VII VICTIM RIGHT LAWS IN INDIA

There is no comprehensive legislation in India to enforce victims rights in tune

with the UN declaration of Basic Principles of Justice for victims of crime and Abuse of
Power 1985. But there are some developments in the scenario. Special laws have been
enacted relating to children, women and dalits and certain amendments have also been
made to the existing criminal major acts. We will examine some of the special
legislations made for these categories.

I. CHILDREN

India ratified the United Nations Convention of Child rights of (CRC) in 1992. Since
1996, it has been implementing 24 hour toll free Childline. In 2000, the Juvenile
Justice (Care and Protection of Children) Act was enacted in keeping with the standards
for Child Protection provided by the CRC.1

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,2000

Recognising the vulnerability of children and the need for special and different
treatment, India enacted a uniform Juvenile Justice Act (JJA) in 1986 for the whole of
India. The Act was enacted to provide for the care, protection, treatment, development
and rehabilitation of neglected or delinquent juveniles and for the adjudication of
certain matters relating to, and disposition of, delinquent juveniles. However, the
history of the implementation of the JJA, 1986, is a history of hopes not realised and
promises not fulfilled. A review of the Act was undertaken to look into the lacunae as
well as its non implementation. 2

In 1989 the General Assembly of the United Nations adopted the Convention on the
Rights of a Child. India ratified the UNCRC in 1992. The convention outlines the right of
the child to reintegration into society without judicial proceedings.. Hence the
1
See Preamble to The Juvenile Justice (Care and Protection of Children) Act, 2000
2
See : Dr.Nilima Mehta, Child Protection and Juvenile Justice System For Children in need of Care
and Protection, website : childlineindia.org.in
Government, to fulfil the standards of the convention felt a need to re-write the law.
Hence the old law was replaced by the Juvenile Justice (Care and Protection of
Children) Act, 2000. It was further amended in 2006 and 2010. Further amendments
relating to reduction of the age while defining the term children is in the offing.

The Act was based on the provisions of the Indian Constitution and the four broad
rights of the UN CRC namely: Right to Survival, Right to Protection, Right to
Development and Right to Participation

The high lights of the Act:

A child or juvenile is defined as a person who has not completed his/her 18th
year of age.
It outlines two target groups: children in need of care and protection and
Juveniles in conflict with law.
Among children there are some who are more marginalised and neglected than
others because of their socio - economic cultural circumstances. These children
are considered as children in need of care and protection.
The children in need of care and protection (CNCP) includes street children,
orphaned, abandoned and destitute children, working children, abused children,
trafficked children, children engaging in substance abuse, children in conflict and
disaster situation, children in families at-risk differently-abled children,HIV /
AIDS-affected / infected children and juveniles in conflict with the law
Juveniles in conflict with the law means a juvenile who is alleged to have
committed an offence.
Reformation and rehabilitation, instead of penalising the child, is the essence of
juvenile jurisprudence.
Juveniles in conflict with law are subject to the same substantive laws as are adult
criminals, but their treatment is different.
A special juvenile police unit will be created at the district and city level to co-
ordinate and improve the handling of juveniles and children by the police.
Every police station should have at least one juvenile or child welfare officer,
who is a police officer with aptitude and proper training and who will handle the
juvenile or child in co-ordination with the police.
As soon as a juvenile in conflict with law is apprehended by the police, he shall be
placed under the charge of the special juvenile police unit or the designated police
 officer, who shall produce him before the Board, within a period of twenty-four
hours of his apprehension
For addressing the needs of Juveniles in Conflict with Law (JCLs) the Act for the
establishment of Juvenile Justice Boards (JJBs) where the State Government
sees fit. It contains a Metropolitan or Judicial magistrate and two social workers
where one of the workers must be a woman. The magistrate is required to have a
background in child psychology or child welfare.
JCL cases can only be heard in the JJB and not by another court. The powers of
the JJB can be exercised in a High court or Court of Session when an appeal has
been made as part of the act,
Bail is available to juveniles in all cases as long as the JJB find the release of this
child will not place him in any danger or in the influence of criminals. otherwise
he will be put in observation home.
the competent authority shall determine the age of the juvenile by making due
inquiry. The same may be deemed to be the true age of that person.
if a crime or an incident took place while the person was a child, and then during
the proceedings if the juvenile ceased to be under the age group the case against
him would continue as if the juvenile had not turned eighteen yet.
On completion of inquiry, the JJB can pass from admonition and counselling to
confinement in a Special Home.
A child cannot be charged with the death penalty, imprisonment which can
extend to life imprisonment or committed to prison for inability to pay a fine or
providing a security for the bond.
If the JJB is of the opinion that a juvenile should be institutionalised, he is
required to be placed in a Special Home for his treatment.
Other than this, the JJB can opt for variety of dispositions, such as care, guidance
and supervision orders; counselling; probation; foster care; education and
vocational training programmes and other alternatives to institutional care.
For the reception and rehabilitation of JCLs the state must set up Observation
Homes and Special Homes in every district or group of districts.
After the proceedings of a particular case are complete, the JJB may decide on
the rehabilitation of the child.
The probation officers may be required to continue a follow up of the child even
after discharge.
Media is not permitted to release the information about the juvenile.
Juveniles who run away from the Observation or Special homes can be brought
 back without a warrant and without punishment.
cruelty (such as assault or neglect) towards juveniles in the home or by any
person in charge of him/her is a punishable offence.
This act also has provisions to penalize people who exploit children for a crime. A
person, who employs a child in a hazardous industry, employs him/her for
begging or provides a child with drugs or alcohol is liable to serve prison time and
pay fines.
During their stay in the Special Home a juvenile should be able to avail of
education or vocational courses depending upon the childs aptitude, as also
facilities for sports and co-curricular activities such as music, painting, reading,
drama, yoga, etc.
children in need of care and protection (CNCP) cases are heard by the Child
Welfare Committee (CWC). The committee is meant to have a chairperson and
four other members of whom at least one should be a woman and at least one
expert in children's issues.
The purpose of the CWC is to provide for the care, treatment, protection,
rehabilitation and development of the child and in doing so uphold the rights of
the child.
Any child in need of care and protection may be produced before the Committee
by one of the following persons:- any police officer or special juvenile police unit
or a designated police officer; any public servant; childline, a registered voluntary
organisation or by such other voluntary organisation or an agency as may be
recognised by the State Government; any social worker or a public spirited citizen
authorised by the State Government; or by the child himself.
The Committee is empowered to restore the child in need of care and protection
to his / her parent, guardian, fit person or fit institution.
The committee may commit the child to the Children's home or a Shelter home
set up for this purpose by the Govt if the child has no immediately available
family or support system.
The process of the childs rehabilitation and social reintegration has to begin in
the childrens home or special home itself. This can be carried out through
various non-institutional services provided for by the Act.
The child can be given in adoption by following due procedures under the Act.
Those infants who are to be ultimately given in adoption, may be placed
temporarily in foster-care. A child may be placed with another family in foster
care for a short or extended period of time.
 After they leave the special homes and childrens homes, in order to help them
live an honest, productive and useful life, the child may be placed in an after care
home established by the government. The child cannot stay in the after-care
organization for more than three years.
Sponsorship may be provided as a financial support to families, to childrens
homes and special homes to meet medical, nutritional, educational and other
needs of the children in order to improve their quality of life.
Every State Government shall constitute a Child Protection Unit for the State
and, such Units for every District, with a view to ensure the implementation of
this Act.
The Madras High Court held that the JJ Act is a special law and will have overriding effect
over the Prevention of Terrorism Act (POTA) and accordingly a juvenile even accused of a
terrorist offence will have to be tried only under the JJ Act considering its special provisions and
the cover extended to a child in conflict with law. It was observed by the High Court3 :-

JJ (C& PC) Act dealing as it does with 'Alpha to Omega' of the problems facing juveniles and
juveniles in conflict with law providing as it does for specialised approach towards the
prevention and treatment of juvenile delinquency in its full range is a special law and will
prevail over POTA which is a mere special law compared to JJ (C&PC) Act. JJ (C&PC) Act is
the monarch of all that it surveys, in its field. Both are special but JJ (C&PC) Act is more
special (apologies to George Orwell).
Prior to the 2006 amendment, there was some ambiguity in the law as to the period
for which a juvenile could be detained in a Special Home, but the judicial trend was that
a juvenile who had crossed the age of 18 years should not be kept in a Special Home.
This gave rise to a situation where a juvenile who on the date of offence was 17 years 10
months of age and on completion of inquiry had crossed the age of 18 years could not be
placed in a Special Home. By the 2006 amendment, such juvenile can be detained in a
Special Home for a maximum period of 3 years. 4

After the Delhi gang rape case in which one of the accused was a juvenile and when
found guilty was allowed to be kept in a special home for three years. There was a public
outcry to change the maximum age fixed under the Act defining the term child in
3
Prabakaran vs State Of Tamilnadu, W.P.No. 4511 of 2003 dated 18th March 2003
4
Mr. Maharukh Adenwalla, Child Protection and Juvenile Justice System for Juvenile in Conflict with
Law, website : childlineindia.org.in
conflict with law. An attempt was made before the Supreme Court to challenge the
different punishment given to such accused involved in a felony. However, the said plea
was rejected by the Supreme Court which held 5

Classification or categorization need not be the outcome of a mathematical

or arithmetical precision in the similarities of the persons included in a class
and there may be differences amongst the members included within a
particular class. So long as the broad features of the categorization are
identifiable and distinguishable and the categorization made is reasonably
connected with the object targeted, Article 14 will not forbid such a course of
action. If the inclusion of all under 18 into a class called juveniles is
understood in the above manner, differences inter se and within the under
18 category may exist. Article 14 will, however, tolerate the said position.
Precision and arithmetical accuracy will not exist in any categorization. But
such precision and accuracy is not what Article 14 contemplates.

The Government of India succumbing to the public demand has introduced an

amendment to the Act intending to reduce the age in the definition given for children.
This was contrary to the earlier intention given in the preamble to the Act wherein it was
clearly stated that the said Act was based upon the obligations imposed by international
covenants. Human-rights activists and experts have criticized the new Bill, saying that
the nature of a crime does not establish the mental maturity of juveniles. Experts say
that the amendment violates basic child rights and the international obligations.

UNICEF India expressed concern over the amendments to the Juvenile Justice Act,
and termed this as a "real step back".Louis-Georges Arsenault, UNICEF Country
Representative opined"Worldwide, evidence shows that the process of judicial waiver or
transfer of juvenile cases to adult courts have not resulted in reduction of crime or
recidivism. Instead, investments in a working system of treatment and rehabilitation of
children have shown to lead to better results in reducing recidivism." 6
5
Dr. Subramanian Swamy & Ors. vs.Raju through member Juvenile Justice Board & Anr., 2014 (8) SCC 390

6
UNICEF shows concern over JJ Act amendments, website : oneindia.com (7.8.2014)
 National Commission for Protection of Child Rights has described the proposed
amendments as were against the fundamental philosophy of JJ Act and they would
defeat the intent and purpose of the juvenile justice system. Several child rights
organizations have also opposed the changes.7

National Institute of Mental Health and Neuro-Sciences (NIMHANS) told the

government in a joint submission with the National Law School of India University,
Bangalore making the argument of maturity based on the nature of crime does not
stand scrutiny. Findings in neuroscience and adolescent psychology confirm that
juveniles are more susceptible to negative influences and peer pressure, are less likely to
focus on future outcomes, are less risk-averse than adults, have poor impulse control,
and evaluate risks and benefits differently all of which pre-dispose them to make poor
decisions.

The institute said that offences by children were more likely to happen in
circumstances of neglect, exploitation and abuse, and the child having been socialized
in a way where his/her decision making goes awry, rather than in a context of
premeditation and criminality.8

The UN Committee on the Rights of the Child the expert body which monitors the
implementation of the UN Convention on the Rights of the Child (CRC), to which India
is a state party has specifically recommended that State shall not allow 16 or 17-year-
old children to be treated as adults. The Justice Verma Committee also did not
recommend for reduction of the upper-age limit under the juvenile justice rules being
reduced from 18 to 16 years. 9

COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT 2005

7
Tanu Kulkarni, Amendments against the basic philosophy of JJ Act, The Hindu dt. 8.8.2014 (Bangalore
edition)
8
Ritesh K Srivastava, Cabinet to take up amendments in JJ Act today, website: zeenews.india.com
(6.8.2014)
9
Ibid
 The Commission for Protection of Child Rights Act, 2005 was enacted by the
Parliament so as to provide for the constitution of a National Commission and State
Commissions for Prevention Child Rights and Childrens Courts for providing speedy
trial of offences against children or of violations of child rights and for matters
connected therewith. It must be noted that India has ratified the convention on the
rights of the child (CRC) as early as 11.12.1992. Further a national charter for children
was also adopted in the year 2003 but however it was only in the year 2005 the Act
came to be enacted and it took further two more years to constitute the National
Commission under the Act which was done in the year 2007. Even some States in India
are yet to constitute the State level commission under the Act. So much for the concern
for the children and it is needless to state that the lethargy shown has led to the problem
of children being unattended for decades together.

NOIDA, a neighbouring U.P. town near capital territory region of Delhi became
an headline news during December 2005. Suddenly number of children started getting
missed. The complaints given by the parents of those missing children were put in cold
storage by the U.P. Police and never got investigated. The hapless fathers of the two of
the missing girls suspected one Surinder Koli who worked as a domestic help in the
house of Moninder Singh Pander residing at door No.D-5 of Sector.31 (NOIDA). It was
also claimed that even before police could arrive at the spot, they conducted a search in
the Municipal drain and dug out some skeletal remains. Later the police had discovered
amorous skulls, bones and other body parts. 10 These incidents came to be called later as
Nithari killings.

Though inaction on the part of U.P. Police was glaring, the Supreme Court
refused to interfere on the ground it was premature and already the matter was under
scrutiny of National Human Rights Commission as well as National Commission for
Women. Later due to mounting public pressure, the U.P.Govt gave consent to transfer
the investigation by the CBI. The CBI squarely indicted the U.P police for their
negligence. Body parts of around 22 persons were found out in 40 bags of human
remains. After investigation, the CBI cleared M.S.Pander of the actual killings and also

10
Nita, The most gruesome serial killings in India, website : wordpress.com (29.12.2006)
of being an accessory. However the CBI found him guilty of bribing the police and
having sex with call girls. But the Special Sessions Court in Ghaziabad (U.P.) found both
Kohli and Pander guilty of all the offences and awarded them with death sentence on
12.02.2009. The Allahabad High court setting aside the conviction of Pander in one of
the serial killing case (Rimpa Halder) but confirmed the conviction of Kohli. Koh li was
given 4 more death sentences.11 After the Supreme Court dismissed his appeal, he moved
the Governor of U.P.State with a mercy petition which was also rejected. However a
Public Interest plea was made by the PUDR before a division bench of the Allahabad
High Court. The court very recently (January 2015) modified the death sentence into to
one of life sentence on the plea that there was an inordinate delay in executing the death
sentence.

Nithari killings were the most brutal and massive serial killing in the history of India.
The victims were none other than the innocent children from a poor family background.
Nithari case is a classic example how the police were handling with missing children
complaints, and how corruption plays an important role in law enforcement agency.

The Government of India though enacted the NCPCR Act in 2005, however established
the NCPCR in March 2007 only after the public outcry and the police inaction in the
Nithari killings. Unhappy with the slow progress in the implementation of the Act, the
Supreme Court entertaining a Public Interest Litigation and has given series of
directions to various state governments regarding the implementation of the Act. In its
order dated 16.12.2013, the Supreme Court gave the following direction and threatened
the state government that the non-implementation of the Act will result in initiation of
contempt proceedings against the officers of the state governments. The relevant
portion from the said order12 may be usefully extracted below :-

Sadly, we have to notice that inspite of the concern shown not only by this Court but
also by the learned counsel appearing for the parties, little or no progress has been
made in this regard. Although the affidavits have been filed indicating that the State
11
Ibid
12
Re. Exploitation of Children in Orphanages in the State of Tamil Nadu vs. Union of India & Ors.
WRIT PETITION (CRL.) No.102 of 2007 dated 16.12.2013
Commissions have been established yet we find that such establishment is only on paper.
In many States, Chairman of the Commission has not been appointed and in some
other States even Members have not been appointed. This apart, necessary rules and
regulations have also not been framed. This, in our opinion, would be sufficient
justification for this Court to take a serious view and initiate appropriate proceedings
for contempt of court against the defaulting States and the Union Territories.

Given the lackadaisical manner in which the States and the Union Territories have
responded to the concern shown by this Court in relation to the wholly unacceptable
situation prevailing and to stamp out any further exploitation of children, it has become
necessary to re-emphasize that it is the bounden duty of the States under Articles 21,
21A, 23, 24, 45 and 51A (k) to create and maintain a protective and healthy
environment in which children who are the future of this country can bloom and
subsequently become mature and responsible citizen of this country. We have been
pained to notice the utterly callous attitude adopted by the States as well as the
Union Territories. We, therefore, have no option at this stage but to issue some further
mandatory directions to ensure that the exploitation of the children in all spheres of life
is brought to an end with utmost expedition.

We may notice at this stage that pursuant to our earlier directions Tripura, Dadar
and Nagar Haveli, Lakshwadeep, Chandigarh, Andaman and Nicobar, Pondicherry and
Daman and Diu have still not constituted State Commissions under Section 17 of the
Commission for Protection of Child Rights Act, 2005. Some of the States which has
established the State Commissions for the protection of children but have not
completely constituted the same by either not appointing a Chairperson or Members
are as under:

Andhra Pradesh : The Commission exists only on paper as no Chairman/Member has

been appointed. Chattisgarh is partially constituted as only Chairman has been
appointed and the members have not been appointed.
Gujarat : Although Chairman has been appointed yet no member or Secretary of the
Commission has been appointed.
Haryana : The situation is exactly the same as Gujarat, i.e. neither any Member nor
Secretary has been appointed although the Chairman has been selected and
appointed.

Himachal Pradesh: Only a Member Secretary has been appointed. No Chairperson or

Member has been appointed.

Kerala - Again only a Secretary has been appointed but there is no Chairperson or
Member appointed.
Tamil Nadu has appointed a Chairperson but no Member has been appointed.
Nagaland Nothing has been done, i.e. no Chairperson or Member has been
appointed.
Similarly in U.P., nothing has been done as neither the Chairperson nor any
Member has been appointed.

This inaction of the States is in the teeth of the directions issued by this Court on 3rd
January, 2013 and 7th February, 2013. We make it clear that this Court had taken
notice of the exploitation of children and the deplorable conditions of children in
 various orphanages on the basis of the letter received, way back in the year 2007.
Surely, the States and the Union Territories must realize that they have to operate
under the Constitution and have to be duty bound to act in accordance with the
provisions of the Constitution. Furthermore, each and every field which concerns the
welfare and the protection of the children is covered by relevant legislation. The three
prominent Acts have already been listed hereinabove.

Keeping in view the aforesaid attitude of the States and the Union Territories, we
direct that the Chief Secretaries of all the States to which notices have been issued in
this matter shall file a affidavit within a period of eight weeks from the date of this
order disclosing full details with regard to the implementation of the obligations
specified under the three Acts. The affidavit shall
contain all the relevant information with regard to the following :

a. Whether the State Commissions have been set up under Section 17 of the
Commissions for Protection of Child Rights Act, 2005?

b. Whether the appointment of the Chairperson and six Members has been made
indicating the names of such Chairpersons and members?

c. Whether Rules have been framed by the State Governments under the said Act?
d. Whether the said Commissions are functional and if not what are the constraints.
The appointment and the remuneration structure of the Chairperson, Members and
supports staff including Member Secretary of the State Commissions?

(e, f , g, h, i directives omitted)

It is further directed that in the unlikely event of there being a non-compliance of any
part of the directions issued by this Court, an officer of the rank of Principal Secretary
of State Government shall remain present in person in the Court to clarify the issues
with respect to the failure to implement the directions of the Court. If for any reason,
the affidavit, as directed for, is not filed by the Chief Secretary before the next date of
hearing, then also, the officer of the rank referred above shall remain present in
person to explain the reasons for the States failure to submit the affidavit.

The concerned State Governments shall also submit the required information in the
format annexed hereto as part of the affidavit to be filed by them

The Commission's Mandate is to ensure that all Laws, Policies, Programmes, and
Administrative Mechanisms are in consonance with the Child Rights perspective
as enshrined in the Constitution of India and also the UN Convention on the
Rights of the Child.
The Child is defined as a person in the 0 to 18 years age group.
The National/State Commission consists of seven members including a
Chairperson of which at least two need to be women.
The Act provides for Childrens Courts for speedy trial and also for appointment
 of special public prosecutor.
The function of the commission is to:
Examine any law or constitutional provisions to ensure that the safeguards
of the law protect child rights

Provide the central government with recommendations to improve correct the

safeguards
Inquire into child rights violations
Examine the risk factors for children affected by terrorism, communal violence,
riots, natural disasters, domestic violence, HIV/ AIDS, trafficking, maltreatment,
torture and exploitation, pornography, and prostitution and recommend
appropriate remedial measures
Look into the special care and protection of children from distress, marginalised
and disadvantaged backgrounds
Study and ensure implementations of child rights treaties
Conduct research in the field of child rights
Create awareness through various mediums
Inspect any children's home or observations homes where children have been
detained
Inspect any juveniles custodial home, or place of residence or institution for
children, under the control of the central government or any other authority, and
take up with authorities for remedial action.
Inquire into complaints and take suo motu notice of matter relating to
deprivation and violation of child rights or non implementation of laws providing
for protection and development of children or non compliance of policy
decisions, guidelines or instructions to ensure welfare of the children. It has been
clothed with the power of civil court in deciding complaints

While considering the scope of exercising power of a civil court, the Madras High
Court held that13

Though the Commission has power of the Civil Court for making an enquiry, but after any
report made by the Commission, Section 15 sets out the steps the Commission can make to
implement its report as noted already. The Commission by itself cannot direct its order to be
obeyed by any authority and that either it requires further steps to be taken by the
concerned Government or by the Court.

13
Srinivas Rajan vs The Director Of Matriculation Schools & Ors, 2011(2) CTC 776 = 2011 (8) MLJ 234
PROHIBITION OF CHILD MARRIAGE ACT 2006

Child Marriage is a euphemism for child abuse. Child marriage denies a girl of her
childhood, disrupts her education, limits her opportunities, increases her risk to be a
victim of violence jeopardizes her health and, therefore, constitutes an obstacle in a
country's development.

There are many reasons why parents consent to child marriage such as economic
necessity, male protection for their daughters, child bearing, or oppressive traditional
values and norms. The Child Marriage Restraint Act, 1929 also called as the Sarada Act
had a lot of loopholes and could not deter the child marriages.

On the day of Akshaya Tritiya also known as Akha Teej'(falls on April 24) is
considered as an auspicious day in the Hindu calendar, thousands of child marriages
takes place in Rajasthan, Madhya Pradesh, Chhattisgarh, Bihar, Jharkhand, Uttar
Pradesh and Uttarakhand, particularly in their rural belts. Though some state
governments took steps to prevent them, the same was insufficient and could not pierce
14
the deep rooted tradition . In 1992, Bhanwari Devi, a member of a group of women
called sathins, who are trained by the local government to do village-level social work
for honorarium compensation, as a part of a governmental campaign against child
marriage, attempted to stop the marriage of an one-year-old girl in rural Rajasthan.
Members of the local community retaliated first by harassing Bhanwari Devi with
threats and imposing a socio-economic boycott of her family. On September 22, 1992,
five men raped Bhanwari Devi in the presence of her husband. Bhanwari Devi faced
numerous obstacles from the police and governmental health facilities when she
attempted to seek justice. Her sufferings were the cause for the birth of a landmark
judgement in "Vishaka Vs State of Rajasthan 15. For the first time, the court evolved a
mechanism to deal with sexual harassment at workplace and the consequential
punishments

A Public Interest Litigation was filed by Forum for Fact Finding Documentation
and Advocacy (FFDA) for the strict implementation of the Child Marriage Restraint Act

14
Aarti Dhar, Prevent Child Marriages on Akshaya Tritiya, States told, The Hindu 22.4.2012
15
Vishaka vs. State of Rajasthan, 1997 (6) SCC 241
before the Surpreme Court the, regarding the pernicious practice of child marriages in
India resulted in a direction to the police and the administration in all the states to take
effective steps to implement the child marriage restraint act and to prevent child
marriages in the country. The Supreme Court has directed all collectors and
superintendents of police in the country to take steps to prevent child marriages during
festivals coming up in the next one month. The Supreme Court expressed that 'We hope
and trust that the collectors and SPs of all districts in all the states shall make an
endeavour to prevent child marriages as far as possible and preferably in cases where
mass marriages take place,'. Incidentally Solicitor-general G.E. Vahanvati informed the
Supreme Court that Prevention of Child Marriages Bill, 2004, had been introduced in
Parliament to replace the Child Marriage Restraint Act, 1929, and objections and
suggestions had been invited from the public 16.

When the case was pending, in 2005, Shakuntala Verma, a government child welfare
officer was slashed by a sword when she tried to stop a child marriage in Bhangarh
village in the tribal-dominated Dhar district in Madhya Pradesh. As she put up her
hands to protect herself, one hand was severed and the other badly injured. The
brutality of the attack had shocked the country. Madhya Pradesh's Chief Minister
Babulal Gaur caused outrage when he said after the attack on Mrs Verma that "It is not
possible to stop it (child marriage). Have we been able to end alcoholism or
untouchability? If Gandhi could not succeed in this, how can Babulal Gaur?"

This incident was brought to the knowledge of the Supreme Court by Advocate
Collin Gonsalves, a social activist and the founder of Human Rights Law Network. He
demanded an inquiry into the incident by an high court judge and suspension and
prosecution of Dhar district officials and other concerned officers, including the Chief
Minister Babulal Gaur, for having been negligent on the issue of child marriage. Finally
the government of India brought the Prohibition of Child Marriage Act (PCMA) in 2006,
and it came into effect on 1 November 2007.

It was only after the enactment of this Act, the focus was shifted from restraining the
16
Madhya Pradesh draws flak over attack on Child Marriage Activist,
The Telegraph dt 13th and 14th May 2005.
child marriage to its prevention and prohibition. The salient features of this Act are as
follows :-

child marriage" means a marriage to which either of the col1tracting parties

is a child; child" means a person who, if a male, has not completed twenty-
one years of age, and if a female, has not completed eighteen years of age;
The child marriage is a voidable one which means on attaining the
prescribed age, any of the spouse can approach the District Court and get
the marriage annulled.
If a child is kidnapped/sold/trafficked for the purpose of marriage, then
that marriage is null and void.
While passing the order of annulment, the court can also pass orders for
maintenance, residence order for the female minor, custody of children,
return of articles.
The child born out of a child marriage will be held to be legitimate.
If a male adult contracts a child marriage, he will be punished with rigorous
imprisonment which may extend to two years or with fine which may
extend to one lakh rupees or with both.
If a person performs, conducts, directs or abets any child marriage shall be
punishable with rigorous imprisonment which may extend to two years and
shall be liable to fine which may extend to one lakh rupees unless he proves
that he had reasons to believe that the marriage was not a child marriage.
The punishment for promoting/permitting/participating in the
solemnisation of a child marriage is rigorous imprisonment which may
extend to two years and a fine which may extend up to one lakh rupees.
Provided that no woman shall be punishable with imprisonment.
Any offence punishable under this Act is cognizable and non bailable.
A child marriage prohibition officer will be appointed by the State
Government who has a duty to prevent or prohibit child marriages, collect
evidences for prosecuting offenders, create awareness among the public.
A judicial magistrate can issue an injunction to restrain child marriages on
the application of the child marriage prohibition officer or suo moto on
reliable informations. An organisation or an NGO can give a complaint in
this regard.
The judicial magistrate in case of urgency can pass an interim injunction
without hearing the other side.
 For the purposes of preventing solemnisation of mass child marriages on
certain days such as Akshaya Trutiya, the District Magistrate shall be
deemed to be the Child Marriage Prohibition Officer with all powers as are
conferred on a Child Marriage Prohibition Officer by or under this Act.
The District Magistrate shall also have additional powers to stop or prevent
solemnisation of child marriages and for this purpose, he may take all
appropriate measures and use the minimum force required.
An injunction issued may be confirmed or vacated after giving notice and
hearing the party against whom the injunction was issued.
Marriage held in contravention of the injunction order is void ab-initio
Whoever knowingly disobeys such injunction shall be punishable with
imprisonment of either description for a term which may extend to two
years or with fine which may extend to one lakh rupees.Provided that no
woman shall be punishable with imprisonment.

Efforts by the governments to crack down on child marriages have met with
mixed success. In 2010, there were reports of mass child marriages from Rajasthan's
Gothera village, despite the State government's instructions that such violations would
mean reprimands for administrators. Police said they were unable to stop the marriages
because the villagers secretly organised the ceremonies two days before Akha Teej.

But there are positive examples too. Perambalur, a backward district in

Tamilnadu acts as a role model in prohibiting child marriages. In two years, around 167
child marriages were stopped by the District Magistrate Darez Ahmed and his team. The
child marriage Prohibition officer K. Pechiammal says, "As many as 91 of these girls
were below 15, some of them even as young as 13 when their marriages were about to be
solemnised. We even stopped the engagement of a seven-year-old girl who was in
second standard. Besides, a 12-year-old dropout was about to be married off to a 40-
year-old man by her own mother. That also we stopped, she said. The authorities are
still helping the girl children to pursue with their education. Several review meetings
were organised with the executive officers of temples, proprietors of marriage halls,
village administrative officers, village health nurses, and anganwadi workers. The
district collector had proudly claimed that the Intensive campaign against child
marriage had resulted in a growing awareness among the masses of the evil. 17

The District Magistrate of Perambalur was accosted by the community leaders

when he stopped the marriage of a muslim minor girl. He invoked the Act and obtained
an injunction order from judicial magistrate and stopped the child marriage. The irony
is not only the girl is a minor but the bridegroom is 36 years old. The girls father filed a
18
revision against the injunction order before the High Court of Madras. AIDWA filed
an intervening petition and contested the case. Meanwhile the girl had attained the age
of majority without giving the court an opportunity to decide as to whether the Muslim
Personal Law will prevail over the PCMA19.

Though the Act states that it is a secular law prohibiting child marriages
irrespective of religion, the vested interest are still fighting against the secular nature of
the Act. The Delhi High Court 20, Karnataka High Court 21 .

22
A full bench of the Madras High Court also held that it was a secular law and will
override other enactments being a special law on the subject.

It is manifestly clear that this Act is secular in nature which has crossed all barriers of
personal laws. Thus, irrespective of the personal laws, under this Act, child marriages are
prohibited. (Para 15)

the Hindu Marriage Act is a general law regulating the Hindu marriages. Therefore, the
Prohibition of Child Marriage Act, being a special law, will have overriding effect over the
Hindu Marriage Act to the extent of any inconsistency between these two enactments. In
view of the said settled position, undoubtedly, Section 3 of the Prohibition of Child Marriage
Act will have overriding effect over the Hindu Marriage Act. (Para 18)

17
G.Sathyamoorthi, Officials rescue 167 child brides in Perambalur district in two years, The Hindu
25.4.2013.
18
Criminal Revision Case No. 1441of 2012, Madras High Court
19
Indian Law vs. Personal Law : A muslim child marriage focuses debate, website : firstpost.com
(25.07.2012)
20
Lajja Devi) vs. State, Delhi High Court (FB), 2012 (193) DLT 619.
21
Mis. Seema Begaum vs State Of Karnataka, Karnataka High Court, w.p.no. 75889 OF 2013
dated 26 February, 2013

22
T.Sivakumar vs. The Inspector of Police, 2011 (5) Law Weekly 1 (FB) Madras High Court
 Another dimension of child marriage created a debate which was triggered by
The Hindu by its reporter Imranullah. A Govt Higher Secondary School in Melur
Taluk of Madurai District denied admissions to two married girls for Std.XI after they
discontinued their studies in Std.X and got married according to their parents pressure.
the School denied their right to education on the ground that it will set up a bad
23
precedent for other students . Then the news paper published articles and debates
which ultimately forced the school to enforce the constitutional rights of those girls. It is
a view of this author the action of the school will amount to a double jeopardy since the
victim of a child marriage who were already subjected to violence will again be
victimised by denying her right to education.24

Even after the enactment of the legislation, India still remains the capital of child
marriages. On the eve of first International Day of the Girl Child on October 11, 2012,
four UN agencies (UNICEF, UNFPA, UN Women and UN Information Centre) wrote a
letter to the Ministry of Women and Child Development, Government of India on the
issue of child marriage stating that more than 40 per cent of the world's child marriages
happen in India and in eight states of the country, more than half of young girls are
married before the age of 18," They asked the ministry to take the lead in pressing for
incremental action to fight the scourge of child marriages in the country. 25

Even as the debate regarding strictly enforcing the provisions of the Child Marriage
Restraint Act is still going, it is significant that two division benches of the Madras High
Court made observations while hearing Habeas Corpus petitions that there was need to
increase the age of consent for a girl in marriages. Though these observations are more
in the nature of an obiter dicta yet coming down from the mouth of the members of
the higher judiciary and also similar views are expressed by certain caste based
organizations in public sphere. It will be worthwhile to quote those observations from
those two judgments. In the first judgment26 it was observed as follows:
23
Mohammed Imranullah S. Government School slams its doors on married girls, The Hindu (Madurai)
edition, dt 23.6.2012.
24
Base instincts, Frontline, Volume 29, Issue 15, July28 Aug 10, 2012 (the views of the author is
quoted in this article)

25
UN Agencies urge India to end Child Marraige, NDTV dt 11.10.2012
26
R.Thiagarajan vs ) The Superintendent Of Police, HCP(MD)No.1039 of 2014, Madras High Court
(DB),dt 3 September, 2014
 For a male, age for marriage is fixed as 21 years. For a girl, it is 18 years.. When Hindu
Law prescribes 21 years as marriageable age for the male, whether it could be said that the
girl would acquire social , psychological maturity, on attaining the age of 18 years?(Paras
12 & 14)

The 2nd judgement27 also gave a unique ruling on the validity of such marriage held in
secrecy. It was observed:

A girl who attains the age of 18 may satisfy legal requirements of marriage but how far
she will be able to assume the multi tasking responsibilities of a wife, mother, home
maker and at times the sole breadwinner is something which we are unable to
fathom(Para 38)

Child marriage is a retrograde social practice whose elimination will not only
require a change in the mindset of society but also a strict legal and other schematic
intervention.

Protection Of Children from Sexual Offenses Act. 2012 (POCSO ACT):

Child sexual abuse is the most inhuman crime but the least reported crime in India.
Many reports reflect that children are often abused by persons in position of trust and
responsibility which includes fathers, brothers and other close relatives. The victim
which is a child and she / he is in no way responsible for the crime, but yet the society
afflicted with the regressive patriarchal ideas will blame only the victim of sexual abuse
for the crime.

There was no law or provision in the Indian Penal Code(IPC) which penalizes the child
sexual abuse. The definition of rape u/s 376 of IPC only acknowledged the vaginal penile
penetration and not other forms. It is often the case that the form of sexual abuse of
children differs from sexual assault or rape. The enforcement agency in some cases
booked the culprits under Sec.354 of I.P.C. for outraging the modesty of a woman which
was an archaic provision of victorian era jurisprudence. In one of the child abuse case
tried by a trial court (Tamil Nadu) it witnessed a hair splitting argument put forth by the
27
S.Balakrishnan Pandiyan & Ors. Vs. Superintendent of Police and Others 2014 (6) CTC 129 Madras
High Court (DB)
defense as to whether a 11 month old child can set to be the outraged of its modesty. In
some cases, the culprits will be booked for an offence of attempt to rape(section 375 r/w
511 of IPC). But this provision also will not directly address the crime due to
insufficient definition. It was said that in one case, the victim was taken to the paddy
field by the accused. He forcibly removed her clothes and he undressed himself. Due to
her cry for help, some villagers rescued her. But the trial court accepted the defence
plea that this would not be considered as an attempt to rape but only a preparation for
the crime which is not a punishable offence. Further an abused male child did not have
even this minimum cover of Law. It is found that the law has not only not acted as a
deterrent for the criminals but on the other hand the insensitive investigation and trial
procedures have acted as deterrence for the child victims to report the crime. Thus the
victims who were already victimised by the crime will again be victimised by the
procedures to get justice. This is what is called secondary victimisation.

28
To avoid this, the Supreme Court in Sakshi Vs. Union of India framed certain
guidelines for the sensitive examination of child victims. It held that in holding trial of
child sex abuse or rape :

(a) a screen or some such arrangements may be made where the victim or witnesses (who may
be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate
directly to the incident, should be given in writing to the President Officer of the Court who may
put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required.

These directions are in addition to those given in State of Punjab v. Gurmit Singh.(1996 SCC (2)
384)

The Delhi High Court also framed Guidelines for recording Evidence of Vulnerable
Witness in Criminal Matters to be followed by all the criminal courts in Delhi. As per
those guidelines, a child is considered as a vulnerable witness. The High Courts efforts
were inspired by the UN Model Law on Justice in Matters involving child victims and
witnesses of crime published by the UN Office on Drugs and Crime, 2009. It provides
for victim friendly procedures to be adopted at the time of trial in order to make the trial
28
See : Sakshi Vs Union Of India [2004 (5)SCC 518]
process less traumatic for them. Further Delhi was the first state in the country to
create Childrens Special Courts. Those courts will have all the facilities like waiting
room, play area with play things, pantry etc. The Courtroom arrangements were
designed in such a way that a child victim will not come into contact or be physically
confronted by the perpetrator of the offence when deposing in the court.

Though, India is a signatory to the Convention on the Rights of the Child(CRC),

adopted by the United Nations General Assembly in 1992, but it failed to follow the set
of standards prescribed therein for securing the best interests of the child especially in
its judicial processes till 2012. After a long drawn struggle, Parliament has enacted the
Protection of Children in Sexual Offences Act (POSCO Act) in 2012. Its a self-contained
comprehensive legislation interalia to provide for protection of children from offences of
sexual assault, sexual harassment and pornography with due regard for safeguarding the
interest and well being of the child at every stage of judicial process. The following are
its salient features:

The Act for the first time has introduced a gender neutral law which is applicable
to sexual offences committed against a male child also.
The Acts provision address two categories of offences namely i) Sexual
harassment which includes the act of starring or passing comments or showing
pornographic materials. (ii) Sexual assault - which would necessarily involve
some amount of physical engagement with the victim of the crime. Further the
assault can be categorised as penetrative and non penetrative.
The definition of penetrative sexual assault takes within its purview not only
penetration, by penis but also with objects, of vagina, urethra, mouth or anus of a
child.
The Act will also include oral sexual assault committed with the child.
Further making the child do such acts on any other person is equally punishable.
The Act for the first time provides for the inclusion of using a child for
pornographic purposes as an offence.
storing for commercial purposes materials which involve child pornography is
also an offence.
The Act further provides a provision similar to that of Section 376, IPC in terms
of aggravated sexual assault. An act will amount to aggravated sexual assault
 when it is committed by a person in whom the duty of care and protection of
child is reposed either by virtue of being in a position of responsibility like police
officer, doctor etc or that who is in relation to the child.
the consequences of the offence committed on the child for example in
incapacitating the child or use of deadly weapons etc will cause the act to fall in
the category of aggravated sexual assault.
The Act also has a special provision for mandatory reporting of offences. Under
section 21 of the Act anyone who fails to report or record the commission of an
offence shall be liable for imprisonment or fine or both.
The Act provides that no person shall incur any liability for giving information in
good faith
The Act also criminalizes disclosing the identity of the child victim in the media
The Act provides for situations where people may wrongly implicate others and
penalizes it with imprisonment or fine or both.
A complaint of sexual abuse can be given to the local police or the Special
Juvenile Police Unit (SJPU)
The SJPU or the Local Police shall make immediate arrangements to give the
Child Care and Protection including admitting the child into a Shelter Home or to
the nearest hospital.
The SJPU or the Local Police shall report the matter to the Child Welfare
Committee (CWC) and the Special Court within a period of 24 hours.
The CWC has to assess whether the child needs to be taken out of the custody of
his family or shared household (in case of the accused being a family member or
the atmosphere is not congenial to the needs of the child). In that case, the child
should be placed in a Childrens home or a shelter home (Rule 3 of POSCO Rules
2012).
The statement of the child shall be recorded at the residence of the child or at the
place of her / his choice as far as practicable by a woman police officer not below
rank of sub-inspector. She should not be in uniform.
The police officer making the investigation shall ensure at no point of time, the
child come in the contact in any way with the accused.
A Magistrate who records the statement of a child witness (u/s 164 of Cr.P.C)
shall record the statement as spoken to by the child. The Magistrate shall ensure
that the statement of the child is also recorded by audio video electronic
devices. The Magistrate also can seek the assistance of a special educator or an
interpreter. The statement is to be recorded in the presence of the parents of the
 child or any other person in whom the child has trust and confidence. These
rules are also equally applicable to police officers.
The child shall be medically examined by a woman doctor in the presence of her
parents or any other person in whom the child has trust and confidence
The court shall presume that the accused has committed or abetted or attempted
to commit the offence as the case may be unless the contrary is proved. The court
shall also presume the existence of culpable mental state on the part of the
accused.
A court of session can be designated for each district to be a Special Court to try
the offences under this Act. No committal procedure is warranted by the court
under this Act.
A child victim cannot be directly questioned by either the public prosecutor or by
the defence counsel. They should communicate the questions to be put to the
child to the Judge concerned who alone will put those questions to the child
Trials are to be conducted in camera in the presence of the parents of the child or
any other person in whom the child has trust and confidence.
The child can also be examined at a place other than the court by way of issuing a
commission in accordance with the provisions of the Cr.P.C.
The Special Court may permit frequent breaks for the child during the trial
The Special Court shall ensure that the child is not called repeatedly to testify in
the court
The Special Court shall not permit aggressive questioning or character
assassination of the child.
The Special Court shall record the evidence of the child within a period of 30 days
of the court taking cognizance of the offence. The trial should be completed
within a period of one year from the date of taking cognizance.
The Special Court shall ensure that the child is not exposed in any way to the
accused at time of recording of the evidence. The evidence can be recorded thro
video conferencing or by using a single visibility mirror or curtains or any other
device.
The child victim may be granted interim compensation by the court after the
filing of the FIR and recommend final compensation after the trial is over
irrespective of whether the case ends in acquittal or conviction or the accused is
not traced or identified (Rule 7 of POSCO Rules).
The compensation awarded by the Special Court is to be paid by the State
Government with 30 days of receipt of such order (Rule 7 (5 & 6)
The CWC may provide a support person to render assistance to the child through
 the process of investigation and trial with the consent of the childs parents (Rule
4 (7)
No reports in any media shall disclose the identity of a child including his name,
address, photograph, family details, school, neighbourhood or any other
particulars which may lead to disclosure of identity of the child
The Central Govt. and every State Government shall take measures to ensure that
the provisions of the Act are given will publicity at regular intervals The officers
concerned in the Act should be imparted periodic training in this regard.
The National / State Commission for protection of Child Rights constituted under
the commissions for Protection of Child Rights Act, 2005 shall monitor the
implementation of the Act.

The long awaited legislation is now in place. The Supreme Court while entertaining a
Public Interest Litigation and has given series of directions to various state governments
regarding the implementation of the Act. In its order dated 16.12.2013, the Supreme
Court gave the following direction and threatened the state government that the non-
implementation of the Act will result in initiation of contempt proceedings against the
officers of the state governments. The relevant portion from the said order 29 may be
usefully extracted below :-

The Chief Secretaries of the States in their affidavits to also indicate whether Special Courts
have been designated under Section 28 of the Protection of Children from Sexual Offences
Act, 2012?

Whether Special Public Prosecutors have been appointed under Section 32 of the said Act?

Unless the act is properly enforced and applied by the agencies involved in criminal
Justice system, it wont be of any use. In a case involving a large scale child abuse in a
government school, the High Court of Madras gave a series of directions including
directions regarding child witness protection 30. Recently in a district court, a child
victim complained of various violations of law committed by the presiding judge himself

29
Re. Exploitation of Children in Orphanages in the State of Tamil Nadu vs. Union of India & Ors.
WRIT PETITION (CRL.) No.102 of 2007 dated 16.12.2013

30
M.Veersamy vs. State of Tamil Nadu rep.by its Home Secretary & ors., 2012(3) CTC 641
during the trial31. She was examined the child victim in open court in the presence of 50
onlookers. The Judge remained as a mute spectator to the aggressive cross-examination
by the defense counsel. The childs mother or anybody related to her were not allowed
inside the court room, whereas the wife and the relatives of the accused were allowed
inside. At a stretch the child victim was examined in the court for three hours. When
her character was questioned, she cried in the court. Nobody came to her help. While
narrating her experience to this author she stated, even when the accused abused me, I
didnt get dejected. I was emotionally strong enough to prosecute him for safeguarding
the interest of the other children. But the pain inflicted on me during my examination
in the Court made me to think of committing suicide. After this, the author wrote a
letter to the Chief Justice of the Madras High Court in this regard. The High Court
ordered the case to be transferred to another court and also an internal enquiry was
ordered to be conducted against the judge concerned.

The POSCO Act 2012 is only prospective. The abuses committed before the enactment
will not be covered by the Act. Therefore AIDWA filed public interest litigation 32 before
the Madurai Bench of Madras High Court for creating comprehensive guidelines with
regard to trial procedures for the cases of child sexual abuse occurred before the
enactment.

2. WOMEN

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005(PWDV Act):

Sydney Brandon, an English writer observed that in the west, statistically it is

safer to be on the streets, after dark with a stranger than at home with ones family for
its here that accident, murder and violence are likely to occur. In India, domestic
violence is rampant almost in every family and the same will be condoned in the name
of culture. Further violence against women will be hidden behind the walls of the home.
In a report published by Tata Institute of Social Sciences it is observed that women in
general, the victims of violence, the families, the community, the courts, the police and
31
Case No. ________________
32
W.P.No.____________
 33
the Government all seem to keep it hidden . In 1970-80, many young women were
burnt alive for not bringing sufficient dowry (money or valuables given to the bride
groom by the brides family). Due to the sustained efforts of womens movements and
democratic forces , the Indian Penal Code was amended to include sections 498 A and
304 B. which dealt with punishments for cruelty and dowry deaths with presumption
clauses. Though these penal provisions addressed one aspect of the domestic violence
namely detection and punishments, there was nothing for the victims support and
treatment.

The Convention on the Elimination of All forms of Discrimination against Women

1973 (CEDAW) which defines violence against women in terms of womens experience.
But it took India 20 years to ratify CEDAW and thereafter 12 years to enact The
Protection of Women from Domestic Violence Act, 2005. This Act stands on a different
footing addressing the aspects of restoration, rehabilitation and assistance to the
victims.

It was said of the PWDV Act as follows 34 :

The demand for a law on domestic violence was made this context of continuing violence.
While Section 498A was confined to protecting married women, the womens movement
strongly believed that there was a need to extend the ambit of the law to other categories of
women in the shared household such as mothers, sisters and women in relationships in the
nature of marriage, to name a few. The success of this campaign led to the enforcement on
October 26, 2000 of the PWDVA.

Unlike the earlier criminal laws, the PWDVA is a civil law. Its major distinguishing feature
is that it is far more democratic remedy, not requiring politics initiatives to activate it. Civil
law puts the victim at the centre and does not allow for the presumption of innocence that
automatically puts the aggressor at an advantage vis-a-vis the victim. The imbalance of
criminal laws had to be corrected and this law and has gone a long way in doing so. At the

33
Justice A.P.Shah. Domestic Violence and law, Report of colloquium on Justice for women and
empowerment through law Lawyers Collective, WRI Butterworths India 2000
34
Indira Jaising, Introduction to Ending Domestic Violence through non-violence. A Manual for PWDVA
Protection officers. Lawyers Collective Womens Rights Initiative, 2009
 same time, the criminal law has been retained, reiterating the value that society places on
outlawing violence against women.

The highlights of the PWDV Act are as follows:

definition of domestic violence covers all forms of physical, sexual, verbal,

emotional and economic abuse that can harm, cause injury to, and endanger the
health, safety, life, limb or well-being either mental or physical of the aggrieved
person.
A wife, daughter, mother, sister, child (male or female), widowed relative, in fact,
any woman residing in the household who is related in some way with the
respondent is covered by the act.
A woman who is the sexual partner of the male irrespective of whether she is legal
wife or not (includes live-in relationships as well) can give a complaint
Complaint can be given against any male, adult person who is, or has been, in a
domestic relationship with the aggrieved person. A complaint can also be filed
against relatives of the husband or the male partner namely respondents mother,
sister and other relatives.
A third party who has a reason to believe that a domestic violence was committed
or is being committed can also lodge a complaint. No criminal, civil or any other
liability lies on the informer, if the complaint is lodged in good faith.
A magistrate can grant residence order so that the aggrieved women can not be
thrown out of her marital abode. In suitable cases, she will be provided a separate
place to dwell.
A Magistrate is empowered to issue restraint order for protecting the aggrieved
person from further violence. Also magistrate can restrain the respondent from
communicating with the aggrieved person by personal, oral, written, electronic
or telephonic contact.
A magistrate can impose monthly payments of maintenance. The respondent can
also be ordered to meet the expenses incurred and losses suffered by the
aggrieved person as a result of domestic violence. It can also cover loss of
earnings, medical expenses, loss or damage to property.
A magistrate can make the respondent pay compensation and damages for
injuries including mental torture and emotional distress caused by domestic
violence. If the order of the court is violated, the respondent is liable to be
imprisoned up to one-year and/or a fine up to Rs. 20,000/-
 A magistrate can also pass a temporary order with regard to custody of the
children of the aggrieved person.
A magistrate will have to commence the proceedings within 3 days of the
complaint being filed in the court and dispose off the case within a period of sixty
days of the first hearing.
The Act provides for the appointment of Protection officers who will assist the
aggrieved person at each stage of the case. She has to prepare a Domestic
Incident Report and initiate the proceedings in court. As per law she has to take
care of the interest of the aggrieved person alone
The Act provides for Service Providers who will also assist the Aggrieved Person
to invoke the Act and conduct the case.
The Protection officers and service providers should assist the aggrieved persons
in all manner like getting her medical treatment, legal support, accommodation
in short stay homes and other assistance if needed.
The provisions of the Act can be invoked in any other matrimonial proceedings
pending in civil courts.
A Magistrate can direct the parties for a counselling to a professional counsellor.
the counsellors should conduct the counselling bearing in mind that the
counselling shall be in nature of getting an assurance that the incident of
domestic violence shall not get repeated. The party resisting an order shall not be
allowed to plead any counter justification for the alleged act of domestic violence.

It is rather unfortunate that even after 10 years after the Act is come into force, many
states are still lagging behind in implementing the Protection of Women from Domestic
Violence Act, 2005, by not appointing sufficient protection officers and by not providing
adequate budgetary support, and are also maintaining poor court records thus making
the collection of data difficult 35

The working of the Act over the last decade has brought in many criticisms from
several quarters and already voices are raised regarding the so called misuse of the Act.
On this issue, it is worthwhile to quote the observations made by the Lawyers
Collective36:

35
Effective implementation of Domestic Violence Act demanded, The Times of India, Jaipur edition dt.
27.10.2009
36
Indira Jaising, Inroduction to Handbook on Law of Domestic Violence, Lawyers Collective, 2009
 As a last word, it must be said that in recent times there has emerged an increasing trend of
blaming women for misusing the law. To begin with, those who argue along these lines do
not define misuse and what it means. Hence there is no way of demonstrating the so-called
misuse. Secondly, for every woman facing violence and approaching the court for relief, there
are many who do not approach the courts at all, clearly indicating that the phenomenon will
continues to be invisible.
Again, when it comes to the civil law, there is a judge between the woman and the relief she
seeks and no order can be passed without judicial application of mind. To insist that the law
will be misused despite the intervention of a judge is to show scant respect for the judiciary.
Criminal law can be activated by the police and the cry of misuse if any, must be directed
against the police. However, it appears that those who claim misuse consider any arrest as
misusing the law.
The cry of misuse is intended to deter women from using the law and make it a dead letter, as
dead as the women who do not use the law. The sooner we relalise that any form of violence is
a violation of human rights, the sooner we will give up the cry of misuse. The family must be
reconstituted on the basis of non-violence if it is to serve its social function and we hope that

this Handbook in young hands will help to do so.

Though it is too early to make a complete assessment of the working of the law, yet
there are some preliminary reports are available about not only the working of the
law but also the trends which require highlighting under the law. The Lawyers
Collective made an Evaluation Report in the year 2007 on the working of the law
and the evaluations made though are several years old yet are valid till date The
2007 report 37made the following observations :-

.....the manner in which the law has been operationalized does indicate the need for
multiple agencies to assist this woman in distress and to assist the courts in the
discharge of their function. .......As is to be expected, highly publicized cases have led to
awareness of the law to significant manners........It is evident that women are using the
PWDVA rather than Section 498 A as it provided them direct access to the Court rather
than being dependent of the Police. It is also evident that the law is providing them
with multiple reliefs under one roof and in that sense it has functioned as a single
window clearance for them, resulting in a decline in the levels of the court related
harassment and trauma.

37
Staying Alive, First Monitoring & Evaluation Report 2007 on the PWDV Act, 2005, Lawyers Collective,
Womens Rights Initiative 2007
 Other trends that require to be highlighted are:-
Delays have been reduced due to the availability of a separate track for service of notice
and the time lines stipulated in the Act for the disposal of cases. The provision for
interim relief in the law has meant that many women are approaching the courts for
interim relief and getting it.
Unfortunately, the right to reside in the shared household has been severely limited due
to the ruling in Batra v Batra (SR Batra v. Taruna Batra, 2007 (3) SCC 169) Even in
cases, where it is being granted, it is being given in the form of alternative
accommodation, rather than to the shared household.
Maintenance is the one order being granted liberally. This could be because it as existed
to Section 125 of the CrPC for more than a century.
Married women continue to be the most frequent users of the law, rather than other
categories such as daughters, sisters or mothers.
The number of cases filed in different States varies widely. We are unable to arrive at
any explanation without adequate data for the reasons, at this point.
A common reason for denying reliefs appears to be on the ground that there are
pending proceedings under other laws such as proceedings under Section 498A, civil
suits on property disputes, custody proceedings under different personal laws. This
reason is being given despite the stipulation of the law, in Section 26, that application
for reliefs can be filed in pending proceedings that affect the rights of the aggrieved
woman.
A particularly disturbing case has been observed in Rajasthan in which, an appeal court
recorded a finding of fact against a woman which was very damaging to her, without any
evidence being led in the Magisrate s courts This raises serious questions of denial of
the right to hearing to the woman. The decision is under challenge by the women in the
High Court hence no comment can be made at this stage.
There appears to be divergent practices adopted in different states in interpreting the
provisions of the law.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013

Sexual Harassment was all along invisible and the victim suffered in silence. In 1993, in
the State of Rajasthan, Bhanwari Devi in her effort to stop a child marriage, gang raped
by the five upper caste men in the presence of her husband. The Government who
assigned her such duty did not back her. She had to face many obstacles in the legal
process and Osterisation from the society. Vishaka, a non-governmental organization
filed a writ petition 38 in the Supreme Court of India highlighting the sexual harassment
committed on in their work place and the absence of any mechanism to address the
issue. The Supreme Court pronounced its land mark judgment providing certain
guidelines for evolving complaint mechanism in the work place thereby enabling the
aggrieved woman to give a complaint. These guidelines are applicable to Government
departments including courts, public and private sector establishments. Women of the
country have come out of their shell and are attempting to utilise these provisions.

Further even after several directions were given by the Supreme Court, many state
governments and union territories have not carried out the necessary amendment to the
service rules as well as to the Industrial Employment (standing orders) Act. Therefore
the Supreme Court while disposing of the petitions in Medha Kotwal Leles case gave
necessary directions vide final order dated 19.10.2012 ( 39
)

Even during the pendency of these proceedings, the Parliament did not think it fit to
bring a comprehensive legislation dealing with sexual harassment at workplace. It was
only after 10 years after the Vishakas case a bill was introduced in the Parliament,
Protection of Women against Sexual Harassment at Workplace Bill, 2007. This fact
was noted by the Supreme Court as if it was a measure of approval to the dicta laid
down by it ( ). 40

However the Supreme Court was not aware of the fact that already it had in the
Medha Kotwal Lele case had dispensed with the two tier procedure and made the
Vishaka Complaint Committee as a substitute for the disciplinary authority and its

38
Vishaka vs.State of Rajasthan, 1997 (6) SCC 241
39
Medha Kotwal Lele and others v. Union of India and others, 2013 (1) SCC 297
40
D.S. Grewal v. Vimmi Joshi, 2009 (2) SCC 210
report as a final enquiry report. Without reference to that interim direction in Para 22
in D.S.Grewals case, the Supreme Court made the following observation 41

Before, however, a disciplinary proceeding is initiated in a case of this nature, a prima

facie finding has to be arrived at as regards the role of the delinquent.

Even the 2007 bill referred to by the Supreme Court was not proceeded with and after
5 years another bill was introduced in the Parliament was introduced in the Lok Sabha
known as The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Bill, 2012 and it was passed by on 3.9.2012. The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was finally
given assent by the President of India on 22.4.2013. The Sexual Harassment at The
Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 has been
notified by the Minsitry of WCD. The legislation has in force from December 9, 2013
vide notification issued by the Ministry of women and Child Development, Govt. of
India (42).

The Central government has notified the rules in terms of the Act. However
notwithstanding the coming into force of the Act and the Rules, the Supreme Court in
the light of its own order gave directions to it and to all other courts to frame
regulations for The Gender Sensitisation & Sexual Harassment of Women
(Prevention, Prohibition and Redressal) Regulations( 43).

One of the prayers in the writ petition is for issuance of a mandamus to the respondent
No.4 and all the High Courts and subordinate courts to draft and notify its rules for
prevention of sexual harassment in court premises, inter alia, providing for permanent
internal committees with effective punishment powers of the delinquent, for providing safe
working environment for women and matters ancillary thereto. The said prayer is, in fact,

41
Ibid
42
O. 3606(E)- In exercise of the powers conferred by sub-section(3) of section 1 of the Sexual
Harassment of Women at Workplace (Prohibition, Prevention & Redressal Act, 2013 (14 of 2013), the
Central Government hereby appoints the 9th of December, 2013 as the date on which the provisions of
the said Act shall come into force.

43
Binu Tamta & Another v. High Court of Delhi , W.P.(Civil) 162 of 2013 dated 17/7/2013
 covered by the directions given herein-above and may, therefore, be followed in its essence
and spirit by all the courts concerned

In the light of these directions the Supreme Court had framed regulations called as
The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of
India (Prevention, Prohibition and Redressal) Regulations, 2013 and has notified a
committee consisting of 10 members ( 44). Some of the High Courts have also framed
similar rules. The power to frame such regulations were derived from the various
directions issued by the Supreme Court in the cases relating to Vishaka, Medha Kotwal
Lele and Binu Tamta cases. As pointed out in Vishakas case, these guidelines were
framed in terms of powers vested under Article 141 of the Constitution and it will cease
to have any effect after suitable legislation is enacted by the Parliament. In that
judgment it was observed as follows:

The SHW Act borrowed the definition of the term Sexual Harassment from Vishaka.
It mandates all the employers to constitute an Internal Complaints Committee (ICC)
and required that it should have atleast 50% membership of women. Contrary to the
earlier direction of the Supreme Court, the SHWAct put in place two tier mechanism for
making enquiries into complaints. When the ICC arrives at a conclusion on the
allegation made against a respondent it can recommend to the employer to take action
against the person concerned in terms of service rules(in such an enquiry the employer
will nominate its own enquiry office who need not be a female). SHWAct also provides
for settlement procedure, Appeal to a Court/Tribunal against the decision of ICC. It
provides for prosecuting the person concerned. In case of malicious intent of a
complainant retributory action is contemplated against a complainant.

The highlights of the Act are given below.

Sexual harassment means an unwelcome sexual gesture or behavior whether

directly or indirectly namely Sexually colored remarks, Physical contact and
advances, Showing pornography, A demand or request for sexual favors, Any
44
Supreme Court of India Office Order No.277/2013 in reference no. F 27/2007-SCA(I) dated
November 26, 2013
 other unwelcome physical, verbal/non-verbal conduct being sexual in nature.
The definition of aggrieved woman, who will get protection under the Act is
extremely wide to cover all women, irrespective of her age or employment status,
whether in the organised or unorganised sectors, public or private and covers
clients, customers and domestic workers as well.
While the workplace in the Vishaka guidelines is confined to the traditional
office set-up where there is a clear employer-employee relationship. But the Act
goes much further to include organisations, department, office, branch unit etc.
in the public and private sector, organized and unorganized, hospitals, nursing
homes, educational institutions, sports institutes, stadiums, sports complex and
any place visited by the employee during the course of employment including the
transportation.
The Complaints Committees have the powers of civil courts for gathering
evidence.
The Act provides for the Constitution of Internal Complaints Committee and
Local Complaints Committee to receive and enquire the complaints of sexual
harassment from woman.
Every employer of a work place shall constitute an internal complaints committee
at all administrative units where the work force is more than 10 persons.
The Internal Complaints Committee shall consist of a senior level employee as
the Presiding Officer, not less than two members among the employees
preferably committed to the cause of women, one member among non-
governmental organizations or a person familiar with the issue relating to sexual
harassment.
The State Government may notify a District Magistrate as a District Officer for
every district.
Every such District Officer shall constitute a Local Complaints Committee where
the Internal Complaints committee has not been constituted due to having less
than 10 workers or if the complaint is against the employer himself.
The local complaints committee shall consist of a chair person to be nominated
among the eminent women in the field of social work and committed to the cause
of women; one member amongst women working in block, taluka or ward or
municipality and two members of whom atleast one shall be a woman amongst
the non-governmental organization or a person familiar with the issues relating
to sexual harassment.
 The District Officer shall designate a Nodal Officer in every block to receive
complaints and forward them to the local complaints committee.
The aggrieved person shall give the complaint within 3 months from the date of
incident. If there is any reasonable delay, it may be condoned by the committee.
Enquiry will be conducted by the committee by following the principles of natural
justice.
The Complaints Committees are required to provide for conciliation before
initiating an inquiry, if requested by the complainant.
Enquiry shall be completed within 90 days.
If prima facie case exists, the committee may forward the complaint to the police
within a period of 7 days for registering the case u/s 509 of IPC and any other
relevant provisions.
During the pendency of an enquiry on a written request made by the aggrieved
woman, the committee may recommend to the employer transfer of either of the
parties to any other work place or grant leave to the aggrieved person or grant
any other reliefs.
On completion of the enquiry, within 10 days, the report is to be sent to the
Employer / District Officer and the copy of the order should be made available to
the parties. If the allegations are proved, the committee may recommend any
action to be taken.
The employer / District Officer shall act upon the recommendation within 60
days of receipt of the report.
If the complaint is proved to be malicious action may be recommended against
the person who gave the complaint. But separate enquiry is to be conducted for
proving such malicious intent.
If any witness has given false evidence or produced forged documents in the
enquiry, action may be taken against such witness.
A complaint can be given even by the friend or relative or any person (with the
written consent of the aggrieved person) on her behalf.
During the pendency of the enquiry, on the written request of the aggrieved
woman, the committee may recommend to the employer to restrain the
respondent to receive any work performance reporting from the aggrieved person
or writing her confidential report or in case of an educational institution from
supervising any academic activity of the aggrieved woman.
Punishments will be according to the service rules of the respondent.
When there is no service rules, the punishments will include a written apology,
 warning, reprimand or censure, withholding of promotions, withholding of pay
raise or increments, termination from service or undergoing a counseling session
or carrying out community service.
The Rules also provides for the manner to organize workshops, training for
committee members.
If the allegations are proved, apart from taking actions, an amount may be
deducted from the salary of the respondent and will be paid to the aggrieved
woman.
The employer is duty bound to create a safe working environment and
disseminate the provisions of the Act to all the employees.
The employer should help the aggrieved person to give a complaint in IPC against
the perpetrator even when the perpetrator is not an employee.
Annual report should be prepared by the committee and submitted to the
employer / District Officer.
The employer should co-operate with the committee in all possible ways for the
conduct of the enquiry.
The State Government should monitor the implementation of the Act and maintain
data on the number of cases filed and disposed of.

Though the Act has become a ground reality, its implementation is yet to be seen. In
many states, the internal committees are still not constituted. The appointment of a
member of an NGO is an area still not free from controversy.

3. DALITS:

The Constitution of India under Article 17 prohibits Untouchability and it reads as

follows :

Abolition of untouchability : Untouchability is abolished and its practice in any form

is forbidden. The enforcement of any disability arising out of Untouchability shall be
offence punishable in accordance with law

Even before this clause was introduced into the constitution thereby giving a
constitutional protection to the scheduled castes people thereby empowering the
parliament to make laws to abolish untouchability in any form, many state legislatures
have enacted laws dealing with untouchability. It was after the constitution came into
force the parliament enacted the Protection of Civil Rights Act, 1955 (for short PCR Act).

Article 17 of Indian Constitution seeks to abolish 'untouchability' and to forbid all

such practices. It is basically a "statement of principle" that needs to be made
operational with the ostensible objective to remove humiliation and multifaceted
harassments meted out to the Dalits and to ensure their fundamental and socio-
economic, political, and cultural rights. This is to free Indian society from blind and
irrational adherence to traditional beliefs and to establish a bias free society. For that,
Untouchability (Offences) Act 1955 was enacted. However, lacunae and loopholes
impelled the government to project a major overhaul of this legal instrument. From
1976 onwards the Act was revamped as the Protection of Civil Rights Act.

Despite various measures adopted to improve the socio-economic conditions of the

SCs and STs, they remain vulnerable and are subject to various offences, indignities and
humiliations and harassment. When they assert their rights and against the practice of
Untouchability against them the vested interest try to cow them down and terrorize
them. Atrocities against the SCs and STs still continued. The normal provisions of the
existing laws like, the Protection of Civil Rights Act 1955 and Indian Penal Code have
been found inadequate to check these atrocities continuing the gross indignities and
offences against Scheduled Castes and Tribes. Recognizing these, the Parliament passed
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

The objects and reasons behind the enactment were as follows :

Despite various measures to improve the socio-economic conditions of the

Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are
denied number of civil rights. They are subjected to various offences, indignities,
humliations and harassment. They have, in several brutal incidents, been
deprived of their life and property. Serious crimes are committed against them
for various historical, social and economic reasons.

............... When they assert their rights and resist practices of untouchability
against them or demand statutory minimum wages or refuse to do any bonded
and forced labour, the vested interests try to cow them down and terrorise them.
When the Scheduled Castes and the Scheduled Tribes try to preserve their self-
 respect or honour of their women, they become irritants for the dominant and the
mighty. Occupation and cultivation of even the government allotted land by the
Scheduled Castes and Scheduled Tribes is resented and more often these people
become victims of attacks by the vested interests. Of late, there has been an
increase in the disturbing trend of commission of certain atrocities like making
the Scheduled Castes persons eat inedible sub-stances like human excreta. and
attacks on and mass killings of helpless Scheduled Castes and Schedules Tribes
and rape of women belonging to the Scheduled Castes and the Schedules
Tribes.................... A special legislation to check and deter crimes against them
committed by non-Schedules Castes and non-Schedules Tribes has, therefore,
become necessary

The Supreme Court while dealing with the vires of the 1989 Act referred to the
objects and reasons behind the enactment and rejected the contention that the 1989 Act
was ultra vires of Article 14 of the Constitution. It will be useful to refer to the relevant
passage found in the judgment45 which is as follows :-

The above statement graphically describes the social conditions which motivated
the said legislation. It is pointed out in the above Statement of Objects and
Reasons that when members of the Schedules Castes and Schedules Tribes assert
their rights and demand statutory protection, vested interests try to cow them
down and terrorise them. In these circumstances, if anticipatory bail is not made
available to persons who commit such offences, such a denial cannot be
considered as unreasonable or violative of Article 14, as these offences form a
distinct class by themselves and cannot be compared with other offences

The Supreme Court subsequently went 46 into the scope of the 1989 Act and considered
them as part of the constitutional scheme of ameliorating the plight of the scheduled
caste people. It will be useful to quote the following passages from the said judgment:
Neither the Constitution nor the Act defined 'Untouchability'. Reasons are

45
State Of M.P. & Anr vs Ram Krishna Balothia & Anr, 1995 (3) SCC 221

46
State of Karnataka Vs Appa Balu Ingale & Others , 1995 Supp (4) SCC 469
obvious. It is not capable of precise definition. It encompasses
acts/practices committed against Dalits in diverse forms. Mahatama
Gandhiji in his 'My philosophy of Life' edited by A.T. Hingorani 1961 Edn. at
p. 146, stated that "untouchability means pollution by the touch of certain
person by reason of their birth in a particular state of family. It is a
phenomenon peculiar to Hinduism and has got no warrant in reasons or
sastras". According to Dr. Ambedkar, "the untouchability is the notion of
defilement, pollution, contamination and the ways and means of getting rid
of that defilement. It is a permanent hereditary stain which nothing can
cleanse". The Parliamentary Committee on Untouchability headed by L.
Elayaperumal in their 1969 report stated that 'untouchability' is a basic and
unique feature and inseparably linked up with the caste system and social
set up based upon it. It does not require much research to realise that the
phenomenon of untouchability in this country is fundamentally of a
religious or political origin. Untouchability is not a separate institution by
itself, it is a corollary of the institution of the caste system of Hindu Society.
It is an attitude on the part of a whole group of people. It is a spirit of social
aggression that underlies this attitude.
..Untouchability and birth as a scheduled caste are thus
intertwine root causes. Untouchability, therefore, is founded upon
prejudicial hatred towards Dalits as in independent institution. It is an
attitude to regard Dalits as pollutants, inferiors and out-castes. It is not
founded on mense rea. The practice of untouchability in any form is,
therefore, a crime against the Constitution. The Act also protects civil rights
of Dalits. The abolition of untouchability is the arch of the Constitution to
make its preamble meaningful and to integrate the Dalits in the national
main-stream.

When the mandate of Article 17 was being breached with impunity, and
commission of atrocities on Dalits and Tribes continued unabated, to
stamp out the evil, the Parliament stepped in and made Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 with stringent
provisions to eradicate those offences with speedy trial. Relief and
 rehabilitation of the victims of such offence and related matters.

Justice K Ramaswamy, former Judge of the Supreme Court in his biographical

sketch 47 wrote as follows :

Untouchability is not a separate issue but an institution in itself. It is a

corollary of the institution of the caste system. It is one of attitude on the
part of the dominant group of people. It is a spirit of social aggression that
emerges from untouchability as an integral part of casteism(p.198)

The abolition of untouchability as the arch of the Constitution is to

integrate Dalits in the national mainstream. The disabilities to which Dalits
are subjected have been outlawed and denial of opportunities and facilities
available to the general public offends equality guaranteed by Articles 14,
15, 16 etc. of the Constitution which furnish historical evidence of sociology
that Dalits pre-existed disabilities. The Constitution charges the State with
twin duties of preventing imposition of disabilities and restrictions on
Dalits as also improve their quality of life, socially, economically and
culturally, by meaningful means as guaranteed by Article 21 of the
Constitution. The practice of untouchability and imposition of disabilities
or preventing them from exercising constitutional or legal rights are
offences under the Civil Rights (Protection) Act and Prevention of
Atrocities Act. Therefore, enforcement of any disability is a crime and the
Constitution and the Acts provide for punishment to the wrongdoer. By
custom, usage, practice directly or indirectly if any one recognizes or
encourages atrocity, or imposes any disability, restriction, prohibition on
the exercise of their rights in any form, it is void, being opposed to
constitutional policy. Even a contract or a covenant or a private transaction
tending to recognize, encourage or effectuate untouchability in any form is
void ab initio, without any proof of mens rea, the offence under the Act is
complete and stands proved (p.199)

Intellectual gymnastics an anthropological semantics bear no relevance to

47
Justice K Ramaswamy, Ceaseless and Relentless Journey (Eastern Book Company 2008)
 these segments. They are the victims and suffer from the pangs of casteism
and intellectual flights on fine distinction between race and caste, whether
well intended or otherwise, are of little meaning to these deprived /
discriminated citizens among we the people of india, i.e. Bharat. They
denounce violation of their basic human rights. Anthropologists miss the
crux of the matter, namely intolerance, blatant and flagrant discrimination
due to caste as a fact of life which needs eradication, provides rights and
entitlements to the suppressed to retrieve, them from dehumanism and
make their lives meaningful socially, culturally, educationally, and
economically so that walls of separation erected between different castes
are broken, dignity of the individual ensured, an atmosphere of fraternity
created among all groups of We, the people of India and unity and
national integration brought about. (p.201)
The philosophy and purpose behind Article 17 is to establish a new social
order, namely equality of status and dignity of person, secured to Dalits and
Adivasis on a par with other Indians. Where discrimination, restrictions or
prohibitions on grounds of caste are absent and opportunities and facilities
are available to them by affirmative action it enables them social, economic,
educational and cultural advancement. A sense of being a participant in the
mainstream of national life is the thrust and spirit which Article 17 of the
Constitution has galvanized to that goal(p.202).
The crimes committed against the scheduled caste people is increasing year by year.
The statistics given by the National Crime Bureau for the year 2010 in respect of the
leading states in India of the total crimes committed against the scheduled caste people
were as follows :

Uttar Pradesh :6272

Rajasthan :4979
Andhra Pradesh :4321
Bihar :3516
Madhya Pradesh :3374
Karnataka :2505
Orissa :1710
Tamil Nadu :1631
Maharashtra :1132
 The Honble Supreme Court cautioned about the failure in prosecuting the offenders
and directed the Police authorities to take stern action in respect of the offences
committed against the scheduled caste people in its judgment 48. It will be useful to
extract the following passage:-

The caste system is a curse on the nation and the sooner it is destroyed the
better. In fact, it is dividing the nation at a time when we have to be united
to face the challenges before the nation unitedly. Hence, inter- caste
marriages are in fact in the national interest as they will result in destroying
the caste system. However, disturbing news are coming from several parts
of the country that young men and women who undergo inter- caste
marriage, are threatened with violence, or violence is actually committed
on them. In our opinion, such acts of violence or threats or harassment are
wholly illegal and those who commit them must be severely punished. This
is a free and democratic country, and once a person becomes a major he or
she can marry whosoever he/she likes. If the parents of the boy or girl do
not approve of such inter-caste or inter-religious marriage the maximum
they can do is that they can cut off social relations with the son or the
daughter, but they cannot give threats or commit or instigate acts of
violence and cannot harass the person who undergoes such inter-caste or
inter- religious marriage. We, therefore, direct that the
administration/police authorities throughout the country will see to it that
if any boy or girl who is a major undergoes inter-caste or inter-religious
marriage with a woman or man who is a major, the couple are not harassed
by any one nor subjected to threats or acts of violence, and anyone who
gives such threats or harasses or commits acts of violence either himself or
at his instigation, is taken to task by instituting criminal proceedings by the
police against such persons and further stern action is taken against such
persons as provided by law.

48
Arumugam Servai vs State Of T.Nadu, (2011) 6 SCC 405.
 Again it will be useful to quote from the judgment49 of Justice K Ramaswamy:

Judiciary acts as a bastion of the freedom and of the rights of the people.
Jawaharlal Nehru, the Architect of Modern India as early as in 1944 stated
that the spirit of the age is in favour of equality though the practice denies it
almost everywhere, yet the spirit of the age triumphs. The judge must be at
one with the spirit of his/her times. Power of judicial review, a constituent
power has, therefore, been conferred upon the judiciary which constitutes
one of the most important and potent weapons to protect the citizens against
violation of social, legal or constitutional rights. The judges are participants
in the living stream of national life, steering the law between the dangers of
rigidity on the one hand and formlessness on the other hand in the seamless
web of life. The great tides and currents which engulf the rest of the men do
not turn aside in their course and pass the judges idly bye. Law should
subserve social purpose. Judge must be a jurist endowing with the legislator's
wisdom, historian's search for truth, prophet's vision, capacity to respond to
the needs of the present, resilience to cope with the demands of the future
and to decide objectively disengaging himself/herself from every personal
influence or predilections. Therefore, the Judges would adopt purposive
interpretation of the dynamic concepts of the Constitution and the Act with
its interpretative armoury to articulate the felt necessities of the time. The
Judge must also bear in mind that social legislation is not a document for
fastidious dialects but means of ordering in the life of the people. To construe
law one must enter into its spirit, its setting and history. Law should be
capable of expanding freedoms of the people and the legal order can, weighed
with utmost equal care, be made to provide the underpinning of the highly
inequitable social order. The power of judicial review must, therefore, be
exercised with insight into social values to supplement the changing social
needs. The existing social inequalities or imbalances are to be removed and
social order readjusted through rule of law, lest the force of violent cult gain
ugly triumph. Judges are summoned to the duty of shaping the progress of

49
State of Karnataka Vs Appa Balu Ingale, 1995 Supp (4) SCC 469
the law to consolidate society and grant access to the Dalits and Tribes to
public means or places dedicated to public use or places of amenities open to
public etc. The law which is the resultant product is not found but made.
Public policy of law, as determined by new conditions, would enable the
courts to recast the changing conceptions of social values of yester years
yielding place to the changed conditions and environment to the common
good. The courts are to search for light from among the social elements of
every kind that are the living forces behind the factors they deal with. By
judicial review, the glorious contents and the trite realisation in the
constitutional words of width must be made vocal and audible giving them
continuity of life, expression and force when they might otherwise be
forgotten or ignored in the heat of moment or under sway of passions of
emotion remain aroused, that the rational faculties get befogged and the
people are addicted to take immediate for eternal, the transitory for the
permanent and the ephemeral for the timeless. It is in such surging situation
the presence and consciousness and the restraining external force by judicial
review ensures stability and progress of the Society. Judiciary does not
forsake the ideals enshrined in the constitution, but make them meaningful
and make the people realise and enjoy the rights.

The Judges, therefore, should respond to the human situations to meet the
felt necessities of the time and social needs, make meaningful the right to life
and give effect to the Constitution and the will of the Legislature. This court
as the vehicle of transforming the nations life should respond to the nation's
needs and to interpret the law with pragmatism to further public welfare to
make the constitutional animations a reality. Common sense is always served
in the court's ceaseless striving as a voice of reason to maintain the blend of
change and continuity of order which is sine quo non for stability in the
process of change in a parliamentary democracy. In interpreting the Act, the
judge should be cognizant to and always keep at the back of his/her mind the
constitutional goals and the purpose of the Act and interpret the provisions of
the Act in the light thus shed to annihilate untouchability; to accord to the
Dalits and the Tribes right to equality, social integration a fruition and make
 fraternity a reality.

The thrust of Article 17 and the Act is to liberate the society from blind and
ritualistic adherence and traditional beliefs which lost all legal or moral base.
It seeks to establish new ideal for society - equality to the Dalits, at par with
general public, absence of disabilities, restrictions or prohibitions on grounds
of caste or religion, availability of opportunities and a sense of being a
participant in the main stream of national life.

Despite clear judicial pronouncements, the enforcement of the 1989 Act was tardy
and prejudiced. The experience of victims and witnesses, activists and organizations
clearly demonstrates that the implementation leaves much to be desired. Though
the Act has made a small impact in curbing atrocities against SC/ST through
deterrent punishment, remedial measures to be taken by the Authorities and also
though rare provisions place mandatory responsibility on the State Government to
take measures for the effective implementation of the Act and spelling out
illustratively some of the possible measures, its implementation has several
deficiencies. National Commission for Scheduled Castes, NHRC, and Justice
Punnaiah Commission critically examined deficiencies of the Act and has suggested
various amendments to the Act. Human Rights organizations have also highlighted
various gaps in the enforcement of the Act and Rules. Ministry of Social Justice and
Empowerment and Ministry of Home Affairs issued various advisories to State
governments to fill the gaps in the enforcement.

Taking note of the working of the Act for over 24 years and based upon the reports
of different bodies, the Parliament in order to amend the 1989 Act introduced a bill
in the Lok Sabha known as The Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Amendment Bill 2013. The objects and reasons appended to the bill
will bring out the real facts in not implementing the 1989 Act wholeheartedly and
the need for making changes in the enactment.

It reads as follows :

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 (the Act) was enacted and brought into force on the 31st January, 1990, with a
view to prevent the commission of offences of atrocities against the members of the
Scheduled Castes and Scheduled Tribes, to provide for Special Courts for the trial of
such offences and for the relief and rehabilitation of the victims of such offences.

2.Despite the deterrent provisions made in the Act, atrocities against the members
of the Scheduled Castes and Scheduled Tribes continue at a disturbing level.
Adequate justice also remains difficult for a majority of the victims and the
witnesses, as they face hurdles virtually at every stage of the legal process. The
implementation of the Act suffers due to (a) a procedural hurdles such as non-
registration of cases; (b) a procedural delays in investigation, arrests and filing of
charge-sheets; and (c) delays in trial and low conviction rate.

3. It is also observed that certain forms of atrocities, known to be occurring in

recent years, are not covered by the Act. Several offences under the Indian Penal
Code [other than those covered under section 3(2)(v)] are also committed
frequently against the members of the Scheduled Castes and Scheduled Tribes, on
the ground that the victim was a member of a Scheduled Caste and Scheduled Tribe.
It is also felt that the public accountability provisions under the Act need to be
outlined in greater detail and strengthened.

4. Therefore, it becomes necessary to make a comprehensive review of the relevant

provisions of the Act, after due consultation with the State Governments, Union
territory Administrations, concerned Central Ministries, National Commission for
the Scheduled Castes, National Commission for the Scheduled Tribes, certain Non-
Governmental Organisations and Activists

Though the bill was introduced in the Lok Sabha on 12.12.2013, it could not be
taken up for consideration by the House. Therefore after the winter session was
completed and there was no possibility of the house being summoned in the near
future, the President of India on the advice of his council of Ministers promulgated
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Amendment Ordinance, 2014. However after the national elections held in the year
2014, the BJP formed the government under the leadership of Mr.Narendra Modi.
Instead of making the ordinance into a legislation, the matter was referred to a
standing committee of Parliament for its opinion in spite of the fact that the
 ordinance itself was based upon the recommendations of several expert groups.
Further there was no difficulty of the Bill being defeated in the House as it was the
Congress Party which promulgated the earlier ordinance and also there was enough
support from other left parties. By this process the ordinance was allowed to die
due to the constitutional compulsion and it is not clear as to when a new legislation
will be brought in to pluck some of the loopholes found in the 1989 Act.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 1989.

In the light of the legislative developments, it is necessary to analyse the salient

provisions of the 1989 Act:

Creation of new types of offences not in the Indian Penal Code (IPC) or in the
Protection of Civil Rights Act 1955 (PCRA).
Commission of offences only by specified persons (atrocities can be
committed only by non-SCs and non-STs on members of the SC or ST communities.
Crimes among SCs and STs or between STs and SCs do not come under the purview
of this Act).
Defines various types of atrocities against SCs/STs (Section 3(1)i to xv and 3(2)i
to vii).
Prescribes stringent punishment for such atrocities (Section 3(1)i to xv and 3(2)i
to vii).
Enhanced punishment for some offences (Section 3(2)i to vii, 5).
Enhanced minimum punishment for public servants (Section 3(2)vii).
Punishment for neglect of duties by a public servant(Section 4).
Attachment and forfeiture of property (Section 7).
Externment of potential offenders (Section 10(1), 10(3), 10(3)).
Creation of Special Courts (Section 14).
Appointment of Special Public Prosecutors (Section 15).
Empowers the government to impose collective fines (Section 16).
Cancellation of arms licences in the areas identified where an atrocity may take
place or has taken place (Rule 3iii) and seize all illegal fire arms (Rule 3iv).
Grant arms licences to SCs and STs (Rule 3v).
Denial of anticipatory bail (Section 18).
Denial of probation to convict (Section 19).
Provides compensation, relief and rehabilitation for victims of atrocities or their
legal heirs (Section 17(3), 21(2)iii, Rule 11, 12(4)).
Identification of atrocity prone areas (Section 17(1), 21(2)vii, Rule 3(1)).
 Setting up deterrents to avoid committing of atrocities on the SCs amongst others
(Rule 3i to 3xi).
Setting up a mandatory, periodic monitoring system at different levels (Section
21(2)v):
According to the Act and Rules, there are to be monthly reports (from the District
Magistrates), quarterly review meetings at the district level by the District Monitoring
and Vigilance Committee (DVMC) and half yearly reviews by a 25 member State
Monitoring and Vigilance Committee (SVMC) the chaired by the Chief Minister. The
performance of every Special Public Prosecutor (SPP) will also have to be reviewed by
the Director of Public Prosecutions (DPP) every quarter. Annual reports have to be sent
to the central government by 31 March every year.

Now that the 1989 Act has been in the statute book for over 25 years, it is necessary to
analyse the working of the Act as well as the criticism over its functioning coming from
different quarters. The following observations will highlight some of the sore points: 50

13.5% of the victims of atrocity are criminally pressured not to lodge complaint
with the police
15.75% of complaints supposedly recorded by police do not appear in official
records
240% underreporting of crime against Dalits by police, and failure to file FIR
(First Information Report)
Police desire that SC/SCT (POA) Act should be repealed because Dalits, they
assume, misuse the Act.
In 36% of cases of the relevant provisions of POA Act are not applied (i.e. a lesser
charge is applied)
39% of police at the level of deputy superintendent of police and 12% at the level
of police inspectors or sub-inspectors are ignorant about the various provisions of
the POA Act.

50
Hidden Apartheid, The Dalit Story, Anhad and NCDHR Publicatons, Jan 2004
Regarding the demand by the police for the repeal of the 1989 Act on the specious
ground that it is being misused, it will be worthwhile to quote Dr.Ambedkar on the
attitude of the police and the reason for the same. He beautifully summarize :

Ninety percent of the police force is drawn from the caste Hindus. Only a few percent is
now being recruited from the Scheduled Castes but this only to the posts of police
sepoys. There are no officers among them.

The result is that the upper grade policemen are in league with the caste Hindus. More
often than not they refuse to record the complaints of the SCs and secondly, if they do,
they probably would conduct the investigation in such a slipshod manner that ultimately
the case fails

Sakshi a human rights watch group operating in Andhra Pradesh analysed 112
judgments rendered under the Act and in its report 51, the following observations were
noted:

The atrocities dealt with in the cases that led to these judgements were
ranging from abuse of caste name to violent attacks to murder and rape. In
108 cases the accused were acquitted from the SC/ST (POA) Act charges
levelled against them. So in only four cases the accused of atrocities against
SC/ST people were effectively punished that is a score of a meagre
3.5% . ......... It is to be noted that from filing of complaint to the trial stage
large percentage of cases are lost due to various reasons. In an analysis of 100
cases .......... It is observed that 28.7% cases were not registered as FIRs. Out of
71.3% registered cases only 4.9% were investigated and charge-sheeted.

Two hypotheses come to mind if one tries to explain this disappointing

figure. First, SC/ST people launch false, or at least very weak complaints. A
short glance on the abundance of case studies of atrocities committed against

51
Justice Delivery Systems and Dalits, Analysis of Special Courts Judgments, Sakshi Human Rights
Watch, A.P, 2005
 SC/ST people, gathered by numerous local, national and international NGOs,
suffices to immediately dismiss this hypothesis as nonsensical. The second
hypothesis is that the government fails to effectively protect the SC/ST people
by implementing, in letter and in spirit, the SC/ST (POA) Act. To mention just
one inexplicable phenomenon that appeared throughout this study: how is it
possible that victims of atrocities are able to give a detailed account to the
police of what happened to them, but a couple of years later, when the case is
finally tried in one of the special SC/ST (POA) Act Courts, bluntly deny their
report, or even the entire incident? If this happens on a regular basis ........ it
does happen all too often then somewhere along the road to justice
something is going wrong, very wrong

Another NGO has made the following observations on the working of the Act 52 in the
following lines:

The experience of victims and witnesses, activists and organizations clearly

demonstrates that the implementation leaves much to be desired. Though the
Act has made a small impact in curbing atrocities against SC/ST through
deterrent punishment, remedial measures to be taken by the Authorities and
also through rare provisions placing mandatory responsibility on the State
Government to take measures for the effective implementation of the Act and
spelling out illustratively some of the possible measure measures, its
implementation has several deficiencies, National Commission for Scheduled
Castes, NHRC, and Justice Punnaiah Commission critically examined
deficiencies of the Act and have suggested various amendments to the Act.
Human Rights organizations have also highlighted various gaps in the
enforcement of the Act and Rules. Ministry of Social Justice and
Empowerment and Ministry of Home Affairs have issued various advisories to
State governments to fill the gaps in the enforcement

52
20 years of SC & ST (PoA) Act by NCDHR, New Delhi
 Criminal Law Amendments:

As noted elsewhere from time to time, various criminal laws were amended by
amendments made by the Parliament. In some cases, even the state legislatures have
made local amendments to the criminal laws which are applicable to the state
concerned. The history for amending those laws were set out earlier. In this Chapter, in
view of the vast nature of amendments made to criminal laws by the Parliament as well
as the various state legislatures, it is sufficed only to deal with the various central
amendments which are crucial to the consideration of the theme of this book .

1. The Code of Criminal Procedure (Amendment) Act. 20o5

Salient features of the Act

No woman shall be arrested after sunset and before sun rise. In case of
exceptional circumstances, the woman police officer has to send a written report
to the magistrate and should obtain prior permission.(sec.46(4) Cr.P.C)
Section 53 has been amended to the effect, examination includes examination of
blood, blood stains, semen, swabs in cases of sexual offences, sputum and sweat,
hair samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests.(sec.53. A)
An accused of rape can be subjected to medical examination by a registered
medical practitioner in a Govt hospital or in his absence any other medical
practioner under the direction of a police officer and (even force can be used as is
reasonably necessary for that purpose if there are reasonable grounds for
believing that an examination of his person will afford evidence.)
Medical examination can be conducted without delay and the report should
contain all the particulars in the manner prescribed by law. the report should be
forwarded to the investigating officer who inturn shall forward the same to the
Magistrate.(Sec. 53(A)(2) Cr.P.C
As per section 164. A, in a case of rape or attempt to rape, the victim can be
subjected to medical examination with the consent of such woman. The same
procedure mentioned above in case of accused should be followed.
Under section 176(1A), not only custodial death, but also custodial rape is
 brought within the purview. In such cases, in addition to the inquiry or
investigation held by the police, an inquiry shall be held by the Judicial
Magistrate or Metropolitan Magistrate.
In cases of anticipatory bail, the factors to be taken into consideration by the
Judge have been listed out. In case of grant of interim bail, not less than seven
days notice, together with a copy of the order should be served on the Public
prosecutor and the Superintendent of Police.At the time of passing the final
orders, the presence of acccused shall be obligatory, if on application made to it
by the public prosecutor, the court considers such presence necessary in the
interest of Justice.(Sec. 438(1,1A, & 1B).

2. The Code of Criminal Procedure (Amendment) Act. 2008

Salient features of the Act

The word "victim" has been defined as a person who has suffered any loss or
injury caused by reason of the act or omission for which the accused person has
been charged and the expression "victim" includes his or her guardian or legal
heir;'.(sec.2(wa) of Cr.P.C)
The court may now permit the victim to engage an advocate of his choice to assist
the prosecution under this sub-section. (Proviso to Sec.24 (8))
The proceedings for sexual offences are now required to be held, as far as
practicable by a court presided over by a woman.(proviso to sec.26(a))
Unrestricted and unlimited powers of Arrest so far enjoyed and exercised by the
Police stand restricted and conditioned, both in case of cognizable as well as non-
cognizable offences.
New sections 41A, 41B, 41C have been introduced to provide for detailed
mandatory procedure in matters of arrest under various circumstances and also
to provide for control room in every district, state and police headquarters, etc. in
order to display the names and addresses of persons arrested along with the
details of the person making the arrest. Arrested person has also been given the
Right to meet an Advocate of his choice during interrogation, though not
throughout the interrogation.
A number of safeguards in matters of arrest of a woman have been incorporated
 in the new proviso to Sec.46.
Provisions have been incorporated in Sec.54, and new Sections 55A and 60A of
the CrPC Act to provide further safeguards and mandatory provisions regarding
examination of arrested persons by Medical Officers, and taking care of their
health and safety and such allied matters.
In relation to an offence of rape, the recording of statement of the victim shall be
conducted at the residence of the victim or in the place of her choice and as far as
practicable by a woman police officer in the presence of her parents or guardian
or near relatives or social worker of the locality.'(second proviso to sec. 157(1)
Cr.P.C
Provisions have been incorporated in Sec.161 and 164 about use of audio-video
electronic means while recording the statements of the victims/witnesses.
Analogous provisions have been incorporated in the new proviso added under
Sec.275(1).
Detention of the accused in custody and his production before the Magistrate are
now regulated by new provisions and explanations inserted under Sec.167.
Maintenance of the Case Diary by the Police Officer will now be regulated by the
new sub-sections 1A and 1B to Section 172.
The investigation in relation to rape of a child may be completed within 3 months
from the date on which the information was recorded by the Officer incharge of
the police station. (173(1A) Cr.P.C. If the offence relates to Sec.376, 376A, 376B,
376C and 376D of the IPC, the police officer has also to mention in the case
papers whether the report of medical examination of the woman has been
attached.(173(2)(g) Cr.P.C
If a witness or any other person is threatened to file a complaint in relation to an
offence under Sec.195A of the Indian Penal Code. (Sec.195 A. Cr.P.C.
Provisions have been incorporated under Sec.309 to regulate adjournment of
proceedings. When the inquiry or trial relates to an offence under sections 376 to
376D of the Indian Penal Code, 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.(Proviso to sec. 309 (1) (a) Cr.P.C. ].
(a) no adjournment shall be granted at the request of a party, except where the
circumstances are beyond the control of that party;(b) the fact that the pleader of
a party is engaged in another Court, shall not be a ground for adjournment;(c)
where a witness is present in Court but a party or his pleader is not present or the
 party or his pleader though present in Court, is not ready to examine or cross-
examine the witness, the Court may, if thinks fit, record the statement of the
witness and pass such orders as it thinks fit dispensing with the examination-in-
chief or cross-examination of the witness, as the case may be. (4th proviso to sec.
309 (2)(b) Cr.P.C
In Camera trial shall be conducted as far as practicable by a woman judge or
magistrate.The ban on printing or publication of trial proceedings in relation to
an offence of rape may be lifted, subject to maintaining confidentiality of name
and address of the parties.( second and third proviso to sec.327(2)(a).24. )
A newly introduced Victim Compenstion Scheme has been incorporated in order
to alleviate the sufferings of the victim and to provide important safeguards to
their Right. - "357A. (1) Every State Government in co-ordination with the
Central Government shall prepare a scheme for providing funds for the purpose
of compensation to the victim or his dependents who have suffered loss or injury
as a result of the crime and who require rehabilitation.(2) Whenever a
recommendation is made by the Court for compensation, the District Legal
Service Authority or the State Legal Service Authority, as the case may be, shall
decide the quantum of compensation to be awarded under the scheme referred to
in sub-section (1).(3) If the trial Court, at the conclusion of the trial, is satisfied,
that the compensation awarded under section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and the victim has
to be rehabilitated, it may make recommendation for compensation.(4) Where
the offender is not traced or identified, but the victim is identified, and where no
trial takes place, the victim or his dependents may make an application to the
State or the District Legal Services Authority for award of compensation.(5) On
receipt of such recommendations or on the application under sub-section (4), the
State or the District Legal Services Authority shall, after due enquiry award
adequate compensation by completing the enquiry within two months.(6) The
State or the District Legal Services Authority, as the case may be, to alleviate the
suffering of the victim, may order for immediate first-aid facility or medical
benefits to be made available free of cost on the certificate of the police officer not
below the rank of the officer in charge of the police station or a Magistrate of the
area concerned, or any other interim relief as the appropriate authority deems
 fit.".
The victim shall have a right to prefer an appeal against any order passed by the
Court acquitting the accused or convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall lie to the Court to which an
appeal ordinarily lies against the order of conviction of such Court.( Proviso to
sec. 372)

3. Criminal Law Amendment Act 2013:

We have noted the greater debate on the issuance of the amendments made to
criminal laws and the various commissions which had gone into the necessity of making
those amendments. In the history of criminal law, it is a 2013 amendments which are
extensive and also has some provisions made in favour of the victims. We can note some
of the salient provisions of the amendments made to various criminal laws.

INDIAN PENAL CODE

The offence rape has been refined. This new Act has expressly recognised certain
acts as offences like, acid attack, sexual harassment, voyeurism, stalking.
Acid attacks which cause permanent or partial damage to any part of the body
have been added as a separate offence with the minimum imprisonment of 10
years which may extent to life imprisonment and with fine. Such fine shall be
just and reasonable to meet the medical expenses of the treatment of the victim
(Sec.326 A of IPC). Attempt to throw acid is also punishable with 5 years to 7
years. The victim can even cause the death of the offender in self defence under
the above said circumstances. (Sec.100 IPC)
By inserting a new sanction 354 A, sexual harassment is punishable. The term
sexual harassment is defined as follows: (i) physical contact and advances
involving unwelcome and explicit sexual overtures or(ii) a demand or request for
sexual favours; or (iii) showing pornography against the will of a woman; or
(iv)making sexually coloured remarks. Offences under sub sections (i), (ii) and
(iii) are punishable upto 3years of imprisonment or fine or both and for offences
under (iv), upto one year or fine or both.
 354-B has been inserted making assault or use of criminal force to woman with
intent to disrobe as an offence punishable with 3 years to 7 years and with fine.
354-C has introduced a new offence called Voyurism in I.P.C. Voyurism
means watches or captures the image of a woman in engaging in a private act
(e.g.watching a woman while bathing or using a lavatory or while doing a sexual
act. First time offenders will be punished with an imprisonment of 1 year to 3
years and with a fine. Second time offender will be punished with imprisonment
of 3 years to 7 years and with fine. Where the victim consents to the capture of
the images or any act, but not their dissemination shall be considered an offence
under this section.
354-D has added a new offence called stalking which means following a woman
or attempts to contact such woman to foster personal interaction repeatedly
despite a clear indication of disinterest by such woman. It includes staking
through internet, e-mail or any other form of electronic communication.
There is a drastic change in I.P.C. with regard to the offence of trafficking by
substituting a new section for 370. Before substitution, it was only Buying or
disposing of any person as a slave. First time, the word trafficking has been
used. There is a separate penal provision in case of the accused being a police
officers or a public servant. Initially there is no punishment for the customer
who sexually exploits the trafficked person. Now the new provision Sec. 370-A
penalizes these persons with imprisonment of 5 years to 7years if the person is a
minor of 3 years to 5 years in other cases.
Definition of rape has been widened so as to include all other types of rape other
than penile penetration. The definition is broadly worded with acts like
penetration of penis, or any object or any part of body to any extent, into the
vagina, mouth, urethra or anus of another person or making another person do
so, apply of mouth or touching private parts constitutes the offence of sexual
assault. (Sec.375 a,b,c & d)
Except in certain aggravated situation the punishment will be imprisonment not
less than seven years but which may extend to imprisonment for life, and shall
also be liable to fine.(sec.376(1))
The section has also clarified that penetration means "penetration to any extent",
and (Explanation.1 to sec. 375)
Consent means an unequivocal voluntary agreement when the woman by words,
 gestures or any form of verbal or non verbal communication communicates
willingness to participate in the specific sexual act.Lack of physical resistance is
immaterial for constituting an offence.(Explanation. 2 & proviso to sec. 375).
The age of consent in India has been increased to 18 years, which means any
sexual activity irrespective of presence of consent with a woman below the age of
18 will constitute statutory rape.
In case of "gang rape", persons involved regardless of their gender shall be
punished with rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to life and shall pay compensation to the
victim which shall be reasonable to meet the medical expenses and rehabilitation
of the victim. (Sec.376. D)
If a person who is in a position of authority or in a fiduciary relationship by
abusing such position induces or seduces any woman either in his custody or
present in the premises to have sexual intercourse, it will be punishable with 5-10
years of imprisonment and with fine .(sec.376C)
Rape by a member of armed forces deployed in an area by the Central or State
Government (sec.376(2)(c)); Commission of rape during communal or sectarian
violence (sec. 376(2)(g); Rape of a woman by a teacher or a person who is in a
position of trust or authority towards that woman are brought under aggravated
sexual assault.(sec. 376(2)(f). Incest for the first time was proclaimed as an
offence.
If a man commits rape on a woman repeatedly, then it will come under
aggravated form of sexual assault. (Sec.376(2)(n)
Aggravated sexual assaults are punishable with imprisonment for 10 years to life
which shall mean imprisonment for the remainder of that persons natural life
and with fine.
A new section, 376A has been added which states that if a person committing the
offence of sexual assault, "inflicts an injury which causes the death of the person
or causes the person to be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall mean the remainder of
that persons natural life, or with death.
Punishment for uttering any word or making any gestures intended to insult the
modesty of a woman has been increased to three years (maximum) and also with
fine. (Sec.509 I.P.C).
 Sec.228(A) of IPC, printing or publishing of any matter which may make known
the identity of the victim of rape without the written permission of the
Investigating Officer or the victims is punishable. All classifications of rape have
been added by the Amendment Act. This offence is punishable with
imprisonment which may extent to two years and with fine. Though the
restriction does not relate to printing or publication of judgement by Supreme
Court or High Court, the Apex Court, in State of Punjab Vs. Ramdev Singh (AIR
2004 SC P.1290) ruled that the name of victim should not be indicated in the
judgements.
Till the enactment of the Act, dereliction of duty was not considered as an
offences. In so many cases accused have been acquitted on the ground of lapses
committed by the Investigating Officer.
Now the lapses or violation committed by a public servant during investigation
amounts to an offence punishable with 6 months imprisonment which may
extend to 2 years and with fine (violations like non-registration of FIR for
offences under sections 326A&B, 354, 354B, 370, 370A, 376, 376A-E or 509,
requiring the attendance of victim / witnesses at any place prohibited by law,
violating law which provides for the manner in which he shall conduct
investigation).(Sec.166-A of I.P.C.)

CRIMINAL PROCEDURE CODE:

In case of sexual offences, or attempt to commit such offences FIR shall be
recorded by a woman police officer or any woman officer. If the victim in such
cases is temporarily or permanently mentally or physically disabled, then FIR
shall be recorded by a police officer at the residence of the victim or at a
convenient place of such persons choice, in the presence of an interpreter or a
special educator. Such recording of information shall be videographed.
Similar provisions have been introduced for recording of statement by a Judicial
Magistrate u/s 164 Cr.P.C. Such statement made before the magistrate shall be
considered as examination in chief U/s 137 of Indian Evidence Act
No previous sanction shall be required in case of a public servant accused of
sexual offences.
The trial or enquiry relates to an offence under sections 376, 376 A-D of IPC shall
as far as possible be completed within a period of two months from the date of
 filing of the charge sheet (Proviso to Sec.309 of Cr.P.C.)
A new provision of Sec.357(B) has been introduced which declares that the
compensation payable by the Govt. U/s 357-A shall be in addition to the payment
of fine to the victim U/s 326 A or Sec.376 D of IPC.
All hospitals, public or private shall immediately provide the first-aid or medical
treatment free of cost to the victims of any offence covered u/s 326-A, 376, 376 A-
E of Indian Penal Code and shall immediately inform the police of such incident
(Sec.357 C of Cr.P.C.). Violation of above provision amounts to an offence with an
imprisonment which may extend to one year or with fine or with both (Sec.166B
of I.P.C.)

INDIAN EVIDENCE ACT:

In a prosecution for offences a sexual harassment Voyurism, staking, disrobing
(Sec.354 A-D of IPC) and sexual assaults (u/s 376-A E of IPC) or attempt to
commit such offence evidence of the character of the victim or of such persons
previous sexual experience with any person shall not be relevant on the issue of
consent. (Sec.53 A of Indian Evidence Act)
No question can be put to the victim in cross examination with regard to her
general immoral character (Proviso to Sec.146). In such cases, when the sexual
intercourse is proved, and if the victim says before the court that she did not
consent, the court shall presume that she did not consent (Sec.114 A of Indian
Evidence Act).