Gender Equality and Positive Discrimination with regards to Article 15(3) of Indian Constitution

Blog By-

Lipika Gupta

Abstract

Under this article, the state has been empowered to make special provisions for Women and Children.  Under this article, the court had upheld the validity of legislation or executive orders discriminating in favour of women. This Article states that, even though the state wouldn’t discriminate anyone on the basis mentioned in Art 15(1), yet they have the whole authority to make special provisions in order to protect the interests of Women and Children. Women should be provided equality in every field whether its education or about equal salary. In the below article you will get to know about the significance and necessity of gender equality and positive discrimination under Article 15(3). There are many issues from which women and children deal in their day to day life so I have discussed my views and a data analysis which proves that strict laws should be implemented to protect women and children.

Introduction:

Under Article 15(3), the State is provided with the power to make special provision for women and children. In pre-independence India, especially with women and children, it was often seen that they were seen and deemed inferior to men. It can be said that these provisions are meant for the upliftment of women and children of the society which have been downtrodden/poor state for many years. Article 15 is all about equality and eradicating discrimination. This Article not only grants gender equality but also empowers the State to adopt measures of positive discrimination in favour of women and children for neutralizing the cumulative socio economic, education and political disadvantages faced by them. There are also numerous legislations that have specific provisions to address women and their interests thereby providing a strong legislative basis for gender justice in India. Some of these are ESI Act[1], MB Act[2], Women constitute the majority of the world’s population, but there is still no society in which women enjoy full equality with men. They often face specific discrimination, even in countries which grant legal equality to both sexes; women are often economically disadvantaged and suffer discrimination. The ‘special provisions’ which the State may make to improve women’s participation in all activities under the supervision and control of the state, can be in the form of affirmative action or reservation. The State can reserve seats for ST, SC, OBC3 in educational institutions, grant fee concessions or arrange special coaching classes. The States started the provision of reservations for ST, SC & OBC because in pre- independence and also after the independence these sections of the society were not provided with many facilities like education, proper nutrition, etc. To uplift them government decided to reserve seats under Article 15 so that they can also get equal opportunities like others.

  • Case law: In Case “Yusuf Abdul Aziz v/s State of Bombay”[3]the judgement was passed by the court which stated under Sec 497 of IPC only men can commit the crime of adultery and be punished for the same. The court had also stated that women shall not be punished as an abettor, as this would offend Art 14 and 15(3). The court had stated that since art 15(3) is a special provision made for women by the state therefore the woman was saved under this article. However, recently in “Joseph Shine v/s Union of India”[4]. Adultery was decriminalized since it was violating Art 14, 15 and 21 of Indian Constitution. Hence it is no longer treated as a crime, rather it can only act as a reason for divorce.
  • Why gender equality is important?

Gender equality is when people of all genders have equal rights, responsibilities and opportunities. Everyone is affected by gender inequality – women, men, trans and gender diverse people, children and families. It impacts people of all ages and backgrounds. Gender equality prevents violence against women and girls. It’s essential for economic prosperity. Societies that value women and men as equal are safer and healthier. We can say that gender equality is an important aspect of Article 15(3). The main issues that come in the way of gender equality are listed below:

  1. Gender bias in education- There are many ways that girls’ educationbenefits economies and societies. Yet an estimated 130 million girls will never set foot inside a classroom. Child marriage, lack of adequate sanitation (especially for girls who are of menstruating age), and gendered violence in the classroom are some of the obstacles specific to girls when it comes to this very basic human right. To prevent this government came up with many schemes like ‘Beti Bachao, Beti Padhao’[5] which encouraged many women for getting a better education.
  2. Unequal pay- The another problem faced by women’s in workplace is unequal pay which means that women’s get lesser amount of salary as compared to men just because of gender inequality which is not at all fair so government made principle of ‘Equal Pay for Equal Work’ which was first considered in Kishori Mohanlal Bakshi v. Union of India[6]in the year 1962.
  3. Sexual harassment- An obstacle that many women face in the workforce is sexual harassment. While the #MeToo[7] movement has helped to shed light on the issue, little had been known, until now, about how many women are subjected to this type of mistreatment. The matter was first analysed in case ofVishakha and Ors. v. State of Rajasthan and Ors[8] which led to the implementation of the sexual harassment of women at workplace[9].
  • Is positive discrimination ethical?

Positive discrimination is the policy of granting special privileges to the downtrodden and the underprivileged sections of the society, most commonly women. These are affirmative action programs, most visible in both the United States and India, where there has been a history of racial and caste discrimination. The practice is most prominent in India, where it has been enshrined in the constitution and institutionalized. The Constitution of Independent India which largely followed the pattern of the Government of India Act, 1935, made provisions for positive discrimination in favour of Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted about 23% of the divided India’s population as they were oppressed section of the society so the government of India decided to uplift them by making some special laws which comes under Article 15(3) and considered as Positive Discrimination.[10]

Statical analysis: According to the survey of 20 people of different age group with a set of questionnaires I found that 85% people believe that Article 15 (3) help in the upliftment of women and children as well as provides gender equality whereas 15% people couldn’t decide whether this Article helps or not as many women were not aware of their rights made for their betterment in the society. Another question comes whether this Article provides positive or negative discrimination and here 80% people think its positive discrimination and 10% people think its negative discrimination as they say that why laws should be made only for women and children as compared to men but its high time to understand that women and children are still oppressed in some parts of the society which needs to be stop now where 70% people says that its correct to make special laws for women & children and on the other hand 10% people say its incorrect to provide special privileges to them where 20% people says may be its incorrect just because they don’t know the importance of making such laws. 55% people believe that many provisions came under this article made it easier for women to work freely and independently whereas 45% people believes that it still need some improvements so that women can work in a healthy environment and contribute to the country economically too in a much better way. A very important question came to my mind that why discrimination like gender inequality still takes place at an alarming rate and the responses are like 25% people said that it still happens because of the improper implementation of laws, 45% people said that it happen because of strict laws which I personally feel that it’s a big reason for this happenings , 20% of them said that women were not aware of such laws through which they can protect themselves and 10% people can’t answer it as they don’t know the main issue that women go through in not so developed areas. All of them think that in India still in some areas the State lacks in providing equality, freedom and indiscrimination among men, women & children because of improper implementation of strict laws and rules. 90% of them agreed on that this Article promote and provide equal opportunities to all but they also think that the article also need more attention and improvement whereas 10% of them didn’t agreed on it. These people also shared their views which were listed below:

  • Indian already have many useful laws but are neglected by the people of India they should be given bit more attention and many more laws are needed to empower women and children, especially in rural areas. I personally think that’s the place where most of the discrimination happens and women’s don’t get equal respect as men. Some laws should be made to open up the narrow mind of society.
  • Article 15 must be known to everyone and it must follow certain strict rules and regulations to protect the rights and freedom of people and person’s equality must not be denied.
  • Despite of implementation of law, the states still discriminates people and regard them as SC/ST, OBC, general and others. The centre provides reservation to SC/ST which discriminates towards generals. As they have been uplifted now so the reservation system should get a break and equality should be provided to everyone. Women’s safety can be enhanced by improving hygiene issues and sex education among the teenagers.
  • Strict laws should be applicable for women and children security and strict actions should be taken those who try to break it.

Conclusion-

Article 15 has always hurdled its way out to reach to the one really in need. The condition of the downtrodden has highly improved since its inception in 1949. It provides a base to each and everything that legislature needs to formulate provisions to promote harmony in the society. There is an extreme decline in the number of cases of atrocities against the underprivileged classes. Article 15 truly is the guardian of downtrodden and a shield against discrimination, it has helped the Indian society to stand tall and proud despite such a huge diversity and all kinds of sexism, racism and rigid caste system and will continue to contribute to India’s unity and equality, forever. It helped in the improvisation of women and children but still need some strict laws and amendments to make India free from discrimination and inequality in rural areas.

[1] The Employees State Insurance Act,1948

[2] The Maternity Benefit Act,1961

3 Schedule Tribes, Schedule Caste, Other Backward Classes

[3] Yusuf Abdul Aziz v. State of Bombay, 1954 ,A.I.R 321, SCR 930

[4] Joseph Shine v. Union of India, 2018 SCC Online, SC 1676

[5] https://www.news18.com/news/partner-content/government-schemes-and-policies-for-girl-child-empowerment-2275341.html

[6]  Kishori Lal Mohan Lal Bakshi v. Union of India, A.I.R. 1962 S.C. 1139  http://www.companyliquidator.gov.in/12/jud_sc/OFFICIAL%20LIQUIDATOR%20VS.%20DAYANAND.pdf

[7] https://en.wikipedia.org/wiki/Me_Too_movement

[8] Vishakha and ors. v. State of Rajasthan and ors., A.I.R 1997 SC 3011.  

[9] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ,  https://en.wikipedia.org

[10] http://www.legalservicesindia.com/

Scope of Article 21

 

Blog By-

Priyamahobia

ITM University, Raipur

 

Abstract

 The Indian judiciary has time and time again interpreted article 21 of the Indian constitution in new and innovative ways in order to bring relief to the oppressed. However the Supreme Court has started to declare rights which are difficult to enforce and may be only be law for namesake. The Court should take into consideration the enforceability of a right or else it will just remain an empty promise. The fundamental right to life and personal liberty has become a favourite provision for the judiciary to experiment with, to redress a variety of injustices and social wrongs. This has led to some rather impractical rulings by the Supreme Court. Granting a right which is never enforced is akin to giving an empty promise. Progress must be tempered with reality.

 

Keywords: Due process, liberty, judicial activism, enforceability, interpretation

  • Introduction

 

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme

importance in a democratic society.” Iyer, J., has characterised Article 21 as “the procedural

1

magna carta protective of life and liberty . This right has been held to be the heart of the

Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws. Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by

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private individuals is not within the preview of Article 21 . This right is guaranteed by the

constitution. This right is provided under article 21 which reads as follows:-Article 21.

Protection of Life and Personal Liberty: No person shall be deprived of his life or personal

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liberty except according to procedure established by law . The right to life and personal

liberty is guaranteed by the Indian Constitution in Part III under the category of Right to Freedom (Articles 19-22). The right to life and personal liberty in accordance with the procedure established by law is guarantee by Article 21 of the Indian Constitution. The right is available to both citizens and non-citizens. The scope of Article 21 have been expands over the years through judicial pronouncements over the years.

Scope of Art. 21

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K.Gopalan vs State of Madras that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles. In this case the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d). at that time Gopalan case was the leading case in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan case the scenario in respect of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law. Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalan case in the case of Maneka Gandhi v. Union of India, the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one.

Discussion

 WHAT DOES THE ‘RIGHT TO LIFE’ EMBODY?

Article 21, which embodies the right to life and liberty, is the right from which all other rights emerge. Without the right to life and liberty, all the other fundamental rights would be absolutely meaningless.
When we analyse the meaning and implications of Article 21, we can consider that it embodies two separate rights that in fact are inseparable and go hand in hand. These two rights are, i) the right to life, and ii) the right to personal liberty.

THE ‘RIGHT TO LIFE’

‘Life’ as mentioned under Article 21 signifies not merely living or the physical act of breathing. It has a much more profound meaning that signifies the:

  • Right to live with human dignity;
  • Right to livelihood;
  • Right to health;
  • Right to pollution free air; and
  • Right to live a quality life.
  • Right to go abroad;
  • Right to privacy;
  • Right against solitary confinement;
  • Right against delayed execution;
  • Right to shelter;
  • Right against custodial death;
  • Right against public hanging; and
    anything and everything that fulfils the criteria for a dignified life.

WHAT IS ‘PROCEDURE ESTABLISHED BY LAW’, AS MENTIONED IN ARTICLE 21

We have already analysed the first part of the Article that encapsulates that every individual is fundamentally entitled to his life and personal liberty, unless deprived by the due process of law.

To recap, Article 21 mentions that, “No person shall be deprived of his life and personal liberty except according to procedure established by law.”

The expression “procedure established by law” has been subject to examination in various landmark cases and the consensus is that that the procedure prescribed by law for depriving a person of his life and personal liberty must be “right, just and fair” and not “arbitrary, fanciful and oppressive,” otherwise it would directly violate Article 21.

EFFECT OF ARTICLE 21

Article 21 of our constitution is the most far reaching in its scope and reach and it is fair to say that it is the foundation on which every other law is laid. The right to life and liberty is something that affects each and every person in the country, every single moment of their life and it is something that we must always value and fight for as it has been guaranteed to us by our forefathers and maintained by the vigilant eyes of our Judiciary that keeps our rights intact.

The bottom line here is that, this is a very important article, i.e. Article 21 can be understood in parts to define the extent of its meaning, but must be read as a whole to understand its true effect. Article 21 is basically, responsible for enabling the fullest development of an individual and ensuring his dignity of life by the power vested in it by law. The effectiveness of this law can only be possible if it is supported by procedural machinery that is reasonable, just and fair for all.

Conclusion

This research paper discusses about the clash between two fundamental rights guaranteed to the citizens of India, under the Part III of the Constitution of India, 1950, namely, The Right to Information, implicitly a part of Article 19(1)(a) and The Right to Privacy, which is a part of Article 21, “Right to Life”, which is also known as the heart of the Indian Constitution. While the Right to Information helps create a transparency in the functionalities of the government, the Right to Privacy helps in creating a line of difference between “The Public” and “The Private”, and “What Information should be disclosed” and “What Information shouldn’t be”. It should be noted that the Right To Information and Privacy are not always conflicting rights, and are designed, in part, to ensure the accountability of the state. The important issue is how the legislation and the implementing and oversight bodies balance the two rights.44 In order to keep the conflicts at bay, a balance must be established between the Right to Information and the Right to Privacy.

Although, there is no simple solution to balancing the two rights, but most issues can be alleviated through the enactment of clear definitions in legislation, guidelines, techniques, and oversight systems. Since no rights are absolute including the right to privacy, I would like to submit that the public authorities should deal with the written requests for information under the Act with an applicant friendly attitude and when there would be a conflict between the privacy of an individual and the right to information of citizens, the latter should get proper importance as it serves larger public interest and, therefore, disclosure be made accordingly. Also, The power of disclosing information is to be exercised cautiously, and more responsible officials should be made the CPIOs.

Finally, I would like to submit that both the rights being equally essential, should co-exist in the system of governance, while managing a safe balance between the two, which would decrease the conflicts and bring about, a harmony, in the system

REFERENCES

The protection of Children from Sexual Offences Act,2012(POCSO ACT,2012)

 

Blog By-

Shiv prakash prjapati

Amity University

We will discuss about the protection of children from sexual offences act 2012 but before we go into the details of the act it is very important to understand why what is the necessity of this act why did this act be actually formed.

Need for POCSO ACT,2012

 

If we going to the history of the formation of this act we find that before the year 2012 there was no act which was very specific to the problem of sexual harassment of children.The existing act did not cover the sexual assault and sexual offences or sexual harassment against children  and moreover many children were not covered under any of the existing laws of that time. So it  was very important that a law specifically focusing towards the protection of children from sexual offences be incorporated and talking to play. With this idea of the Pocso  act 2012 came into being shut down we go into the details of this act.

Purpose of the Act-

 

Provide protection to all children from offences of sexual assault sexual harassment and pornography.child defined as any person under the age of 18 years.

Offences covered under the act

 

This act covers 6 different types of offences against children. 1- the very first that we need to discuss under this is Penetrative  sexual assault 2-next is aggravated penetrative Sexual Assault  then it’s  3-sexual assault, 4-aggravated sexual assault, 5-sexual harassment and 6-use of children for pornographic purposes. what is penetrative  sexual assault?  penetrative sexual assault is an offence where the penis  or any other object or any of the body part  is penetrated to any extent into the  vagina anus mouth or urethra of the child or the child is made to do the same to the perpetrator or to any other person. This falls under penetrative sexual assault. Penetrative sexual assault it also covers the use of mouth or touch by mouth into the  private parts of the child or making the child to do the same to the perpetrator or to any other person this is penetrative sexual assault.  Sexual assault means touching by mouth to the child a vagina or the mouth or any private part of the child or making the child to do the same to the perpetrator or to any other person. Sexual harassment is using of words or gestures or language with the sexual intent on the child or making the child to watch doing him or touching him any private parts falls under a view of sexual harassment.  sexual harassment also covers online sexual harassment where the child be is made to watch for pornographic  material. this all comes under the view of sexual harassment. The next is use of children for pornographic purposes. Where the children are used in recording through audio visual medium any pornography material. These are the major categories of offences covered under this act.

Offence is “aggravated”when:

 

Now we will discuss about aggravated penetrative sexual assault and aggravated sexual assault. when does an offence becomes aggravated? The offence would become aggravated penetrative sexual assault when it is committed by a person in position of trust authority for example if the crime or the offence is committed by a police officer any government servant any army official it will fall under the purview of aggravated penetrative sexual assault or sexual assault as the case maybe. It becomes aggravated when the offence is committed by people of medical institutions of jail remand home or the protection home where the child is placed to care and protection. If the offences committed by the people of those institutions it will comes under the category of aggravated. It will also be become aggravated if it’s gang assault when the offence is done by more than one person.If the same person is repeated the doing offence it becomes aggravated offence if due to the offence which child faces grievous physical and mental disability it is considered aggravated offence. it will also be considered aggravated if the offences done taking advantage of the disability of the child. For example the child is mentally or physically disabled and due to this the child is assaulted it becomes aggravated sexual assault.  it also becomes aggravated when the assault is done on a child who is below the age of 12 years or  if You offence is done by a relative of the person or by a person who is very known or closed to the victim it also becomes aggravated when the attempt was there to murder the child and if the child is made to strip and walking naked in public after the offence it becomes aggravated  sexual assault. Again it also becomes aggravated when the offences committed by force who was previously convicted for doing the same offence on some other children. it is an aggravated offence and also becomes aggravated when it is done during communal violence or during some sectarian violence   for example if there are Godhra problems or any other situation whether law and order of the places in a back position and then taking the situation of the law and order of that place a child is assaulted it becomes aggravated sexual assault.

Punishments under the Act:-

 

 

Offence Punishment Section in the Act
Penetrative sexual assault 7 years of imprisonment for life and fine Section 4
Aggravated penetrative sexual assault 10 years of imprisonment for life and fine Section 6
Sexual Assault 3 years of imprisonment for life and fine Section 8
Aggravated Sexual Assault 5 years of imprisonment for life and fine Section 10
Sexual Harassment of the child Upto 3 years of imprisonment for life and fine Section 12
Use of child for pornographic purposes 5 years and in case of subsequent conviction,7 years Section 14(1)
If along with pornographic acts offence also committed under Section 3 10 years to life imprisonment

Section 5-life imprisonment

Section 7- 6 years to 8 years

Section 9- 8 years to 10 years

Section 14(2)

 

Next we will discuss about the punishment under this act. this act is very stringent when deciding upon the punishment that has to be given to the propitiator of the offences. so now we coming to the various categories of the punishment as per the gravity of the offence.

The first is Penetrative Sexual Assault so the Punishment for penetrative assault is minimum seven years of imprisonment which can go up to life imprisonment. According to the latest amendment of the Indian penal code in the year 2018 there has been a provision made even death penalty can be given to a propitiator. It the crime  is committed against the child who is below 12 years of age. But she has the age of child who is below the age of 12 years and  it is specifically for female child. So as of now the amendment was only for female child below the age of 12 years.

Next is Aggravated Penetrative Sexual Assault, here are the punishment is minimum 10 years of imprisonment which can go up to life imprisonment and also level for fine.

Next we come to sexual assault for sexual assault punishment is minimum three years of imprisonment which can go up to 5 years of imprisonment and along with fine.

For aggravated sexual assault its minimum five years of imprisonment which can go up to 7 years of imprisonment along with fine

The punishment for sexual harassment of the child is up to 3 years of imprisonment along with fine.

Next we come to the punishment for using a child for pornographic purposes here the punishment is five years if convicted for first time if it is repeated offence the punishment can go up to 7 years of imprisonment along with fine.

Now this law also talks about locally using the child to pornographic purposes back if along with the using the child pornographeic purposes any of the offences as per the act for example penetrative sexual assault or sexual harassment or aggravated penetrative sexual assault is committed the crime the punishment increases as per the gravity of the crime committed on the child so these were the  basic areas where we discuss about the punishment under this act.  this act is also very specific about providing punishment for storing pornographic material where a child has been used. And  if this pornographic material is used for commercial purposes or just for storing also there is a punishment which can go up to 3 years of imprisonment and along with the fine.

Another very unique aspect of this act is the burden of proof which is shifted on the accused in cases of aggravated penetrative sexual assault ,penetrative sexual assault,sexual assault and aggravated sexual assault. So  in these four categories the burden of proof is on the accused. Normally we see in jurisprudence the burden of proof is on the victim but here the proper theatre will have to prove to self not guilty otherwise the law presumed That he is guilty and he will have to prove that he is no guilty.

Abetment and attempt:-

 

Another aspect of this act is abetment.  this act takes  abetment very seriously and the punishment for amendment is same as of actually committing the crime.next is attempt to commit an offence under this act if a person tries to commit the offence but does not actually commit the offence even then The law will consider this as an  attempt to committing the offence and the punishment for this is Half of the actual offence punishment.for example if the punishment for penetrative sexual assault is seven years of imprisonment of life and somebody tries to committed to offence but does not actually do  the offence even then He is liable to punishment and it can be the half of the actual quantum of punishment given if the crime is committed.

Procedure for reporting of cases

This act also covers trafficking of children and its purview and it is considered as crime and there is a punishment for the same. Next what become is how What is the procedure of reporting cases of Pocso.

Under this act it’s mandatory to report  cases  of sexual offences. Now where to report? As obviously the first point of reporting would be to the local police station or to the SJPU(Special juvenile police unit). It is important to report all the cases of sexual offences to the police.there after the police have to take immediate action and immediate FIR has to be registered by the police and the police will starts its investigation. The very first point  that comes in mind that we are talking about sexual offences cases, is the medical assistance that has to be given to the child. it is mandatory for the police to provide immediate medical assistance to the child. next comes reporting the case to the child welfare committee it is very important that all cases of sexual offences that are  reported to the police.  the police has to inform the CWC about the offence committed. With in 24 hours of cognizance by the police. The CWC will then necessary action about the child. There are three categories where are the CWC decide not to send back the child where it goes belonging to. For example If a case of sexual offence is committed by a member of the family or at the place where the child is stayed if a offence is committed there the CWC considering the best interest of  the child may decide to not to send the child back home.

Next Is the medical assistance.  it is very important to provide immediate medical assistance and medical examination of the child to be conducted. medical assistance for a child will be conducted by a lady doctor for female child and it is very important that all the forensic material is collected Show that the case becomes prosecutionready.and all the points and forensic materials is collected.in case a lady doctor is not available in hospital or  the parents or  guardian of the child  is not available at that time then any female staff of the hospital can be nominated to be present during medical examination and this termination will be done by the head of that medical institution. After the medical examination of the child it’s done medical assistance is  to provided to  the child it is the role of police to initiate the investigation and records the statement of the child. As per CRPC section 164 The the statement of the child will be recorded in the language spoken by the child the police will not desipher of the child is saying but actually record and understand that the child is saying. Recording of the statement investigation starts.

Mandatory reporting of cases:-

 

Failure to report commission of offence punishable with imprisonment of six months or fine or both section 21(1)

failure to record an offence also punishable with imprisonment of six months or with the fun of both session 21(1)

Two Days International Virtual Conference 2021 "MISUSE OF LAWS AGAINST MEN: CONTEMPORARY ISSUES & CHALLENGES"

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We welcome you to the International Virtual Confrence on “Misuse of Laws against Men: Contemporary Issues and Challenges” aims to bring together leading academicians, students, human rights activists, academic scientists, researchers, research scholars and other intellectuals to exchange and share their experiences and research results on all aspects of Misuse of Laws against Men: Contemporary Issues and Challenges. It also provides a premier interdisciplinary platform for researchers, practitioners and educators to present and discuss the most recent innovations, trends, and concerns as well as practical challenges encountered and solutions adopted in the fields of Misuse of Laws against Men: Contemporary Issues and Challenges. This Virtual Confrence will provide discussion on, to focus on men’s and boy’s health, improving gender relation, promoting gender equality and highlighting positive male role models. It is an occasion for men to celebrate their achievements and contributions, their contributions to community, family, marriage, and child care while highlighting the discriminations against them.

The International Virtual Confrence on Misuse of Laws against Men: Contemporary Issues and Challenges 2021 is taking place on 19th and 20th November, 2021 organized by Event Committee of Vidhi Seva Evam Samajik Utthan Samiti.

The Virtual Confrence aims to examine and analyze the Misuse of Laws against Men: Contemporary Issues and Challenges. The International Virtual Confrence will be attended by various national delegates and speakers as also representatives from the International Diaspora representing the stakeholders in the digital ecosystem and alive web.

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To provide a platform for stake holder like organizations working in international and national level, legislatures, civil societies, researchers, practitioners, academicians, activists and policy makers to deliberate and discuss on what is required to build strategies and to address the constraints in inclusive practices towards betterment of the Men’s Rights in the society.

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The Organizing Committee welcomes original papers, relating to, but not limited to the following topics:

  • Misuse of Anti-Dowry Laws
  • Misuse of Rape Laws
  • Misuse of Maintenance Provisions
  • Gender Equality and Domestic Violence Act
  • Live in relationship- issues and challenges with relation to abuse against men
  • Sexual Violence against men
  • Right to Reproductive only for women or for men’s also
  • Sexual Harassment of men at workplaces
  • Outraging the Modesty of men
  • Parents have an equal rights of child custody
  • Hate Crime Discrimination
  • Homicide
  • Suicide
  • Death Penalty almost exclusively targets men

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Cruelty to Women IPC 489 (A)

Name : Harshita Pandey

Course : BA.LLB (H)

Year : 3rd Year

College : Amity University, Lucknow Campus

Abstract:

Domestic violence or some form of abuse including mental, physical and sexual abuse in a domestic setting, such as in marriage or cohabitation also commonly known as intimate partner violence.

It is a common occurrence throughout the world but in India, it is prevalent here as the issues of dowry, male dominance and living in joint family set ups are the norm here. Therefore, these factors play an additional role in making the women, victims of domestic violence. Not only do the women suffer violence from the husband but also from the family members of the husband specially when the issue is of dowry whether lack of it or an unsatisfactory amount. The statistics do not show the correct picture as things are not reported often due to social stigma attached with it and the whole Indian mentality of worrying about other peoples’ opinion. Most of the time, only way the issue reaches the police and courts of law are when either the victim dies due to the injuries, commits suicide or reaches the hospital for treatment. Otherwise the milder forms of abuse are mostly kept well hidden.

Prior to 1983, there was no provision in Indian legislation to deal with specifically with domestic violence. When the Indian Penal Code (45 of 1860), was amended in 1983, Section 498A was inserted. Section 498A deals with ‘Matrimonial Cruelty’ perpetrated on a woman. Matrimonial Cruelty in India has now been made a cognizable, Non- bailable and Non-Compoundable offence.

Introduction

The declaration on the elimination of violence against women defines “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”

A subset of violence against women, is domestic violence, defined as “violent or aggressive behaviour within the home, typically involving the violent abuse of a spouse or partner”. It is prevalent in India, as the Indian society is well defined by certain norms and practices that might be considered regressive.

The dowry system is a glaring example of such a regressive practice and considered one of the root causes of domestic violence in India. The dictionary definition of dowry being “an amount of property or money brought by a bride to her husband on their marriage”.In India, the whole concept of a successful marriage is often defined by the amount of dowry the bride brings. If the bride’s family is unable to fulfil this demand then the whole cycle of demand for additional dowry and domestic violence ensues. Regular beatings, deprivation of basic needs, emotional abuse like continuous demands for dowry, insults to the women and her family, the cycle keeps on increasing. In most of the instances, the victim keeps quiet in order to avoid emotional and financial distress to her family, her inability to stand up for herself, financial dependence, lack of education and knowledge of her rights and fear of social stigma. Often, the only way these cases reach the police or court of law is when either the victim dies due to the injuries, commits suicide or reaches the hospital for treatment.

Though this system of demand for dowry and domestic violence associated with it, is an age old practice yet prior to 1983, there was no provision in Indian legislation to deal with it specifically. When the Indian Penal Code (45 of 1860), was amended in 1983, Section 498A was inserted which deals with ‘Matrimonial Cruelty’ and is defined as “Husband or relative of husband of a woman subjecting her to cruelty”. Matrimonial cruelty has now been made a cognizable, non-bailable and non-compoundable offence.

Case Details

The case was of a 29-year-old female in an arranged marriage with demands for additional dowry. She was beaten up regularly by her husband and FIL. Following the beatings, she began to have some neurological problems. When she became pregnant with a female child (sex determination was done illegally) her in-laws and husband pressurized her to abortion it, which she refused and was allegedly administered some unknown substance/poison by her MIL.

During this time there were she mentioned 2 specific episodes of violence by her husband and FIL when she was hit on the neck with danda and belt following which her condition start deteriorating. She was taken to a local hospital who referred her to Neurology Department of AIIMS. During her treatment she was put on ventilator and kept in ICU for 2 months.

She alleges that even while admitted, she was subjected to multiple episodes of violence by her husband and FIL who threatened to remove the ventilator if her father didn’t pay additional dowry.

She was discharged after 6 months with following diagnosis: LMN Quadriparesis with diaphragmatic weakness and ventilator dependence. She was not taken care of properly in her in laws house, so she went back to her own home and currently she is bedridden on ventilator and residing at her parents’ house.

She has lodged an FIR with the police alleging domestic violence and torture with demands for additional dowry.

A medical board of doctors was formed to opine whether her condition was a result of physical violence meted out her. Her treatment papers were reviewed, and in view of unknown substance administered to the victim, samples were collected for toxicological analysis.

At the time this case report was written, the case was still under investigation and deliberation by the board.

Discussion

The case discussed shows that the topic of dowry remains closely associated with perpetration of domestic violence over women. Under the Indian Law, the factor “beyond reasonable doubt” forms the basis of prosecution against all crime and in cases of domestic violence, the violence occurs within the four wall of the marital home, proving her case in front of the Court of Law proves exceedingly difficult for the victim.

A study by Leela Visaria – “Violence against Women in India: Evidence from Rural Gujarat” showed that two-thirds of the married women out of the 450 surveyed, reported some form of psychological, physical, or sexual abuse. Of the total sample, 42 percent experience physical beatings or sexual assault. An additional 23 percent suffer abusive language, belittlement, and threats. About 36-38 percent of women in a Tamil Nadu study and 42-48 percent of women in an Uttar Pradesh study reported violence.

According to the NCRB data, domestic violence figures at the top in violence against women in 2018. Majority of cases under crimes against women, out of total IPC crimes against women were registered under ‘Cruelty by Husband or His Relatives’ (31.9%). The crime rate per lakh women population is 58.8 in 2018 in comparison with 57.9 in 2017.

Total no of cases registered under Cruelty by Husband or his relatives (Sec. 498 A IPC) was 104165 in 2018 all over India while those registered under Dowry Deaths (Sec. 304B IPC) was 7277 and under Abetment to Suicide of Women (Sec. 305/306 IPC) was 5266.

Kimuna et al. have published domestic violence trends in India, based on the 2005–2006 India National Family Health Survey-III (NFHS-III) data on the 69,484 married women of ages from 15 to 49 from all regions of India. They report 31% of respondents had experienced minor to major form of physical violence in the 12 months prior to the survey, while the domestic sexual violence prevalence rate experienced by the woman was about 8%. Women who lived in cities, had higher household wealth, were Christian and educated had significantly lower risk of physical and sexual domestic violence. In contrast, wives of men who drank alcohol had significantly higher risks of experiencing both physical and sexual violence.

A 1999 study published by the American Journal of Epidemiology identified so-called “stress factors” that are critical to understanding varying rates of domestic violence. These stress-related factor include low educational levels, poverty, young age at time of marriage, having multiple children, socioeconomic class, educational level of both victim and perpetrators, and family structure.

The Indian legal system has formed Section 498A of Indian Penal Code according to the Criminal Law (Second Amendment) Act, 1983 (46 of 1983), specially for dealing with domestic violence. 498A IPC states – “Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Sec 498A IPC is cognizable, non compoundable and non bailable.

One more safeguard that the Indian Law has added in order to protect women from domestic violence is the provision of Indian Penal Code (45 of 1860) Amendment Act, 1986 whereby Section 304B has been added to the Indian Penal Code which addresses dowry death.

Even though the law provides for the security of women, yet there is a big loophole; a lack of awareness in the victims, most of whom do not know that they have the option to approach the law.

 CASE LAW 

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

In an endeavour to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically in cases under Section 498-A IPC, the Court gave certain directions (however, the directions apply also to other cases where offence is punishable with imprisonment of not more than seven years) which include:

(a) Police officers not to automatically arrest the accused when a case under 498-A IPC is registered. They should satisfy themselves about the necessity of arrest under parameters flowing from Section 41 CrPC (the judgment lays down the parameters).

(b) Police officers shall fill the checklist (containing specified sub-clauses under Section 41(1)(b)(ii) CrPC) and furnish the reasons and material necessitating the arrest

© The Magistrate will authorise detention only after recording its satisfaction on the report furnished by the police officers.

(c) If the police officers fail to comply with the directions, they will be liable for departmental action as well as punishment for contempt of Court.

€ Failure of the Judicial Magistrate to comply with the directions will render him liable for departmental action by the appropriate High Court.

Rajesh Sharma v. State of U.P., 2017 SCC OnLine SC 821

In this case, too, the Supreme Court gave directions to prevent misuse of Section 498-A IPC which were further modified in Social Action Forum for Manav Adhikar v. Union of India, 2018 SCC OnLine SC 1501. These directions include:

(a) Complaints under Section 498-A and other connected offences may be investigated only by a designated Investigating Officer of the area.

(b) If a settlement is reached between the parties, it is open to them to approach the High Court under Section 482 seeking quashing of proceedings or any other order.

© If a bail application is filed with at least one day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not, by itself, be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.

(c) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.€ These directions will not apply in case of tangible physical injuries or death.

SUGGESTIONS

The Court and Legislature have to make changes if the laws of matrimonial cruelty are to be of any deterrence. Looking into the recent observations and the increase in the misuse of this Section, there should be certain amendments which should be brought up in this law:

1. Role of Women NGOs: These organizations should investigate complaint properly without any bias towards the woman keeping in mind that the law is being misused largely to harass more women in husband’s family. They should not encourage any woman to file a criminal case against her in-laws for trivial matters. Foreign Women Organizations should also take responsibility of not allowing false complaint to be registered against NRI’s just to harass and extort huge amount of money from them. These organizations should also conduct survey/research on the misuse of the act and should educate people about its consequences. If these organizations are found to be assisting in filing false complaints, then they should be made liable for prosecution in the country where they are functioning.

 2. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-laws have come to light from different parts of the country. As of now there is no organization, which can really help these harassed men and his family members, to listen their side of the story and put their point of view in front of the government. Need of the hour is to create family counseling centers across the country to help those aggrieved families.

 3. Time bound Investigation and Trial: A speedy trial of 498(a) cases will not only ensure justice for the innocents that have been implicated in false charges, it will also lead to prompt redressal of the grievances of real dowry victims .The reduction in false cases will also reduce the burden on judiciary and expedite the processing of real cases.

4. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law. There should be provision for men also to file a case for mental cruelty by his wife.

 5. Investigation by Civil authorities: The investigation into these offences be carried out by civil authorities and only after his/her finding as to the commission of the offence, cognizance should be taken. The government should create awareness among officers about its misuse.

 6. Bailable: The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them.

 7. Compoundable: Once FIR has been registered it becomes impossible to withdraw the case even if wife realizes that she has done a blunder and wants to come back to her matrimonial home. To save institution of marriage this should be made compoundable. Moreover, in the scenario where the couple decides to end the marriage by mutual divorce, continuation of criminal proceedings hamper their life.

 8. Arrest Warrants: Arrest warrant should be issued only against the main accused and only after cognizance has been taken. Husband family members should not be arrested.

 9. Penalty for making false accusation: Whenever any court comes to the conclusion that the allegations made regarding commission of offence under section 498a IPC are unfound, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families.

 10. Court Proceedings: Physical appearance of the accused on hearing should be waved or kept low to avoid hassles in appearing to the court, especially for NRIs. The court should not ask to surrender passport of the husband and his family which could cost job of the husband and his family members.

 11. Registration of Marriage and Gifts Exchanged: The registration of marriages should be made compulsory along with the requirement that the couple make a joint declaration regarding the gifts exchanged during marriage.

 12. Punish Dowry Givers: If the complainant admits giving dowry in the complaint, the courts should take cognizance of the same and initiate proceedings against them under the relevant sections of the Dowry Prohibition Act

 13. Penalize corrupt Investigation Officers: If it is apparent to the court that a fair investigation has not been conducted by the investigation officer, and that the husbandand his family have been charge-sheeted without proper verification of the complaint, the investigation officer should be penalized for gross negligence of duty.

 14. NRI Issues : Unless they are proven to be guilty after the due judicial process, NRIs should be a given a fair chance to justice by assuring them of the following -a) Permission to return to country of employment b) No impoundment/revocation of passport and no Interpol Red Corner Notices. c) No unnecessary arrests d) Expeditious investigation and trial

15. Gender Neutral: Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife.[25]

This Section only provides for the remedy to woman only and these days it is being used as a ‘brahamastra’ by the woman. It is a highly debatable issue these days, if this problem is not solved by legislation it may become a bane for the society. People’s trust over the judiciary will come to an end. So it’s high time that this Section be amended and some changes like mentioned above should be brought up in this law.

Conclusion

Misuse of Section 498A is not a rumour it is proved now, the woman laid down a false charge under the provisions of Section 498A IPC and created her husband under the rule. The boys have no laws to protect themselves from women’s abuse. Moreover, in every district court case, section 498A IPC was misused. The cases were still unresolved, and the square measure of husbands paying maintenance to their wife just because he’s husband doesn’t mean he’s to blame for all the expenditures and benefits. The ladies are scammers as opposed to men in society. This section is used as a weapon by the wives to collect some cash from their husband’s. It is the fact that Section 498A IPC is misuse by the women to husbands and in-laws. The tests are finished and published already. This segment was seen to be keen on people. Section 498A is right to protect women, but it’s actually harassment of husband and in-laws by a spouse. The effect on society of this example is terribly unhealthy. The Law Commission addressed the issue concerning abuse of this provision in its 243 reports on IPC Section 498A. The commission has recommended that the offence can only be made compoundable with the court’s permission, and precautions must be taken before granting. The commission has recommended, however, that the offence should remain undeclared. The abuse does not mean that we are removing the usefulness of the laws that impact the wider public interest.

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PANEL DISCUSSION ON “BIOMEDICAL WASTE: PRE & POST COVID-19

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विधि सेवा एवं सामाजिक उत्थान समिति द्वारा जी० आर० डी० गर्ल्स डीग्री कॉलेज के सहयोग से दिनांक 08 मार्च 2021 को जी० आर० डी० गर्ल्स डीग्री कॉलेज में अंतराष्ट्रीय महिला दिवस पर कार्यक्रम का आयोजन किया गया जिसमें माननीय न्यायाधीश श्री राजेश टंडन जी ने मुख्य अतिथि के तौर पर शिरकत की और छात्राओं को महिलाओं के लिए कानूनी और संवैधानिक अधिकारों के बारे में जानकारी देकर संबोधित किया और लड़कियों को शिक्षा का अधिकार, घरेलू हिंसा संरक्षण और इनसे संबंधित योजनाओं पर प्रकाश डाला। इसके अलावा कॉलेज छात्राओं ने नुक्कड नाटक और कविताए पेश कर आज की नारी की परिभाषा बतलाई। सशक्तिकरण दिखाते हुए अधिवक्ता लता राणा जी, पी०एल ०वी० सुनीता सिंह जी, एस०आई० निधि डोबाल जी, कॉलेज की प्रधानाचार्या प्रियंका सिंह जी, समिति अध्यक्ष श्री राशिद अली जी और समिति की उपाध्यक्ष कु० मोनिका नेगी जी ने सभी को संबोधित किया। कार्यक्रम में समिति के अध्यक्ष मोहम्मद राशिद अली, उपाध्यक्ष कुमारी मोनिका नेगी, समिति के सदस्य तय्यबा परवीन, शीबा कुरैशी, जसवंत आदि मौजूद रहे।

विधि सेवा एवं सामाजिक उत्थान समिति के द्वारा जिला विधिक सेवा प्राधिकरण देहरादून के तत्वाधान में दिनांक 1 फरवरी 2021 को दून फार्म हाउस में पूर्ण रूप से कोरोना के नियम का पालन करते हुए तृतीय कानूनी सहायता शिविर का आयोजन कराया गया जिसमें देहरादून जिला विधिक सेवा प्राधिकरण की सचिव श्रीमती नेहा कुशवाहा जी ने मुख्य अतिथि के तौर पर शिरकत की और सभा को कानूनी जानकारी देकर संबोधित किया और बाल अधिकार एवं शिक्षा का अधिकार, घरेलू हिंसा संरक्षण, वरिष्ठ नागरिकों के अधिकार के संबंध में भी जानकारी दी गयी और इनसे संबंधित योजनाओं पर प्रकाश डाला। कार्यक्रम में महिला सशक्तिकरण दिखाते हुए श्रीमती स्नेहा नारंग जी, चयनित जज, को सम्मानित किया। कार्यक्रम में रक्तदान शिविर, समाज कल्याण विभाग, चिकित्सा शिविर, आपूर्ति विभाग एवं जिला विधि सेवा प्राधिकरण का शिविर भी लगाया गया। कार्यक्रम में श्री ताहिर अली जी अध्यक्ष गन्ना समिति, श्री तज़ममुल हुसैन पूर्व प्रधान पति एवं समाज सेवी, गौरव घिल्डियाल, जनप्रतिनिधि फरीदा खातून, संपत्ति नेगी, सावित्री पुरोहित, बंका राम ठाकुर, समिति के अध्यक्ष मोहम्मद राशिद अली, उपाध्यक्ष कुमारी मोनिका नेगी, कोषाध्यक्ष मौहम्मद तासीर अली, सचिव दिव्यांशु नौटियाल, कार्यकारिणी सदस्य राधिका धस्माना, आशुतोष लाम्बा, शिवानी थापा, समिति के सदस्य अविरल सक्सेना, मौहम्मदी चौहान, तय्यबा परवीन, तौफीक अली, अकबर अली, रितिका सेमवाल, शाश्वत नेगी, सागरिका बिष्ट, अपर्ना अरोडा, रीया सिंह, दुष्यंत थपलियाल, सुधांशु कुमार, साकिब आदि मौजूद रहे।