation/national growth, in
solving all the problems of society and nation at every level. They are,
both entitled to and responsible for contributing to national development
but without disturbing familial peace, social harmony.
Adequate attention needs to be given by policy-makers and the society to
issues like -
proper identification of problem areas; adjustments of financial
allocations and administrative decisions as well actions to suit condition;
motivation and disciplining of socio-political authorities to have
sympathy and understanding about culture and needs of the society, in
which they live;
For ensuring women’s participation in their own welfare and
development processes in physically and socially uncongenial
environment, attention should be paid in devising strategies to provide a
safe and secure atmosphere to them.
More in-depth studies of women issues should be encouraged to provide
alternative approaches/strategies for resolving them by the Government,
society as well as by voluntary agencies.
Law-makers should legislate more equitably.
Male chauvinism must go. Unless woman can take her rightful place by
the side of man, there is no point of the women knowing what to do. She
must be allowed to do it. If the future of the nation is to be safeguarded,
it is necessary to acknowledge that roles of man and women in life are
complementary not competitive.
47
Any society could only flourish when its women are given their due
place in the process of development. It should never be forgotten that
“An enlightened woman is a source of infinite energy.”
1.13 Problems to get solutions on the issue : The problem of
discrimination in women is a phenomenon in India. To explore this
discrimination towards women in India is not an easy task for a
researcher because of the vast area of the country. Therefore the author
of this thesis has decided to discuss the issue of women related problems
in criminal law domain specially dowry deaths on the count of subject
matter. On the basis of feasibility and reliability, the researcher chosen
an area of the country which is tribal dominated and fully backward
known as Jharkhand region, now a state of Indian region to highlight the
problem faced by women on the issue.
1.14 Research Methodology : The whole research is done basically on
doctrinal method along with some empirical surveys of the state of
Jharkhand to explore the crime rate against women on the issue of
Dowry Deaths in the state.
Therefore, the whole project is classified into five (5) parts. The first part
introduces the project to highlight the problems of women related
atrocities. The second fragment of the project concentrates on existing
laws on women in International Law. The third chapter discusses on
legal protection of women in India. The fourth part of the work analyses
the judicial efforts towards women protection with reference to crimes
against women. The fifth portion of the project highlights on dowry
deaths with reference to Jharkhand States. The project is concluded in
the last part of the work.
48
2
Existing Laws
on Women in
International
Law
49
2.1 UNIVERSAL DECLARATION OF HUMAN RIGHTS:
The Universal Declaration of Human Rights (UDHR) is a declaration
adopted by the United Nations General Assembly on 10 December 1948
at Palais de Chaillot, Paris. The Declaration arose directly from the
experience of the Second World War and represents the first global
expression of rights to which all human beings are inherently entitled.
The full text is published by the United Nations on its website.
It consists of 30 articles which have been elaborated in subsequent
international treaties, regional human rights instruments, national
constitutions and laws. The International Bill of Human Rights consists
of the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights and its two Optional Protocols. In
1966 the General Assembly adopted the two detailed Covenants, which
complete the International Bill of Human Rights; and in 1976, after the
Covenants had been ratified by a sufficient number of individual nations,
the Bill took on the force of international law1.
During the Second World War the allies adopted the Four Freedoms:
freedom of speech, freedom of religion, freedom from fear, and freedom
from want, as their basic war aims. The United Nations Charter
"reaffirmed faith in fundamental human rights, and dignity and worth of
1 Williams 1981; This is the first book edition of the Universal Declaration of Human Rights, with a foreword by Jimmy Carter
50
the human person" and committed all member states to promote
"universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or
religion1” A universal declaration that specified the rights of individuals
was necessary to give effect to the Charter's provisions on human rights2.
At the time Humphrey was newly appointed as Director of the Division
of Human Rights within the United Nations Secretariat3. The
Commission on Human Rights, a standing body of the United Nations,
was constituted to undertake the work of preparing what was initially
conceived as an International Bill of Rights4. The membership of the
Commission was designed to be broadly representative of the global
community with representatives of the following countries serving:
Australia, Belgium, Byelorussian Soviet Socialist Republic, Chile,
China, Egypt, France, India,-family phrases were the result of the
Christian Democratic movement's influence on Cassin and Malik5.
The Universal Declaration was adopted by the General Assembly on 10
December 1948 by a vote of 48 in favour, 0 against, with eight
abstentions: the Soviet Union, Ukrainian SSR, Byelorussian SSR,
People's Federal Republic of Yugoslavia, and People’s Republic of
Poland, Union of South Africa, Czechoslovakia and the Kingdom of
Saudi Arabia6,7
. Honduras and Yemen, both members of UN at the time,
failed to appear for vote8. The South African position can be seen as a
1 United Nations Charter, preamble and article 55". United Nations. Retrieved 2013-04-20 2 UDHR – History of human rights". Universalrights.net. Retrieved 2012-07-07 3 Morsink 1999, p. 133 4 Morsink 1999, p. 4 5 Carlson, Allan 12 January 2004. Globalizing Family Values 6 CCNMTL. "default". Center for New Media Teaching and Learning (CCNMTL). Columbia University. Retrieved 2013-07-12 7 UNAC. "Questions and answers about the Universal Declaration of Human Rights". United Nations Association in Canada (UNAC). p. "Who are the signatories of the Declaration?" 8 Jost Müller-Neuhof (2008-12-10). "Menschenrechte: Die mächtigste Idee der Welt". Der Tagesspiegel (in German). Retrieved 2013-07-12.
51
kind of protection of the system of apartheid in South Africa, which
clearly violated any number of articles in the declaration7. The Saudi
Arabian delegation abstained mostly for two reasons: because of Article
18 which states that everyone has the right "to change his religion or
belief" and because of Article 16 on equal marriage rights. Eleanor
Roosevelt attributed the abstention of the Soviet bloc nations to Article
13, which provided the right of citizens to leave their countries.1
The following countries voted in favour of the declaration:2
Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil, Burma,
Canada, Chile, Republic of China, Colombia, Costa Rica, Cuba,
Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia,
France, Greece, Guatemala, Haiti, Iceland, India, Iran, Iraq, Lebanon,
Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua,
Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Siam, Sweden,
Syria, Turkey, United Kingdom, United States, Uruguay, Venezuela.
The Universal declaration should protect the rights of people. Each
country who signed this declaration is obliged to respect the human
rights in their country. The human rights include: Equal opportunities,
Equality of the sexes,
Racial equality,
The right to an education,
The right to protest,
The right to life,
The right to privacy,
Freedom of speech,
1 Ref : Glendon 2001, pp. 169–70, 2 Ref : Yearbook of the United Nations 1948–1949 p 535
52
Freedom of religion,
Children protection and
Tolerance
The underlying structure of the Universal Declaration was introduced in
its second draft which was prepared by René Cassin1. Cassin worked
from a first draft prepared by John Peters Humphrey2. The structure was
influenced by the Code Napoleon, including a preamble and introductory
general principles3. Cassin compared the Declaration to the portico of a
Greek temple, with a foundation, steps, four columns and a pediment.
Articles 1 and 2 are the foundation blocks, with their principles of
dignity, liberty, equality and brotherhood. The seven paragraphs of the
preamble, setting out the reasons for the Declaration, represent the steps.
The main body of the Declaration forms the four columns. The first
column (articles 3–11) constitutes rights of the individual, such as the
right to life and the prohibition of slavery. Articles 6 through 11 refer to
the fundamental legality of human rights with specific remedies cited for
their defence when violated. The second column (articles 12–17)
constitutes the rights of the individual in civil and political society.
The third column (articles 18–21) is concerned with spiritual, public and
political freedoms such as freedom of thought, conscience and religion,
as well as freedom of association. The fourth column (articles 22–27)
sets out social, economic and cultural rights. In Cassin's model, the last
three articles of the Declaration provide the pediment which binds the
1 René Samuel Cassin (born 5 October 1887 in Bayonne, France; died 20 February 1976 in Paris, France) was a French jurist, law professor and judge. He received the Nobel Peace Prize in 1968 for his work in drafting the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948. That same year, he was also awarded one of the UN's own Human Rights Prizes. René Cassin founded the French Institute of Administrative Sciences (IFSA) which was recognized as a public utility association. 2 John Peters Humphrey, OC (April 30, 1905 – March 14, 1995) was a Canadian legal scholar, jurist, and human rights advocate. He is most famous as the author of the first draft of the Universal Declaration on Human Rights. 3 Ref: Glendon 2002, pp. 62–64.
53
structure together. These articles are concerned with the duty of the
individual to society and the prohibition of use of rights in contravention
of the purposes of the United Nations Organisation.1
The adoption of the Universal Declaration is a significant international
commemoration marked each year on 10 December and is known as
Human Rights Day or International Human Rights Day. The
commemoration is observed by individuals, community and religious
groups, human rights organisations, parliaments, governments and the
United Nations. Decadal commemorations are often accompanied by
campaigns to promote awareness of the Declaration and human rights.
2008 marked the 60th anniversary of the Declaration and was
accompanied by year-long activities around the theme "Dignity and
justice for all of us.”2
The Guinness Book of Records describes the UDHR as the "Most
Translated Document”3 in the world. In the preamble, governments
commit themselves and their people to progressive measures which
secure the universal and effective recognition and observance of the
human rights set out in the Declaration. Eleanor Roosevelt supported the
adoption of the UDHR as a declaration rather than as a treaty, because
she believed that it would have the same kind of influence on global
society as the United States Declaration of Independence had within the
United States. In this, she proved to be correct. Even though it is not
legally binding, the Declaration has been adopted in or has influenced
most national constitutions since 1948. It has also served as the
foundation for a growing number of national laws, international laws,
1 Ref: Glendon 2002,Ch.10 2 Ref : "The Universal Declaration of Human Rights: 1948–2008". United Nations. Retrieved 15 February 2011. 3 "Universal Declaration of Human Rights". United Nations Office of the High Commissioner for Human rights.
54
and treaties, as well as regional, national, and sub-national institutions
protecting and promoting human rights.
While not a treaty itself, the Declaration was explicitly adopted for the
purpose of defining the meaning of the words "fundamental freedoms"
and "human rights" appearing in the United Nations Charter, which is
binding on all member states. For this reason the Universal Declaration
is a fundamental constitutive document of the United Nations. Many
international lawyers, in addition, believe that the Declaration forms part
of ‘customary international law’1 and is a powerful tool in applying
diplomatic and moral pressure to governments that violate any of its
articles. The 1968 United Nations International Conference on Human
Rights advised that it "constitutes an obligation for the members of the
international community" to all persons.
The declaration has served as the foundation for two binding UN human
rights covenants, the International Covenant on Civil and Political
Rights, and the International Covenant on Economic, Social and Cultural
Rights and the principles of the Declaration are elaborated in
international treaties such as the International Convention on the
Elimination of All Forms of Racial Discrimination, the International
Convention on the Elimination of Discrimination Against Women, the
United Nations Convention on the Rights of the Child, the United
Nations Convention Against Torture and many more. The Declaration
continues to be widely cited by governments, academics, advocates and
constitutional courts and individual human beings who appeal to its
principles for the protection of their recognised human rights.
1 Office of the High Commissioner for Human Rights. "Digital record of the UDHR". United Nations.
55
The Universal Declaration has received praise from a number of notable
people. Charles Malik, Lebanese philosopher and diplomat, called it "an
international document of the first order of importance,"1 while Eleanor
Roosevelt, first chairwoman of the Commission on Human Rights
(CHR) that drafted the Declaration, stated that it "may well become the
international Magna Carta of all men everywhere."210 December 1948.
In a speech on 5 October 1995, Pope John Paul II called the UDHR "one
of the highest expressions of the human conscience of our time"3. And in
a statement on 10 December 2003 on behalf of the European Union,
Marcello Spatafora said that "it placed human rights at the centre of the
framework of principles and obligations shaping relations within the
international community.
Islamic countries reaction:
Most Islamic countries have signed the Universal Declaration of Human
Rights and other human rights agreements. In 1948, Saudi Arabia did not
sign the declaration, claiming that it violated Islamic Sharia law4.
However, Pakistan (which had signed the declaration) disagreed with
and critiqued the Saudi position5. In 1982, the Iranian representative to
the United Nations, Said Rajaie-Khorassani, said that the UDHR was "a
secular understanding of the Judeo-Christian tradition", which could not
be implemented by Muslims without trespassing the Islamic law6. On 30
June 2000, Muslim nations that are members of the Organisation of the
1 Statement by Charles Malik as Representative of Lebanon to the Third Committee of the UN General Assembly on the Universal Declaration, 6 November 1948 2 Michael E. Eidenmuller (1948-12-09). "Eleanor Roosevelt: Address to the United Nations General Assembly". Americanrhetoric.com. Retrieved 2012-07-07. 3 "John Paul II, Address to the U.N., October 2, 1979 and October 5, 1995". Vatican.va. Retrieved 2012-07-07. 4 Nisrine Abiad (2008). Sharia, Muslim states and international human rights treaty obligations: a comparative study. BIICL. pp. 60–65. ISBN 978-1-905221-41-7. 5 Price, Daniel E. (1999). Islamic political culture, democracy, and human rights: a comparative study. Greenwood Publishing Group. ISBN 978-0-275-96187-9. 6 Littman, D (February/March 1999). "Universal Human Rights and Human Rights in Islam". Midstream. Archived from the original on 2006-05-12.
56
Islamic Conference (now the Organisation of Islamic Cooperation)
officially resolved to support the Cairo Declaration on Human Rights in
Islam1, an alternative document that says people have "freedom and
right to a dignified life in accordance with the Islamic Shari’ah", without
any discrimination on grounds of "race, colour, language, sex, religious
belief, political affiliation, social status or other considerations". As a
secular state, Turkey has signed the declaration of Human Rights in 1948
and other European Human Rights agreements.
A number of scholars in different fields have expressed concerns with
the Declaration's alleged western bias. These include Irene Oh (Religion
and Ethics), Abdulaziz Sachedina (Religion), Riffat Hassan (Theology)
and Faisal Kutty (Law). Riffat Hassan argues as follows:
"What needs to be pointed out to those who uphold the Universal
Declaration of Human Rights to be the highest, or sole, model, of a
charter of equality and liberty for all human beings, is that given the
Western origin and orientation of this Declaration, the "universality" of
the assumptions on which it is based is - at the very least - problematic
and subject to questioning. Furthermore, the alleged incompatibility
between the concept of human rights and religion in general, or
particular religions such as Islam, needs to be examined in an unbiased
way."2
Irene Oh argues that one of the ways to reconcile the two is to approach
it from the perspective of comparative ethics.3
Kutty writes: "A strong argument can be made that the current
formulation of international human rights constitutes a cultural structure
1 "Resolution No 60/27-P". Organisation of the Islamic Conference. 2000-06-27. Retrieved 2011-06-02. 2 "Are Human Rights Compatible with Islam?". religiousconsultation.org. Retrieved 2012-11-12. 3 "The Rights of God". Georgetown University Press, 2007.
57
in which western society finds itself easily at home ... It is important to
acknowledge and appreciate that other societies may have equally valid
alternative conceptions of human rights.1
Groups such as Amnesty International2 and War Resisters International
3
have advocated for "The Right to Refuse to Kill" to be added to the
UDHR. War Resisters International has stated that the right to
conscientious objection to military service is primarily derived from, but
not yet explicit in, Article 18 of the UDHR: the right to freedom of
thought, conscience and religion.
Steps have been taken within the United Nations to make this right more
explicit; but those steps have been limited to secondary, more "marginal"
4United Nations documents. That is why Amnesty International would
like to have this right brought "out of the margins" and explicitly into the
primary document, namely the UDHR itself.
1 "Non-Western Societies Have Influenced Human Rights". in Jacqueline Langwith, ed., Opposing Viewpoints: Human Rights (Gale/Greenhaven Press: Chicago, 2007) 41. 2 Out of the margins: the right to conscientious objection to military service in Europe: An announcement of Amnesty International's forthcoming campaign and briefing for the UN Commission on Human Rights, 31 March 1997. Amnesty International. 3 A Conscientious Objector's Guide to the UN Human Rights System, Parts 1, 2 & 3, Background Information on International Law for COs, Standards which recognise the right to conscientious objection, War Resisters' International. 4 Sean MacBride, The Imperatives of Survival, Nobel Lecture, 12 December 1974, The Nobel Foundation – Official website of the Nobel Foundation. (English index page; hyperlink to Swedish site.) From Nobel Lectures in Peace 1971–1980.
58
Women:
American feminist Catharine MacKinnon has asked the question "are
women considered human?", focusing in part on the use of male-centric
terms such as brotherhood in Article 1 and himself and his family in
article 23.1
1 "Are Women Human?". Martinus Nijhoff Publishers. Retrieved 2013-01-31.
59
2.2 BANGKOK DECLARATION:
In the Bangkok Declaration adopted by Ministers of Asian states
meeting in 1993 in the lead up to the World Conference on Human
Rights held in the same year, Asian governments reaffirmed their
commitment to the principles of the United Nations Charter and the
Universal Declaration of Human Rights. They stated their view of the
interdependence and indivisibility of human rights and stressed the need
for universality, objectivity and non-selectivity of human rights. At the
same time, however, they emphasized the principles of sovereignty and
non-interference, calling for greater emphasis on economic, social, and
cultural rights, particularly the right to economic development, over civil
and political rights. The Bangkok Declaration is considered to be a
landmark expression of the Asian Values perspective, which offers an
extended critique of human rights universalism.1
Organizations promoting UDHR:
International Federation for Human Rights2,3
Amnesty International4
Youth for Human Rights International5,6
1 "Final Declaration Of The Regional Meeting For Asia Of The World Conference On Human Rights". Law.hku.hk. Retrieved 2012-07-07. 2 Contribution to the EU Multi-stakeholder Forum on CSR (Corporate Social Responsibility), 10 February 2009; accessed on 9 November 2009 3 Information Partners, web site of the UNHCR, last updated 25 February 2010, 16:08 GMT (web retrieval 25 February 2010, 18:11 GMT) 4 "UDHR film". Amnesty International. Retrieved 2013-07-19. 5 Ref. http://www.ala.org/offices/iro/awardsactivities/resolutionifla 6 Ref: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/universalright
60
2.3 Convention on political rights on Women1:
The Contracting Parties, desiring to implement the principle of equality
of rights for men and women contained in the Charter of the United
Nations2, Recognizing that everyone has the right to take part in the
government of his country directly or indirectly through freely chosen
representatives, and has the right to equal access to public service in his
country, and desiring to equalize the status of men and women in the
enjoyment and exercise of political rights, in accordance with the
provisions of the Charter of the United Nations and of the Universal
Declaration of Human Rights, having resolved to conclude a Convention
for this purpose, hereby agree as hereinafter provided3:
Article 1
Women shall be entitled to vote in all elections on equal terms with
men, without any discrimination.
Article 2
Women shall be eligible for election to all publicly elected bodies,
established by national law, on equal terms with men, without any
discrimination.
Article 3
Women shall be entitled to hold public office and to exercise all
public functions, established by national law, on equal terms with
men, without any discrimination.
1 The Convention on the Political Rights of Women was adopted by the United Nations General Assembly in 1953, and
it is the first international legislation protecting the equal status of women to exercise political rights. 2 Ref. Joyce, James Avery (1978). Human Rights: International Documents, Volume 1. Brill Archive. pp. 180–1. ISBN
9789028602984. 3 Convention on the Political Rights of Women, 193 U.N.T.S. 135, entered into force July 7, 1954 by University of
Minnesota, Human Rights Library
61
Article 4
i. This Convention shall be open for signature on behalf of any
Member of the United Nations and also on behalf of any other State
to which an invitation has been addressed by the General Assembly.
ii. This Convention shall be ratified and the instruments of ratification
shall be deposited with the Secretary-General of the United Nations.
Article 5
i. This Convention shall be open for accession to all States referred to
in paragraph I of article IV.
ii. Accession shall be effected by the deposit of an instrument of
accession with the Secretary-General of the United Nations.
Article 6
i. This Convention shall come into force on the ninetieth day following
the date of deposit of the sixth instrument of ratification or accession.
ii. For each State ratifying or acceding to the Convention after the
deposit of the sixth instrument of ratification or accession the
Convention shall enter into force on the ninetieth day after deposit by
such State of its instrument of ratification or accession.
Article 7
In the event that any State submits a reservation to any of the articles
of this Convention at the time of signature, ratification or accession,
the Secretary-General shall communicate the text of the reservation
to all States which are or may become Parties to this Convention.
Any State which objects to the reservation may, within a period of
ninety days from the date of the said communication (or upon the
date of its becoming a Party to the Convention), notify the Secretary-
62
General that it does not accept it. In such case, the Convention shall
not enter into force as between such State and the State making the
reservation.
Article 8
i. Any State may denounce this Convention by written notification to
the Secretary-General of the United Nations. Denunciation shall take
effect one year after the date of receipt of the notification by the
Secretary General.
ii. This Convention shall cease to be in force as from the date when the
denunciation which reduces the number of Parties to less than six
becomes effective.
Article 9
Any dispute which may arise between any two or more
Contracting States concerning the interpretation or application of
this Convention, which is not settled by negotiation, shall at the
request of any one of the parties to the dispute be referred to the
International Court of Justice for decision, unless they agree to
another mode of settlement.
Article 10
The Secretary-General of the United Nations shall notify all
Members of the United Nations and the non-member States
contemplated in paragraph I of article IV of this Convention of the
following:
I. Signatures and instruments of ratification received in accordance
with article IV;
II. Instruments of accession received in accordance with article V;
63
III. The date upon which this Convention enters into force in
accordance with article VI;
IV. Communications and notifications received in accordance with
article VII;
V. Notifications of denunciation received in accordance with
paragraph I of article VIII;
VI. Abrogation in accordance with paragraph 2 of article VIII.
Article 11
1. This Convention, of which the Chinese, English, French, Russian
and Spanish texts shall be equally authentic, shall be deposited in
the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit a
certified copy to all Members of the United Nations and to the
non-member States contemplated in paragraph I of article IV.
64
2.4 The Convention on the Nationality of Married Women:
It is an international convention passed by the United Nations General
Assembly1 in 1957. It entered into force in 1958 and as of 2013 it has 74
state parties.
Before the Convention on the Nationality of Married Women, no
legislation existed to protect married women's right to retain or renounce
national citizenship in the way that men could. Women's rights groups
recognized a need to legally protect the citizenship rights of women who
married someone from outside of their country or nationality. The
League of Nations, the international organization later succeeded by the
United Nations, was lobbied by women's rights groups during the early
20th century to address the lack of international laws recognizing
married women's rights of national citizenship. The Conference for the
Codification of International Law, held at The Hague in 1930, drew
protests from international women's rights groups, yet the League
declined to include legislation enforcing married women's nationality
rights. The League took the position that it was not their role, but the role
of member states, to deal with equality between men and women2.
The International Women's Suffrage Alliance (IWSA, later renamed the
International Alliance of Women) launched a telegram campaign in 1931
to pressure the League of Nations to address the lack of legislation.
Women from around the world sent telegrams to the League of Nations
1 The General Assembly is the main deliberative, policymaking and representative organ of the United Nations. Comprising all 193 Members of the United Nations, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the Charter 2 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 80. ISBN 9780801860287.
65
as a protest. The League made the concession of creating an unfunded
Consultative Committee on Nationality of Women1.
The Pan-American Conference in Montevideo passed a Convention on
the Nationality of Married Women in 1933. It was passed by the Pan
American Conference at the same time as the Treaty on the Equality of
Rights Between Men and Women. These were the first pieces of
international law to "explicitly set sexual equality as a principle to be
incorporated into national legislation"2 which was required of countries
ratifying the convention and treaty. Lobbying by the American National
Women's Party has been credited with this legislation.3 However, neither
the International Labour Organization (ILO) nor the League of Nations
passed any legislation on the issue during the interwar years.
The issue of the nationality of married women was a leading women's
rights issue facing the United Nations after its establishment. The United
Nations Commission on the Status of Women was created, and made it a
priority of their agenda, launching a study in 1948. The Commission
recommended to the United Nations Economic and Social Council that
legislation is drafted to give women equal rights as set out in Article 15
of the Universal Declaration of Human Rights. 4The Convention on the
Nationality of Married Women entered into force on August 11, 1958.
As of 2013, the convention has been ratified by 74 states. It has been
denounced by the ratifying states of Luxembourg, Netherlands, and
United Kingdom.
1 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 80. ISBN 9780801860287. 2 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 81. ISBN 9780801860287. 3 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 82. ISBN 9780801860287. 4 Joyce, James Avery (1978). Human Rights: International Documents, Volume 1. Brill Archive. p. 183. ISBN 9789028602984.
66
The Convention was concluded in the light of the conflicts of law on
nationality derived from provisions concerning the loss or acquisition of
nationality by women as a result of marriage, divorce, or of the change
of nationality by the husband during marriage. It allows women to adopt
the nationality of their husband based upon the woman's own decision,
but does not require it1.
The Convention seeks to fulfil aspirations articulated in Article 15 of the
Universal Declaration of Human Rights that 'everyone has a right to a
nationality' and 'no one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality'.
Article 1
Woman's nationality not to be automatically affected by marriage
to an alien.
Article 2
Acquisition or renunciation of a nationality by a husband not to
prevent the wife's retention of her nationality.
Article 3
Specially privileged nationality procedures to be available for
wives to take the nationality of their husbands.
1 Kinnear, Karen L. (2011). Women in Developing Countries: A Reference Handbook. ABC-CLIO. p. 179. ISBN 9781598844252.
67
2.5 DECLARATION ON ELIMINATION OF DISCRIMINATION
AGAINST WOMEN, 1967:
The Declaration on the Elimination of Discrimination against Women is
a human rights proclamation issued by the United Nations General
Assembly, outlining that body's views on women's rights. It was adopted
by the General Assembly on 7 November 19671. The Declaration was an
important precursor to the legally binding 1979 Convention on the
Elimination of All Forms of Discrimination against Women.
The Declaration follows the structure of the Universal Declaration of
Human Rights, with a preamble followed by eleven articles.
Article 1: declares that discrimination against women is "fundamentally
unjust and constitutes an offence against human dignity"2.
"Discrimination" is not defined.
Article 2: calls for the abolition of laws and customs which discriminate
against women, for equality under the law to be recognised, and for
states to ratify and implement existing UN human rights instruments
against discrimination.
Article 3: calls for public education to eliminate prejudice against
women.
Article 4: calls for women to enjoy full electoral rights, including the
right to vote and the right to seek and hold public office.
Article 5: calls for women to have the same rights as men to change their
nationality.
1 United Nations General Assembly Resolution 2263, 7 November, 1967
2 Declaration on the Elimination of Discrimination against Women, Article 1.
68
Article 6: calls for women to enjoy full equality in civil law, particularly
around marriage and divorce, and calls for child marriages to be
outlawed.
Article 7: calls for the elimination of gender discrimination in criminal
punishment.
Article 8: calls on states to combat all forms of traffic in women and
exploitation of prostitution of women.
Article 9: affirms an equal right to education regardless of gender.
Article 10: calls for equal rights in the workplace, including non-
discrimination in employment, equal pay for equal work, and paid
maternity leave.
Article 11: calls on states to implement the principles of the Declaration.
69
2.6 CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN:
The Convention on the Elimination of all Forms of Discrimination
against Women (CEDAW) is an international treaty adopted in 1979 by
the United Nations General Assembly. Described as an international bill
of rights for women, it came into force on 3 September 1981. Over fifty
countries that have ratified the Convention have done so subject to
certain declarations, reservations, and objections, including 38 countries
that rejected the enforcement article 29, which addresses means of
settlement for disputes concerning the interpretation or application of the
Convention1. Australia's declaration noted the limitations on central
government power resulting from its federal constitutional system. The
United States and Palau have signed, but not yet ratified the treaty. The
Holy See, Iran, Somalia, South Sudan, Sudan and Tonga are not
signatories to CEDAW.
The Convention defines discrimination against women in the following
terms:
Any distinction, exclusion or restriction made on the basis of sex which
has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on
a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other
field.
It also establishes an agenda of action for putting an end to sex-based
discrimination:
1 "Declarations, Reservations and Objections to CEDAW". Un.org. Retrieved 2011-09-27.
70
States must take measures to seek to eliminate prejudices and customs
based on the idea of the inferiority or the superiority of one sex or on
stereotyped role for men and women.
States ratifying the Convention are required to enshrine gender equality
into their domestic legislation, repeal all discriminatory provisions in
their laws, and enact new provisions to guard against discrimination
against women. However, special protection for maternity is not
regarded as gender discrimination (Article 4). Appropriate measures,
including legislation, to suppress all forms of trafficking in women and
forced prostitution are also not regarded as gender discrimination
(Article 6). Equal opportunity in education for female students is
required, and coeducation is encouraged. (Article 10). States ratifying
the Convention must also establish tribunals and public institutions to
guarantee women effective protection against discrimination, and take
steps to eliminate all forms of discrimination practiced against women
by individuals, organizations, and enterprises (Article 2,(e)).
CEDAW with UNSCR 1325 and 1820
Resolutions 1325 10th anniversary events highlight use of CEDAW
mechanisms1.
The 10th anniversary of Resolution 1325 in October 2010 highlighted
the increasing demand for accountability to UN Security Council
Resolution 1325 on Women, Peace and Security. Many expressed
concern about the fact that only 22 Member States out of 192 have
adopted national action plans. Women are still underrepresented if not
totally absent in most official peace negotiations and sexual violence in
conflict continue to increase.
1 Ref: Ensuring Accountability to UNSCR 1325 and 1820 using CEDAW reporting mechanisms
71
These realities emphasized the need to use other legal mechanisms to
strengthen the implementation of SCR 1325, particularly CEDAW. The
well-established mechanisms of CEDAW – the Member States
compliance report and the civil society shadow reporting process were
cited as powerful instruments to ensure accountability.
Several regional and international meetings including the High Level
Seminar “1325 in 2020: Looking Forward…Looking Back,” organized
by the African Center for the Constructive Resolution of Disputes, and
the “Stockholm International Conference 10 years with 1325 – What
now?” called for the use of CEDAW to improve 1325 implementation.
72
Intersection between SCR 1325 and CEDAW1
While CEDAW and UN Security Council Resolutions 1325 and 1820 on
Women, Peace and Security are important international instruments on
their own, there is also an intersection among the three standards that can
be used to enhance their implementation and impact.
Resolutions 1325 and 1820 broaden the scope of CEDAW application by
clarifying its relevance to all parties in conflict, whereas CEDAW
provides concrete strategic guidance for actions to be taken on the broad
commitments outlined in the two Resolutions.
CEDAW is a global human rights treaty that should be incorporated into
national law as the highest standard for women's rights. It requires UN
Member States that have ratified it (185 to date) to set in place
mechanisms to fully realize women's rights.
Resolution 1325 is an international law unanimously adopted by the
Security Council that mandates UN Member States to engage women in
all aspects of peace building including ensuring women's participation
on all levels of decision–making on peace and security issues.
Resolution 1820 links sexual violence as a tactic of war with the
maintenance of international peace and security. It also demands a
comprehensive report from the UN Secretary General on implementation
and strategies for improving information flow to the Security Council;
and adoption of concrete protection and prevention measures to end
sexual violence.
1 Written Statement submitted to CEDAW on the occasion of the General Discussion on Women in Conflict and Post-
conflict Situations « Global Network of Women Peacebuilders
73
Resolutions 1325 and 1820 and CEDAW share the following agenda on
women's human rights and gender equality1:
1) Demand women’s participation in decision-making at all levels
2) Rejection of violence against women as it impedes the advancement
of women and maintains their subordinate status
3) Equality of women and men under the law; protection of women
and girls through the rule of law
4) Demand security forces and systems to protect women and girls
from gender-based violence
5) Recognition of the fact that distinct experiences and burdens of
women and girls come from systemic discrimination
6) Ensure that women’s experiences, needs and perspectives are
incorporated into the political, legal and social decisions that
determine the achievement of just and lasting peace
A General Comment from the CEDAW committee could strengthen
women’s advocacy for the full implementation of Resolutions 1325 and
1820 at the country and community levels. Conversely, CEDAW’s
relevance to conflict-affected areas will be underscored further by the
two Resolutions. In other words, all three international instruments will
reinforce each other and be much more effective if used together in
leveraging women’s human rights2.
1 Ref: Ensuring Accountability to UNSCR 1325 and 1820 using CEDAW reporting mechanisms
2 CEDAW with UNSCR 1325 and 1820 « Global Network of Women Peacebuilders
74
2.7 MEMBERS AND RATIFICATION:
Main article: List of parties to the Convention on the Elimination of All
Forms of Discrimination against Women
The seven UN member states that have not ratified or acceded to the
convention are Iran, Palau, Somalia, South Sudan, Sudan, Tonga, and the
United States1.
The one UN non-member state that had not acceded to the convention is
the Holy See/Vatican City2.
The Republic of China (Taiwan) in 2007 has also ratified the treaty in its
legislature, but is unrecognized by the United Nations and is a party to
the treaty only unofficially3.
The latest state to have acceded the convention was Nauru on 23 June
2011.
Committee on the Elimination of Discrimination against Women,
The Committee on the Elimination of Discrimination against Women is
the United Nations (U.N.) treaty body that oversees the Convention on
the Elimination of All Forms of Discrimination against Women
(CEDAW). The formation of this committee was outlined in Article 17
of the CEDAW, which also established the rules, purpose, and operating
procedures of the committee4. Throughout its years of operation the
committee has held multiple sessions to ensure the rules outlined in the
1 "'Convention on the Elimination of All Forms of Discrimination Against Women'". Treaties.un.org. Retrieved 2011-09-
27. 2 Note: See New Zealand No 47 Declarations and Reservations New Zealand has signed this treaty on behalf on Niue.
3 Government Information Office, Republic of China (Taiwan). "Taiwan Aims to Sign Up Against Discrimination." 8
September 2006. 4 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The
Convention and the Committee". United Nations. Retrieved 18 October 2012.
75
CEDAW are being followed. Over time the practices of the committee
have evolved due to an increased focus on women's rights issues.
History of the committee:
The Committee on the Elimination of Discrimination Against Women
was formed on 3 September 1981 after the CEDAW received the 20
ratifications required for it to enter into force. Article 17 of the CEDAW
established the committee in order to ensure that the provisions of the
CEDAW were followed by the countries that had signed and agreed to
be bound by it1. The first regular session of the committee was held from
18–22 October 1982. In this session the first officers of the committee
were elected by simple majority, with Ms. L. Ider of Mongolia becoming
chairperson2. Other officers elected were three vice chairpersons: Ms. M.
Caron of Canada, Ms. Z. Ilic of Yugoslavia and Ms. L. Mukayiranga of
Rwanda. The final officer elected was Ms. D. P. Bernard of Guyana as
rapporteur of the committee. During this session the committee also
unanimously approved to adopt its rules of procedure.
The rules regarding where and when the committee can hold sessions are
laid out in their rules of procedure3. The committee is allowed to hold as
many meetings as are required to perform their duties effectively, with
the states party to the CEDAW and the Secretary-General of the United
Nations authorizing the number of regular sessions held. In addition,
special sessions can be held at the request of either a state party to the
convention or the majority of the members serving on the committee.
1 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The
Convention and the Committee". United Nations. Retrieved 18 October 2012 2 United Nations Committee on the Elimination of Discrimination Against Women (1989). The Work of CEDAW: Reports
of the Committee on the Elimination of Discrimination against Women. New York: United Nations. p. 5. ISBN 9211301327. 3 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of
Discrimination Against Women". United Nations. Retrieved 18 October 2012.
76
Fifty-three sessions have been held to date, with the most recent taking
place from 1 October 2012 to 19 October 20121. The first thirty-nine
sessions were held at the United Nations headquarters building in New
York City, with the fortieth session and alternating sessions following it
held in the Palais des Nations in Geneva. During each of its regular
sessions the committee hears reports from states party to the CEDAW on
their progress in adhering to CEDAW and implementing its ideas in their
countries2. The committee also holds pre-sessional work groups to
discuss the issues and questions that the committee should deal with
during the following session.
Reports:
Under article 18 of the CEDAW states must report to the committee on
the progress they have made in implementing the CEDAW within their
state. As most of the information the committee works with comes from
these reports, guidelines have been developed to help states prepare
accurate and useful reports3. Initial reports discussing the current picture
of discrimination against women in the reporting states are required to
specifically deal with each article of the CEDAW, and consist of no
more than one-hundred pages. States are required to prepare and present
these initial reports within one year of ratifying the CEDAW4. Periodic
reports detailing the state's progress in adhering to the articles of the
CEDAW should be no more than seventy-five pages in length and
1 U.N. Office of the High Commissioner for Human Rights. "Committee on the Elimination of Discrimination against
Women – Sessions". United Nations. Retrieved 6 November 2012. 2 United Nations Committee on the Elimination of Discrimination Against Women.
ny.un.org/doc/UNDOC/GEN/N12/281/61/PDF/N1228161.pdf?OpenElement "Report of the Committee on the Elimination of Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 United Nations Committee on the Elimination of Discrimination Against Women. "Overview of the current working
methods of the Committee on the Elimination of Discrimination against Women". United Nations. Retrieved 18 October 2012. 4 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The
Convention and the Committee". United Nations. Retrieved 18 October 2012.
77
should focus on the specific period of time since the state's last report.
States party to the CEDAW are typically required to provide periodic
reports every four years, but if the committee is concerned about the
situation in that state they can request a report at any time1.
The committee chooses which reports to address by considering factors
such as the amount of time the report has been pending, whether the
report is initial or periodic (with more priority given to initial reports),
and from which region the report originates. Eight states are invited to
give their reports during each session and it is required a representative
from the state is in attendance when the report is presented. The
committee focuses on constructive dialogue when a report is presented,
and appreciates careful time management on the part of the state
presenting its report. Due to the high backlog of overdue reports the
committee has encouraged states to combine all of their outstanding
reports into one document, and sends reminders to states that have
reports five years overdue. The CEDAW also requires that the
committee provide an annual report that includes its activities, comments
relating to the reports provided by states, information relating to the
Optional Protocol of the CEDAW, and any other general suggestions or
recommendations the committee has made. This report is given to the
United Nations General Assembly through the Economic and Social
Council. All reports, agendas and other official documents pertaining to
the committee, including the reports provided by the states, are provided
to the public unless otherwise decided by the committee2.
1 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The
Convention and the Committee". United Nations. Retrieved 18 October 2012 2 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of
Discrimination Against Women". United Nations. Retrieved 18 October 2012.
78
General Recommendations:
Along with issuing its annual report and offering advice to reporting
states, the committee has the ability to issue general recommendations
that elaborate on its views of the obligations imposed by CEDAW1. To
date, the committee has issued twenty-five general recommendations, the
latest dealing with the committee's interpretation of the CEDAW's
obligations relating to women's role in public life, and women's access to
healthcare. The recommendations issued by the committee in its first
decade were short and dealt mainly with the content of states’ reports
and reservations to the convention. Since 1991, however,
recommendations have been focused on guiding states’ application of the
CEDAW in specific situations. The formulation of a general
recommendation begins with dialogue between the committee on the
topic in the recommendation with various non-governmental
organizations and other U.N. bodies. The recommendation is then
drafted by a member of the committee and discussed and revised in the
next session, and finally adopted in the following session.
Changes in the committee:
For the first ten years it operated the committee operated significantly
differently than it does now2. The only form of censure given to the
committee by the CEDAW was their general recommendations and
concluding comments following a report3. Due to the emergence of the
Global Campaign for Women's Human Rights in 1991 more attention
1 United Nations Committee on the Elimination of Discrimination Against Women. "Overview of the current working
methods of the Committee on the Elimination of Discrimination against Women". United Nations. Retrieved 18 October 2012. 2 Reilly, Niamh (2009). Women's human rights : seeking gender justice in a globalizing age (Reprinted. ed.). Cambridge:
Polity Press. p. 62. ISBN 9780745637006. 3 Reilly, Niamh (2009). Women's human rights : seeking gender justice in a globalizing age (Reprinted. ed.). Cambridge:
Polity Press. p. 62. ISBN 9780745637006.
79
was given to the CEDAW, reviving the committee. The committee made
changes to the CEDAW that allowed it to meet more than once a year,
and have taken advantage of this by meeting at least twice a year since
19971. The committee originally only met for two weeks in its annual
sessions, but that has now been changed to meeting multiple times a year
in eighteen day sessions2. CEDAW also gained new complaint and
inquiry proceedings allowing the committee to initiate inquiry
proceedings if it believes a state is in severe violation of the articles of
the CEDAW.
Despite evolving since the committee was first formed, members believe
there are ways in which the committee can better meet the goals outlined
in the CEDAW. One of the committee's main goals moving forward is
expanding its information base, allowing it to more effectively deal with
issues that arise concerning the CEDAW. The committee is authorized in
Article 22 of the CEDAW to invite specialized U.N. agencies such as the
United Nations Development Programme to deliver reports discussing
women's rights issues in the state under discussion3. Another method for
gathering information is requesting reports from non-governmental
organizations dealing with discrimination against women that are
operating in the country under discussion. This is recommended to insure
that the committee is receiving the full, unbiased picture of affairs within
the reporting state.
Another recommendation for improvement involves interpreting and
clarifying the language used in the CEDAW in order to make the
1 Reilly, Niamh (2009). Women's human rights : seeking gender justice in a globalizing age (Reprinted. ed.). Cambridge:
Polity Press. p. 62. ISBN 9780745637006. 2 United Nations Committee on the Elimination of Discrimination Against Women.
ny.un.org/doc/UNDOC/GEN/N12/281/61/PDF/N1228161.pdf?OpenElement "Report of the Committee on the Elimination of Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The
Convention and the Committee". United Nations. Retrieved 18 October 2012
80
document as useful as it can be. A third improvement that has been
suggested is improving the efficiency of the committee. Due to the
backlog in reports faced by the committee it has been suggested that the
government officials who prepare reports presented to the committee
should be trained, in order to make all reports uniform and more easily
processed. A final suggestion for improvement is the implementation of
a right of petition in the CEDAW, allowing the committee to hear
complaints from citizens of a state against the state, increasing the
committee's strength and direct impact on the problem of discrimination
against women1.
Languages:
The official languages of the committee are English, Arabic, French,
Russian, and Spanish, with any statement made in one of the official
languages translated into the other four. A speaker who does not speak
one of the official languages provides a translator2. All formal decisions
and documents issued by the committee are provided in each of the
official languages. The original rules of procedure adopted by the
committee did not include Arabic as an official language, but the rule
was amended in the committees second session to include Arabic3.
1 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The
Convention and the Committee". United Nations. Retrieved 18 October 2012 2 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of
Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 United Nations Committee on the Elimination of Discrimination Against Women (1989). The Work of CEDAW: Reports
of the Committee on the Elimination of Discrimination against Women. New York: United Nations. p. 5. ISBN 9211301327.
81
Members of the Committee:
Twenty-three members serve on the committee, described as experts for
their experience and expertise in women's issues1. The members are
nominated by their national governments and elected through a secret
ballot by states party to the convention. Upon winning the election and
taking up their responsibilities the members of the committee recite the
following statement, known as the solemn declaration, “I solemnly
declare that I shall perform my duties and exercise powers as a member
of the Committee on the Elimination of Discrimination against Women
honourably, faithfully, impartially and conscientiously”2. The members
come from a wide range of occupations including doctors, lawyers,
diplomats and educators, providing various viewpoints to the committee
due to their diversity. Many members continue to hold full-time jobs
outside of the committee and receive little monetary payment for their
work on the committee.
To insure that the nationality of members encompasses all the diverse
states who have signed the CEDAW, members are elected according to
regions divided into Latin America and the Caribbean, Africa, Asia,
Western Europe, and Eastern Europe. The members of the committee
differ from those of other treaty bodies of the United Nations in that they
have all been women with only one exception3. In the event a member of
the committee is unable to continue serving on the committee before her
term is up the state that had nominated the resigning member shall
1 Merry, Sally Engle (2006). Human rights and gender violence : translating international law into local justice
([Nachdr.]. ed.). Chicago [u.a.]: Univ. of Chicago Press. p. 82. ISBN 0226520730. 2 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of
Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The
Convention and the Committee". United Nations. Retrieved 18 October 2012
82
nominate another expert from their country to fill in her seat1.
Committee members and experts also attend an annual luncheon, hosted
by the NGO Committee on the Status of Women, NY (NGO CSW/NY),
where key issues are discusses and the efforts of the committee are
honoured2.
Officers of the Committee:
The officers of the committee are composed of a chairperson, three vice-
chairpersons and a rapporteur3. Officers of the committee are nominated
by another member of the committee, as opposed to a government which
nominates members for the committee4. All officers are elected by
majority vote to a two-year term of office, and remain eligible for re-
election after their term expires. The chairperson's duties include
declaring a meeting to be open or closed, directing the discussion in a
session, announcing decisions made by the committee, preparing
agendas in consultation with the secretary-general, designating the
members of pre-sessional working groups and representing the
committee at United Nations meetings which the committee is invited to
participate in. In the case the chairperson is unable to perform any her
duties she designates one of the three vice-chairpersons to take over her
role. If the chairperson fails to designate a vice-chairperson prior to her
absence then the vice-chairperson with the first name in English
alphabetical order takes over. In the event an officer is unable to
continue serving on the committee before her term expires a new officer
1 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of
Discrimination Against Women". United Nations. Retrieved 18 October 2012. 2 "NGO CSW, NY / About / How We Work". Ngocsw.org. 26 July 2011. Retrieved 2011-09-27.
3 U.N. Office of the High Commissioner for Human Rights. "Membership of the Committee on the Elimination of
Discrimination against Women". OHCHR. Retrieved 18 October 2012. 4 United Nations Committee on the Elimination of Discrimination Against Women (1989). The Work of CEDAW: Reports
of the Committee on the Elimination of Discrimination against Women. New York: United Nations. p. 5. ISBN 9211301327.
83
from the same region as the original officer shall be nominated, elected
and will take over the vacated office.
Optional Protocol:
The Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination against Women is a side-agreement to the
Convention which allows its parties to recognise the competence of the
Committee on the Elimination of Discrimination against Women to
consider complaints from individuals1.
The Optional Protocol was adopted by the UN General Assembly on 6
October 1999 and entered into force on 22 December 20002. Currently it
has 80 signatories and 104 parties3.
Controversy:
In an article in Moment magazine in February 2011, Paula Kweskin, in
discussing so-called "honor" killings taking place in the Palestinian
Authority, writes that two-thirds of all murders in the Palestinian
Authority and Gaza are “honor” killings. These crimes go unpunished
and laws grant impunity to those who kill based on “family honor.” In
interviews and press releases on their websites, many NGOs, including
Badil, the Palestinian Center for Human Rights, and the Women's Center
for Legal Aid and Counselling, have decried "honor" killings and the
lack of legal protection for Palestinian women; yet these NGOs are silent
when given a forum at CEDAW to address these problems4.
1 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, Article 1.
2 "Optional Protocol to Women's Convention Comes into Force". 21 December 2000. Retrieved 2008-07-15
3 "Parties to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women". UN OHCHR. Retrieved 2009-10-03 4 By elisniv (24 February 2011). "NGOs Fail Palestinian Women at the UN". Momentmagazine.wordpress.com.
Retrieved 2011-09-27
84
The CEDAW has been controversial for statements that have been made
by some of its members which were seen by a number of states and
NGOs as promoting Western-style feminism. Often referenced is a 2000
report which said that in Belarus, "the Committee is concerned by the
continuing prevalence of sex-role stereotypes and by the reintroduction
of such symbols as a Mothers' Day and a Mothers' Award, which it sees
as encouraging women's traditional roles1." Other controversial positions
of CEDAW include supporting the decriminalization of prostitution in
specific countries [not in citation given], criticizing Slovenia because
only 30% of children are in day care, and pressuring numerous states to
decriminalize abortion2 .Other requests are seen by groups as a backdoor
to forcing states parties to adopt an Equal Rights Amendment or
comparable national legislation, which is seen as a violation of the
CEDAW treaty mandate and the sovereignty of states parties3.
More recently, the controversy concerning CEDAW has cantered around
the question of easy access to abortion and contraception. According to
C-FAM (the Catholic Family and Human Rights Institute), at UN
meetings officials pressed the delegation from Slovakia to liberalize its
abortion laws and to inaugurate campaigns encouraging contraceptive
use and "reproductive health awareness"4.
1 "Womenwatch report". Retrieved 2011-09-27
2 "Nations Pressured by CEDAW". Archived from the original on 23 July 2011. Retrieved 2011-09-27
3 "Concerned Women for America – Exposing CEDAW". Cwfa.org. Retrieved 2011-09-27
4 "UN Committee Pressures Slovakia over its Concordat with the Catholic Church".
85
2.8 CONVENTION ON PREVENTING AND COMBATING
VIOLENCE AGAINST WOMEN AND DOMESTIC VIOLENCE:
The Council of Europe Convention on preventing and combating
violence against women and domestic violence (Istanbul Convention) is
a Council of Europe convention against violence against women and
domestic violence which was opened for signature on May 11, 2011, in
Istanbul, Turkey. The convention aims at prevention of violence, victim
protection and "to end with the impunity of perpetrators"1. It has been
signed by 30 countries and on 12 March 2012 Turkey became the first
country to ratify the Convention, followed by three countries in 2013
(Albania, Italy2, Montenegro, Portugal).
The Council of Europe has undertaken a series of initiatives to promote
the protection of women against violence 3since the 1990s. In particular,
these initiatives have resulted in the adoption, in 2002, of the Council of
Europe Recommendation Rec(2002)5 of the Committee of Ministers to
member states on the protection of women against violence, and the
running of a Europe-wide campaign, from 2006-2008, to combat
violence against women, including domestic violence4. The Council of
Europe Parliamentary Assembly has also taken a firm political stance
against all forms of violence against women. It has adopted a number of
resolutions and recommendations calling for legally-binding standards
on preventing, protecting against and prosecuting the most severe and
widespread forms of gender-based violence.
1 Signatures and ratifications". Council of Europe. 1 July 2013. Retrieved 1 July 2013.
2 Italy's senate ratified, but a deposit of the instrument of ratification has not been recorded by the Council of Europe;
"The Italian Senate ratifies the Istanbul convention". Council of Europe. 20 June 2012. Retrieved 20 June 2012. 3 "Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against
violence". Council of Europe Committee of Ministers. Retrieved 2012-12-18. 4 "Campaign to Combat Violence against Women, including domestic violence (2006-2008)". Council of Europe.
Retrieved 2012-12-18
86
National reports, studies and surveys revealed the magnitude of the
problem in Europe. The campaign in particular showed a large variation
in Europe of national responses to violence against women and domestic
violence. Thus the need for harmonised legal standards to ensure that
victims benefit from the same level of protection everywhere in Europe
became apparent. The Ministers of Justice of Council of Europe member
states began discussing the need to step up protection from domestic
violence, in particular intimate partner violence.
The Council of Europe decided it was necessary to set comprehensive
standards to prevent and combat violence against women and domestic
violence. In December 2008, the Committee of Ministers set up an
expert group mandated to prepare a draft convention in this field. Over
the course of just over two years, this group, called the CAHVIO (Ad
Hoc Committee for preventing and combating violence against women
and domestic violence)1, worked out a draft text. During the later stage
of drafting of the convention, UK, Italy, Russia and the Holy See have
proposed several amendments to limit the requirements provided by the
Convention. These amendments have been criticized by Amnesty
International2. The final draft of the convention was produced in
December 2010.
Adoption, signature and ratification:
The convention was adopted by the Council of Europe Committee of
Ministers on 7 April 2011. It opened for signature on 11 May 2011 on
the occasion of the 121st Session of the Committee of Ministers in
Istanbul. It will enter into force following 10 ratifications, 8 of which
1 Ad Hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO)". Council
of Europe. Retrieved 2012-12-18. 2 "Time to take a stand to oppose violence against women in Europe". Amnesty International. 2011. Retrieved 12
September 2012
87
must be member states of the Council of Europe. As of March 2013, the
convention has been signed by 30 states, followed by ratification of five:
Albania, Italy Montenegro, Portugal and Turkey. States that have ratified
the Convention are legally-bound by its provisions once it enters into
force.
The Istanbul Convention is the first legally-binding instrument which
"creates a comprehensive legal framework and approach to combat
violence against women" and is focussed on preventing domestic
violence, protecting victims and prosecuting offenders1.
It characterizes violence against women as a violation of human rights
and a form of discrimination (Art.3(a)). Countries should exercise due
diligence when preventing violence, protecting victims and prosecuting
perpetrators (Art. 5). The Convention is also the first international treaty
to contain a definition of gender. For the purpose of the Convention
gender is defined in Article 3(c) as "the socially constructed roles,
behaviours, activities and attributes that a given society considers
appropriate for women and men". Moreover, the treaty establishes a
series of offences characterized as violence against women. States
should include these in their penal codes or in other forms of legislation
should these offences not already exist in their legal systems. The
offences established by the Convention include: psychological violence
(Art.33); stalking (Art.34); physical violence (Art.35); sexual violence,
including rape (Art.36), forced marriage (Art.37); female genital
mutilation (Art.38), forced abortion and forced sterilisation (Art.39); and
sexual harassment (Art.40). Parties to the Convention may choose
whether or not they wish to criminalise or subject to other legal sanction
the following offences: psychological violence, stalking and sexual
1 "Malta signs convention on domestic violence". Malta Star. 21 May 2012. Retrieved 12 September 2012.
88
harassment. The Convention also includes an article targeting crimes
committed in the name of so-called "honour" (Art. 42)1.
Structure:
The convention contains 81 articles separated into 12 chapters. Its
structure follows the structure of the Council of Europe’s most recent
conventions. The structure of the instrument is based on the “four Ps”:
Prevention, Protection and support of victims, Prosecution of offenders
and Integrated Policies. Each area foresees a series of specific measures2.
The Convention also establishes obligations in relation to the collection
of data and supporting research in the field of violence against women
(Art. 11).
At the Preamble, European Convention on Human Rights, European
Social Charter and Convention on Action against Trafficking in Human
Beings as well as international human rights treaties by United Nations
and Rome Statute of the International Criminal Court are recalled. In
Article 2, this Convention indicates that the provisions shall apply in
time of peace and also in situations of armed conflicts in violence against
women and domestic violence. Article 3 provides defines key terms:
"violence against women" is violence of human rights and a form of
discrimination against women and shall mean all acts of gender-based
violation that result in, or are likely to result in physical, sexual,
psychological, or economic harm or suffering to women including
threats of such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or private life,
1 "Council of Europe Convention on preventing and combating violence against women and domestic violence
Explanatory report" (PDF). Council of Europe. Retrieved 2012-12-18. 2 Ad Hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO) interim
report". Council of Europe. 27 May 2009. Retrieved 2012-12-18.
89
"domestic violence": all acts of physical, sexual, psychological or
economic violence that occur with the family or domestic unit or
between former or current spouses or partners, whether or not the
perpetrator shares or has shared the same residence with the victim.
"gender": means the socially constructed roles, behaviours, activities and
attributes that a given society considers appropriate for women and men.
"gender-based violence against women": means violence that is directed
against a woman because she is a woman or that affects women
disproportionately.
Article 4 prohibits several types of discrimination stating: The
implementation of the provisions of this Convention by the Parties, in
particular measure to protect the rights of victims, shall be secured
without discrimination on any ground such as sex, gender, race, colour,
language political or other opinion, national or social origin, association
with a national minority, property, birth, sexual orientation, gender
identity, age, state of health, disability, marital states, migrant or refugee
status, or other status.
90
2.9 GLOBAL IMPLEMENTATION PLAN TO END VIOLENCE
AGAINST WOMEN AND GIRLS:
The Global Implementation Plan to End Violence against Women and
Girls was a recommendation from the multi-agency Expert Group
Meeting (EGM) on the prevention of violence against women and girls.
The meeting was convened as part of the United Nations Commission on
the Status of Women's multi-year programme of work for 2010-2014.
The "Elimination and prevention of all forms of violence against women
and girls" formed a priority theme for its fifty-seventh session in 2013
(CSW57).
The EGM took place in Bangkok, Thailand 17 - 20 September 2012 and
was organised by the United Nations Entity for Gender Equality and the
Empowerment of Women (UN Women), in collaboration with the
following organisations:
United Nations Economic and Social Commission for Asia and the
Pacific (ESCAP);
United Nations Development Programme (UNDP);
United Nations Population Fund (UNFPA);
United Nations Children’s Fund (UNICEF) and;
World Health Organization (WHO)1.
The report that the meeting produced reflected the shared discussion and
analysis of the major issues, gaps and challenges identified at the EGM
and presented key findings and recommendations. It was intended to
build on the individual papers on specific issues provided by experts
prior to the meeting, and the background paper prepared by the
1 EGM announced, UN Women's website. Retrieved 28 February 2013
91
rapporteur1. It provided inputs for the reports of the Secretary-General to
the CSW and was widely disseminated in preparation to the fifty-seventh
session of CSW.
Recommendations 106 - 109 of the EGM calls for a global plan to be
launched by 2015, to end violence against women and girls organised
along these lines:-
The Global Implementation Plan to End Violence against
Women and Girls, endorsed and supported by Member States at
its launch, would aim to:
Intensify and scale-up global awareness of violence against
women and girls as a global emergency.
Combine the best thinking on how to proceed with concrete
pledges for action.
Mobilise international, regional and national action by
governments, multilaterals, the private sector and civil society.
Build the foundation for an evidence and practice-informed
global prevention strategy.
Increase resources available to end violence against women and
girls.
Development of the plan would require, among other things:
Identification of a small set of key policy, legal and programme-
delivery targets (institutions) at the national level towards which
global violence prevention efforts can be directed.
Detailed review of existing action plans, indicators,
recommendations, platforms for action, policy agendas, and
recommendations outlined by the Security Council, UN Treaty
1 EGM: prevention of violence against women and girls. Background papers. Retrieved 8 March 2013
92
bodies, the special rapporteurs, and various UN agencies, with a
view to closing implementation gaps and building the next stage.
Creation of a cohesive global community of key stakeholders.
Designation of strong coordinating mechanisms.
Development of an accountability framework with indicators to
measure State responsiveness to the policy, legal and
programme-delivery goals identified and an independent
monitoring mechanism.
93
2.10 UNITED NATIONS COMMISSION ON THE STATUS OF
WOMEN :
The fifty-seventh session of the United Nations Commission on the
Status of Women took place at the UN building, New York between the
4th and 15th March 2013.
The agreed conclusions from the session agreed the following four
actions:
Strengthening implementation of legal and policy frameworks
and accountability.
Addressing structural and underlying causes and risk factors so
as to prevent violence against women and girls.
Strengthening multisectorial services, programmes and responses
to violence against women and girls.
Improving the evidence-base1.
UN Women's Executive Director Michelle Bachelet urged speedy
implementation of the Agreed Conclusions saying, “The best way to
honour the commitments made by Member States at the Commission is
to work for implementation and accountability2."
The Expert Group Meeting (EGM): prevention of violence against
women and girls was convened as part of the United Nations
Commission on the Status of Women's multi-year programme of work
for 2010-2014. The "Elimination and prevention of all forms of violence
against women and girls" forms a priority theme for its fifty-seventh
session in 2013 (CSW57).
1 Ref:SSN 0252-0117 Final draft, pp. 1-17. Retrieved 11 June 2013.
2Ref:http://www.unwomen.org/2013/03/un-women-urges-implementation-of-historic-global-agreement-to-end-
violence-against-women-and-girls/ Press release from UN Women, "UN Women urges implementation of historic global agreement to end violence against women and girls", 20 March 2013. Retrieved 11 June 2013.
94
The meeting took place in Bangkok, Thailand 17–20 September 2012
and was organised by the United Nations Entity for Gender Equality and
the Empowerment of Women (UN Women), in collaboration with the
following organisations:
United Nations Economic and Social Commission for Asia and
the Pacific (ESCAP);
United Nations Development Programme (UNDP);
United Nations Population Fund (UNFPA);
United Nations Children’s Fund (UNICEF) and;
World Health Organization (WHO)1.
HISTORY OF EXPERT GROUP AND RECOMENDATIONS
The report reflects the shared discussion and analysis of the major issues,
gaps and challenges identified at the EGM and presents key findings and
recommendations. It was intended to build on the individual papers on
specific issues provided by experts prior to the meeting, and the
background paper prepared by the rapporteur2. It provides inputs for the
reports of the Secretary-General to the CSW and widely disseminated in
preparation to the fifty-seventh session of CSW (CSW57).
Experts stressed the critical importance of women’s organisations, civil
society, international institutions, donors and States working together to
go beyond ‘ad hoc’ approaches to prevention, and for States to take their
responsibility for developing long-term and multi-sectoral strategies so
that activity can be coordinated, and evidence built, to achieve real
results. With an increased commitment from all actors to such an
approach, and corresponding investment, many experts believed violence
1 EGM announced, UN Women's website. Retrieved 28 February 2013
2 17 Sep 2012 - 20 Sep 2012 09:00 AM to 6:00 PM. "violence-against-women-and-girls/ Background papers are
available on the EGM website". Unwomen.org. Retrieved 2013-06-30
95
against women and girls could be ended within a generation. To this end,
experts have made recommendations (see below) for a coordinated and
target-focussed approach to preventing violence against women and
girls, driven by two overarching activities – a Global Implementation
Plan – framing the work of international, regional and national
institutions (including States) toward the goal of ending violence against
women and girls, along with a Global Advocacy Campaign – driven by
women’s and other civil society organisations to create momentum and
provide accountability for the above.
Also, given CSW’s specific mandate with regards to implementation of
the Beijing Declaration and Platform for Action1 experts have made
further recommendations for immediate implementation, aligned with
the BPfA’s2 strategic objectives of taking integrated measures to prevent
and eliminate violence against women, and studying the causes and
consequences of violence against women and the effectiveness of
preventive measures. While the BPfA objectives cover both prevention
of, and response to, violence against women and girls, and experts
supported full implementation of all of these, the recommendations
below build on those areas focussing on prevention.
Finally, experts identified recommendations arising from emerging
issues or gaps in the evidence and practice base regarding prevention of
violence against women and girls in certain contexts and settings. These
include recommendations for prevention in settings affected by
humanitarian crises such as conflict and natural disasters; contexts of
1 ECOSOC resolution 1996/6 requires the Commission to integrate into its programme a follow-up process to the 1995
Conference, and to regularly review the critical areas of concern in the Platform. It is to ‘assist the [Economic and Social] Council in monitoring, reviewing and appraising progress achieved and problems encountered in the implementation of the Beijing Declaration and Platform for Action at all levels,’ and ‘maintain and enhance public awareness and support for the implementation of the Platform for Action 2 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013.
96
serious urban or youth violence; with regards to representation of women
and girls in the context of mass media as well as in new social media;
and in the context of the global financial crisis and shifting geopolitics.
In addition to the broad recommendations below that are relevant to all
settings, special attention has been given to certain contexts and settings
in order to highlight specific strategies for prevention related to these
particular areas of concern. Experts have also chosen to highlight certain
recommendations specific to preventing violence against girls, including
adolescent girls, and young women, as a frequently overlooked group
worthy of special consideration.
97
2.11 GLOBAL IMPLEMENTATION PLAN
Experts agreed that while an international legal and normative frame
work for preventing violence against women and girls is already in
place, there are two major barriers to its implementation. The first is that
social and cultural norms and customs are often used as a shroud or
excuse for laws, practices and behaviours that are either directly violent
or discriminatory towards women and girls, or else contribute to and
support violence against them. The BPfA clearly calls on States to
‘refrain from invoking any custom, tradition or religious consideration to
avoid their obligations with respect to its elimination as set out in the
Declaration on the Elimination of Violence against Women,’1 and
experts were adamant that this entails an active obligation on States to
examine their own laws and policies, and challenge the communities,
organisations and individuals in their jurisdictions, to eliminate norms
and customs that excuse, justify or tolerate violence against women and
girls, and which exist in all societies.
A second barrier to full implementation of existing obligations is the lack
of a coordinated, strategic agenda at international, regional and national
levels for modifying ‘the social and cultural patterns of conduct of men
and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women,’2 required by CEDAW. This is an essential
precondition and support for the sustainable prevention of violence
against women and girls. As noted above, such prejudices, practices and
1 United Nations Beijing Declaration and Platform for Action, adopted at the Fourth World Conference on Women, 27
October 1995, paragraph 124(a). 2 United Nations Convention for the Elimination of All Forms of Discrimination against Women (1979) GA res. 34/180,
art 5(a).
98
stereotypes are rampant in all societies, expressed as much through
channels such as media and popular culture, as through institutions more
identifiable as the bearers of custom or ‘tradition’ (e.g. faith institutions).
A much greater commitment and level of resourcing is required from all
States, along with significantly improved coordination of policy,
programming and research at global, regional and national levels
towards a shared strategic agenda to eliminate these and so meet the
legal obligation under CEDAW.
To this end, an overarching recommendation from experts was that
Member States commit, at CSW in 2013, to develop a Global
Implementation Plan to End Violence against Women and Girls, to be
launched in 2015, with a particular focus on prevention of violence
against women and girls. This Plan should aim to provide vigilance on
established international obligations (particularly the overarching BPfA1
and CEDAW obligations cited above), and serve as the tool for
operationalizing these norms into national policy and programming in a
coordinated and results-based way.
The Global Implementation Plan to End Violence against
Women and Girls, endorsed and supported by Member States at
its launch, would aim to:
Intensify and scale-up global awareness of violence against
women and girls as a global emergency
Combine the best thinking on how to proceed with concrete
pledges for action.
Mobilise international, regional and national action by
governments, multilaterals, the private sector and civil society.
1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013
99
Build the foundation for an evidence and practice-informed
global prevention strategy.
Increase resources available to end violence against women and
girls.
Development of the plan should be linked to the processes defining the
post-2015 development agenda, to ensure that the prevention of violence
against women and girls is rightly understood as crucial to the meeting
of other internationally agreed development goals, and that targets
relating to the prevention of (and response to) such violence are
explicitly identified and well situated in the post-2015 development
framework.
Development of the plan would require, among other things:
Identification of a small set of key policy, legal and programme-
delivery targets (institutions) at the national level towards which
global violence prevention efforts can be directed.
Detailed review of existing action plans, indicators,
recommendations, platforms for action, policy agendas, and
recommendations outlined by the Security Council, UN Treaty
bodies, the special rapporteurs, and various UN agencies, with a
view to closing implementation gaps and building the next stage.
Creation of a cohesive global community of key stakeholders.
Designation of strong coordinating mechanisms.
Development of an accountability framework with indicators to
measure State responsiveness to the policy, legal and
programme-delivery goals identified and an independent
monitoring mechanism.
100
Development of the plan should include the proactive engagement of
new partners (such as the private sector, sporting organisations, religious
and cultural leaders, the media and entertainment industry), with a
critical eye to the internal structures and methods of operation of such
partners to ensure they fully support and in no way undermine the human
rights of women and girls.
A global advocacy campaign for prevention:
Experts further recognised the crucial and catalytic role of women’s
organisations and called for them to help build support and momentum
for the above. A global ‘movement for prevention’ is needed, engaging a
critical mass of individuals, groups and institutions working together to
create communities and countries that are safe for women and girls and
where their rights are respected.
Experts’ second overarching recommendation was therefore those
women’s organisations, in partnership with other civil society
organisations and identified willing international and regional
institutions, States and other relevant parties lead a Global Advocacy
Campaign to Prevent Violence against Women and Girls, as a crucial
accompaniment to the development of the Implementation Plan above.
The Advocacy Campaign could include the creation of plain language
communications materials, mechanisms to share information and
practice, avenues for capacity development, and advocacy strengthening,
for example through the training of male and female youth and veteran
activists and leaders to monitor progress of nations on international
agreements, produce reports, and represent women’s and girls’ priorities
and interests in international forum. The aim of the Advocacy Campaign
would be to create momentum for the Implementation Plan, ensure the
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consistent promotion of evidence-informed, rights-based prevention
activity, and hold international, regional and national stakeholders
accountable to women and girls.
While the Global Implementation Plan may take one to two years to
develop, there are many areas of work that States have already
committed to under the BPfA1 Strategic Objective D1 – to take
integrated measures to prevent and eliminate violence against women –
and upon which they can and should take immediate action. Below are
recommendations elaborated by the experts in line with the growing
evidence and practice base on prevention, in support of these existing
commitments.
In line with BPfA’s calling on Governments to ‘formulate and
implement, at all appropriate levels, plans of action to eliminate violence
against women,’and calling for the allocation of ‘adequate resources
within the government budget and mobilisation of community resources
for activities related to the elimination of violence against women,
including resources for the implementation of plans of action at all
appropriate levels,’ experts recommend that States work in partnership
with funders, international and regional institutions, women’s and civil
society organisations and other stakeholders to develop, implement,
evaluate and monitor coordinated, multisectoral and sustained prevention
strategies, alongside and reinforcing strategies to improve the response
to existing violence. Such strategies should
Address the underlying causes of violence against women and
girls in norms and practices at socio-structural, community,
organisational, relationship and individual levels, and include a
1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2011
102
performance monitoring framework, and coordination and
accountability mechanisms.
Comprise a variety of coordinated interventions to be
implemented in a mutually reinforcing way across settings and
sectors.
Include the review and revision of policy and legislation to
ensure a consistent whole-of-government framework for the
prevention of violence against women and girls that promotes
women’s and girls’ human rights and gender equality in line with
international norms. This review and reform process should
ensure law and policy: aligns with and responds explicitly to
State obligations under relevant human rights treaties,
intergovernmental agreements and international
standards/guidelines, repealing and reforming discriminatory
laws and criminalizing violence against women and girls; defines
violence against women and girls according to international
norms, acknowledging that such violence is a form of
discrimination and manifestation of historically unequal power
relations between men and women, and the recognising the
particular vulnerabilities of girls; and recognises that women’s
and girls’ experience of violence is shaped by factors such as
disability, age, ethnicity, religion, political or other opinion,
national or social origin, property, marital status, sexual
orientation, HIV/AIDS status, migrant or refugee status and
exposure to conflict or natural disaster.
Be supported by multi-sectoral coordination mechanisms, with
the involvement of representatives from across government
institutions and also civil society, donors and other stakeholders
who can aid in implementation. These mechanisms should begin
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by identifying where existing capacity could be harnessed in
particular programmatic areas for immediate impact (e.g. through
existing health or education sectors, or existing nongovernment
programming), and provide for the development of capacity (e.g.
a human rights training curriculum and mandatory training for all
elected officials and civil servants at every level of government)
across other sectors for mid to longer-term work.
Ensure earmarked budgets are in place in each relevant Ministry
– including human and technical resources – to fund such
strategies over the short, mid and long-terms. Working to
integrate prevention of violence against women and girls into all
leading policy and funding frameworks can also provide strategic
avenues and a broad base from which to strengthen efforts and
secure budgets. Examples of these include poverty reduction and
development strategies and national plans, and sector-wide
reforms related to education, health, security, justice, HIV and
AIDS, peace-building, transitional justice, reconstruction and
conflict prevention strategies and frameworks in post-conflict
situations, and contingency planning strategies and frameworks
in settings affected by cyclical natural disasters.
Set specific targets and include mechanisms for monitoring
progress towards them, across implementing institutions, and
agencies in international/regional systems. Institutional
responsibilities and reporting arrangements against these targets
should be articulated, and mechanisms for accountability
established. For example, regular and participatory multi-sectoral
assessments at the national and local levels, across line ministries
and related public sector institutions can strengthen
accountability for performance in terms of agreed-upon
104
budgetary commitments and/or related performance on budgetary
allocations.
Aim to create an enabling environment for women’s and civil
society organisations working on prevention of violence against
women and girls. Resource allocation models should maximise
collaboration between community organisations, and continuity
of funding for programmes where they are shown to be effective
through appropriate evaluation.
Include – across all settings and frameworks – efforts to engage
men and boys in achieving gender equality and preventing
violence, informed by the expertise of the women’s sector, and
with mechanisms to ensure accountability to women and girls.
Experts further recommend that UN agencies mirror what is recognised
as good practice for Governments above, and adopt a coordinated,
interagency approach to prevent (and respond to) violence against
women and girls, with support from the highest political level (i.e. the
Secretary General). As part of the Global Implementation Plan, UN
agencies should develop a system-wide work plan building on related
system-wide initiatives (e.g. the Secretary Generals’ Unite Campaign)
and through existing coordination mechanisms, to support and promote
national implementation of, monitor progress against, and advance the
international normative framework. Regional institutions should
similarly develop and implement coordinated work plans to support
Member States implement regional normative frameworks for prevention
of violence against women and girls, monitor progress against these
frameworks, and advance the frameworks themselves. Such work plans
might include strategies to:
105
Expand normative interpretations and understandings of
prevention activity – beyond awareness-raising, education and
sensitisation of the media – to make linkages with and
encompass positive obligations on States to promote gender
equality and change social norms contributing to gender
stereotyping, discrimination and violence against women and
girls, across all levels, jurisdictions, sectors and settings.
Provide policy guidance, technical advice and knowledge
management to support States develop, implement and monitor
holistic, systemic and sustained approaches to prevention.
Ensure coordinated and sustained national and regional
programming for prevention across different agencies and
funding streams, and in different settings, such as conflict-
affected contexts, natural disasters, low, middle and high-
income countries (e.g. through UNDAFs, humanitarian funding
streams, and in cooperation with regional bodies).
Ensure outcomes and targets for prevention of violence against
women and girls are a key component of the post-2015
development agenda.
In line with BPfA’s 1‘Adopt all appropriate measures, especially in the
field of education, to modify the social and cultural patterns of conduct
of men and women, and to eliminate prejudices, customary practices and
all other practices based on the idea of the inferiority or superiority of
either of the sexes and on stereotyped roles for men and women’, experts
recommend that States:
Develop, implement and monitor compulsory education
promoting human rights and gender equality, challenging
1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013
106
gender stereotypes, discrimination and violence against women
and girls, and building skills for equal and respectful
relationships and for peaceful conflict resolution, at all levels of
schooling, from kindergarten to the tertiary level and in non-
school educational settings.
Review teaching and learning materials to support the above,
elaborating relevant curricula and materials in partnership with
specialists on violence against women and girls, and ensuring
that such education is gender-sensitive, comprehensive and
fully integrated and includes assessment and reporting
measures.
Provide for specialized training and resources for teaching and
support staff to deliver the above curricula, implement gender-
sensitive approaches to instruction through non-violent
pedagogy, and support students who may disclose violence.
Support schools, tertiary institutions and other educational
settings to promote broader ‘whole-school/institution cultures’
of equality, non-violence and respect, through engagement of
leadership, events and extracurricular activities, and
involvement of the community, as well as through policy and
practice reform such as instigating institution-wide bans on all
violence – including corporal punishment – and protocols and
procedures for responding to violence, discrimination, bullying
and harassment, whether in the staff-room, the classroom or
elsewhere on the school/institution grounds.
Monitor and support girls’ completion of secondary schooling
which multiple studies suggest is strongly protective against
domestic and sexual violence.
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In line with BPfA’s1, calling for the development of ‘programmes and
procedures to eliminate sexual harassment and other forms of violence
against women in all educational institutions, workplaces and
elsewhere,’ experts make a number of recommendations to States,
employers, trade unions, community and youth organisations and non-
governmental organisations, as appropriate:
Review regulatory frameworks, codes of conduct, protocols and
procedures, of workplace, educational institutions, sporting
clubs, community and faith organisations, the military, police and
other organisational/institutional environments, to ensure they
work to eliminate discrimination and harassment, and build
organisational environments that are safe and inclusive of women
and girls, and encourage women’s and girls’ participation and
leadership.
Foster collaboration between employer and other organisations,
and with women’s and other civil society organisations –
especially those with expertise in engaging men and boys for
gender equality – to recognise the role of
organisations/institutions in prevention of violence against
women and girls. Such a role is not only limited to addressing
violence, discrimination and harassment within the organisation
itself, but also extends to the organisation/institution as a
‘change-maker,’ capable of contributing to the transformation of
attitudes, practices and social norms in their communities and
society as a whole.
Develop and implement awareness-raising and bystander
capacity-building initiatives for employees or other members of
1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013
108
the organisation, especially those aimed at supporting men to
proactively challenge men’s violence or early warning signs of
such violence.
Identify women and men who can act as positive role models and
ambassadors for prevention among employer and other
organisations.
Ensure protection and regulation in both the private and public
sector for migrant workers to help combat harassment,
discrimination and trafficking incidences.
In line with BPfA’s1, calling for the organisation, support and funding of
‘community-based education and training campaigns to raise awareness
about violence against women as a violation of women's enjoyment of
their human rights and mobilisation of local communities to use
appropriate gender-sensitive traditional and innovative methods of
conflict resolution,’ experts recommend that States, local authorities,
civil society organisations, communities and community organisations,
promote gender equal and non-violent relationships, families and
communities through new and existing holistic prevention efforts,
services, programmes, events and grant/funding initiatives; prioritise
prevention of violence against women and girls in grassroots efforts,
urban and municipal planning; and implement legislative, regulatory and
community-based programming initiatives to prevent violence and
harassment of women and girls in private and public spaces.
In line with BPfA’s, recognising, supporting and promoting ‘the
fundamental role of intermediate institutions, such as primary health-care
centres, family-planning centres, existing school health services, mother
and baby protection services, centres for migrant families and so forth in
1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013
109
the field of information and education related to abuse’ experts
recommend that States and partner organisations:
Develop, implement and monitor programmes combining
respectful relationships skills building and counselling support
for children and young people, especially those who have been
exposed to, or are identified as at risk of, violence.
Develop, implement and monitor intensive early-intervention
programmes for children and young people demonstrating
violence-supportive attitudes and/or who are using violence,
recognising that this may be a result of prior victimisation and
using a model that empowers them with the skills and inner
resources for non-violent conflict resolution and healthy
relationship-building.
Develop, implement and monitor positive and non-violent
parenting programmes, including those specifically targeting
fathers/men.
Integrate issues of gender equality and prevention of violence
against women and girls into health and social welfare
programmes including sexual, reproductive and maternal health,
HIV-AIDS programmes, and programmes promoting equal,
respectful and non-violent intimate and family relationships.
Support the role of these sectors in identifying women and girls
at risk of violence and referring them to early intervention or
response services.
In line with BPfA’s1 supporting ‘initiatives of women's organisations and
non-governmental organisations all over the world to raise awareness on
the issue of violence against women and to contribute to its elimination,’
1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013
110
and organising, supporting and funding ‘community-based education and
training campaigns to raise awareness about violence against women as a
violation of women's enjoyment of their human rights and mobilise local
communities to use appropriate gender-sensitive traditional and
innovative methods of conflict resolution, ’experts recommend that
States, including local governments, with community organisations, non-
governmental organisations, educational institutions, the public and
private sectors, particularly enterprises, and the mass media, as
appropriate, develop and implement – in concert with wider strategies
above – social marketing, communications and holistic community
mobilisation efforts addressing the underlying causes of violence against
women and girls, such as through the promotion of positive, respectful
and non-violent masculinities; challenging gender stereotypes; raising
awareness of the unacceptability of violence; and promoting critical
thinking within the community on violence against women and girls as a
manifestation of inequality and a violation of women’s human rights.
In line with BPfA’s1 calling for ‘special measures to eliminate violence
against women, particularly those in vulnerable situations, such as young
women, refugee, displaced and internally displaced women, women with
disabilities and women migrant workers, including enforcing any
existing legislation and developing, as appropriate, new legislation for
women migrant workers in both sending and receiving countries,
’experts recommend that States, employers, trade unions, community
and youth organisations and non-governmental organisations, as
appropriate, recognise the multiple vulnerabilities of women and girls to
various forms of violence throughout their life cycle, and identify clear
prevention activities and budgets for this work.
1Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013
111
In line with UNSCR, experts recommend that States ensure they have
and implement action plans on women, peace and security, including
comprehensive strategies to address the proliferation of small arms and
armed violence, whether in conflict, post - conflict or ‘peacetime’
settings. Such initiatives should specifically include:
The support of arms control and disarmament initiatives and policies that
take into account the needs and perceptions of both men and women,
namely through consultation and threat assessment, and provide
adequate incentives for participation, namely in regular campaigns of
gun registry and civilian disarmament.
The harmonisation and implementation of laws that address domestic
violence and firearms and ammunition – banning individuals with a
history of violence from access to firearms, and ensuring guns are seized
and gun licences suspended in domestic violence cases.
The improvement of the police officers’ capacity to conduct
psychosocial evaluations, along with strengthened police training on
violence against women and girls and the role of firearms, reaching
beyond those working in special victim units.
The conduction of risk analysis in all centres for victim support,
including assessing the presence of a weapon in the home.
In line with the UN General Assembly Special Session on HIV and
AIDS, and the 2010 UN AIDS Agenda for Accelerated Country Action
on Women, Girls and HIV1 and AIDS, integrate a focus on promoting
1 UN AIDS Agenda for Accelerated Country Action on Women, Girls, Gender Equality and HIV. Retrieved 28 February
2013.
112
gender equality, addressing gender based violence and engaging men
and boys for gender equality into national AIDS plans1.
1 Athena Network and Sonke Gender Justice Network (2012) Review of efforts to integrate Strategies to Address
Gender-based Violence and Engage Men and Boys to Advance Gender Equality through National Strategic Plans on HIV and AIDS, an Overview of Findings.
113
2.12 UNITED NATIONS MILLENNIUM DECLARATION, 2000:
"Only through broad and sustained efforts to create a shared future,
based upon our common humanity in all its diversity, can globalization
be made fully inclusive and equitable", world leaders stated as they
unanimously adopted a "United Nations Millennium Declaration1" at the
conclusion of their Millennium Summit on 8 September 2000.
The 3 day summit held on 6-8 September at New York was the largest-
ever gathering of world leaders. The Declaration was the main document
of the Summit and it contained a statement of values, principles and
objectives for the international agenda for the twenty-first century. It also
set deadlines for many collective actions.
In an address delivered at the concluding meeting of the Summit, United
Nations Secretary-General Kofi Annan told world leaders that it had
sketched out clear directions for adapting the Organization to its role in
the new century. “It lies in your power, and therefore is your
responsibility, to reach the goals that you have defined”, he declared.
"Only you can determine whether the United Nations rises to the
challenge. For my part, I hereby re-dedicate myself, as from today, to
carrying out your mandate."
The Declaration reaffirmed Member States' faith in the United Nations
and its Charter as indispensable for a more peaceful, prosperous and just
world. The collective responsibility of the governments of the world to
uphold human dignity, equality and equity is recognized, as is the duty
of world leaders to all people, and especially children and the most
vulnerable.
1 United Nations General Assembly Resolution 2 session 55 United Nations Millennium Declaration on 18 September
2000
114
The leaders declared that the central challenge of today was to ensure
that globalization becomes a positive force for all, acknowledging that at
present both its benefits and its costs are unequally shared. The
Declaration called for global policies and measures, corresponding to the
needs of developing countries and economies in transition.
The Summit Declaration cited freedom, equality (of individuals and
nations), solidarity, tolerance, respect for nature and shared
responsibility as six values fundamental to international relations for the
twenty-first century1.
The Millennium Declaration has eight chapters and key objectives,
adopted by 189 world leaders during the summit: The Declaration, after
the Vienna Declaration and Programme of Action, stresses the
observance of international human rights law and international
humanitarian law under the Principles of United Nations Charter as well
as the treaties on sustainable development.
1. Values and Principles
a. Freedom
b. Equality
c. Solidarity
d. Tolerance
e. Respect for nature
f. Shared responsibility
2. Peace, Security and Disarmament
3. Development and Poverty Eradication
4. Protecting our Common Environment
5. Human Rights, Democracy and Good Governance
1 United Nations General Assembly Verbotim Report meeting 85 session 55 page 1 on 14 December 2000 at 10:00
(retrieved 2007-09-10)
115
6. Protecting the Vulnerable
7. Meeting the Special Needs of Africa
8. Strengthening the United Nations
2.13 WORLD SUMMIT 2005
The 2005 World Summit, 14–16 September 2005, was a follow-up
summit meeting to the United Nations' 2000 Millennium Summit, which
led to the Millennium Declaration of the Millennium Development Goals
(MDGs). Representatives (including many leaders) of the then 191 (now
193) member states met in New York City for what the United Nations
described as "a once-in-a-generation opportunity to take bold decisions
in the areas of development, security, human rights and reform of the
United Nations1."
The summit was billed as the "largest gathering of world leaders in
history," and featured appearances of numerous heads of state and heads
of government. The majority of those present addressed the U. N.
General Assembly, and gave speeches reflecting on the U. N.'s past
successes and future challenges. All 191 of the then member states gave
an address in some form- if the head of state or government was not
present the nation's foreign minister, vice president, or Deputy Prime
Minister usually sufficed. The meetings were presided over by the Prime
Minister of Sweden, Göran Persson.
The pre-summit negotiations were blown sharply off course by the
appearance in early August at the U. N. of United States Ambassador to
the U. N. John Bolton, appointed as a recess appointment by U.S.
President George W. Bush. The position had been vacant since January,
with responsibilities handled by professional U.S. diplomats. Bolton
1 The 2005 World Summit: An overview (PDF) United Nations website
116
swiftly issued a list of new demands (including dropping the use of the
words "Millennium Development Goals"), which days before the summit
had still not been settled. Some observers contended that on the eve of
the summit the U.S. struck a more conciliatory tone than expected1,
something partly credited as a consequence of the outpouring of
international support for the U.S. after Hurricane Katrina.
As well as discussing progress on the Millennium Development Goals
and re-iterating the world's commitment to them, the summit was
convened to address the possible reform of the United Nations; much of
this was eventually postponed to a later date. An exception was the
endorsement of the "responsibility to protect" (known by the acronyms
RtoP and R2P), a formulation of the "right of humanitarian intervention"
developed by a U.N. commission2 and proposed by Kofi Annan as part
of his In Larger Freedom3 reform package. The "Responsibility to
Protect" gives the world community the right to intervene in the case of
"national authorities manifestly failing to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity".
There was also broad agreement at the summit to set up a new Human
Rights Council.
During the summit, the United Nations Convention Against Corruption
received its thirtieth ratification, and as a result entered into force in
December 2005.
The inaugural session of the Clinton Global Initiative was held in New
York City to coincide with the 2005 World Summit, and attracted many
1 Howard LaFranchi At U.N., Bolton Softens His Tone Controversial U.S. Ambassador Taking More Conciliatory
Approach CBS News September 12, 2005 (originally published in the Christian Science Monitor 2 Annan calls for endorsement of Responsibility to Protect Human Security Policy Division, Human Security and Human
Rights Bureau Foreign Affairs Canada 3 In larger freedom: towards development, security and human rights for all. Report of the Secretary-General. Prepared
by the UN Web Services Section Department of Public Information in 2005.
117
of the same world leaders. It was brought before the United Nations
General Assembly for adoption as a resolution on 16 September1 where
ambassadors made last minute statements and reservations. For example,
John Bolton said: "I do wish to make one point clear: the United States
understands that reference to the International Conference on Population
and Development, the Beijing Declaration and Platform for Action and
the use of the phrase 'reproductive health' of the outcome document do
not create any rights and cannot be interpreted to constitute support,
endorsement or promotion of abortion2."
The pressure group The United Nations Association of Great Britain and
Northern Ireland (UNA-UK) contend that:
Delegates to the UN Summit have been accused of producing a 'watered-
down' outcome document which merely reiterates existing pledges. It is
true that there is cause for disappointment, in particular the failure to
make progress on Weapons of Mass Destruction. But the document also
contains important steps forward including3:
1. agreement on the responsibility to protect populations suffering
gross human rights violations;
2. a blueprint for the establishment of a Peace building Commission
to prevent relapses into violence following the conclusion of peace
agreements; and
1 United Nations General Assembly Verbatim Report meeting 8 session 60 Integrated and coordinated implementation
of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields page 44 on 16 September 2005 2 United Nations General Assembly Verbatim Report meeting 8 session 60 page 46, Mr. Bolton United States on 16
September 2005 (retrieved 2008-10-22 3 The United Nations Association of Great Britain and Northern Ireland (UNA-UK). 2005 World Summit Outcome
Document: A Glass Half Full?
118
3. Agreement on equipping the UN with a new Human Rights
Council to strengthen its ability to promote and protect human
rights around the world.
119
2.14 LEGAL PROTECTION OF WOMEN IN PAKISTAN:
Pakistan was created for its citizen to be free of discrimination and
deprivation they had suffered in the past. Citizens included women; and
it was stated that they should stand side by side with men as their
companions in all spheres of life. This sentiment was reflected in the
constitutional proposals subsequently made. (Articles 25 and Article34)1.
In practice however the promise of equality has not only been ignored, it
has been blatantly violated2. In 1995, nearly a half-century after the
creation of Pakistan, the National Report for the Fourth UN World
Conference for Women had to admit that women 'continue to suffer in
the face of oppressive patriarchal structures, rigid Orthodox norms and
stifling socio-cultural customs and traditions3'.
Adherence to status quo, political inertia and lack of social will have
continued women's historical burden. Legal empowerment of women in
Pakistan can only be ensured through creation of forward looking and
strong civil society that propel the State to bring positive changes in the
constitutional, statutory and customary laws.
Women's situation in Pakistan4:
Studies on women and state have shown that the State is not a gender-
neutral entity Political dispensation at the State level can either reinforce
female subordination or support female autonomy. The changing attitude
of the Pakistan State towards women ranges from half-hearted policy
measures at best, to inaction and outright discrimination by enactment of
retrogressive law particularly during the military regime of 1977-88. 1 Reports of Commission of Inquiry for Women, Pakistan. August 1997.Islamabad.
2 NATIONAL COMMISSION ON THE STATUS OF WOMEN'S REPORT ON HUDOOD ORDINANCES 1979
3 Unicef, 1998.Children and Women in Pakistan: A situation Analysis. Political Printer (Pvt.) Ltd., Islamabad
4 Mumtaz, K & Shaheed, F., 1987. "Women of Pakistan: Two Steps Forward, One Step Back?" Vanguard Books (Pvt.)
Ltd., Lahore, Pakistan
120
The constitution of Pakistan recognizes the principle of equality of all
citizens and the right to equal protection of the law. It specifically
prohibits discrimination on the basis of gender, and makes provision for
measures of affirmative action by the State. However, the constitution is
silent on the critical issues, such as women's reproductive rights, as well
as rights to development or the environment, which are equally relevant
for women1.
Coexistence of multiple legal systems provides different options for
settling contentious issues concerning women's right and usually least
favourable to women is implemented. Even the application of Muslims
laws is uneven for instance; the lack of protection under statutory law, of
women's religious right to choose a spouse and the absence of punitive
actions for not giving women their share of inheritance.
Discriminatory legislation exists in Pakistan. This will necessitate an
ijtihadi quantum jump to rectify the gap. Enlightened and liberal ulemas
should be motivated to undertake research in this area for
implementation by the State2.
The law regarding sexual crimes against women heavily favors men. The
Zina ordinance confuses rape with adultery and places female victims of
the former as well as that accused of the latter at particular risk. If the
court is unable to establish rape and the woman become pregnant, her
pregnancy is interpreted as evidence of her compliance in all illegal acts
and, therefore, she is to be punished3. Large numbers of women in
prisons have been falsely and maliciously prosecuted under this law for
exercising their legal rights in freedom of choice of a marriage.
1 Mumtaz, K & Shaheed, F., 1987. "Women of Pakistan: Two Steps Forward, One Step Back?" Vanguard Books (Pvt.)
Ltd., Lahore, Pakistan 2 Reports of Commission of Inquiry for Women, Pakistan. August 1997.Islamabad.
3 Text of Protection of Women (Criminal Laws Amendment) Act, 2006 a.k.a. Women's Protection Bill
121
The law of Evidence (1984) states that the value of the women's
testimony should be considered only half of a man's even in criminal
matters. The Pakistan Citizenship Act (1951) guarantees citizenship by
descent only through the father. There is discrepancy in the minimum
age of marriage for the girls at sixteen, and for the boys at eighteen.
Women donot have an equal right of divorce. Right of divorce given to
women through delegation (Tafweez) though permissible in Islam, yet
the attitude of majority has led to its disuse1. Furthermore, the
procedures of women seeking divorce are quite complex.
The Muslim family Law Ordinance (1961) brought important reforms by
making marriage registration mandatory, introducing a standardize
marriage contract form, and laying down a procedure for divorce.
However, it did it not offer a fair post-divorce settlement. Pakistan Law
Commission has recently taken up this issue and some reform has been
recommended which still needs to be implemented by the Government.
There is no legislation on domestic violence and honor killing. These are
treated at par with other forms of violence. Cases of violence against
women often go unpunished like acid throwing and stove burning.
Recently, awareness created by CSOs has resulted in increasing the
registration of cases against the perpetrators. Incest has no special status
in laws and similarly, there are no laws for sexual harassment at work or
public places2.
Judicial indifference towards the issue of women's rights and other issues
concerning women has worsened the situation. My experience in courts
revealed that husband's side finds it easy to convince a male judge
1 Quarterly Newsletter, Legislative Watch, Issue No.6&7. Aurat Publication & Information.
2 Unicef, 1998.Children and Women in Pakistan: A situation Analysis. Political Printer (Pvt.) Ltd., Islamabad.
122
against the female litigating for her right by accusing her of awargi
(lewdness).
Options for legal empowerment of women1:
Four major commission or committees were organized from time to time
in the past to identify areas of discrimination against Pakistani women
and suggest remedial measures and changes in the existing laws for the
betterment of the tragic plight of women. Although these bodies made
various recommendations, in practical terms little was achieved as the
government concerned often lacked the will, vision or self-confidence to
accept most of these reforms .The research work and the
recommendations are already in place there is only need to bring these
learning in the public view through debates .
Efforts from the Civil Society2:
Many theatre groups like Ajoka and Lok Rehas brought issues for debate
among masses through their parallel theatre techniques. Media played a
very important role even in the days of oppression to raise controversial
issues but still there is room to use these means of communications more
effectively.
As a logical effect of such moment a lot of free legal aid centres are
opened in various part of the country to help out the women. Free legal
aid service of AGHS and Tahuffuz are few of these examples. Kashf
Foundation which is aiming at empowerment of women through micro
financing is yet another laudable venture. Shelter home opened in the
name of 'Dastak' for the destitute women is also one of the off shoots of
these efforts from the civil society side.
1 Article by S.M.Zafar, "Human Rights Environment in Pakistan".
2 Quarterly Newsletter, Legislative Watch, Issue No.6&7. Aurat Publication & Information
123
Regrettably, political parties have not played any significant role to
improve the status of women even in their own parties. I have publicly
questioned the leaders of the political parties as to why they have not
adopted the convention to reserve 33% seats for women in their working
committees. Answer given to me is that they are not vote catchers.
Unfortunately, on account of such myopic view of political leaders the
number of women politicians has gradually shrunk since the days of
independence .It is a dismal picture that out of 207 male members of the
former National Assembly, there were only 5 women legislators, 2
senators out of 83 and only one woman out of 483 male dominated
Provincial Legislatures.
Local Bodies are a critical tier of government. In the recent Local Bodies
election women's participation was ensured by provision of 33%
reserved seats for them. Same formula adopted for Provisional and
National Assemblies would ensure improved Human Rights environment
in the country.
Although there is a gradual and increasing acknowledgement of women's
autonomy as a development issue, empirical indicators show that women
continue to have a lower quality of life, are dis-empowered and face an
inequality of opportunities in all areas of development, relative to men.
In the global and South Asian terms, Pakistani men do not fare well
either, as the HDI devised by the UNDP clearly affirms. However,
women fare even worse. Discriminatory laws and customs play a crucial
role in preserving status quo. Serious efforts on the part of the State need
to be undertaken to change the situation. State's commitment to bring a
positive change in the society could be gauged by its gender-sensitive
policy initiative and law’s enactment processes. Presence of strong civil
society organization could not only monitor initiatives taken by the State
124
but can also keep their pressure on the State apparatuses to bring these
changes at its earliest instead of delaying it in the name of other priority
issues.
Empowerment of women would require a holistic approach in which all
sections of society cooperate and state play its constitutional role .The
burden must be shared by the political parties, media and ulemas as each
one of this section has failed to give the issue of women's rights the
critical importance it deserves.
125
2.15 LEGAL PROTECTION OF WOMEN IN BANGLADESH:
Whole world celebrate International women day on 8th March. The year
2010 was the 100th year of the International day for women. But, still
women have been facing great challenge in most of the countries of the
world. Many countries of the world have no actual human rights. And
the women rights can't imagine there. Women rights are the human
rights.
Bangladesh is one of the most vulnerable country in the world where
there women are passing in very danger situation. Indeed in Bangladesh
have gotten two great women leaders Sheikh Hasina and Begum
Khaleda Zia who have been governing Bangladesh since 1991. Presently
Sheikh Hasina has governing Bangladesh as a Prime Minister1. And
Begum Zia was a former Prime Minister of Bangladesh. But, yet the
women are crying for their rights and security. Though, every day many
women's have been torturing, killings. Violence against women is a
common picture in Bangladesh2.
Many women in Bangladesh suffer from rape, gang rape, murder, torture
and acid throwing. The position of women in Bangladesh is vulnerable.
Even though Bangladesh has an elected government, the difficulties
facing women haven't ended. Violence against women is a common
feature in Bangladesh, and women face various problems under the
system of repression3.
1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza
Begum ,University of Wollongong, 2004, page 27 2 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,
University of East London, Essex, 1997 3 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor
of Law at Dhaka University
126
The main types of the oppression of women include dowry, trafficking,
kidnapping, rape, physical torture and acid throwing. Almost every day,
women are victimized by these acts of violence and repression. And
domestic violence at the hands of husbands is a very routine practice in
Bangladesh1.
According to a survey conducted by the Bangladesh Mahila Parishad, at
least 937 women were killed during the period from January to October
this year. Prominent human rights leader and BMP president, Ayesha
Khanam, said that although an elected government is now in power and
there are conscious people in the ministry and in parliament, women
continue to face violence2. (Source: The Daily Star, 12/7/2009)
There is one example of a sensationalistic gang rape case. On Sept. 25,
an adolescent was gang raped following her abduction by ten
Bangladesh Chhatra League activists while she was returning from a
Puja Mandap in the Kolapar sub district of the Patuakhali district. Also,
on Nov. 8, one Bir Bengal attempted to rape a woman, Jamnua Chakma,
age 21, in the Ghilachari army camp in the Naniachar subdistrict of
Rangamati. She is wife of Shyamal Kanti Chakma3.
In Bangladesh, there are many laws for the protection of women, yet the
oppression of women hasn't lessened. It is hard to imagine that it will be
stopped in the near future. What is causing this situation? It is because
there is no rule of law and no good governance. Impunity and corruption
are very common in Bangladesh, and illegal political interference on
1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza
Begum ,University of Wollongong, 2004, page 59 2 “Pain” Book by By Jahangir Alam Akash Page 345
3 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,
University of East London, Essex, 1997
127
behalf of criminals is another reason that women's persecution
continues1.
Bangladesh has many laws for the protection of women. For example,
the Suppression of Immoral Traffic Act 1933, the Family Court
Ordinance, the Cruelty to Women (Deterrent Punishment) Ordinance,
the Trafficking in Women and Children Act 1993, the Dowry Prohibition
Act, the Prevention of Women2 and Child Repression Act (2000), etc.
The problem is that every case of oppression of women involves the
police, witnesses, lawyers, magistrates or judges, and often doctors. If all
the parties involved perform their professional and moral obligation,
then the perpetrator will be punished. But, with some exceptions, most of
the parties are involved in corruption or are irresponsible. Political
pressuring can also hamper the investigation of cases involve women's
repression. Sometimes, to protect themselves, witnesses in the cases will
not give truthful statements to the court.
The Bangladesh Institute of Human Rights (BIHR)3 is a Bangladesh
Awami League government-supported human rights organization.
According to this organization, during the first six months of this year,
1,479 women were raped. The Minister for Home Affairs Sahara Khatun
shared this figure with the national assembly4.
According to a monitoring cell at the police headquarters, from January
to October 2009, at least 3,413 women were tortured over dowry, 83
1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza
Begum ,University of Wollongong, 2004, page 55 2 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor
of Law at Dhaka University 3 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,
University of East London, Essex, 1997 4 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza
Begum ,University of Wollongong, 2004 page 89, 92 97
128
women fall victim to torture, 2,336 were abducted, 2,476 were raped, 36
were killed after rape, 33 were injured after rape, and 117 women were
killed.
In Bangladesh have no equal rights in practice for women. The women
have facing difficulties by various ways. Especially the working women
are facing these difficulties like discrimination of wages. According to
the daily Star (8-3-2010), Acid Survivors Foundation (ASF) Executive
Director Monira Rahman said, in the last 100 years the world achieved a
lot, but it is a matter of regret that violence against women, especially in
countries such as Bangladesh, is still widespread. Referring to a WHO
study in 2005, she said 57.5 percent of women in Bangladesh are
sexually and physically tortured1. In reality, the rate is much higher, she
said. Monira told, there were 490 incidents of acid throwing in 2002.
Still three accused rapist and provocateurs to death of sensational mass
raped and killing case of Mohima2. We are hearing from abroad that the
family members of Simee have been facing insecurity still. And after
happening women persecution our NGO's starting their activity. But,
after some days they turned to back. Then the real problem has starting
for a victim family.
We can give an example on Rajufa and Sheulee rape cases. After raped
to Sheulee the rapist was murdered to the father of rape victim. And they
were started false cases against the relatives of Sheulee3. But, nobody
comes to help of this helpless and oppressed family. In the same
situation has going on Rajufa's family. The Indigenous, Christian and the
Hindu women have been insecure more than Muslim women. Many
1 "Human Development Report". United Nations Development Programme. 2013. p. 156.
2 Pain” Book by By Jahangir Alam Akash Page 340
3 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza
Begum ,University of Wollongong, 2004, chapter 6
129
NGO have been working for the rights of women. But, they have no
coordination. They have been working for the women rights as for the
problem of cover. Never have they wanted to go inside or the root cause
of a problem.
In order to prevent violence against women, it is necessary to practice
the rule of law, carry out proper and competent investigations, should
reduce poverty and all kinds of discrimination (man and women) and
implement existing laws protecting women1. At the same time, it is
necessary to ensure the security of witnesses and victims, and corruption
must be fought against during the time from when the case is filed until
the trial is finished. And political pressuring must be stopped. To prevent
women's oppression, men must first come forward. The question
remains: is the Bangladesh government ready to tackle any and all kinds
of violence against women?
The present government has passed one year already. But, they didn't
take any step for the rights of women. Even the women development
policy of 1997 hasn't rein stead. We want to see that, Bangladesh
government should take positive step for the empowerment and for the
rights of women immediately2.
Bangladesh Legal Aid and Services Trust (BLAST) called "Empowering
Women: From Fatwa to Freedom". BLAST is one of the leading legal
services organisations in Bangladesh, and the only one that provides
access to legal aid across the spectrum, from the frontlines of the formal
justice system to the apex court since 19933. BLAST provides legal aid-
1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza
Begum ,University of Wollongong, 2004,chapter 3 and 4 2 Alffram, Henrik (2009). Ignoring Executions and Torture: Impunity for Bangladesh's Security Forces. Human Rights
Watch. ISBN 1-56432-483-4 3 "The Global Gender Gap Report 2012". World Economic Forum. pp. 10–11.
130
mediation, legal advice and representation-to women and girls, over 90
per cent of its clients, to realise their rights. BLAST conducts awareness
trainings for women and girls to learn about their legal rights. Its clients
are mainly women and girls, usually living in poverty or extreme
disadvantage in our country.
Amongst many others, BLAST recently obtained landmark judgments
following public interest litigation, challenging the Forced Veiling of
Women and Extra-judicial Punishments through 'Fatwas'1, and a
prohibition on corporal punishment in schools and madrasas.
High Court issues a Suo Motu order2: From the early 1990s, the
incidence of fatwa being issued by rural clerics or village elders and
resulting in corporal punishment being inflicted on women and men
drew increasing attention from the media and human rights organisations
nationally and internationally3. However, almost a decade after the focus
on fatwa violence first began, in December 2000, the High Court issued
a Suo Motu order on certain government authorities on the basis of a
newspaper report about another fatwa requiring a woman to undergo an
intervening marriage (hilla) on the ground that she had dissolved marital
ties with her husband. Acting upon this fatwa, a relative of the woman
then reportedly had sexual relations with her, and her husband refused to
take her back as his wife4.
After hearing all the parties concerned, the High Court Division on
January 1, 2001 pronounced its judgement making the rule absolute and
holding that the fatwa in question was wrong and further holding that
1 Bennett Jones, Owen (2003). Pakistan: Eye of the Storm (2nd revised ed.). Yale University Press. ISBN 978-0-300-
10147-8 2 Biswas, Rajiv (2012). Future Asia: The New Gold Rush in the East. Palgrave Macmillan. ISBN 978-1-137-02721-4
3 Carlisle v. United States, 517 U.S. 416 (Supreme Court of the United States 1996)
4 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor
of Law at Dhaka University
131
any fatwa, including the instant one, are all unauthorised and illegal. The
Hon'ble Court also opined that the legal system of Bangladesh empowers
only the Courts to decide all questions relating to legal opinions
regarding Muslim laws and other laws as in force. This was a great day
for Bangladeshi women who are the victims and sufferers of fatwa.
However, very unusually, two appeals were filed against this judgement,
by third parties (who had no involvement in the High Court's case). The
Government did not appeal the judgement, nor did it take part in the
leave hearing. One of the leave petitioners is an Assistant Mufti at a
madrasah, described as being engaged in imparting Islamic Higher
Education. The other is Chairman of the Mosjid Council, and claims to
be a scholar of Islamic Jurisprudence and the Holy Quran and Hadith,
who is regularly asked for advice on Muslim family matters and other
aspects of Muslim life and in the process issues fatwas and as such has
an interest in the matter. On the basis of appeal the apex court has
granted leave to appeal in both petitions1.
In these circumstances, while appeal hearing of the above mentioned Suo
Motu2 case on fatwa was pending regarding the fatwa case before the
Apex Court of Bangladesh, the incidents of fatwa against poor women
and girls in Bangladesh increased alarmingly. Throughout 2009,
newspapers reported a series of incidents of violence inflicted on women
and girls in the name of fatwa by traditional dispute resolution processes
(shalish), often involving religious leaders. These incidents had
reportedly resulted in women and girls in villages across the country
being caned, beaten, lashed or otherwise publicly humiliated within their
communities.
1 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,
University of East London, Essex, 1997 2 Carlisle v. United States, 517 U.S. 416 (Supreme Court of the United States 1996)
132
The spate of acts of violence against women in several parts of rural
Bangladesh is justified by the perpetrators of these crimes on the basis of
fatwa given by a local imam or a maulvi or maulana. It has been rightly
pointed out that violence against women is a crime that cannot be
justified on this basis. In addition, and again rightly, it is pointed out that
these self-appointed givers of fatwa have no authority for their
proclamations. What these statements however fail to clarify is a
fundamental misconception about fatwa themselves.
Appellate Court verdict1: Finally, after more than 10 years, the Supreme
Court of Bangladesh started hearing on the appeal on 01.03.2011, where
lawyers against fatwa/extra judicial penalties argued that the
pronouncement and execution of certain fatwas, including those which
involve corporal punishment or other forms of humiliating and degrading
treatment, is a criminal offence under Bangladesh law, and therefore
these appeals raise issues regarding the enforcement of existing criminal
laws to protect (primarily women) from violence, and that such fatwas
cannot be protected as part of the right to freedom of religion2.
Earlier on February14, 2011, the Supreme Court appointed nine legal
experts as amicus curiae (friends of the court) for their opinion on this
issue. It also heard the opinions from five of the country's prominent
Alems (Islamic scholars), nominated by the Islamic Foundation
Bangladesh. The panel of five, however, told the court, banning fatwa
will ultimately put a ban on the holy religion of Islam. As a result, all the
people of the State would become sinners for lack of adequate
knowledge on Islam.
1 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,
University of East London, Essex, 1997 2 Debnath, Angela (2009). "The Bangladesh genocide: The plight of women". In Samuel Totten. Plight and Fate of
Women During and Following Genocide. Transaction. pp. 47–66
133
After hearing all concerned in this case, the Appellate Division of the
Supreme Court of Bangladesh on May 12, 2011 ruled that fatwa or
religious edicts could only be pronounced by persons properly educated
in religious matters, but no one could be forced to accept it, in the
following terms:
"No person can pronounce a fatwa which violates or affects the rights or
reputation or dignity of any person which is covered by the law of the
land,"
The verdict added: "[A] fatwa on religious matters only may be given by
the properly educated persons who may be accepted only voluntarily but
any coercion or undue influence in any form is forbidden1."
The judgement further pointed out that "no punishment, including
physical violence or mental torture in any form, can be imposed or
implicated on anybody in pursuance of [a] fatwa."
The above-mentioned verdict of the Apex Court of Bangladesh in the
fatwa case and the High Court judgement against fatwa and related
advocacy work against fatwa, are definitely one step forward in order to
protect women's rights in Bangladesh and this would eventually lead to
incremental achievements for legal empowerment of women in the
country.
Accordingly, that was a day of celebration for all those who believe in
gender equalities and thousands of girls and women across the country
who were constantly victimised by the issuance of illegal fatwas over the
years. Now we have a legal power to protect rights of women where they
will not be exposed to humiliations ranging from mockery to rape or free
1 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor
of Law at Dhaka University
134
from small rituals curtailing their freedom to absolute limitations on
what they can do1, what they can wear, whom they can marry, and where
they can go. And that there will be no use of illegal extra-judicial
penalties under the religious veil in the name of fatwa where women
were mostly victimised.
It is true that the status of women and equality between men and women
has improved over the years considerably in our country. Positive
developments have been witnessed in the reduced gender gap in school
attendance and in increasing the life expectancy of women and women's
participation in political life.
The situation is not very impressive: Nevertheless, despite these positive
developments women and girls still suffer extensive systematic
discrimination across the country. Still a lot needs to be done in order to
achieve women's equal status to men with respect to legal, social
(including sexual and reproductive rights) and economic rights. I was
going through recent data regarding fatwa victims after having the
landmark Judgment. Unfortunately, the situation is not very impressive,
we can still find news reports regarding fatwa incidents where women
and girls were victimised by fatwa (extra-judicial penalties) across the
country.
Now the big question is: Can law alone protect women's rights in our
country? I think the very question now we should ask that although some
practices have become habitual, is there any moral justification for them.
Stereotypes about gender roles have led to practices in our culture of
actively preferring and promoting one sex over the other-often boys over
girls. Thus gender discrimination.
1 Gerlach, Christian (2010). Extremely Violent Societies: Mass Violence in the Twentieth-Century World (1 ed.).
Cambridge University Press. ISBN 978-0-521-70681-0
135
The way out: So what is the way out? What are the means through which
we can achieve gender equality in our country to empower women and
to protect their rights?
I think it is time to take a holistic view over the gender equality and set a
moral value in respect of every one of our country to realise that gender
equality and female empowerment are core development objectives,
fundamental for the realisation of human rights and key to effective and
sustainable development outcomes. No society can develop successfully
without providing equitable opportunities, resources, and life prospects
for males and females so that they can shape their own lives and
contribute to their families and communities.
Perhaps more importantly, we need to adopt in our national values the
language of universal human rights that allows legitimate claims to be
articulated with a moral authority which other approaches lack. It is a
language which is recognised by the powerful, and which stimulates
deep chords of response in many1. It is a language which has the
potential to empower individuals and communities at the grass-roots
level to believe that they have a right to education, to health care or any
other right. Human rights speak in broad terms about the fundamental
entitlement of all human beings to live in dignity, and in conditions of
social justice and thereby provide a foundation from which to establish a
set of demands premised on the intrinsic worth of the individual. The
human rights approach justifies legitimate claims2, not because the
realisation of rights such as that to health or life is a means to another
end, such as quality child care, environment, development or population
1 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor
of Law at Dhaka University 2 "The Global Gender Gap Report 2012". World Economic Forum. pp. 10–11
136
policies, but because the realisation of their rights is an important goal in
itself.
Human rights not only create entitlements for rights-holders, but they
also create duties for the State. States are required to ensure the
fulfilment of human rights by acting in a way that enables rights-holders
to enjoy the rights to which they are entitled. Human rights require that
actions of a legislative, administrative, policy or programme nature are
considered in light of the obligations inherent in human rights1. Actions
which violate or fail to support the realisation of human rights
contravene human rights obligations.
However, there is an unwillingness to adopt a holistic approach to
infringement of bodily security and gender-based discrimination in a
society, or address complex problems in regard to gender roles and
relationships and their impact in imposing disadvantages upon women
because of their sex2.
Gender equality and human rights, if they are to be realised, must be
respected, protected and fulfilled in both the public and private realm.
And in order to do those universal moral values need to be established in
every sphere of our life privately and publicly. Values are our guidelines
for living and behaviour3. Each of us has a set of deeply held beliefs
about how the world should be. For some people, that set of beliefs is
largely dictated by a religion, a culture, a peer group, or the society at
large. For others, it has been arrived at through careful thought and
reflection on experience, and is unique.
1 "Human Development Report". United Nations Development Programme. 2013. p. 150.
2 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor
of Law at Dhaka University 3 Trest v. Cain, 522 U.S. 87 (Supreme Court of the United States 1997)
137
Therefore, we need to set or create a values system that disregards the
stereotyping of men and women. What they should look like, dress like,
how they should behave and so on, can lead to discrimination or even
exploitation. What is needed is a values system which is backed by
morality and support human rights and a society free from all sort of
discrimination towards women and girls1.
1 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor
of Law at Dhaka University.
138
2.16 LEGAL PROTECTION OF WOMEN IN SRI LANKA:
In relation to the legal policy framework of Sri Lanka, the International
Women’s Year (1975) and the United Nations Decade for Women
(1976-1985) inspired the adoption of laws, policies and mechanisms for
the promotion and protection of women’s rights. These pivotal events set
the stage for the adoption of Chapter III of the Constitution on
Fundamental Rights, the ratification of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW)
in 1981, the establishment of a Women’s Charter, and the development
of a National Plan of Action for Women in 19961. Currently the
government of Sri Lanka is in the process of negotiating the institution
of the latest gender equity mechanism, the National Commission for
Women.
Legal and policy framework2
Chapter III of the Constitution of Sri Lanka provides for the protection
of fundamental rights. Article 12 of Chapter III recognizes the right to
equality and equal protection of the law as well as the right to protection
from discrimination on certain specified grounds, including sex. Any
person, whose right to equality is violated, under this Article, by either
executive or administrative action, can file a Fundamental Rights
Application in the Supreme Court. Article 12(3) also recognizes that a
special provision to promote substantive equality can be made by law,
regulations, or administrative action for the advancement of women. The
only criticism of this clause is that women are not provided the provision
independently; instead, it is inclusive of women, children, and disabled
1 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara
2
http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007.
139
persons. The Fundamental Rights Chapter itself has certain inherent
limitations. It has no retrospective effect, and there is no provision for
judicial review of past legislations. Therefore, gender discriminatory
laws, which were in existence at the time the constitution was adopted,
cannot be challenged on the basis of Article 121. This means that any
reform of such laws depend on political will. Unlike in South Africa, the
right to culture and religion in Sri Lanka has so far trumped the right to
equality. As an example, in 1995 the legal age of marriage for both men
and women was raised to the age of 18 years. No corresponding change
was made in the Muslim law, as there is no minimum age of marriage for
Muslims and child marriages are possible (although rare), under the law.
This exclusion was justified on the ground that the, “Muslim community
is entitled to be governed by their own laws, usages and customs and it
would not be productive to aim at a level of uniformity which does not
recognize adequately the different cultural traditions and aspirations of
the Muslim community2.”
Current machinery for women in Sri Lanka3:
Together, the Ministry of Women’s Affairs, the Women’s Bureau, and
The National Committee for Women comprise the national machinery
for women in Sri Lanka; however, their roles and responsibilities vary.
A cabinet portfolio for Women’s Affairs was created in 1983 due to
lobbying by women’s groups and activists. Responsibilities of the
Ministry are primarily cantered around the implementation of policies,
plans and programs with a focus on women’s empowerment. This
Ref: The of http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007. 2 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on
Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 3 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara
140
includes the advancement of the quality of life for women, increased
participation in national development policies, and promotion of gender
equity and gender justice. The Ministry is also responsible for the
implementation the Women’s Charter, while the Women’s Bureau of Sri
Lanka and the National Committee for Women are statutory institutions
under the Ministry. Throughout its twenty-five year history, however, it
has more often than not been combined with another ministry; at present
it functions within the “Ministry of Child Development and Women’s
Empowerment.”
Women’s Bureau created in 1978, the Bureau was originally housed
under the Ministry of Plan Implementation, though it now functions
under the Ministry of Women’s Affairs1. The Women’s Bureau is more
project-based than the Ministry, and focuses mainly on issues of income
generation and raising awareness.
As mentioned above, Sri Lanka is a signatory to CEDAW, without
reservations, and adopted a Women’s Charter in 1993. The Women’s
Charter was created as a means of translating the CEDAW commitments
into a Sri Lankan context2. The Charter spells out more detailed steps the
State should take in ensuring the equal rights of women. Seven areas of
concern specific to women in Sri Lanka are highlighted, they include:
civil and political rights; the right to education and training; the right to
economic activity and benefits; the right to healthcare and nutrition;
rights within the family; the right to protection from social
discrimination; and the right to protection from gender based violence.
The Charter also provided for the establishment of a National Committee
1 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on
Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 2 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara
141
for Women whose formulation was a collaborative effort of the national
machinery and women’s NGOs1. Despite its importance, the Charter
remains a document with no legal force.
The National Committee for Women is comprised of a Chairperson and
experts from fourteen sectors, all appointed by the President for a period
of four years; ten staff members; a legal officer with eight support staff;
an Executive Director, also appointed by the President; and the Secretary
of the Ministry of Women’s Affairs, who serves as an ex-officio member
of the Committee. Together, their mandate is to monitor and ensure the
implementation of provisions as stated in the Women’s Charter2. The
NCW accomplishes this through their powers of policy formulation,
awareness raising and advocacy. A Gender Complaints Unit has also
been established to receive complaints on gender-based discrimination.
In late 1995 and early 1996, the Ministry of Women’s Affairs and the
National Committee for Women formulated the National Plan of Action
for Women in Sri Lanka. Through several key measures, the National
Plan of Action reflects the critical areas of concern set forth in the
Beijing Platform for Action. The Plan identifies problems and issues,
sets goals for their solution, recommends strategies and activities, and is
responsible for the identification of implementing agencies. There are
eight sectors in which programs under the Plan were proposed, they
include: violence against women, human rights and armed conflict;
political participation and decision-making; health; education and
training; economic activities and poverty; media and communication;
environment; and institutional strengthening and support. Since its
inception, the Plan was revised in 1998 and 2000.
1 http://globaltamilforum.org/gtf/content/gtwf
2 The of social site of the Government of Sri Lanka: Ministry of Child Development and Women’s Empowerment,
http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007
142
In the last 28 years of the Fundamental Rights Chapter, there have only
been two cases of gender discrimination filed in the Supreme Court. In
the first case, a female doctor was subjected to suspension from her
internship and later transferred when she made an allegation of rape
against a male colleague who worked in the same state hospital. The case
was settled out of court and the female doctor obtained the relief she
wanted. In the second case, a Sri Lankan woman who was married to a
non-Sri Lankan challenged the regulations that discriminated against
foreign male spouses obtaining a resident visa. Following the decision in
this case, these regulations were amended. The creation of a National
Commission for Women would hopefully establish a clear and accessible
pathway of reporting and action if such cases are brought forward in the
future.
The need for legislation to convert the National Committee on Women to
a National Commission with greater powers was raised in 1994. At that
time, draft legislation was formulated but shelved1. The matter was again
taken up in February 2004 with the Ministry of Women’s Affairs
publishing a document titled, “The Draft Bill on Women’s Rights (Sri
Lanka)2.” Once the draft was published, the Ministry called for views on
the document from women’s organizations and the public. A
consultation was also held with women’s groups to discuss the Bill
further. The general consensus coming out of these consultations was
that that the Bill was not well conceptualized both in terms of its
objectives and the institutional framework it outlined, and therefore
should be revised. As a result, a small Technical Committee was created
to review the Bill and prepare a new draft that could then be finalized for
1 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on
Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 2 Bill on Women's Rights (Sri Lanka): Draft, Made Open for Public Scrutiny and Views, February 2004
143
presentation to Parliament. The Draft Bill prepared by the Technical
Committee was submitted to the National Committee on Women and the
Ministry of Women’s Affairs in October 2004. The Bill was approved in
November 2004 and was subject to a few changes.
The Draft Bill reflects and recognizes Sri Lanka’s commitment to
women’s rights under the Constitution, the Women’s Charter, and
international instruments ratified by Sri Lanka. In fact, the Women’s
Charter is an annex to the Bill1.
The proposed procedure for appointment of members of the National
Commission mirrors the procedure of appointments to other independent
commissions in Sri Lanka. The members are appointed by the President
upon recommendation of the Constitutional Council. The Commission
consists of nine members who have distinguished themselves as leaders
in areas varying from law and development to environment and the
media, with a commitment and proven track record of having worked to
advance women’s rights and gender equality. Each member will hold
office for a period of four years and can be eligible to hold office for a
further four-year term. Out of the nine appointments, three will function
as full time members. The Bill also lays down distinct procedure for the
removal of Commissioners; however, there are substantial safeguards in
place against arbitrary removal2.
The role of the Commission, as envisaged by the Bill, primarily focuses
on quasi-judicial responsibilities, research, and education, advising,
monitoring, and networking3. The ability of the Commission to carry out
1 Bill on Women's Rights (Sri Lanka): Draft, Made Open for Public Scrutiny and Views, February 2004
2 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on
Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 3 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara
144
these duties is only possible with sufficient authority. The proposed
“powers” of the National Commission are: to carry out investigations,
call for reports, or intervene in any proceedings regarding the
infringement or imminent infringement of women’s rights; to conduct
public inquiries in relation to women’s rights; to conduct programs for
the empowerment of women and the advancement of women’s rights;
establish regional offices; take steps as directed by the Supreme Court,
or any other court, in respect of any matter referred to it by that court;
award in its absolute discretion, to an aggrieved person such some of
money as is sufficient to meet the expenses that may have been
reasonably incurred by her through making a complaint to the
Commission1; to call for annual reports from relevant bodies on
measures to implement the Women’s Charter and other rights recognized
by this Act in areas within their purview; and finally, to forward a report
to Parliament at least once in every year on its activities and the
achievement of its objectives. The investigative provisions of the Bill are
devoted to spelling out, in more detail, the Commission’s powers of
inquiry and investigations that relate to the infringement of women’s
rights. The Bill strives for substantial powers of investigation, including
the ability to summon witnesses and to take action against those who do
not appear before the Commission or fail to submit evidence. The Bill
recognizes a very broad concept of standing. It is envisaged that
complaints to the Commission can be made not only by a person acting
in their own interest, but also by anyone acting on behalf of another
person, acting as a member of or in the interest of a group or class of
persons, acting in the public interest, or, an association acting in the
1 The of social site of the Government of Sri Lanka: Ministry of Child Development and Women’s Empowerment,
http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007.
145
interest of its members1. The Commission will be able to investigate
complaints against both State and non-State actors. Lastly, it is
authorized to enter any place of detention in which a woman is being
detained2. In relation to finances, the Bill seeks to establish a fund
entitled the “National Fund for Women” which will include allocations
from the national budget, independent grants and donations, and
proceeds from sale of movable and immovable property.
When an investigation conducted by the Commission discloses an
infringement, or imminent infringement, there are several procedures
that can be followed. First, the matter can be referred for conciliation or
mediation with the agreement of both parties. Second, referrals can be
made to the appropriate authorities to remedy the “violation” and
recommendations can be made for prosecution or legal action. Lastly,
other appropriate relief may be granted if determined just and equitable.
At this time, the enforcement of recommendations and decisions of the
National Commission are through the High Court in the province where
the complainant resides or to which the subject matter of the finding
relates. The drafters of the National Commission for Women envision
this to be a high power, independent Commission3.
As of December 2007, the Draft Bill for the National Women’s
Commission is still being revised and the new version has not been
available for general public discussion4.
The need for a National Commission for Women with greater powers is
critical for the continued protection and promotion of gender equality
1 http://globaltamilforum.org/gtf/content/gtwf
2 Human Development Report". United Nations Development Programme. 2013
3 The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara
4 The of social site of the Government of Sri Lanka: Ministry of Child Development and Women’s Empowerment,
http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007
146
and women’s rights in Sri Lanka. Within the current gender machinery,
there remains an overlap between the Ministry of Women’s Affairs, the
Bureau, and the National Committee for Women. As a whole, the
national machinery for women is still much marginalized from the
national decision-making processes to the national planning processes.
Gender discrimination remains a category that is not addressed
frequently in litigation and hopefully, through the introduction of the
National Commission for Women1, the focus on and legitimacy of
gender equality issues will become more prevalent in the Sri Lankan
system of governance.
1 Bill on Women's Rights (Sri Lanka): Draft, Made Open for Public Scrutiny and Views, February 2004
147
2.17 Legal protection of women in China:
The PRC has a commendable policy/legal framework in place to
promote and protect the rights of women. The rights of women are
entrenched in legislation. The 1982 Constitution states that1:
“Women...enjoy equal rights with men in all spheres of life, political,
economic, cultural and social, including family life. The State protects
the rights and interests of women, applies the principle of equal pay for
equal work for men and women alike and trains and selects cadres from
among women...marriage, the family and mother and child are protected
by the State2.
Both husband and wife have the duty to practice family
planning...violation of the freedom of marriage is prohibited.
Maltreatment of old people, women and children is prohibited.”
Prominent legislation setting out women’s rights include the Marriage
Law of 1950, the Inheritance Law (1985) (guaranteeing the inheritance
rights of daughters and widows) the Compulsory Education Law (1995),
the Law on the Protection of Rights and Interest of Women (1992) and
the Maternal and Child Care Law (1994). The rights of women and girls
are further protected in the Civil Law, the Criminal Law, the Criminal
Procedural Law, The Law for the Protection of Minors (1991), the Labor
Law (1994), the Law on the Prevention and Control of Infectious
Diseases (1989) and the Law on Adoption (1991)3. Almost all provinces
1 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing
declaration, the platform of action and the outcome of the 23rd
Session of General Assembly on Women Issues 2 Legal Protection of Legal Protection of Women’ s Rights in China Dr Xin Chunyin Professor and Vice Minister
Legislative Affairs Commission National People’s Congress of China 3 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s
Republic of China
148
have enacted specific legislation protecting the rights and interests
women.
The body of law includes provisions that expressly prohibit1:
(i) workplace violations or discrimination;
(ii) violence and the abuse of women and girls;
(iii) humiliation of women in the context of public humiliation;
(iv) prostitution and the abduction and sale of women and children;
and
(v) Selective abortion based on the sex of the child.
In 1980, the PRC was one of the first countries in the world to endorse
the 1979 UN Convention on the Elimination of All Forms of
Discrimination against Women. In 1989, PRC was one of the cosponsor
countries for the UN Convention on the Rights of Children. In March
1991, PRC signed both the World Declaration on the Survival,
Protection and Development of Children and its related action plan. The
State Council Work Committee formally assumed responsibility for
implementation of both the 1992 National Program of Action for Child
Development and the 1992 Law on the Protection of the Rights and
Interests of Women2. The 1992 Law on the Protection of the Rights and
Interests of Women is a statement of general principles. Detailed
regulations are drafted by local authorities. A State Council Commission
has been designated to coordinate implementation. Mass associations,
1 Legal Protection of Legal Protection of Women’ s Rights in China Dr Xin Chunyin Professor and Vice Minister
Legislative Affairs Commission National People’s Congress of China 2 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing
declaration, the platform of action and the outcome of the 23rd
Session of General Assembly on Women Issues
149
such as the ACWF1, have been acquiring newly recognized legal
responsibilities to assist in the protection of rights and interests of
women.
The ACWF is involved in the drafting of legislation, which specifically
addresses women. The ACWF also plays a key role in the administration
of the Law through its Urban and Rural Women’s Work Department,
which is staffed by lawyers. Although the legal framework addresses the
rights and interests of women, critics argue that as a result of weaknesses
in the judicial system and in and implementation and enforcement of the
law, the position of women in practice is not as clearly protected as
envisaged in the legislation. In 1994, the State Council stated that
“Owing to the constraints of social development and the influence of old
concepts, the condition of Chinese women are still not wholly
satisfactory.”
The State Council also concluded that the enforcement of the 1992 Law
on the Protection of the Rights and Interests of Women was in the
“initial” stages and that the State would have to commit significant
resources in the long term to ensure full implementation.
The PRC’s strategy with respect to gender-specific legislation “Raises
the vexing but genuinely important questions of what the best practical
socially and legally appropriate means are for protecting women’s and
children’s rights in the contemporary circumstances of the [PRC’s]
transition to the socialist market2 [economy].”
1 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s
Republic of China 2 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing
declaration, the platform of action and the outcome of the 23rd
Session of General Assembly on Women Issues
150
Discussion within feminist groups in the PRC focuses not only on the
legislation, but also on the implementation of the laws. In many cases
laws are silent when it comes to penalties for non-compliance1. There
has been some training of the judiciary, and the ACWF continues its
media campaigns aimed at increasing public awareness of the rights of
women. However, despite the progress, many activists argue that there is
still a long way to go to achieve, in practice, the objectives set forth in
the Constitution and in legislation.
According to UNICEF’s 1995 Progress of Nations report, 21 percent of
the deputies in the National People’s Congress were women, compared
to a world average of only 9 percent. Following the 1992 passage of the
Law on the Protection of the Rights and Interests of Women,
approximately two-thirds of PRC’s provinces have drafted regulations
stipulating a minimum number of women deputies in the People’s
Congresses and People’s Political Consultative Congresses2.
The ACWF has concluded that3 “Emphasizing increasing the rate of
Chinese women participating in government work, while implementing
the Law on Protection of Women’s Rights and Interests is extremely
important. That women’s rights and interests were infringed or ignored
in the past was to a great extent due to lack of the women’s voice in
policymaking.... in cities or areas which have a higher rate of women in
government, matters involving protection of women’s rights and
interests have been better handled, problems related to women’s rights
1 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s
Republic of China 2 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing
declaration, the platform of action and the outcome of the 23rd
Session of General Assembly on Women Issues 3 Legal Protection of Legal Protection of Women’ s Rights in China Dr Xin Chunyin Professor and Vice Minister
Legislative Affairs Commission National People’s Congress of China
151
and interests are solved in a shorter period, and consequently, they
record few serious cases of infringing women’s rights and interests1.”
1 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s
Republic of China
152
2.18 LEGAL PROTECTION OF WOMEN IN UK
Women who are outside of their country of origin are particularly
vulnerable to experiencing gender-based violence as the Beijing
Platform for Action recognises:
“Some groups of women, such as…refugee women, women migrants,
including women migrant workers.... destitute women, women in
institutions.... are also particularly vulnerable to violence”1.
Women in this situation may have fled gender-based violence in their
country of origin and be experiencing it again in the UK. They may have
migrated for family formation or reunion or for economic advantage, but
experience violence in the UK. They may be trafficked for the purposes
of sexual exploitation2. Refugee
3 and asylum-seeking women
4 face
multiple forms of discrimination that place them at greater risk of
experiencing violence. A literature review carried out by the Refugee
Council which analysed the vulnerabilities of refugee women to sexual
violence found that they were vulnerable to violence at all stages in the
“refugee cycle”.
Migrant women5 in the UK who are experiencing violence have an
intensified experience of it because their immigration status often
1 UN Women Beijing Platform for Action http://www.un.org/womenwatch/daw/beijing/platform/
2 Government Equalities Office (2011) CEDAW (Convention on the Elimination of all forms of Discrimination against
Women) report. United Kingdom’s Seventh Periodic Report. GEO: London http://www.homeoffice.gov.uk/publications/equalities/international-equality/7th-cedaw-report?view=Binary 3 Refugee Council (2012) The experiences of refugee women in the UK: Briefing.
http://www.refugeecouncil.org.uk/Resources/Refugee%20Council/downloads/briefings/Briefing%20%20experiences%20of%20refugee%20women%20in%20the%20UK.pdf 4 Home Office, Immigration Statistics, April to June 2011: Asylum, Table as.03: Asylum applications from main
applicants by age, sex and country of nationality 5 Migrant groups include dispersed asylum seekers, refugees, seasonal agricultural workers, students, ‘Tier 1’ (highly
skilled) migrant workers, dependants joining already settled family members, people with irregular migration status such as those who have overstayed their visa or who are working in breach of their visa conditions, women who have left violent partners and have no recourse to public funds, and people from inside and outside the EU. Local areas vary according to the size and distribution of these groups in their population
153
prevents them from accessing life-saving services. Trafficked women1
are routinely responded to as immigration offenders rather than victims
of human rights abuses and returned to their country of origin, frequently
to face re-trafficking. Migrant domestic workers are often unable to
leave an abusive employer and face proposals which will further increase
their vulnerability to exploitation.
A number of international, regional and domestic legal mechanisms have
been developed to respond to these issues. These enable women who are
outside of their country of origin and who are at risk of or are
experiencing gender-based violence to secure safety in the UK.
The 1951 UN Convention Relating to the Status of Refugees (the
Refugee Convention) has been interpreted to offer protection to women
experiencing or at risk of violence2 in their country of origin, including
women experiencing domestic violence and trafficked women. Specific
guidance has been developed for UK Border Agency (UKBA) case-
owners to enable them to understand and respond to women’s asylum
claims. Gender Issues in the Asylum Claim11 sets out the different
forms of persecution and harm that woman may experience and explains
how the Refugee Convention should be interpreted to protect them.
The Council of Europe Convention on Action against Trafficking in
Human Beings (2005) (the Trafficking Convention) enables some
victims of trafficking to receive residence permits. The National Referral
Mechanism (NRM) has been developed so that the UK meets its
obligations under the Trafficking Convention to identify and protect
1 Human Rights Watch (2010) Fast-Tracked Unfairness: Detention and denial of women asylum seekers in the UK.
http://www.hrw.org/reports/2010/02/24/fast-tracked-unfairness-0 2 Campaign to Abolish No Recourse to Public Funds (2012), ‘Press Release: Campaign to Abolish No Recourse to Public
Funds Celebrates Victory; Home Office Concession for Destitute Victims of Domestic Violence’ London: Campaign to Abolish No Recourse to Public Funds.http://www.wrc.org.uk/includes/documents/cm_docs/2012/p/press_release30_march_2012.doc
154
victims of trafficking. The domestic violence rule, paragraph 289A of
the Immigration Rules, enables those who have come to the UK as
partner of someone who is British or settled here and whose relationship
breaks down because of domestic violence to apply for settlement in the
UK.
The Sojourner Project and the scheme that will replace it in 2012 enables
this group of women to access support in a place of safety while they
prepare their domestic violence rule application and it is decided by the
UKBA.14 Women from other European Economic Area (EEA) countries
and women who are the family members of EEA nationals have rights in
the UK, including to work, seek work, study or be self-employed1.
Article 13 of the Citizen’s Directive (2004/38/EC) enables some family
members of EEA nationals to retain their rights of residence in the
country they are living in if their relationship ends in certain
circumstances, including because of domestic violence.
The legal mechanisms described enable women who are outside of their
country of origin and who are experiencing, or at risk of experiencing,
gender-based violence to obtain protection from that violence in the UK
(depending on the particular circumstances of the case)2. However, the
ability of a woman to secure this safety will depend on a number of
factors of which the availability of a legal protection mechanism is only
one. A woman seeking protection in the UK will also need to have legal
advice and representation, support from specialist services, financial
support and accommodation in a place of safety.
1 Briddick C, Camplin H, Perks K, Scott E and Tweedale R, Rights of Women (2010) Measuring Up? UK compliance with
international obligations to protect women from violence, www.rightsofwomen.org.uk 2 HM Government (2010) Call to End Violence Against Women and Girls
http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/vawg-paper?view=Binary
155
This research, which analyses six months of calls to Rights of Women’s
immigration and asylum law line, identifies and analyses the key barriers
and issues for women seeking safety and protection in the UK. It
highlights the protection ‘gaps’ that exist and gives a voice to the women
who have called us and who have fallen through those gaps. Our report1
makes clear and concrete recommendations which, if implemented, will
ensure that this particularly vulnerable group of women are able to
access protection and live lives free from violence.
All of our recommendations are in line with the Government’s own
commitments to end violence against women and the UK’s international
obligations to protect women from violence2. Throughout this report we
have drawn on the statistical information that we collect from our advice
line service users. Further information about this is given in Chapter 1
and Appendix 1. We have also, where appropriate, used case-studies
from our advice line to highlight particular issues of concern. Where we
have done this, details of the caller and the case have been changed to
ensure confidentiality.
1 Rights of Women (2011). Silences voices speak: strategies for protecting migrant women from violence and abuse
http://www.rightsofwomen.org.uk/pdfs/Policy/Silenced_voices_speak-strategies_for_protecting_migrant_women_from_violence_and_abuse.pdf 2 Scottish Refugee Council and London School of Hygiene and Tropical Medicine (2009) Asylum Seeking Women,
violence and health http://genderviolence.lshtm.ac.uk/files/2009/10/Asylum-seeking-Women-Violence-and-Health.pdf; Refugee Council (2009) The vulnerable women’s project: refugee and asylum seeking women affected by rape or sexual violence – literature review http://www.refugeecouncil.org.uk/Resources/Refugee%20Council/downloads/researchreports/RC%20VWP-report-web.pdf
156
2.19 LEGAL PROTECTION OF WOMEN IN RUSSIA:
From January until June 2013 KARAT conducted a project aimed at the
advancement of the legal protection of women’s human rights in Belarus
through adoption of the relevant and well-formulated laws on gender
equality as well as the prevention and eradication of domestic violence.
All the activities within the project were carried on in cooperation with
the Belorussian partner – Public Association “Women’s Independent
Democratic Movement” (PA “WIDM”)1.
The project had the following specific objectives2:
(i) Strengthening the capacity of women’s human rights leaders in
Belarus to formulate draft law proposals on gender equality and
domestic violence through expertise sharing and utilizing Polish
experiences in this area;
(ii) Empowering women’s human rights leaders in Belarus through
provision of the international support for their causes;
(iii) Developing the outline of the specific provisions that need to be
incorporated into draft laws on gender equality and domestic
violence in order for them to be effective;
(iv) Developing the strategy along with the plan of action for advocacy
for the adoption of the draft law proposals on gender equality and
domestic violence in Belarus.
Activities and its outcome:
On April 18-21, 2013 ten women’s rights advocates from Belarus took
part in a strategic training in Warsaw, Poland on legal protection of
women from discrimination and domestic violence. The training was a
1 "The Global Gender Gap Report 2012", World economic forum.
2 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women
157
response to the current challenges faced by the Belorussian women’s
movement. It focused on raising the knowledge of participants about the
essential elements that constitute a good law against gender-based
discrimination and violence. The participants learned about the best
European examples of this kind of legislation, and the European Union
and United Nations’ recommendations on effective prevention of
gender-based discrimination and violence, as well as victim protection.
The lawyers who conducted the training shared Polish experiences of
developing the draft bills to make the participants aware of problems
they might encounter while working on and presenting their drafts to the
relevant state’s authorities. The women’s rights advocates had an
opportunity to discuss with the Polish experts the weak and strong points
of their draft bill on domestic violence in the light of international
legislation as well as opportunities and threats in a context of current
social and political situation in Belarus1.
The training was one of the series of initiatives that Belorussian
women’s organizations plan to undertake to make the state’s authorities
adopt the bill on equal status of women and men as well as the bill on
preventing and combating domestic violence2. The training was
organized by KARAT with its Belarusian member organization Public
Association of “Women’s Independent Democratic Movement” (PA
‘WIDM’).
One of the training’s results was a development of the resource material
„Legal measures to protect women from violence and discrimination„
which is a relevant source of knowledge about the United Nations,
European Union and Polish anti-discrimination and anti-violence
1 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women
2 "The Global Gender Gap Report 2012". World Economic Forum.
158
legislation in a context of gender. It focuses on EU directives prohibiting
gender discrimination, the recommendations of Council of Europe and
United Nations on model regulations concerning counteracting domestic
violence as well as Polish regulations aimed at protecting women from
discrimination which can be found in the Labour Code, Polish
Constitution, Anti-discrimination Act and Law on Domestic Violence1.
Background
Despite the fact that Belarus is a State Party to the United Nations
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)2 and is obliged to implement its provisions, the
Government does not show enough commitment and proves to be rather
reluctant in taking pro-active steps to advance the situation of women.
Until now, the Belorussian authorities have not adopted the basic legal
provisions aimed at protecting fundamental women’s rights, such as
prohibition of discrimination and law on preventing and eradicating
domestic violence.
Although the adoption of these laws has been incorporated in the
National Plan of Action on Gender Equality (NPAGE), there is a
justified concern that the authorities will not take pro-active steps to
facilitate these legislative processes. In other words, it seems hardly
possible that decision-makers would come up with relevant draft law
proposals on gender equality, as well as on domestic violence.
Thus the Public Association “Women’s Independent Democratic
Movement” (PA “WIDM”) from Minsk3, which is a coordinator of the
wider women’s rights defenders community in Belarus (Women’s
1 "The Global Gender Gap Report 2012". World Economic Forum.
2 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women
3 "Human Development Report". United Nations Development Programme. 2013
159
Human Rights Network – WHRN) aims at developing the draft laws and
lobby for their adoption. In order to facilitate these processes, the
capacity to formulate law provisions of PA “WIDM” and activists from
WHRN needs to be strengthened. There is a lot of expertise and
experience on developing and adopting such legislation in the Region,
that KARAT Coalition operates in (Central and Eastern Europe and
Central Asia), as the vast majority of the countries already have gone
through these processes, including Poland.
In Poland, the so called “anti-discrimination” 1law has been adopted in
December 2011 and the act on preventing and combating domestic
violence has been in force since 2005. Though these laws are far from
being perfect, civil society organizations were actively involved in both
legislative processes.
In this context, PA “WIDM” together with KARAT2 launched
cooperation aiming at strengthening the capacity of Belorussian
women’s rights advocates to develop draft law proposals on gender
equality and domestic violence. The goal of this cooperation is to utilize
the Polish experiences (successes but also failures) to facilitate the
positive legal changes in Belarus.
The situation of women’s rights defenders in Belarus
According to information received from the Public Association
“Women’s Independent Democratic Movement”3 (PA “WIDM”),
women’s rights movement has recently slowed down its institutional
development due to the struggles for keeping the legal status of
organizations. Moreover, the number of women’s organizations
1 "The Global Gender Gap Report 2012". World Economic Forum.
2 "Human Development Report". United Nations Development Programme. 2013
3 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women
160
decreased in recent years and there are only 32 women’s organizations
officially registered at the moment. This has obviously a negative impact
on women’s movement’s capacity to implement its mission and
influence the policy-making.
There is a clear tendency of the authorities to continue to worsen the
conditions for the functioning of the third sector, including the
restrictions related to receiving the foreign funding. As a result of such
policy, democratic NGOs, including women’s NGOs, have only limited
capacity to participate in public decision-making processes and are
deprived of the opportunity to implement their basic function –
representing the interests of citizens in relations with the state.
Discrimination against women in Belarus
Discrimination against women and violations of women’s human rights
are widely spread in all spheres of life in Belarus1. The CEDAW
Committee and other international human rights bodies have expressed
their concerns a number of times about the state’s failure to place high
priority on addressing women’s rights issues.
Lack of legal protection from gender-based discrimination2
In its last Concluding Observations, released after the reviewing session
of the State’s compliance with the CEDAW provisions in 2011, the
CEDAW Committee specifically highlighted the problem of “the
absence of a specific prohibition of discrimination against women in all
areas of life in national legislation, in line with article 1 and 2 of the
Convention”. It also noted “the absence of a law on gender equality” and
urged the State Party to adopt such legislation, ”including a clear
1 "Human Development Report". United Nations Development Programme. 2013.
2 The Global Gender Gap Report 2012". World Economic Forum
161
definition of all forms of discrimination against women, covering both
direct and indirect discrimination”.
The advancement of the status of women in Belarus will not be possible,
unless effective anti-discrimination legislation is put in place.
Violence against Women1
The prevalence of various forms of domestic violence against women
(physical, sexual, psychological, and economic)2 is one of the most acute
areas of women’s rights violations in Belarus. The country is falling
short of its international obligations to eradicate the phenomenon and
until now the problem of domestic violence has not been
comprehensively and adequately addressed. Most importantly, in Belarus
(unlike nearly all European countries) there is no specific law on
preventing and eradicating domestic violence. The need for the adoption
of such law has been included in the current National Plan of Action on
Gender Equality (NPAGE)3. Nonetheless, NPAGE is poorly resourced,
as well as given a low public profile, it is important in the context of
exerting the pressure for the actual adoption of the act on preventing and
combating domestic violence. The previous editions of NPAGE proved
to have only limited impact and many goals remained not to be
addressed. Thus a sustained advocacy of the Belarusian women’s rights
advocates, as well as international human rights institutions is needed to
facilitate the positive changes.
All the activities within the project „Mobilization for the enhanced legal
protection of women’s rights in Belarus” have been possible thanks to
financial support of the Embassy of the Kingdom of the Netherlands.
1 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women
2 The Global Gender Gap Report 2012". World Economic Forum
3 Human Development Report". United Nations Development Programme. 2013
162
163
2.20 LEGAL PROTECTION OF WOMEN IN USA:
The U.S. Congress has passed two main laws related to violence against
women, the Violence Against Women Act and the Family Violence
Prevention and Services Act. The Violence Against Women Act
(VAWA) was the first major law to help government agencies and
victim advocates work together to fight domestic violence, sexual
assault, and other types of violence against women. It created new
punishments for certain crimes and started programs to prevent violence
and help victims1. Over the years, the law has been expanded to provide
more programs and services. Currently, some included items are:
(i) Violence prevention programs in communities
(ii) Protections for victims who are evicted from their homes because
of events related to domestic violence or stalking
(iii) Funding for victim assistance services like rape crisis centers and
hotlines Programs to meet the needs of immigrant women and
women of different races or ethnicities
(iv) Programs and services for victims with disabilities
(v) Legal aid for survivors of violence
(vi) Services for children and teens
The National Advisory Committee on Violence Against Women works
to help promote the goals and vision of VAWA. The committee is a joint
effort between the U.S. Department of Justice and the U.S. Department
of Health and Human Services. Examples of the committee's efforts
include the Community Checklist initiative to make sure each
1 Human Development Report". United Nations Development Programme. 2013
164
community has domestic violence programs and the Toolkit to End
Violence Against Women1, which has chapters for specific audiences.
The Family Violence Prevention and Services Act2
The Family Violence Prevention and Services Act (FVPSA) provide the
main federal funding to help victims of domestic violence and their
dependents (such as children). Programs funded through FVPSA provide
shelter and related help. They also offer violence prevention activities
and try to improve how service agencies work together in communities.
FVPSA works through a few main ways:
Formula Grants. This money helps states, territories, and tribes
create and support programs that work to help victims and
prevent family violence. The amount of money is determined by
a formula based partly on population. The states, territories, and
tribes distribute the money to thousands of domestic violence
shelters and programs.
The National Domestic Violence Hotline. This is a 24-hour,
confidential, toll-free hotline. Hotline staff connects the caller to
a local service provider. Trained advocates provide support,
information, referrals, safety planning, and crisis intervention in
more than 170 languages to hundreds of thousands of domestic
violence victims each year.
The Domestic Violence Prevention Enhancements and
Leadership Through Alliances (DELTA) Program. Like many
public health problems, intimate partner violence is not simply
an individual problem — it is a community problem. DELTA
1 The Global Gender Gap Report 2012". World Economic Forum
2 Human Development Report". United Nations Development Programme. 2013
165
supports local programs that teach people ways to prevent
violence.
166
2.21 LEGAL PROTECTION OF WOMEN IN AUSTRALIA:
Women's rights are not fully protected in Australia. Australia's Sex
Discrimination Act 1984 (SDA)1 does not adequately address systemic
discrimination or promote substantive equality – there is no general
prohibition on sex discrimination; the burden for addressing sex
discrimination is on individual complainants; intersectional
discrimination is not adequately addressed; and exemptions to the Act,
such as those for religious institutions, perpetuate unfair and
unreasonable discrimination against women.
Protection from discrimination against women in the workforce remains
inadequate, particularly in the areas of pregnancy and family
responsibilities. Proposed changes to the SDA2, which will improve
protections against sexual harassment, and discrimination on the basis of
breastfeeding and family responsibilities, are welcome but further
improvements are needed, such as those recommended in the 2008
Senate Committee Inquiry into the SDA. The Australian Government
has committed to consolidating and harmonising federal anti-
discrimination law into a single Act and to considering the
unimplemented Inquiry recommendations as part of this process, but it is
not yet clear how this will happen.
Inequality in business and the workplace
Women remain significantly underrepresented on boards and at senior
management level. In 2010, only 8.4% of directors of the largest 200
publicly listed companies in Australia and 33.4% of government boards
are women. Australia has recently introduced a new gender diversity
target of 40% representation for both women and men on Australian 1 The Global Gender Gap Report 2012". World Economic Forum
2 Human Development Report". United Nations Development Programme. 2013
167
Government boards. However the target of 40% applies when looking at
the total number of women and men across all Australian Government
boards1 – it does not address representation on individual government
boards and may therefore have little impact.
The gender pay gap continues to widen, with women earning 82 cents in
the male dollar (the biggest gap since 1994), and the gap is as big as 35%
in some industries. The gender pay gap affects current incomes, living
standards and the capacity of women to save for retirement. The report
of the 2008-09 Parliamentary Committee Inquiry into pay equity,
making it Fair, made a large number of recommendations to which the
Government has not yet responded.
Violence Against Women
High rates of violence against women remain a major issue, with almost
one-in-three Australian women experiencing physical violence and
almost one-in-five women experiencing sexual violence in their
lifetime2. The government-appointed National Council to Reduce
Violence Against Women and Children delivered its report in April
2009. In August 2010, the Australian Government released a draft
National Plan to Reduce Violence against Women and Children, but this
has yet to be implemented fully.
Aboriginal and Torres Strait Islander women experience horrific levels
of violence and are 35 times more likely to be hospitalised as a result of
spousal or partner violence than non-Indigenous women. Violence
against Aboriginal and Torres Strait Islander women is associated with a
number of factors, including racism, dispossession, disadvantage and
poor living conditions. Australia provides funding to Aboriginal and 1 Human Development Report". United Nations Development Programme. 2013
2 The Global Gender Gap Report 2012". World Economic Forum
168
Torres Strait Islander Legal Services, however Aboriginal and Torres
Strait Islander women experience difficulties in accessing and gaining
representation from these services. Australia has also funded family
violence prevention legal services to provide services to Aboriginal and
Torres Strait Islander people, however these services are not available in
all parts of Australia, including urban areas, and are not adequately
funded for law reform and policy development work.
The needs of particular women
Women from different population groups experience particular
difficulties. There is limited access to family violence and sexual assault
services in rural and remote areas. Women from culturally and
linguistically diverse backgrounds face difficulties in reporting violence
and accessing culturally appropriate accommodation. Violence against
women with disabilities often goes undetected, unreported or
uninvestigated, and there is a lack of access to appropriate services1,
including crisis accommodation, for women with disabilities. Violence
against women identifying as lesbian, bisexual, transgender, transsexual
or intersex within relationships often goes unacknowledged by national
anti-violence strategies. Aboriginal and Torres Strait Islander women
also experience high rates of violence.
Three major government-commissioned reports have found that the
family law system does not respond effectively to issues of family
violence. As part of its election platform, the Australian Labor Party
committed to amending legislation responding to these reports but has
not done so since being re-elected.
1 Human Development Report". United Nations Development Programme. 2013
169
The CEDAW Action Plan, prepared by YWCA with Women's Legal
Services NSW on behalf of a coalition of NGOs setting out what the
Australian and State and Territory Governments should do to put into
action the UN's recommendations on women's human rights in Australia,
can be found along with CEDAW's Review of Australia on the resources
page of this site.
What the UN Human Rights Council recommended in the Universal
Periodic Review1 In January 2011 Australia was reviewed by the UN
Human Rights Council2 during the Universal Periodic Review (or UPR)
(a process whereby the human rights performance of all UN member
states is reviewed by other states). In June 2011 Australia provided its
response to the 145 recommendations made by the Human Rights
Council.
The Government has accepted over 90 per cent of the recommendations
and has committed to incorporating the recommendations it has accepted
into the National Human Rights Action Plan.
In relation to women's rights, the Human Rights Council made a number
of relevant recommendations.
1 Human Development Report". United Nations Development Programme. 2013
2 The Global Gender Gap Report 2012". World Economic Forum
170
2.22 LEGAL PROTECTION OF WOMEN IN SOUTH AFRICA:
Over the past decade South Africa has ratified the main international and
regional women’s rights protection instruments; and national statutory
laws tend to respect the principle of equality between women and men.
Yet, the continued application of discriminatory customary laws and
persistent patriarchal traditions lead to widespread violations of women’s
human rights. The Coalition of the campaign remains particularly
concerned about1: discrimination within the family; violence against
women, including trafficking; unequal access to property; discrimination
in employment; and access to health services.
Some positive developments:
In addition to the ratification of all the main women’s rights protection
instruments, the Coalition of the Campaign acknowledges several other
developments in recent years concerning women’s rights2:
The adoption of the Criminal Law (Sexual Offences)
Amendment Act 2007 which modifies the definition of consent
and the evidential requirements for proving rape (including
abolition of the cautionary rule against complainants’ evidence
and providing that no negative inference can be drawn from a
delay in reporting rape)3.
The adoption of the Criminal Law (Sentencing) Amendment Act
2007, which establishes minimum sentences for rape. This
amendment was intended in particular to prevent courts failing to
impose minimum sentences on the basis of absence of physical
1 "Human Development Report". United Nations Development Programme. 2013
2Bhe and Others v Magistrate, Khayelitsha and Others ( commission for gender equality as Amicaus Curiae) ; Shibi v
Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 (SA) 580 (CC) 3 The Global Gender Gap Report 2012". World Economic Forum.
171
injuries, the “cultural beliefs” of the perpetrator, or the behaviour
of the victims or her relationship to the perpetrator.
The adoption of National Instructions for Police on Sexual
Offences, which sets out how police investigations should be
conducted in such cases.
Concerning representation of women in parliament, following the
2009 parliamentary elections, 178 out of a total of 400 members
of the lower house are women (44.5%). In the upper house, 16 of
54 members are women (29.6%). At ministerial level and deputy
minister level respectively 42% and 39% are women1.
But discrimination and violence persist2:
South Africa has a hybrid legal system composed of statutory and
customary law. Laws protecting women’s rights are ineffectively
implemented, due to lack of training of law enforcement personnel,
general lack of awareness of women’s human rights and generalised
impunity for violations.
Discrimination in the family3:
Legally both civil and customary marriages are recognised. Religious
marriages have been recognised by the courts and laws recognising such
marriages are currently under consideration. Under customary law,
polygamy is authorized (although it is rarely practised). Indeed, the
President, Jacob Zuma, whose role is to guarantee the application of the
Constitution, which provides for equality between men and women,
openly defends polygamy and married his fifth wife in 2010. The
Recognition of Customary Marriages act requires a court application if a
1 Human Development Report". United Nations Development Programme. 2013.
2Ref: Protocol to the African charter on human and peoples' rights on the rights of women in Africa
3 The Global Gender Gap Report 2012". World Economic Forum.
172
spouse in an existing customary marriage wants to take on a new wife.
However, the need to register customary marriages is not well-known
and many women within customary marriages do not know about their
rights as outlined in the new legislation.
Violence
Despite the adoption of specific legislation to protect women from
domestic violence, including marital rape, (Domestic Violence Act
1998), such violence remains widespread. The implementation of the law
is curtailed, due to deeply rooted social attitudes which condone violence
against women, lack of resources, and inadequate training of doctors,
police and court personnel1. Efforts undertaken by the government,
including the financing of shelters for victims and training for police,
have so far proved inadequate. South Africa has the highest recorded
incidence of rape in the world. Over a nine month period, during 2007-
2008, 36,190 complaints of rape were recorded by the police.
Yet, the large majority of rapes committed go unreported. Reported
cases are generally not effectively investigated and prosecuted, in part
due to lack of training of law enforcement officials2. According to a
2008 study, only 4.1% of reported cases result in convictions. The
government abolished specialist sexual offences units in favour of a
decentralized approach to the investigation of these cases. This has led to
deterioration in how rape cases are dealt with by the police3.
In 2009, the Minister of Police announced government’s intention to
reverse this decision but this has not been implemented. There are
extensive reports of rape, sexual abuse, sexual harassment and assaults
1 Human Development Report". United Nations Development Programme. 2013.
2 The Global Gender Gap Report 2012". World Economic Forum.
3 Ref: Protocol to the African charter on human and peoples' rights on the rights of women in Africa
173
of girls at school by teachers, students, and other persons in the school
community. Although the law requires schools to disclose sexual abuse
to the authorities; administrators often conceal sexual violence or delay
disciplinary action. Violence against those accused of witchcraft occurs,
especially amongst elderly women. There have been reports of women
accused of witchcraft being driven from their villages in rural
communities, assaulted, exiled, and in some cases, murdered1.
The Children’s Act 20052 (signed into law in 2008) prohibits trafficking
of children, and the new Sexual Offences Act of 2007 prohibits any
trafficking for sexual purposes. The Prevention of Trafficking Bill 3is
currently at parliamentary stage and aims to comply with government’s
international obligations in relation to trafficking. The precise extent of
trafficking operations in South Africa is unknown.
1 "The Global Gender Gap Report 2012". World Economic Forum.
2 Human Development Report". United Nations Development Programme. 2013.
3 Ref: Protocol to the African charter on human and peoples' rights on the rights of women in Africa
174
3
Legal
Protection of
Women in
India
175
3.1 LEGAL PROTECTION OF WOMEN IN INDIA:
The principle of gender equality is enshrined in the Indian Constitution
in its Preamble, Fundamental Rights, Fundamental Duties and Directive
Principles. The Constitution not only grants equality to women, but also
empowers the State to adopt measures of positive discrimination in
favour of women. Within the framework of a democratic polity, our
laws, development policies, Plans and programmes have aimed at
women’s advancement in different spheres. India has also ratified
various international conventions and human rights instruments
committing to secure equal rights of women. Key among them is the
ratification of the Convention on Elimination of All Forms of
Discrimination against Women (CEDAW) in 1993.
"Ratifying CEDAW remains among the unfinished businessof the Civil
Rights movement."
- - Dorothy I. Height
April 13, 2010
The Constitution of India not only grants equality to women but also
empowers the State to adopt measures of positive discrimination in
favour of women for neutralizing the cumulative socio economic,
education and political disadvantages faced by them. Fundamental
176
Rights, among others, ensure equality before the law and equal
protection of law; prohibits discrimination against any citizen on grounds
of religion, race, caste, sex or place of birth, and guarantee equality of
opportunity to all citizens in matters relating to employment. Articles
14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of
specific importance in this regard.
Constitutional Privileges1
i. Equality before law for women (Article 14)
ii. The State not to discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any of them (Article
15 (i))
iii. The State to make any special provision in favour of women and
children (Article 15 (3))
iv. Equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State (Article
16)
v. The State to direct its policy towards securing for men and women
equally the right to an adequate means of livelihood (Article
39(a)); and equal pay for equal work for both men and women
(Article 39(d))
vi. To promote justice, on a basis of equal opportunity and to provide
free legal aid by suitable legislation or scheme or in any other
way to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities (Article
39 A)
vii. The State to make provision for securing just and humane
conditions of work and for maternity relief (Article 42)
1 Ref : THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 NO. 43 OF 2005 ,13th September, 2005
177
viii. The State to promote with special care the educational and
economic interests of the weaker sections of the people and to
protect them from social injustice and all forms of exploitation
(Article 46)
ix. The State to raise the level of nutrition and the standard of living
of its people (Article 47)
x. To promote harmony and the spirit of common brotherhood
amongst all the people of India and to renounce practices
derogatory to the dignity of women (Article 51(A) (e))
xi. Not less than one-third (including the number of seats reserved for
women belonging to the Scheduled Castes and the Scheduled
Tribes) of the total number of seats to be filled by direct election
in every Panchayat to be reserved for women and such seats to be
allotted by rotation to different constituencies in a Panchayat
(Article 243 D(3))
xii. Not less than one- third of the total number of offices of
Chairpersons in the Panchayats at each level to be reserved for
women (Article 243 D (4))
xiii. Not less than one-third (including the number of seats reserved
for women belonging to the Scheduled Castes and the Scheduled
Tribes) of the total number of seats to be filled by direct election
in every Municipality to be reserved for women and such seats to
be allotted by rotation to different constituencies in a Municipality
(Article 243 T (3))
xiv. Reservation of offices of Chairpersons in Municipalities for the
Scheduled Castes, the Scheduled Tribes and women in such
178
manner as the legislature of a State may by law provide (Article
243 T (4))1
1 Ref : Collected by the All India Christian Council,
179
3.2 LEGAL PROVISIONS
To uphold the Constitutional mandate, the State has enacted various
legislative measures intended to ensure equal rights, to counter social
discrimination and various forms of violence and atrocities and to
provide support services especially to working women.
Although women may be victims of any of the crimes such as ‘Murder’,
‘Robbery’, ‘Cheating’ etc, the crimes, which are directed specifically
against women, are characterized as ‘Crime against Women’. These are
broadly classified under two categories1.
1) The Crimes Identified Under the Indian Penal Code (IPC)
i. Rape (Sec. 376 IPC)
ii. Kidnapping & Abduction for different purposes
(Sec. 363-373)
iii. Homicide for Dowry, Dowry Deaths or their attempts
(Sec. 302/304-B IPC)
iv. Torture, both mental and physical (Sec. 498-A IPC)
v. Molestation (Sec. 354 IPC)
vi. Sexual Harassment (Sec. 509 IPC)
vii. Importation of girls (up to 21 years of age)
2) The Crimes identified under the Special Laws (SLL)
Although all laws are not gender specific, the provisions of law
affecting women significantly have been reviewed periodically
and amendments carried out to keep pace with the emerging
requirements.
1 Ref : Source: http://indiacode.nic.in/fullact1.asp?tfnm=200543 Download date: June 5, 2013
180
Some acts which have special provisions to safeguard women and
their interests are1:
i) The Employees State Insurance Act, 1948
ii) The Plantation Labour Act, 1951
iii) The Family Courts Act, 1954
iv) The Special Marriage Act, 1954
v) The Hindu Marriage Act, 1955
vi) The Hindu Succession Act, 1956 with amendment in 2005
vii) Immoral Traffic (Prevention) Act, 1956
viii) The Maternity Benefit Act, 1961 (Amended in 1995)
ix) Dowry Prohibition Act, 1961
x) The Medical Termination of Pregnancy Act, 1971
xi) The Contract Labour (Regulation and Abolition) Act, 1976
xii) The Equal Remuneration Act, 1976
xiii) The Prohibition of Child Marriage Act, 2006
xiv) The Criminal Law (Amendment) Act, 1983
xv) The Factories (Amendment) Act, 1986
xvi) Indecent Representation of Women (Prohibition) Act, 1986
xvii) Commission of Sati (Prevention) Act, 1987
xviii) The Protection of Women from Domestic Violence Act, 2005
1 Ref : Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319‐5614 Volume 2, No.4,
April 2013
181
3.3 SPECIAL INITIATIVES FOR WOMEN
i. National Commission for Women1
In January 1992, the Government set-up this statutory body with a
specific mandate to study and monitor all matters relating to the
constitutional and legal safeguards provided for women, review the
existing legislation to suggest amendments wherever necessary, etc.
ii. Reservation for Women in Local Self -Government2
The 73rd Constitutional Amendment Acts passed in 1992 by Parliament
ensure one-third of the total seats for women in all elected offices in
local bodies whether in rural areas or urban areas.
iii. The National Plan of Action for the Girl Child (1991-2000)
The plan of Action is to ensure survival, protection and development of
the girl child with the ultimate objective of building up a better future for
the girl child.
iv. National Policy for the Empowerment of Women, 2001
The Department of Women & Child Development in the Ministry of
Human Resource Development has prepared a “National Policy for the
Empowerment of Women” in the year 2001. The goal of this policy is to
bring about the advancement, development and empowerment of
women.
1 Def:The apex national level organization of India with the mandate of protecting and promoting the interests of
women. 2 The Women’s Reservation Bill [The Constitution (108th Amendment) Bill] is one of the longest pending legislations in
the Indian Parliament, It was first introduced in 1996, and has remained enmeshed in controversy ever since. The Bill seeks to reserve 33.33 per cent seats in the Lok Sabha or the Lower House of Indian Parliament and in the State Legislative Assemblies for women, on the lines of the 73rd and 74th Constitutional Amendments which reserved the same percentage of seats for women in rural and urban local bodies respectively. Though it has been introduced in Parliament several times since then, the Bill could not be passed because of lack of political consensus.
182
3.4 PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT 2005:
The Protection of Women from Domestic Violence Act 2005 was
brought into force by the Indian government from October 26, 2006. The
Act was passed by the Parliament in August 2005 and assented to by the
President on 13 September 2005. As of November 2007, it has been
ratified by four of twenty-eight state governments in India; namely
Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Odisha. Of about 8,000
criminal cases registered all over India under this act, Rajasthan had
3440 cases; Kerala had 1,028 cases, while Punjab had 172 cases
registered1.
The Protection of Women from Domestic Violence Act 2005 differs
from the earlier law, Section 498A of the Indian Penal Code, in that it
explicitly defines domestic violence in addition to dowry-related
cruelty2. Domestic violence is defined as follows:
For the purposes of this Act, any conduct of the respondent shall
constitute domestic violence if he,—
i. Habitually assaults or makes the life of the aggrieved person
miserable by cruelty of conduct even if such conduct does not
amount to physical ill-treatment3; or
ii. Forces the aggrieved person to lead an immoral life; or
iii. Otherwise injures or harms the aggrieved person.
1 Ref : Dewan, Anjali. "Proceeding of Strategising Gender Mainstreaming Workshop held on 6th March, 2013 at H.P.
Institute Of Public Administration (HIPA), Fairlawn (Shimla)". Himachal Pradesh Institute of Public Administration. p. 5. Retrieved 4 October 2013. 2 Ref: Datta, Damayanti (4 December 2006). "The new laws of marriage". India Today. Retrieved 29 March 2013.
3 Ref : Sandhu, Veenu (5 November 2006). "Men running scared now". Hindustan Times. Retrieved 4 October 2013.
183
Nothing contained in clause (c) of sub-section (1) shall amount to
domestic violence if the pursuit of course of conduct by the respondent
was reasonable for his own protection or for the protection of his or
another's property.
Primarily meant to provide protection to the wife or female live-in
partner from domestic violence at the hands of the husband or male live-
in partner or his relatives, the law also extends its protection to women
living in a household such as sisters, widows or mothers. Domestic
violence under the act includes actual abuse or the threat of abuse
whether physical, sexual, verbal, emotional or economic. Harassment by
way of unlawful dowry demands to the woman or her relatives would
also be covered under this definition1.
The salient features of the Protection from Domestic Violence Act, 2005
are as follows:
The Act seeks to cover those women who are or have been in a
relationship with the abuser where both parties have lived together in a
shared household and are related by consanguinity, marriage or a
relationship in the nature of marriage, or adoption; in addition
relationship with family members living together as a joint family are
also included. Even those women who are sisters, widows, mothers,
single women, or living with the abuser are entitled to get legal
protection under the proposed Act.
"Domestic violence" includes actual abuse or the threat of abuse that is
physical, sexual, verbal, emotional and economic. Harassment by way of
unlawful dowry demands to the woman or her relatives would also be
covered under this definition. 1 Ref : Speech of the Hon'ble President of India, at the National Conference of Lady Lawyers and Lady Teachers, at
Yavatmal". Press Information Bureau, Government of India. Retrieved 4 October 2013.
184
One of the most important features of the Act is the woman’s right to
secure housing. The Act provides for the woman’s right to reside in the
matrimonial or shared household, whether or not she has any title or
rights in the household. This right is secured by a residence order, which
is passed by a court. These residence orders cannot be passed against
anyone who is a woman.
The other relief envisaged under the Act is that of the power of the court
to pass protection orders that prevent the abuser from aiding or
committing an act of domestic violence or any other specified act,
entering a workplace or any other place frequented by the abused,
attempting to communicate with the abused, isolating any assets used by
both the parties and causing violence to the abused, her relatives and
others who provide her assistance from the domestic violence.
The draft Act provides for appointment of Protection Officers and NGOs
to provide assistance to the woman w.r.t medical examination, legal aid,
safe shelter, etc.
The Act provides for breach of protection order or interim protection
order by the respondent as a cognizable and non-bailable offence
punishable with imprisonment for a term which may extend to one year
or with fine which may extend to twenty thousand rupees or with both.
Similarly, non-compliance or discharge of duties by the Protection
Officer is also sought to be made an offence under the Act with similar
punishment.1
1 Ref : Adams, Adrienne; Sullivan, Bybee, Greeson (May 2008). "Development of the Scale of Economic Abuse".
Violence Against Women 14 (5): 563–588.
185
While "economic abuse1" includes deprivation of all or any economic or
financial resources to which the victim is entitled under any law or
custom whether payable under an order of a Court or otherwise or which
the victim requires out of necessity including, but not limited to,
household necessities for the aggrieved person and her children, if any,
stridhan2, property, jointly or separately owned by her, payment of rental
related to the shared household and maintenance and 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 victim has an interest or is entitled to use by virtue
of the domestic relationship or which may be reasonably required by the
victim or her children or her stridhan or any other property jointly or
separately held by the victim and prohibition or restriction to continued
access to resources or facilities which the victim is entitled to use or
enjoy by virtue of the domestic relationship including access to the
shared household, "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 victim and includes
assault, criminal intimidation and criminal force.
Men's organizations such as the Save Indian Family Foundation have
opposed the law, arguing that it might be misused by women during
disputes.
Renuka Chowdhury, the Indian Minister for Women and Child
Development, agreed in a Hindustan Times article that "an equal gender
1 Def : Economic abuse is a form of abuse when one intimate partner has control over the other partner's access to
economic resources,which diminishes the victim's capacity to support him/herself and forces him/her to depend on the perpetrator financially. 2 Def : tridhan is a traditional practice that was primarily meant to provide women with some level of economic
security in adverse situations like divorce, widowhood, etc.
186
law would be ideal. But there is simply too much physical evidence to
prove that it is mainly the woman who suffers at the hands of man".
Former Attorney General of India Soli Sorabjee1 has also criticized the
broad definition of verbal abuse in the act. According to the ex-president
of India, Pratibha Devisingh Patil, and “Another disquieting trend has
been that women themselves have not been innocent of abusing women.
At times women have played an unsavoury, catalytic role in perpetrating
violence whether against the daughter-in-law, the mother-in-law or
female domestic helps. Instances exist whereby protective legal
provisions for the benefit of women have been subjected to distortion
and misuse to wreak petty vengeance and to settle scores. Some surveys
have concluded that 6 to 10 percent of dowry complaints are false and
were registered primarily to settle scores. It is unfortunate if laws meant
to protect women get abused as instruments of oppression. The bottom-
line therefore, is the fair invocation of legal provisions and their
objective and honest implementation."
1 Soli Jehangir Sorabjee, AM is an Indian jurist and former Attorney-General of India. He has been honored with Padma
Vibhushan for his defense of the freedom of expression and the protection of human rights
187
3.5 STATE LEGAL SERVICES IN INDIA:
Hon’ble Mr. Justice S.H. Kapadia, the Chief Justice of India is the
Patron-in-Chief and Hon’ble Mr. Justice Altamas Kabir, Judge, Supreme
Court of India is the Executive Chairperson of the Authority. NALSA1 is
housed at 12/11, Jam Nagar House, New Delhi-110011.
In every State, State Legal Services Authority has been constituted to
give effect to the policies and directions of the NALSA and to give free
legal services to the people and conduct Lok Adalats2 in the State. The
State Legal Services Authority is headed by Hon’ble the Chief Justice of
the respective High Court who is the Patron-in-Chief of the State Legal
Services Authority.
In every District, District Legal Services Authority has been constituted
to implement Legal Services Programmes in the District. The District
Legal Services Authority is situated in the District Courts Complex in
every District and chaired by the District Judge of the respective district.
1 The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to
provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes. 2 Lok Adalat is a system of alternative dispute resolution developed in India. It roughly means "People's court". India
has had a long history of resolving disputes through the mediation of village elders. The system of Lok Adalats is an improvement and is based on the principles of Mahatma Gandhi. Lok Adalat is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee. They are held periodically for exercising such jurisdiction as they determine. These are usually presided over by retired judges, social activists, or other members of the legal profession. The Lok Adalats can deal with all Civil Cases, Matrimonial Disputes, Land Disputes, Partition/Property Disputes, Labour Disputes etc., and compoundable criminal Cases. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is an enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 because it is a judgement by consent. All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court. It is also important that decision should be justifiable.
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3.6 WOMEN-SPECIFIC LEGISLATIONS1
1. The Immoral Traffic (Prevention) Act, 1956 2
2. The Dowry Prohibition Act, 1961 3(28 of 1961)
(Amended in 1986)
3. The Indecent Representation of Women (Prohibition) Act, 19864
4. The Commission of Sati (Prevention) Act, 1987 5 (3 of 1988)
5. Protection of Women from Domestic Violence Act, 2005 6
6. The Sexual Harassment of Women at Workplace
(PREVENTION, PROHIBITION and REDRESSAL) Act, 2013
1 Laws related to Women in India, ref. National commission for women in India.
2 The Immoral Traffic (Prevention) Act or PITA is a 1986 amendment of legislation passed in 1956 as a result of the
signing by India of the United Nations' declaration in 1950 in New York on the suppression of trafficking. The act, then called the All India Suppression of Immoral Traffic Act (SITA), was amended to the current law. The laws were intended as a means of limiting and eventually abolishing prostitution in India by gradually criminalising various aspects of sex work. 3 Introduced and taken up by then Indlaw minister Ashoke Kumar Sen, this Act prohibits the request, payment or
acceptance of a dowry, "as consideration for the marriage", where "dowry" is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, a fine of up to Rs. 15000 or the amount of dowry (whichever is higher), or imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states. 4 The Indecent Representation of Women (Prohibition) Act was passed by Indian parliament in 1986. This prohibits
indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner. In January 2013, three Punjabi singers, Jazzy B, Yo Yo Honey Singh and Daljit Dosanjh were arrested in India under this act for indecent representation of women through their songs 5 Sati (Prevention) Act, 1987 is law enacted by Government of Rajasthan in 1987. It became a federal legislation with
the enactment of The Commission of Sati (Prevention) Act, 1987 by Government of India in 1988. The Act seeks to prevent Sati practice or the voluntary or forced burning or burying alive of widows, and to prohibit glorification of this action through the observance of any ceremony, the participation in any procession, the creation of a financial trust, the construction of a temple, or any actions to commemorate or honor the memory of a widow who committed sati. Sati was first banned under Bengal Sati Regulation, 1829. 6 The Protection of Women from Domestic Violence Act 2005 was brought into force by the Indian government from
October 26, 2006. The Act was passed by the Parliament in August 2005 and assented to by the President on 13 September 2005. As of November 2007, it has been ratified by four of twenty-eight state governments in India; namely Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Odisha. Of about 8,000 criminal cases registered all over India under this act, Rajasthan had 3440 cases, Kerala had 1,028 cases, while Punjab had 172 cases registered
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3.7 WOMEN-RELATED LEGISLATIONS
1. The Indian Penal Code,1860 1
2. The Indian Evidence Act, 1872
3. The Indian Christian Marriage Act, 1872 (15 of 1872)
4. The Married Women’s Property Act, 1874 (3 of 1874)
5. The Guardians and Wards Act,1890
6. The Workmen’s Compensation Act, 1923
7. The Trade Unions Act 1926
8. The Child Marriage Restraint Act, 1929 (19 of 1929)
9. The Payments of Wages Act, 1936
10. The Payments of Wages (Procedure) Act, 1937
11. The Muslim Personal Law (Shariat) Application Act, 1937
12. Employers Liabilities Act 1938
13. The Minimum Wages Act, 1948
14. The Employees’ State Insurance Act,1948
15. The Factories Act, 1948
16. The Minimum Wages Act, 1950
1 Indian Penal Code (IPC, Hindi: ) is the main criminal code of India. It is a comprehensive code, intended to cover all
substantive aspects of criminal law. It was drafted in 1860 and came into force in British India during the early British Raj period in 1862. However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s. The Code has since been amended several times and is now supplemented by other criminal provisions. In the state of Jammu and Kashmir, the IPC is known as Ranbir Penal Code (RPC). After the departure of the British, the Indian Penal Code was inherited by Pakistan as well, much of which was formerly part of British India, and there it is now called the Pakistan Penal Code. Even after the independence of Bangladesh from Pakistan, it continued in force there. It was also adopted by the British colonial authorities in Burma, Ceylon (now Sri Lanka), the Straits Settlements (now part of Malaysia), Singapore and Brunei, and remains the basis of the criminal codes in those countries.
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17. The Plantation Labour Act, 1951 (amended by Acts Nos. 42 of
1953, 34 of 1960, 53 of1961, 58 of 1981and 61 of 1986)
18. The Cinematograph Act, 1952
19. The Mines Act 1952
20. The Special Marriage Act, 1954
21. The Protection of Civil Rights Act 1955
22. The Hindu Marriage Act, 1955 (28 of 1989)
23. The Hindu Adoptions & Maintenance Act, 1956
24. The Hindu Minority & Guardianship Act, 1956
25. The Hindu Succession Act, 1956
26. The Maternity Benefit Act, 1961 (53 of 1961)
27. The Beedi & Cigar Workers (Conditions of Employment) Act,
1966
28. The Foreign Marriage Act, 1969 (33 of 1969)
29. The Indian Divorce Act, 1969 (4 of 1969)
30. The Contract Labour (Regulation & Abolition) Act, 1970
31. The Medical Termination of Pregnancy Act, 1971 (34 of 1971)
32. Code of Criminal Procedure, 1973
33. The Equal Remuneration Act, 1976
34. The Bonded Labour System (Abolition) Act, 1979
35. The Inter-State Migrant Workmen (Regulation of Employment
and Conditions of Service) Act, 1979
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36. The Family Courts Act, 1984
37. The Muslim women Protection of Rights on Dowry Act 1986
38. Mental Health Act, 1987
39. National Commission for Women Act, 1990 (20 of 1990)
40. The Protection of Human Rights Act, 1993 [As amended by the
Protection of Human Rights (Amendment) Act, 2006–No. 43 of
2006]
41. Juvenile Justice Act, 2000
42. The Child Labour (Prohibition & Regulation) Act
43. The Pre-Natal Diagnostic Techniques (Regulation and
Prevention of misuse) Act 1994
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3.8 THE IMMORAL TRAFFIC (PREVENTION) ACT, 19561:
The Immoral Traffic (Prevention) Act or PITA is a 1986 amendment of
legislation passed in 1956 as a result of the signing by India of the
United Nations' declaration in 1950 in New York on the suppression of
trafficking. The act, then called the All India Suppression of Immoral
Traffic Act (SITA), was amended to the current law. The laws were
intended as a means of limiting and eventually abolishing prostitution in
India by gradually criminalising various aspects of sex work.
The main points of the Act are as follows:
1. Sex Workers: A prostitute who seduces or solicits shall be
prosecuted. Similarly, call girls cannot publish phone numbers to
the public. (imprisonment up to 6 months with fine, point 8)
Sex worker also punished for prostitution near any public place
or notified area. (Imprisonment of up to 3 months with fine, point
7)
2. Clients: A client is guilty of consorting with prostitutes and can
be charged if he engages in sex acts with a sex worker within 200
yards of a public place or "notified area". (Imprisonment of up to
3 months, point 7) The client may also be punished if the sex
1 NOTES : This Brief has been developed on the basis of the Immoral Traffic (Prevention) Amendment Bill, 2006
introduced in Lok Sabha on May 22, 2006. The Bill has been referred to the Parliamentary Standing Committee on Human Resource Development (Chairperson: Shri Janardan Dwivedi) which is scheduled to submit its report within three months. The Suppression of Immoral Traffic in Women and Girls Act, 1956 was renamed as the Immoral Traffic (Prevention) Act in 1986. The Act was amended to cover all persons, male or female, who are exploited sexually for commercial purposes. Fact Sheet on Prostitution and Trafficking in Human Being, April 2005, Ministry of Industry, Employment and Communications, Government of Sweden (see http://www.sweden.gov.se/content/1/c6/01/87/74/6bc6c972.pdf). Petra Ostergen, (2004), "Sexworkers Critique of Swedish Prostitution Policy," (see http://www.petraostergren.com/content/view/44/38).
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worker is below 18 years of age. (From 7 to 10 years of
imprisonment, whether with a child or a minor, point 7)
3. Pimps and Babus: Babus or pimps or live-in lovers who live off a
prostitute's earnings are guilty of a crime. Any adult male living
with a prostitute is assumed to be guilty unless he can prove
otherwise. (Imprisonment of up to 2 years with fine, point 4)
4. Brothel: Landlords and brothel-keepers can be prosecuted,
maintaining a brothel is illegal. (From 1 to 3 years imprisonment
with fine for first offence, point 3) Detaining someone at a
brothel for the purpose of sexual exploitation can lead to
prosecution. (Imprisonment of more than 7 years, point 6)
5. Procuring and trafficking: A person procures or attempts to
procure anybody are liable to be punished. Also a person who
moves a person from one place to another, (human trafficking),
can be prosecuted similarly. (From 3 to 7 years imprisonment
with fine, point 5)
6. Rescued Women: The government is legally obligated to provide
rescue and rehabilitation in a "protective home" for any sex
worker requesting assistance. (Point 21)
Public place in context of this law includes places of public religious
worship, educational institutions, hostels, hospitals etc.1 A "notified
1 Notes : On December 12, 2002, India became a signatory to the UN Convention against Transnational Organised
Crime, which includes the Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children (see Protocol at http://www.ohchr.org/english/law/pdf/protocoltraffic.pdf). The existing legal framework to combat trafficking includes the following. The Indian Penal Code, 1860: Sections 363, 363A, 366A, 366B, 367, 368, 370, 371, 372, 373, 374. These sections deal with kidnapping (including for begging, for marriage, and for procuring minor girl for illicit intercourse), slavery, buying and selling minors for prostitution, and unlawful compulsory labour.
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area" is a place which is declared to be "prostitution-free" by the state
government under the PITA. Brothel in context of this law is a place
which has two or more sex workers (2a). Prostitution itself is not an
offence under this law, but soliciting, brothels, madams and pimps are
illegal.
The Child Labour (Prohibition and Regulation) Act, 1986; The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979; The Bonded Labour System (Abolition) Act, 1976; The Contract Labour (Regulation and Abolition) Act, 1970; The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In 2003, over 600 sex workers in Chakla Bazar, Surat, were forcibly evicted from their homes by the police. Report of National Commission of Women - See more at: http://www.indiatogether.org/2006/oct/law-immoral.htm#sthash.JrUt4Rzf.dpuf
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3.9 THE DOWRY PROHIBITION ACT, 1961 1
The dowry prohibition act 1961 was enacted by Parliament in India on
20/05/1961 in whole country except Jammu & Kashmir. As per this act
giving and taking of dowry is prohibited.
The dowry is known as the property or any property that can be valued is
given (directly or indirectly) OR agreed to be given during the marriage
by one party to other party OR by one person to other person. This does
not include Dower or Mahr in the case of persons to whom the Muslim
Personal Law (Shariat) applies. This is applicable at or before or any
time after the marriage.
After the enactment of this law, dowry giver and receiver both will be
punished for imprisonment that will not be less than 5 years and a fine of
Rs 15,000/- or equal to the amount of such dowry whichever is more.
However, if court finds that imprisonment for the period less than 5
years is justified in special circumstances then same can be considered.
However, if presents given to the bride and bridegroom during the
marriage are excluded from the above dowry condition provided list of
the same is prepared as it is mentioned in the Dowry Act 1961.
As per this act, there is penalty for demanding dowry from the parents or
their relatives or guardian of bride or bridegroom. The penalty in such
case may be for imprisonment from 6 months to 2 years and fine of upto
Rs 10,000/- is applicable. However, in special circumstances, courts may
1 Def : The payment of a dowry gift, often financial, has a long history in many parts of the world. In India, the
payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498A of the Indian Penal Code. These laws were enacted to make it easier for the wife to seek redress from harassment by the husband's family. Anti-dowry laws have been criticized by men's rights groups, who accuse women and their families of misusing the laws. In India, there are civil laws, criminal laws and special legislative acts against the tradition of dowry. Someone accused of taking dowry is therefore subject to a multiplicity of legal processes.
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reduce the imprisonment below 6 months also. This is Section 4 of the
Dowry Act.1
As per the Dowry Act, the advertisement by either party for demanding
dowry in print media, electronic media or any other media is prohibited.
This is Section 4 A.2
1 Ref: Amend dowry law to stop its misuse, SC tells govt". The Times Of India. 17 August 2010.
2 Ref : Misuse forces a review of dowry law". Hindustan Times. 2011-02-28. Retrieved 2013-02-18.
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3.10 OTHER PROVISIONS :
If any agreement has been made between the two parties then that shall
be void and will not be applicable.
Every offence under this Act shall be non-cognizable, bailable and non-
compoundable. Thus a person/party found guilty shall have right to get
bail.
If dowry is received by a other person, who is not related to married
women, then that dowry should be handed over to the women (or her
heirs) within one to marriage if it was received before marriage. If dowry
was received during or after marriage then it should transferred within
one year to such receipt. If the dowry was received when the woman was
a minor then this should be transferred within one year after she has
attained the age of eighteen years.
This is Section 6 (1) If a person fails to transfer such property in
prescribed time limit, as stated in above para, then he shall be punishable
upto the period of six months or fine of Rs 5000/- Or both. But he has to
return such property even in case of punishment/fine.
This is section 6 (2) If a women, dies before receiving above mentioned
property then her heirs are entitled in the same way as she was within
time limit specified.
This is section 6 (3) State government may appoint as many Dowry
Prohibition Officers as it thinks fit for implementation of Dowry Act.
The jurisdiction of each such officer may be defined and power to be
exercised as the act. Such officer shall ensure complete implementation
of this act in true sense. Officers may collect evidences in case of
committing offense.
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The Central Government as well as State Government may, by
notification in the official Gazette, make rules for carrying out the
purposes of this Act. But both have separate powers to for making these
rules.
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3.11 THE INDECENT REPRESENTATION OF WOMEN
(PROHIBITION) ACT, 19861:
The Act punishes the indecent representation of Women , which 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. It states that no person shall publish
or cause to publish or cause to be published or arrange to take part in the
publication or exhibition of any advertisement which contains indecent
representation of women in any form. 'In the Act, 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.
The Amendment suggested by the National Commission for Women
suggests to amend the definition to “advertisement' includes any notice,
circular, label, poster, wrapper or other document and also includes any
visible representation made by means of any laser light, sound, smoke,
gas, fibre, optic electronic or other media” It states that 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. The Commission has also suggested the
addition of the word “Derogatory2” along with “indecent”.
3
1 Ref : The Indecent Representation of Women (Prohibition) Act was passed by Indian parliament in 1986. This
prohibits indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner.In January 2013, three Punjabi singers, Jazzy B, Yo Yo Honey Singh and Daljit Dosanjh were arrested in India under this act for indecent representation of women through their songs 2 Def : Showing a critical or disrespectful attitude.
3 Ref : http://wcd.nic.in/irwp.htm
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In Section 6 on Penalty, the words 'and with fine which may extend to
two thousand rupees' shall be substituted with the words 'and with fine
which may extend to ten thousand rupees' and the words 'in the event of
a second or subsequent conviction with imprisonment for a 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' shall be substituted with the words 'in the event of second or
subsequent conviction with imprisonment for a term of not less than six
months but which may extend to five years and also with a fine not less
than fifty thousand rupees but which may extend to five lakh rupees'.
In the Kamasutra Advertisement, Milind Soman and Madhu Sapre too
had faced similar mix of charges. Similar charges were raised against the
Editor of Anandabazar Patrika, Aveek Sarkar, and the Publisher in a trial
court in Kolkata relating to the reproduction of a nude photograph of
former tennis player Boris Becker and his fiancée in Sportsworld
magazine, published by the group in May 1993. According to the
National Crime Records Bureau claims a decrease of cases of Indecent
Representation of women -decreased by 46.5% (from 2,917 in 2005 to
1,562 in 2006). While it is Andhra Pradesh that has recorded 86.2
percent of cases at in the National level under the Act.In April 2006, a
Madurai court issued non-bailable warrants against Sen and Shilpa
Shetty for "posing in an obscene manner" in photographs published by a
Tamil newspaper. The report stated that the two actresses had failed to
comply with earlier summonses for the same reason, hence the issuance
of the warrants. The petitioner submitted that the paper had published
"very sexy blow-ups and medium blow-ups1" in its issues December
1 Ref : In April 2006, a Madurai court issued non-bailable warrants against Sen and Shilpa Shetty for "posing in an
obscene manner" in photographs published by the Tamil newspaper Dinakaran, owned by Sun Group.
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2005 and January 2006 issues, and which allegedly violated the Indecent
Representation of Women (Prohibition) Act 1986, Young Persons
(Harmful Publications) Act 1956, and the Indian Penal Code Section 292
(Sale of Obscene Books). The petitioner further demanded that the
images should be confiscated under the terms of the Press and
Registration of Book Act 1867.
3.12 THE COMMISSION OF SATI (PREVENTION) ACT,
1987 (3 OF 1988):1
Maja Daruwala traces the history of sati legislation in India and analyses
the Central Sati Prevention Act in this context.
Four months after the Roop Kanwar incident at Deorala, the focus of
attention shifted to the need for central legislation to stamp out the
oppressive practice of Sati. Two rallies in Delhi, Rajasthan women
activists, MP's in the State and at the Centre all called for stringent
legislation against Sati. By 1 October, the Rajasthan Legislature had
already promulgated an ordinance against Sati which is now a State Act
passed by assembly and upheld by the Rajasthan High Court. By the
New Year, the Commission of Sati (Prevention), Act had passed through
both houses with a minimum of debate or amendment.
The report stated that the two actresses had failed to comply with earlier summons for the same reason, hence the issuance of the warrants. The petitioner submitted that the paper had published "very sexy blow-ups and medium blow-ups" in its December 2005 and January 2006 issues, and which allegedly violated the Indecent Representation of Women (Prohibition) Act 1986, Young Persons (Harmful Publications) Act 1956, and the Indian Penal Code Section 292 (Sale of Obscene Books). The petitioner further demanded that the images should be confiscated under the terms of the Press and Registration of Book Act 1867. In January 2007 outgoing Chief Justice Y.K. Sabharwal confirmed that Sen had written to him in order to enunciate guidelines against frivolous lawsuits against artists, but refused her plea on the grounds that she should have filed a formal petition instead of writing a letter 1 Ref : Sati (Prevention) Act, 1987 is law enacted by Government of Rajasthan in 1987. It became a federal legislation
with the enactment of The Commission of Sati (Prevention) Act, 1987 by Government of India in 1988. The Act seeks to prevent Sati practice or the voluntary or forced burning or burying alive of widows, and to prohibit glorification of this action through the observance of any ceremony, the participation in any procession, the creation of a financial trust, the construction of a temple, or any actions to commemorate or honor the memory of a widow who committed sati. Sati was first banned under Bengal Sati Regulation, 1829.
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The particular barbarism of consigning a vibrant life to the flames of a
funeral pyre has always provoked the rulers of India to prevent this
horror, despite the spurious sanctity that has come to be attached to the
practice.
Historically, efforts to prevent Sati by formal means were extent even
before the Moghul rulers came to power. Under the Delhi Sultanates
(circa 1325) permission had to be sought prior to any Sati. In time this
check against compulsion became a mere formality. In any case Hindu
women from royal families continued to burn unchecked. Humayun
tried, but withdrew a royal fiat against Sati. Akbar insisted that no
woman could commit Sati without the specific permission of his
Kotwals.
They were instructed to delay the woman's decision for as long as
possible. Pensions, gifts and rehabilitative help were offered to the
potential Sati to wean her away from committing the Act. Children were
strictly forbidden from the practice. The later Moghuls continued to put
obstacles in the way but the practice carried on in the areas outside Agra.
In their own sphere of influence the Portuguese, Dutch and French
banned Sati but efforts to stamp out Sati were formalised only under
Lord William Bentinck 1after 1829.
British Regulation
The British were by no means certain of their approach to the custom no
matter how abhorrent they found it. Following Moghul example, for a
while they tried to regulate it by requiring that it be carried out in the
presence of their officials and strictly according to custom.
1 Ref : Lieutenant-General Lord William Henry Cavendish-Bentinck, GCB, GCH, PC (14 September 1774 – 17 June 1839),
known as Lord William Bentinck, was a British soldier and statesman. He served as Governor-General of India from 1828 to 1835.
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Perhaps Bentinck was spurred on to Legislation by the unacceptable rise
in Satis in his province, Bengal. In the 10 years between 1815 and 1825,
the figure had doubled to 639 deaths by burning. He was certainly egged
on by the constant entreaties of the missionaries and encouraged to
action by the sea change being wrought amongst an influential section of
Hindus led by Raja Ram Mohan Roy's Brahmo Samaj.
Despite this, Bentinck approached the question with caution. He sent
circulars to 58 of his administrators to discover whether the army would
revolt, whether legislation was advisable and whether Hindu resistance
could be contained. The consensus of opinion was that the army would
pose no problem.
Finally, within 18 months of having assumed the governorship of
Bengal, Lord William Bentinck passed the Sati Regulation, XVII of
1827 on 4 December. The regulation was clear, concise and unequivocal
in its condemnation of Sati, declaring it illegal and punishable by the
criminal courts. It made zamindars, petty land owners, local agents and
officers in charge of revenue collection especially accountable for
immediate communication to the officers of their nearest police station
of any intended sacrifice of the nature described. In case of willful
neglect the responsible officer was liable to a fine of Rs.200 or 6 months
in jail for default.
Immediately on receiving intelligence that a sacrifice was to take place,
the police daroga accompanied by others was to go to the spot and
declare the gathering illegal, prevail upon the crowd to disperse, explain
that any persistence was likely to make them all liable to a crime and if
necessary prevent the Sati from taking place or go and inform the nearest
magistrate of the names and addresses of all those present. If the
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sacrifice was over, a full and immediate inquiry had to be undertaken in
the same way as for any unnatural death.
Most significantly the regulation eschewed any debate about
voluntariness which has so much in the forefront of the Sati debate in
1987. Aiding and abetting a sacrifice whether voluntary or not was to
deemed culpable homicide. Punishment was at the discretion of the court
according to the nature and circumstances of the case. No justification
was to be made that the victim desired to sacrifice. The death penalty
was specially spelled out for any violence or compulsion or helping or
assisting in burning of a widow while she laboured under a state of
intoxication or stupefaction or because any other cause impeded her free
will. In such cases the court was instructed to show no mercy.
3.13 FUNDAMENTAL OPPOSITION
Even before the regulation was out, some three hundred orthodox Hindus
petitioned Lord Bentinck to stop the abolition. They pleaded that the
practise of "self-immolation1", was not merely a sacred duty but a
"privilege" of believers. Bentinck 2however would not relent.
The sequence of events that followed are and eerie precursor to the
events after Roop Kanwars Sati in 1987. Orthodox Bengali Brahmins
formed themselves into the Dharma Sabha, just as today we have the
Dharam Raksha Samiti in Rajasthan. In all they collected more than
Rs.30,000/- a huge sum in those days, to fight the Regulation all the way
upto the highest court. By contrast Raja Ram Mohan Roy was given
1 Ref : Self-immolation refers to setting oneself on fire, often as a form of protest or for the purposes of martyrdom. It
has centuries-long traditions in some cultures, while in modern times it has become a type of radical political protest. Michael Biggs compiled a list of 533 "self-immolations" reported by Western media from the 1960s to 2002, though in this work his definition is generalized to any intentional suicide "on behalf of a collective cause. 2 Ref : Lieutenant-General Lord William Henry Cavendish-Bentinck, GCB, GCH, PC, known as Lord William Bentinck,
was a British soldier and statesman. He served as Governor-General of India from 1828 to 1835.
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Rs.5000/- to assist the Government in their representations before the
Privy Council in England. Both sides gathered petitions and
pamphleteered extensively.
In 1832 the appeal was heard by the Privy Council. The petitioners
argued that it went against the basic assurance given in George III
Statute 37 whereby the Hindus were assured complete non-interference
with their religion. The abolitionists argued that there was really no
freedom of religion that could go beyond what was "compatible with the
paramount claims of humanity and justice.1" Of 7 privy councillors,
three finally voted against Bentinck's regulation but finally it was
upheld.
With the last hurdle cleared, Madras and then Bombay followed suit
with their own legislation banning Sati. Slowly local rulers who came
under the yoke of the British also conceded legislation against Sati in
conformity with the British regulations. The rulers of Jaipur banned it in
1846.
1 Ref : Maja Daruwala (advocate practising in the Delhi High Court.) traces the history of sati legislation in India and
analyses the Central Sati Prevention Act in this context, Courtsy: The Lawyers January 1988
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3.14 INDIAN PENAL CODE
The 1833 Charter to the East India Company empowered the
government to make laws for British India with due respect for native
custom and usage. T.B. Macaulay, brilliant academician and lawyer was
given the brief of formulating a comprehensive criminal code of
universal application through the entire subcontinent. He had no doubt in
his mind that Sati was a barbarous practice which could brook no
justification. But the administration of 1860 and the Law
Commissioners, who revised the first draft, were unnecessarily alive to
the sensitivities of high caste brahmanical feeling and watered down the
murder provisions in their relation to Sati by enacting exception 5 of
section 300.
Under this, a mitigation was provided for murder when "the person
whose death is caused, being above the age of 18 years, suffers death or
takes the risk of death with his own consent." Despite this concession
under the IPC, taking of life is absolutely prohibited to everyone in every
circumstance. But Punishment varies depending on the nature and
circumstances of the offense.
If on the facts, the ritualistic public burning or burying alive of a woman
is shown to be involuntary, it is murder plain and simple (Section 300
IPC 1860). In the unlikely event that the woman was a willing
participant, her death still amounts to culpable homicide (Section 299 or
via exception 5 of Section 300) or at the very least to abetment to suicide
(Section 306). Even where a Sati is deemed to be a suicide i.e. voluntary
self-killing, the presence of any intoxicant or anything which in fact
inhibits free will makes the abettor as culpable as if he had helped
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murder the victim (section 305 IPC). The punishment for this is exactly
the same as for murder.
Where the Sati is incomplete, a person helping to achieve it is caught by
the attempt sections of the IPC. Depending again on the circumstances,
the crime may be attempt to murder (section 307); attempt to culpable
homicide not amounting to murder (Section 308); or abetment to suicide
punishable with one year's imprisonment and attempt to commit suicide
which is an offence for the woman as well.
Under the present IPC no one who abets a Sati should escape the
consequences of his acts. Abetment can take the form of instigation,
conspiracy to do an act or make an illegal omission, intentional aiding,
or wilful misrepresentation or wilful concealment (Section 107). Again
depending on the facts, the aider could be abetting murder, culpable
homicide. Form all the above it is clear that there are enough and more
laws on the statute books to punish those guilty of making any human
sacrifice including widow burning.
Fresh Sati Legislation
Despite this, the Central government has passed the Commission of Sati
Prevention Act of 1987. Women groups had been asked for suggestions.
Had the Central government taken time to consider and passed judicious
amendments to the present laws which are compatible and in consonance
with the general jurisprudence of the country, the anomalies that have
now arisen would not have come about.
While an entirely new act has the advantage of bringing under one,
enactment scattered offenses so as to form a ready code, it also fuels the
belief that there was no law against Sati in the first place. A special law
again Sati related offenders also has the disadvantage of elevating a run
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of the mill criminal to the status of a conscientious offender. Specific
legislation also provides a rallying point for pro-Sati lobbyists and a
readymade cause in the name of religion and identity. Though the High
Court at Rajasthan has already upheld the constitutionality of the State
legislation which the Central law copies, both acts undoubtedly suffer
from all the ills of hastily drafted and ill-considered legislation.
Burden of Proof
The least attractive feature of the new law is Section 16, which reverses
the burden of proof on to the accused. Under the philosophy or criminal
law adopted in India and used uniformly throughout the Penal Code,
each accused is innocent until proven guilty. In every case the
prosecution must prove its case positively beyond reasonable doubt. The
only argument for shifting the burden of proof sometimes put forward is
that the prosecution is so extremely disadvantaged in some
circumstances that there would be absolutely minimal chance of catching
the culprit. In statutory minimal chance of catching the culprit. In
statutory cases where burden of proof is shifted, the offenses are
relatively minor and the accused has a generally easy time proving his
innocence.
In the public, even tamasha atmosphere of a sati, witnesses are available;
independent, corroborative evidence is there for the authorities to gather
and there is no justification for reversing the burden of proof for a mere
abettor to sati when a brutal sadistic or psychotic murderer in any other
circumstances has the full protection of the law requiring the prosecution
to prove its case in each and every particular.
If the new law had been in the form of an amendment in the homicide
sections of the IPC, declaring that henceforth all Satis (or any ritual
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killings) shall be presumed to be as murder unless otherwise established
by the defense, the problem of women killers getting off lightly for
merely abetting to suicide would have been solved.
The woman herself in this case would have always been the victim. But
under the new act a woman who attempts Sati is herself liable to
punishment for 6 months jail.
Abetting Sati
Without the principal there can be no abettor so the new act in its
muddled way has to treat the woman as an offender in order to catch all
those who take part in the commission of a Sati.
Justice requires that the punishment fit the crime. The Penal Code while
absolutely forbidding all killing carefully differentiates between degrees
of moral opprobrium society attaches to a crime. This is reflected in the
punishments handed out for different types of killing.
The new Sati Act throws these fine and necessary distinctions to the
winds.
Section 4 first of all obfuscates the difference between abetment to a
crime and the principle offender. It lumps together all sorts into a single
section entitled 'Abatement of Sati'. It punishes both the person who
actually prevents or obstructs a widow from saving herself from being
burnt or buried alive in the same measure as a person who participates
"in any procession in connection with the commission of Sati".
Yet the degree of guilt is totally varied. In fact the man who intoxicates a
woman or prevents her getting out of the fire is not an abettor at all but a
murderer and should be treated as such. The bystander may be deemed
an abettor and should be punished accordingly.
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It does not mean that an abettor to the attempt would go free. Abetment
to Sati 1can cover a wide variety of activities, such as standing around
shouting 'sati mata ki jai' and attending a ceremonial killing. The degree
of culpability should matter but under the new law the latter person is as
liable to the death sentence as the person who actually holds down the
widow and prevents her from escaping from the pyre.
The bystander at a Sati ceremony is now certainly more disadvantaged
than the gruesome murderer or his aide is under the ordinary law. In their
case at least the prosecution must prove the case beyond reasonable
doubt.
Under the Indian Penal Code what is worrisome is the willingness of the
authorities to treat cases of widow burning as suicide rather than murder
or culpable homicide, because by its very definition a classic Sati is self-
immolation. The result is that abettors are let off comparatively lightly
and escape the ignominy and moral opprobrium that attaches to these. Of
course a great deal depends on the willingness of the police to pursue
inquiries and lodge an appropriate FIR. Even in the Roop Kanwar case,
one cannot help but feel that but for the hue and cry raised, the matter
would not have been taken up and under the murder sections of the IPC.
1 Ref : (1) Notwithstanding anything contained in the Indian Penal Code, if any person commits sati, whoever abets the
commission of such sati, either directly or indirectly, shall be punishable with death or imprisonment for life and shall also be liable to fine. (2) If any person attempts to commit sati, whoever abets such attempt, either directly or indirectly, shall be punishable with imprisonment for life and shall also be liable to fine.
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Glorification
The new Sati Act forbids any glorification of sati, makes it punishable
with upto 7 years imprisonment and a possible fine of Rs.30,000/-
(Section 5). Glorification" in relation to the practice of Sati includes,
among other things, "the observance of any ceremony or the taking out
of a procession in connection with the Sati or the creation of a trust or
the collection of funds for the construction of the temple with a view to
perpetuating the honour of, or to preserve the memory of the person
committing Sati."
Under the IPC 'glorification' before an act of Sati could be dealt with
under the incitement to crime and violence sections. But 'glorification'
after an act of Sati is not covered.
In a democracy legislation has always to try to maintain the fine balance
between freedom of speech and its abuse. The naked opportunism seen
after the Deorala incident has undoubtedly provoked this part of the
legislation, as well as Section 19 which disqualifies people'
representative from elections if convicted under the Act. It also tries to
prevent unscrupulous candidates from using the Sati issue to make their
political fortunes. The danger of preventing the lunatic fringe from airing
their views lies in their ability to go underground with them and also
clouds the limits of democratic debate.
The commercialisation aspect of Sati has been directly dealt with. But
even today donation received by the perpetrators of a crime can be
confiscated under the general rule that no man may benefit from the fruit
of his crime. Donations at the Sati sthal are liable for confiscation if it is
thought they will be used for an illegal purpose, like building a temple
against the public policy. Such donations when they are in the hands of a
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committee can also be diverted away from their illegal purpose under
Section 92 of the Civil Procedure Code. This allows the court to direct
how trust monies may be used if the purpose for which they have been
collect fails for intervening illegality. At the behest of the Advocate-
general or any person interested, the money can be diverted for purposes
such as widow rehabilitation.
There is still room for more specific legislation to discourage the
commercial success of tamashas like Sati. An amendment to the Income
Tax Act removing exemption from charitable donations made to temples
which commemorate or have come up as a consequence of an ancient or
recent Sati, will at least discourage large donors. Specifically excluding
Sati temples from benefits given to charitable institutions will also
discourage them.
The tremendous attention and debate that a single events at Deorala
generated is evidence of the ability of the women’s movement to bring
about positive changes through sustained agitation. But even at the
height of lobbying for some kind of legislation it was never anyone’s
case that liberation for women from years of oppression could be
brought only through essentially illiberal legislation, by robbing others
of their legitimate rights. If the old law under the IPC were but enforced
no new jumbled legislation would be necessary.
Hopefully there will never be another Sati and the entire discussion here
will be academic. But recent experiences both of the lack of political will
to implement existing legislation and the determination of the Rajput’s to
defy the law suggest that whatever Central laws may be enacted, may
end up honoured more in the breach than in the letter.
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3.15 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005:1
This year's monsoon session of Parliament was marked by the passage of
the Protection of Women from Domestic Violence Act 2005 hailed as
the first significant attempt to recognise domestic abuse as a punishable
offence, to extend its provisions to those in live-in relationships, and to
provide for emergency relief for the victims, in addition to legal
recourse. In perhaps the first case under the Act, the Tamil Nadu police
last week arrested a man following complaints of harassment from his
wife.2
What is this law all about? Will it prevent incidents of violence against
women? Sheela Bhatt demystifies the provisions of Protection of
Women from Domestic Violence Act 2005.
Why do we need a new law for domestic violence?
Of all forms of criminal behaviour, domestic violence is among the most
prevalent and among the least reported.
One reason for this anomaly is that till 2005, remedies available to a
victim of domestic violence in the civil courts (divorce) and criminal
courts (vide Section 498A of the Indian Penal Code) were limited. There
was no emergency relief available to the victim; the remedies that were
available were linked to matrimonial proceedings; and the court
proceedings were always protracted, during which period the victim was
invariably at the mercy of the abuser.
And, relationships outside marriage were not recognised.
1 Ref : Dewan, Anjali. "Proceeding of Strategising Gender Mainstreaming Workshop held on 6th March, 2013 at H.P.
Institute Of Public Administration (HIPA), Fairlawn (Shimla)". Himachal Pradesh Institute of Public Administration. p. 5. Retrieved 4 October 2013. 2 Ref : Datta, Damayanti (4 December 2006). "The new laws of marriage". India Today. Retrieved 29 March 2013.
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This set of circumstances ensured that a majority of women preferred to
suffer in silence. It is essentially to address these anomalies that the
Protection of Women From Domestic Violence Act 2005 was passed.
Who are the primary beneficiaries of this Act?
Women and children. Section 2(a) of the Act will help any woman who
is or has been in a domestic relationship with the 'respondent' in the case.
It empowers women to file a case against a person with whom she is
having a 'domestic relationship' in a 'shared household', and who has
subjected her to 'domestic violence'.1
Children are also covered the act; they too can file a case against a parent
or parents who are tormenting or torturing them, physically, mentally, or
economically. Any person can file a complaint on behalf of a child.
Who is defined as 'respondent' by this law?
Section 2 (q) says that any adult male member who has been in a
domestic relationship with the aggrieved person is the 'respondent'. The
respondent can also be a relative of the husband or male partner – thus, a
father-in-law, mother-in-law, or even siblings of the husband and other
relatives can be proceeded against.2
Do you have to be married to take recourse to this law?
Significantly, the law recognises live-in relationships. Thus, if a woman
is living with a man who abuses her, she can take recourse to the
provisions of this law even though she is not married to him.
1 Ref : orabjee, Soli (5 November 2006). "SUNDAY DEBATE: Is verbal abuse domestic violence? No". The Times of India.
Retrieved 4 October 2013. 2 Ref : Sandhu, Veenu (5 November 2006). "Men running scared now". Hindustan Times. Retrieved 4 October 2013.
215
According to section 2(g), any relationship between two persons who
live, or have at any point of time lived together in the shared household,
is considered a 'domestic relationship'.
This includes relations of consanguinity, marriage, or through
relationships in the nature of marriage, adoption, or joint family – thus,
'domestic relationships' are not restricted to the marital context alone.
'Domestic relationships' also cover sisters, widows, mothers, daughters,
women in relationships of cohabitation, single women etc. Any widow
or unmarried sister or daughter who is harassed within the home can also
resort to the new law.
The law also protects women in fraudulent or bigamous marriages, or in
marriages deemed invalid in law.
How does the new law define domestic abuse?
Section 3 of the law says any act/conduct/omission/commission that
harms or injures or has the potential to harm or injure will be considered
'domestic violence'.
Under this, the law considers physical, sexual, emotional, verbal,
psychological, and economic abuse or threats of the same.
Even a single act of commission or omission may constitute domestic
violence -- in other words, women do not have to suffer a prolonged
period of abuse before taking recourse to the law.
The law says any definition of domestic violence must detail the fact that
it is a human rights violation. Further, the law details the different forms
of violence faced by women, and ensures that such interpretations are
not left solely to the discretion of the judges.
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How does the law define the various forms of abuse, to forestall such
individual interpretation?
Physical Abuse is defined as any act or conduct which is of such a nature
as to cause bodily pain, harm, or danger to life, limb, or health, or an act
that impairs the health or development of the person aggrieved, or that
includes assault, criminal intimidation and criminal force.
Sexual Abuse is any conduct of a sexual nature that abuses, humiliates,
degrades, or otherwise violates the dignity of the person. The law also
covers instances where a woman is forced to have sexual intercourse
with her husband against her will.
Verbal and Emotional Abuse has been defined as any insult, ridicule,
humiliation, name-calling and such acts. A woman who is insulted and
ridiculed for, say, not being able to conceive, or for not having produced
a male child, can now take recourse to this law. Any repeated threats to
cause physical pain to any person in whom the person aggrieved is
interested – in other words, if say the abuser were to threaten the
children, or relatives, of the aggrieved party – will also be covered under
this head.
Economic Abuse is a very forward-thinking, important part of this
definition. The deprivation of economic or financial resources to which
the aggrieved woman or child is entitled under law or custom, or which
the person aggrieved requires out of necessity, can be claimed under the
provisions of this law; withholding such resources now falls under the
category of economic abuse. This provision comes into play in instances
of marital disputes, where the husband tends to deprive the wife of
necessary money as a weapon. The law also sees a husband who sells off
his wife's jewellery and assets as being guilty of economic abuse.
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A husband, under this provision, cannot dispose of household effects,
cannot alienate her from her assets or any other property in which the
aggrieved person has an interest or entitlement by virtue of the domestic
relationship. A husband may not sell or use stridhan (dowry) and/or any
other property jointly or separately held by the wife.
How does the law ensure that a wife who takes legal recourse in the
event is not intimidated or harassed?
An important addition to the law ensures that an aggrieved wife, who
takes recourse to the law, cannot be harassed for doing so. Thus, if a
husband is accused of any of the above forms of violence, he cannot
during the pending disposal of the case prohibit/restrict the wife's
continued access to resources/ facilities to which she is entitled by virtue
of the domestic relationship, including access to the shared household. In
short, a husband cannot take away her jewellery or money, or throw her
out of the house while they are having a dispute.
What are the main rights of a woman as recognised by this law?
The law is so liberal and forward-looking that it recognises a woman's
right to reside in the shared household with her husband or a partner
even when a dispute is on thus; it legislates against husbands who throw
their wives out of the house when there is a dispute. Such an action by a
husband will now be deemed illegal, not merely unethical.
Even if she is a victim of domestic violence, she retains right to live in
'shared homes' – that is, a home or homes she shares with the abusive
partner. Section 17 of the law, which gives all married women or female
partners in a domestic relationship the right to reside in a home that is
known in legal terms as the shared household, applies whether or not she
has any right, title or beneficial interest in the same.
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The law provides that if an abused woman requires, she has to be
provided alternate accommodation – and in such situations, the
accommodation and her maintenance has to be paid for by her husband
or partner.
The law, significantly, recognises the need of the abused woman for
emergency relief, which will have to be provided by the husband. A
woman cannot be stopped from making a complaint/application alleging
domestic violence. She has the right to the services and assistance of the
Protection Officer and Service Providers, arranged under the provisions
of the law.
A woman who is the victim of domestic violence will have the right to
the services of the police, shelter homes and medical establishments. She
also has the right to simultaneously file her own complaint under Section
498A of the Indian Penal Code.
Sections 18-23 provide a large number of avenues for an abused woman
to get relief. She can get, through the courts, Protection Orders,
Residence Orders, Monetary Relief, Custody Order for her children,
Compensation Order and Interim/ Ex parte Orders.
If a husband violates any of the above rights of the aggrieved woman, it
will be deemed a punishable offence. Charges under Section 498A can
be framed by the magistrate, in addition to the charges under this Act.
Thus, an accused person will be liable to have charges framed under both
the old law and the new one. Further, the offences are cognisable and
non-bailable. Punishment for violation of the rights enumerated above
could extend to one year's imprisonment and/or a maximum fine of Rs
20,000.
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How does the law define 'shared household'1?
According to Section 2(s), a household where the aggrieved person
lives/lived in a domestic relationship, either singly or along with the
respondent, is a shared household.
This applies whether the household is owned or tenanted, either jointly
by the person aggrieved and the respondent, or by either of them, where
either the person aggrieved or the respondent or both jointly or singly
have any right, title, interest or equity.
Shared household also includes a household which may belong to the
joint family of which the respondent is a member, irrespective of
whether the respondent or person aggrieved has any right, title or interest
in the shared household.
However, the ownership pattern of the household cannot be affected by
the Act In other words, the fact that a woman lives in a home legally
owned by her husband does not under the Act alter the legality of
ownership; it does not for instance transfer that ownership in whole or
part to the wife.
What new mechanisms have been recommended to implement the law?
Section 8 of the law provides for the setting up and function of
Protection Officers.
1 Ref : The concept of shared household as defined in the Domestic Violence Act may have to be expanded in view of a
recent ruling by the Supreme Court, which noted that it has been drafted in a "clumsy" manner. In a judgment on the recently notified Protection of Women from Domestic Violence Act 2005, a two-member Bench of the apex court expressed that Section 2(s) of the Act, which gives right of residence to a married woman in a shared household, is not "properly worded and appears to be the result of clumsy drafting." But at the same time, the Judges held, "...we have to give it an interpretation which is sensible and which does not lead to chaos in society." -Ref more at http://www.indianexpress.com/news/sc-order-calls-for-change-in--shared-household--definition/19624/#sthash.BTp7ZHoy.dpuf
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These officers, to be appointed by state governments, will be under the
jurisdiction and control of the court, and will be responsible to the court
for monitoring the cases of domestic abuse.
The PO will assist the court in making a Domestic Incident Report or an
application for a protection order on behalf of the aggrieved woman
and/or child. POs will ensure that aggrieved people are provided legal
aid, medical services, safe shelter and other required assistance.
POs will ensure that necessary information on service providers is
provided to the aggrieved woman, and that orders for monetary relief are
complied with.
Importantly, the PO can be penalised for failing/refusing to discharge his
duty, with the proviso that prior sanction of the state government is
required.
Service Providers are a vital tool in the implementation of this act.
Service Providers, as defined by the law, are private organisations
recognised under the Companies Act/Societies Registration Act.
They will have to register with the state government as a service
provider to record the Domestic Incident Report and to get the aggrieved
person medically examined.
The Service Providers will among other things ensure that the aggrieved
person is provided accommodation in a shelter home, if she so requires.
A Service Provider is protected for all actions done in good faith, in the
exercise of the powers under this Act, towards the prevention of
commission of domestic violence they are, thus, protected by law and
cannot be sued for the proper exercise of their functions.
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The new law, thus, recognises the role of voluntary organisations in
addressing the issue of domestic violence. NGOs working for women's
rights can now register as Service Providers under the Act.
What happens next?
The government has passed the law; it now needs to put in place the
mechanism of implementation. To this end, the government has to
provide funding to encourage the registration of Service Providers who
will need the protections of this new law.
The government will also have to initiate a widespread campaign for
public awareness. It will also need to implement training programs to
sensitise the police, media and judiciary to the dimensions, scope and
functioning of this new law.
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3.16 THE PROTECTION OF WOMEN AGAINST SEXUAL
HARASSMENT AT WORK PLACE BILL, 2010:1
The Bill lays down the definition of sexual harassment and seeks to
provide a mechanism for redressing complaints. It provides for the
constitution of an ‘Internal Complaints Committee’ at the work place
and a ‘Local Complaints Committee’ at the district and block levels. A
District Officer (District Collector or Deputy Collector), shall be
responsible for facilitating and monitoring the activities under the Act.
Highlights of the Bill2
The Bill defines sexual harassment at the work place and creates a
mechanism for redressal of complaints. It also provides safeguards
against false or malicious charges.
Every employer is required to constitute an Internal Complaints
Committee at each office or branch with 10 or more employees. The
District Officer is required to constitute a Local Complaints Committee
at each district, and if required at the block level.
The Complaints Committees have the powers of civil courts for
gathering evidence.
The Complaints Committees are required to provide for conciliation
before initiating an inquiry, if requested by the complainant.
Penalties have been prescribed for employers. Non-compliance with the
provisions of the Act shall be punishable with a fine of up to Rs 50,000.
1 Ref : ""The Sexual Harassment Bill undermines the innovative spirit of Vishaka" – Naina Kapur, Lawyer and Equality
Consultant". Bar and Bench. 1 March 2013. Retrieved 2 March 2013. 2 Ref: "The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Published in
The Gazette of India". Press Information Bureau. Retrieved 26 April 2013.
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Repeated violations may lead to higher penalties and cancellation of
licence or registration to conduct business.
Key Issues and Analysis
There could be feasibility issues in establishing an Internal Complaints
Committee at every branch or office with 10 or more employees.
The Internal Complaints Committee has been given the powers of a civil
court. However, it does not require members with a legal background
nor are there any provisions for legal training.
The Bill provides for action against the complainant in case of a false or
malicious complaint. This could deter victims from filing complaints.
Two different bodies are called ‘Local Complaints Committee’. The Bill
does not clearly demarcate the jurisdiction, composition and functions of
these Committees.
Cases of sexual harassment of domestic workers have been specifically
excluded from the purview of the Bill.
Unlike sexual harassment legislation in many other countries, this Bill
does not provide protection to men.
India finally enacted its law on prevention of sexual harassment against
female employees at the workplace. The Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act, 2013
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(“Sexual Harassment Act1”) has been made effective on April 23, 2013
by way of publication in the Gazette of India.
The statute has been enacted almost 16 years after the Supreme Court of
India, in its landmark judgment in Vishaka and others v. State of
Rajasthan (“Vishaka Judgement”)1 , laid down guidelines making it
mandatory for every employer to provide a mechanism to redress
grievances pertaining to workplace sexual harassment and enforce the
right to gender equality of working women (“Guidelines”). Codification
of the requirements is a much-awaited development and is a significant
step towards creating awareness on the issue of workplace sexual
harassment and ensuring women a safe and healthy work environment.
1
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Background1
The Supreme Court of India, in 1997, in the Vishaka Judgment, for the
first time, acknowledged sexual harassment at the workplace as a human
rights violation. The Supreme Court relied on the Convention on the
Elimination of All Forms Discrimination Against Women, adopted by
the General Assembly of the United Nations, in 1979, which India has
both signed and ratified. In its judgment, the Supreme Court outlined the
Guidelines making it mandatory for employers to provide for
sympathetic and non-retributive mechanisms to enforce the right to
gender equality of working women.
As per the Vishaka Judgment, the Guidelines, until such time a
legislative frame work on the subject is drawn-up and enacted, have the
effect of law and the Guidelines are to be mandatorily followed by
organizations, both in the private and government sector. While there
were several attempts made to enact a law on this subject previously, the
Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Bill, 2012 was eventually passed by the Lower House of
the Parliament (Lok Sabha) on September 3, 2012, then passed by the
Upper House of the Parliament (Rajya Sabha) on February 26, 2013 and
received the President’s assent on April 22, 2013.
Sexual Harassment - objective of the Law, meaning and prohibition
The Sexual Harassment Act has been enacted with the objective of
providing women protection against sexual harassment at the workplace
and for the prevention and redressal of complaints of sexual harassment.
Sexual harassment is considered as a violation of the fundamental right 1 Ref : AIR 1997 SC 3011
Section 2(o), Sexual Harassment Act, 2013 Section 354A, Indian Penal Code, 1860 Published in the Official Gazette on April 2, 2013
226
of a woman to equality as guaranteed under Articles 14 and 15 of the
Constitution of India (“Constitution”) and her right to life and to live
with dignity as per Article 21 of the Constitution. It has also been
considered as a violation of a right to practice or to carry out any
occupation, trade or business under Article 19(1)(g) of the Constitution,
which includes a right to a safe environment free from harassment.
The definition of sexual harassment in the Sexual Harassment Act is in
line with the Supreme Court’s definition in the Vishaka Judgment and
includes any unwelcome sexually determined behaviour (whether
directly or by implication) such as physical contact and advances,
demand or request for sexual favours, sexually coloured remarks,
showing pornography, or any other unwelcome physical verbal or non-
verbal conduct of sexual nature.
The Sexual Harassment Act stipulates that a woman shall not be
subjected to sexual harassment at any workplace. As per the statute,
presence or occurrence of circumstances of implied or explicit promise
of preferential treatment in employment; threat of detrimental treatment
in employment; threat about present or future employment; interference
with work or creating an intimidating or offensive or hostile work
environment; or humiliating treatment likely to affect the lady
employee’s health or safety may amount to sexual harassment.
Salient features of the Sexual Harassment Act
Scope : The ambit of the Sexual Harassment Act is very wide and is
applicable to the organized sector as well as the unorganized sector. In
view of the wide definition of ‘workplace’, the statute, inter alia, applies
to government bodies, private and public sector organisations, non-
governmental organisations, organisations carrying on commercial,
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vocational, educational, entertainmental, industrial, financial activities,
hospitals and nursing homes, educational institutes, sports institutions
and stadiums used for training individuals. As per the Sexual Harassment
Act, a workplace also covers within its scope places visited by
employees during the course of employment or for reasons arising out of
employment - including transportation provided by the employer for the
purpose of commuting to and from the place of employment2 .
The definition of ‘employee’ under the Sexual Harassment Act is fairly
wide and covers regular, temporary, ad hoc employees, individuals
engaged on daily wage basis, either directly or through an agent, contract
labour, co-workers, probationers, trainees, and apprentices, with or
without the knowledge of the principal employer, whether for
remuneration or not, working on a voluntary basis or otherwise, whether
the terms of employment are express or implied.
Internal Complaints Committee and Local Complaints Committee : The
Sexual Harassment Act requires an employer to set up an ‘Internal
Complaints Committee’ (“ICC”) at each office or branch, of an
organization employing at least 10 employees. The government is in turn
required to set up a ‘Local Complaints Committees’ (“LCC”) at the
district level to investigate complaints regarding sexual harassment from
establishments where the ICC has not been constituted on account of the
establishment having less than 10 employees or if the complaint is
against the employer. The Sexual Harassment Act also sets out the
constitution of the committees, process to be followed for making a
complaint and inquiring into the complaint in a time bound manner.
Interim Reliefs : The Sexual Harassment Act empowers the ICC and the
LCC to recommend to the employer, at the request of the aggrieved
employee, interim measures such as (i) transfer of the aggrieved woman
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or the respondent to any other workplace; or (ii) granting leave to the
aggrieved woman up to a period of 3 months in addition to her regular
statutory/ contractual leave entitlement.
Process for Complaint and Inquiry : Please refer to the following
flowchart which provides, in brief, the process to be followed by the
aggrieved employee to make the complaint and by the employer to
inquire into the complaint. The law allows female employees to request
for conciliation in order to settle the matter although a monetary
settlement should not be made as a basis of conciliation.
Action against Frivolous Complaints : So as to ensure that the
protections contemplated under the Sexual Harassment Act do not get
misused, provisions for action against “false or malicious” complainants
have been made.
Employer’s Obligations
In addition to ensuring compliance with the other provisions stipulated,
the Sexual Harassment Act casts certain obligations upon the employer
to, inter alia, provide a safe working environment display conspicuously
at the workplace, the penal consequences of indulging in acts that may
constitute sexual harassment and the composition of the Internal
Complaints Committee organise workshops and awareness programmes
at regular intervals for sensitizing employees on the issues and
implications of workplace sexual harassment and organizing orientation
programmes for members of the Internal Complaints Committee treat
sexual harassment as a misconduct under the service rules and initiate
action for misconduct.
The employer is also required to monitor the timely submission of
reports by the ICC.
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If an employer fails to constitute an Internal Complaints Committee or
does not comply with any provisions contained therein, the Sexual
Harassment Act prescribes a monetary penalty of up to INR 50,000
(approx. US$1,000). A repetition of the same offence could result in the
punishment being doubled and / or de-registration of the entity or
revocation of any statutory business licenses.
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3.17 AMENDMENTS TO THE INDIAN PENAL CODE
As a result of the growing importance of the issues relating to sexual
harassment and protection of female employees in India, a new section3
was added to the Indian Penal Code, 1860 through the Criminal Law
(Amendment) Act, 2013, which enlists the acts which constitute the
offence of sexual harassment and further envisages penalty / punishment
for such acts. A man committing an offence under this section is
punishable with imprisonment, the term of which may range between 1 -
3 years or with fine or both. Since the amendment criminalizes all acts of
sexual harassment, employers shall be required to report any offences of
sexual harassment to the appropriate authorities.
Analysis
The Sexual Harassment Act is a much awaited development and a
significant step towards ensuring women a safe and healthy work
environment. We however list below some issues in relation to this new
legislation.
The Sexual Harassment Act only addresses the issue of protection of
women employees and is not gender neutral. Male employees, if
subjected to sexual harassment, cannot claim protection or relief under
the law.
The definition of ‘aggrieved woman’ does not make a reference to
victimization (on the part of the employer) of the employee who has
made the complaint of harassment, which would be fairly common in
such situations. This was in fact an important recommendation of the
Standing Committee. The definition of the ‘sexual harassment’, the
words ‘verbal, textual, physical, graphic or electronic actions’ should
231
have been added in order for the purposes of clarity, as it would cover
some of the technological developments.
It may become a challenge for employers to constitute an ICC at “all
administrative units or offices”. It may also become necessary for the
employer to spend more time and efforts in training members of the ICC
who are to be replaced every 3 years. There is also a lack of clarity as to
who shall be a chairperson of the ICC in absence of a senior level female
employee. Also, in such cases, the composition of the committee
members should ideally have been an odd number in order for the
committee to arrive at a decision based on majority.
The ICC also needs to involve a member from “amongst non-
governmental organisations or associations committed to the cause of
women or who have had experience in social work or have legal
knowledge.” Employers may not be comfortable with such an external
representation, considering the sensitivities surrounding this issue and
the need to maintain strict confidentiality.
The law casts an obligation upon the employer to address the grievances
in respect of sexual harassment at workplace in a time bound manner,
which in several cases may not be practically possible as the employees
or witnesses involved may not easily or readily co-operate.
The law allows the employer to initiate action against the complainant in
case of a false or malicious complaint. This provision, although meant to
protect the employer’s interests, is likely to deter victims from reporting
such incidents and filing complaints, which may in turn defeat the
purpose for which the law was enacted.
In case the allegation has been proved, the Sexual Harassment Act
allows the ICC to recommend to the employer to deduct from the
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respondent’s salary such sums it may consider appropriate to be paid to
the aggrieved woman. However, there may need to be made certain
corresponding changes to the Payment of Wages Act, 1936 of India,
which restricts the nature of deductions that may be made from an
employee’s salary.
The Sexual Harassment Act does not stipulate any monetary liability on
the employer in case of harassment on the part of an employee against
another female employee. Infact, in developed countries like the US,
although there is no codified law on sexual harassment or workplace
harassment, based on case law that prohibit workplace discrimination,
there is vicarious liability cast upon the employer in certain cases.
Considering that India has a diverse set of religions, cultures, castes,
languages, etc. the government also needs to start focusing on providing
protection for some of the other forms of harassment, which is fairly
common in several of the developed countries.
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4 Judicial
efforts
towards
women
protection
234
4.1 EFFORTS OF SUPREME COURT OF INDIA
Delhi Gang rape case1 :
All Sessions courts should hold daily trial and complete the whole
exercise in two months. Within a few days of the gruesome December 16
assault in the Capital, the Supreme Court has directed all Sessions courts
in the country to conduct rape trials daily and complete the process in
two months from the date of commencement of examination of
witnesses.
“In particular, when examination of witnesses has begun, it shall be
continued from day to day until all witnesses in attendance have been
examined, unless the court finds adjournment beyond the following day
necessary for reasons to be recorded,” said a Bench of Justices Swatanter
Kumar (who has since assumed charge as Chairperson of the National
Green Tribunal2) and Ibrahim Kalifulla.
The Bench, referring to regular adjournments being sought, said: “We
are distressed to note that it is almost a common practice and regular
occurrence that trial courts flout the said command with impunity. Even
when witnesses are present, cases are adjourned on far less serious
reasons or even on flippant grounds.”
Adjournments were granted for the asking, quite often to suit the
convenience of the advocate, the Bench said. “We make it clear that the
1 Ref : SC No. 114/2013 State Vs. Ram Singh and another. FIR No. 413/2012 P.S. : Vasant Vihar, New Delhi.
13.09.2013(2.30PM) Present : Shri Dayan Krishnan , Shri Rajeev Mohan & Shri A.T.Ansari, Ld. Spl. Public Prosecutor for the State, assisted by Sh.Madhav Khurana,Advocate. Shri V.K.Anand Ld. Counsel for accused Mukesh. Shri Vivek Sharma, Shri Manoj Tomar and Shri Sada Shiv, Ld. Counsels for accused Pawan. Shri A.P Singh, Shri V.P. Singh and Ms. Geeta Ld. Counsels for accused Vinay Sharma & accused Akshay @ Thakur. Shri Rajeev Jain, Ld. Amicus Curie. 2 National Green Tribunal Act, 2010 (NGT)is a federal legislation enacted by the Parliament of India, under India's
constitutional provision of Article 21, which assures the citizens of India the right to a healthy environment. The tribunal itself is a special fast-track court to handle the expeditious disposal of the cases pertaining to environmental issues.
235
legislature has frowned upon granting adjournments on that ground. At
any rate, inconvenience of an advocate is not a ‘special reason’ for
bypassing the mandate of Section 309 of the Cr.PC [power to court to
adjourn proceedings].”
The Bench directed all High Courts to issue circulars to subordinate
courts to strictly adhere to the prescribed procedure to ensure speedy trial
and also rule out any manoeuvring taking place by granting an undue,
long adjournment for the mere asking. “When witnesses of a party are
present, the court should make every possible endeavour to record their
evidence and they should not be called back again. Work fixation of the
court should be so arranged as not to direct the presence of witnesses
whose evidence cannot be recorded. Similarly, cross-examination should
be complete immediately after the examination-in-chief and, if need be,
within a short time thereafter. No long adjournment should be allowed.”
The Bench said: “We hope and trust that the High Courts would take
serious note of the directions issued in the decisions reported in the
Rajdeo Sharma case1, which has been extensively quoted and reiterated
in the subsequent decision of this court reported in the Shambhu Nath
case2, and comply with the directions at least in the future years. In this
respect, the High Courts will also be well advised to use their machinery
in the respective State Judicial Academy to achieve the desired result.
Don’t blame tools
The Bench said: “It is no justification to glide on any alibi by blaming
the infrastructure for skirting the legislative mandates embalmed in 1 Ref : Supreme Court of India, Raj Deo Sharma vs The State Of Bihar on 22 September, 1999, Bench: M.Srinivasan,
M.B.Shah. PETITIONER: RAJ DEO SHARMA Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT:22/09/1999 BENCH: M.Srinivasan, M.B.Shah. 2 Fref : Supreme Court of India, State Of U.P vs Shambhu Nath Singh And Ors on 29 March, 2001 Author: Thomas
Bench: K Thomas, R Sethi CASE NO.: Appeal (crl.) 392 of 2001 PETITIONER: STATE OF U.P. Vs. RESPONDENT: SHAMBHU NATH SINGH AND ORS. DATE OF JUDGMENT: 29/03/2001 BENCH: K.T. Thomas & R.P. Sethi
236
Section 309 of the Code. A judicious judicial officer who is committed
to his work could manage with the existing infrastructure for complying
with the legislative mandates. The precept in the old homily that a lazy
workman always blames his tools is the only answer to those indolent
judicial officers who find fault with the defects in the system and the
imperfections of the existing infrastructure for their tardiness in coping
with such directions.”
The Bench was dismissing an appeal filed by Akil alias Javed and
Murslim, who were awarded life imprisonment in a case of robbery and
causing the death of Salvinder. The appeal was directed against a Delhi
High Court judgment, which confirmed the trial court order.
It is almost a common practice that trial courts flout command with
impunity Advocate’s inconvenience is no ‘special reason’ for bypassing
mandate of Section 309 Cr.PC
Relevant Portion of the Judgement
We have referred to the above legal position relating to the extent of
reliance that can be placed upon a hostile witness who was not declared
hostile and in the same breath, the dire need for the Courts dealing with
cases involving such a serious offence to proceed with the trial
commenced on day to day basis in de die in diem until the trial is
concluded. We wish to issue a note of caution to the trial Court dealing
with sessions case to ensure that there are well settled procedures laid
down under the Code of Criminal Procedure as regards the manner in
which the trial should be conducted in sessions cases in order to ensure
dispensation of justice without providing any scope for unscrupulous
elements to meddle with the course of justice to achieve some unlawful
advantage. In this respect, it is relevant to refer to the provisions
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contained in Chapter XVIII of the Criminal Procedure Code where under
Section 231 it has been specifically provided that on the date fixed for
examination of witnesses as provided under Section 230, the Session’s
Judge should proceed to take all such evidence as may be produced in
support of the prosecution and that in his discretion may permit cross-
examination of any witnesses to be deferred until any other witness or
witnesses have been examined or recall any witness for further cross-
examination.
Under Section 309 of Cr.P.C. falling under Chapter XXIV it has been
specifically stipulated as under:
“309. Power to postpone or adjourn proceedings.—(1) In every inquiry
or trial, the proceedings shall be held as expeditiously as possible, and in
particular, when the examination of witnesses has once begun, the same
shall be continued from day to day until all the witnesses in attendance
have been examined, unless the court finds the adjournment of the same
beyond the following day to be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to an offence under
Sections 376 to Section 376 D of the Indian Penal Code (45 of 1860), the
inquiry or trial shall, as far as possible, be completed within a period of
two months from the date of commencement of the examination of
witnesses.
If the court, after taking cognizance of an offence, or commencement of
trial, finds it necessary or advisable to postpone the commencement of,
or adjourn, any inquiry or trial, it may, from time to time, for reasons to
be recorded, postpone or adjourn the same on such terms as it thinks fit,
for such time as it considers reasonable, and may by a warrant remand
the accused if in custody:
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Provided that no Magistrate shall remand an accused person to custody
under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment
or postponement shall be granted, without examining them, except for
special reasons to be recorded in writing:
Provided also, that no adjournment shall be granted for the purpose only
for enabling the accused person to show cause against the sentence
proposed to be imposed on him.
Explanation 1 – If sufficient evidence has been obtained to raise a
suspicion that the accused may have committed an offence and it appears
likely that further evidence may be obtained by a remand this is a
reasonable cause for a remand.
Explanation 2 – The terms on which an adjournment or postponement
may be granted include, in appropriate cases, the payment of costs by the
prosecution or the accused.”
In this context it will also be worthwhile to refer to a circular issued by
the High Court of Delhi in Circular No.1/87 dated 12th January 1987.
Clause 24A of the said circular reads as under: “24A disturbing trend of
trial of Sessions cases being adjourned, in some cases to suit
convenience of counsel and in some others because the prosecution is
not fully ready, has come to the notice of the High Court. Such
adjournments delay disposal of Sessions cases.
The High Court considers it necessary to draw the attention of all the
Sessions Judges and Assistant Sessions Judges once again to the
following provisions of the Code of Criminal Procedure, 1973, Criminal
Rules of Practice, Kerala, 1982 and Circulars and instructions on the list
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system issued earlier, in order to ensure the speedy disposal of Sessions
cases.
1.(a) In every enquiry or trial, the proceedings shall be held as
expeditiously as possible, and, in particular, when the examination of
witnesses has once begun, the same shall be continued from day to day
until all the witnesses in attendance have been examined, unless the
court finds the adjournment of the same beyond the following day to be
necessary for reasons to be recorded. (Section 309 (1) Crl.P.C.).
(b) After the commencement of the trial, if the court finds it
necessary or advisable to postpone the commencement of, or adjourn,
any inquiry or trial, it may, from time to time, for reasons to be recorded
postpone or adjourn the same on such terms as it thinks fit, for such time
as it considers reasonable. If witnesses are in attendance no adjournment
or postponement shall be granted, without examining them, except for
special reasons to be recorded, in writing. (Section 309 (2) Cr.P.C.).
2. Whenever more than three months have elapsed between the date
of apprehension of the accused and the close of the trial in the Court of
Sessions, an explanation of the cause of delay, (in whatever court it may
have occurred) shall be furnished, while transmitting the copy of the
judgment. (Rule 147 Crl. Rules of Practice).
3. Sessions cases should be disposed of within six weeks of their
institution, the date of commitment being taken as the date of institution
in Sessions Cases. Cases pending for longer periods should be regarded
as old cases in respect of which explanations should be furnished in the
calendar statements and in the periodical returns. (High Court Circular
No. 25/61 dated 26th October 1961).
240
4. Sessions cases should be given precedence over all other work
and no other work should be taken up on session’s days until the sessions
work for the day is completed. A Sessions case once posted should not
be postponed unless that is unavoidable, and once the trial has begun, it
should proceed continuously from day to day till it is completed. If for
any reason, a case has to be adjourned or postponed, intimation should
be given forthwith to both sides and immediate steps be taken to stop the
witnesses and secure their presence on the adjourned date.
On receipt of the order of commitment the case should be posted for trial
to as early a date as possible, sufficient time, say three weeks, being
allowed for securing the witnesses. Ordinarily it should be possible to
post two sessions cases a week, the first on Monday and the second on
Thursday but sufficient time should be allowed for each case so that one
case does not telescope into the next. Every endeavour should be made
to avoid telescoping and for this, if necessary, the court should
commence sitting earlier and continue sitting later than the normal hours.
Judgment in the case begun on Monday should ordinarily be pronounced
in the course of the week and that begun on Thursday the following
Monday. (Instructions on the list system contained in the O.M. dated 8th
March 1984).
All the Sessions Judges and the Assistant Sessions Judges are directed to
adhere strictly to the above provisions and instructions while granting
adjournments in Sessions Cases.
In this context some of the decisions which have specifically dealt with
such a situation which has caused serious inroad into the criminal
jurisprudence can also be referred to. In one of the earliest cases reported
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in Badri Prasad V. Emperor1 – (1912) 13 Crl. L.J. 861, a Division Bench
of the Allahabad High Court has stated the legal position as under:
“….Moreover, we wish to point out that it is most inexpedient for a
Sessions trial to be adjourned. The intention of the Code is that a trial
before a Court of Session should proceed and be dealt with continuously
from its inception to its finish. Occasions may arise when it is necessary
to grant adjournments, but such adjournments should be granted only on
the strongest possible ground and for the shortest possible period…..
In a decision reported in Chandra Sain Jain and others V. The State –
19822 Crl. L.J. NOC 86 (ALL) a Single Judge has held as under while
interpreting Section 309 of Cr.P.C.
“Merely because the prosecution is being done by C.B.I. or by any other
prosecuting agency, it is not right to grant adjournment on their mere
asking and the Court has to justify every adjournment if allowed, for, the
right to speedy trial is part of fundamental rights envisaged under Art. 21
of the Constitution, 1979 Cri LJ 1036 (SC).”
In the decision reported in The State V. Bilal Rai and others 3– 1985 Crl.
L.J. NOC 38 (Delhi) it has been held as under: “When witnesses of a
party are present, the court should make every possible endeavour to
record their evidence and they should not be called back again. The work
fixation of the Court should be so arranged as not to direct the presence
of witnesses whose evidence cannot be recorded. Similarly, cross-
examination of the witnesses should be completed immediately after the
examination in chief and if need be within a short time thereafter. No 1 Ref : Allahabad High Court Emperor vs Badri Prasad on 24 March, 1922 Equivalent citations: (1922) ILR 44 All 538
Author: G Mears Bench: G Mears, P C Banerji JUDGMENT Grimwood Mears, C.J. 2 Ref : Supreme Court of India Akil @ Javed vs State Of Nct Of Delhi on 6 December, 2012 Bench: Swatanter Kumar,
Fakkir Mohamed Kalifulla CRIMINAL APPEAL NO.1735 OF 2009. 3 Ref : Delhi High Court Sudhir Bale vs Bilal Rai And Ors. on 23 July, 1984 Equivalent citations: 1984 (7) DRJ 140, 1984
RLR 541 Author: D Khanna Bench: D Khanna JUDGMENT D.R. Khanna, J.
242
long adjournment should be allowed. Once the examination of witnesses
has begun the same should be continued from day to day.”
In the decision reported in Lt. Col. S.J. Chaudhary V. State 1(Delhi
Administration) – (1984) 1 SCC 722, this Court in paragraphs 2 and 3
has held as under:
“2. We think it is an entirely wholesome practice for the trial to go on
from day-to-day. It is most expedient that the trial before the Court of
Session should proceed and be dealt with continuously from its inception
to its finish. Not only will it result in expedition, it will also result in the
elimination of manoeuvre and mischief. It will be in the interest of both
the prosecution and the defence that the trial proceeds from day-to- day.
It is necessary to realise that Sessions cases must not be tried piecemeal.
Before commencing a trial, a Sessions Judge must satisfy himself that all
necessary evidence is available. If it is not, he may postpone the case,
but only on the strongest possible ground and for the shortest possible
period. Once the trial commences, he should, except for a very pressing
reason which makes an adjournment inevitable, precede de die in diem
until the trial is concluded.
We are unable to appreciate the difficulty said to be experienced by the
petitioner. It is stated that his Advocate is finding it difficult to attend the
court from day-to-day. It is the duty of every Advocate, who accepts the
brief in a criminal case to attend the trial from day-to- day. We cannot
over-stress the duty of the Advocate to attend to the trial from day-to-
day. Having accepted the brief, he will be committing a breach of his
1 Ref : Supreme Court of India Lt. Col., S.J. Chaudhary vs State (Delhi Administration) on 17 January, 1984 Equivalent
citations: 1984 AIR 618, 1984 SCR (2) 438 Bench: Reddy, O Chinnappa PETITIONER: LT. COL., S.J. CHAUDHARY Vs. RESPONDENT: STATE (DELHI ADMINISTRATION) DATE OF JUDGMENT17/01/1984 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J) CITATION: 1984 AIR 618 1984 SCR (2) 438 1984 SCC (1) 722 1984 SCALE (1)92
243
professional duty, if he so fails to attend. The criminal miscellaneous
petition is, therefore, dismissed.”
In a recent decision of the Delhi High Court reported in State V. Ravi
Kant Sharma and Ors.1 – 120 (2005) DLT 213, a Single Judge of the
High Court has held as under in paragraph 3:
“3. True the Court has discretion to defer the cross- examination. But as
a matter of rule, the Court cannot orders in express terms that the
examination-in-chief of the witnesses is recorded in a particular month
and his cross-examination would follow in particular subsequent month.
Even otherwise it is the demand of the criminal jurisprudence that
criminal trial must proceed day-to-day. The fixing of dates only for
examination-in- chief of the lengthy witnesses and fixing another date
i.e. 3 months later for the purposes of cross-examination is certainly
against the criminal administration of justice.
Examination-in- chief if commenced on a particular date, the Trial Judge
has to ensure that his cross-examination must conclude either on the
same date or the next day if cross-examination is lengthy or can continue
on the consecutive dates. But postponing the cross- examination to a
longer period of 3 month is certainly bound to create legal complications
as witnesses whose examination-in- chief recorded earlier may insist on
refreshing their memory and therefore such an occasion should not be
allowed to arise particularly when it is the demand of the criminal law
that trial once commence must take place on day-to-day basis. For these
reasons, the order passed by the learned Additional Sessions Judge to
1 Ref : Delhi High Court Ravi Kant Sharma vs State on 12 October, 2011 Author: Badar Durrez Ahmed * IN THE HIGH
COURT OF DELHI AT NEW DELHI % Judgment delivered on 12.10.2011 + CRL.A. 357/2008 RAVI KANT SHARMA ... Appellant - versus - STATE ... Respondent Advocates who appeared in this case: For the Appellant : Mr Sushil Kumar, Sr. Advocate with Mr Sudarshan Rajan and Md. Qamar Ali For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil AND + CRL.A. 486/2008 SHRI BHAGWAN SHARMA ... Appellant - versus - STATE ... Respondent
244
that extent will not hold good in the eyes of law and therefore the same is
liable to be set aside. Set aside as such. Learned Additional Sessions
Judge should refix the schedule of dates of examination of prosecution
witnesses and shall ensure that examination-in-chief once commences
cross- examination is completed without any interruption.”
In a comprehensive decision of this Court reported in State of U.P. V.
Shambhu Nath Singh and others 1– (2001) 4 SCC 667 the legal position
on this aspect has been dealt with in extenso. Useful reference can be
made to paragraphs 10, 11 to 14 and 18:
“10. Section 309 of the Code of Criminal Procedure (for short “the
Code”) is the only provision which confers power on the trial court for
granting adjournments in criminal proceedings. The conditions laid
down by the legislature for granting such adjournments have been
clearly incorporated in the section. It reads thus:
The first sub-section mandates on the trial courts that the proceedings
shall be held expeditiously but the words “as expeditiously as possible”
have provided some play at the joints and it is through such play that
delay often creeps in the trials. Even so, the next limb of the sub-section
sounded for a more vigorous stance to be adopted by the court at a
further advanced stage of the trial. That stage is when examination of the
witnesses begins. The legislature which diluted the vigour of the
mandate contained in the initial limb of the sub-section by using the
words “as expeditiously as possible” has chosen to make the requirement
for the next stage (when examination of the witnesses has started) to be
quite stern. Once the case reaches that stage the statutory command is
1 Ref : Supreme Court of India State Of U.P vs Shambhu Nath Singh And Ors on 29 March, 2001 Author: Thomas Bench:
K Thomas, R Sethi CASE NO.: Appeal (crl.) 392 of 2001 PETITIONER: STATE OF U.P. Vs. RESPONDENT: SHAMBHU NATH SINGH AND ORS. DATE OF JUDGMENT:29/03/2001 BENCH: K.T. Thomas & R.P. Sethi JUDGMENT: THOMAS, J.
245
that such examination “shall be continued from day to day until all the
witnesses in attendance have been examined”. The solitary exception to
the said stringent rule is, if the court finds that adjournment “beyond the
following day to be necessary” the same can be granted for which a
condition is imposed on the court that reasons for the same should be
recorded. Even this dilution has been taken away when witnesses are in
attendance before the court. In such situation the court is not given any
power to adjourn the case except in the extreme contingency for which
the second proviso to sub-section (2) has imposed another condition,
“Provided further that when witnesses are in attendance, no adjournment
or postponement shall be granted, without examining them, except for
special reasons to be recorded in writing”. (emphasis supplied)
Thus, the legal position is that once examination of witnesses started,
the court has to continue the trial from day to day until all witnesses in
attendance have been examined (except those whom the party has given
up). The court has to record reasons for deviating from the said course.
Even that is forbidden when witnesses are present in court, as the
requirement then is that the court has to examine them. Only if there are
“special reasons”, which reasons should find a place in the order for
adjournment that alone can confer jurisdiction on the court to adjourn the
case without examination of witnesses who are present in court.
Now, we are distressed to note that it is almost a common practice and
regular occurrence that trial courts flout the said command with
impunity. Even when witnesses are present, cases are adjourned on far
less serious reasons or even on flippant grounds. Adjournments are
granted even in such situations on the mere asking for it. Quite often
such adjournments are granted to suit the convenience of the advocate
concerned. We make it clear that the legislature has frowned at granting
246
adjournments on that ground. At any rate inconvenience of an advocate
is not a “special reason” for bypassing the mandate of Section 309 of the
Code.
If any court finds that the day-to-day examination of witnesses mandated
by the legislature cannot be complied with due to the non-cooperation of
the accused or his counsel the court can adopt any of the measures
indicated in the sub-section i.e. remanding the accused to custody or
imposing cost on the party who wants such adjournments (the cost must
be commensurate with the loss suffered by the witnesses, including the
expenses to attend the court). Another option is, when the accused is
absent and the witness is present to be examined, the court can cancel his
bail, if he is on bail (unless an application is made on his behalf seeking
permission for his counsel to proceed to examine the witnesses present
even in his absence provided the accused gives an undertaking in writing
that he would not dispute his identity as the particular accused in the
case).
It is no justification to glide on any alibi by blaming the infrastructure for
skirting the legislative mandates embalmed in Section 309 of the Code.
A judicious judicial officer who is committed to his work could manage
with the existing infrastructure for complying with such legislative
mandates. The precept in the old homily that a lazy workman always
blames his tools, is the only answer to those indolent judicial officers
who find fault with the defects in the system and the imperfections of the
existing infrastructure for their tardiness in coping with such directions.”
Keeping the various principles, set out in the above decisions, in mind
when we examine the situation that had occurred in the case on hand
where PW.20 was examined-in-chief on 18.09.2000 and was cross
examined after two months i.e. on 18.11.2000 solely at the instance of
247
the appellant’s counsel on the simple ground that the counsel was
engaged in some other matter in the High Court on the day when PW.20
was examined-in-chief, the adjournment granted by the trial Court at the
relevant point of time only disclose that the Court was oblivious of the
specific stipulation contained in Section 309 of Cr.P.C. which mandate
the requirement of sessions trial to be carried on a day to day basis. The
trial Court has not given any reason much less to state any special
circumstance in order to grant such a long adjournment of two months
for the cross-examination of PW.20. Every one of the caution indicated
in the decision of this Court reported in Rajdeo Sharma V. State of Bihar
1– 1998 Crl. L.J. 4596 was flouted with impunity. In the said decision a
request was made to all the High Courts to remind all the trial Judges of
the need to comply with Section 309 of the Code in letter and spirit. In
fact, the High Courts were directed to take note of the conduct of any
particular trial Judge who violates the above legislative mandate and to
adopt such administrative action against the delinquent judicial officer as
per the law.
It is unfortunate that in spite of the specific directions issued by this
Court and reminded once again in Shambhu Nath (supra) such
recalcitrant approach was being made by the trial Court unmindful of the
adverse serious consequences affecting the society at large flowing
therefrom.
Therefore, even while disposing of this appeal by confirming the
conviction and sentence imposed on the appellant by the learned trial
Judge, as confirmed by the impugned judgment of the High Court, we
direct the Registry to forward a copy of this decision to all the High
1 Ref : Supreme Court of India Raj Deo Sharma vs The State Of Bihar on 22 September, 1999 Bench: M.Srinivasan,
M.B.Shah. PETITIONER: RAJ DEO SHARMA Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT: 22/09/1999
248
Courts to specifically follow the instructions issued by this Court in the
decision reported in Rajdeo Sharma (supra) and reiterated in Shambhu
Nath (supra) by issuing appropriate circular, if already not issued. If such
circular has already been issued, as directed, ensure that such directions
are scrupulously followed by the trial Courts without providing scope for
any deviation in following the procedure prescribed in the matter of a
trial of session’s cases as well as other cases as provided under Section
309 of Cr.P.C.
In this respect, the High Courts will also be well advised to use their
machinery in the respective State Judicial Academy to achieve the
desired result. We hope and trust that the respective High Courts would
take serious note of the above directions issued in the decisions reported
in Rajdeo Sharma (supra) which has been extensively quoted and
reiterated in the subsequent decision of this Court reported in Shambhu
Nath (supra) and comply with the directions at least in the future years.
In the result, while we upheld the conviction and sentence imposed on
the appellant, we issue directions in the light of the provisions contained
in Section 231 read along with Section 309 of Cr.P.C. for the trial Court
to strictly adhere to the procedure prescribed therein in order to ensure
speedy trial of cases and also rule out the possibility of any manoeuvring
taking place by granting undue long adjournment for mere asking. The
appeal stands dismissed.
249
4.2 TRIAL COURT CAN ISSUE DIRECTION TO INITIATE
DISCIPLINARY PROCEEDINGS AGAINST CORRUPT
IO, MEDICAL OFFICER
Court should leave no stone unturned to do justice and protect the
interest of the society as well . In case of Dayal Singh v. State of
Uttaranchal,1 (2012) 8 SCC 263 ,the investigating officer, as well as the
doctor who are dealing with the investigation of a criminal case, are
obliged to act in accordance with the Police Manual and the known
canons of medical practice, respectively. They are both obliged to be
diligent, truthful and fair in their approach and investigation. A default or
breach of duty, intentionally or otherwise, can sometimes prove fatal to
the case of the prosecution. An investigating officer is completely
responsible and answerable for the manner and methodology adopted in
completing his investigation. Where the default and omission is so
flagrant that it speaks volumes of a deliberate act or such irresponsible
attitude of investigation, no court can afford to overlook it, whether it did
or did not cause prejudice to the case of the prosecution.
It is possible that despite such default/omission, the prosecution may still
prove its case beyond reasonable doubt and the court can so return its
finding. But, at the same time, the default and omission would have a
reasonable chance of defeating the case of the prosecution in some
events and the guilty could go scot-free. We may illustrate such kind of
investigation with an example where a huge recovery of opium or poppy
husk is made from a vehicle and the investigating officer does not even
investigate or make an attempt to find out as to who is the registered
1 Ref : Supreme Court of India Dayal Singh & Ors. vs State Of Uttaranchal on 3 August, 2012 Author: S Kumar
Bench: Swatanter Kumar, Fakkir Mohamed Kalifulla REPORTABLE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.529 OF 2010
250
owner of the vehicle and whether such owner was involved in the
commission of the crime or not. Instead, he merely apprehends a cleaner
and projects him as the principal offender without even reference to the
registered owner.
Apparently, it would prima facie be difficult to believe that a cleaner of a
truck would have the capacity to buy and be the owner, in possession of
such a huge quantity i.e. hundreds of bags of poppy husk. The
investigation projects the poor cleaner as the principal offender in the
case without even reference to the registered owner.
Dereliction of duty or carelessness is an abuse of discretion under a
definite law and misconduct is a violation of indefinite law. Misconduct
is a forbidden act whereas dereliction of duty is the forbidden quality of
an act and is necessarily indefinite. One is a transgression of some
established and definite rule of action, with least element of discretion,
while the other is primarily an abuse of discretion. This Court in State of
Punjab v. Ram Singh 1[(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992)
21 ATC 435] stated that the ambit of these expressions had to be
construed with reference to the subject-matter and the context where the
term occurs, regard being given to the scope of the statute and the public
purpose it seeks to serve. The police service is a disciplined service and
it requires maintenance of strict discipline.
The consequences of these defaults should normally be attributable to
negligence. Police officers and doctors, by their profession, are required
to maintain duty decorum of high standards. The standards of
1 Ref : Supreme Court of India State Of Punjab And Ors vs Ram Singh Ex. Constable on 24 July, 1992 Equivalent
citations: 1992 AIR 2188, 1992 SCR (3) 634 Bench: Ramaswamy, K. PETITIONER: STATE OF PUNJAB AND ORS. Vs. RESPONDENT: RAM SINGH EX. CONSTABLE DATE OF JUDGMENT24/07/1992 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMADI, A.M. (J) PUNCHHI, M.M. CITATION: 1992 AIR 2188 1992 SCR (3) 634 1992 SCC (4) 54 JT 1992 (4) 253 1992 SCALE (2)76
251
investigation and the prestige of the profession are dependent upon the
action of such specialised persons. The Police Manual and even the
provisions of CrPC require the investigation to be conducted in a
particular manner and method which, in our opinion, stands clearly
violated in the present case. Dr C.N. Tewari, not only breached the
requirement of adherence to professional standards but also became
instrumental in preparing a document which, ex facie, was incorrect and
stood falsified by the unimpeachable evidence of the eyewitnesses
placed by the prosecution on record. Also, in the same case, the Court,
while referring to the decision in Awadh Bihari Yadav v. State of Bihar
[(1995) 6 SCC 31] noticed that if primacy is given to such designed or
negligent investigation, to the omission or lapses by perfunctory
investigation or omissions, the faith and confidence of the people would
be shaken not only in the law enforcement agency but also in the
administration of justice.
This results in shifting of avoidable burden and exercise of higher degree
of caution and care on the courts. Dereliction of duty or carelessness is
an abuse of discretion under a definite law and misconduct is a violation
of indefinite law. Misconduct is a forbidden act whereas dereliction of
duty is the forbidden quality of an act and is necessarily indefinite. One
is a transgression of some established and definite rule of action, with
least element of discretion, while the other is primarily an abuse of
discretion. This Court in State of Punjab v. Ram Singh [(1992) 4 SCC 54
: 1992 SCC (L&S) 793 : (1992) 21 ATC 435] stated that the ambit of
these expressions had to be construed with reference to the subject-
matter and the context where the term occurs, regard being given to the
scope of the statute and the public purpose it seeks to serve. The police
252
service is a disciplined service and it requires maintenance of strict
discipline.
The consequences of these defaults should normally be attributable to
negligence. Police officers and doctors, by their profession, are required
to maintain duty decorum of high standards. The standards of
investigation and the prestige of the profession are dependent upon the
action of such specialised persons. The Police Manual and even the
provisions of CrPC require the investigation to be conducted in a
particular manner and method which, in our opinion, stands clearly
violated in the present case. Dr C.N. Tewari, not only breached the
requirement of adherence to professional standards but also became
instrumental in preparing a document which, ex facie, was incorrect and
stood falsified by the unimpeachable evidence of the eyewitnesses
placed by the prosecution on record. Also, in the same case, the Court,
while referring to the decision in Awadh Bihari Yadav v. State of Bihar
1[(1995) 6 SCC 31] noticed that if primacy is given to such designed or
negligent investigation, to the omission or lapses by perfunctory
investigation or omissions, the faith and confidence of the people would
be shaken not only in the law enforcement agency but also in the
administration of justice.
Where our criminal justice system provides safeguards of fair trial and
innocent till proven guilty to an accused, there it also contemplates that a
criminal trial is meant for doing justice to all, the accused, the society
and a fair chance to prove to the prosecution. Then alone can law and
order be maintained. The courts do not merely discharge the function to
1 Ref : Supreme Court of India :Awadh Bihari Yadav & Ors vs The State Of Bihar & Ors on 31 August, 1995 Equivalent
citations: 1996 AIR 122, 1995 SCC (6) 31 Author: Paripoornan Bench: Paripoornan, K.S. PETITIONER: AWADH BIHARI YADAV & ORS. Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT31/08/1995 BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) RAMASWAMY, K. CITATION: 1996 AIR 122 1995 SCC (6) 31 JT 1995 (6) 248 1995 SCALE (5)74
253
ensure that no innocent man is punished, but also that a guilty man does
not escape. Both are public duties of the Judge. During the course of the
trial, the learned Presiding Judge is expected to work objectively and in a
correct perspective. Where the prosecution attempts to misdirect the trial
on the basis of a perfunctory or designedly defective investigation, there
the Court is to be deeply cautious and ensure that despite such an
attempt, the determinative process is not subverted. For truly attaining
this object of a “fair trial”, the Court should leave no stone unturned to
do justice and protect the interest of the society as well.
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4.3 JUDICIAL RESPONSES TO DOMESTIC VIOLENCE1:
Although prosecutors and forensic doctors in countries in CEE/CIS 2
often have considerable control over the initiation and course of criminal
proceedings, judges can help protect victims and ensure batterer
accountability in many ways. In the courtroom, they enforce and
interpret existing laws; they may also have the ability to establish
courtroom policies and procedures that enhance victim safety. Outside of
the courtroom, judges are often community leaders, and can help shape a
community’s response to domestic violence by mobilizing other
professionals and through example.
Judges, like prosecutors and police, are also a critical part of a
coordinated community response; coordination of judicial responses with
those of other actors in the legal, medical and advocacy communities can
avoid inconsistent responses that undermine victim safety and batter
accountability.
1 Ref : BBC Monitoring International Reports (2003) Polish president starts European integration campaign, BBC
Monitoring International Reports, 20 June 2003. 2 CEE/CIS, Central Eastern Europe/Commonwealth of Independent States.
255
4.4 ENFORCING LAWS
Judges can protect victim safety and increase batterer accountability by
enforcing existing laws. In many countries, general criminal laws for
assault are the only means available for sanctioning a batterer. Judges
can enforce the existing laws by treating assaults committed by partners
as serious crimes.
Similarly, prompt and consistent enforcement of civil orders for
protection, where these are available, is critical. Research indicates that
even a short time in jail for violations of protection orders highlights for
the abuser the seriousness with which the legal system will view
domestic abuse. Giving abusers “second chances” endangers the victim
and sends a message to both abuser and victim that the protection order
will not be enforced.
Judges can also inform batterers when the protection order is issued that
violations will be punished. Research indicates that pairing the order
with a verbal warning not only increases the likelihood that the batterer
will comply with the order, but also communicates to the victim (and to
all others in the courtroom) that she has a right to be free from violence
and that the community will not tolerate domestic violence. Judges can
also alleviate some of the threat of retaliation by emphasizing that the
issuance of a protection order is the responsibility of the court, not the
victim— thus also making clear that the abuse is not a “private” matter
but rather a community concern.
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4.5 EXERCISING DISCRETION
Judges may also have discretion in interpreting or enforcing the laws.
Sometimes judges exercise their discretion in ways that undermine
victim safety and batterer accountability. For example, in Poland, judges
routinely suspend sentences for domestic violence convictions. A
suspended sentence reinforces the batterer’s belief in his right to use
violence to establish power and control over his partner, as well as his
perception that such violence will not be punished.
From MAHR, A Report on Domestic Violence in Poland 4 (2002)1.
While prosecutors may have the authority to determine the charges
brought against a defendant, judges may be able to choose among
different penalties. Different sentences may be called for in different
contexts. For example, a monetary fine is often borne by the family of
the abuser; as a result, restitution—orders to the abuser to pay the victim
for lost wages, destroyed property, or medical expenses—may be more
appropriate. In some countries, such options may not be available. In
Uzbekistan, for example, research revealed that women were reluctant to
use the legal system because there were no sanctions available short of
fines or imprisonment.
From MAHR, Domestic Violence in Uzbekistan 25 (2000)2.
In these situations, creative approaches may be necessary to fashion a
remedy that ensures the safety of the victim while sanctioning the
batterer.
1 Red :Adapted from Judge Jerry J. Bowles, Judicial Response to Domestic Violence (2000); James Ptacek, Battered
Women in the Courtroom: The Power of Judicial Responses (1999); Richard Ducote, The Family Law Commentator 4 (1998); Gail A. Goolkasian, Confronting Domestic Violence: The Role of Criminal Court Judges 4 (1986). 2 Ref : Nowakowska, Urszula (2000) Government mechanism for the advancement of women, in: Urszula Nowakowska
(Ed.) Polish Women in the ’90s: The Report by the Women’s Rights Center (Warsaw, Centrum Praw Kobiet).
257
Judges may also have discretion in family law matters. Divorce is one of
the only forms of legal relief available to battered women in many
countries; mandatory mediation not only places them in danger of
retaliation from the batterer, but may provide the batterer with
opportunities to intimidate and coerce. In some countries, such mediation
is mandatory, while in others it is discretionary. To the extent a judge has
discretion in requiring mediation, setting the length of time allotted to
mediation, or granting a divorce, judges should exercise this discretion
carefully. The dangers faced by victims in attempting to leave a
relationship should be recognized and reflected in any judicial ruling.
Finally, judges may also have the authority to make decisions about
applications for pre-trial release. Because victims of domestic violence
are most vulnerable when they attempt to leave a relationship, such
decisions should be based on the risk posed by release to the victim. In
criminal cases, judges may be able to deny release, impose conditions on
the release, or issue a no contact order to ensure that the abuser does not
attempt to retaliate against the victim. No contact orders in criminal
cases direct the abuser to stay away from the victim pending resolution
of the case. They are similar to orders for protection in some ways.
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4.6 ESTABLISHING POLICIES AND PROCEDURES
Judges may have the authority to establish courtroom policies and
procedures that can enhance victim safety. Batterers may attempt to
intimidate or even harm victims in the courtroom or on the way to or
from the courthouse. Judges may be able to ensure that victims are
provided with a separate waiting area; they may also be able to offer to
send an escort with the victim to her mode of transportation, or require
the batterer to delay his departure to ensure that he does not follow or
attack her. Metal detectors can be set up at courthouse entrances to
screen for weapons.
Judges may be able to establish policies or issue orders that require
victims to be notified prior to a defendant’s release. Women are in
significant danger of stalking and retaliatory violence after they seek to
use the legal system to protect themselves from abuse. Notifying a
woman that her batterer is about to be released can provide her with the
time she will need to plan for her safety.
Courthouse policies and procedures can also be revised to enhance
victim access. Courts can create emergency hours, establish multiple
locations at which victims can file for orders for protection, offer
multilingual services when necessary, and ensure that the courthouse and
courtrooms are accessible for people with disabilities. Judges may be
able to streamline courthouse procedures through the development of
common forms, checklists, and protocols, to shorten the time required to
obtain relief.
Courthouse policies and procedures can also be developed to increase
coordination between different agencies. Such procedures can, for
example, enhance post-conviction monitoring. If a batterer has been
259
ordered to participate in a batterer’s treatment program, it may be useful
to provide ways for that treatment program to notify the court or another
law enforcement agency if the batterer fails to comply with his sentence.
Recent efforts to coordinate judicial responses in the United States have
focused on the use of web-based technology to share information.
Demeanor1
Judges can also affect victim safety and batterer accountability through
their demeanor. When seeking assistance through the legal system, many
victims fear retaliation from the abuser, intimidation by an unfamiliar
and complicated legal process, and disbelief by the presiding judge.
Being willing to listen, taking the women’s words seriously, considering
her needs, making eye contact—all are ways in which judges can counter
such fears. Judicial demeanor also sets the tone for the demeanor of other
courtroom personnel. If judges treat domestic violence cases seriously,
other criminal justice personnel are more likely to follow this lead.
1 Noun Outward behavior or bearing: "a quiet, somber demeanor". Synonyms demeanour - behavior - behaviour -
conduct - deportment
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4.7 ADVOCACY STRATEGIES FOR JUDICIAL REFORM
Advocates can use a number of different strategies to promote improved
judicial responses. Court monitoring, for example, helps to identify areas
of concern and increase the visibility of these issues. Regular observation
and reporting by community members on judicial responses increases the
visibility of these responses in a particular community, as well as of
domestic violence issues generally. Observing itself can also increase
judicial self-awareness; many judges may become more aware of their
own handling of domestic violence cases and the effect they can have on
perpetrators and victims simply because of the presence of outside
observers in the courtroom. Court monitoring also sends a message to
the legal system that domestic violence is a community priority.
Training of judges and other courtroom personnel (security, clerks, etc.)
can also have a significant impact on judicial responses to domestic
violence issues in the courtroom. Training can provide judges with the
information they need to better address the needs of battered women and
ensure batterer accountability. Such training can focus on challenging
the myths surrounding domestic violence, the effect of domestic violence
on victims, the needs of victims, victim experiences in courts, and the
impact of judicial demeanor on abusers. Training can help judges
become more sensitive to the needs of victims and the dynamics of
domestic violence. For example, judges should be aware of the fact that
a woman seeking to withdraw a protection order or a criminal case may
have been threatened by the abuser.
The American Judges Foundation and American Judges Association
offer a pamphlet for judges, Domestic Violence and the Courtroom:
Understanding the Problem . . . Knowing the Victim, that discusses
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forms of abuse, dynamics of domestic violence, and ways in which
judges can help protect victims of domestic violence. Portions of this
pamphlet may be particularly useful as hand outs in training sessions.
Safety and Accountability: The Underpinnings of a Just Justice System,
provides a detailed discussion of some of the barriers faced by battered
women in accessing the court system.1
1 Adapted from Judge Jerry J. Bowles, Judicial Response to Domestic Violence (2000); James Ptacek, Battered Women
in the Courtroom: The Power of Judicial Responses (1999); Richard Ducote, The Family Law Commentator 4 (1998); Gail A. Goolkasian, Confronting Domestic Violence: The Role of Criminal Court Judges 4 (1986).
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4.8 JUDICIAL INITIATIVES TOWARDS WOMEN
EMPOWERMENT
The development of a nation solely depends on the social status of
women. Women constitute almost one half of the globe's population.
Women have been victims of exploitations by male dominated society.
Women need to be empowered and men need to be oriented about their
obligations towards women. Women continue to be exploited. The
position is same everywhere wherever developed, the developing or
under developed. Women play major roles during various stages of their
life as a daughter, wife, mother and sister, etc. In spite of her
contribution to human beings, she still belongs to a backward class on
account of various social, political, economic and psychological barriers
and impediments.
On one side, woman is worshipped as goddess and on the other side she
is oppressed, suppressed, depressed, exploited and victimized by the
male dominated society. A report of the United Nations say that
"Women constitute half of the world population, perform nearly two
thirds of work hours, receive one tenth of the world’s income and own
less than one-hundredth per cent of the world's property." Women still
suffer from discrimination, exploitation and victimization. The need of
the hour is empowerment of women. Empowerment essentially means
decentralization of authority and power. It aims at getting participation
of deprived sections of people in decision-making process. It means
giving voice for voiceless.
Empowerment may mean equal status to women to develop her. Man
should give women opportunity and freedom to develop her. Women
empowerment looks at basic woman rights and attempts on organising to
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attain them. Women empowerment can influence not only their own
lives but also the lives of man and children. Women empowerment may
enhance their self-confidence and their ability and willingness to
challenge oppression. Women empowerment aims at eliminating
discrimination and challenging gender inequality. This essay discusses
the legislative and judicial initiatives towards women empowerment.
Judicial Initiative :
Though plethora of legislations exists, due to ineffective
enforcement, women are exploited by the male dominated society.
Male dominated society has found ways to circumvent the
provisions of the Act and act as a blockade against women
empowerment. Due to the failure of the legislations to protect
women, judiciary has come forward to protect women. In
protecting the women, the Indian Judiciary has removed all the
procedural shackles and has completely revolutionised
constitutional litigations. The judiciary has encouraged widest
possible coverage of the legislations by liberal interpreting the
terms. The judiciary has shifted from doctrine approach to the
pragmatic approach, which was conducive to all interests in the
society. The Courts have shown greater enthusiasm in granting the
constitutional provisions for all women. The judiciary by its
landmark judgments had filled up the gap created by the
Legislative machinery. The Judiciary had extended helping hands
to women. When the legislature had denied it, the higher judiciary
has shown concern for women’s right in recent times; it also had
been greatly influenced by the international declaration and
covenants on women’s rights.
264
The vibrant judiciary has recently exalted the dignity of women by its
golden judgments. In Municipal Corporation of Delhi v. Female Workers
(Muster Roll) (AIR 2000 SC 1274)1, the Supreme Court extended the
benefits of the Maternity Benefit Act, 1961 to the Muster Roll (Daily
Wagers) female employees of Delhi Municipal Corporation. In this case,
the Court directly incorporated the provisions of Article 11 of CEDAW,
1979 into the Indian Law. In Chairman, Railway Board v. Chandrima
Doss (AIR 2000 SC 988)2, the Supreme Court awarded compensation of
10 lakhs to an alien woman under Article 21 of Constitution, who has
been a victim of rape.
In Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149)3, the
Supreme Court interpreted Section 6(a) of Hindu Minority and
Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards
Act, 1890 in such a way that father and mother get equal status as
guardians of a minor. In Mohammed Ahmed Khan v. Shah Bano (AIR
1985 SC 945)4, the Supreme Court granted equal right of maintenance
under Section 125 of Cr. P.C. 1973 to a divorced married woman
notwithstanding the personal law.
The Supreme Court also held that "large segments of society which have
been traditionally subjected to unjust treatment, women are one such
segment." In Charansingh v. Union of India (1979 Lab IC 633), the
1 Ref : Supreme Court of India Municipal Corporation Of Delhi vs Female Workers (Muster Roll) & ... on 8 March, 2000
Equivalent citations: AIR 2000 SC 1274, 2000 (2) ALT 34 SC Author: S S Ahmad Bench: S Ahmed, D Wadhwa 2 Ref : Supreme Court of India The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors on 28 January, 2000
Author: S Ahmad Bench: R.P.Sethi, S Ahmad PETITIONER:THE CHAIRMAN, RAILWAY BOARD & ORS. Vs. RESPONDENT: MRS. CHANDRIMA DAS & ORS. DATE OF JUDGMENT: 28/01/2000 BENCH: R.P.Sethi, S.Saghir Ahmad JUDGMENT: S.SAGHIR AHMAD, J. 3 Ref : Supreme Court of India Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr on 17 February, 1999 Author:
Banerjee Bench: U C Banerjee PETITIONER: MS. GITHA HARIHARAN & ANR. Vs. RESPONDENT: RESERVE BANK OF INDIA & ANR. DATE OF JUDGMENT:17/02/1999 BENCH: Umesh C. Banerjee JUDGMENT: BANERJEE,J. 4 Ref : Supreme Court of India Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985 Equivalent citations:
1985 AIR 945, 1985 SCR (3) 844 Bench: Chandrachud, Y.V. PETITIONER: MOHD. AHMED KHAN Vs. RESPONDENT: SHAH BANO BEGUM AND ORS. DATE OF JUDGMENT23/04/1985 BENCH: CHANDRACHUD, Y.V. ((CJ)
265
Delhi High Court expressed that women are a backward class as
compared to men. In Government of Andhra Pradesh v. P. B. Vijay
Kumar (AIR 1995 SC 1648)1, the Supreme Court has held that the issue
of reservation for women in State services was upheld under Article
15(3) of the Indian Constitution. In Municipal Corporation of Delhi v.
Female Workers (AIR 2000 SC 1274, 1281), the Supreme Court held
that a just social order could be achieved only when inequalities are
obliterated and women, which constitute almost half of the segment of
our society, are honoured and treated with dignity.
In Uttarakhand Mahila Kalyan Parishad v. State of Uttar Pradesh 2(AIR
1992 SC 1695), the Supreme Court struck down the discriminatory rules
of Education Department of Government of Uttar Pradesh. In Air India
v. Nargis Mirza (AIR 1981 SC 1829), the Supreme Court struck down
the discriminatory Rules of Indian Airlines. In Bodhisattwa v. Ms.
Subhra Chakraborty 3(AIR 1996 SC 922), the Supreme Court held that
rape is a crime against basic human rights.
In Vishakha v. State of Rajasthan 4(AIR 1997 SC 301), the Supreme
Court took a serious note of the increasing menace of sexual harassment
at workplace and elsewhere. Considering the inadequacy of legislation
on the point, the Court even assumed the role of legislature and defined
sexual harassment and laid down instruction for the employers. In
1 Ref: Supreme Court of India, Government Of Andhra Pradesh vs P.B. Vijayakumar & Anr on 12 May, 1995 Equivalent
citations: 1995 AIR 1648, 1995 SCC (4) 520 Author: M V Manohar Bench: M S V. PETITIONER: GOVERNMENT OF ANDHRA PRADESH Vs. RESPONDENT: P.B. VIJAYAKUMAR & ANR. DATE OF JUDGMENT12/05/1995 BENCH:MANOHAR SUJATA V. (J) 2 Ref : Supreme Court of India Uttarakhand Mahila Kalyan ... vs State Of Uttar Pradesh on 6 August, 1991 Equivalent
citations: AIR 1992 SC 1695, 1992 LablC 1788, 1993 Supp (1) SCC 480 Bench: R M I., M Kania 3 Ref : Supreme Court of India Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1995 Equivalent
citations: 1996 AIR 922, 1996 SCC (1) 490 Author: S S Ahmad. Bench: A S S.PETITIONER: SHRI BODHISATTWA GAUTAM Vs. RESPONDENT: MISS SUBHRA CHAKRABORTY DATE OF JUDGMENT15/12/1995 BENCH: AHMAD SAGHIR S. (J) 4 Ref : Supreme Court of India Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997 Author: Verma Bench: S V
Manohar, B N Kirpal PETITIONER: VISHAKA & ORS. Vs. RESPONDENT: STATE OF RAJASTHAN & ORS. DATE OF JUDGMENT:13/08/1997 BENCH: CJI, SUJATA V. MANOHAR, B. N. KIRPAL
266
Apparel Export Promotion Council v. A. K. Chopra 1(AIR 1999 SC
625), the Supreme Court found all facets of gender equality including
prevention of sexual harassment in the fundamental rights granted by the
Constitution. In C. B. Muthamma v. Union of India 2(AIR 1979 SC
1868) : 1979 Lab IC 1307, a service rule whereby marriage was a
disability for appointment to foreign service was declared
unconstitutional by the Supreme Court. In Shobha Rani v. Madhukar
3(AIR 1988 SC 121), the Supreme Court held that dowry demand was
held enough to amount to cruelty. In Prathibha Rani v. Suraj Kumar
(AIR 1985 SC 628), the Supreme Court upheld women’s right to the
Stridhana. In State of Punjab v. Gurmit Singh (AIR 1996 SC 1393), the
Supreme Court held that rape was held to be violative of the right of
privacy. In Bodhisathwa Gowtham v. Subhra Chakaraborty (AIR 1996
SC 622), the Supreme Court observed that rape was not only an offence
under the criminal law, but it was a violation of the fundamental right to
life and liberty guaranteed by Article 21 of Indian Constitution.
In Saveetha Samvedhi case ((1996) 1 SCR 1046), the Supreme Court
held that a married daughter was allowed accommodation in parental
house. In Delhi Domestic Working Women’s Forum v. Union of India
((1995) 1 SCC 14), the Supreme Court suggested the formulation of a
segment for awarding compensation to rape victims at the time of
convicting the person found guilty of rape. The Court suggested that the
Criminal Injuries Compensation Board or the Court should award
1 Ref : Supreme Court of India Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999 Author: D Anand
Bench: V.N.Khare PETITIONER: APPAREL EXPORT PROMOTION COUNCIL Vs. RESPONDENT: A.K. CHOPRA DATE OF JUDGMENT:20/01/1999 BENCH: V.N.Khare JUDGMENT: DR. ANAND, CJI : 2 Ref : Supreme Court of India C. B. Muthamma vs Union Of India & Ors on 17 September, 1979 Equivalent citations:
1979 AIR 1868, 1980 SCR (1) 668 Bench: Krishnaiyer, V.R. PETITIONER: C. B. MUTHAMMA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT17/09/1979 BENCH:KRISHNAIYER, V.R. 3 Ref : Supreme Court of India, Shobha Rani vs Madhukar Reddi on 12 November, 1987 Equivalent citations: 1988 AIR
121, 1988 SCR (1)1010 Bench: Shetty, K.J. PETITIONER: SHOBHA RANI Vs. RESPONDENT: MADHUKAR REDDI DATE OF JUDGMENT12/11/1987 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, B.C. (J) CITATION: 1988 AIR 121,1988 SCR (1)1010, 1988 SCC (1) 105 JT 1987 (4), 433 ,1987 SCALE (2)1008
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compensation to the victims by taking into account, the pain, suffering
and shock as well as loss of earnings due to pregnancy and the expenses
of child birth if this occurs as a result of rape.
In Gourav Jain v. Union of India1 (AIR 1997 SC 3012), the Supreme
Court laid down guidelines including the necessity of counselling,
cajoling, and coercing the women to retrieve from prostitution and
rehabilitate them.
Findings
The legislations, which take care of rights and privileges of women, are
numerous in number. But due to ignorance and illiteracy those
legislations cannot be properly enforced. The plethora of Indian
Legislations aims at women empowerment. The judicial decision
rendered by the Indian Courts depicts the active role played by the
judiciary to protect women from exploitation at a stage where
legislations are uniformed due to lack of adequacy of enforcement
machinery. The legislative and judicial initiatives have placed the
women in a better place in the society. Yet the woman in India has to go
for miles to achieve cent percent empowerment.
1 Ref : Supreme Court of India Gaurav Jain vs Union Of India & Ors on 9 July, 1997 Bench: K Ramaswamy PETITIONER:
GAURAV JAIN Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 09/07/1997 BENCH: K. RAMASWAMY ACT: HEADNOTE: JUDGMENT: WITH WRIT PETITION (CRL.) NOs. 745-54 OF 1950
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4.9 PUBLIC INTEREST LITIGATION IN INDIA1
One of the earliest cases of public interest litigation was reported as
Hussainara Khatoon (I) v. State of Bihar2. This case was concerned with
a series of articles published in a prominent newspaper - the Indian
Express which exposed the plight of undertrial prisoners in the state of
Bihar.
A writ petition was filed by an advocate drawing the Court’s attention to
the deplorable plight of these prisoners. Many of them had been in jail
for longer periods than the maximum permissible sentences for the
offences they had been charged with. The Supreme Court accepted the
locus standi of the advocate to maintain the writ petition. Thereafter, a
series of cases followed in which the Court gave directions through
which the ‘right to speedy trial’ was deemed to be an integral and an
essential part of the protection of life and personal liberty.
Soon thereafter, two noted professors of law filed writ petitions in the
Supreme Court highlighting various abuses of the law, which, they
asserted, were a violation of Article 21 of the Constitution. These
included inhuman conditions prevailing in protective homes, long
pendency of trials in court, trafficking of women, importation of children
1 Public-Interest Litigation (PIL) is litigation for the protection of the public interest. In Indian law, Article 32 of the
Indian constitution contains a tool which directly joints the public with judiciary. A PIL may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. For the exercise of the court's jurisdiction, it is not necessary for the victim of the violation of his or her rights to personally approach the court. In a PIL, the right to file suit is given to a member of the public by the courts through judicial activism. The member of the public may be a non-governmental organization (NGO), an institution or an individual. The Supreme Court of India, rejecting the criticism of judicial activism, has stated that the judiciary has stepped in to give direction because due to executive inaction, the laws enacted by Parliament and the state legislatures for the poor since independence have not been properly implemented. 2 Ref : Supreme Court of India, Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, on 9 March, 1979
Equivalent citations: 1979 AIR 1369, 1979 SCR (3) 532 Bench: Bhagwati, P.N. PETITIONER: HUSSAINARA KHATOON & ORS. Vs. RESPONDENT: HOME SECRETARY, STATE OF BIHAR, PATNA DATE OF JUDGMENT09/03/1979 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. DESAI, D.A. CITATION: 1979 AIR 1369 1979 SCR (3) 532 ,1980 SCC (1) 98 CITATOR INFO :R 1981 SC 928 (4) ,D 1982 SC 710 (92), R 1983 SC 361 ((2)19),RF 1983 SC 465 (5,17),R 1983 SC 624( 10), R 1986 SC 180 (39) ,R 1986 SC 991 (5), RF 1992 SC1701 (29)
269
for homosexual purposes, and the non-payment of wages to bonded
labourers among others.
The Supreme Court accepted their locus standi to represent the suffering
masses and passed guidelines and orders that greatly ameliorated the
conditions of these people.
In another matter, a journalist, Ms. Sheela Barse , took up the plight of
women prisoners who were confined in the police jails in the city of
Bombay. She asserted that they were victims of custodial violence. The
Court took cognizance of the matter and directions were issued to the
Director of College of Social Work, Bombay. He was ordered to visit the
Bombay Central Jail and conduct interviews of various women prisoners
in order to ascertain whether they had been subjected to torture or ill-
treatment. He was asked to submit a report to the Court in this regard.
Based on his findings, the Court issued directions such as the detention
of female prisoners only in designated female lock-ups guarded by
female constables and that accused females could be interrogated only in
the presence of a female police official.
Public interest litigation acquired a new dimension – namely that of
‘epistolary jurisdiction’ 1with the decision in the case of Sunil Batra v.
Delhi Administration2, It was initiated by a letter that was written by a
prisoner lodged in jail to a Judge of the Supreme Court. The prisoner
1 Ref : Epistolary Jurisdiction extended by the apex court is one of the most significant procedural innovations to secure
justice for all. Encouraging letter petitions is based on the idea of easy and effective access to all without any procedural burden. In order to avoid misuse of letter petitions under the guise of Public Interest Litigation, Public Interest Litigation and information cell, has been set up on Supreme Court of India with a full-fledged staff to deal with its epistolary jurisdiction. 2 Ref : Supreme Court of India, Sunil Batra vs Delhi Administration on 20 December, 1979 Equivalent citations: 1980 AIR
1579, 1980 SCR (2) 557 Bench: Krishnaiyer, V.R. PETITIONER: SUNIL BATRA Vs. RESPONDENT: DELHI ADMINISTRATION DATE OF JUDGMENT20/12/1979 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S. REDDY, O. CHINNAPPA (J) CITATION: 1980 AIR 1579 1980 SCR (2) 557 1980 SCC (3) 488 CITATOR INFO :R 1981 SC 625 (7,8,11,12,14), R 1981 SC 746(3,4), R 1981 SC1767 (11,13,21,23), R 1982 SC 149(16), R 1982 SC 710(108,109) R1986 SC 180 (39)
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complained of a brutal assault committed by a Head Warder on another
prisoner. The Court treated that letter as a writ petition, and, while
issuing various directions, opined that:
“…technicalities and legal niceties are no impediment to the court
entertaining even an informal communication as a proceeding for habeas
corpus if the basic facts are found”.
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4.10 A defence of ‘judicial activism’1
The expansion of ‘judicial review’ (which is often described as ‘judicial
activism’) has of course raised the popular profile of the higher judiciary
in India. However, arguments are routinely made against the
accommodation of ‘aspirational’ directive principles within the ambit of
judicial enforcement. There are two conceptual objections against the
justiciability to these positive obligations.
The first is that if judges devise strategies to enforce the directive
principles, it amounts to an intrusion into the legislative and executive
domain. It is reasoned that the articulation of newer fundamental rights is
the legislature’s task and that the judiciary should refrain from the same.
Furthermore, it is posed that executive agencies are unfairly burdened by
the costs associated with these positive obligations, especially keeping in
mind that these obligations were enumerated as directive principles by
the framers on account of practical considerations. This criticism mirrors
the familiar philosophy of ‘judicial restraint’ when it comes to
constitutional adjudication.2
However, the second objection to the reading in of positive obligations
raises some scope for introspection amongst judges. It can be argued that
the expansion of justiciability to include rights that are difficult to
enforce takes away from the credibility of the judiciary in the long-run.
1 Ref : Christopher Wolfe, Judicial activism, Rowman & Littlefield, ISBN 0-8476-8531-4.
Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. 2 Ref : Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447.
"Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' and Justices Frankfurter, Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group."
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The judicial inclusion of socio-economic objectives as fundamental
rights can be criticised as an unviable textual exercise, which may have
no bearing on ground-level conditions. In turn the unenforceability and
inability of state agencies to protect such aspirational rights could have
an adverse effect on public perceptions about the efficacy and legitimacy
of the judiciary.
The prescription of normative rights always carries the risk of poor
enforcement. However, the question we must ask ourselves is whether
poor enforcement is a sufficient reason to abandon the pursuit of rights
whose fulfilment enhances social and economic welfare. At this point,
one can recount Roscoe Pound’s thesis on law as an agent of social
change. The express inclusion of legal rights is an effective strategy to
counter-act social problems in the long-run. At the level of constitutional
protection, such rights have an inherent symbolic value which goes
beyond empirical considerations about their actual enforcement.
The colonial regime in the Indian subcontinent periodically made
legislative interventions to discourage retrograde and exploitative social
practices such as Sati (immolation of widows), prohibition of widow-
remarriage and child marriage. Even though there have been persistent
problems in the enforcement of these legislations, in the long run they
have played an important part in reducing the incidence of these unjust
customs. It is evident that in the short run even the coercive authority of
law may not be enough of a deterrent, but in the long run the very fact of
the continued existence of such authority helps in creating public opinion
against the same practices. In the same way the framers of our
Constitution sought to depart from the inequities of the past by
enumerating a whole spectrum of rights and entitlements.
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While the understanding of ideas such as ‘social equality’ and ‘religious
freedom’ is keenly contested in the legislative as well as judicial
domains, there is no doubt that constitutional rights have been an
important tool of social transformation in India. The enumeration of the
various civil liberties and protections against arbitrary actions by the
state are now identified as core elements of citizenship and violations
provoke a high standard of scrutiny both by the judiciary as well as civil
society groups.
The inclusion of entitlements such as universal adult franchise have
greatly reduced the coercive power of casteist and feudal social
structures and empowered political parties that represent historically
disadvantaged sections such as the Scheduled Castes (SC) and Scheduled
Tribes (ST). Even though practices such as untouchability, forced labour
and child labour have not been totally eradicated, our constitutional
provisions prohibiting the same are the bedrock behind legal as well as
socio-political strategies to curb the same. The Supreme Court of India
has further internalized the importance of laying down clear normative
standards which drive social transformation.
Its interventions through strategies such as the expansion of Article 21
and the use of innovative remedies in Public Interest Litigation (PIL)
cases has actually expanded the scope and efficacy of constitutional
rights by applying them in previously un-enumerated settings.
Furthermore, the Courts allow groups and interests with unequal
bargaining power in the political sphere to present their case in an
environment of due deliberation.
The dilution of the rules of standing among other features has allowed
the Courts to recognize and enforce rights for the most disadvantaged
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sections in society through an expanded notion of ‘judicial review’. Even
though the framers of our Constitution may not have thought of these
innovations on the floor of the constituent assembly, most of them would
have certainly agreed with the spirit of these judicial interventions.
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4.11 KHAP PANCHYAT1:
During the past few years, marriages within ‘gotra’ (clan) of the Jat
community have come into the limelight. Frequently, those couples who
have eloped have been brutally murdered by the diktats of the elders—
these are known as ‘honour killings’2. Many such incidents have
occurred in Haryana, Western Uttar Pradesh and the rural belt of Delhi.
These areas have reaped the fruits of modernization and access to
various facilities such as educational institutions, health centres,
modernized roads and multinational business establishments that have
encouraged foreign investment. There exists a vast gulf between this
modernization and the almost feudal mind sets of people like the ‘Khap
Panchayats’ who force couples who have entered intra-gotra marriages
to return to the community fold, even to the extent of forcing the couples
to live like siblings. A large number of such wedded couples have even
lost their lives. Thus, as per their gotra affinity, the Khap Panchayats
consider them as brother and sister. The Khap Panchayats try to
legitimize their actions by quoting historical antecedents of uncertain
origin to support their practices. They are of the opinion that the Khap
Panchayat is an age old institution, having its foundation in the early
medieval period.
1 Ref : The forms of governing society are that of the Sabha (Hindi: ) or samiti (Hindi: ), which mean
"gathering" and "assembly", respectively. The Sabhapati, the president of the Sabha, was an elected official 2 Def : An honor killing, or honour killing is the homicide of a member of a family or social group by other members,
due to the belief of the perpetrators that the victim has brought dishonor or shame upon the family or community. It is a traditional practice that occurs in various cultures. Victims of honor killings are killed for reasons such as refusing to enter an arranged marriage, being in a relationship that is disapproved by their relatives, having sex outside marriage, becoming the victim of rape, dressing in ways which are deemed inappropriate, or engaging in homosexual relations.
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Manoj-Babli honour killing case1:
The Manoj-Babli honour killing case was the honour killing of Indian
newly-weds Manoj Banwala and Babli in June 2007 and the successive
court case which historically convicted defendants for an honour killing.
The killing was ordered by a khap panchayat (khap), a religious caste-
based council among Jatts, in their Karora village in Kaithal district,
Haryana.
The khap passed a decree prohibiting marriage against societal norms.
Such caste-based councils are common in the inner regions of several
Indian states, including Haryana, Punjab, western Uttar Pradesh, and
parts of Rajasthan, and have been operating with government approval
for years. In any event, the state government expressed no concern about
the ruling of the khap panchayat.
The Khap panchayat's ruling was based on the assumption that Manoj
and Babli belonged to the Banwala gotra, a Jat community, and were
therefore considered to be siblings despite not being directly related and
any union between them would be invalid and incestuous. Nevertheless
the couple went ahead with their marriage, following which they were
abducted and killed by Babli's relatives.
In March 2010 a Karnal district court sentenced the five perpetrators to
be executed, the first time an Indian court had done so in an honour
killing case. The khap head who ordered but did not take part in the
killings received a life sentence, and the driver involved in the abduction
a seven-year prison term. According to Home Minister P. Chidambaram,
the UPA-led central government was to propose an amendment to the
1 Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010
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Indian Penal Code (IPC) in response to the deaths of Manoj and Babli,
making honour killings a "distinct offense"
Background
Manoj's and Babli's families lived in Karoran Village, Kaithal. Manoj's
mother, Chanderpati Berwal, had four children, of which Manoj was the
eldest. Chanderpati was widowed at the age of 37, when Manoj was only
Manoj owned an electronics repair shop at Kaithal and was the only
member of his family receiving income. Manoj's cousin, Narender, lived
with the family and worked in Panchkula.
Babli's mother, Ompati, also had four children, including eldest son,
Suresh, and Babli. Like Manoj, Suresh was the only earning member of
the family. Babli was still studying in school. Ompati is a widow.
Development of the relationship and subsequent marriage:
In 2005, Manoj and Babli began to show interest in each other. Manoj
was two years older than Babli. All residents of their Karora village
belong to the same caste of Banwala, a Jat community, and marrying
within the caste is considered a sacrilege. Chanderpati recalled, "We
knew about Babli long before they decided to marry each other. She
would call up often and I would sermonize to her about staying away
from Manoj, fearing the fallout of such an alliance. They were, however,
unconcerned and chatted for hours together. If I did walk into the room
while they were talking, Manoj would quickly disconnect the phone and
run off to avoid any questioning." She continued, "I even went to Babli's
house and told her mother that Manoj and Babli were seeing each other.
I asked her to dissuade Babli or quickly marry them before the word
spread."
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Two years later, on 5 April 2007, Chanderpati last saw Manoj. "He ate
his food and left to sleep at the shop since he had a class XII
compartment exam in English to take the next day. Unlike other days,
next morning, he did not show up." The following day Babli's uncle
arrived to speak with Manoj. According to Chanderpati, "He said he had
come to recover some money that Manoj had borrowed, had tea and left
when I told him that Manoj was away for an exam. We only discovered
late in the evening that Babli, too, was missing and the two had run
away." Manoj had eloped with Babli to Chandigarh and married her on
April at a Durga temple, their commitment to one another transcending
their willingness to abide by the societal norms.
Furious with the marriage, Babli's family asked for intervention from the
local khap panchayat, which annulled the marriage. The khap also
announced a social boycott on Manoj's family. Anyone who kept ties
with them would be fined ₨25,000. Ompati tried to persuade her family
that Babli did nothing dishonorable and that she and Manoj would move
back home soon.
Court appearance:
On 26 April, Babli's family filed a First Information Report (FIR) against
Manoj and his family for kidnapping Babli. On 15 June, Manoj went to
court with Babli, testifying that they had married in conformity with the
law and that he did not kidnap Babli. The judge ordered police protection
for the two. Chandrapati did not attend the trial so that Babli's family
would not be aware that Manoj and Babli were in town.
After the trial, Manoj and Babli, accompanied by a team of five police
officers assigned to them for protection, left for Chandigarh. The police
left them at Pipli and slipped away. Suspecting foul play, Manoj and
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Babli did not continue toward Chandigarh, instead boarding a bus for
Karnal. According to a statement filed by Chanderpati, later that day,
around 3:40 pm, she received a call from a Pipli telephone booth from
Manoj, who said that the police had deserted them, and Babli's family
members were trailing them, so they would try to take a bus to Delhi and
call her back later. Babli asked for acceptance from Chanderpati, who
replied affirmatively. That was the last time Manoj's family heard from
the couple.
On 20 June, Chanderpati's complaint regarding the kidnapping was filed
as an FIR at the Bhutana police station following media pressure on the
police.
Kidnapping and murder:
The couple's bus left for Delhi, but en route at 4:30 pm, Babli's relatives
stopped the bus near Raipur Jatan village, about 20 kilometres (12 mi)
from Pipli. They kidnapped the couple in a Scorpio SUV driven by
Mandeep Singh. Kuldip Thekedar, a road contractor, witnessed the
kidnapping and filed a complaint at the Butana police station in Karnal
district, giving the licence plate number of the Scorpio. Later,
Chanderpati ascribed the murder to the unauthorised withdrawal of the
couple's security team ignoring the orders given by the district and
sessions judge (DSJ) of Kaithal. Upon receiving no further news,
Chanderpati's nephew, Narendra Singh traced the contractor, and after he
was shown a photo of the couple, the contractor recognised the couple.
The family then understood that Manoj and Babli were the victims of the
kidnapping.
After the kidnapping, the couple were beaten. Babli's brother Suresh
forced her to consume pesticide, while four other family members
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pushed Manoj to the ground, her uncle Rajinder pulling a noose around
Manoj's neck and strangling him in front of Babli. They wrapped the
bodies in gunny sacks and dumped them in Barwala Link Canal in Hisar
district. On 23 June, nine days later, their mutilated bodies, hands and
feet tied, were fished out of the canal by Kheri Chowki police. After
autopsy, police preserved Manoj's shirt and Babli's anklet and cremated
the bodies as unclaimed on 24 June. On 1 July the family identified them
by the remnants of their clothing. The accused were subsequently
arrested.
Police discovered a number of articles in the Scorpio used to kidnap the
couple—parts of Babli's anklet, two buttons from Manoj's shirt, and torn
photographs of the couple. Manoj's purse was found on one of the
accused.
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4.12 COURT JUDGEMENT AGAINST KHAP1:
No Karnal lawyer would adopt the case, so Manoj's family had to find
lawyers from Hisar. Later on Adv. Sunil Rana from karnal accepted the
case, arguing on their behalf public prosecutor Sunil Rana and lawyers
Lal Bahadur, Surat Singh, Cornel Omparkash, and Rakesh Manjhu from
Hisar, Haryana. Bahadur argued that the couples' clothes recovered from
the canal and photographs from the Scorpio established that day's
happenings. Bahadur also cited the contractor's statement and the last
phone call from Manoj, in which Manoj had related that Babli's relatives
were trailing them. However, the contractor "turned hostile" and
withdrew his statement.2
Arguing for the defence was lawyer Jagmal Singh. He asserted that there
was no evidence against the accused and that it was all contrived by the
media, no evidence that the khap panchayat ever met to discuss the fate
of the couple, and no evidence indicating that Manoj and Babli were
dead. The cremated bodies recovered from the canal were never
confirmed to be those of Manoj and Babli.
On 29 March 2010, after 33 months of 50 hearings with 41 witnesses,
the karnal District court found the accused guilty of murder, kidnapping,
conspiracy, and destroying evidence under respective sections in the
IPC. The next day, 30 March, for the first time in Haryana state history,
a death penalty verdict was announced in the double murder case for the
five accused. All were related to Babli, and included her brother Suresh,
cousins Gurdev and Satish, paternal uncle Rajender, and maternal uncle
1 Ref : Conflicting reports exist as to when Ompati's husband died. According to the judge of the case, Vani Gopal
Sharma, her husband died two years before the murder.According to a quote from Ompati, her husband died of trauma after the murder. The Tribune reported that Ompati's husband had died when her "children were very young". 2 Ref : There were different reports of the number of khap panchayats comprising the maha khap panchayat. Some
sources reported 20,while others recorded 36,and one even said 200.
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Baru Ram. The leader of the khap panchayat Ganga Raj was given a life
sentence for conspiracy, while the driver, Mandeep Singh, held guilty of
kidnapping, was given a jail term of seven years. The court asked the
Haryana government to provide a compensation of ₨100,000 to
Chanderpati, who had filed the case. Ganga Raj was fined ₨16,000, and
the other six convict’s ₨6,000 each.
The court also accused six police personnel of dereliction of duty and
directed the SSP of Kaithal to take action against them. The personnel
included head constable Jayender Singh, sub-inspector Jagbir Singh, and
the members of the escort party provided to the couple. They claimed
that the couple wanted them to leave. The SSP's statement was that "it is
correct that the deceased couple had given in writing not to take police
security any further, but Jagbir Singh was well aware that there was a
threat to their lives from the relatives of the girl." The report stated that
Jayender informed Gurdev Singh of the location of the police and that of
Manoj and Babli over his mobile phone. Jayender was dismissed from
the police force, and both he and Jagbir were penalised by a cut of two
increments.
In her verdict, district judge Vani Gopal Sharma stated, "This court has
gone through sleepless nights and tried to put itself in the shoes of the
offenders and think as to what might have prompted them to take such a
step."Khap panchayats have functioned contrary to the constitution
ridiculed it and have become a law unto them."
Bahadur was satisfied with the decision, "Out of seven accused, five
have been given death sentences. This will send a strong message to the
public that law is greater than the khap."However, he was disappointed
that "the leader [Ganga Raj] got away with death penalty because he
intentionally disappeared during the killing." Narendra said, "We will
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appeal in High Court for death penalty to the main accused, Ganga Raj.
We respect the court's decision but he should be punished so that the
instigators of the crime get the punishment. Also it is important that it is
a very clear message so that no khap gives such directions, ever." Seema
seconded Narendra's concerns, "We would have been happier if the main
accused was also given the death sentence. The decision of the
panchayat was not justified and people should not to be allowed to
misuse their power. We have fought this battle alone when no one was
supporting us." She requested more security for her family, "They tried
to bribe us to withdraw the case then they threatened that they would kill
us if we didn't withdraw the FIR. Even after the decision we're afraid of
a backlash from the Khap Panchayat."
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4.13 SOME CASES OF HONOUR KILLINGS IN INDIA:
A number of such increasing cases like that of Ved Pal and Sonia have
shown the truth of the khap panchayats in India where these notorious
khaps have, in one way or the other, indulged in crimes by convincing
people on how they have invoked the ire of their respective khaps.
1. THE CASE OF MONICA AND RINKU, HARYANA1 :
In the Nimriwali village of Haryana, Monica (18) and her lover
Rinku, who belonged to the same Jat community were brutally
killed by the girl's father, brother, uncle and cousins, and were
hanged as exhibits in front of their house. The family members of
the girl gave a shape to this crime under the directions and
guidance of the Khap Panchayat. After the murder of Monica and
Rinku, the Supreme Court, on June 21, 2010 gave notices, to take
action against these rapidly increasing killings, to the Centre,
Haryana and six other State governments. But even this had no
effect on the situation.
1 Ref : Punjab-Haryana High Court Rinku @ Narender Kumar vs State Of Haryana on 4 March, 2010 Crl. Appeal
No.1416, 1523, 1665 & 1779-SB of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No.1416-SB of 2003,1. Rinku @ Narender Kumar .....Appellant v. State of Haryana .....Respondent ... Crl. Appeal No.1523-SB of 2003,2. Sandeep .....Appellant v. State of Haryana .....Respondent ...Crl. Appeal No.1665-SB of 2003,3. Dariya Singh .....Appellant v. State of Haryana .....Respondent ... Crl. Appeal No.1779-SB of 2003,4. Vinod Kumar .....Appellant v. State of Haryana .....Respondent Date of decision: 4 - 3 – 2010 Crl. Appeal No.1416, 1523, 1665 & 1779-SB of 2003 [2] CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr.B.R.Gupta, Advocate for the appellant in Crl. Appeal No.1416-SB of 2003. Ms.Monica Jalota, Advocate Amicus curiae for the appellant in Crl. Appeal No.1523-SB of 2003. Mr.D.N.Ganeriwala, Advocate for the appellant in Crl. Appeal No.1665-SB of 2003. Mr.J.V.Yadav, Advocate for the appellant in Crl. Appeal No.1779-SB of 2003. Mr.Ravish Kaushik, AAG, Haryana.
285
2. THE CASE OF NIRUPAMA PATHAK,JOURNALIST-
JHARKHAND 1
In April 2010, in Jharkhand, even a woman journalist was made
subject to a ruthless murder in the name of honour. Nirupama, a
22-year old journalist, who comes from a Brahmin family, was in
love with a boy from another caste and thus, was brutally
murdered in the name of honour.
Even a journalist could not escape from this game of crime, then imagine
what the girls in villages have to go through every day?!
3. THE CASE OF SIVAKUMAR AND MEGALA, TAMIL NADU2 :
The menace of honour killings under the pressure of these khap
has undoubtedly spread its tentacles all over India. Yet another
story, shockingly from a South Indian State, and not north India
this time, in Tamil Nadu, goes where in Shivganga, a 20-year old
girl, Megala was told that she could not marry her lover, 24-year
old Sivakumar as they were related and so her family got their
daughter married somewhere else in June, 2010 from where she
eloped with her lover, ten days after the wedding. The couple was
finally traced by the family and Sivakumar was cruelly killed with
1 Ref : Jharkhand High Court ,Priyabhanshu Ranjan vs State Of Jharkhand on 30 April, 2013 IN THE HIGH COURT OF
JHARKHAND AT RANCHI Cr. M.P. No. 2351of 2012 Priyabhanshu Ranjan...................... Petitioner Versus State of Jharkhand ............ Opp. Party ......Coram: Hon'ble Mr. Justice R.R.Prasad ...... For the Petitioner : Mr. Shree Krishna Murari, Advocate For the State : Mr. APP.......3./30.04.2013 Heard learned counsel appearing for the petitioner and the learned counsel for the State. This application has been filed for quashing of the entire criminal proceedings of Koderma (T) P.S.Case No. 171/2010, including the order dated 25/07/2012, passed by the then Additional Chief Judicial Magistrate, Koderma, whereby and whereunder cognizance of the offence punishable under Section 306 of the Indian Penal Code, has been taken against the petitioner. 2 Ref : Madras High Court, Rajani Sivakumar vs Duraikannu on 25 January, 2010 DATED: 25.01.2010 CORAM: THE
HONOURABLE MS.JUSTICE R.MALA S.A.No.563 of 2003 & C.M.P.No.5013 of 2003 1. Rajani Sivakumar 2. Ramesh .. Appellants Vs. 1. Duraikannu 2. Ravi Mohan (for himself and as joint family manager) 3. Velambal (died) (Vide Memo recorded, dated 8.12.2009) .. Respondents Second Appeal against the judgment and decree dated 25.11.2002 in A.S.No.44 of 2002 on the file of the Principal District Court, Nagapattinam, against the judgment and decree dated 14.8.2001 in O.S.No.202 of 1997 on the file of the Additional Sub-Court, Nagapattinam. For appellants : Mr.Chandramouli, Senior Counsel for Mr.A.Muthukumar For respondents : Mr.S.V.Jayaraman, Senior Counsel for Mr.T.A.Shagul Hameed for RR-1 &
286
sickles. The family justified the killing of her lover on the grounds
that she brought disgrace to their caste and family.
4. THE CASE OF RAVINDER, JHAJJAR DISTRICT 1:
In the Dhrana village of Jhajjar district, Ravinder Gehlawat had
“dared” to marry a girl from the Kadiyan gotra. The norms of
Kadiyan khap in 12 villages, which included Ravinder's village as
well, considered Kadiyan and Gehlawat to be of the same gotra
and of the same family, and thus considered Ravinder and his wife
to be related, as according to them they were brother and sister.
Ravinder and his family were threatened by the girl's family and
asked to leave the village. For this the Gehlawat family had 500
policemen protecting the dozen member of their family but in no
vain.
4.14 SUPREME COURT'S CRITICISM ON KHAP
PANCHAYATS:
On April 19 2011, Supreme Court wants a strict criminal action against
people forming and ruling in khaps, emphasizing that the khap
panchayats are illegal and the honour killings they enforce to be
“Barbaric and shameful”2, along with demanding action against the
police authorities and bureaucrats who fail to prevent them. According to
Supreme Court, these khap panchayats encourage honour killings or
other atrocities in an institutionalized way on boys and girls belonging to
different castes, who have been married or are going to get married. On
grounds that these khaps interfere with the personal life of the people, 1 Ref : Punjab-Haryana High Court Smt. Poonam vs Ravinder Hooda TA No. 274 of 2008 1 IN THE HIGH COURT OF
PUNJAB AND HARYANA AT CHANDIGARH TA No. 274 of 2008 Decided on : 15-04 -2009 Smt. Poonam ....Applicant VERSUS Ravinder Hooda....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER 2 Ref : Venkatesan, J. (20 April 2011). "Stamp out khap panchayats: court". The Hindu (Chennai, India)
287
Justice Katju said, “Atrocities in respect of personal lives of people
committed by brutal, feudal-minded persons deserve harsh
punishment”1.
Even after the continued cruel practices of these khaps for long and the
crucial judgement by the Supreme Court, the heads of these panchayats
have disapproved of the decision of the Supreme Court and said that they
have been denied justice. The supporters still stick to their view that
these Khap Panchayats have been there since time immemorial under
which laws have been formed by their forefathers for their own benefits
and protection, and that the khaps do not aim to and nor they have
harmed anyone. Even the Chief Minister supports this view. The Khaps
thus decided to file a review petition in the apex courts after hearing the
statement of the Supreme Court.
4.15 CONCLUSION:
Only in one honor killing case so far, has the court come down hard on
those involved. I refer the historic judgement above in case of Manoj-
Babli honor killing case of Kaithal Distict in Hariyana, where the khap
panchayat ruled that they belonged to the same gotra.
The law in any case can do only so much. What have to change are
attitudes and traditions. How can we talk of Independence or
empowerment, if on an issue as basis as marriage, women & men are
told they have no choice? And worse that defying tradition means
inviting the death penalty. How long such a situation be accepted by
civilized society? How many more women & men, must die before some
sense prevails?
1 Ref : J. Venkatesan (20 April 2011). "Stamp out khap panchayats: court". The Hindu - Issue New Delhi, April 20, 2011
(Chennai, India).
288
5
Dowry Death-
Case study of
Jharkhand
State
289
5.1 INTRODUCTION:
On May 23 this year, Anil Mahto (21) of Hazaribagh bludgeoned his 19-
year-old wife Dina Devi to death because her father failed to gift him a
two-wheeler. The couple had married barely a month before on April 28.
Same day, same city, a 19-year-old married woman, later identified as
Suman, was discovered in a water tank. Hazaribagh police suspected this
was also a dowry death.
In 2012, there were 309 dowry deaths in Jharkhand, according to the
National Crime Records Bureau. In 2011, it was 282 and in 2010, 246.
Police are yet to update 2013 figures in full, but with Sumans and Dinas
turning up dead, it is safe to assume that the shameful upswing is very
much on.
District-wise, in 2012, Dhanbad clocked the maximum dowry deaths —
49. Giridih, Palamau, Hazaribagh, East Singhbhum and Ranchi followed
with 32, 26, 23, 17 and 16, respectively.
In all, save Ranchi and Palamau, the corresponding numbers the
previous year were lesser. In 2011 for instance, Dhanbad clocked 33
dowry deaths, which is 16 less compared to 2012.
India prohibited dowry through legislation in 1961 but as the social evil
was sanctioned by custom, there was little impact. In 1986, Indian Penal
Code was amended to include section 304B, specifically against murder
290
following harassment for dowry. Section 498A was added to define
“harassment and cruelty” meted out by husbands and in-laws.
It has taken another 25 years for families or married women to slowly
brave stigma, but if the rising dowry deaths in Jharkhand are any
indication, the tide against this evil is yet to turn.
State women’s commission chairperson Hemlata S. Mohan said the
social evil was entrenched in customs. “The problem can’t be uprooted
in isolation. We need to involve college students and NGOs. Eradicating
dowry deaths will be possible when we stress on the education of girls,”
she said.
Mohan said the commission would write to all deputy commissioners
and the superintendent of police in every district to ensure higher
conviction rates and swift penalty. “The last man and woman in society
needs to know that no one can get away scot-free in a dowry death,” she
said.
Sundari Tirkey, chairperson of Ranchi Zilla Parishad, said awareness and
attitudes had changed.
“Look, families of girls are not hushing up cases now. They are coming
forward. At the same time, much needs to change as families also
continue to save money for dowry. We need to brainstorm with
intellectuals, women’s organisations and government functionaries to
come up with a strategy to bring an end to dowry deaths as well as other
violence on women,” she said.
In spite of knowing that dowry is a dreadful things, people still commit
murder for dowry.
How should such crimes be treated?
291
No amount of education will change these people.
They should be treated as the rarest of rare crimes and the death penalty
should be awarded.
We have a population of 1.2 billion, ie. 1,200,000,000.
There were 309 dowry deaths in Jharkhand in 2012
There are 28 states and 6 Union territories in India.
However some 50% of the states have almost zero dowry deaths.
Assuming that 309 is a representative figure for 17 states we would be
having around 5250 dowry deaths throughout India. Let us assume there
are an equal number of rapists.
That would bring the figure to 10500.
We can surely afford to lose these 10500 by hanging in our population of
1.2 billion.
It would be a deterrent to the rest of the population and remove a stigma
to India.
Unfortunately this will never be carried out for the politicians are the
main culprits together with the rich and super-rich who cause these
deaths.
292
5.2 HISTORY OF DOWRY SYSTEM IN INDIA:
The dowry system is thought to put great financial burden on the bride's
family. It has been one of the reasons for families and women in India
resorting to sex selection in favour of sons. This has distorted the sex
ratio of the India (940 females per thousand males) and has given rise to
female foeticide. The payment of a dowry has been prohibited under The
1961 Dowry Prohibition Act in Indian civil law and subsequently by
Sections 304B and 498a of the Indian Panel Code.
Dowry was not a part of the Indian marriage before European influence
crept into the society. The earliest example of Europeans practicing the
dowry in India, the case of Mumbai, which was presented as part of the
dowry when Princess Catherine de Braganza of Portugal was married to
King Charles II in 1661. The native population disliked practicing
dowry, as they believed that this would lead "obliged to buy them
husbands". Writes Alex Knox, when addressed to David Doig, Lord
Provost of Montrose, "As I observed before, their marriages are all
conducted by the parents during the parties infancy, the expense of this
ceremony, which is considerable according to the ranks of the persons
married, is always from the bridegroom's family, nor is it customary to
give any fortunes with their daughters, because it should not be said they
were obliged to buy them husbands, for this custom it seems they despise
the Europeans very much."
293
5.3 Law Against Dowry System:
Dowry became prohibited by law in 1961 with the purpose of prohibiting
the demanding, giving and taking of dowry. To stop the offences of
cruelty by husband or his relatives on the wife, section 498-A was added
in Indian Penal Code and section 198-A in the Criminal Procedure Code
in the year 1983.
Role of Dowry in Corruption:
According to one survey conducted by reputed Indian news magazine
India Today, over 90% of government servants actively seek and get
dowry in marriage. It is a common feature for unmarried government
servants to seek dowry relevant to the market rates of their post. These
rates are sky-high, with an estimate of dowry rates for a bachelor IAS
Officer (Indian Administrative Services) being as high as Rs 50 Lac to
Rs 5 Crore (up to USD 1 Million). These high rates are one of the
primary reasons for corruption as young IAS officers after marriage are
forced to take bribes to maintain their new lifestyle and match the
financial status of their wealthy in-laws.
294
5.4 CASE STUDY ON DOWRY DEATH IN THE STATE OF
JHARKHAND:
Case Note1 :
Criminal – Dowry death – Sections 34 and 304 B of Indian Penal Code,
1860 - Deceased was married to appellant – Appellant use to harass
deceased for dowry – Deceased hanged herself – Trial Court convicted
appellant for offence under Section 304B/34 – Appeal dismissed by
High Court – Hence, present appeal – For applicability of Section 304 B
it is not relevant whether it is a case of homicide or suicide – Section
304B will be applicable when death of woman occurs within 7 years of
marriage and soon before her death she should have been subject to
cruelty and harassment in connection with the demand for dowry – Facts
revealed that deceased died within seven years of her marriage and she
had been harassed 10 -15 days before her marriage – ‘Soon before her
1 Ref : Equivalent Citation: AIR2007SC2154, 2007CriLJ3262, I(2007)DMC811SC, JT2007(7)SC77, 2007(6)SCALE568
IN THE SUPREME COURT OF INDIA Criminal Appeal No. 513 of 2006 Decided On: 08.05.2007 Appellants: Raja Lal Singh Vs. Respondent: The State of Jharkhand [Along with Criminal Appeal No. 514 of 2006] Hon'ble Judges: S.B. Sinha and Markandey Katju, JJ. Counsels: For Appellant/Petitioner/Plaintiff: P.S. Mishra and Sunil Kumar, Sr. Advs., Ashok Kumar Singh, Awanish Sinha, Anita Kanungo and Himanshu Shekhar, Advs For Respondents/Defendant: Manish Kumar Saran and C.P. Yadav, Advs. Subject: Criminal Subject: Family Acts/Rules/Orders: Indian Penal Code - Sections 34 and 304B Cases Referred: Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar MANU/SC/0076/2005; Satvir Singh and Ors. v. State of Punjab and Anr. MANU/SC/0588/2001; T. Aruntperunjothi v. State MANU/SC/8091/2006 Prior History: From the Final Judgment and Order dated 20.10.2005 of the High Court of Jharkhand at Ranchi in Crl. A. No. 974 of 2003 Citing Reference: Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar MANU/SC/0076/2005 Mentioned Satvir Singh and Ors. v. State of Punjab and Anr. MANU/PH/0887/1997 Dissented T. Aruntperunjothi v. State Mentioned
295
death’ does not necessarily means that death must be within few days but
means that there should be a perceptible nexus between the death of
deceased and dowry related harassment inflicted on her – In absence of
alternative explanation from appellant for the cause of suicide it is to be
presumed that persistent demand for dowry led to her suicide – Thus no
reason to interfere with the conviction of appellant – Appeal dismissed.
Ratio Decidendi :
Dowry Death – In case of dowry death ‘soon before her death’ does not
necessarily mean that demand of dowry must be within few days of
death but means that there should be perceptible nexus between the death
of deceased and dowry related harassment inflicted on her.
JUDGMENT
Markandey Katju, J.
1. These two appeals have been filed against the common judgment
& order dated 20.10.2005 of the Jharkhand High Court in
Criminal Appeal Nos. 769 and 974 of 2003.
2. Heard learned Counsel for the parties and perused the record.
3. The facts of the case are that an FIR being Baghmare P.S. Case
No. 229/2000 was registered under Sections 304B/34 of the
Indian Penal Code against the three aforesaid appellants on the
basis of the information given by Dashrath Singh (PW5),
wherein it was alleged that his daughter Gayatri Devi (the
deceased) aged about 19 years, was married to the appellant Raja
Lal Singh on 24.4.2000 and he had given dowry according to his
capacity. His daughter came back after three months of her stay
at her inlaws' place and told him that her husband Raja Lal Singh,
her brother-in-law Pradip Singh and her sisterin- law (Gotni)
used to harass her for the demand of a 'Palang' (Bed) and a
Godrej Almirah. The informant assured his daughter to fulfill
296
those demands in January, and then his daughter went to her in-
laws' place. It was further alleged that subsequently when he
went to see his daughter at her in-laws' place, she again told him
about the aforesaid demand of 'Palang' and 'Godrej Almirah' by
the appellants and then the informant talked to his son-in-law,
and his brother as well as his wife had promised them to fulfill
the demand in January.
4. It is said that on 28.11.2000 one Dunia Lal Singh came to the
village of the informant and informed him that his daughter has
died due to hanging. On this information, the informant along
with his sons Santosh Singh (PW3), Bhola Singh and Bhagirath
Singh went to village Behrakudar, i.e. the village in which his
daughter was married, and on reaching there he found that the
dead body of his daughter was lying on a Chauki kept in a room
at the upper floor of the building of the appellants. On being
asked, hisson-in-law stated that the deceased had committed
suicide by hanging herself with a ceiling fan by tying a Sari
around her neck. His son-in-law also told that since he was
sleeping in the room, he could see her hanging only in the early
morning when he woke up. On being further questioned by the
informant, his son-in-law could not give a satisfactory reply. The
informant suspected that his daughter was murdered by her
husband, the brother-in-law and sister-in-law, and a colour of
suicide was given to the whole occurrence of murder. The police
after investigation submitted a charge-sheet under Sections
304B/34 IPC. The cognizance was taken and the case was
committed to the Court of Sessions.
5. The defence was of false implication.
297
6. In order to establish the charges, altogether eight witnesses were
examined on behalf of the prosecution and on behalf of the
defence also two witnesses were examined.
7. It appears that PW1 Ramesh Singh, PW2 Gobardhan Singh, PW3
Santosh Singh and PW4 Ashok Singh accompanied the
informant PW5 to the in-laws' place of the deceased. PW6 is
Shiv Pujan Singh, another son of the informant, who is a witness
of seizure and he also identified the handwriting of the deceased
written on her palm. PW7 is Dr. G.S. Prasad, who held post
mortem examination of the deceased and PW8 Kamta Singh, is
the Investigation Officer.
8. As stated earlier, on behalf of the defence also two witnesses
were examined. DW1 Bindeshwar Singh, was a co-villager and
neighbour of the appellants, who was examined to prove the
cordial relationship between the deceased and her husband. DW2
Mantu Singh, another co-villager of the appellant has stated that
the appellant Pradip Singh and Sanjana Devi were separate in
residence and mess with the appellant Raja Lal Singh, husband of
the deceased.
9. According to PW7 Dr. C.S. Prasad, who held the post mortem
examination of the dead body, the cause of death was due to
asphyxia as a result of hanging. The post mortem report was
proved by him and was marked as Ext.2. However, this witness
in his cross-examination stated that it was a case of suicidal
death.
10. The learned trial court on consideration of the oral and
documentary evidence adduced on behalf of the prosecution held
that the prosecution was able to establish the charge under
Sections 304B/34 IPC against all the three accused. Accordingly,
298
the accused persons were convicted for the said offence and were
sentenced to undergo R.I. for a period of ten years each.
11. Against the aforesaid judgment of the trial court, the appellants
filed appeals before the High Court which were dismissed by the
impugned judgment. Hence, these two appeals.
12. As regards the appeal of Pradip Singh and his wife Sanjana Devi
being Criminal Appeal No. 514/2006, we are of the opinion that
the said appeal deserves to be allowed and the appellants therein
deserve to be acquitted by giving them the benefit of doubt.
13. It has come in evidence that Raja Lal Singh, appellant in
Criminal Appeal No. 513/2006 used to live on the first floor of
the building along with his wife, deceased Gayatri, whereas
Pradip Singh and his wife Sanjana Devi were living in the ground
floor. Admittedly, the deceased Gayatri was found dead due to
hanging on the first floor in the room of her husband. There is no
evidence to show that the appellant Pradip Singh and Sanjana
Devi had any hand in the incident which led to her death, and at
any event we are of the opinion that benefit of doubt has to be
given to them, as they were living on the ground floor of the
building in question.
14. No doubt, some of the witnesses e.g. PW5 Dashrath Singh, who
is the father of the deceased Gayatri, and PW3 Santosh Kr.
Singh, brother of the deceased, have stated that the deceased
Gayatri told them that dowry was demanded by not only Raja Lal
Singh, but also the appellants Pradip Singh and his wife Sanjana
Devi, but we are of the opinion that it is possible that the names
of Pradip Singh and Sanjana Devi have been introduced only to
spread the net wide as often happens in cases like 498-A and 394
IPC, as has been observed in several decisions of this Court, e.g.
299
in Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar
MANU/SC/0076/2005 : 2005CriLJ1418 etc. Hence, we allow the
appeal of Pradip Singh and Sanjana Devi and set aside the
impugned judgments of the High Court and trial court in so far as
it relates to them and we direct that they be released forthwith
unless required in connection with some other case.
15. However, we are of the opinion that the appeal of Raja Lal Singh
has to be dismissed. Raja Lal Singh is the husband of the
deceased Gayatri and he used to live with her on the first floor of
the building in question. Hence, it was for him to explain how
Gayatri met with her death. She was found hanging by a Sari on
a ceiling fan in the very room where she used to live with her
husband Raja Lal Singh. Raja Lal Singh, however, did not enter
into the witness box to depose in this connection.
16. It is settled by a series of decisions of this Court that so far as
Section 304B is concerned, it is not relevant whether it is case of
homicide or suicide vide Satvir Singh and Ors. v. State of Punjab
and Anr. MANU/SC/0588/2001 : 2001CriLJ4625 , para 18.
17. It has been held in Satvir Singh (supra) that the essential
components of Section 304B are :
i. Death of a woman occurring otherwise than under
normal circumstances, within 7 years of marriage,
ii. Soon before her death she should have been subjected to
cruelty and harassment in connection with any demand
for dowry.
In the present case, Gayatri died about 7 months after her
marriage in April, 2000. Also, it has come in evidence that she
had been harassed for dowry 10 or 15 days before her death. This
has come in the evidence of her father PW5 and brother PW3
300
and we see no reason to disbelieve them. She had earlier also
been subjected to harassment on account of demand for dowry
when she had gone to her parents' house in August, 2000, as has
come in the evidence of PW5 Dashrath Singh. Thus, in our
opinion, the ingredients of Section 304B IPC are satisfied in this
case1 .It may be mentioned that the words "soon before her
death'' do not necessarily mean immediately before her death. As
explained in Satvir Singh (supra), this phrase is an elastic
expression and can refer to a period either immediately before
death of the deceased or within a few days or few weeks before
death. In other words, there should be a perceptible nexus
between the death of the deceased and the dowry related
harassment or cruelty inflicted on her.
18. In the present case, we are of the opinion that there is a clear
nexus between the death of Gayatri and the dowry related
harassment inflicted on her. As mentioned earlier, even if Gayatri
committed suicide, Section 304B can still be attracted. A person
commits suicide in a fit of depression due to extreme
unhappiness. Thus, even if Gayatri committed suicide, it was
obviously because she was extremely unhappy, and unless her
husband gave a satisfactory alternative explanation for the
suicide we have to take it that it was the persistent demand for
dowry which led to her suicide. It is evident from the evidence
that Gayatri's father was a poor man and he did not have the
money to give the dowry immediately and he wanted time up to
January, 2001 so that he could collect some funds from
somewhere, but the appellant, Raja Lal Singh was heartless and
he wanted immediate compliance of his demand. Since that was
1Ref : [see also in this connection T. Aruntperunjothi v. State MANU/SC/8091/2006 : 2006CriLJ3290 ].
301
not fulfilled, he either killed Gayatri or harassed her so much that
she was driven to suicide on account of the said dowry demand.
The writing on Gayatri's palm is, in our opinion, not very
relevant. In view of the above, we dismiss the appeal of Raja Lal
Singh.
19. Resultantly, Criminal Appeal No. 513/2006 filed by Raja Lal
Singh is dismissed while Criminal Appeal No. 514/2006 filed by
Pradip Singh and Sanjana Devi is allowed.
302
5.4 SOME CASE STUDIES OF DOWRY DEATHS IN
JHARKHAND
1. Dwarika Mistry And Ors. vs State Of Jharkhand 1on 25 September,
2003
This appeal at the instance of the appellants named above is directed
against the impugned Judgment and order dated 13.6.1998 and 18.6.1998
respectively passed in S.T. No. 448 of 1998 by Sri Mishri Lal
Choudhury, 5th Additional Sessions Judge, Hazaribagh whereby and
whereunder they were found guilty for the offence punishable under
Section 304B/34 of the Indian Penal Code for causing the dowry death
of Kalamati Devi, the lawfully wedded wife of appellant Ajit Rana and
they were convicted and sentenced to undergo rigorous imprisonment for
ten years each. However, co-accused Gita Devi was found not guilty and
she was accordingly acquitted.
The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of
informant PW 7 Deoki Rana, the father of Kalamati Devi, the deceased
of this case recorded on 29.5.1998 at 18.15 hours at Bari of the house of
the appellants situate in village Chutiaro by PW 8 SI S.N. Prasad of
Muffasil P.S. Hazaribagh about the occurrence which is said to have
taken place on that very day in the said Bari of the house of the
appellants for causing the dowry death of Kalamati. The case against the
appellants was instituted by drawing of a formal FIR (Ext. 3) on that
1 Ref : Jharkhand High Court
Dwarika Mistry And Ors. vs State Of Jharkhand on 25 September, 2003 Equivalent citations: II (2004) DMC 375, 2004 (2) JCR 322 Jhr Author: V Narayan Bench: V Narayan JUDGMENT Vishnudeo Narayan, J
303
very day at 22.15 hours which was received in the Court on 31.5.1998
empowered to take cognizance.
The prosecution case, in brief, is that Kalamati Devi, aged about 18
years, is the daughter of the informant and her marriage was solemnized
with appellant Ajit Rana in the month of April 1997. On the occasion of
her marriage, the informant had delivered Rs. 16,000/- to appellant Ajit
Rana, but in spite of that, there were ill will and differences between the
couple. It is alleged that PW 5 Bhuneshwar Mistry of the village of the
appellant came to the house of the informant at village Baheri and
informed him that dead-body of Kalamati has been recovered from the
well situate in the Bart of the house of the appellant and on this
information the informant in company of his brother PW 3 Triveni Rana
and his co-villagers went there and found her dead-body lying on a cot
under a tree near the well in the said Ban and on query he was informed
by appellants Budhni Devi and Dwarika Mistry that Kalamati Devi had
accidentally fell in the well as a result of which she had died. It is further
alleged that he went to the well aforesaid and found the well-curb
completely covered by the logs of wood and there was only a small
passage left in the well-curb for taking water by bucket and the rope of
the Lattha used for taking water from the said well was also found cut
and the rear portion of the said Lattha was also found damaged which
gave reasonable suspicion to him that all the appellants, who are the
father-in-law, mother-in-law and husband respectively of the deceased
along with acquitted accused Gita Devi who is the sister of appellant Ajit
Rana have committed the murder of Kalamati Devi and they have
thrown her dead-body in the well. It is also alleged that appellant Ajit
Rana was found missing from his house from the early morning of that
day.
304
The appellants have pleaded not guilty to the charge levelled against
them and they claim themselves to be innocent and to have committed
no offence and that they have been falsely implicated in this case on
mere suspicion.
The prosecution has examined, in all, 9 witnesses to substantiate its case.
PW 7 Deoki Rana is the informant of this case and he is the father of
Kalamati Devi, the deceased in this case. PW 4 Girija Devi is the step
mother of the deceased. PW 5 Bhuneshwar Mistry is the resident of the
village of the appellants and they have turned hostile and do not support
the prosecution case. The evidence of PW 6 Tileshwar Prasad, a resident
of different village, and PW 1 Baldeo Kumar a co-villager of the
appellant has no relevancy in this case regarding the occurrence in
question. PW 3 Triveni Rana is the uncle of the deceased and PW 2
Muneshwar Rana is the agnate of the informant and their evidence is
relevant in this case in respect of alleged demand of dowry by the
appellants from the informant, though they are not the ocular witnesses
of the occurrence.
PW 9 Dr. D.L. Mandal has conducted the post-mortem examination on
the dead-body of the deceased and the post-mortem report per his pen is
Ext. 4 in this case. PW 8 Sheo Nath Prasad is the I.O. of this case. No
oral or documentary evidence has been brought on the record on behalf
of the defence.
Relying upon the testimony of PW 2 and PW 3 coupled with the
evidence of PW 9, the medical witness, and the objective finding of the
I.O. regarding the well-curb in question and the surrounding
circumstances of the case, the learned Court below came to the finding
that the death of the deceased is not a natural death and is otherwise than
under normal circumstances within 7 years of her marriage and there was
305
demand of dowry and the deceased was subjected to cruelty soon before
her death and she was strangulated to death and her dead-body was
thrown in the well after committing her murder and in view thereof the
appellants were found guilty and convicted and sentenced as stated
above.
Assailing the impugned Judgment it has been submitted by the learned
counsel for the appellants that there is no averment in the fardbeyan (Ext.
2) of the informant regarding any demand of dowry and the deceased
having been subjected with cruelty for the fulfilment of demand of
dowry and PW 7 the informant and his wife PW 4 have not deposed
about any cruelty perpetrated on the deceased for the fulfilment of
demand of dowry and they have not at all supported the prosecution case
in respect thereof and there is no iota of legal evidence on the record that
soon before her death, the deceased was tortured, harassed, vexed or
treated with cruelty for the demand of dowry. It has also been submitted
that there is no legal evidence on the record that the appellants have ever
demanded any dowry either from the deceased or the informant or his
relatives.
It has also been submitted that even PW 3 and PW 2 in their cross-
examination have contradicted their evidence regarding any demand of
dowry by the appellants from the deceased or her father and his relatives
and torture of the deceased for fulfilment of the said demand. It has
further been contended that though the medical witness has found the
death of the deceased due to asphyxia caused by strangulation but there
is no evidence on the record to give an inclining of the fact that the
appellants have committed her murder and the witnesses who have taken
oath for the prosecution in this case have not even whispered in respect
thereof. It has also been submitted that charge has been framed in this
306
case under Section 304B of the Indian Penal Code and no alternative
charge under Section 302 of the Indian Penal Code has been framed
against the appellant by the learned Court below. There is no evidence
on the record that the appellants have committed the murder of the
deceased and thrown her dead-body in the well. Lastly it has been
contended that there is no iota of legal evidence to connect or implicate
the appellants in this case for causing either the dowry death of the
deceased or her murder and on the contrary, there is evidence of PW 7
and PW 6 besides PW 3 and PW 2 that there was cordial conjugal
relationship between the deceased and her appellant husband and the
learned Court below did not meticulously consider the evidence on the
record in proper perspective and has been swayed by conjectures and
surmises and has gravely erred in coming to the finding the guilt of the
appellants. Thus, the impugned judgment is unsustainable. In support of
his contention reliance has been placed upon the ratio of the case of
Chando Devi v. The State of Bihar1, 2003 (1) East Cr C 493 (Pat) : 2002
Cri LJ 2783 and The State of Rajasthan v. Gyaneshwar and Ors2., 2002
Cri LJ 1312.
Refuting the contention aforesaid, it has been submitted by the learned
APP that the death of Kalamati is otherwise than under normal
circumstances within 7 years of her marriage in the Bart of her
1 Ref : Patna High Court
Chando Devi vs The State Of Bihar on 13 March, 2002 Equivalent citations: 2002 CriLJ 2783 Author: I P Singh Bench: I P Singh JUDGMENT Indu Prabha Singh, J. 2 Ref : Rajasthan High Court
The State Of Rajasthan vs Gyaneshwar And Ors. on 8 November, 2001 Equivalent citations: 2002 CriLJ 1312 Author: S K Garg Bench: S K Garg JUDGMENT Sunil Kumar Garg, J.
307
matrimonial home and there is evidence on the record that there were
aberrations in her conjugal life and she was subjected to cruelty for the
demand of dowry and PW 3 and PW 2 in their evidence have stated in
respect thereof but later on in their cross-examination, they have
contradicted their testimony for the reasons that some settlement has
been arrived at between the informant and the appellants out of the
Court. It has also been submitted that the medical witness has opined that
the death of the deceased has been caused due to asphyxia as a result of
strangulation and after the commission of her murder her dead-body has
been thrown in the well and PW 8, the IO, in his objective finding has
totally ruled out regarding the accidental fall of the deceased in the well
leading to her death and thus the finding of the guilt arrived at by the
learned Court below does not suffer with any infirmity requiring an
interference therein.
It will admit of no doubt that Kalamati Devi, the deceased of this case, is
the lawfully wedded wife of appellant Ajit Rana and their marriage was
solemnized in the month of April 1997 and a sum of Rs. 16,000/- was
paid to the appellant at the time of her marriage. Appellants Dwarika
Mistry and Budhni Devi are the parents of appellant Ajit Rana. There is
also no denying the fact that the death of Kalamati Devi has taken place
on 29.5.1998 and her dead-body was recovered from the well situate in
the Bari of the house of the appellant PW 9 Dr. D.L. Mandal has
conducted the postmortem examination on the dead-body of the
deceased on 30.5.1998 at 17.45 hours and he has deposed not to have
found any external ante-mortem injury on her body, but on dissection of
the neck of the deceased he has found extravasation of blood into
adjacent muscle of neck and also laceration on the sheath of the carotid
artery and hyoid bone was found fractured. The medical witness also
308
found larynx and trachea of the deceased - congested and they contained
frothy mucus. The medical witness has thus opined that the cause of the
death of the deceased is due to asphyxia as a result of strangulation. In
his cross-examination the medical witness has categorically deposed that
the injuries aforesaid cannot be possible by fall of a person on either a
stone or iron rod. PW 8, the IO has deposed to have inspected the place
of occurrence and found a well in the Bari of the house of the appellant
within the boundary walls from all the four sides. He has further deposed
that the well-curb was fully covered with wooden logs and there was
only an outlet for taking water from the well by a bucket. He has further
deposed that the rope fastened with the Lattha was found cut by sharp
cutting weapon and the hinder portion of Lattha was also found
damaged. The objective finding of the I.O stands corroborated as per the
evidence of PW 1 Baldeo Kumar, PW 2 Muneshwar Rana and PW 3
Triveni Rana in respect thereof. In view of the objective finding of the
IO read with the evidence of the aforesaid witnesses, the possibility of
the accidental fall of the deceased in the well while fetching water is
totally ruled out in this case. The medical witness has also categorically
deposed that death of the deceased is due to asphyxia as a result of
strangulation. Now a question arises as to whether the strangulation in
this case causing the death of the deceased is suicidal, homicidal or
accidental. It is relevant to mention here that suicidal strangulation is not
very common whereas accidental strangulation is rare and homicidal
strangulation is the commonest of the three forms. The existence of the
internal injuries of the neck of the deceased as found by the medical
witness, also totally rules out the case of the deceased committing
suicide by strangulation in the facts and circumstances in this case.
Accidental strangulation of the deceased is also totally ruled out in this
case. A person committing suicide by strangulation cannot fall in the
309
well especially when the hole in the well-curb is so small that only a
bucket can be used for taking water. The circumstances surrounding the
well also totally rule out the possibility of accidental strangulation of the
deceased and her fall in the well. It is not possible for anyone to continue
a firm grasp of the throat while committing suicide as unconsciousness
supervenes immediately in case of self-strangulation. It appears in this
case that the deceased was strangulated to death and her dead-body was
thrown in the well. Therefore, it is a case of homicidal strangulation and
I see no reason to disagree with the objective finding of the medical
witness in respect thereof. However, the appellants are not being
prosecuted in this case under Section 302 of the Indian Penal Code and
no alternative charge has also been framed against them by the learned
Court below which may be due to inadvertence or the lacks of
knowledge of the basic tenets of the criminal jurisprudence. Be the case
as it may, the death of the deceased is definitely not a natural death and it
is otherwise than under normal circumstances within 7 years of her
marriage having taken place in the Bari of her matrimonial home in
village Chutiaro.
Therefore, the presumption of mandatory requirement under Section
113B of the Evidence Act may be drawn in this case regarding the dowry
death of the deceased provided it is proved by legal evidence on the
record that the deceased was subjected by the appellants to cruelty or
harassment soon before her death for or in connection with any demand
of dowry.
To constitute an offence under Section 304B, the following essentials
must be established:
(i) The death of a woman must have been caused by burns or bodily
injury or otherwise than under normal circumstances ;
310
(ii) Such death must have occurred within seven years of her
marriage;
(iii) Soon before her death, the woman must have been subjected to
cruelty or harassment by her husband or by relatives of her
husband ;
(iv) Such cruelty or harassment must be for or in connection with
demand of dowry.
It is only when the aforementioned ingredients are established by
acceptable evidence such death shall be called dowry death and the
husband or his relatives shall be deemed to have caused her death.
A conjoint reading of Section 113B of the Evidence Act and Section
304B of the Indian Penal code shows that there must be material to show
that soon before her death the victim was subjected to cruelty or
harassment for or in connection with any demand of dowry. The
prosecution has to rule out the possibility of a natural or an accidental
death so as to bring it within the purview of the death occurring
otherwise than in normal circumstances.
The prosecution has to prove that soon before the occurrence there was
cruelty or harassment on the deceased for or in connection with any
demand of dowry and only in that case presumption operates. Suffice,
however, to indicate that the expression "soon before" would normally
imply that the interval should not be much between the concerned
cruelty or harassment and the death in question. There must be existence
of a link between the effect of cruelty based on the demand of dowry and
the concerned death and if the alleged incident of cruelty is remote in
time and has become stale enough not to disturb mental equilibrium of
the woman concerned, it would be of no significance.
311
It is pertinent to mention here at the very outset that there is the averment
in the fardbeyan (Ext. 2) of the informant that he had paid Rs. 16,000/- to
appellant Ajit Rana on the eve of his marriage with the deceased and in
spite of that there were ill will and differences between him and the
deceased. There is no averment in the fardbeyan that the appellant Ajit
Rana or other appellants or any member of his family had ever
demanded any dowry either from the deceased or from the informant.
There is also no averment in the fardbeyan that the deceased was
subjected to cruelty for fulfillment of any demand of dowry by the
appellants. Let us now advert to the evidence on the record. PW 7
informant Deoki Rana has deposed that on getting information of the
death of the deceased, he had gone to the house of the appellant and he
had found the dead-body of the deceased kept lying near the well.
He has also deposed that on enquiry he learnt that she had fallen in the
well while fetching water as a result of which she has died. In his
evidence on oath, the informant has not deposed about demand of any
dowry either from the deceased or from him by the appellants and
treating the deceased with cruelty for the fulfillment of the said demand,
rather in his cross-examination, he has specifically deposed that the
appellants had never demanded any dowry from the deceased and there
was a very cordial conjugal relationship between the deceased and her
appellant husband and she had also very cordial relationship with the
other members of the family of the appellant.
He has also deposed that he has also no suspicion at all that the appellant
had caused the murder of the deceased PW 4 Girija Devi, the step
mother of the deceased, has deposed in her evidence that she had
accompanied the informant at the house of the appellant on Information
of the death of the deceased. She has also deposed that there was cordial
312
relationship between the deceased and the appellants. In her cross-
examination she has further deposed that the appellants have never
demanded any dowry from the deceased. Both the witnesses are also
conspicuously silent in their evidence regarding any torture perpetrated
on the deceased in her matrimonial home soon before her death. PW 5
Bhuneshwar Mistry is a resident of village Chutiaro of the appellant and
he is the father of the husband of the sister of PW 4 Girija Devi and he is
closely related with the informant.
He has deposed that the deceased had a very cordial relationship with the
appellants in her matrimonial home. PW 1, though a resident of village
Behri 8 or 9 Kms. away from the PO village is the cousin of the
informant and he has deposed to have met the deceased a few days prior
to her death. PW 1, also does not say that the deceased had ever made
any complaint to her regarding any torture perpetrated on her in her
matrimonial home by the appellants for the demand of dowry. PW 6, a
resident of village Sakhiya, has deposed that he has knowledge of the
fact that the appellants had never made any demand of dowry from the
informant. PWs 7. 4 and 5 have been declared hostile by the prosecution.
It is pertinent to mention here that there was no reason for the
prosecution to declare them as hostile witnesses in this case, in view of
the fact that there was no averment at all in the fardbeyan of the
informant regarding treating the deceased with cruelty for or in
connection with demand of dowry.
However. PW 3 Triveni Rana, brother of the informant has deposed that
there was always a quarrel between the deceased and her appellant
husband for demand of dowry and her appellant husband always used to
demand money as dowry. He has deposed that the appellants used to
treat the deceased with cruelty when the said demand was not fulfilled
313
which had led to a Punchayati and an agreement was reduced into
writing as per the verdict of, the Punchayat PW 3 has further deposed
that the deceased had also sent two letters to him in which it has been
stated that the appellants used to demand money from her as dowry. He
has further deposed that there was a promise by the informant to pay Rs.
30,000/- as dowry on the eve of the marriage of the deceased, but a sum
of Rs. 16,000/- was only paid to appellant Ajit Rana and a sum of Rs.
14,000/- was still due to be paid which could not be given to the
appellants due to the inability of the informant and for that there was
quarrel between the couple. PW 2 Bhuneshwar Rana, an agnate of the
informant, has also deposed that the deceased has been done to death due
to the non-fulfillment of demand of dowry. It is pertinent to mention here
that the two letters purported to be written by deceased to PW 3 are the
best evidence to prove the case of the prosecution but it is queer enough
as to why these letters were not brought on the record.
These letters are very relevant in this case to establish the fact of demand
of dowry by the appellants and also for treating the deceased with cruelty
in respect thereof. No explanation has been brought on the record as to
why those letters have been suppressed in this case. There is also no
evidence on the record to establish the fact that there was a Panchayati in
respect of the dispute between the informant and the appellants regarding
the demand of dowry and the verdict of the Panchayat having been
reduced into writing. No person participating in the said Panchayati had
also taken oath in this case. Therefore, the evidence of PW 3 and PW 2
lacks credence in respect thereof. Furthermore, the testimony of PW 3
and PW 2 stands contradicted as per the evidence of PW 7 read with
PWs 4 and However, PW 3 and PW 2 in their further cross-examination
on recall have given a death nail to their evidence regarding the torture
314
on the deceased for the fulfilment of demand of dowry. PW 3 and PW 2
in the concluding portion of their cross-examination have specifically
deposed that the deceased had a very cordial relationship with her
appellant husband and the other appellants. PW 2 has also deposed that
the marriage of the deceased was performed with appellant Ajit Rana
about 15 or 16 years prior to the occurrence. It, therefore, appears from
the evidence of the witnesses of the prosecution referred to above that
there is no legal evidence on the record that the deceased was treated
with cruelty in her matrimonial home prior to her death for the
fulfillment of demand of dowry.
There is neither averment in the fardbeyan of the informant nor any legal
evidence on the record in respect thereof. There is also no definite
evidence on the record about ill treatment to the deceased at any time
having immediate proximity to the date of the death of the deceased on
29.5.1998 and in this view of the matter, the basic requirement of cruelty
or harassment soon before the death is absent in this case for the
applicability of Section 304B of the Indian Penal Code. The ratio of the
case of Chando Devi (supra) and the State of Rajasthan (supra) relied
upon by the appellant has their application in the facts and circumstances
in this case. It is equally pertinent to mention here that there is no ocular
evidence of any natural, competent and independent witness on the
record to give an inkling of the fact that the appellants have committed
the murder of the deceased and thereafter thrown her dead-body in the
well.
The circumstances emanating as per the evidence on the record also do
not support the fact that the appellants have committed the murder of the
deceased. There is also evidence on the record that the appellant Ajit
Rana was not present in his house on the day of the occurrence.
315
Therefore, there appears no substance in the prosecution case that the
appellants had caused the murder of the deceased and thrown her dead-
body into the well. The ingredients to constitute the offence under
Section 304B are not at all established by acceptable evidence on the
record and in this view of the matter the death of the deceased in this
case cannot be called as dowry death. The learned Court below did not at
all meticulously scrutinize and scan the evidence on the record in proper
perspective and has committed a manifest error in coming to the finding
of the guilt of the appellants under Section 304B of the Indian Penal
Code.
There is merit in this appeal and it succeeds. The appeal is hereby
allowed. The impugned judgment of the learned Court below is hereby
set aside. The appellants are found not guilty for the offence under
Section 304B of the Indian Penal Code and they are, accordingly,
acquitted. Appellants Dwarika Mistri and Budhni Devi are discharged
from the liability of their bail bonds. Let appellant Ajit Rana be set free
forthwith, if not wanted in any other case.
316
2. Case of Surendra Bengali alias Surendra Singh vs The State Of
Bihar (Now Jharkhand) on 30 June, 20091
Amareshwar Sahay, J. The appellant Surendra Bengali @ Surendra
Singh Rautela along with two other accused namely Deepak Deo and
Sudhir Ganjhu were put on trial. This appellant Surendra Bengali, was
charged under Section 302 of the Indian Penal Code for causing death of
Mahesh Pandey in furtherance of common intention with other accused
persons namely Deepak Deo and Sudhir Ganjhu, who were charged
under Sections 302/34 of the Indian Penal Code. This appellant was
further charged under Section 27 of the Arms Act for possessing Pistol
for using it illegally for firing at Mahesh Pandey.
Learned Trial Court, by its impugned Judgment dated 28.05.1999 in
Sessions Trial No. 46/1989, convicted the present appellant Surendra
Bengali, holding him guilty under Section 302 of the Indian Penal Code
and Section 27 of the Arms Act and sentenced him to undergo rigorous
imprisonment for life under Section 302 of the Indian Penal Code and
further for a period of Criminal Appeal No. 173 of 1999 (R)
Three years rigorous imprisonment under Section 27 of the Arms Act.
The other two accused Deepak Deo and Sudhir Ganjhu were acquitted
by the Trial Court holding that the prosecution failed to prove the
charges leveled against them. It is against this impugned Judgment of the
Trial Court, the present appeal has been filed by the appellant.
1 Ref : Criminal Appeal No. 173 of 1999 (R)
Against the Judgment and order dated 28.05.1999 passed by Shri Prabhat Kumar Jha, 7th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 46 of 1989 Surendra Bengali alias Surendra Singh Routela... APPELLANT Versus The State of Bihar (Now Jharkhand) ... ... RESPONDENTS . PRESENT The Hon'ble Mr. Justice Amareshwar Sahay The Hon'ble Mr. Justice R.R.Prasad JUDGMENT C.A.V. On 19/05/2009 PRONOUNCED ON 30/06/2009
317
The facts in short are that one Prem Kumar lodged a Fardbeyan on
23.07.1988 at 9:15 P.M. alleging therein that at about 9:00 P.M., he and
his maternal uncle namely Mahesh Pandey were in their house. At that
time, one Sudhir Ganjhu, a neighbour came and called Mahesh Pandey.
On such call, Mahesh Pandey went out of the house and went near
Vasundhara Cinema and started talking near a beetle shop. Immediately
thereafter, the accused Surendra Bengali and Deepak Deo came there on
a motorcycle which was being driven by Deepak Deo whereas the
appellant Surendra Bengali was a pillion rider. It is said that this
appellant Surendra Bengali fired two shots from his pistol on Mahesh
Pandey. Deepak Deo also shot one fire from his fire arm. Mahesh
Pandey, after receiving fire arm injuries, fell down on the ground and
thereafter, the accused persons fled away towards Kutcheri. Due to
firing, the people of the locality became terrorized and they started
fleeing away hither and thither. The cause of occurrence was said to be
enimity between Mahesh Pandey and Surendra Bengali (appellant). The
injured Mahesn Pandey was removed to Rajendra Medical College and
Hospital, Ranchi.
On the basis of the Fardbeyan, the case under Section 307, 326/34 of the
Indian Penal Code and Section 27 of the Arms Act was registered
against the three accused persons but when the victim Mahesh Pandey
died in course of treatment in the Hospital, subsequently, Section 302
was also added subsequently.
The Police took up the investigation and on completion thereof,
submitted chargesheet. Thereafter, cognizance of the Criminal Appeal
No. 173 of 1999 (R)
318
Offence was taken and the case was committed to the Court of Sessions
where the charges were framed and thereafter, the accused persons were
put on trial.
In course of Trial, altogether six witnesses were examined on behalf of
the prosecution and some documents were also adduced in evidence
which were marked Exhibits.
The victim who was admitted in the Hospital for treatment, made a
Dying Declaration on 23.07.1988, which was recorded by the Judicial
Magistrate at 11:00 P.M. in presence of the treating Doctor.
Learned Trial Court, on the basis of the evidence and materials on
record, convicted and sentenced the appellant, as already noticed above.
Mr. H.S. Prasad, learned counsel appearing for the appellant, submitted
that the whole case of the prosecution hinges on the so called Dying
Declaration of the victim Mahesh Pandey which has been marked as
Ext.-3. The alleged Dying Declaration of the deceased was allegedly
recorded at Rajendra Medical College and Hospital, Ranchi on
23.07.1988 at 11:00 P.M.. He further submitted that the alleged two eye
witnesses P.Ws.-1 and 2 i.e. the mother and sister of the deceased did not
support the case of the prosecution and were declared hostile. P.W.-3 is
the Doctor who held the postmortem examination, whereas P.W.-4 is the
witness of seizure and P.W.-6 is the Investigating Officer, therefore,
there is no other material except the alleged dying declaration of the
victim to connect the appellant with the alleged occurrence.
Mr. H.S. Prasad, learned counsel further submitted that the Dying
Declaration is liable to be discarded from consideration as the same is
neither signed by the victim nor it bears the certificate of the Doctor to
the effect that at the time of making such declaration, the victim was in a
319
fit state of mind to make such Criminal Appeal No. 173 of 1999 (R)
Statement
Lastly he submitted that the Dying Declaration ought to have been
recorded in a question and answer form which has not been done in this
case. In view of these serious infirmities, the dying declaration cannot be
taken into consideration for holding the appellant guilty for the charge.
There being no other evidence on record to corroborate the Dying
Declaration, the appellant deserves to be acquitted.
On the other hand, Mr. V.S. Sahay, learned APP for the State, submitted
that the Dying Declaration (Ext-3) made by the victim is itself sufficient
to convict the appellant since the same is perfectly legal and valid. He
submitted that the law does not require that the Dying Declaration should
bear the signature of the victim nor the dying declaration requires any
corroboration, if the Court finds it to be genuine and trustworthy.
320
In view of the facts stated hereinabove and the points raised by the
parties, this Court has to consider as to:-
i. Whether a Dying Declaration can be made the sole basis to
convict an accused. If yes, when and under what
circumstances?
ii. What are the requirements for the admissibility of a Dying
Declaration in evidence?
iii. Whether Dying Declaration should require signature or the
thumb impression of the maker?
iv. Whether a certificate of the Doctor is essentially required
regarding the fact that the maker was in a fit state of mind to
make such statements/ declaration?
v. Whether Dying Declaration essentially requires corroboration
by other evidence.
For searching the answer to the above questions, let us examine the case
laws on this point.
Criminal Appeal No. 173 of 1999 (R)
The Supreme Court, as far back as in 1958, in the case of Khushlal Rao
Vs. State of Bombay1 reported in AIR 1958 SC 22, has held that in order
to pass the test of reliability, a dying declaration has to be subjected to a
very close scrutiny, keeping in view the fact that the statement has been
made in the absence of the accused who had no opportunity of testing the
veracity of the statement by cross- examination. But once, the Court has
come to the conclusion that the dying declaration was the truthful 1 Ref : Supreme Court of India
Kushal Rao vs The State Of Bombay on 25 September, 1957 Equivalent citations: 1958 AIR 22, 1958 SCR 552 Bench: Sinha, B P ,PETITIONER: KUSHAL RAO Vs. RESPONDENT: THE STATE OF BOMBAY DATE OF JUDGMENT: 25/09/1957 BENCH:SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. MENON, P. GOVINDA KAPUR, J.L. CITATION: 1958 AIR 22,1958 SCR 552
321
version as to the circumstances of the death and the assailants of the
victim, there is no question of further corroboration. The necessity for
corroboration arises when in a given case, the Court comes to the
conclusion that a particular dying declaration was not free from
infirmity. (Emphasis is mine)
In a leading case of Harbans Singh and another Vs. The State of Punjab
1reported in AIR 1962 SC 439, the Supreme Court has held that it is
neither a rule of law nor of prudence that a dying declaration requires to
be corroborated by other evidence before a conviction can be based
thereon. (Emphasis is mine)
It is a settled law that Section 32(1) of the Evidence Act is exception to
the general rule that hearsay evidence is not admissible evidence unless
evidence is tested by cross examination. When a statement is made by a
person, as to the cause of death or any of the circumstances which result
in his death, in cases in which the cause of that person's death comes into
question, such a statement, oral or in writing, made by the deceased to
the witness is a relevant fact and is admissible in evidence. The
statement made by the deceased is called dying declaration. A dying
declaration made by person on the verge of his death has a special
sanctity as at that solemn moment, a person is most unlikely to make any
untrue statement. The shadow of impending death is by itself the
guarantee of the truth of the statement made by the deceased regarding
1 Ref : Supreme Court of India
Harbans Singh And Another vs State Of Punjab on 16 October, 1961 Equivalent citations: 1962 AIR 439, 1962 SCR Supl. (1) 104 Bench: Gupta, K Das PETITIONER: HARBANS SINGH AND ANOTHER Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT: 16/10/1961 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. CITATION: 1962 AIR 439 1962 SCR Supl. (1) 104 CITATOR INFO : RF 1963 SC 200 (17) R 1965 SC 26 (19) R 1965 SC 257 (8)R 1970 SC1566 (5) F 1972 SC 622 (27,31) R 1973 SC 55 (19) R 1973 SC1204 (9) R 1973 SC2195 (8) F 1973 SC2622 (7) R 1974 SC 606 (8,9) R 1976 C1994 (6) R 1985 SC 416 (13)
322
the causes or circumstances leading to his death. A dying declaration
enjoys almost a sacrosanct status as a piece of Criminal Appeal No. 173
of 1999 (R)
Evidence coming as it does from the mouth of the deceased victim. Once
the statement of the dying person and the evidence of the witnesses
testifying to the same passes the test of careful scrutiny of the courts, it
becomes a very important and a reliable piece of evidence and if the
court is satisfied that the dying declaration is true and free from any
embellishment such a dying declaration, by itself, can be sufficient for
recording conviction even without looking for any corroboration.
Reference in this regard may be made in the case of Kundula Bala
Subrahmanyam and Another Vs. State of Andhra Pradesh reported in
(1993) 2 SCC
In the case of P.V. Radhakrishna Vs. State of Karnataka reported in
(2003) 6 SCC 443, the Supreme Court has laid down certain principles
for acting upon a dying declaration. Relevant extracts from paras 10, 12
and 15 of the said Judgment are reproduced here-in-below.
"The general rule is that all oral evidence must be direct. The eight
clauses of Section 32 of Evidence Act are exceptions to the general rule
against hearsay. Clause (1) of Section 32 makes relevant what is
generally described as dying declaration, though such an expression has
not been used in any statute. It essentially means statements made by a
person as to the cause of his death or as to the circumstances of the
transaction resulting in his death. The grounds of admission are: firstly,
necessity for the victim being generally the only principal eyewitness to
the crime, the exclusion of the statement might deflect the ends of
justice; and secondly, the sense of impending death, which creates a
sanction equal to the obligation of an oath. The general principle on
323
which this species of evidence is admitted is that they are declarations
made in extremity, when the party is at the point of death and when
every hope of this world is gone, when every motive to falsehood is
silenced, and the mind is induced by the most powerful considerations to
speak the truth; a situation so solemn and so lawful is considered by the
law as creating an obligation equal to that which is imposed by a positive
oath administered in a court of justice. The Criminal Appeal No. 173 of
1999 (R)
Principle on which dying declaration is admitted in evidence is indicated
in the legal maxim "nemo moriturus praesumitur mentiri - a man will not
meet his Maker with a lie in his mouth. (Para-10)(Emphasis is mine)
Though a dying declaration is entitled to great weight, it is worthwhile to
note that the accused has no power of cross- examination. Such a power
is essential for eliciting the truth as an obligation of oath could be. This
is the reason the court also insists that the dying declaration should be of
such a nature as to inspire full confidence of the court in its correctness.
The court has to be on guard that the statement of the deceased was not
as a result of either tutoring, or prompting or a product of imagination.
The court must be further satisfied that the deceased was in a fit state of
mind after a clear opportunity to observe and identify the assailant. Once
the court is satisfied that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any further corroboration.
It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of
prudence. (Para-12) (Emphasis is mine).
Moreover, the state of mind was proved by the testimony of the doctor
who was present when the dying declaration was recorded. In the
324
aforesaid background it cannot be said that there was any infirmity.
Further, if the person recording the dying declaration is satisfied that the
declaration is in a fit medical condition to make a dying declaration then
such a dying declaration will not be invalid solely on the ground that it is
not certified by the doctor as to the condition of the declarant to make
the dying declaration. (Para-15) (Emphasis is mine)".
So far as the question as to whether a dying declaration should be
recorded in a question answer form, the Supreme Court, in the case of
Ram Bihari Yadav Vs. State of Bihar and others reported in (1998) 4
SCC 517, has held that it cannot be said that unless the dying declaration
is in question answer form, it cannot be accepted. Having regard to the
sanctity attached to a dying declaration, as it comes from the mouth of a
dying person though, unlike the principle of English law, he need not be
under Criminal Appeal No. 173 of 1999 (R) apprehension of death, it
should be in the actual words of the maker of the declaration. Generally,
the dying declaration ought to be recorded in the form of questions and
answers, but if a dying declaration is not elaborate but consists of only a
few sentences and is in the actual words of the maker, the mere fact that
it is not in question-answer form, cannot be a ground against its
acceptability or reliability (Emphasis is mine).
On behalf of the appellant, a Judgment of the Supreme Court in the case
of Paparambaka Rosamma and others Vs. State of A.P. reported in
(1999) 7 SCC 695, has been cited in support of the contention that
certification of the Doctor is essentially required to show that the patient
was in a fit state of mind to make the statement and in absence thereof, a
dying declaration cannot be accepted.
No doubt this view was taken by the three Judges' Bench of the Supreme
Court, but the said decision has already been overruled by the
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subsequent five Judges' Bench of the Supreme Court in the case of
Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 wherein,
it is held that the Judgment in the aforesaid case of Paparambaka
Rosamma and others Vs. State of A.P. (Supra) was not correctly decided.
The view taken in the case of Koli Chunilal Savji and Another Vs. State
of Gujrat reported in 1999 (9) SCC 562 has been upheld, wherein it was
held that the dying declaration of the deceased cannot be ignored merely
because the Doctor had not made the endorsement that the deceased was
not in a fit state of mind to make the statement in question.
In the aforesaid case of Koli Chunilal Savji and Another Vs. State of
Gujrat (Supra), the Supreme Court has also held that the requirements of
endorsement by a Doctor is only a matter of prudence and the ultimate
test is whether the dying declaration is voluntary and truthful. Before
recording the dying declaration, the Criminal Appeal No. 173 of 1999
(R) officer concerned must find that the injured was in a fit state of mind
to make the statement and if the Magistrate is satisfied about the
condition of the patient, such statement can be reliable.
In a recent decision of the Supreme Court in the case of Sher Singh and
Another Vs. State of Punjab reported in (2008) 4 SCC 265, the Supreme
Court, relying on its earlier decision in the case of Koli Chunilal Savji
and Another Vs. State of Gujrat (Supra) and Laxman Vs. State of
Maharashtra (Supra) held that the acceptability of a dying declaration is
greater because the declaration is made in extremity. When the party is at
the verge of death, one rarely finds any motive to tell falsehood and it is
for this reason, the requirement on oath and cross examination are
dispensed with in the case of dying declaration. Since the accused has no
power of cross examination, the Court would insist that the dying
declaration should be such a nature as to inspire full confidence of the
326
Court in its truthfulness and correctness. It is for the Court to ascertain
from the evidence placed on record that the deceased was in a fit state of
mind and had ample opportunity to observe and identify the culprit.
The decision cited by the counsel for the appellant in the case of Arvind
Singh Vs. State of Bihar reported in (2001) 6 SCC 407 is not applicable
in the facts and circumstances of the present case since in that case, the
dying declaration was made by the victim - daughter only before her
mother implicating her husband and in-laws in a case of dowry death. It
was held in the said case that the mother of the deceased was an
interested witness and therefore, in such a case, medical certification of
the fitness of mind of the maker was held to be required whereas, in the
present case, the dying declaration has been made in the Hospital in
presence of the Doctor and has been recorded by the Judicial Magistrate,
who cannot be said to be an interested witness and therefore, this
Judgment of the Supreme Court is of no help to the appellant. Criminal
Appeal No. 173 of 1999 (R)
The other decision cited on behalf of the appellant i.e. the case of
Kanchy Komuramma Vs. State of A.P. reported in 1995 Supp. (4) SCC
118 is also not applicable in the facts of the present case since that was a
case of dowry death and the girl who received the burn injuries made the
dying declaration in presence of the Magistrate but the same was not
found reliable because the mother of the victim specifically stated that
the condition of the patient was not good and that she was not in a fit
condition. In such a situation, the dying declaration was held to be not
reliable, whereas, in the present case, the facts are quite different. In this
case, we do not find any infirmity in the dying declaration of the victim;
rather we are of the view that the dying declaration is genuine and
truthful.
327
From the evidence led by the prosecution during the trial, it appears that
at the request of the Investigating Officer and and the orders of the Chief
Judicial Magistrate, Ranchi, P.W.-5 Subhash Chandra Prasad, Judicial
Magistrate, recorded the dying declaration of the victim Mahesh Pandey
at Rajendra Medical College and Hospital, Ranchi on 23.07.1988 itself at
11:00 P.M., wherein the victim specifically stated that he was shot at by
the appellant Surendra Bengali at 9:00 P.M. The victim spoke only few
sentences. The dying declaration was recorded in presence of the Doctor
attending the victim and he has also put his signature therein. The dying
declaration also bears the certificate of the Judicial Magistrate to the
effect that the statement was recorded by him and it was given by the
victim voluntarily at death bed and it was true statement.
P.W.-5, Judicial Magistrate, in his evidence, has specifically stated that
the Doctor had orally stated before him that the victim Mahesh Pandey
was in a fit state of mind to give the statement. The dying declaration has
been adduced in evidence and has been marked as Ext. - 3.
Criminal Appeal No. 173 of 1999 (R)
The dying declaration was made only after 2/3 hours of the occurrence
and the victim died in the morning of 25.07.1988, whereas, the post-
mortem was done on the same day. P.W.-1 Rampati Devi, the mother of
the deceased and P.W.-2 Tanuja Kumari, sister of the deceased, though
have been declared hostile by the prosecution since as stated by this
witness in them in their evidence, they did not see the assailants, but
from their evidence, at least this fact has been established that the
deceased came out of his house at the relevant time and date and within
half an hour, these two witnesses heard the sound of firing and on
hearing the sound of firing, they came out of their house and found
Mahesh Pandey lying injured due to fire arm injuries. Thereafter, the
328
victim Mahesh Pandey was removed to the Hospital where in course of
the treatment, he died.
It was this appellant, who shot fire from his pistol on the deceased, has
clearly been stated by the victim in his dying declaration. The injuries
found on the person of deceased, as stated by the Doctor who held the
postmortem examination, fully corroborates the statements of the victim
made in the dying declaration.
The following injuries were found on the person of the deceased.
(i) Wound of enterance 1 x ½ cm. stitched on the left chest front 6
cm. below left nipple and 8 cm. left middle line. The projectile
passes through chest wall perforates the diagram intestine and
makes an exit wound 2 x 1 cm. on the left abdomen back, 6 cm.
left to middle line;
(ii) Wound of enterance 1 x ¼ cm. on the right abdomen upper part 3
cm. right to middle line, the projectile passes through abdominal
wall injured the stomach mesentery and makes an exit wound 1 x
½ cm. x 3 ¼ cm. on the left lateral chest. Criminal Appeal No.
173 of 1999 (R)
P.W.-5 - Shri S.C. Prasad, the Judicial Magistrate, stated in his evidence
that on 23.07.1988, he recorded the dying declaration of Mahesh Pandey
at Rajendra Medical College and Hospital, Ranchi at 11:00 P.M.
In cross examination, the Judicial Magistrate stated that he did not know
Mahesh Pandey from before. The victim was identified by the Doctor.
The Doctor stated before him that Mahesh Pandey was in a position to
make statement.
329
The dying declaration not only contains the certificate of the Judicial
Magistrate certifying that the statement made by the declarant was
voluntary but it also contains the signature of the Doctor D.P. Bhadani
and Most. Rampati Devi (P.W.-1). However, Dr. D.P. Bhadani, in spite
of best efforts, could not be examined since he left Ranchi as has been
stated by the Investigating Officer P.W.-6 Arun Kumar Singh in his
evidence.
From a close scrutiny of the dying declaration made by the victim (Ext. -
3) wherein it has specifically been stated by the victim before the
Judicial Magistrate - P.W.-5 that the accused Surendra Bengali shot fire
on him. He also stated that Surendra Bengali had killed his brother also.
After stating these few sentences, the deceased uttered that he was
feeling serious pain in his abdomen and thereafter, did not say anything.
The Judicial Magistrate specifically stated that Dr. Bhadani, who was
attending the injured, told that the injured was capable of making the
Criminal Appeal No. 173 of 1999 (R) statements and thereafter he
recorded whatever was stated by the injured.
In view of the facts stated above, in our view, the genuineness and
truthfulness of the dying declaration made by the victim and recorded by
the Judicial Magistrate in presence of the Doctor cannot be doubted.
So far as the point rose on behalf of the appellant that the dying
declaration should contain the signature or the thumb impression of the
maker is concerned, in our view, the same is devoid of any merit. Under
Section 32 of the Evidence Act, when the statement is made by a person
as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of
that person's death comes into question, such statements, oral or in
330
writing, made by the deceased to the witness, is a relevant fact and is
admissible in evidence.
Section 32 and its Sub Clause (1) is quoted here-in- below:-
“Cases in which statement of relevant fact by person who is dead or
cannot be found, etc. is relevant.-
Statements, written or verbal, of relevant facts made by a person who is
dead, or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured, without an amount of
delay or expense which, under the circumstances of the case, appears to
the Court unreasonable, are themselves relevant facts in the following
cases:-
i. When it relates to cause of death. - When the statement is made by a
person as to the cause of his death, or as to any of the circumstances of
the transaction which resulted in his death, in cases in which the case of
that person's death comes into question.
Such statements are relevant whether the person who made them was or
was not, at the time when they Criminal Appeal No. 173 of 1999 (R)
were made, under expectation of death, and whatever may be the nature
of the proceeding in which the cause of his death comes into question.
In view of the discussions and findings above, we hold that
i. A dying declaration can be made the sole basis to convict an
accused if the Court comes to the conclusion that the dying
declaration is truthful and free from any infirmity;
ii. If the dying declaration is free from infirmity and is found to be
genuine and truthful, then no corroboration by any other evidence
is required;
331
iii. If the person recording the dying declaration is satisfied that the
declarant is in a fit medical condition to make a dying declaration,
then a certificate of the Doctor regarding the mental fitness of the
declarant to make the dying declaration is not required.
iv. Generally a dying declaration should be recorded in a Question -
Answer Form but if a dying declaration is not elaborative and
consists of only a few sentences and is in the actual words of the
maker, such dying declaration which has not been recorded in a
Question - Answer form, cannot be rejected and it can be
accepted.
v. Under Section 32 of the Evidence Act, a dying declaration is not
required to be signed by its maker and even dying declaration
made orally is admissible in evidence.
In the present case, as already held above, the dying declaration made by
the victim Mahesh Pandey is found to be genuine and truthful and
without any infirmity and therefore, in our view, the learned Trial Court
has rightly relied on the dying declaration of the victim Mahesh Pandey
(Ext. - 3) and held the appellant guilty for committing his murder.
Criminal Appeal No. 173 of 1999 (R)
We do not find any error in the impugned Judgment of the Trial Court.
Accordingly, we hereby affirm the conviction and sentence passed by the
Trial Court.
Consequently, the appeal is found to be without any merit. The same is
hereby dismissed.
Jharkhand High Court, Ranchi
The 30th June, 2009
332
Rohit Das And Anr. vs State Of Bihar (Now Jharkhand) on 18
August, 20041
This appeal is directed at the instance of the appellants against the
impugned judgment and order dated 27-9-1999 and 29-9-1999
respectively passed in Sessions Case No. 190 of 1998 by Shri Prabodh
Ranjan Dash, 3rd Additional Sessions Judge, Deoghar whereby and
whereunder the appellants were found guilty for the offence punishable
under Sections 304B and 201 of the Indian Penal Code and they were
each convicted to undergo rigorous imprisonment for seven years and
three year's respectively and also to pay a fine of Rs. 1000/- and in
default thereof to undergo further rigorous imprisonment for one month
and both the sentences were ordered to run concurrently. However, co-
accused Ughan Das and Bhudeo Das were not found guilty and they
were, accordingly, acquitted.
The prosecution case has arisen on the basis of the Fardbeyan (Ext. 3) of
P.W. 8 etkaha Das, the father of Mirkhi Devi, the deceased of this case,
recorded by S. I. Shivjee Prasad Singh, Officer-in-Charge of Madhupur
Police Station in village-Bangora, Police Station-Madhupur, District-
Deoghar on 31-7-1998 at 11.00 hours regarding the occurrence which is
said to have taken place a few days ago in village-Bangora, Police
Station-Madhupur and a case was instituted by drawing of a formal First
Information Report (Ext. 4) on that very day at 15.00 hours.
1 Ref : Jharkhand High Court
Rohit Das And Anr. vs State Of Bihar (Now Jharkhand) on 18 August, 2004 Equivalent citations: 2005 CriLJ 4, I (2005) DMC 420 Author: V Narayan Bench: V Narayan JUDGMENT Vishnudeo Narayan, J.
333
The prosecution case, in brief, is that the marriage of Mirkhi Devi, the
daughter of P.W. 8, the informant, was solemnized with appellant-Rohit
Das one year prior to the alleged occurrence and in the said marriage Rs.
10,000/- and one cycle was given to the said appellant and after the
marriage the deceased had come to her matrimonial home with the said
appellant for leading conjugal life. It is alleged that after sometimes of
the marriage, appellant Rohit Das along with his mother appellant-
Sudami Das started making demand of radio, wristwatch, utensils,
clothes, she-calf and cash and they started subjecting the deceased to
cruelty and harassment for the fulfilment of the said demand.
The prosecution case further is that the informant brought the deceased
to his house from her matrimonial home about 20 or 25 days prior to the
occurrence where she has told him about the torture perpetrated on her
by the appellants and other co-accused persons for the fulfilment of
aforesaid demand in dowry and has also narrated that whenever she is
assaulted by the appellants, the other co-accused persons used to
instigate them for further assault. The deceased came back to her
matrimonial home in the company of P.W. 1 Bhim Das, her maternal
uncle after staying there for four or six days and said Bhim Das
requested and persuaded the appellants and other co-accused persons for
not treating her with cruelty but he was intimidated and told by them to
fulfil the aforesaid demands, failing which dire consequences shall
follow. It is alleged that the informant learnt on 30- 7-1998 that her
daughter Mirkhi Devi is dead and her dead body is lying in the well east
of village-Bangora and on the said informantion he came there with P.W.
1 Bhim Das and others and found the dead body of the deceased in the
well and the appellants and other co-accused persons had fled away from
their house.
334
The appellants have pleaded not guilty to the charges levelled against
them and they claim themselves to be innocent and to have committed
no offence and that they have been falsely implicated in this case. It has
also been contended that the marriage of the deceased was never
performed with appellant-Rohit Das and she was a woman of easy
virtues roaming hither and thither with her paramours.
The prosecution has, in all, examined ten witnesses to substantiate its
case. P.W. 8 Ketkaha Das is the informant and the father of Mirkhi Devi,
the deceased in this case. P.W. 1 Bhim Das is the maternal uncle of the
deceased. P.W. 2 Rajendra Das is the son of P.W. 1 and his signature on
the inquest report (Ext. 2) is Ext. 1. P.W. 3 Gujari Devi is the wife of the
elder brother of P.W. 1 and P.W. 4 Raj Kumar Das and P.W. 5 Laxman
Das are her sons. P.W. 7 Champa Devi is the cousin sister of the mother
of the deceased. P.W. 6 Shakti Yadav, is a resident of village-Arahi
Police Station, Madhupur and he has been declared hostile by the
prosecution. P.W. 10 Dr. Anandi Kumar Jain has conducted the post-
mortem examination on the dead body of the de- ceased on 31-7-1998
and the post-mortem report per his pen is Ext. 5. P.W. 9 Sheojee Prasad
Singh is the Investigating Officer of this case and he has proved the
inquest report (Ext. 2), Fardbeayn (Ext. 3) and formal First Information
Report (Ext. 4).
In view of the evidence, oral and documentary on the record, the learned
trial Court has found the appellants guilty and convicted and sentenced
them as stated above.
Assailing the impugned judgment it has been submitted by the learned
counsel for the appellants that Mirkhi Devi, the deceased of this case,
was not married with appellant-Rohit Das and the deceased was the
lawfully wedded wife of one Kanchan Das of village-Mayurnath and the
335
marriage between the deceased and Kanchan Das was still subsisting on
the day of the recovery of the dead body and there had been no divorce
between them. It has also been submitted that the marriage, if any, in the
Chumauna form of the deceased with appellant Rohit Das is unlawful
and ab initio void as the deceased as well as the appellant had their
respective spouse living.
It has further been submitted that Section 304B of the Indian Penal Code
has no application when the deceased is not the lawfully wedded wife of
appellant-Rohit Das and in support of his contention reliance has been
placed upon the ratio of the cases of Ramnarayan v. State of Madhya
Pradesh 1998 (3) Crimes 147 and Imtiyaz Khan alias Sonu v. The State
of Jharkhand, 2004 (2) JLJR 178 : (2004 Cri LJ 2560), It has also been
contended that the Investigating Officer has conducted the investigation
in the most perfunctory manner and he has presupposed the factum of
marriage between the deceased and appellant-Rohit Das on the basis of
the statement of the interested witnesses without examining any person
of village-Bangora as well as of village Mayurriath. It has further been
contended tjiat there is also no iota of legal evidence on the record to
evidence the fact that the deceased was subjected to cruelty and
harassment for the demand of dowry, if any; soon before her death and
on this score also no offence under Section 304B of the In Bian Penal
Code is made out against the appellants. It has also further been
submitted that this appellant has been falsely implicated in this case at
the instance of Karu Das who is the father-in-law of the son of P.W. 1
arid said Karu Das was inimical to acquitted co-accused Bhudeo Das.
Lastly, It has; been contended that the learned Court below did hot
meticulously consider the evidence on the record and has committed a
manifest error in coming to the finding of the guilt of the appellants.
336
Iri contra, it has been submitted by the learned Additional Public
Prosecutor that the first Wife of appellant-Rohit Das had died leaving
behind three children and thereafter the marriage of the deceased with
appellant-Rohit Das has been performed in the Ghumauna form and the
deceased was deserted by her last while husband Kahchan Das and this
appellant in his bail application has stated about his marriage with the
deceased in Chumauna form. It has also Been contended that since the
marriage in the Chumauna form, the deceased was leading conjugal life
with the appellant in his home and he Was treated with cruelty and
harassment for the fulfilment of demand of dowry, and deceased has
died due to haemorrhage and shock because of the fracture injury on her
scalp caused by hard and blunt substance and to screen themselves the
appellants have thrown the dead body in the Well and there is sufficient
legal evidence on the record that soon before her death, the deceased was
subjected to cruelty and harassment for or in connection With demand of
dowry and her death has taken place within seven years of her marriage
with appellant-Rohit Das in Chumauna form. Lastly, it has been
contended that the Apex Court in the case of Reema Aggarwal v.
Anupam, 2004 (2) JLJR 40 (SC) : (2004 Cri LJ 892) : (2004 AIR - Jhar
HCR 1026) has observed that if the validity of marriage itself is under
legal scrutiny, the demand of dowry in respect of an invalid marriage
would be legally not recognizable, however; stich hairsplitting legalistic
approach Would encourage harassment to a woman over demand of
money and would destroy the purpose of the provisions and it would be
appropriate to construe the expression "husr band" to cover a person who
enters into marital relationship and under the colour of such proclaimed
or feigned status of husband subjects the woman concerned to cruelty
and in the absence of a definition of husband to specifically include such
persons who contract marriage ostensibly and cohabitate with such
337
woman, is no ground to exclude them from the purview of Sections
304B and 498A of the Indian Penal Code and thus, the ratios of the cases
of Ramnarayan (supra) and Imtiyaz Khan alias Sonu (supra) have no
application in this case being contrary to the ratio of the Apex Court. '
Thus, there is no illegality in the impugned judgment requiring an
interference therein.
It is an admitted fact that Mirkhi Devi was earlier married with Kanchan
Das of; vjllage-Mayurnath and her marriage with Kanchan Das was
performed four or five years prior to the occurrence and said Kanchan
Das is still alive and their marriage has not been dissolved by divorce in
accordance with law- In this connection; evidence in paragraph 5 of
P.W. 8 Ketkaha Das, the father of the deceased, paragraph 11 of P.W. 1,
paragraphs 3 and 5 of P.W. 3 and paragraph 3 of P.W. 4 of. their
testimony is referred to. In paragraph 6 of his evidence, P.W. 8 has also
deposed that the deceased was living in his house for the last one year
prior to her marriage with appellant-Rohit Das. His evidence is further to
the effect that at the time of the marriage of appellant-Rohit Das with the
deceased his first wife, was already dead and appellant-Rohit Das had
two daughters and a son born of his first wife. However, in paragraph 2
of his evidence he has deposed that the deceased was lead ing happy
conjugal life in the early days of the marriage with appellant-Rohit Das
and his first wife. P.W. 1 in paragraph 8 of his evidence has deposed that
the first wife of appellant-Rohit Das was not present in his house when
the marriage of the deceased was performed with the appellant. It,
therefore, appears from the evidence referred to above that the deceased
had her spouse alive though she was living a deserted life at her parent's
house and under such circumstances her marriage in Chumauna form
was performed with appellant-Rohit Das. There is conflicting evidence
338
on the record regarding the spouse of appellant-Rohit Das in existence
and alive at the time of the marriage of the appellant with the deceased in
Chumauna form. It is an admitted fact that the deceased was not
divorced by her formal husband Kanchan Das.
There is also evidence on the record that in the marriage of the deceased
with appellant-Rohit Das no religious rites were performed and Mandap
Was not made and there was total absence of participation of the priest
and the barber in the said marriage and the said marriage in Chumauna
form was performed in the house of P.W. 1, who is the maternal uncle of
the deceased. It, therefore, appears that the marriage of the deceased with
appellant Rohit Das was definitely unlawful and abinitio void, but in
view of the evidence on the record, it is crystal clear that the deceased
was living in the house of the appellants leading marital life as husband
and wife for the last one year prior to the occurrence. In the case of
Ramnarayan (supra) it has been observed that Sections 304B and 498A
of the Indian Penal Code presuppose the marriage of victim-woman with
offender husband and it must be shown that the victim-woman was the
legally married woman and the import of the provision could not be
extended so as to exclude a woman married, in fact, but whose marriage
was void and in view thereof, the accused husband was discharged and
the proceeding under Sections 304B and 498A of the Indian Penal Code
was quashed as the accused since could not been treated as husband of
the deceased woman. A Bench of this Court in the case of Imtiyaz Khan
alias Sonu (supra) has observed that since offence under Section 304B is
a serious one as it has severe penal provision, its ingredients must be
proved strictly and the standard of evidence to prove the marriage for
this section would be either in accordance with the provision of Personal
Law to which the parties belong or by the conduct under Section 50 of
339
the Evidence Act and mere living together and having physical
relationship does not constitute a marriage.
Prior to the ratio of the case of Imtiyaz Khan alias Sonu (supra) the Apex
Court has settled the controversy regarding the concept of the marriage
for the purposes of Section 304B of the Indian Penal Code in the case of
Reema Aggarwal (supra). The Bench of this Court in the case of Imtiyaz
Khan alias Sonu (supra) has probably overlooked the ratio in the case of
Reema Aggarwal (supra) of the Apex Court, Therefore, the ratio of this
Court in the case of Imtiyaz Khan alias Sonu (supra) is per incuriam. The
Apex Court in the case of Reema Aggarwal (supra) has thus observed in
paragraph 12:-
"The concept of marriage to constitute the relationship of'husband' and
'wife' may require strict interpretation where claims for civil rights, right
to property etc. may follow or flow and a liberal approach and different
perception cannot be an anathema when the question of curbing a social
evil is concerned."
The Apex Court has further observed in paragraph 19 which runs thus at
Page 1032 of AIR - Jhar HCR :-
'The concept of "dowry" is intermittently linked with a marriage and the
provisions of the Dowry Act apply in relation to marriages. If the legality
of the marriage itself is an issue further legalistic problems do arise, if
the validity of the marriage itself is under legal scrutiny, the demand of
dowry in respect of an invalid marriage would be legally not
recognizable. Even then the purpose t'ot which Sections 498A and 304B,
IPC and Section 113B of the Indian Evidence Act 1872 (for short the
"Evidence Act") were introduced cannot be lost sight of. Legislations
enacted with some policy to curb and alleviate some public evil rampant
340
in society and effectuate a definite public purpose or benefit positively
requires to be interpreted with certain element of realism too and not
merely pedantically or hyper-technically.
The obvious objective was to prevent harassment to a woman who enters
into a marital relationship with a person and later on, becomes a victim
of the greed for money. Can a per son who enters into a marital
arrangement be allowed to take a shelter behind smokescreen to contend
that since there was no valid marriage the question of dowry does not
arise? Such legalistic niceties would destroy the purpose of the
provisions. Such hairsplitting legalistic approach would encourage
harassment to a woman over demand of money. The nomenclature
"dowry" does not have any magic charm written over it. It is just a label
given to demand of money in relation to marital relationship. The
legislative intent is clear from the fact that it is not only the husband but
also his relation who are covered by Section 498A. Legislature has taken
care of children born from invalid marriages. Section 16 of the Marriage
Act deals with legitimacy of children of void and voidable marriages.
Can it be said that Legislature which was conscious of the social stigma
attached to children of void and voidable marriages closed eyes to plight
of a woman who unknowingly or unconscious of the legal consequences
entered into the marital relationship. If such restricted meaning is given,
it would not further the legislative intent. On the contrary, it would be
against the concern shown by the Legislature for avoiding harassment to
a woman over demand of money in relation to marriages. The first
exception to Section 494 has also some relevance. According to it, the
offence of Bigamy will not apply to "any person whose marriage with
such husband or wife has been declared void by a Court of competent
jurisdiction."
341
It would be appropriate to construe the expression "husband" to cover a
person who enters into marital relationship and under the colour of such
proclaimed or feigned status of husband subjects the woman concerned
to cruelty or coerce her in any manner or for any of the purposes
enumerated in the relevant provisions - Sections 304B/498A, whatever
be the legitimacy of the marriage itself for the limited purpose of
Sections 498A and 304B, of the Indian Penal Code. Such an
interpretation, known and recognized as purposive construction has to
come into play in a case of this nature. The absence of a definition of
husband to specially include such persons who contract marriages
ostensibly and cohabitate with such woman, in the purported exercise of
his role and status as 'husband' is no ground to exclude them from the
purview of Section 304B or 498A, of the Indian Penal Code, viewed in
the context of the very object and aim of the legislations introducing
those provisions."
On the touchstone of the ratio of the Apex Court referred to above
coupled with the evidence on the record mentioned hereinabove,
appellant-Rohit Das falls under the expression of 'husband' by
solemnizing his marriage with the deceased in. the Chumauna form of
marriage and the appellant has entered into marital relationship with the
deceased under the colour of such proclaimed or feigned status of
husband and the absence of definition of husband to specifically include
such person to contract marriage ostensibly and cohabitate with such
woman in the purported exercise of his role and status as husband is no
ground to exclude them from the purview of Section 304B or 498A of
the Indian Penal Code.
Viewed in the context of the very object and aim of the legislations
introducing those provisions. The ratio of the case of Surjit Kaur v. Garja
342
Singh, AIR 1994 SC 135 and Ramcharan Singh v. Smt. Sushila Devi,
1996 Cri LJ 4405, are of no avail to the appellants in the facts and
circumstances of this case in view of the ratio of the case of Reema
Aggarwal (supra). I, therefore, see no substance in the contention of the
learned counsel for the appellants in respect thereof.
There is no denying the fact that the dead body of the deceased was
found in the well east of village-Bangora at a distance of half a kilometer
from her matrimonial home and her death has occurred within seven
years of her marriage with appellant-Rohit Das and her death is
otherwise than under normal circumstances. P.W. 10 Dr. Anandi Kumar
Jain has conducted the post-mortem examination on the dead body of the
deceased on 31-7-1998 and his objective finding runs thus:
(ii) Whole body was swollen with foul smelling of gas and
maggots all over the body.
(iii) Forehead depressed at left portion over left eye.
(iv) Lips swollen and tongue caught between the teeth.
(v) Skin of hands and feet separated from the body, the manner
of gloves.
(vi) Hair from the skull separated due to putrefaction."
He has further deposed that on dissection he has found a fracture of
frontal bone on left side with laceration overlying scalp and bloodstains
was there. In paragraph 2 of his evidence, the medical witness has
categorically deposed that the injury on scalp appears to be by hard and
blunt substance, such as lathi or by hard substance and the time elapsed
since death is live days from the post-mortem examination. Ext. 5, the
post-mortem report further reveals that according to the medical witness,
the death of the deceased is due to haemorrhage and shock due to injury
on head of the deceased caused by hard and blunt substance. It is equally
343
relevant to mention here that the medical witness has not found the
presence of water in the stomach of the deceased.
It, therefore, appears that the deceased has not fallen in the well
accidentally when she was alive rather her dead body was thrown in the
well. The existence of injury on the scalp of the deceased coupled with
absence of watery fluid in her stomach etc. totally rules out the
possibility of the accidental death of the deceased or suicide by her.
However, the death of the deceased has been surrounded by suspicious
circumstances which have occurred otherwise than under normal
circumstances during the subsistence of her marriage with appellant-
Rohit Das while she was living with him and the other appellant in her
matrimonial home. For drawing the presumption as mandated under
Section 113B of the Evidence Act in this case regarding the death of the
deceased it has to be proved by legal evidence on the record that the
death of the deceased has occurred within seven years of her marriage
and she was subjected by the appellants to cruelty or harassment soon
before her death for or in connection with demand for dowry.
In order to attract application of Section 304B, the essential ingredients
are as follows:-
(i) The death of a woman should be caused by burns or bodily injury
or otherwise than under normal circumstances;
(ii) Such death should have occurred within seven years of her
marriage;
(iii) She must have been subjected to cruelty or harassment for her
husband or any relatives of her husband;
(iv) Such cruelty or harassment should be for or in connection with
demand of dowry;
344
(v) Such cruelty or harassment is shown to have been meted out to the
woman soon before her death."
It is only when the aforementioned ingredients are established by
acceptable evidence, such death shall be called dowry death and the
husband or his relatives shall be deemed to have caused her death.
Before adverting to the evidence on the record, it is essential to mention
the averments made in the Fardbeyan (Ext. 3) of the informant which is
to the effect that after the marriage of the deceased with appellant-Rohit
Das, both the appellants started making demand of radio, wristwatch,
utensils, clothes and she-calf besides cash and they started subjecting her
to cruelty for the fulfilment of the said demand.
There is further averment that 20 or 25 days prior to the occurrence, the
informant brought the deceased to his house where she has disclosed the
cruelty perpetrated on her by the appellants for the fulfilment of the
demands. There is also averment that after stay of four to six days in her
parent's house, the deceased returned to her matrimonial home in the
company of P.W. 1 Bhim Das where he had tried to dissuade the
appellants for not subjecting the deceased to cruelty but P.W. 1 Bhim
Das was intimidated to fulfil the demand of dowry failing which it shall
follow with dire consequences.
P.W. 8 Ketkaha Das, the informant and the father of the deceased, has
deposed that the deceased had led her happy conjugal life with appellant-
Rohit Das for some time after the marriage and thereafter she was
subjected to cruelty by appellant-Rohit Das and others for the fulfilment
of demand of clothes, one she-calf and utensils and also used to
intimidate her that if the demand is not fulfilled, dire consequences shall
follow. He has further deposed that a Panchayati was done to resolve the
matter but it did not bear fruit. His evidence is further to the effect that
345
he brought the deceased from her matrimonial home where she lived for
eight days and returned to her matrimonial home in the company of P.W.
1 Bhim Das where Bhim Das was also intimidated that the nonfulfilment
of demand of dowry shall be visited by severe consequences. P.W. 1
Bhim Das has deposed that the appellants started making demand of
clothes, utensils, one she-calf and Rs. 5000/- in cash from the deceased
after the marriage and they started her treating with cruelty and also used
to assault her.
He has further deposed that P.W. 8 has brought the deceased to his
house. His evidence is further to the effect that he brought the deceased
to her matrimonial home after eight days of her stay in her parent's house
and in his presence demand of dowry was made and acquitted co-
accused persons had stated before him that if the demand is not fulfilled,
dire consequences shall follow. He has further deposed that eight days
thereafter deceased was done to death and her dead body was found in
thG well. In paragraph-9 of his cross-examination, he has deposed that in
the month of Jeth prior to the occurrence he had visited the house of the
appellants to dissuade them for not making demand of dowry but the
appellants had made the demand of dowry in his presence.
In paragraph 12 of his cross examination, he has deposed that the,
deceased was never assaulted in his presence but the deceased had told
him one month prior to the occurrence regarding the fact of assault
perpetrated on her by the appellants and he has also narrated the said fact
to the informant. P.W. 2 has also deposed regarding the demand of she-
calf and utensils and subjecting the deceased to cruelty by the appellants.
In paragraph 10 of his cross-examination, he has deposed that he has
lastly visited the house of the appellants about one year prior to the
occurrence and appellant-Rohit Das demanded a she-calf from the
346
deceased in his presence and also intimidated her of dire consequences
and he has informed the parents of the deceased as well as his father in
respect thereof. P.W. 4 Raj Kumar Das has deposed that whenever he
met the deceased, she used to tell that the appellants always assault her
for the fulfilment of demand of dowry.
In para graph 5 of his cross-examination he has deposed that he had met
the deceased lastly five or six months prior to the occurrence. P.W. 5
Laxman Das has also deposed that he has once met the deceased at Devi
Chauk after her marriage with appellant-Rohit Das and she has told him
about subjecting her to cruelty and harassment by the appellants for the
fulfilment of demand of dowry. P.W. 7 Champa Devi has also deposed
that the deceased had told her about the cruelty and harassment
perpetrated on her by the ap pellants when she had come to her house in
village-Hussainabad. In paragraph 4 of her cross-examination, she has
deposed that she had come to her house in the company of appellant-
Rohit Das.
Therefore, there is sufficient and satisfactory evidence on the record to
show that the deceased was treated with cruelty and harassment for the
fulfilment of demand of dowry during the period of her conjugal life
with the appellants sometimes after the marriage and the cruelty and
harassment on her continued for the fulfilment of demand of dowry till
her death. It, therefore, appears that the deceased was subjected to
cruelty and harassment for the demand of dowry soon before her tragic
end. A reading of Section 113B of the Evidence Act along with Section
304B of the Indian Penal Code shows that there must be material to
show that soon before the death of the deceased, she was subjected to
cruelty or harassment. Prosecution has to rule out the possibility of
natural and accidental death.
347
The expression "soon before" is very relevant where Section 113B of the
Evidence Act and Section 304B of the Indian Penal Code are pressed
into service. Prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in the case
presumption operates. Evidence in that regard has to be led by
prosecution. "Soon before" is a relative term and it would depend upon
circumstances of each case and no strait jacket formula can be laid down
as to what would constitute a period of soon before the occurrence. It
would be hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of dowry
death as well as for raising a presumption under Section 113B of the
Evidence Act. The expression "soon before her death" used in the
substantive Section 304B of the Indian Penal Code and Section 113B of
the Evidence Act is present with the idea of proximity test. No definite
period has been indicated and the expression "soon before" is not
defined. Suffice, however, to indicate that the expression "soon before"
would normally imply that the interval should not be much between the
concerned cruelty or harassment and the death in question. There must
be existence of a proximate and live link between the effect of cruelty
based on dowry demand and the concerned death. If alleged incident of
cruelty is remote in time and has become stale enough not to disturb
mental equilibrium of the woman concerned, it would be of no
consequence.
348
In the case of Kans Raj v. State of Punjab1, 2000 (3) PLJR 68 (SC) :
(2000 Cri LJ 2993 : AIR 2000 SC 2324) it has been observed by the
Apex Court at Page 2332 of AIR:-
""Soon before" is a relative term which is required to be considered
under specific circumstances of each case and no strait jacket formula
can be laid down by fixing any time limit. This expression is pregnant
with the Idea of proximity test. The term "soon before" is not
synonymous with the term "immediately before" and is opposite of the
expression "soon after" as used and understood in Section 114,
Illustration (a) of the Evidence Act. These words would imply that the
interval should not be too long between the time of making the statement
and the death. It contemplates the reasonable time which, as earlier
noticed, has to be understood and determined under the peculiar
circumstances of each case. In relation to dowry death, the circumstances
showing the existence of cruelty or harassment to the deceased are not
restricted to a peculiar instance but normally refer to a course of conduct.
Such conduct may be spread over a period of time. If the cruelty or
harassment be demand for dowry is shown to have persisted, it shall be
deemed to be "soon before death" if any other intervening circumstance
Showing the non-existence of such treatment is not brought on record,
before the alleged such treatment and the date of death. It does not,
however, mean that such time can be stretched to any period. Proximate
1 Ref : Supreme Court of India
Kans Raj vs State Of Punjab & Ors on 26 April, 2000 Author: Sethi Bench: G Pattanaik, R Sethi, S V Patil. CASE NO.: Appeal (crl.) 688-90 of 1993 PETITIONER: KANS RAJ Vs. RESPONDENT: STATE OF PUNJAB & ORS. DATE OF JUDGMENT: 26/04/2000 BENCH: G.B. Pattanaik, R.P. Sethi, & Shivaraj V. Patil. JUDGMENT: SETHI,J.
349
and live link between the effect of cruelty based on dowry demand and
the consequential death is required to be proved by the prosecution. The
demand of dowry, cruelty or harassment based upon such demand and
the date of death should not be too remote in time which, under the
circumstances, be treated as having become stale enough."
In the case of Hira Lal v. State 1(Govt. of NCT) Delhi, AIR 2003 SC
2865 : (2003 Cri LJ 3711) it has been observed by the Apex Court which
runs thus :-
"A conjoint reading of Section 113B of the Evidence Act and Section
304B, I.P.C. shows that there must be material to show that soon before
her death the victim was subjected to cruelty or harassment. Prosecution
has to rule out the possibility of a natural or accidental death so as to
bring it within the purview of the 'death occurring otherwise than in
normal circumstances'. The expression 'soon before' is very relevant
where Section 113B of the Evidence Act and Section 304B, I.P.C. are
pressed into service. Prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in that case
presumption operates. Evidence in that regard has to be led by
prosecution. 'Soon before' is a relative term and it would depend upon
circumstances of each case and no strait-jacket formula can be laid down
as to what would constitute a period of soon before the occurrence. It
would be hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of dowry
death as well as for raising a presumption under Section 113B of the
1 Ref : Supreme Court of India
Hira Lal And Ors. vs State (Govt. Of Nct) Delhi on 25 July, 2003 Equivalent citations: AIR 2003 SC 2865, 2003 (2) ALD Cri 184, 2003 CriLJ 3711 Author: A Pasayat Bench: D Raju, A Pasayat JUDGMENT Arijit Pasayat, J.
350
Evidence Act. The expression 'soon before her death' used in the
substantive Section 304B, I.P.C. and Section 113B of the Evidence Act
is present with the idea of proximity test.
No definite period has been indicated and the expression 'soon before' is
not defined. A reference to expression 'soon before' used in Section 114,
Illustration (a) of the Evidence Act is relevant. Suffice, however, to
indicate that the expression 'soon before' would normally imply that the
inter val should not be much between the concerned cruelty or
harassment and the death in question. There must be existence of a
proximate and live link between the effect of cruelty based on dowry
demand and the concerned death. If alleged incident of cruelty is remote
in time and has become stale enough not to disturb mental equilibrium of
the woman concerned, it would be of no consequence."
Similar is the ratio laid down in the case of State of A. P. v. Raj Gopal
Asawa1, 2004 SCC (Cri) 1306 : (2003 Cri LJ 1791 : AIR 2004 SC 1933).
In view of the evidence on the record, it stands established in this case
that the death of the deceased had taken place within seven years of her
marriage and her death is an unnatural death otherwise than under
normal circumstances and there was a persistent demand of utensils, she
calf and cash etc. and lastly made few days prior to her tragic end and
she used to be subjected to cruelty for the fulfilment of said demand and
there is sufficient legal evidence on the record to establish the fact that
1 Ref : Supreme Court of India
The State Of Andhra Pradesh vs Raj Gopal Asawa And Anr on 17 March, 2004 Author: A Pasayat Bench: D Raju, A Pasayat CASE NO.: Appeal (crl.) 384 of 1998 PETITIONER: The State of Andhra Pradesh RESPONDENT Raj Gopal Asawa and Anr. DATE OF JUDGMENT: 17/03/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT:ARIJIT PASAYAT, J.
351
soon before her death, the deceased was subjected to cruelty or
harassment by the appellants for the fulfilment of the said demands and
in this view of the matter, it cannot be said that the interval between the
concerned cruelty or harassment and the death of the deceased was
remote in time or it has become stale enough not to disturb the mental
equilibrium of the deceased in the facts and circumstances of this case
and, therefore, it is imperative for invoking the legal presumption as
envisaged in Section 113B of the Evidence Act. I have no reason to
disbelieve the evidence of P.W. 8 and P.W. 1 read with the evidence of
other witnesses referred to above and there is ring of truth in their
evidence.
Karu Das of village-Bangora is admittedly the Samadhi of P.W. 1. There
is no iota of legal evidence on the record to substantiate the fact that said
Karu Das has any semblance of enmity either against the appellants or
the acquitted co-accused persons and, therefore, in the facts and
circumstances of this case, the false implication of the appellants in this
case at the instance of Karu Das has no leg to stand. Therefore, the
defence version of the false implication of the appellants in this case
does not appear to be natural and probable. And last but not the least, the
non-examination of any person of village-Bangora in respect of the
prosecution case cannot be said to be an infirmity of the prosecution case
in the facts and circumstances of this case in view of the legal evidence
on the record subjecting the deceased with cruelty for the demand of
dowry till her tragic end. It cannot also be said that the Investigating
Officer has not properly conducted the investigation of this case. The
learned Court below has meticulously considered the evidence on the
record in proper perspective and has rightly come to the finding of the
352
guilt of the appellants and I see no illegality in the impugned judgment
requiring interference therein.
There is no merit in this appeal and it fails. The impugned judgment is
hereby affirmed. The bail bonds of the appellants are hereby cancelled
and they are directed to surrender before the Court below to serve out the
sentence, failing which the learned Court below shall take all coercive
steps in accordance with law for apprehending the appellants to serve out
the sentence.
353
In S.T.No.186 Of 1994 vs The State Of Jharkhand 1on 8 July, 2010
D.K.Sinha, J. The instant appeal is directed against the judgment of
conviction and order of sentence dated 22.02.2002 & 25.02.2002 passed
by the 2nd Additional Sessions Judge, F.T.C.-II, Garhwa in Sessions
Trial No. 186 of 1994 by which the appellant was convicted under
Sections 304B/201 of the Indian Penal Code and sentenced to undergo
Rigorous Imprisonment for 7 years and 2 years respectively. He was
further convicted under Section ¾ of the Dowry Prohibition Act and
sentenced to undergo Rigorous Imprisonment for 2 years. However, it
was directed that all the sentences would run concurrently.
The prosecution story in short was that the informant P.W. 1 Satyendra
Narayan Chaubey delivered his statement (Ext.1) at Nagaruntari Police
Station on 06.07.1993 at about 1.30 p.m. narrating, inter alia, that his
daughter Anita Devi (since deceased) was married to the appellant
Chandra Pal Pandey @ Gulab Pandey in the year 1990 according to
Hindu rites. After her marriage, she went to her matrimonial home
situated at village Jasa within the same police station from where she
used to visit her parental home at interval of about 2/3 months.
Whenever she visited her parental home, she complained against her
1 Ref : Jharkhand High Court
In S.T.No.186 Of 1994 vs The State Of Jharkhand on 8 July, 2010 Cr. Appeal (S.J.)No.110 of 2002 Against the judgment of conviction and order of sentence dated 22.02.2002 and 25.02.2002 respectively passed by the 2nd Additional Sessions Judge, Garhwa in S.T.No.186 of 1994. -------------- Chandra Pal Pandey @ Gulab Pandey. ... ... ... ... ...Appellant -Versus- The State of Jharkhand. ... ... ... ... ... ... ...Respondent ------------- For the Appellant: M/s A.K.Kashyap, Sr. Advocate & Lina Shakti, Advocate. For the State: Mr. Tapas Roy, A.P.P. ------------- C.A.V. on 06.04.2010 : Pronounced on 08.07.2010 -------------- PRESENT THE HON'BLE MR. JUSTICE DILIP KUMAR SINHA -------------
354
husband-appellant about his illicit relationship with his brother's wife
(sister-in-law) and that her husband had also been demanding Rs.5,000/-
and a scooter, lest she was threatened that her life would be made
miserable at her matrimonial home. The informant expressed his
inability to fulfill such demand but his such inability did not attract the
sympathy of the husband. He further alleged that on 03.07.1993 his
daughter was assaulted and was poisoned to death. The accused persons
including the appellant cremated the dead body of his daughter without
informing the parents of the deceased and having been learnt about the
occurrence, he lodged information before the police. Pursuant to such
information, Nagaruntari P.S. Case No.74 of 1993 was registered for the
alleged offence under Sections 304B/201 of the Indian Penal Code on
03.05.1994 against the appellant Chandra Pal Pandey @ Gulab Pandey
and the wife of Sudama Pandey. However, after investigation charge-
sheet was submitted against both the accused Chandra Pal Pandey @
Gulab 2
Pandey and Rita Devi for the alleged offence under Sections
498A/302/201 of the Indian Penal Code as also under Section ¾ of the
Dowry Prohibition Act.
Charge against both the accused including the appellant was framed
under Sections 304B/201 of the Indian Penal Code as also under Section
¾ of the Dowry Prohibition Act. The contents were read over and
explained to the accused to which they pleaded not guilty and claimed to
be tried. The defence of the accused persons was of innocence.
Mr. A.K.Kashyap, learned Sr. Counsel initiated the argument by
submitting that the appellant was innocent and no offence much less
offence alleged under Sections 304B/201 of the Indian Penal Code or
under Section ¾ of the Dowry Prohibition Act could be attracted against
355
him in the facts and circumstances of the case. The date, time and the
year of the marriage of the appellant with the deceased could not be
proved by the prosecution witnesses and for want of which, the appellant
should not have been convicted for the alleged charge. The informant
P.W. 1 father of the deceased has simply stated that Anita Devi was
married to appellant Chandra Pal Pandey @ Gulab Pandey some 8 years
ago according to the Hindu rites and rituals. Similarly, the mother of the
deceased P.W. 2 Smt. Sarsawati Devi was also consistent that her
daughter Anita was married some 8 years ago of her deposition.
Evidence of P.W. 1 informant was recorded on 2nd day of August, 1999
whereas the mother P.W. 2 deposed in the month of September, 1999.
None of the prosecution witnesses could be able to place the exact date,
month and year of the marriage so as to shift the burden under Section
113B of the Evidence Act upon the appellant. P.W. 3 Satyendra Pandey
and P.W. 4 Ram Khelawan Choudhary were consistent that she died
much beyond 8 years of her marriage due to illness and the prosecution
failed to discharge its burden to prove the ingredients of Section 304B
I.P.C. so as to shift the onus under Section 113B of the Evidence Act
upon the appellant. In Baljeet Singh & Another Vrs. State of Haryana,
reported in (2004) 3 S.C.C. 122, the Apex Court held, "The defence in
this case has unequivocally
challenged the correctness of the date of marriage, as stated by the
prosecution. It even examined defence witnesses in this regard. Be that
as it may, the question whether the defence has been able to establish its
version of the date of marriage is immaterial because in the first instance
it was for the prosecution to establish this fact which for reasons stated
above, it has failed to do. Both the courts below, thus, have clearly erred
356
in shifting the onus of proving the date of marriage on the defence and
drawing a presumption against it."
Advancing his argument Mr. Kashyap submitted that no demand of
dowry was alleged to be made in the near proximity of the death of Anita
Devi as she was peacefully living at her matrimonial home and
according to P.W. 5 Dina Nath Chaubey, i.e. the brother of the deceased,
his sister (deceased) had conveyed a year prior to her death about the
demand of dowry and the torture that was extended to her by the
accused. The other prosecution witnesses were 3 silent as to the exact
period when Anita Devi had conveyed about the alleged demand of
dowry whether it was in the near proximity of her death or during early
post married period. The law was specific and the burden was heavy
upon the prosecution to establish that cruelty and harassment in
connection with demand for dowry was extended soon before the death
of Anita Devi and the prosecution in the instant case failed to prove it.
Similarly, the prosecution failed to prove that alleged harassment or
torture was extended in connection with demand of dowry in cash or
kind. In Biswajit Halder @ Babu Halder & Ors. Vrs. State of West
Bengal, reported in 2007 SAR (Criminal) 461, the Supreme Court of
India observed,
" If Section 304B IPC is read together with Section 113B of the
Evidence Act, a comprehensive picture emerges that if a married woman
dies in an unnatural circumstances at her matrimonial home within 7
years from her marriage and there are allegations of cruelty or
harassment upon such married woman for or in connection with demand
of dowry by the husband or relatives of the husband, the case would
squarely come under "dowry death" and there shall be a presumption
against the husband and the relatives.
357
In this case we find that there is practically no evidence to show that
there was any cruelty or harassment for or in connection with the
demand of dowry. There is also no finding in that regard. This deficiency
in evidence proves fatal for the prosecution case. Even otherwise mere
evidence of cruelty and harassment is not sufficient to bring in
application of Section 304B IPC. It has to be shown in addition that such
cruelty or harassment was for or in connection with the demand of
dowry. Since the prosecution failed to prove that aspect, the conviction
as recorded cannot be maintained."
Mr. Kashyap, pointed out that P.W. 3 Satyendra Pandey, P.W. 4 Ram
Khelawan Choudhary and P.W. 13 Dinesh Pandey though were
unfavourable to the prosecution but were not declared hostile and these
witnesses were consistent that the relation between the husband-
appellant and the deceased Anita Devi was very cordial and that Anita
Devi died of illness at Referal Hospital, Nagaruntari. Her father P.W. 1
was informed about the death of Anita and pursuant to such information
he participated in the funeral of his daughter. The informant had again
visited that place after about 4/5 days of the death. The witnesses were
further consistent that the accused persons had never ever demanded
dowry from the parents of Anita within their knowledge. P.W. 4 Ram
Khelawan Choudhary was more specific who testified that poison was
not administered to Anita and that she died of illness. He further testified
that Anita was taken to the Referal Hospital, Nagaruntari on a Jeep for
her treatment where she died and a death certificate was issued by the
attending Doctor. The witness was consistent that no dowry was
demanded from the parents of Anita. He further deposed that since the
appellant refused to deposit Rs.50,000/- in the name of his own daughter,
who was only 1-2 years old as a security for her marriage, the instant
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case was brought about by the informant against the appellant and
another after due deliberation and consultation.
Mr. Kashyap, learned Sr. Counsel, pointed out that the appellant 4 has
been highly prejudiced for non-examination of the I.O. The I.O. had
interrogated a number of witnesses including the co-villagers of the
appellant, who were consistent in their statements recorded under
Section 161 Cr.P.C. that the informant was informed about the death of
his daughter Anita and he had participated in the funeral. However,
amongst them P.W. 3 and P.W. 4 had supported. This contention and the
appellant were denied the opportunity to attract his attention.
The defence had produced D.W. 1 Giriwar Pandey, who deposed that his
jeep was used in carrying Anita to Referal Hospital, Nagaruntari for
treatment where she died. Mr. Kashyap, learned Sr. Counsel, pointed out
that prior to her death Anita was treated by Dr. Sita Ram Gupta, who
was produced and examined as D.W. 2 before the Trial Court. D.W. 2
deposed that he was posted at Referal Hospital, Nagaruntari as Medical
Officer-in-Charge from 1989 to 2000. On 03.07.1993 while he was on
duty as Medical Officer-in-Charge, Anita Devi, wife of Chandra Pal
Pandey @ Gulab Pandey aged about 22 years was admitted at the
Referal Hospital at about 11.30 p.m. vide indoor registration page No.
84-85 at Sl. No. 111 which was recorded in the pen of duty nurse and the
page was proved and marked as Ext. A. The Doctor deposed that the
belly of the patient was swellen as she had suffered loose motion and she
died of abdominal destention which resulted into cardio respiratory
failure in the same night at about 1.30 a.m. He issued the death
certificate under his pen and signature on 16.08.1993 which was proved
and marked Ext. B and B/1. He further testified that emergency drugs
and drips were administered to her but she could not be saved and that
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no sign of poisoning appeared on her body. In the cross-examination
P.W. 2 admitted endorsement made in the said register that it contained
176 pages but he could not explain as to why the register had only 169
pages. He further admitted having not carried the bed head ticket of the
patient or the admission slip. No document was available with him while
deposing related to treatment that was given to Anita during her
admission at the Referal Hospital.
Concluding his argument Mr. Kashyap, learned Sr. Counsel, submitted
that the prosecution miserably failed to prove all the required ingredients
for constituting an offence under Section 304B of the Indian Penal Code
against the appellant for the reasons discussed above. On the other hand,
the appellant could be able to prove that Anita Devi died of illness and
she was quickly removed to Referal Hospital, Nagaruntari when her
condition deteriorated due to frequent loose motions where lifesaving
drugs and drips were administered but she could not be saved and died in
the mid night and this fact has been supported by the D.W. 2 who stood
to the test of his cross- examination and there was no reason to discredit
his credibility. The defence has proved indoor register as also the death
certificate issued by D.W. 2 which were not disputed even then the Trial
Court grossly erred by recording the judgment of conviction and order of
sentence which are liable to be set aside.
Heard Mr. Tapas Roy, A.P.P. appearing for the Respondent-State, who
strongly controverted the contention raised on behalf of the appellants
and submitted that the charges, as framed against the appellant, was
proved on the materials available on the record and that no cogent reason
has been assigned for and on behalf of the appellant so as to call for
interference in the judgment of conviction and order of sentence
recorded against him.
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There are certain admitted facts, such as, the appellant Chandra Pal
Pandey @ Gulab Pandey was married to Anita Devi and a daughter was
born to them from their wedlock, who was about 1-2 years at the time of
death of Anita Devi. She was cremated at her matrimonial home village.
The allegation of the prosecution was that Anita Devi was poisoned to
death, yet, without specifying the allegation but the defence case was
that she died of illness and she was cremated after informing her parents
and obtaining the death certificate. Admittedly, the cause of death could
not be established by the prosecution as no opportunity was given to the
prosecution for the postmortem examination of the deceased. The only
material that was available as to the cause of death was the evidence of
D.W. 2 Dr. Sita Ram Gupta, who treated Anita Devi at the Referal
Hospital, Nagaruntari as the indoor patient and according to him the
cause of death was cardio respiratory failure on account of abdominal
distention. He had issued the death certificate. The Investigating Officer
could not be produced and examined in the instant case for the reasons
best known to the prosecution. I find substance in the argument that the
appellant has been denied of the opportunity to cross-examine the I.O.
and attracting his attention towards the statements of the witnesses. The
objective finding of the Investigating Officer also could not be brought
on the record as to the place of occurrence and as to whether he had
recorded the statement of the nurse and doctor of the Referal Hospital,
Nagaruntari to find out the credibility of the defence that Anita was
removed to Referal Hospital in precarious condition for her treatment
where she died during her treatment. The condition precedent for
establishing an offence under Section 304B I.P.C. are as follows:-
(i) That a married woman had died otherwise than under normal
circumstances.
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(ii) Such death was within 7 years of her marriage and (c) The
prosecution established that there was cruelty and harassment in
connection with demand for dowry soon before her death.
Section 113B of the Evidence Act permits a presumption to be drawn
against the accused in regard to the dowry death provided the
prosecution establishes that soon before her death; the woman was
subjected to cruelty or harassment in connection with demand of dowry.
In the instant case, I find substance in the argument advanced on behalf
of the appellant that the prosecution failed to establish the time, date and
year of the marriage of the appellant with Anita. According to the
version of the 6 informant recorded in his Fard Bayan Anita was married
in the year 1999 with the appellant but this fact could not be
substantiated in the substantive evidence of any of the material witnesses
except in the statement of P.W. 1 father and P.W. 2 mother of the
deceased that Anita was married some 8 years ago. However, without
specifying even the month of the marriage and relying upon the decision
of Baljeet Singh & Another Vrs. State of Haryana (supra) referred to
here-in-before, an adverse inference can be drawn for the reason that
P.W. 3 Satyendra Pandey and P.W. 4 Ram Khelawan Choudhary were
consistent that Anita Devi died beyond 8 years of her marriage on
account of illness and the prosecution failed to discharge its burden so as
to shift the onus under Section 311B of the Evidence Act upon the
appellant.
As the informant P.W. 1 Satyendra Narayan Chaubey and the mother of
the deceased P.W. 2 Smt. Sarasawati Devi were consistent that whenever
Anita visited her parental home, she used to complain against her
husband that he had illicit relation with his "Bhabhi" (brother's wife) and
that the appellant had been extending torture as he had been demanding
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Rs.5000/- in cash and a scooter lest she was threatened that her life
would be made miserable, I find that the father of the deceased P.W. 1
admitted that no demand was made at the time of marriage of the
appellant with Anita nor any demand was raised prior to marriage. He
admitted having not given assurance to the accused that he would give
some amount after the marriage.
He admitted having received information regarding torture or harassment
being extended to his daughter after six months of her marriage in
connection with demand of Rs.5,000/- by the appellant and also his illicit
relation with his own sister-in-law Rita Devi. The witness further
admitted that he had not stated at the first instance in his Fard Bayan
about the illicit relation between Rita Devi and the appellant and in that
manner he tried to develop the prosecution case by adding new facts.
P.W. 1 accompanied the police officer to the village of the appellant
after delivering his statement at the police station and the villagers of the
appellant were interrogated to which some of them stated that the dead
body was cremated in the night itself. He further admitted that the
appellant was present in the white apron but the police did not arrest
him.
P.W. 2 Smt. Sarasawati Devi i.e. the mother of the deceased testified that
her daughter Anita expressed satisfaction when she returned back for the
first time from her matrimonial home and did not complain against
anyone but during her next visit she complained against her husband that
he was entangled with his sister-in-law and was demanding a vehicle as
well as Rs. 5,000/- in cash. P.W. 1 & P.W. 2 both were consistent that
they were informed by P.W. 6 Sanjeev Kumar Tiwari about the death of
Anita as also the cause of her death that poison was administered to her
by her in-laws. P.W. 6 Sanjeev Kumar Tiwari was admittedly, not the
363
eye witness who deposed that in the year 1993 at about 9.30 a.m. while
he was there at Nagaruntari bus stand, he overheard that Anita Devi was
dead and that she was the daughter of Satyendra Narayan Chaubey.
When he came across Satyendra Narayan Chaubey i.e. the informant
(P.W.1) he narrated whatever he overheard at the bus stand. He admitted
having not stated as to how Anita Devi died. P.W. 6 Sanjeev Kumar
Tiwari was declared hostile and was cross-examined at length wherein
he stated that he had not communicated Satyendra Narayan Chaubey that
Anita was poisoned to death and that she was cremated in the night
itself. He expressed ignorance that Anita was taken to Hospital for his
treatment by her husband and she was cremated after obtaining her death
certificate. I find, therefore, that this witness did not support the
contention of the informant P.W. 1 that he derived information from this
witness about the cause of death of Anita Devi. There was no other
source of information for the informant Satyendra Narayan Chaubey as
to how his daughter Anita died except his presumption based upon
speculation that she was poisoned to death without any legal evidence to
presume her unnatural death. On the other hand, there was definite case
of the defence that Anita Devi died of illness and in support thereof the
death certificate issued by D.W. 2 Dr. Sita Ram Gupta has been proved.
The defence has further proved the entry made in the indoor patient
register of the Referal Hospital, Nagaruntari and that the prosecution
miserably failed to controvert or discredit the credibility of these
documents by any other evidence oral or documentary. The prosecution
failed to prove as to how Anita Devi died. Even if it is presumed that she
died within 7 years it could not be proved that death of Anita Devi was
caused by any burns or bodily injury or had occurred otherwise than
under normal circumstances.
364
The prosecution further failed to prove that soon before her death Anita
Devi was subjected to cruelty or harassment by the appellant- husband
whereas the brother of the deceased P.W. 5 Deena Nath Chaubey
admitted in his cross-examination that his sister Anita had apprised about
the demand of dowry and the harassment caused to her a year prior to
her death whereas P.W. 1 and P.W. 2 were consistent that such fact was
communicated to her about 2/3 months prior to her death when she
visited her parental home and therefore the prosecution failed to
establish that such demand was made in the near proximity of her death.
The fact that Anita Devi died of illness at the Referal Hospital,
Nagaruntari has been proved by P.W. 2 as has already been discussed
hereinabove. The entire evidence collected on the record of Trial Court
tells a different story that Anita Devi did not die in the manner presented
by the prosecution as the allegation of poisoning could not be
substantiated.
Having regard to the facts and circumstances of the case, I find that the
materials available on the record of the Trial Court were not sufficient to
hold the appellant guilty for the alleged charge, rather a reasonable doubt
is created that the prosecution could not be able to prove all the required
ingredients for constituting an offence under Sections 304B/201 of the
India Penal Code as also of the Dowry Prohibition Act for the reasons
stated above. In the result, the judgment of conviction and order of 8
sentence recorded against the appellant cannot be sustained under law.
Accordingly, the appellant Chandra Pal Pandey @ Gulab Pandey is
acquitted in Sessions Trial No. 186 of 1994 arising out of Nagaruntari
P.S. Case No.74 of 1993 for his conviction under Section 304B/201 of
the Indian Penal Code as also under the Dowry Prohibition Act. The
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appellant is on bail, as such, his bail bond stands discharged and this
appeal is allowed.
366
5.6 SPECIAL CELL TO CHECK CRIME AGAINST
WOMEN:
Seven-member committee formed to hear cases on second and fourth
Fridays of every month.
Cases of atrocities against the fairer sex will be handled with a firmer
hand from now on, thanks to a seven-member women cell that came into
existence a couple of days ago.
The cell — comprising deputy SP (headquarters)
Barnabas Tirkey, officer in charge of women’s police station Sheela
Kisko, principal of Ranchi Women’s College Manju Sinha, psychologist
Sadhana Kumari, two advocates of Jharkhand High Court Pinky Rai and
Sadhana Kujur, and journalist Bharti Ojha — has been formed at the
directive of National Women Commission.
The commission had sent the directive to all states on December 7, 2010.
The members, who will meet on the second and fourth Fridays of every
month, will deal with offences under sections 304(b), 304, 305, 306, 354
and 498 (A) of the IPC. Those seeking help from the cell will have to
submit their applications either at the women’s police station near
Saheed Chowk or at Trikey’s office at room No. 313 of the district
collectorate’s new building on any day.
Tirkey said a notification had already been published in vernacular
dailies on Saturday.
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“I have informed the members about our first meeting, scheduled on
Friday,” he said.
On the importance of the cell, Tirkey said it would help prevent misuse
of law and bring the real culprits to book. “Usually, it has been noticed
that when an FIR is lodged in a dowry case, all members of the
bridegroom’s family are made accused. This is misuse of the dowry act
and gives leeway to a real culprit to escape. Same thing happens in
several other cases of crime against women. The women’s cell will play
a crucial role in nailing down the real culprits and save the innocent from
harassment,” he said. Supporting Tirkey, Kisko said members of the cell
would first try to sort out the differences by summoning both parties and
counselling them. If the disputes or grievances still persist, they will
recommend registration of proper FIRs for legal action. “In the past three
years, several cases came before the women’s police station, but hardly
50 of them needed FIRs to be registered. Many times, the disputes were
resolved after proper counselling by reputable members of the society,”
she said.
However, no separate grant has been allotted for functioning of the cell.
“Funds are not required to run the cell as all the members have agreed to
render their service voluntarily,” said senior superintendent of police
Praveen Kumar.
Asked whether the number of members will be increased in the future,
he said that could happen if any one, especially a woman of high repute,
was ready to join the cell on their own.
According to data available with the criminal investigation department,
127 of 321 cases registered by the women’s helpline from April 2010 to
March 2011 were related to domestic violence. The total number of
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bigamy cases registered so far this year is 19 followed by 15 cases of
sexual abuse. Eight trafficking cases, six dowry-related cases and three
related to witchcraft have also been registered. Figures available with the
women’s police station say 22 cases of atrocities against women were
registered last year while this year, 14 cases have been lodged till now.
369
6
Conclusion
370
The law is an essential tool for advancing women’s and girls’ rights and
equality. A robust and effective legal system based on the rule of law is
central to assisting women to become equal partners in decision-making
and development. Over the last couple of decades, the international
community has invested substantially in programs aimed at
strengthening the rule of law in developing countries. Despite this
investment, the rule of law continues to mean very little for the vast
majority of women and girls.
Models, Strategies and Best Practices on Women’s Empowerment
explores some of the challenges and solutions for women’s access to
justice in diverse legal systems. It shows that women face structural and
cultural barriers to accessing justice – insufficient knowledge of rights
and remedies, illiteracy or poor literacy, and lack of resources or time to
participate in justice processes. This is all the more so as women usually
have intensive family responsibilities. Even where women can access the
formal justice sector, the outcomes of the process often fall far short of
those envisaged by international standards, particularly with regard to
property rights, inheritance, divorce and child custody, and spousal
abuse.
Focusing on legal empowerment as a way to improve both access to
justice and the quality of justice women receive, the study presents
strategies and best practices in both formal and informal justice systems.
Legal empowerment approaches share one core concept: using the law to
enable disadvantaged groups to access justice and realize basic rights.
They include legal education; legal aid services; support for non-
discriminatory dispute resolution fora to complement or supplement
informal systems; training of paralegals; and rights awareness.
371
In considering whether such approaches can improve the quality of
justice women receive, Accessing Justice brings together a number of
IDLO-sponsored case studies in Afghanistan, India, Namibia, Rwanda,
Mozambique, Tanzania, Morocco, Papua New Guinea and the Solomon
Islands. These highlight a variety of lessons for development
practitioners, both in terms of engagement with the informal legal sector
and, more generally, for the use of legal empowerment and top-down /
bottom-up strategies. In an appropriate context, carefully designed legal
empowerment strategies may constitute a valuable contribution to
improving women’s access to justice. The case studies also confirm that
programs designed to address women’s rights in informal justice systems
remain a highly sensitive issue. These programs require thorough
knowledge of the social, economic, and political context in which the
informal system is operating.
Moreover, legal empowerment approaches in both the formal and
informal justice sectors are likely to be more sustainable when
i. They are locally owned; and
ii. When they are coupled with top-down reforms to ensure domestic
laws and regulations are in line with international legal standards
on gender equality.
Although women may be victims of any of the general crimes such as
‘murder’, ‘robbery’, ‘cheating’, etc, only the crimes which are directed
specifically against women are characterised as ‘crimes against women’.
Various new legislations have been brought and amendments have been
made in existing laws with a view to handle these crimes effectively.
These are broadly classified under two categories.
The crimes under the Indian Penal Code (IPC)
372
i. Rape (Sec. 376 IPC)
ii. Kidnapping & abduction for specified purposes (Sec. 363 -
373 IPC)
iii. Homicide for dowry, dowry deaths or their attempts
(Sec.302/304-B IPC)
iv. Torture - both mental and physical (Sec. 498-A IPC)
v. Assault on women with intent to outrage her modesty (Sec.
354IPC)
vi. Insult to the modesty of women (Sec. 509 IPC)
vii. Importation of girl from foreign country (upto 21 years of
age) (Sec. 366-B IPC)
The crimes under the special & local laws (SLL)
Although all laws are not gender specific, the provisions of law
affecting women significantly have been reviewed periodically
and amendments carried out to keep pace with the emerging
requirements. The gender specific laws for which crime statistics
are recorded throughout the country are -
(i) Immoral Traffic (Prevention) Act, 1956
(ii) Dowry Prohibition Act, 1961
(iii) Indecent Representation of Women (Prohibition) Act,
1986
(iv) Commission of Sati Prevention Act, 1987
This year the crime rate for crimes committed against women has been
calculated using only female population based on RGI`s Mid-year
projected female population.
373
Therefore ‘crime rate’ of year 20121 is not comparable to previous years’
‘crime rate’. Reported incidents of crime (Incidence- 2,44,270)
A total of 2,44,270 incidents of crime against women (both under IPC
and SLL) were reported in the country during the year 2012 as compared
to 2,28,650 in the year 2011 recording an increase of 6.4% during the
year 2012. These crimes have continuously increased during 2008 - 2012
with 1,95,856 cases in the year 2008, 2,03,804 cases in 2009 and
2,13,585 cases in 2010 and 2,28,650 cases in 2011 and 2,44,270 cases in
the year 2012. West Bengal with 7.5% share of country’s female
population has accounted for nearly 12.7% of total crime against women
by reporting 30,942 cases during the year 2012. Andhra Pradesh,
accounting for nearly 7.3% of the country’s female population, has
accounted for 11.5% of total crimes against women in the country by
reporting 28,171 cases in the year 2012.
Crime rate2
The rate of crime committed against women was 41.7 in 2012.
Assam has reported the highest rate of crime against women at 89.5
during the year 2012 as compared to 41.7 crime rate at the national level.
Trend analysis
The crime head-wise details of reported crimes during the year 2008 to
year 2012 along with percentage variation are presented in Table-6A
1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/
National Crime Records Bureau. Located at New Delhi as the attached office of Ministry of Home Affairs (MHA), Government of India, NCRB is mandated to empower the Indian Police with Information Technology for modernization of Indian Police. NCRB has the proud distinction of installing 762 server - based computer systems at every District Crime Records Bureau and State Crime Records Bureau, across the country, 'Crime Criminal Information system (CCIS)’ project, with a view to maintain a National - level Database of Crimes, Criminals and Property related to crime. 2 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/
374
The crime against women during the year 2012 has increased by 6.8%
over the year 2011 and by 24.7% over the year 2008. The IPC
component of crimes against women has accounted for 95.2% of total
crimes and the rest 4.8% were SLL crimes against women.
The proportion of IPC crimes committed against women towards total
IPC crimes has increased during last 5 years from 8.9% in the year 2008
to 10.2% during the year 2012.
Crime head-wise analysis1
(IPC)
Rape (Sec. 376 IPC)
(Incidence- 24,923 Rate- 4.3)
A decreasing trend in rape cases has been observed during 2008 – 2009.
Thereafter an increasing trend in the incidence of rape has been observed
during the periods 2009 - 2012. These cases have reported a decline of
0.3% in the year 2009 over 2008, an increase of 3.6% in 2010 over 2009
and an increase of 9.2% in the year 2011 over the year 2010 and further
increase of 3.0% in the year 2012 over 2011. Madhya Pradesh has
reported highest number of rape cases (3,425) accounting for 13.7% of
total such cases reported in the country. Mizoram has reported the
highest crime rate of 20.8 as compared to national average of 4.3. Rape
cases have been further categorised as incest rape and other rape cases.
Incest rape
(Incidence- 392)
1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/
375
Incest rape cases have increased by 46.8% from 267 cases in 2011 to 392
cases in 2012 as compared to 3.0% increase in overall rape cases.
Maharashtra (77 cases) has accounted for the highest (19.6%) of the total
such cases reported in the country.
Rape victims
There were 24,915 victims of rape out of 24,923 reported rape cases in
the country during the year 2012. 12.5% (3,125) of the total victims of
rape were girls under 14 years of age, while 23.9% (5,957 victims) were
teenaged girls (14-18 years). 50.2% (12,511 victims) were women in the
age-group 18-30 years. However, 12.8% (3,187 victims) victims were in
the age-group of 30-50 years while 0.05% (135 victims) was over 50
years of age. The details are given in Table-5.3. Offenders were known
to the victims in as many as in 24,470 (98.2%) cases. Parents / close
family members were involved in 1.6% (393 out of 24,470 cases) of
these cases, neighbours were involved in 34.7% cases (8,484 out of
24,470 cases) and relatives were involved in 6.5% (1,585 out of 24,470
cases) cases. The State /UT / City-wise details are presented in Table-6.3
Kidnapping & abduction1
(Sec. 363-373 IPC)
(Incidence- 38,262 Rate- 6.5)
These cases have reported an increase of 7.6% during the year as
compared to previous year (35,565 cases). Uttar Pradesh with 7,910
cases has accounted for 22.2% of the total cases at the national level.
Delhi UT has reported the highest crime rate at 25.3 as compared to the
national average of
1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/
376
Dowry Deaths1
(Sec. 302, 304B IPC)
(Incidence- 8,233 Rate- 1.4)
The cases of dowry deaths have decreased by 4.5% during the year 2012
over the previous year (8,618 cases). 27.3% of the total such cases
reported in the country were reported from Uttar Pradesh (2,244 cases)
alone followed by Bihar (1,275 cases) (15.5%). The highest rate of crime
(2.7) was reported from Bihar as compared to the national average of
1.4. Torture (cruelty by husband or his relatives) (Sec. 498-A IPC)
(Incidence-1,06,527 Rate-18.2) ‘Torture’ cases in the country have
increased by 7.5% over the previous year (99,135 cases). 18.7% of these
were reported from West Bengal (19,865 cases) followed by Andhra
Pradesh 12.6% (13,389 cases) and Rajasthan 12.5% (13,312).
The highest crime rate of 47.8 was reported from Tripura as compared to
the national rate at 18.2. Assault on women with intent to outrage her
modesty (Sec. 354 IPC) (Incidence-45,351 Rate- 7.7) Incidents of
Assault on Women with Intent to outrage her Modesty in the country
have increased by 5.5% over the previous year (42,968 cases). Madhya
Pradesh has reported the highest incidence (6,655) amounting to 14.7%
of total such incidences. Kerala has reported the highest crime rate (20.9)
as compared to the National average of 7.7. Insult to the modesty of
women (Sec. 509 IPC) (Incidence- 9,173 Rate- 1.6)
The number of such cases has increased by 7% during the year over the
previous year (8,570 cases). Andhra Pradesh has reported 40.5% (3,714
cases) followed by Maharashtra 14.1% (1,294 cases) of total incidences 1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/
377
during the year 2012. Andhra Pradesh has reported the highest crime rate
(8.7) as compared to the national average of 1.6. Importation of girl from
foreign country (Sec. 366-B IPC) (Incidence- 59) A decrease of 26.2%
has been observed in crime head as 59 cases were reported during the
year 2012 as compared to 80 cases in the previous year (2011).
Karnataka (32 cases) and West Bengal (12 cases) have together
contributed 93.2% of total such cases at the national level.
Crime-head wise analysis1
(Special laws)
Immoral Traffic (Prevention)
Act, 1956
(Incidence-2,563 Rate- 0.4)
Cases under this Act have registered an increase of 5.2% during the year
as compared to the previous year (2,435). The highest incidences of
19.5% (500 cases) of such cases were reported Tamil Nadu followed by
Andhra Pradesh 18.4% (472 cases).Goa has reported the highest crime
rate of 4.6 as compared to the National average of 0.2. Commission of
Sati Prevention Act,1987 (Incidence-Nil) No such case was registered
under this Crime Head in across the country during the year 2012.
Indecent Representation of
Women (Prohibition) Act, 1986
(Incidence- 141 Rate-Negligible)
A decrease of 68.9% was noticed in this crime head during the year 2012
as compared to the previous year (453 cases). Rajasthan with 62 cases
1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/
378
has accounted for 44% of total such cases at the national level which has
also reported the highest crime rate of 0.2.
Dowry Prohibition Act1
(Incidence-9,038 Rate-1.5)
The cases under this Act have increased by 36.5% during the year 2012
as compared to the previous year (6,619 cases). 27.8% of cases were
reported from Andhra Pradesh (2,511) followed by Odisha (1,487 cases)
accounting for 16.5% of total cases at the national level. The highest
crime rate of 7.3 was reported from Odisha as compared to 1.5 at the
national level. Crime against women in cities (All-India- 2,44,270 Cities-
36,622) 53 cities having population over 10 lakh (See Chapter-2) have
been identified as mega cities as per population census 2011. A total of
36,622 cases of crimes against women were reported from these 53 cities
during the year 2012 as compared to 33,789 cases in the year 2011. The
rate of crime in cities at 47.8 was comparatively higher as compared to
the national rate of 41.7.
Among 53 cities, Delhi (5,194 cases) has accounted for 14.2% of total
such crimes followed by Bengaluru (6.2%) (2,263 cases), Kolkata
(5.7%) (2,073 cases), Hyderabad (5.2%) (1,899 cases) and Vijayawada
(5.2%) (1,898 cases). The crime rate was significantly higher in
Vijayawada, Kota, Kollam, Jaipur and Indore at 256.4, 130.2, 106.3,
98.1 and 88.8 respectively as compared to average (47.8) of mega cities.
Delhi city has accounted for 19.3% of rape cases, 23.1% of kidnapping
& abduction cases, 14.6% of dowry deaths and 10.9% of assault on
women with intent to outrage her modesty cases among 53 cities. Delhi
has reported 11.1% (1,870 cases) of incidences of cruelty by husband or
1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/
379
his relatives. Vijayawada has reported 16.6% incidences of insult to the
modesty of women. Only 9 cases of ‘importation of girl from foreign
country’ at all India level have been reported from Kolkata. It is
worthwhile to mention that Chennai, Bengaluru, Hyderabad and Mumbai
have booked more cases under special & local laws among the mega
cities. 16.5% (193 out of 1,170) of cases under Immoral Traffic
(Prevention) Act and 11.0% (639 out of 5,836) of cases under assault on
women with intent to outrage her modesty was reported in Delhi alone.
Similarly, 50% (10 out of 20 cases) and 40% (8 out of 20 cases) of cases
of Indecent Representation of Women Act were reported in Jaipur and
Jodhpur respectively. 63.2% (633 out of 1,001) of cases under Dowry
Prohibition Act during the year 2012 were registered in Bengaluru city
alone.
LESSONS LEARNED
Legal empowerment strategies can be successfully used to improve
women’s access to justice in both formal and informal systems One of
the key problems for the achievement of gender equality lies in the
inability of many women to use existing legal standards to realize their
rights. Legal empowerment strategies, through legal literacy programs,
legal aid or alternative dispute resolution mechanisms, can help create a
‘culture of justice’ among women and ensure that principles of equality
and non-discrimination are not only enshrined in law, but also translated
into practice.
Evidence suggests that legal empowerment approaches to enhance
women’s access to justice may work well in a variety of legal settings,
380
including informal ones. For example, the fluidity and dynamism of
informal justice systems can open up opportunities for modernization
and progressive reforms around women’s rights. Where women are
provided with a forum to discuss and (re)interpret cultural or legal
rules, the system may be open to positive transformation, particularly
when it is both women and men who are advocating for a
reinterpretation of such rules. Legal empowerment approaches may
also work in informal justice settings because the customary authority
of male leaders is generally connected to their ability to reflect the
values and interests of the community. Thus, while customary male
leaders often benefit from the status quo and resist positive change for
women, they may also have incentives to respond to community
expectations. In the same way, bottom-up legal empowerment
approaches targeting women can pressure community leaders to
reform discriminatory practices. When women are informed of their
rights and encouraged to discuss or challenge informal laws and
practices, they can put pressure on customary justice systems to better
protect basic rights.4 In turn, this can reduce power imbalances and
elite capture and improve the transparency of local government
decision-making.
Legal empowerment strategies are most effective where implemented
in conjunction with ‘top-down’ measures and through local partners
while the state legal system alone cannot cure gender injustice; it is a key
avenue for the achievement of gender equality. Law has the ability to
deter discriminatory practices against women with the threat of
punishment, and the capacity to influence and guide the behavioural
norms and social interaction between men and women. A well-
functioning and non-discriminatory legal system can also serve as an
381
accountability mechanism to ensure the compliance of informal practices
with basic human rights standards and to prevent power abuses, while at
the same time enhancing the predictability of informal decisions.
Grassroots efforts to empower women are therefore more effective when
coupled with ‘top-down’ reforms aimed to ensure that justice systems,
whether formal or informal, are in line with international laws and
standards pertaining to gender equality. The presence of supportive
constitutions and national laws plays a critical role in ensuring the
effectiveness of legal empowerment interventions. Moreover, legal
empowerment projects are most likely to have an impact on women’s
access to justice and gender inequality if they creatively draw on local
knowledge and practices. This contributes to the legitimacy of the
reforms and ensures their eventual sustainability.
Barriers to women’s access to justice are multidimensional and go
beyond legal aspects Political, social, cultural, economic and
psychological barriers that obstruct women’s access to justice and legal
empowerment are found at every stage of the ‘justice chain’. The case
studies clearly indicate that the disempowerment of women is not simply
due to lack of knowledge of laws and legal procedures, but rather due to
a host of economic, social and cultural practices that perpetuate
inequality in the community and the society at large. Programs which
encourage women to object to discriminatory practices are unlikely to
provide meaningful relief unless the broader economic, social and
security context is addressed. Research indicates that legal empowerment
projects targeting women work best when combined with activities
addressing a rule of law culture, women’s economic autonomy and
discriminatory attitudes within the community. To this extent, while
legal empowerment is not the panacea to the wider problems of
382
inequality, discrimination and the poverty of women, it can make a
positive contribution, which, if properly integrated with other initiatives,
will place women on a better trajectory towards effectively addressing
discriminatory practices.
Legal empowerment programs designed to address women’s access to
justice need to be context-specific Women’s experiences in the justice
system are diverse. There are no readymade formulas as to how women
can be empowered to assert their rights and act as agents of sustainable
social change. Rather, a number of questions should be asked: what is
the best entry point for women to be empowered to use the legal system
to advance their rights? What is the forum in which women’s core
concerns are dealt with? Is that system open to reform or would legal
empowerment have limited results in that context, due to deeply
entrenched gender stereotypes, vested interests in the status quo and
power inequities? Each intervention should carefully examine where the
opportunities are in a given context, whether that be in the formal or
informal justice system and whether that be in targeting procedural or
substantive aspects. Ultimately, projects designed to be pragmatic,
realistic and reflective of the local context demonstrate a higher rate of
success.
SUGGESTIONS:
Enhancement of women’s self-esteem, stopping their progress
from getting de-railed and getting their active participation in
constructive work, the attention of social and political authorities
is required to be focused on social mobilization and
transformation of outdated social values.
383
Creating gender sensitization is necessary. People have to
overcome negative assumptions, prejudices and religious or social
practices, which had led to unproductive ethos. For it, a new way
of thinking, a new philosophy, a new kind of attitude is required
which regard all people, irrespective of gender, equal.
A woman herself should make efforts for her empowerment and
well-being – be it physical, emotional or spiritual and become an
‘enlightened woman’. She has to make herself capable of thinking
on her own about her well being, taking her own decisions
rationally without fear or favour and without being swayed away
by whims/fancies or emotions. She should be bold enough to
counter the reactionary customs and social inhibitions, which have
kept the Indian women in bondage and misery.
First and foremost task of the government is to make adequate
arrangements for the education of all women. It would bring
enlightenment and inculcate in them proper knowledge, attitude,
work-habits and skills, scientific temper and confidence and
courage to fight against evil social practices. Sound education
would make them capable to understand their rights and duties
enable them to take their decisions independently and to set their
priorities rightly for fulfilling their dreams at various stages of
their life. It necessitates providing a good and congenial
atmosphere for development of their personalities at home.
Achievement of freedom economic or otherwise should not lead
them to confusion or indiscipline. Freedom/liberty should be
utilized towards realisation of her own intellectual emotional,
motivational and physical potential as well as to fulfil familial,
social and national obligations properly. One must be free – not
384
only to fulfil her own interests or needs or to live a life of luxury
and extravagance, but also to care for others.
Create supportive infrastructure for women to enhance their
confidence and ensure their security. Knowledge about the legal
infrastructure of the nation, especially the special legal measures
to protect them from atrocities and exploitation. Social and
political authorities are supposed to provide a good and congenial
atmosphere for development of women’s personalities and ccreate
supportive infrastructure for working women to enhance their
confidence and ensure their security.
Many laws have been enacted to eradicate social evils often
remain ineffective on account of the lack of political will, general
awareness in public, judicial insensitivity and bureaucratic apathy.
The law enforcement agency is neither very strong nor effective to
fight against the vested interests of powerful lobbies. Despite all
these legislations, efforts to uplift the status of woman and hue and
cry made by various organisations, many social evils harassing
woman still exist till today.
Legislations in favour of women should not remain just on papers.
Its honest and sincere implementation in real life is urgently
required as well. In most cases, women themselves do not raise
their voice against injustice or claim their legal rights out of love
and affection for their own people or to save honor of their
families. Net result is that they are deprived of their rightful place
within their families, society or nation.
Inspire women to join mainstream. Economic independence is
necessary to make women secure and restore their lost confidence.
It necessitates providing enough job-opportunities at appropriate
juncture of their lives and provide for them suitable atmosphere to
385
work. There should be an enabling provision for women to secure
jobs without any age bar. It has been observed that by the time the
women (Housewives) are free from their motherhood liabilities,
all avenues to get suitable jobs according to their aptitude and
qualifications are closed to them. They do not find any
opportunity to work due to long gap incurred in their
academic/professional career while performing their social and
familial responsibilities.
Benefit of Open University and distance education programs could
be taken for preparing women-folk to join mainstream.
Arrangements of short term refresher training or coaching
programmes can solve the problem of filling the gap incurring
between their graduation from educational institutions and start of
a regular career. It would enable women to get employed again to
get employed again. The gap incurred in their career would not
block their way to enter into the mainstream.
Some women cannot afford to be chained to the daily nine to five
routine. Time constraints, family obligations or lack of the
required qualifications could be the possible resons. For women,
terms and conditions of employment should be of the nature,
which suits to their needs at different points of life. There should
be provision of work from home, part-time jobs or home based
income generating jobs. It could be created in areas like work of
house-keeping in the offices, designing, translation, research, food
and nutrition and interior decoration, journalism or photo
journalism, nursery teaching, textile designing, travel business etc.
It would not pose any additional burden on national government,
as emoluments would be related to work done.
386
Special attention and measures/programs need to be taken for
utilizing the intellectual, emotional, motivational and physical
potential of women-folk. It could provide a substantial work force
with a high intellectual, emotional, motivational and physical
potential. The need paying special attention in case of women is
not required, because they are intellectually or otherwise
handicapped, for which lowering the standard would be necessary,
but because they are past the age which normally entitles one to
join the national reconstruction efforts through gainful
employment.
Government should be a little considerate for non-career women
having small children. Investing in improved opportunities for
women could contribute productively in the overall development
of the nation. Proper and careful nurturing of women folk would
not only help the women-folk, but benefit the society and the
nation as well. The government could be given economic
assistance in the form of social security to woman having one or
two small children (up to the age of 10-12). Or It could give them
some incentives such a rebate in taxes. Or it could ensure
opportunities to provide work at appropriate juncture of their lives,
i.e. when their children start going to schools and they are free to
some extent from the familial responsibilities.
The task of involving women in nation building activities needs national
determination and political will. They, in fact, represent a vast reservoir
of human resource, which still remains untapped and unutilized to a
great extent.
387
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vii
APPENDIX C
Map
6.1
viii
Map
6.2
ix
APPENDIX A
x
xi
APPENDIX
B
xii
xiii