N. J. Comp. Law Vol. 3 (1) 2016, pp.

ISSN : 2393 - 9338

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ISSN : 2393 - 9338

N. J. Comp.
Law Vol. 3 (1) 2016, pp.
ABOUT THE
JOURNAL
National Journal of Comparative Law(NJCL) is a biannual and peer-reviewed Journal published by JPMS
Society in Collaboration with Academic and Research Publications. JPMS Society is a Society registered under

the Societies Registration Act and its Registration No. is 1649/1986-87.This journal is published from year i.e. 2014. The
ISSN of the JOURNAL is 2393-9338.

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N. J. Comp. Law Vol. 3 (1) 2016, pp.

ISSN : 2393 - 9338

NJCL
National Journal
of
Comparative Law
Volume 3, Issue 1, 2016

June 2016
Cite this volume as 3(1)NJCL(2016) and so on....

This Journal is an academic and peer-reviewed publication

(Print ISSN : 2393 - 9338 )
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without the prior permission of the Editor.
Note : The views expressed herein are the opinions of contributors and do not reflect the stated policies of the

JPMS Society and Academic & Research Publications

om

An International Refereed Journal

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JPMS Society

H.Office: EC-41 MAYA ENCLAVE, NEW DELHI - 110064

National Journal
of
Comparative Law

ISSN : 2393 - 9338

N. J. Comp. Law Vol. 3 (1) 2016, pp.

June 2016
Editorial Board

Volume 3,

Issue 1, 2016

PATRON

PC. M. Jariwala

Dean (Academics) - Chairperson

Dr. Ram Mahohar Lohiya National Law University, Lucknow.U.P.

Members of Editorial Advisory Board

Justice D. P. Singh

Judge (Retd.), Allahabad High

Court, Lucknow Bench, Lucknow

Editor-in-Chief
Manik Sinha

Former Dean, Faculty of Law,

Dr R.M.L Avadh University,
Faizan Mustafa
Faizabad (UP), Senior Advocate,
Vice-Chancellor, NALSAR
University of Law, Hyderabad. Govt of India, High Court, Lucknow.

Paramjit S. Jaswal

Vice-Chancellor, Rajiv Gandhi

National Law University, Patiala.
(Punjab)

EDITORS

Chidananda Reddy
S. Patil

Dean & Director Karnataka

State Law University Navanagar, Hubballi. (Karnataka)

Shaber Ali. G
Head of the Department,V.M.

Chief Editor

S. S. Singh

Salgaocar College of Law,

Miramar, Caranzalem (PO),
Panaji 403002.( Goa)

Subhash Chandra Singh

Assistant Professor, Department

of Law, North-Eastern Hill University, Shillong 793022.(Assam)

Usha Tandon
Vice-Chancellor/Director, National Institute of Law University, Professor-In-Charge, Campus Law
Centre University of Delhi, Delhi.
Bhopal,(M.P.)
Associate Editor

Professor & Dean, School of Legal

Yashwant Singh
Studies, Assam Central University, Former Dean, Faculty of Law,
Silchar (Assam)
Dr R.M.L Awadh University and

Ali Mehdi

Professor of Law, Banaras Law

School, Banaras Hindu University,
Varanasi,(U.P.)

S.K.Bhatnagar

Professor of Law, B.R. Ambedkar

Central University, Lucknow.

Rajiv Khare

Professor and Chairperson, Environmental Law Department, National Institute of Law University,
Bhopal.

Satish C.Shastri

Shishir Tiwari

Alluri Satyanarayana Raju

Principal, New Law College,

Pricipal(Retd.) K. N. Institute of
Ahmednagar-414001 (Maharashtra)
Social Science, Sultanpur U.P.

Manoj Mishra

Coordinating Editor
S. C. ROY

Associate Professor, Chanakya

National Law University, Patna (Bihar)

Asst. Professor,
Chanakya National Law University, Patna.MBA (Marketing),
B.Sc.(Maths), BA(English), NET
(MANAGEMENT), Ph.D.

Raju Majhi
Assistant Professor in the Faculty of Law, Banaras Hindu University, Varanasi.(U.P.)

com

.
Managing Editor
npp
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B. Gopal Krishnan
A.
K. Singh
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Asstt.
Prof. of Law, Kerala
.
Director/Dean, School of Legal
w Professor of Law,
Associate
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University
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Studies, Modi Institute of Tech- K.S.
Thiruanantpuram
nology, Sikar (Rajasthan)
4

National Journal
of
Comparative Law

N. J. Comp. Law Vol. 3 (1) 2016, pp.

ISSN : 2393 - 9338

June 2016
Issue 1, 2016
Editorial Board
Bibhash Kumar Mishra
Members of Editorial Board

Volume 3,

Assistant Librarian, Kumaun University, SSJ

Campus, Almora (Uttarakhand)
Gitanjali Ghosh
Researcher, Centre for Women and the Law,
National Law School of India University
(NLSIU), Bangalore- 560072 (Karnataka)

Pradip Kumar Das

Assistant Professor & Head(I/C), School Of Law
And Governance, Central University of Bihar,
Gaya (Bihar)

Sri Rajeev Kumar Singh

Research Scholar,
(Cyber Security Threats, Law- Strategy),
Chanakya National Law University,
Patna. (Bihar)

Rajib Bhattacharyya
Assistant Professor, University Law College,
Guwahati University , Guwahati (Assam)
Achyutananda Mishra
Assistant Professor,
Faculty of law, ICFAI Fo undation for Higher
Education Deemed University. (Hyderabad).
Poonam Kumari
Assistant Professor, School of Law and
Governance, Central University of Bihar,
Gaya Campus, Gaya (Bihar)

Malabika Talukdar
Principal NERIM Law college,affiliated to Dibrugarh universityJaya Nagar, Guwahati - 781022
Assam India
Email: malabikatalukdar11@gmail.com

Avimanyu Behera

R. P. Kaushal
Asstt. Professor.
Deptt. of Statistics & Social Science,
MSKJUA & T,
Banda - 210001 (UP)

Principal,

Midnapore Law College,

Vidyasagar University,
Midnapore-721 102.(West Bengal)

ublication Editor
Manisha Verma,
Academic & Research Publications
.com
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p
n
aSociety
and JPMS
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s
ani
m
.
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wwLaw. All rights reserved. No portion of material can be reproduced in part or
National Journal of Comparative

full without the prior permission of the Editor.

Note : The views expressed herein are the opinions of contributors and do not reflect the stated policies of the JPMS
Society. Correspondence: All enquiries, editorial, business and any other, may be addressed to: The Editor-in-chief,
National Journal of Comparative Law (NJCL), H.Office: EC-41 MAYA ENCLAVE, NEW DELHI - 110064.
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ISSN : 2393 - 9338
ISSN : 2393 - 9338

National Journal
of
Comparative Law

N. J. Comp. Law Vol. 3 (1) 2016, pp.

ISSN : 2393 - 9338

June 2016
Contents

Volume No. 3

Issue No. 1, 2016

Page No.

S. No. Title

1.

EMPOWERMENT OF WOMEN IN INDIA:

01

OPPORTUNITIES AND CHALLENGES

Justice Devi Prasad Singh

2.

WOMENS

EMPOWERMENT:

SOCIO-

LEGAL ASPECT
Manik Sinha

3.

EMPOWERMENT OF WOMEN AND GEN-

17

DER EQUITY
Usha Tandon

4.

GENDER EMPOWERMENT AND SOCIAL

JUSTICE:

ROLE

OF

MNREGA

IN

21

NEW

MILLENIUM
S. C. Roy

5.

ACID TEST OF THE ACID ATTACK VIC-

27

TIMS: A DISCOURSE FROM LEGAL PERSPECTIVE IN INDIA

Pradip Kumar Das

6.

IN

THE

REAR

BLOCKED

ENTRY:

DO-

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MESTIC VIOLENCE ACT FOR WOMENS

EMPOWERMENT IN INDIA
Nandita S.Jha

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National Journal
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N. J. Comp. Law Vol. 3 (1) 2016, pp.

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June 2016
Contents

Volume No. 3

Issue No. 1, 2016

Page No.

S. No. Title

76
7.

WOMEN
EMPOWERMENT
VERSUS
GANG RAPE IN INDIA: AN ANALYTICAL
STUDY

53

P. K. Pandey

8.

ROLE
OF NON-GOVERNMENTAL ORGANISATIONS IN THE PROTECTION OF
WOMENS RIGHTS IN INDIA

64

Ajay Kumar Singh

9.

EMPOWERING
WOMEN
THROUGH
ANIMAL HUSBANDRY EDUCATION
&
TRAINING

69

Shikha Verma & Dr. S. S. Kashyap

10.

HATE SPEECH AND THE LAWS: A CRITICAL STUDY WITH REFERENCE TO THE
NATIONAL AND INTERNATIONAL PERSPECTIVES

78

Rajib Bhattacharyya

11.

REPRODUCTIVE
RIGHTS
OF
PRISONERS: LEGAL
AND
INSTITUTIONAL
CHALLENGES
Subham Srivastava

12.

13.

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WOMENS EMPOWERMENT:
AN INDIAN EXPERIENCE

sh
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Vanisree Ramanathan
w.m
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w DO, WHAT THEY DO :
WHY THEY

ANALYTICAL STUDY OF ACID ATTACKS

S. Bindu Sravya and Santosh Aaghav

97

105

116

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EMPOWERMENT OF WOMEN IN INDIA:

OPPORTUNITIES AND CHALLENGES 1
Justice Devi Prasad Singh
Judge (Retd.), Allahabad High Court
Lucknow Bench, Lucknow
Email : deviprasadsingh1953@gmail.com
That women are naturally a weaker sex was first acknowledged by US supreme court
in the case of Muller vs Oregon 1908. In this case, the US SC observed that due physical
structure and performance of maternal functions, women are at a disadvantage in the
society and thus it is society's responsibility to implement favorable laws to bring them
on the same level as men. The makers of Indian Constitution also understood this fact
and have provided several provisions for elevating the status of women and giving them
a level playing field.
The discovery of Kautilya's Arthashastra has enabled scholars to arrive at a just appreciation of ancient life and society. The treatise describes the complete Indian polity of
the Maurayan Age and Administrative Law. Kautilya's Arthashastra gives priority to the
ladies and widows in the matter of employment and with regard to certain other facet of
life. Even earlier to Mauryan dynasty there were so many renowned ladies who were in
life matched equal to their male counterparts. The world's ancient manuscript Rigveda
was written by Lopmudra, wife of sage Bhrigu. Queen Kaikaey accompanied her husband King Dashrath to battle field and saved his life. The gender discrimination seems
to perpetuate in Indian context, sometime around 2nd century B.C..
Law is a living organism and its utility depends on its vitality and ability to serve as a
sustaining pillar of society. Contours of law is an evolving society must constantly keep
changing as civilization and culture advances. The customs and mores must undergo
change with the march of time. Law is the manifestation of principles of justice, equality
and good conscience. Rule of law should establish a uniform pattern for harmonious
existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage
of one person may be the worst disadvantage to another. Law steps in to iron out such
m
.coas
creases and ensures equality of protection to individuals
well as group liberties. Jusp
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tice, equality and fraternity and trinity for social
sh and economic equality. Hence the law is
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Article 15(3) of the Constitution
of India positively protects such Acts or actions. Arti-

cle 21 of the Constitution of India reinforces "right to life". Equality dignity of person
and right to development are inherent rights in every human being. Life in its expanded
1.

Inaugural address delivered at the UGC sponsored National Seminar on Empowerment of Women in
India: Opportunities and Challenges held on 22nd Nov. 2014 at K.S.Saket P.G. College, Ayodhya, Faizabad- U.P..

N. J. Comp. Law Vol. 3 (1) 2016, pp. 1-8

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horizon includes all that give meaning to

a persons life including cultures heritage
and tradition with dignity of person. The
fulfillment of that heritage in full measure
would encompass the right to life. For its
meaningfulness and purpose every woman is entitled to elimination of obstacles
and discrimination based on gender for
human development. Women are entitled
to enjoy economic, social cultural and political rights without discrimination and on
footing of equality. Equally, in order to effectuate fundamental duty to develop scientific temper humanism and the spirit of
enquiry and to strive towards excellence
in all spheres of individual and collective
activities as enjoined in Article 51A(h) and
(j) of the Constitution of India, not only facilitates and opportunities are to be provided for but also all forms of gender based
discrimination should be eliminated. It is
a mandate to the State to do these acts.
Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be
independent right to equal status and dignity of person. Therefore, the State should
create conditions and facilities conducive
for women to realize the right to economic
development including social and cultural
rights.
Part III of the Constitution, consisting of
Articles 12 to 35, relating to Fundamental
Rights, is considered the heart of the Constitution. The fundamental rights are regarded as fundamental because they are
most essential for the attainment by the
individual of his full intellectual, moral and
spiritual status.

of India. The first expression equality before law which is taken from the English
Common Law, is a declaration of equality
of all persons within the territory of India,
implying thereby the absence of any special privilege in favour of any individual.
The second expression, the equal protection of the laws is the essence and core of
the right to equality under which the State
is under an obligation to take necessary
steps so that every individual, man and
woman alike, is given equal respect which
he or she is entitled to as a human being.
Payment of equal pay for equal work has
also been justified under Article 14. Unequal pay for materially equal work cannot
be justified on the basis of an artificial classification between the two kinds of work
and employment.
Article 14 has also been invoked to prohibit
sexual harassment of working women on
the ground of violation of the right of gender equality. Article 14 indeed contains important provisions for protecting the rights
of women and the interpretation of this Article by the judiciary enables the establishment of equality between the sexes.
Article 15(1) prohibits the state from discriminating on the basis of religion, race,
caste, sex, or place of birth, art 15(3) allows
the state to make special provisions for
women and children. This is important because as espoused by art 14, it is imperative for the state to make laws as per the
social condition of various peoples. Art 15
omsame concept and
merely elaborates
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Article 14 guarantees to every person
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right to equality before the law orw
the equal According to Article 15(3), the state is not
protection of the laws within the territory prevented from making any special provi 2

N. J. Comp. Law Vol. 3 (1) 2016, pp. 1-8

ISSN : 2393 - 9338

sion for women and children. Article 15(1)

and 15(2) prevents the state from making
any discriminatory law on the basis of gender alone. Thus the Constitution is based
on gender equality. The Constitution insists on equality of status but it negates
gender bias. Nevertheless, by virtue of Article 15(3), the state is permitted, despite
Article 15(1), to make any special provision
of women. Article 15 and 16 do not prohibit
special treatment of women.
The scope of Article 15(3) is wide enough
to cover the entire range of state activity
including that of employment. Article 15(3)
is a special provision which helps women
to come in same footing with that of men.
It is said by the National Women Commission that in this 21st Century where a man
and woman relationship is changing, law
should also be changed.
Section 497 of Cr.P.C., 1899, prohibited
release of a person accused on a capital offence on bail except a woman or a
child under 16 or a sick man.The provision
has been held valid as it made out of the
special treatment to women which is consistent with Article 15(3). Art 16(1) ensures
equality in employment in govt. services
and Art 16(2) explicitly prohibits any discrimination on the ground of sex among
other grounds, even though art 16 does
not directly contain any provision specifically for women.

post was held valid with reference to 15(3).

Article 21 has been couched and made
long strides due to the judicial interpretation received at the deft hands of judges of
the Apex Court. Article 21, though couched
in negative language, confer on every person the fundamental right to life with right of
privacy, dignity, quality of life, personal liberty and it has been given a positive effect
by judicial interpretation. Life, in Article 21,
is not merely the physical act of breathing
or animal living but encompasses different facet of life. This has been recognized
by the Courts. The Rig Veda gives a subtle description of the mundane activity of
speech. The soul (which, in the Rig Veda,
is compared to a bird soaring high in the
heavens) inspires or fills up the mind with
speech. The Gandharva (the mind) carries it to the heart; and then, the luminous
inspired speech takes shape in words that
can be heard. One can pursue this imagery further. While the external mundane activities of life have their own place, they are
the manifestations of an inner, unseen, unperceived activity which, indeed is the
real life that a human being lives.

In view of the global developments in the

sphere of human rights the judicial decisions from time to time have played a vital
role towards the recognition of an affirmative right to basic necessities of life under
Article 21. In the case of State of Maham
.co
rashtra
v.
Madhukar Narayan Mandikar,
p
p
anSupreme Court has held that even a
the
h
s
ani woman of easy virtue is entitled to privacy
Supreme Court in Government of
Andhra
m
.
w
Pradesh vs P.B Vijay Kumar
wwruled that un- and no one can invade her privacy as and
der the Art.15(3), the State may fix a quota when he likes. This article has also been
for appointment of women in government invoked for the upliftment of and dignity life
services. Also the rule saying that all other for the prostitutes. The Supreme Court has
things being equal, preference would be placed emphasis on the need to provide
given to women to the extent of 30% of the to prostitute opportunities for education and
3

N. J. Comp. Law Vol. 3 (1) 2016, pp. 1-8

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training so as to facilitate their rehabilitation.

Sexual harassment at workplace is a violation of Article 21 of the Constitution and
hence, the Apex Court of the Country, in
the case of Vishaka v. State of Rajasthan,
has laid down detailed direction and
guidelines on the subject which are to be
strictly observed by all employers, public
or private. Right to life is recognized as a
basic human right. It has to be read in consonance with the Universal Declaration of
Human Rights, 1948, the Declaration on
the Elimination of Violence against Women
and the Declaration and Covenants of Civil
and Political Rights and the Covenants of
Economic, Social and Cultural Rights to
which India is a party having ratified them.
The right to life enshrined in Article 21 of
the Constitution also includes the right to
live with human dignity and rape violates
this right of women.

exploitation, Article 23 (1) of the Constitution of India prohibits traffic in human beings and beggar and other similar forms
of forced labour. Traffic in human beings
means selling and buying human beings
as slaves and also includes immoral traffic in women and children for immoral or
other purposes. To curb the deep rooted
social evil of prostitution and to give effect
to this Article, the Parliament has passed
The Immoral Traffic (Prevention) Act, 1956.
The Supreme Court has also held that
traffic in human beings includes devadasis and speedy and effective legal action
should be taken against brothelkeepers.

Part IV of the Constitution from Articles, 33

to 51 contains what may be described as
the active obligation of the State. The Directive Principles of State Policy are fundamental in the governance of the country
and it shall be the duty of the State of apTo give effective implementation of guide- ply these principles in making laws and to
lines of Hon'ble Supreme Court in Vishaka secure a social order in which social, eco(supra) Central Government has passed a nomic and political justice shall inform all
new act namely The Sexual Harassment the institutions of national life. These Direcof Women at Work Place (Prevention, Pro- tives Principles are ideals which are based
hibition and Redressal) Act, 2013. Further on the concept of Welfare State and they
to give more protection to women after the fix certain goals; social and economic; for
Delhi rape case government has consti- immediate attainment by the Union and
tuted a committee under the supervision State Governments while formulating polof former Chief Justice of India Justice icy or enacting a law. According to Article
J.S.Verma. This Committee has proposed 39(a), the State shall direct its policy tomany amendments in several sections of wards securing that the citizens men and
Indian Penal Code, Code of Criminal Pro- women equally, have the right to an adecedure 1973, Indian Evidence Act 1872 quate means of livelihood. Under Article 39
and Protection of children from sexual of- (d), the State shall direct its policy towards
fences Act 2012 to provide extra safeguard securing equal .pay
for equal work for
com
p
p
n
to womens. On 2.4.2013, the President both men
and
women.
This Article draws
a
h
s
i
of India gave assent to the Criminal Law aits
from Articles 14 and 16 and its
nsupport
m
.
(Amendment) Act 2013.
main objective is the building of a welfare
w
ww
society and an equalitarian social order in
To safeguard and protect women against the Indian Union. In the case of Dattatraya
4

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v. State of Bombay, the Court held that legal provisions to give special maternity relief to women workers under Article 42 of
the Constitution does not infringe Article 15
(1). In the case of Municipal Corporation of
Delhi v. Female Workers (Muster Roll), the
Supreme Court held that the benefits under the Maternity Benefits Act, 1961 extend
to employees of the Municipal Corporation
who are casual workers or workers employed on daily wages basis. Upholding, the
claim of non-regularized female workers for
maternity relief, the Court has stated :
Since Article 42 specifically speaks of just
and humane conditions of work, and maternity
relief, the validity of an executive or administrative action in denying maternity benefit
has to be examined on the anvil of Article 42
which though not enforceable at law, is nevertheless available for determining the legal
efficacy of the action complained of.

its obligation under this Article and issued

direction to it to take appropriate steps for
its implementation and inform the Court of
these steps. In the case of Sarla Mundgal
v. Union of India, a Hindu husband married under Hindu Law and again married
the second time by converting himself to
Islam.
Reservation of seats for women in Panchayats and Municipalities have been
provided in Articles 243D and 243T of the
Constitution of India. Part IX and IX A have
been added to the Constitution by the
73rd and 74th Amendment Acts with Articles 243, 243A to 243D and Articles 243P
243 ZG. According to Article 243D(3), not
less than one-third, (including the number
of seats reserved for women belonging to
the Scheduled Castes and the Scheduled
Tribes) of the total number of seats to be
filled up by direct election in every Panchayat, shall be reserved for women and
such seats may be allotted by rotation to
different constituencies in a Panchayat. Article 243 T (3) of the Constitution provides
similar provisions for reservation of seats
for women in direct election in every Municipality. Therefore, reservation of 33% of
seats for women candidates to hold office and perform all public functions at the
Panchayat.

Article 44 provides that the State shall endeavour to secure for the citizens, a Uniform
Civil Code, throughout the territory of India.
India comprises of diverse religions, faith
and beliefs and each of these religious denominations are governed by their distinct
personal laws which vary from one another. In matters relating to marriage, divorce,
adoption, maintenance and succession,
different personal laws have treated and
placed women on different levels. Due to
these variations, people are being tempt- The annual Gender Gap Index by the
ed to convert from one religion to another Geneva-based World Economic Forum
in order to seek the benefit under the guise showed .India
comfalling to 114th place, after
p
p
of those personal laws. Placing , reliance being
an ranked 101st out of the 136 countries
h
s
i surveyed last year. That puts India below
on Article 44 by the Supreme Courtainnupm
.
holding the right of maintenance
ww of a Mus- other fast-developing th,nations including
w
lim divorce under Section 125 of the Crimi- South Africa, ranked 18 China at 87 and
nal Procedure Code has boomeranged Brazil at 71. Nordic nations led the world
resulting in a separate law of maintenance in promoting equality of sexes, with Icefor Muslim female divorcee. Later the Su- land, Finland, Norway, Sweden and Denpreme Court again reminded the State of mark occupying the top five spots. The US
5

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climbed three places to 20th. According to

Klaus Schwab founder of WEF Achieving
gender equality is necessary for economic
reasons. Only those economies who have
full access to all their talent will prosper,.
He further said Yemen, Pakistan and Chad
remained at the bottom of the index, that
ranks countries on health and survival,
access to education, economic opportunity and political participation. Overall, the
report said gender equality is improving
worldwide, with 105 countries becoming
more equal since the forum launched the
index in 2006 and health and education
access being the most egalitarian across
the globe. According to Saadia Zahidi,
head of Gender Parity Program, Much of
the progress on gender equality over the
last 10 years has come from more women
entering politics and the workforce.
India ranked a high 15th for female political
participation. But it was among the bottom 20 in terms of income, literacy, work
force participation and infant survival. Activists feel that there was some improvement in number of girls going to primary
schools, the overall lack of safety was still
preventing many from traveling for higher
education or taking jobs far from home.

rospection and political will.

According to a report about 60% men
have admitted using violence to assert
their dominance over their partner in a
seven-state study that has highlighted
the high prevalence of intimate partner
violence in the country. Uttar Pradesh and
Odisha have the highest incidence of such
violence at 75% followed by Punjab and
Haryana at 43% and Maharashtra at 37%.
The study 'Masculinity, Intimate Partner
Violence and Son Preference in India' by
UNFPA and International Centre for Research on Women (ICRW) also revealed
that 52% of the 3,158 women surveyed
reported that they had experienced some
form of violence during their lifetime.

A higher proportion of women reported experiencing physical violence (38%) followed
by emotional violence (35%), which includes
insults, intimidation and threats. These were
followed by 17% of women reporting that
their husbands or partners had been sexually violent against them, and 16% saying
they were economically abusive (husband
or partner prohibits her from working, takes
her earnings against her will).

Thus, Indian women still face some of

the world's worst inequality in access to
health care, education and work, despite
years of rapid economic growth, according to a survey of 142 nations released on
28.10.2014.

Regardless of age, men who experience

economic stress were more likely to have
perpetrated violence. The study, which
surveyed 9,205 men, said this may be
because of norms related to masculinity,
which reinforce the expectation that men
are primary economic providers for their
Not only inequalities across the board households. "Economic
.comstress can therefore
p
p
as noticed but also there is indoor threatenhmen's
an belief in their own abilities and
s
nilead them to be more controlling and violent
crime committed against the women, amay
m
.
w
falsifying all schemes relating to w
gender
towards their partners,'' it said.
w
equality in external world. To eradicate
this menace we need a will power, ret- Another disturbing factor that the survey
6

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revealed is that if men experienced discrimination frequently as children, they

were four times more likely to perpetrate
violence than men who never experienced
childhood discrimination. And women
who were discriminated against as children were three to six times more likely to
experience intimate partner violence.

"Women who experienced and observed
discrimination or violence growing up
are more likely to justify it as adults and
may therefore not resist circumstances
that may trigger intimate partner violence.
Women who faced rigid masculinity, that is
who were greatly controlled by their partners and who consider men and women
unequal, were also 1.35 times more likely
to experience IPV,'' the study said.

A majority of men (67%) and women
(47%) professed an equal desire to have
a male or a female child. This reaffirms
the son preference attitude as boys are
seen by Indian families as rightful heirs
of family property, family lineage and religious rituals.

tic violence. All depends upon facts and

circumstances of each case. Sociologist
should do some research work to find out
the cause of domestic violence in Indian
context and thereafter we should find the
remedial measure.
It was Swami Vivekanand who raised voice
inviting attention to liberate the women of
country from parda and come in front line
of socio-economic development. According to Swami Vivekanand to quote:
Liberty is the first condition of growth. It is
wrong, a thousand times wrong, if any of you
dares to say, "I will work out the salvation of this
woman or child." I am asked again and again,
what I think of the widow problem and what I
think of the woman question. Let me answer once
for all _ am I a widow that you ask me that nonsense? Am I a woman that you ask me that question again and again? Who are you to solve women's problems? Are you the Lord God that you
should rule over every widow and every woman?
Hands off! They will solve their own problems."

Swami ji further says, to quote:-

A lot of research has been done with regard to magnitude of domestic violence Our right of interference is limited entirely to
in foreign as well as Indian context. To giving education. Women must be put in a pomy mind what is lacking is the reason for sition to solve their own problems in their own
domestic violence has not been deeply way. No one can or ought to do this for them.
assessed. In Indian context majority of And our Indian women are capable of doing it
m
coworld.
.the
domestic violence occurred between hus- as any in
p
p
an
band and wife seems to because of finanh
s
i Swami Vivekananda again proceeded to
cial hardship and related family affairs
anand
m
.
w
is short-lived or bitterness w
w lost by the span say that, to quote:of time. In majority of the cases family continues having hand in hand without any The best thermometer to the progress of a nation is
permanent scar whereas in western world its treatment of its women. In ancient Greece there
in majority of the cases separation or di- was absolutely no difference in the state of man
vorce took place in the event of domes- and woman. The idea of perfect equality existed.
7

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No Hindu can be a priest until he is married, the

idea being that a single man is only half a man,
and imperfect. The idea of perfect womanhood
is perfect independence. The central idea of the
life of a modern Hindu lady is her chastity. The
wife is the centre of a circle, the fixity of which
depends upon her chastity. It was the extreme of
this idea which caused Hindu widows to be burnt.
The Hindu women are very spiritual and very religious, perhaps more so than any other women
in the world. If we can preserve these beautiful
characteristics and at the same time develop the
intellects of our women, the Hindu woman of the
future will be the ideal woman of the world

Mahatma Gandhi while considering the
importance of women in the family as well
as socio-economic development of the
country said, to quote:Woman is more fitted than man to make exploration and take bolder action in nonviolence.

There is no occasion for women to consider

themselves subordinate or inferior to men.
Woman is the companion of man, gifted with
equal mental capacity.
If by strength is meant moral power, then woman
is immeasurably man's superior.
If nonviolence is the law of our being, the future
is with women.
Woman, I hold, is the personification of self-sacri-

fice, but unfortunately today she does not realize

what tremendous advantage she has over man.
So far as law and constitutional provisions
are concerned they very well empower the
women at par with men without any gender discrimination. Only thing which requires is the change of mind set. Change
of mind set does not mean vulgarity or pornographic euphoria but it means equality in behaviour, equality in education and
equal opportunity in the socio-economic
development of country in an atmosphere
where women does not suffer from any
law and order problem to move freely in
the society.
United nation declarations as well as constitutional provisions had changed the world
of woman empowering them to march side
by side with their male counterparts. The varieties of problems and sufferings of women
are not because of lack of constitutional or
statutory provisions but because of mindset
which majority of population possess. Out
of various problems and facet of life, one of
the major hurdle is law and order. In the absence of effective law and order and mechanism to punish offender quickly, outrages of
modesty of a lady at frequent interval seems
to continuing. Manu says, peoples obey law
because of fear of punishment and in case
there is no fear of punishment then things
gradually become worst. The challenges
before women is 'narrow mindset' and lack
of rule of law with the atmosphere to
move freely and peacefully enjoying
the quality of life. m

p.c
p
n

a
ish
n
a
w.m
w
w
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WOMENS EMPOWERMENT:
A SOCIO-LEGAL ASPECT

Manik Sinha
Senior Advocate, Govt. of India,
High Court, LUCKNOW
Email : manik.sinha2@gmail.com
Women have been subject to exploitation, victimization and oppression. This
is not situation in India alone rather all over the world and this is prevalent for the centuries. They are exploited at the hands of the society, the establishment as well as their
immediate family members. The Rajasthan High Court in Sukrit Verma and other. V.
State of Rajasthan and another2 had said: Women have been subjected to violence, domestic or otherwise, throughout the pages of history-whether they be Helen of Troy, or Sita of
Ramayana, whether they be Casandra of Troy, or Dropadi of Mahabharata. Women have been
easy pray to the male ego, and dominance. Much as the Indian Civilization pays obedience to
the feminine divine, but the harsh reality remains that throughout the length and breath of this
country, women are assaulted, tortured, and burnt in their daily lives.
Mao Tse Tung, the father of the Modern China and the first Chairman of the Peoples Republic of China, the great revolutionary and communist leader had expressed his concern about the pitiable condition of Chinese women, whom he
said Women hold up half the sky, in the following words:
A man in China is usually subjected to the domination of three systems of authority - political authority, family authority and religious authority. As for women, in addition to being dominated by
these three systems of authority, they are also dominated by the men (the authority of the husband).
These four authorities - political, family, religious and masculine - are the embodiment of the whole
feudal-patriarchal ideology and system, and are the four thick ropes binding the Chinese people.
With the rise of the peasant movement, the women in many places have now begun to organize rural
women's associations; the opportunity has come for them to lift up their heads, and the authority
of the husband is getting shakier every day. In a word, the whole feudal-patriarchal ideology and
system is tottering with the growth of the peasants' power. 3

com

Today China is one the most powerful and developed

pp. countries in the World perhaps
n
a
next to USA. One of the reasons for itsifast
sh development is womens empowerment
n
a
build by themselves. The Chinese
have achieved almost equal status with their
w.mwomen
w
men counterpart in every
sphere
of
the
society.
Chinese women occupy about 40%
w
1. Address as Special Guest in the UGC sponsored National Seminar on Womens Empowerment:
Opportunities and Challenges held on 22nd Nov., 2014 at K.S.SaketP.G.College, Ayodhya, Faizabad.
2. Decided on 5th May 2011by theRajashthan High Court, Jaipur.
3. Report on an Investigation of the Peasant Movement in Hunan" (March 1927), Selected Works, Vol. I,
pp. 44-46 and Inscription for the magazine, Women of New China, printed in its first issue, July 20, 1949.

N. J. Comp. Law Vol. 3 (1) 2016, pp. 9-16

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share in the public employment and trade

and business and more than 50% in agriculture. Statistics show that the number of
female cadres account for close to 40% of
the total cadres in China. A 17% increase
took place at all levels, which included
leadership positions taken up by women
at the provincial, prefecture, county and
township levels. but credit of this rise basically goes to the rise of Chinese women
peasants movement, for which the call
was given by Mao Tse Tung. Thus, because of the Womens struggle for equality
with men, China has reached at this stage
of great social change. Mao had exhorted
the Chinese women to unite and take part in
production and political activity to improve the
economic and political status of women in China.

tion in public offices of women in India in

2014 is as follows according to a report
published in the Times of India, dated
3.11.2014, is as follows:07 Women Ministers out of 45 in Union
Cabinet, 62 female M.Ps. in Lok Sabha
(11%) , 8% in State Assemblies and 4%
in State Legislative Councils, 47% in Panchayats, 2 Women Judges out of 30 in the
Supreme Court, 58 Women Judges out
of 609 in the High Courts. In rural areas,
Women workforce is 30% as against their
male counterparts who constitute 53 %.
They are 14% in IAS, 19% in IFS, 30% in
IES, 28% in IFS(Forest Service)
Someone may question as to why we
have started our discussion over this issue from China and why not from India or
USA? The answer is that simply because
we find that it was only in China, where
the women had fought for their liberty and
equality and as a result of their movement,
they have achieved this position, whereas
in no part of the world including in India,
women had struggled for themselves by
means of any mass movement. In fact, it
was the men who created path of equality for the women be it India, U.S.A. or UK.
Although we find that Womens liberation
movement was started during 1970s in
U.S.A., U.K. and also in India to some extent, but it never became a mass movement, rather it was limited only to the elite
class. Practically, almost in all countries,
particularly democratic countries, womm in the societies
en got the present
.costatus
p
p
only through
an legislation and constitutional
h
s
to the states.
ni
amandates

Mao further said : In order to build a great

socialist society it is of the utmost importance
to arouse the broad masses of women to join in
productive activity. Men and women must receive equal pay for equal work in production.
Genuine equality between the sexes can only be
realized in the process of the socialist transformation of society as a whole. 4
So, the Chinese women have achieved
this position basically on their own and not
on the charity of men or the Government.
It is another matter that the Government at
a later stage had legislated welfare measures and schemes.
Karl Marx had rightly said : Anyone who
knows anything of history knows that great social
changes are impossible without feminine upheaval. Social progress can be measured exactly by
the social position of the fair sex, the ugly ones
included. 5
As compared to China, the representa-

.m

w
ww

4. "Women Have Gone to the Labour Front" (1955), The Socialist Upsurge in China's Countryside,
Chinese ed., Vol. I.
5. http://www.brainyquote.com/quotes/quotes/k/karlmarx162004.html#MQ2FcadKwVdXJ9K7.99

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So far as India is concerned, the founding fathers of our Constitution were fully
aware of the condition of women and had
great concern for them and therefore they
had committed to ameliorate their condition by placing them at par with their men
counterparts in all walks of life and equal
status. They expressed their commitment
in the Preamble of the Constitution and
also guaranteed certain Fundamental
Rights for them.

of then U.S.S .R. choose the path shown

by Karl Marx, known as the Leftist movement. The Rightists believed that unless
Liberty is guaranteed, social justice cannot be achieved, whereas the Leftists
were of the view that unless one is sure to
get bread, liberty is meaningless for them.
For a proletariat, labour, working class,
peasant, poor, downtrodden, the noble
slogans of liberty is an empty assurance.
Thus, the choice before us was between
Liberty and Equality i.e. whether Freedom
of speech and expression or bread to live
was supreme. Since we had suffered both
slavery for hundreds of years at the hands
of foreign rulers and also poverty, hence
Liberty and Equality both were close to
our heart, thus Mahatma Gandhi valued
the both. The issue before the founding
fathers of our Constitution was whether
should we adopt Equality at the cost of
Liberty or Liberty at the cost Equality? After
a great debate, and under the influence
of Mahatma Gandhi, it was ultimately resolved to adopt both. Thus we find both
the ideologies existing in the Preamble of
Constitution.

The Resolution passed by the Constituent

Assembly envisaged in it that there shall
be guaranteed and secured to all the people of India justice- social, economic and
political; equality of status, of opportunity
and before the law; freedom of thought,
expression and belief, faith, worship, vocation, association and action, subject to
law and public morality, adequate safeguard to women and children, inter alia,
other depressed classes.
On emancipation from the British yoke of
Imperialism, we entered in to the kingdom
of freedom, thus we had high expectations
and aspirations from the just secured independence and from our Statesmen and
the Government. We became highly ac- The Socialistic ideology propounded by
quisitive. Our Parliamentarians laboured Karl Marx that from each according to his abilday in and day out to draft the Constitu- ity to each according to his needs, which wartion for about two years and tried their rants equitable distribution of the nations
best to translate into reality the dreams wealth, abolition of concentration of ownand expectations of our countrymen. Dur- ership and the control of material resourcreflection in Article 39 of the
ing the period we became Independent es. We find this
m
o
c
i.e. the early twentieth century, the World Constitution,
pp. which mandates the State
n
a
was divided into two political ideologiesis
hto ensure that every person has a right to
n
a
headed by two superpowers namely
.m the adequate means of livelihood; ownership
w
U.S.A. and the then U.S.S.R.
ww Ideologically, and control of material resources are so
the former was identified as the propeller distributed to subserve the common good
of the Rightist movement the defenders and the operation of the economic sysof the Movement for Liberty under the in- tem does not result in the concentration
fluence of Abraham Lincoln, whereas the of wealth and means of production to the
other, which was led by Lenin, the father common detriment.
11

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Now let us have a look on the various

Fundamental Rights like Article 14 which
guaranteesequality before the law and
equal protection of the laws. This Right,
thorough judicial delineation also includes
reasonable classification based on intelligible differentia,6 which enables the State
to legislate schemes for providing measures of protective discrimination in fevour
of women, children, widows etc. Article 14,
which guarantees equality before the law
or the equal protection of the laws has
been interpreted by theSupreme Court to
mean equality of Genderalso.Similarly, Article 15(3) prohibits discrimination on the
only ground of religion, race, caste, sex,
place of birth or any of them subject to the
law of protective discrimination in favour
of women and children. Article 16 envisages equality of opportunity for both men
and women in public employment without
any discrimination on the only ground of
religion, race, caste, sex, decent, place of
or any of them. Provisions of Article 39(a)
and 39(d) mandate the State to ensure that
men and women equally, have the right to
an adequate means of livelihood and that
there is equal pay for equal work for both
men and women. The other Constitutional and legal protections for the women are
enshrined in Art.325 (Electoral votes), Indian Penal Code Provisions ( 326A- Acid attack, 326B- Attempt to acid attack, Section
354- Assault or criminal force to woman to
outrage her modesty, 354A- Sexual harrasment, 354B- Act with intend to disrobe
a woman, 354D- Voyeurism and 354DStalking), Matrimonial Disputes (Sections498-A. Husband or relative of husband of
a woman subjecting her to cruelty, 304-B.
Dowry death ), Dowry Prohibition and Do-

mestic Violence Act and Sec-6 &14 of Hindu Succession Act. Further, by means of
73rd and 74th Constitutional Amendments
in 1992, reservation of seats for women in
Village Panchayats/Blocks and Municipalities respectively were envisaged. Subsequently, in terms of the U.N. Convention
of Elimination of All Forms of Discrimination Against Women, National Policy for
Empowerment was formulated in 2001,
in which most of the recommendations
of the Convention were incorporated.
In the case of Vishakha v. State of Rajasthan7 . In this case, writing on behalf
on Justice S V Manohar and Justice S
V Manohar, Justice J.S. Verma, the then
Chief Justice of India said:
The present petition has been brought as a class
action by certain social activists and NGOs with
the aim of focussing attention towards this societal aberration, and assisting in finding suitable
methods for realisation of the true concept of 'gender equality'; and to prevent sexual harassment of
working women in all work places through judicial process, to fill the vacuum in existing legislation. The immediate cause for the filing of this writ
petition is an incident of alleged brutal gang rape
of social worker in a village of Rajasthan.....Each
such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right of
Life and Liberty'. It is clear violation of the rights
under Articles 14, 15 and 21 of Constitution. One
of the logical consequences of such an incident
is also the violation of the victim's fundamental
right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or
business'....,The fundamental right to carry on
any occupation, trade
profession depends on
.coorm
p
p
n
the availability
of
a
"safe"
working environment.
a
h
s
ni to life means life with dignity.......Gender
aRight

.m

w
ww

6. ChiranjitLalChoudhary v, State of West Bengal AIR 1951 SC 41 and R.K.Garg v. U.O.I. (1981) 4 SCC675,
689-09.
7. Vishakha v. State of Rajasthan (1997)6SCC 241: Date of Judgment: 13/08/1997

12

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equality includes protection from sexual harassment and right to work with dignity, which is a
universally recognised basic human right......It
is further emphasised that this would be treated
as the law declared by this Court under Article
141 of the Constitution. The GUIDELINES and
NORMS prescribed herein are as under:It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts
of sexual harassment. Accordingly, we direct that
the above guidelines and norms would be strictly
observed in all work places for the preservation
and enforcement of the right to gender equality
of the working women. These directions would
be binding and enforceable in law until suitable
legislation is enacted to occupy the field.

rashtra V. Madhukar Narayan Mardikar9

, in which, a Police Inspector entered forcibly without any authority of law in the hut
of a prostitute Bhano Bai during night, the
Supreme Court deprecating the incident
observed: A women of easy virtue is entitled to
privacy and no one can invade her privacy and
every person can not violate her person as and
when he wishes. If any act is done against her
wishes, she is equally entitled to the protection of
law. Therefore, because she is a women of easy
virtue, her evidence cannot be thrown overboard.

UNMARRIED
MOTHERS AND
THEIR CHILDREN
As per the present law, an unmarried
mother cannot get passport of her child,
unless she discloses the identity of the
biological father supported by strict proof.
A dispute to this effect is pending before
the Bombay High Court10 . The unmarried
mother has to furnish an affidavit before a
judicial magistrate swearing therein as to
how the child was conceived or whether
she was a victim of rape or why she does
not want to disclose fathers name. This
is highly objectionable system and this
an insult to the mother. On the contrary,
an unmarried father has no difficulty to
get passport for his child. The question
is why this gender discrimination? The
Bombay High Court has sought reply from
the Central Government over this issue.

The Supreme Court taking suo-moto

cognizance on the basis of a news item
published relating to the gang-rape of a
20 year old woman of Subalpur Village,
P.S. Labpur, District Birbhum, State of
West Bengal on the intervening night of
20/21.01.2014 on the orders of community panchayat as punishment for having
relationship with a man from a different
community.In Re: Indian Woman gangraped on orders of Village Panchayat8,
P.S. Labpur, District Birbhum, State of
West Bengal, Justice P. Sathasivam, had
directed the District Judge, Birbhum District, West Bengal to inspect the place of
occurrence and submit a report to the It is reported that around 20% of the sexual
Court and the Apex Court framed guide- exploitationooccurs
.c m by the family members
p
lines for payment of compensation to the and
p
an near and closed relatives of the vicrape victim by the State Government. ishtim. Almost one quarter (23.6%) of perpe-

an

.m
ww

Similarly,in the case ofwState of Maha-

trators of sexual violence against women

were intimate partners or ex-partners.11 In

8. Writ Petition (C) No. 24 of 2014

9. JT 1990(4) SC 169.
10. As per a news report published in DainikBhaskar daily dated 1.11.2014
11. 'The Savi Report: Sexual Abuse and Violence in Ireland; A National Study of Irish Experiences, Beliefs and Attitudes Concerning Sexual Violence', 2002.

13

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such circumstance, what the State or the

judicial activism can do? The only remedy is to change the mind-set of the male
members in this regard.

domestic violence, dowry deaths, coparcenary right to property on women in the

joint family and ancestral properties. Inheritance and succession in the family
property, forced labour, rape etc. but no
recommendation was made regarding
evil of prostitution. It is strange as well as
disappointing to note that out of 34 noted Judges and Jurists, only one learned
person i.e. Justice Dr. A.S. Anand, former
Chief Justice of India had expressed his
anguish over the menace of prostitution.
Justice Anand lamented that legislation
was not self- applied. Whenever, yawning
gaps are left by the legislature, the judiciary has happily stepped in to provide gender justice. He lamented the shortcoming
of the Prevention of Immoral Traffic Act,
which failed achieve the desired result, as
consequence the prostitution has arisen
to a menacing proportion. Justice Anand
emphasised to liberate the women and
girls from the den of prostitution and to
re-integrate them with their families and
in order to achieve this herculean task, he
suggested for creating awareness in the
civil society. He had urged the National
Commission for Women to come forward
to address this problem and make recommendation for suitable legislation in this
direction.

The National Commission for Women had

organized an All India Meeting of Chief
Justices of High Courts on Women Empowerment vis-a-vis Legislation and Judicial Decision on 11th December 2004 at
New Delhi which was inaugurated and
presided over by Justice R. C. Lahoti, the
then Chief Justice of India in which all the
Chief Justices of High Courts had participated and expressed their views on
the subject. It was attended, inter alia, by
eminent jurists like Prof. N.R. Madhava
Menon, Prof.Nomita Aggrawal, Prof.Ranbir Singh, Dr. Padma Seth etc, and Dr.
Poornima Advani, the then Chairperson,
National Commission for Women, Ms.
Nirmala Sitharaman etc. Altogether 34
learned Judges and Jurists had attended
the conference and almost all aspects of
gender discrimination were discussed including the legislative measures taken by
our Parliament and the Supreme Court
by means of affirmative action through
judicial delineation. The conference also
appreciated certain judicial decisions delivered by the Supreme Court, particularly
Vishakha case 12 in which the Apex court laid
down the law in exercise of its power con- In a recent judgment reported as Delhi Doferred under Article 141 of the Constitu- mestic Womens Union V. Union of India 13 , the
tion of India in the field where there was Supreme Court has analyzed the defect of
no legislation on the subject, thus filled up the existing system in deciding rape matthe vacuum. The conference concluded ters. It has been found that the complaints
by making several recommendations to are handled roughly and are not given
the Government for the womens empow- such attention as
warranted. The vic.coism
p
p
n
erment. The conference touched all as- tims, more
often
than
not, are humiliated
a
h
s
pects of womens exploitation and gender aby
nithe police. The victims have invariably
m
.
discrimination like matrimonial disputes,
found rape trials a traumatic experience.
ww

12. Vishakha v. State of Rajasthan (1997)6SCC 241: Date of Judgment: 13/08/1997.

13. (1995(1) SCC 14).

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The experience of giving evidence in the

court has been negative and destructive.
The victims often say, they considered the
ordeal to be even worse than the rape itself. Undoubtedly, the court proceedings
added to and prolonged the psychological stressed to suffer as a result of the
rape itself.

legally approved profession and the prostitutes and their male customers are legally allowed to take part in this business,
then what purpose is going to be served
just by declaring the pimps, the agents etc
as offenders?

Prostitution is a stigma on humanity and

slur on male population of the society. Its
TRAFFICKING IN WOMEN
legalization must be opposed because
Trafficking in women is prevalent world legalization allows women to be exploitwide. No girl or women on her own would ed and abused. The nation requires a
ever enter into prostitution. The innocent mass movement to abolish prostitution.
girls and women are forced to enter into The common believe is that this cannot
this den by playing fraud upon them, coer- be abolished and such an act would be
cion, threat, kidnapping or under the influ- impracticable and unrealistic, firstly- being the oldest profession of the world and
ence of drugs and alcohol.
secondly because it is existing since the
It must be remembered that the women
beginning of history. They would argue
and girls are not commodities to be sold.
that in ancient India, there existed prostiOur social and legal system must guartutes for the feudal class commonly called
antee the protection of dignity, body and
Nagarvadhu the , the famous Amrapali,
emotions of women and girls, if we are to
the state courtesan,but this is not a genachieve our National goal of establishing
uine argument, they forget that these exegalitarian society.
isted during the feudal era. We are now
Our law does not ban prostitution, rather it in democratic era. As a matter of fact,
recognises prostitution as a business and slavery is the oldest badge of inhumanity
the law regulates prostitution. Our legal and prostitution is a concomitant of slavsystem has given a new name to prosti- ery. However, if slavery can be abolished
tution as sex industry and the prostitutes from the entire world, feudalism- in which
as sex workers. Neither the prostitute nor rajas, maharajas, zahgirdars, zamindars
her male customer is an offender. The law etc. existed- could be abolished, if the
only declares the pimps, the agents, the bonded labour could be abolished, if unmanagers and keepers of brothels and touchability could be abolished, then why
those who promote prostitution as of- not prostitution
.comcan be abolished ? Be that
p
p
anit may, it requires firm commitment folfenders and only these people are liable has
s
i
for punishment under the Immoral
Traf- lowed by change of mind set. The biggest
an
m
.
w named as hurdle would be about their rehabilitation.
fic (Prevention) Act, 1987 w
now
w
Suppression of Immoral Traffic Act. One The family members would not accept
fails to understand as to what type of the them and shelter homes are no solution,
law is? Once the law recognises prostitu- then the moot question is as to where
tion as a business, prostitution is allowed shall such women would go. The only
to function in a notified area of a city as a natural solution would be the acceptance
15

N. J. Comp. Law Vol. 3 (1) 2016, pp. 9-16

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by the family members. It requires drastic

change in attitude. I am reminded of the
post-Nirbhaya episode, in which the entire
nation was shocked over the barbaric incident. It was perhaps first time when the
people sympathised with the rape victim
and her family, otherwise earlier the common reaction would be to look upon the
victim as a woman of easy virtue or would
curse the victim for her own fault. In Nirbhaya case, the media played a tremendous role in bringing a radical change in
the attitude of common mass of the country. Now, we find through the media rape
incidents, but now we do not find fault
with the victim. We should have a similar
attitude toward the prostitutes, who too
are victims and rather worse victim than
rape victim. The family members of such
victims should come forward for their acceptance.
The women are always under the domination of male members of her family. As
a child, she is under the control of her father, as an adult, she is under the control
of her brother- whether elder or younger.
After her marriage, her husband takes
charge of her and even when she becomes mother, in the absence of her husband she is under the control of her son,
if he is adult. Thus, a woman is never independent. How to change this system?
Does it require any law to change it? The
answer is in negative. Here also the remedy is to change the mind- set of the male
dominated society. We need to change
our out-look and approach radically. Without seeking any legislative remedy, we

have to start from our home. The proverb

of King James Bible that Charity begins at
Home very suitably applies in the matter.
The great legendry and jurist Justice V. R.
Krishna Iyer, in his letter dated 17.11.1986
in response to my letter in which he
said:Social justice in our feudal- cum- exploitative milieu is under great strain and stress. With
the result that the Fourth World within the Third
World viz: the lowliest, the lost and the last, are
outlawed and out of bound for justice until a militant movement tuned to the hard realities of Indian life came to rescue these vast millions currently jettisoned by the Justice System and deliver
to them effective remedies. How shall we fashion
new access jurisprudence, a creative affirmative
action process and sensitive judiciary which will
respond to those whose life-long lot is blood, toil,
tears and sweat? The dynamic rule of law can
emerge only if catalyzed by jurists with a vision.
At the end I would like to repeat Karl Marx,
while exhorting the labour of the world,
he had said Workers of the world unite and
fight ....and smash the state and the law with
your might, you have nothing to lose except your
chains, then you shall enter into the kingdom of
freedom, where from each according to his ability to each according to his needs shall be the
law. I would repeat with a slight differencewomen of the world unite and start a Gandhianlike peaceful movement against the
gender discrimination, you have nothing
to lose except your chains and then you
shall enter into the kingdom of freedom
where you will work according to your cam
pacity and shallpget
your needs.
.coaccording

an
h
s

n
a i
m
.
ww

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N. J. Comp. Law Vol. 3 (1) 2016, pp. 17-20

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EMPOWERMENT OF WOMEN
AND GENDER EQUITY1
Usha Tandon
Professor-In-Charge,
Campus Law Centre, University of Delhi
Email : utandon26@gmail.com; utandon82@yahoo.com

Hon'ble Mr. Justice D.P. Singh, Most respected Prof. Manik Sinha, Prof. Ajendra Srivastava, Dr. Ajay Kumar Singh, other dignitaries on the dias and off the dias, faculty
members, participants and dear students, I congratulate the Department of Law, KS
Saket PG College, for choosing this seminal topic for the National Seminar which has
been engaging the attention of one and all for many decades. I would like to thank at
the outset, the organisers, especially Prof. Manik Sinha for inviting me and giving me
an opportunity to be a part of this gathering.

Well, when we talk empowerment of women, we find that there could be various
ways to empower women, and the law is but one of them. When we talk of law in
India, we find that law has played both kinds of role- it has been an instrument of patriarchal oppression and now lately an instrument of gender equity. So, firstly, I will be
briefly explaining, the changing role of law in empowering women in India. When we
say-law an instrument of oppression of women, we are reminded of laws which denied women various rights like property rights, adoption rights, guardianship rights etc.
Further we had some provisions in the criminal law which were/are based on mens
experiences and norms. Then labour laws had been insensitive to gender issues. The
whole classical Hindu law was gender biased. The Mitakshara school of law recognised only sons as coparceners to give them right by birth in the joint family property.
Daughters could not be coparceners simply because of the reason that they are females. I hope some of you may be aware of why Mitakshara ( 11th Century law) had
chosen sons instead of daughters to form the Hindu coparcenary. There is a religious
belief among Hindus for spiritual benefits, especially after the death-to the departed
ancestors. Since this is a religious matter, it is believed that a person should be pure
.com
to perform the rituals. Now daughters, who are subject
to monthly cycle cannot be
p
p
n
a
pure all days in the month, so they were excluded
as
being
incapable to perform the
h
s
i
rituals. Here, you can also understand
an why CEDAW-Convention on Elimination of All
m
.
w
Forms of Discrimination against
Women, 1979 used the words all forms in its title
ww discrimination is unacceptable in law. In 1956, when
and emphasised that biological
Hindu Succession Act, was passed giving daughters a share in the separate property
1. Address delivered at the UGC sponsored National Seminar on Empowerment
of Women in India: Opportunities and Challenges held on 22nd Nov. 2014 at
K.S.Saket P.G. College, Ayodhya, Faizabad- U.P.

17

N. J. Comp. Law Vol. 3 (1) 2016, pp. 17-20

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of father along with sons, it was thought

that constitutional guarantee of gender equality has been achieved. But the
working of it over the years exposed its
projected equality when the question
of succession to the fathers share in
the joint family property was examined.
Then we had State Amendments and finally in 2005, the Central Amendment to
the Hindu Succession Act, 1955, making daughters as coparceners.

Coming to guardianship, Hindu Minority

and Guardianship Act, 1956, is still surviving, unfortunately, with a provision which
says that mother is the guardian of a child
after father. Though the constitutionality of section 6 of HMGA was challenged
before the Supreme Court in Githa Hariharan v. Reserve Bank of India, 1999 (2)
SCC 228, and the Apex court gave the
relief to the mother to act as guardian of
the child by interpreting the phrase in the
absence of father in a progressive manner but , it did not strike down section 6
as unconstitutional. The legislature has
also not come forward, so far, to amend
section 6 as has been done in HAMA. I
hope the discussions in this seminar will
take up this issue recommending for the
suitable amendment.

As far as adoption is concerned, Hindu

law did not allow a daughter to be adopted. Hindu law allowed only the adoption of the son. Further, woman was not
given any right to adopt a child. In case
of childless widow, she could adopt only
if her husband had allowed her during
his lifetime. In those cases where she
was allowed by her deceased husband I will be touching, briefly, now, the gento adopt a son after his death, the adop- der protective laws
enacted recently
tion was not in her own right, it was to by the Indian Legislature. In 2005, Indian
the deceased husband by applying the Government passed the DV Act-Protecdoctrine of relation back. What could tion of Women from Domestic Violence
be better example than this to highlight Act, and then in 2013, it passed Anti-Sexuthat law had been an instrument of pa- al Harassment Act- Sexual Harassment of
triarchal oppression. Now when, in 1956, Women at Work Place (Prevention, ProHindu Adoptions and Maintenance Act hibition and Redressal) Act, 2013. Now
was passed, it allowed a daughter to be first of all, let me take this opportunity to
adopted. Further, a woman was also giv- emphasise that many learned people in
en the capacity to adopt a child under the the legal fraternity, especially the senior
Act, irrespective of whether she is un- ones, fail to understand as to why there
married, widow or divorcee. However, if is a need for the gender specific laws.
the woman was married, and was lead- When these two laws were passed, we
ing a normal happy married life , then in heard many senior male scholars saying
between her and her husband , the hus- that these Acts should have been genband was given superior right to adopt der neutral and not gender specific, the
a child with the consent of the wife. The reason being that men are also subject
wife was not having equal right to adopt to domestic violence and sexual harassm
a child with the consent of the husband. ment. The proper
of this
.counderstanding
p
p
n
It was the result of various discussions issue requires
the
fundamental
underhaof how gender neutral laws afs
i
in the seminars like this that ultimately in astanding
n
.m fect men and women differently. It also rethe year 2010, HAMA was amendedw
and
w con- quires the understanding of as to why we
wthe
now both husband or wife with
sent of other can adopt a child.
have CEDAW in 1979 when we already
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N. J. Comp. Law Vol. 3 (1) 2016, pp. 17-20

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had UDHR right from 1948 and ICESCR

and ICCPR, 1966. The Universal Declaration of Human Rights stipulates human
rights which are universal in nature and
are gender neutral. Recognising the barriers to womens rights within the dominant
human rights framework, a need was felt,
at the international level, to have a special
document containing the human rights
of women. When we analyse the human
rights discourse in the light of our Indian
Constitution, we find that the separation
of Fundamental Rights containing civil
and political rights from the Directive Principles of State Policy containing socio,
economic and cultural rights has affected women adversely because of the
simple reason that the socio-economic and cultural rights, which are made
non-enforceable by Court, affect the
lives of women more than the civil and
political rights which are made enforceable by Court. (Articles 37 and 32 of the
Constitution). Thanks to the Apex Court
that has started reading Directive Principles of State Policy in the Fundamental Rights especially the Right to Life.

tive, we cannot ignore the fact that , assuming that men are also victim of these
evils, the difference lies in the fact that
first, the percentage of men being victim
is, very low in comparison to the women;
second, domestic violence or sexual harassment affect the women as a class and
it affect the men as an individual; third
these evils affect the men and women in
a different manner, so they need different
remedies, which cannot be provided in
gender-neutral laws. For example, a wife
who is a victim of domestic violence may
be thrown out from the matrimonial house
by her husband. In the patriarchal society,
the institution of marriage is all the more
patriarchal which obliges the daughter
to leave the house of father on marriage
and joins the house of husband. As a victim of domestic violence, she desperately
needs a roof over her head, which , before
2005 was not provided by law to her. The
DV Act now gives her the protection of
residence order. This relief of residence
order is immaterial to the husband who
is victim of domestic violence, because
he is in his own house. It is the wife who
leaves the house, in strained relationship,
as she has come to live in that house after
the marriage, so on and so forth.

Now coming back to the gender neutral

or gender protective laws, let me share
with you that at one point of time, I myself
was an advocate for gender neutral laws. Coming to the judiciary, quickly and briefHowever, my perception was changed, ly, we have mixed response from the Juwhen I got sensitised with women issues, diciary. Recently a remarkable judgment
in one of the seminars like this, around 20 is given by the Supreme Court through
year back in 1995. So, what I am trying to Justice A.K. Sikri, in Badshah v Urmila Badhighlight is that gender sensitization is the shah Godse, (2014) 1 SCC 188, granting
pre-requisite to understand and appreci- maintenance
om, under section 125 Cr.P.C
c
.
p
the
ate the gender protective laws. With the to n
p woman of second marriage ,who
a
h
traditional understanding of law, which
is was kept in dark about the first marriage
n
a
of her husband, by her husband himhas now been changed in books,
but
not
.m
w
w scholars, we self. Another progressive judgment from
in the mind of some oldw
legal
are at pains, sometimes, when we find the Supreme Court is Lt. Col V.D. Bhanot v
that women issues or women laws are Savita Bhanot, (d/o 07.02.12) ,settling the
laughed at by senior professors, lawyers question of retrospective operation of DV
and others. Again coming back as to why Act holding that domestic violence is nevDV Act or SH Act is, rightly, gender protec- er an isolated act, but a continuous viola 19

N. J. Comp. Law Vol. 3 (1) 2016, pp. 17-20

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tion of womans human right to live free

of violence. The Delhi Court in, Kavita Das
v NCT of Delhi, (d/o17.04.12 ) gave woman a right to reside in husbands rented
premises under the DV Act. However the
judgments like S.R. Batra v Taruna Batra,
AIR 2007 SC 1118 and D Velusamy v D.
Patchaimmal (d/0 21.10.2012) have set
wrong precedents in the path of women
empowerment denying them the residence order and maintenance order respectively under DV Act.

There are other things to be shared

with you, but looking to the time constraint, I wind up my address by saying
that though some progress has been
achieved in the struggle for women empowerment , but much more has to be
achieved. We are living in a period of
transition in this regard. After all suppression of women is around 6000 years
old, and the struggle of women emancipation and empowerment is about 200
years old.

ww

sh

ni
.ma

20

om

p.c
p
n
a

N. J. Comp. Law Vol. 3 (1) 2016, pp. 21-26

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GENDER EMPOWERMENT AND SOCIAL JUSTICE:

ROLE OF MNREGA IN NEW MILLENIUM
S. C. ROY
Associate Professor
Chanakya National Law University, Patna
Email : scroy2010@gmail.com
Discrimination against women is not a new phenomenon. Women have been victim
of gender injustice from ages. This has created lots of social abuses and evils. In order
to protect and promote women against the inequality and injustice, women empowerment has been taken as movement. Generally empowerment suggests enactment of
pro-feminist legislations and making them aware of their rights. Of course, it cannot be
denied. But the rights without confidence are the same as sword in the hand of a feeble
man. Thus empowerment refers to strengthening an individual mentally, educationally, socially, economically, politically, spiritually etc. It is rationalisation of individuals
towards his/her rights and duties. It is not simply economic empowerment that suffices the need for empowerment. The economic empowerment inculcates confidence
for further development. As gender is a creation of male dominant society determining
their role from beginning to end? The society determines the sphere of women in all
terms. Thus gender inequality makes the women marginalised. Marginalised people
lack self-confidence, self-sufficiency, become dependent on the male counterpart and
live on the charity. They lose self-confidence because they cannot be fully self-supportive. They have to face various limitations, i.e. moving out, talking to other people,
wearing particular dress, going alone and too far ,participation in decision making ,etc.
In this way woman become victim of gender inequality and further social slavery. This
ultimately hinders the family development in all respect. Therefore, the first way of empowering women seems to provide them employment opportunities within their reach
locally. Since the employment advances the cultural life of human being, here women
can fight against the agents of gender inequality and injustice.
In this context, MNREGA has guaranteed for work in the local area of the village
panchayats reserving 33 percent jobs for them. It has a hidden purpose of gender emm and woman, to learn the
powerment. The MNREGA is trying to encourage both
.coman
p
p
skill, invest in the work and earn money along
n socio-economic moral confidence.
awith
h
s
i an ambience of understanding towards
The work culture at MNREGA cann
create
a
m
.
gender issues. The women, on
w the other hand, can earn and pay the debt and retrieve
w
w
the pawned gold, can take care of the childrens education, enable them to meet day
to day house hold expenses and save money for future. Here they can design the
project suitable to them and take part in social audit too. In fact it reflects the concept of workers participation in management. But the work is not designed keeping
women in centre. Due to increase in working hours, their leisure time has vanished.
21

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They have to bear with physical and

emotional strains. The woman has to finish the house-hold work before going to
the work places. Even during the lunch
break, they have to return to take care
of their children and other family members. More wage payment is linked to
task-based, earning less in comparison
to the male counterpart. This is muchmore difficult for old, physically weak
and lactating women. The crches are
not available at work places, or sanitary
facilities. In this background, this paper

seeks to study as to how MNREGA can

bring change in the mind-set of the male
members of the society for gender empowerment. If women centric planning
is formulated, they can avail maximum
empowerment opportunity which will be
a great contribution to the family, society
and the nation in all aspects. This paper
will try to formulate certain model suitable to women workers at MNREGA so
that the goal of gender empowerment
can be achieved for social justice in new
millennium.

Key Words: Gender Empowerment, MNREGA, Social Justice, Gender

Inequity.

they aspire to do something but lack of

local opportunity, freedom and social diGender inequality refers to unequal treat- alogue force them to remain within four
ment or perception for woman in a male walls. In this situation women do not find
dominated society. It arises from socially any opportunity for the cultivation of their
constructed gender roles. Males are phys- mind. Thus they become marginal in all
ically strong in comparison to females. respectseconomic, political and social.
They have been assigned to look after This leads to wage discrimination to the
outdoor work, doing businesscultiva- working women. The educated women
tion, industrial occupation, trading, servic- have no job as per their standards or do
es in public and private sectors. Whereas, they have any opportunity for skill develfemales have been assigned the task of opment. Thus the human capital dries
grooming and nurturing of children and up, unable to pierce the cycle of gender
managing the family affairs. Although in equality. The MNREGA has been introfemales help the males in economic ac- duced in 2005 as rays of hope in the rural
tivities in order to manage earning. But India. It provides 100 days job to theadults
with changing pace of time, women are of the panchayatswhere 33 percent jobs
getting education, earning from outdoor have been reserved for women. But it is of
activities, still they have traditional func- no use as there is lack of women friendly
tions to do. The reason is obvious. The environment at work places. NREGA has
children are close to mothers. The males included major poverty alleviation prolack such instinct. The male cannot man- grams which were initiated in 1961 in
m program. A seage the family affairs nor protect and sat- the name of Rural
coworks
.
p
p
isfy the interest of all members. This is the ries of wage
an employment program folh
s
reason that most of the educated women lowed
ni this program The central scheme
.mafor rural employment (CSRE),food for
leave job for the sake of the family. w
They
ww with work program(FFWP) in 1970,the naspend their time in the courtyard
children and old age persons.Although, tional rural employment program(NREP)

INTRODUCTION

22

N. J. Comp. Law Vol. 3 (1) 2016, pp. 21-26

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and rural labour employment guarantee

program(RLEGP) in 1980s,Jawahar rojgar
yojana(JRY),the employment assurance
scheme(EAS) &jawahar gram samridhi
yojana(JGSY) in the 1980s.In 2001,the
Sampurn gram rojgar yojana(SGRY)
was launched by merging the ongoing
scheme of EAS&JGSY.What were the reasons of shifting of programs? Whether
there was any program to develop the human capital asset for permanent solution
of unemployment ? Whether women had
any place in those programs? Whether
there was any dialogue for gender empowerment in those programs and even
in NAREGA whether any such mechanism
has been introduced for social change,
empowerment and social justice? If the
answer is NO the, NREGA may have the
same fate. As the work and work culture
is not woman centric. Since woman is the
centre of family and apathetical ignorance
is bound to bring damage to the fabric of
social and social justice. Therefore the
cobweb of gender inequality requires being demolished through gender empowerment and change in male mind-set.
The NREGA can be implemented to create human capital asset with change in
the mind-set of the society .The rural employment program can become the vehicle of social change. This paper will try to
investigate into the facts to bring lasting
solution of gender empowerment in order
to achieve social justice.

child seems negative. At this point, who

is responsible? Whether the male members are fully responsible? Since the Indian society is male dominant, therefore
the angle will tilt towards them. The male
members decide the fate of the family and
woman too. The males determine the role
of the female child, her education and future. The mother of the house is deaf and
dumb on this issue. Here lies the role of
women to intervene and save the female
child to be crushed in the vehicle of endless sufferings but how to prepare our
women for this challenge?

Although various programs are being run

by the central and state government to
save the female foetus, provide nourished
diet, health and liberal education. But the
real awakening is far away from the reach
of the rural women. The NREGA can be a
bench mark for mass movement for gender development. For this purpose, at least
one-third of NREGA fund can be utilised. It
is obvious that the fund for this scheme is
not utilised fully every year. There is lack
of proper planning and implementation
of the program. This is the reason that
even job card holders are jobless. The
NREGA has provision for unemployment
allowances. It is also obvious that such
persons do not sit idle .They move somewhere and earn their wages. In this way
the fund goes in vain without any productive result. Thus if the ninety percent jobs
com
.
are reserved
for women in NREGA, such
p
p
THE CONSTITUTION AND THE an
siphoning of allowances can be checked.
GENDER EMPOWERMENT anish
It is also a hard fact that the program is
.m
w
The constitution of India
guarantees
not successfuldue to lack of male labourww
rights to women at par with men. It also ers. The male workers move to the adjaprovides special status under Article 15 of cent cities and earn more than the wage
the constitution. But gender disparity re- of NREGA as the minimum wages in this
mains and it is visible without telescope. program is not market friendly. In this way
The attitude of the society towards female the villagers are not in a position of tak 23

N. J. Comp. Law Vol. 3 (1) 2016, pp. 21-26

ISSN : 2393 - 9338

ing full advantages of this plan. The fund

can be utilised in training and skill development of women. They can be trained
in KUTIR UDYOG weaving, spinning, mat
making, can work, and bamboo related
work, pickle making etc. Thus agriculture
universities can be helpful in this project.
The women can be trained in entrepreneurship and personality development
connecting with health department. The
agro based training-mushroom growing, bee hive, work related to medicinal
plantation and use of such plants. The
women can be engaged in social forestry
and their groups can maintain also. The
animal and husbandry department can
train them in bird farming, dairy farming
and other related work. Such training program can be encouraged the male youth
also to learn and earn. Thus the fund of
NREGA can be properly utilised both in
infrastructure building and skill building.
The women can be trained to keep the
surroundings clean and hygienic. This will
create leadership quality in women. This
is the key to all locks of problems to open.
In these efforts the women will regain
their esteem and the social abuses will
gradually vanish. The misuse of the fund
will become a boon for lasting solution
of social inequality. It is obvious that economic dependency is not the only barrier
to empowerment; it is mental bondage
too. The training in skill, entrepreneurship
and personality development can be the
panacea for women empowerment under NREGA program.

Panchayat isthe third most important

wing of federalism. The 74th constitutional
amendment and the MNREGA together
have devolved authority to the panchayats to plan, execute and evaluate through
its members collectively. In fact MNREGA
has initiated the cherished demand, the
right to work as fundamental right as the
job card holders are entitled for unemployment allowances. Thus social audit is
a self-evaluation mechanism. Social audit is not only to audit financial transaction
rather it is to ensure accountability. This
involves proactive and collective efforts
to check the siphoning of public fund for
proper social utility. It is to build up awareness and training in finance. Here while
doing audit, the members have to see the
project, expensesinvolved, quality of work
done, durability and future possibility. But
the success of audit depends upon full
participation in the process. Here situation is sorrowful. The participation of the
members is always below quorum. The
village presidents never try to ensure full
participation. It has reasons tooabsence
of male members as well job card holders during audit, lack of interest in social
activities, etc. In this way the very mission
and ambition of social audit is defeated
and the entire plan is lost into oblivion.
Thus neither the financial verification nor
the spot verification is done. Thus the success of MNREGA is on stake and billions
tax payers fund goes in to the pockets of
representatives. This has helped the increase in the flow of black money, dishonesty and price rise. This is the reason that
WOMAN AND SOCIAL AUDIT
despite pouring into
fund in MNREGA, the
.com
p
p
Under NREGA, there is a provision of so- dams are
n
as
usual,
roads
are rough, and
a
h
s
cial audit. It is different from financial au- avillage
ni streets are muddy, surroundings
m
.
dit .The provision of social audit w
implies
to the houses are polluted, deforestation
w
w
participation of the members of gram is continuing. The story of MNREGA is the
Sabha in the socio-economic activities. story of the failure of social audit. In this
24

N. J. Comp. Law Vol. 3 (1) 2016, pp. 21-26

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scenario, women can come to rescue to

the ambitious program.

woman is the centre of the family. The

village is the collective combination of
families living together from generaSince the women are very close to fam- tions. If woman is empowered, the family management, they can be the best ily will be empowered. The entire evils
social auditor. The woman of the gram of the society can be eradicated withSabha will learn responsility to handle in a short span of time. Keeping this
properly through social audit. More so, view, UN took up the womens issues
when around ninety percent jobs will be in 1980 to play active role in all sectors
reserved for women, they would be more at all levels. In 1990, SAARC has also
sincere to protect their own interest .The endorsed women in development apinvolvement of the women in social au- proach in all planning and implemendit will develop sense of responsibility, tation. Since 1995, Beijing conference
rational thinking, budget making and im- on women, there has been a surge in
plementation and effective control on fi- gender responsive budgeting. Thus the
nance. All these shall be able to empower empowerment project for women is
the women in true sense. The empower- working nationally and internationally.
ment cannot be provided rather it is a sub- But NREGA is a grass root program with
ject of inculcation and gradual cultivation. a social involvement mechanism. Here
It is on the job training and practice .The women can get work at home .It will
social auditing will build up confidence save them from the torture of migration
which can help them in fighting the odds to other places. They can prosper at the
of the family and society, furthering the place where they feel comfortable, safe
enthusiasm for child empowerment. If and secured. The success of the prowomen participate in the audit, they will gram is reflected by the data from 2006
talk, walk and interact with people which onward which shows increasing trend
are essential to break hesitation. The of women employment in Kerala, Tamilwomen will be in a position to convince nadu, Madhya Pradesh and Rajasthan
their feeling and the social attitude can be .But the trend is poor in Arunachal ,Bichanged. The women will be able to talk har, WestBengal. Thus this program
freely on gender discrimination, domes- can be excellent tool for rural empowtic violence, women education, dowry erment in letter and spirit. The rural
system, female foeticide, child labour like women are deprived of good exposure
social issues. The social audit can be uti- towards analytical thinking. The NREGS
lised as a platform for social dialogue. The can provide plenty of food to think over
.com one self. Whenever cerwomen can better chalk out plan and ex- and p
rationalise
p
an problems befall on any person, the
ecute them; monitor at work place .Thus
tain
h
s
ni same can be translated into producthe total involvement of womenm
isa
possi.
w
ble through MNREGA and
socio-economtive assets.Narega has economic base
ww
ic-cultural empowerment is possible.
which can be used for communication,
understanding and cooperation for betWOMEN IN DEVELOPMENT AND ter the production of women friendly
MNREGA
society. The MNREGA policy requires
There Can be no denial of the fact that being women in development for gen 25

N. J. Comp. Law Vol. 3 (1) 2016, pp. 21-26

ISSN : 2393 - 9338

der empowerment.

CONCLUSION
The MNREGA is such a tool in the hands
of the gram panchayats that it can bring
total change in the rural India. It requires
to be reviewed and some addition is essential. The Reserved job for women has
to be increased from 33 percent to minimum 75 percent. The restriction for job
card for BPL seems to be removed. The
training program in skill development to
all women in slack seasons will develop
entrepreneurship. The mandatory quo1.
2.
3.
4.

rum for women in the social audit will build

up confidence and encourage dialogue
between men and women .It will open
new window through which the evils of
the society will go out. Since, the reasons
of social problems lie in the lack of dialogue, therefore MNREGS can be created
a platform for vibration in the society. It
can be submitted that proper representation of women can bring social change in
thought, words and action. The misuse of
fund on different sector can be minimised
and the aim of gender empowerment can
be achieved within a five year plan.

The constitution of India-Prof. J.N.Pandey.

Law and Gender inequalityFlavia Agnes, Oxford publication
The MNREGA 2005.
The Social audit reports.

ww

sh

ni
.ma

26

om

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p
n
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N. J. Comp. Law Vol. 3 (1) 2016, pp. 27-42

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ACID TEST OF THE ACID ATTACK VICTIMS:

A DISCOURSE FROM LEGAL PERSPECTIVE IN INDIA
Pradip Kumar Das

Assistant Professor & Head(I/C), School of Law and Governance, Central University of Bihar, Gaya, Bihar, India,
former Assistant Professor-II, School of Law, KIIT University, Bhubaneswar,
Odisha, and former Principal, Haldia Law College, W.B.
Email: pradiplaw2424@rediffmail.com

She cannot come out of the house and walk in the streets with
blind eyes, nose, lips; forehead reduced to mangled flesh and thus has
become a prisoner in her own house, for a lifetime..

A 30 year old women doctor sustained burn injuries on her face and neck after
two bikers threw an acid like chemical substance at her in Rajouri Garden in West
Delhi on Tuesday morning. The women, Dr. Amrita Kaur was on her way to the ESI
Hospital on her scooty at about 9.25 a.m. when two bikers hurled the chemical
substance at her in the busy Rajouri Garden market .2
A 21 year old women suffered severe burn injuries after acid was thrown in her
face in Srinagar, Jammu and Kashmir. The victim, a law student, was attacked by
two unknown men outside a law School at Nowshera, in the outskirts of Srinagar.3
A girl suffered serious burn injuries when three motorcycle-borne youths threw acid
on her at Prabodhi Narendra in Sarai Police Station, Wednesday. Police said the victim a student of class X, was taking a stroll around her house when the incident took
place. She had been sent to Patna Medical College and Hospital for treatment .4
Rupsa Yasmin, a class XII student from Panskura, West Bengal, suffered severe
burns on her face after being attacked by a relative for refusing to marry him. The
victims sister and mother who were sleeping besides her also suffered acid burns
and all of them had been admitted to the district hospital in serious condition .5
Yes, the above few facts are only tips of the iceberg. Actual number of victims of acid
attack is much more and the number is increasing day by day all over India. Acid attack is one of the heinous crimes in the history of all mankind. Victims human rights
are taken away, their freedom to live with dignity is snatched
and they are pushed to
m
o
c
. passage of time, incidents of
uncertain, hopeless and helpless conditions. With
pthe
p
n
a
acid attack become blur in the public memory
sh but the victims continue to spend rest

1.

ni

a
w.m

ww

Dr. Pradip Kumar Das, Assistant Professor & Head(I/C), School of Law and Governance, Central University of Bihar, Gaya, Bihar, India, former Assistant Professor-II, School of Law, KIIT University, Bhubaneswar, Odisha, and former Principal, Haldia Law College, W.B..

Karnataka High Court in State of Karnataka by Jalahalli Police Station vs.Joseph Rodrigues, S/O
V.Z. Rodrigues[Decided in the H.C. of Kerala on 22/8/2006].

2.

Mohit Sharma, Hindustan Times, New Delhi, December 23, 2014, Patna edition.

3.

Toufiq Rashid, Hindusthan Times, 12th December, 2014, Patna Edition.

4.

Hindusthan Times Correspondent, Hindusthan Times, 26-09-2014, Patna Edition.

5.

Kaushik Dutta, Hindustan Times, 5th July, 2014, Patna Edition.

27

N. J. Comp. Law Vol. 3 (1) 2016, pp. 27-42

ISSN : 2393 - 9338

of their lives in a manner which is worse

than death. In fact, acid attack led them
to face an acid test of rest of their lives.
It is inhuman, barbaric, and despicable. It
is generally a form of gender-based violence aimed at silencing and ultimately
destroying the women physically, economically and psychologically .6 It is the
intentional and deliberate act of perpetrators to permanently disfigure the victim.
They destroy and despoil the rights of the
victims to live as a human being in this
beautiful world. Acid attack is the result of
nefarious and deep rooted conspiracy on
behalf of the perpetrators which may endanger the safety and security of the entire human race in our society slowly but
surely. It is eating into vitals of our society
as a silent killer.
However, it is in this complex socio-economic spectacle, I have ventured to write
this paper on the topic Acid Test of the
Acid attack victims: A Discourse from legal perspective in India. This paper tries to
discuss the definition of acid attack, its nature and extent in India. This paper has discussed different relevant judicial decisions
in India on acid attack and the latest trend
of Indian judiciary in this regard. Author
has highlighted the relevant legislative developments on acid attack in our country
and finally the paper has also made some
suggestions to combat acid attack and to
rehabilitate the victims of acid attack.

DEFINITION,
EXTENT OF

NATURE AND
ACID ATTACK

Acid attack can be defined as an act of

gender based(generally) violence that
results in or is likely to result in, physical,
6.

7.

sexual, psychological harm or suffering

to a person. Acid attack means any act
of throwing acid or using acid in any form
on the victim with the intention of or with
knowledge that such person is likely to
cause to the other person permanent or
partial damage or deformity or disfiguration to any part of the body of such person.7 It is predetermined act of violence as
the perpetrator of the crime carries out the
attack by first obtaining the acid, carrying
it on him and then stalking to the victim
before throwing it. So, a long preparation
is necessary to commit this crime. Acid attack is an extremely violent, inhuman and
barbaric crime by which perpetrators seek
to inflict severe physical, economical and
psychological suffering on the victims. It
is committed to take revenge against the
women. The venomous and cruel intentions behind these attacks are clear from
the acts of the perpetrators that most attacks are directed intentionally and deliberately at the face of the victims, resulting
in scarring, deformity and making them
into a monster. Victims are gradually isolated from the society and they are compelled to go to underground in the face of
ridicule as it becomes nearly impossible
for them to carry on day to day activities in
the society.
Rejection of love or marriage proposals
and rejection of sexual advances amount
to more than one third of incidents of acid
attack in the country and about half of the
victims of such attacks are students.8 Besides the above, other possible reasons

.com
p
p
where men are also attacked. Sometimes, a man who accompanies
an the victim may be attacked or
h
s
iof women victims is much greater than men.
may be affected by the attack. However, the number
anacids)
Scheme for relief and rehabilitation of offences(by
on women and children, National Comm
.
wPage-3, www.ncw.nic.in/PDFFiles/Scheme_ACID_Attack.
w
mission for Women, (29 January, 2009),
w
Women are generally attacked. But, it doesnt mean men are never attacked. There are many instances

th

pdf.(Acccessed on 25-12-2014).
8.

The Hindu, September, 14, 2014, Kolkata, www.thehindu.com(Accessed on 25/12/2014).

28

N. J. Comp. Law Vol. 3 (1) 2016, pp. 27-42

ISSN : 2393 - 9338

are revenge for any past incidence occurs

between victim and offender, business
disputes, domestic fights, disputes over
property, extra marital affairs, political rivalries, refusal to pay dowry etc.
Acid attack, within twinkle of moment, utterly devastates the victims life. Many of
these attacks result in permanent blindness. Victims go through serious trauma
as it not only affects their physical shape
but also put an end to their future hope and
aspirations. Acid devastates the lives of the
victims. It erodes soft tissues and bones,
shattering dreams and hopes of the victims. Acid burns their body, their passion,
their liberty and all of their aspirations and
ambitions. The perpetrators usually does
not want to kill the victim, but want to do
something worse than murder- make
the victim suffer forever.9 The perpetrators
blame the victim for the problem, and
want to inflict as much physical and mental suffering as possible.10 Victims who
survive their injuries have a long, painful
and exhaustive recovery. Deep burns are
very difficult to cure and become vulnerable to infection and other related problems. Victims generally spend long time in
hospital.11
Acid burns through skin and flesh layer by
layer. It eats through the two layers of the
skin, into the fat and muscle underneath,
and sometimes down to the bone. The

biggest immediate danger for victims is

breathing failure.12 Inhalation of acid vapors can create breathing problems in two
ways: One by causing a poisonous reaction in the lungs or by swelling the neck,
which constricts the airway and strangles
the victim.13 It can take 3 to 12 months for
burn wounds to heal. Again, long periods
of intensive physical therapy are needed to
minimize victims lack of movement from
scarring. Even after their wounds are fully
healed, victims may still suffer pain and
discomfort. Victims often complain that
their scars were itchy and sore, and some
say they have other health problems.14
Victims also suffer from many psychological symptoms e.g. depression, sleeplessness, fearfulness, headaches, weakness
and tiredness, difficulty to concentrate or
remember things.15 They become lonely
and ashamed because people may stare
or laugh at them. Even they face problem
to carry on ordinary day to work. Acid attack victims also face the possibility of septicemia, renal failure, skin depigmentation
and even death.16 The most common forms
of acid used in these attacks are sulfuric,
nitric or hydrochloric acid etc. Perpetrators
usually aim and throw acid at the face of
the victims as face symbolizes beauty. They
want to take away beauty of the victims. The
reason is to place women in a perpetual
state of economic hardship since they are
no longer suitable brides for future suitors.
So, the victims will be forced to either de-

.com
p
p
9. Living in the shadows: Acid attacks in CambodiaanPublished by Project Against Torture, Camboh
s
dian League for the Promotion of Human Rights(LICADH
O), 2003, Page-1, www.licadho-Cambodia.
ani
org/..../41acid%20report%20English.pdf.(Accessed
on 25/12/2014).
m
.
10. Ibid .
ww
w
11. Ibid .
12. Ibid at P-10.
13. Ibid.
14. Ibid.
15. Ibid at P-14.
16.

Acid throwing : A cause of concern, J. Punjab Acad. Forensic Med. Toxicol. 2013, 13(2), Page60,www.medind.nic.in/jbc/t13/i2/jbct13i2p60.pdf.(Accessed on 25-12-2014).

29

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pend on their families or live alone in the

society, depending on the charities and
sweet will of others.17

Statistics of Acid Attacks

There is no available separate statistics
for acid violence in India till early 2013 because the Indian Penal Code (IPC) did not
recognize it as a separate offence. With
the amendment of Indian Penal Code in
February, 2013, incidents of acid attack
will be recorded as a separate offence.
However, Acid Survivors Foundation India
(ASFI), a non-governmental organization,
revealed the statistics in a seminar titled
Acid violence Challenges & remedies in
Kolkata that in 36 per cent incidents of
acid attack, the victims are targeted for
rejection of love marriage and sex. Marital discord results in 13 per cent of such
attacks and the reason for 11 percent of
acid attacks are disputes related to land,
property and other related issues.18 As
per Avijit Kumar, assistant director (head
Quarters) ASFI, while 122 attacks were
reported in the country during the year
2013, up to July, 2014 about 104 attacks
have been reported.19

The figures compiled by ASFI on the basis of media reports and Right to Information (RTI) quarries have revealed that20
47 per cent of the attack victims are students and 87 per cent of perpetrators are
males. In 84 per cent cases, the perpetrators are known to the victims and in 82
per cent cases the victims are non-family
members.21 As per another estimate of
Acid Survivors Trust International around
1500 acid attacks are reported worldwide
every year22 and an estimated 80 per cent
of the victims are women.23 In West Bengal, India, total 6 attacks were reported in
2013, whereas up to August, 2014, total
12 such cases were reported only within
first eight months.24 According to Mr. Avijit
Kumar, assistant director (Head quarters),
Acid Survivors Foundation India(ASFI)
from January, 2010 to July, 2014, about
518 persons had been victimized in acid
attack over the country.25 A review of Indian newspapers found 153 reported acid
violence cases from January, 2002 to October 2010. Actual number may be much
greater than this because all attacks are
not reported in the print media.26 An attack in India generally occurs in public

17. Saving face: Acid Attack Laws after the UN Convention on the elimination of all forms of dis crimination against women, Lisa M. Taylor, P-399, www.digitalcommons.law.uga.edu/cgi/viewcontest.
cgi?article=1474&context......pdf.(Accessed on 25-12-2014).
18. The Hindu, September 14, 2014, Kolkata, www.thehindu.com(Accessed on 25/12/2014).
19. Ibid.
20. Ibid.
21. Ibid.
22.

Acid attacks: New law hikes punishment, but does not help victims, The Hindustan Times, April
7, 2013, New Delhi, www.hindustantimes.com/india....../acid-attacks..../article1-1038797.aspx.(Accessed on 25-12-2014).

23. www.mic.com/articles/./1-200-women-are-viciously-attacked-with-acid-every-year.(Accessed on
25/12/2014).

om

p.c
p
n
a

24. Acid attacks double in West Bengal in 8 months, The Hindu, August 31, 2014, Kolkata, www.thehindu.
com(Accessed on 25-12-2014).

ish
n
a
for Women and Justice at Cornell Law School,
the Committee on International Human Rights of the
w.m
w
New York City Bar Association, the
Cornell
Law
school International Human Rights clinic and the
w

25. Ibid.
26.

Combating acid violence in Bangladesh, India and Cambodia- A Report by the Avon Global Centre

Virtue Foundation, -2011, Page-10, www.ohchr.org/Documents/..../AvonGlobalcentreforwomenandJustice.pdf.(Accessed on 25-12-2014).

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places. On the basis of reported news,

nearly 61 per cent of reported attacks had
occurred in public places, such as roads,
bus stands, trains, schools , colleges, hospitals and parks etc. .27

JUDICIAL DEVELOPMENTS IN INDIA AND ACID ATTACK VICTIMS:

In State (Delhi Administration) vs.
Mewa Singh, 28

In Smt. Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma and Ors.29
Maharaj Krishan Sharma and his Mother
Shanti Devi were convicted by the additional Session Judge, Delhi, under section 302 read with section 34 Indian Penal
Code on the allegation that they caused
the death of Shanti Devi alias Prem Lata,
wife of Maharaj Krishan, accused, by forcibly pouring sulphuric acid in her mouth, and
were sentenced to undergo imprisonment
for life. On appeal the Delhi High Court acquitted the two accused by giving them the
benefit of doubt. On appeal, Honble Supreme Court also held that the deceased
committed suicide by taking Sulphuric
acid and the appeal was dismissed.

On the night 18th and 19th May, 1996 at

about 1.30 A.M. Kumari Gita was sleeping
along with Kumari Soni and her cousin in
quarter number 613, Sarojini Nagar, New
Delhi. At about 1.30 A.M., being aroused by
the sound of approaching footsteps, Gita
saw the accused Mewa Lal was standing
In Barati vs. State of U.P. 30
on the her left side and before she could
raise a cry, the accused threw acid on her Barati was tried in the court of Sessions
face. Kumari Gita felt a burning sensation Judge Sitapur for an offence under secand raised an alarm. Soni, public witness, tion 302 Indian Penal Code for causing
her cousin also felt a burning sensation on death of Lekhai(45) by pouring acid on
her feet. This attracted her uncle Sham Lal him. Prabhu and Ram Lal were also tried
and Sham Lal along with B.N. Lal, victims along with Barati for offence under secfather, chased the accused but failed to tion 302 read with section 109, Indian
catch him as the accused ran away. Gita Penal Code for having abetted the comwas shifted to Sajdarjang Hospital where mission of the offence of murder. Learned
She was medically examined and admit- Session Judge acquitted all the three acted. The accused was charged under sec- cused. On appeal filed by the State the
tion 326 of Indian Penal Code. Trial Court, Allahabad High Court convicted Barati
however, acquitted the accused on benefit under Section 302, Indian Penal Code
of doubt. But the Delhi High Court set aside and sentenced him to undergo imprisonthe Judgment of the trial court and con- ment for life. The appeal against Prabhu
victed the accused Mewa Lal under section and Ram Lalm
was dismissed. Honble Suo
c
.
p
323, Indian Penal Code and sentence him preme
Court, however, justified the decinp
a
h
to a fine of Rs. 300/. In case of default on
sion
of
the
High Court in setting aside the
is
n
a
payment of fine, the accused shall
.mundergo acquittal of Barati, the accused and disw
w of 15 days. missed the appeal.
simple imprisonment forw
a term
27. Ibid, at Page-14.
28. MANU/DE/0106/1969 , 5(1969)DLT506,
29. MANU/SC/0252/1972, AIR1973 SC 1346, 1973CriLJ1143.
30. MANU/SC/0104/1974, AIR 1974 SC 839, 1974CriLJ709, (1974)4SCC258.

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In Ravinder Singh vs. State of Haryana31 In Deva Nand vs. The State 32
On July 30, Bimla, the victim, was accompanied by her husband, Ravinder Singh,
and some other persons on a rail journey.
Her husband, Ravinder Singh was returning to his Air Force Station at Sirsa after enjoying two months leave at his home. She
was found next morning nearby a wayside
distant railway station with acid burns on
her face and on other parts of the body
with multiple injuries. She was pronounced
dead in a hospital on July 31, 1968 at 8.45
PM. It was disclosed by the approver that
the accused threw his wife Bimla on the
floor of the train compartment by catching hold of her by the neck. When she fell
down in the compartment the approver
Jasbir Inder Singh caught hold of her by
the feet and Bhanu Parkash Singh, cousin
of the accused, threw acid in her mouth.
Then the accused threw Bimla from the
running train. The additional session judge
disbelieved the approver and also held that
his statement was not corroborated in material particulars. However, the High Court
found that the approver, who was admittedly a friend of the accused, was a reliable witness and his statement did not suffer from
any defect whatsoever. The High Court
further held that the approvers statement
was corroborated in material particulars
by other evidence connecting the accused
with the crime. High court finally convicted
the accused under section 302 Indian Penal Code. On appeal, Honble Supreme
Court also supported the views of the High
Court and held that the accused had been
rightly convicted by the High Court. Hence,
Honble Supreme Court upheld the conviction and dismissed the appeal.
31.
32.

Smt. Prem Lata was married to the present appellant, Deva Nand. However,
after sometime, their relations became
strained, as a result of which she started
living with her father in the servant quarters of Kothi no. 5, Mal Road, Timarpur,
Delhi. As per the prosecution allegations,
on the intervening night of 26th and 27th
May, 1984, while Prem Lata was sleeping,
the accused threw on her Sulphuric acid,
as a result of which she was permanently
disfigured and also lost one eye. On the
basis of these allegations, a charge under
section 307 I.P.C. was framed against the
accused, who pleaded innocence and
claimed a trial. The lower court sentenced
the accused to undergo rigorous imprisonment for 7 years. On appeal, Honble
Delhi High Court also supported the views
of the trial court and upheld the decision
of the lower court and also dismissed the
appeal by the accused.

In State of Madhya Pradesh vs. Jhaddu

And Ors. 33

Appeals are filed against the order of acquittal passed by High Court of Madhya
Pradesh setting aside the convictions
and sentences passed by the trial Judge
against the respondents. All the respondents were tried by the trial court for offences punishable under Section 148 and
Section 302 read with Section 149 I.P.C.
The learned trial Judge found six of the
accused guilty for the offence of murder
and convicted them under Section 148
and Section 302 read with Section 149
I.P.C. and sentenced
them to undergo imcom
.
p
p
prisonment
The High Court opined
anfor life. did
h
s
that
the
assailants
not have the intenni

.ma
w
MANU/SC/0199/1975, AIR1975SC856,
ww (1975)3SCC742.
MANU/DE/0268/1986, 1987(1)Crimes314, 31(1987)DLT184.

33. 1991Supp(1)SCC545, JT 1990(4)SC(4)SC57.

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ISSN : 2393 - 9338

tion to kill but by use of lathis on a vital

part like chest resulting in fracture of ribs
and laceration of lungs, they could be imputed with the knowledge that the death
was the likely result. The High Court dismissed the appeal filed by the State. The
High Court having altered the conviction
of other accused to Section 304 Part II
read with Section 149 I.P.C. sentenced
each of them to undergo 10 years rigorous
imprisonment. Honble Supreme Court of
India, however, also supported the views
of High Court and held that the respondents were rightly convicted under section
304 Part-II read with Section 149 I.P.C. The
Court also held the sentences passed as
substantial and dismissed the appeal.

In Students of A.P.A.U. and Miss Anuradha, Student vs. The Registrar, A.P.A.U.,
N. Sreenivasa Reddy, Student and Ors. 34

quantified, subject to her right to sue for further compensation, at Rs.5 lakhs to be paid
to her within two months by way of Fixed
Deposit frozen for a period of three years
for her benefit, after which period she might
withdraw the same.

In Srimanthula Chinna Sathaiah and

Anr. Vs. State of A.P. 35

An appeal was filed before the A.P. High

Court against conviction of appellant, Srimanthula Chinna Sathaiah and two others
under Section 302 read with section 34, IPC.
The victims face was burnt by acid and he
died due to this along with other injuries. The
learned Session Judge found the appellants
guilty of committing an offence under section 302 read with section 34, IPC. The High
Court, however, inter alia, observed that the
evidence of eye witnesses was sufficient
to hold that accused were responsible for
causing death of deceased and the prosecution had proved guilt of accused clearly.
Honble High Court confirmed conviction
and sentence imposed by trial court.

The petitioner, a female student was subjected to attack by acid allegedly by a student of Veterinary Science College of 1990
batch, N.Srinivas Reddy. Principal did not
take action against the culprit students. The
In Gulab Saheblal Shaikh vs. The State
petitioner, victim student, sought approof Maharashtra 36
priate direction upon respondent college
authority and also appropriate relief by fil- The appellant threw sulphuric acid on ining this writ petition under Article 226 of the formant victim Rashida Shaikh, second
Constitution. Honble Andhra Pradesh High wife of Nazir Shaikh. The incident was esCourt observed that Ms. Anuradha had suf- tablished beyond shadow of doubt by evifered irreparable injuries, both physical and dence of three eye witnesses. Chemical Anmental and she was entitled to be com- alyst found the liquid in glass as sulphuric
pensated. The Court, inter alia, held that acid and earth from the place of incidence
acid. The Additional
the States role did not come to an end only shows it contained
om
c
.
p
by prosecuting the accused. It had a duty Sessions
np Judge, Pune, convicted and sena
h
also to realize such amount of compensais tenced the appellant under section 302, IPC,
n
a
m
tion from the person who had
ir- life imprisonment and fine of Rs.1000/- and
w.caused
w
wvictim. The court, under section 326, IPC, 5 years R.I. and fine
reparable damage to the
however, inter alia, directed to the State of Rs.2000/-.Bothe the punishment will run
Government to pay to Ms. Anuradha a sum concurrently. Honble High Court held that
34. MANU/AP/0660/1997, 1997(2) ALD247, 1997(1) ALT547.
35. MANU/AP/0487/1998; 1998(4)ALD 18; 1998(2) ALD(Cri)160.
36. MANU/MH/0673/1998; 1998 BomCR(Cri) 717, 1997(99)3BOMLR587.

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the appellant had been rightly convicted for

the offence under section 302 and 326 I.P.C.
and the lower court judgment was confirmed.

In State of U.P. vs. Smt. Aqeela and

Ors.etc. 37

acid on their persons causing disfiguration

of the face of both of them and loss of vision of right eye of Zaibunnisa and thereby
committed offence punishable under section 326 as well as that under section 324
of the IPC. Honble High Court, inter alia, observed that merely because the petitioner
did not try to abscond immediately after the
incident that by itself did not establish that
the accused is not guilty of the alleged offence. The incident appeared to be well
planned. Honble Court refused to interfere
in the impugned judgment and hence the
petition was dismissed and the conviction
was justified.

Smt. Aqeela, her son Iqbal and Razi(an

Associate of Iqbal) were tried and convicted under section 304(11) and 323/34,
IPC and were sentenced to undergo imprisonment for a period of three years on
the first count and one year R.I. under the
second count by the Additional Sessions
Judge, Moradabad. It was alleged, inter alia,
that Smt. Aqeela threw sulphuric acid upon
Abdul Rajaq, the deceased victim. On appeal, Honble Allahabad High Court, also
supported the view of the trial court and
confirmed the sentence of the accused appellants and dismissed the appeal.

In Syed Shafiq Ahmed vs. State of Maharashtra and Ors. 38

In Veerla Satyanarayana vs. State of

A.P. 39

The petitioner filed the petition before the

Bombay High Court challenging the order
of the Session Judge upholding the order of
the chief judicial magistrate convicting him
under Section 326 and 324 of the I.P.C., 1860.
The learned chief judicial magistrate had
convicted the petitioner for offences punishable under section 326 and 324 of the Indian
Penal Code and sentenced him to undergo
rigorous imprisonment for a period of three
years and to pay a fine of Rs.5000/-.The accusation against the petitioner was that on
31-03-1987 he came on a motorcycle on a
public road and voluntarily caused grievous
hurt to Zaibunnisa D/O Abdul Gafoor and
Azra Sultana w/o Syed Shafiq by throwing
37.
38.

The Sessions Judge convicted the appellant for the offences punishable under
section 304(Part I), 307 and 447 of the IPC.
Against the said judgment, the state preferred a criminal appeal before the High
Court of A.P. contending that the appellant
ought to have been convicted for the offence punishable under Section 302 IPC.
The High Court of Andhra Pradesh allowed
the said appeal and convicted the appellant
for the offence punishable under Section
302 IPC and sentenced him to suffer RI for
life and fine of Rs.2000/-, in default of payment of fine to suffer simple imprisonment
for one month. Against this judgment, the
accused filed an appeal to the Honble Supreme Court. Honble Court observed that
the act of the appellant in pouring acid on
the body of the deceased was pre-planned;
he selected night time when the deceased
was sleeping; he poured
comacid which caused
.and
p
p
60% burn injuries
as the injuries caused
n
a
h
s appellant were sufficient in ordinary
by
nithe

w.m
w
MANU/UP/1014/1998; 1999CriLJ2754.
w
MANU/MH/1320/2001; 2002 CriLJ 1403.

39. 2002(2)ALD Cri637; JT 2002 Suppl 1 SC489.

34

N. J. Comp. Law Vol. 3 (1) 2016, pp. 27-42

ISSN : 2393 - 9338

course of nature to cause death, the appellant is rightly held to be guilty of offence
punishable under section 302 of IPC. The
appeal was dismissed.

In Marepally Venkata Sree Nagesh vs.

State of A.P. 40
Appellant inserted mercuric chloride into
vagina of his wife causing death due to renal failure. Appellant contended that doctors did not find mercuric chloride in vagina
of deceased and therefore death was not
caused by poisoning. Wife died after 44 days
of administration of poison and mercuric
chloride cannot be detected in postmortem
at that stage. This was a unique case and
the accused- appellant was a scientist. He
was awarded doctorate in bio-chemistry.
Honble Court held that, insertion of mercuric chloride caused renal failure and appellant was made responsible for death of his
wife. Honble A.P. High Court also supported
the judgment of trial court and dismissed
the appeal.

two months. However, the Madras High

Court reversed the judgment of the trial
court and held that the prosecution did
not establish its case beyond reasonable
doubt, appeals are allowed and the conviction and sentence imposed on the appellants/accused are set aside and they
are acquitted.

In State of Karnataka By Jalahalli

vs. Joseph Rodrigues 42

Lower court held the accused guilty of

the offence under Section 326 of IPC, and
sentencing him to undergo RI for 5 years
and 3 months with a fine. However, the
accused filed Criminal Appeal before the
Honble Karnataka High Court, whereas
the State aggrieved by acquittal of the accused for offence under Section 307 of
IPC, has filed Criminal Appeal before the
same court. The State also filed Criminal
Appeal under section 377 of Cr.P.C., praying for enhancement of the sentence unIn Mahesh and Parimala Devi vs.State, der Section 326 of IPC on the ground that
the sentence was inadequate. Honble
represented by Inspector of Police,
Karnataka High Court, observed that It is
Thiruthuraipoondi Police Station, Na- true that reformation as a theory of pungapattinam District 41
ishment had become the trend but that
The appellant Parimaladevi was convict- theory is applicable to such crimes, in
ed by the trial court for the offence under which the damage is repairable or even if
Section 302 IPC and sentenced to un- the damage cannot be repaired, salvation
dergo life imprisonment and also to pay by other mode is possible. That theory is
a fine of Rs. 2000/-, failing which to suf- inapplicable in offences where damage
fer rigorous imprisonment for two months is immense irreparable and cannot be
and the another appellant, Mahesh was retractableoand
m as such, severe punish.c only
p
p
is
the
mode. The Honble Court
convicted for the offence under Section ment
n
a
h
302 read with Section 109 IPC and n
senis also observed that Justice demands the
a
Courts should impose punishment befittenced to undergo life imprisonment
w.m
w
wRs.2000/- failing ting the crime so that the Courts reflect
and also to pay a fine of
which to suffer rigorous imprisonment for public abhorrence of the crime. The court
40. MANU/AP/0520/2002; 2002(1) ALD(Cri)905, 2002CriLJ3625.
41. Criminal Appeal no. 533 of 2000 and Criminal Appeal no. 551 of 2000; Decided on 10-04-2003.
42.

Karnataka High Court, Decided on 22 August, 2006, Bench: S Bannurmath, S B Adi,

35

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must not only keep in view the rights of the

criminal but also the rights of the victim of
the crime and the society at large while
considering the imposition of appropriate
punishment. Honble Court sentenced
the offender to imprisonment for life for
the offence punishable under section 307
of the IPC. The Court also award a compensation of Rs. 2,00,000/- to be paid by
the accused in default to undergo imprisonment for 3 years in addition to the fine
already awarded by the trial Court.

However, the High Court also held that

the act of accused would certainly attract
the penal provisions of murder warranting
a punishment of life imprisonment, which
has been rightly done by the lower court.
The appeal was dismissed and the judgment and conviction by lower court were
allowed and justified by the High Court.

In Ramesh Dey And Ors. vs. State of

West Bengal 44

One Tarapada Mondal lodged complaint

with the Kotalpur P.S. alleging that on
In Balu vs. State represented by Inspec27.05.97 at about 9.00 p.m. his sister Kutor of police, Mayiladuthurai 43
mari Padma Mandal, his mother SudJudgment of the Session Court, Nagapat- hamayee Mondal and his aunt Sujata
tinam, was challenged whereby the sole Dey with her little son Suman Dey aged
accused/appellant stood charged under about 4 years sat in the courtyard of the
section 302 of I.P.C., tried, found guilty as house. At that time the informant heard
per charge and awarded life imprison- shout from courtyard and after reaching
ment along with a fine of Rs.2,000/ and de- the spot he found that his sister Padma
fault sentence. In this case, the deceased Mondal and his mother Sudhamayee
Thangamayil, was given in marriage to were lying on the ground in restless conone Pandian. On divorce, she was given dition. Sujata Dey, the informants aunt
in marriage to the appellant/accused as told him that in order to kill Padma, the
second wife. They had children and they accused Ramesh Dey brought a glass full
were living together during a consider- of acid and hurled it at Padma and ran
able time. The appellant/accused had a away. All of them sustained injury and
friend by name Vaithi. He used to come to they were admitted to Arambag Sub Divithe house of the accused, and she used sional Hospital. Victim Padma died in the
to have frequent chatting with him. The hospiotal after six days. An appeal was
accused entertained suspicion that she made to Honble Calcutta High Court,
developed illicit intimacy with him. On 01- against the judgment of conviction and
10-2002 at about 9.30 A.M., there was a sentence passed by the lerned Addidistressing cry coming from the house of tional Sessions Judge, Bankura, convictthe deceased. It was alleged that the ac- ing the appellants Viz. Ramesh Dey, Mricused poured acid on the victim and she tyunjay Digar and Jayanta Santra under
was admitted to the hospital by neighbor section 302/34 and sentencing them to
for life and to pay a
and the accused fled away from the place suffer imprisonment
.com
p
p
of occurrence. The victim also informed fine of Rs.5000/an each in default S.I. for six
h
s
the Doctor that her husband poured acid months.
ni The appellants have also been
aconvicted
m
.
under section 324/34 IPC and
on her and she sustained burn injuries.
w

ww

43. Crime No. 1664/2002 Decided on 26th October, 2006, by Madras High Court; C.A. No. 1078 of 2004.
44. 2007(3) CHN775; Decided on 16th May, 2007, The Calcutta High Court.

36

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sentenced to suffer R.I. for one year and

to pay a fine of Rs.1000/ each in default to
suffer S.I. for two months with the direction that both the sentence shall run concurrently. Honble Calcutta High Court,
allowed the appeal in part. The order of
conviction and sentence recorded by the
learned Trial Court as against appellant
Ramesh Dey is confirmed. But the order
of conviction and sentence recorded by
the learned Trial Court as against appellants Mrityunjay and Jayanta is set aside.
The appellants Mrityunjay Digar and Jayanta Santra are acquitted and released
from their respective bail bonds.

In Ram Charittar & Another Etc. Vs.

State of Uttar Pradesh Etc. 45
The trial court acquitted all the accused
by its judgment dated 12.5.1981 but in appeal the High Court convicted the appellants Ram Charittar and Kishori Lal under
Section 302/34 IPC, and sentenced them
to life imprisonment, but gave the benefit
of doubt to the other co-accused Ram Kumar and Chandrawati and thus affirmed
their acquittal. Honble Supreme Court,
however, also upheld the decision of High
Court and dismissed the appeal.

In Laxmi vs. Union of India and Others

46

in the States/Union Territories;

ii.
Measures for the proper treatment,
after care and rehabilitation of the victims of
acid attack and needs of acid attack victims.
iii.
Compensation payable to acid victims by the State/or creation of some separate fund for payment of compensation
to the acid attack victims.
Honble Court directed, inter alia, that in
the States/Union Territories, where rules
to regulate sale of acid and other corrosive substances are not operational,
until such rules are framed and made
operational, the Chief Secretaries of the
concerned States/Administrators of the
Union Territories shall ensure the compliance of the following directions with immediate effect:
(a) Over the counter, sale of acid is completely prohibited unless the seller maintains a log/register recording the sale of
acid which will contain the details of the
person(s) to whom acid(s) is/are sold
and the quantity sold. The log/register
shall contain the address of the person to
whom it is sold.
(b) All sellers shall sell acid only after the
buyer has shown:

On 6.2.2013, a direction was given to the

Home Secretary, Ministry of Home Af(i) a photo ID issued by the Government
fairs associating the Secretary, Ministry of which also has the address of the person;
Chemical & Fertilizers to convene a meeting of the Chief Secretaries/concerned (ii) specifies
the reason/purpose for procom
.
p
p
Secretaries of the State Governments and curing
n
acid.
ha
s
the Administrators of the Union Territories,
i
an
inter alia, to discuss the following
aspects:
w.m
(c) All stocks of acid must be declared

ww

i.
Enactment of appropriate provision for effective regulation of sale of acid

by the seller with the concerned Sub-Divisional Magistrate (SDM) within 15 days.

45. Supreme Court of India, Decided on 4th April, 2007, Appeal(Crl.) 329 0f 2006.; S.B. Sinha & Markandey
Katju.
46. Decision of Honble Supreme Court of India, Writ Petition No. 129 of 2006.

37

N. J. Comp. Law Vol. 3 (1) 2016, pp. 27-42

ISSN : 2393 - 9338

(d) No acid shall be sold to any person

who is below 18 years of age.
(e) In case of undeclared stock of acid,
it will be open to the concerned SDM to
confiscate the stock and suitably impose
fine on such seller up to Rs. 50,000/-.
(f ) The concerned SDM may impose fine
up to Rs.50,000/- on any person who commits breach of any of the above directions.
Honble court also directed, inter alia, that
the acid attack victims shall be paid compensation of at least Rs. 3 lakhs by the concerned State Government/ Union Territory
as the after care and rehabilitation cast. Of
this amount, a sum of Rs. 1 lakh shall be
paid to such victim within 15 days of occurrence of such incident (or being brought
to the notice of the State Government/Union Territory) to facilitate immediate medical attention and expenses in this regard.

Legislative Developments in India

As a result of increasing acid attack incidents in India, Government of India, has

however, modified and changed some of
the provisions of the existing legislations.
More stringent punishments have been
incorporated in these provisions. Some of
these are as below:

Section 326-A: Voluntarily Causing

Grievous Hurt by use of Acid, Etc.

be punished with imprisonment of either

description for a term which shall not be
less than ten years but which may extend
to imprisonment for life, and with fine:
Provided that such fine shall be just and
reasonable to meet the medical expenses of the treatment of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.

Section 326-B: Voluntarily Throwing

Or Attempting To Throw Acid
Whoever throws or attempts to throw acid
on any person or attempts to administer
acid to any person, or attempts to use any
other means, with the intention of causing
permanent or partial damage or deformity or burns or maiming or disfigurement
or disability or grievous hurt to that person, shall be punished with imprisonment
of either description for a term which shall
not be less than five years but which may
extend to seven years, and shall also be
liable to fine.
Explanation 1. For the purposes of section
326-A and this section, acid includes
any substance which has acidic or corrosive character or burning nature, that is
capable of causing bodily injury leading
to scars or disfigurement or temporary or
permanent disability.

Whoever causes permanent or par- Explanation 2. For the purposes of sectial damage or deformity to, or burns or tion 326-A and this section, permanent or
maims or disfigures or disables, any part partial damage or deformity shall not be
or parts of the body of a person or causes required to be irreversible.
.com
p
grievous hurt by throwing acid on or by Section 357A
p
an of Criminal Procedure
h
s
administering acid to that person, or by Code:
ani It deals with Victim compensam
using any other means with the intention
.
tion scheme
w
ww
of causing or with the knowledge
that he
is likely to cause such injury or hurt, shall As per this section,(1). Every State Gov 38

N. J. Comp. Law Vol. 3 (1) 2016, pp. 27-42

ISSN : 2393 - 9338

ernment 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.

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.

Section 357B [Cr.PC]: Compensation

to be in Addition to Fine Under Section
326A or Section 376D of Indian Penal
Code
The compensation payable by the State
Government under section 357A shall be
in addition to the payment of fine to the
victim under section 326A or section 376D
of the Indian Penal Code (45 of 1860).

Section 357C: Treatment of Victims

All hospitals, public or private, whether

run by the Central Government, the State
Government, local bodies or any other
person, shall immediately, provide the
first-aid or medical treatment, free of cost,
to the victims of any offence covered under Section 326A, 376, 376A, 376B, 376C,
376D or section 376E of the Indian Penal
Code (45 of 1860), and shall immediately
inform the police of such incident.

Critical Analysis and Concluding Remarks

Various countries of the world are suffering from this inhuman and barbaric acid
attacks. Some of these are Australia, Af(5). On receipt of such recommendations ghanistan, Bangladesh, Cambodia, Italy,
or on the application under sub-section India, Jamaica, Malaysia, Nepal, Paki(4), the State or the District Legal Services stan, Sri Lanka, USA, UK, and Vietnam
.comthese, Bangladesh in 2002
Amongst
Authority shall, after due enquiry award etc. p
p
an the Acid Offences Prevention Act
enacted
adequate compensation by completing
h
s
i and Acid Control Act to deal with growing
the enquiry within two months. man
.
w
menace of acid attack. The Acid Control
ww
(6). The State or the District Legal Servic- Act deals with restricting and controlling
es Authority, as the case may be, to allevi- the sale and distribution of acid in Bangate the suffering of the victim, may order ladesh. National Acid Control Councils
for immediate first-aid facility or medical have been established consisting of 15
benefits to be made available free of cost members. A District Commissioner is the
39

N. J. Comp. Law Vol. 3 (1) 2016, pp. 27-42

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head of each council. The Councils, inter

alia, make proposals to take action regarding enforcement of laws and also to
help in the treatment and rehabilitation of
victims of acid attack. In Jamaica the Offences against Persons Act provides for
a life imprisonment for causing grievous
bodily harm. There is no specific law dealing with acid attack in Jamaica. Pakistan
is yet to pass the Acid Throwing and Burn
Crime Bill 2012 which was drafted after
Fakhra Younas, an acid attack victim from
Karachi, committed suicide.47 Afghanistan
passed the Elimination of Violence against
Women Law (EVAW) in 2009. It is the first
law in Afghanistan to criminalize violence
against women including acid attacks.48
However, though, in India there are some
positive legislative developments in the recent past to prevent and stop acid attack,
yet these are not enough to stop this kind
barbarism. Some new sections have been
incorporated in the Indian Penal Code
and Criminal Procedural Code to deal
with acid attack crime in the Criminal Law
(Amendment) Act, 2013(no. 13 of 2013).
The Law Commission of Indian has proposed that in cases of acid attack a presumption be incorporated in the Indian
Evidence Act, as Section 114B.50 This is
very much essential and it should be incorporated. However, the proposed provision of section 114B is as below:

Section 114B: Presumption as to Acid

AttackIf a person has thrown acid on or administered acid to, another person the court
shall presume that such an act has been
done with the intention of causing or with
the knowledge that such an act is likely to
cause such hurt or injury as is mentioned
in Section 326A of the Indian Penal Code.50
It is also necessary to enact a Criminal Injuries Compensations Act by the government
for the rehabilitation of the acid victims. This
is also recommended by the Law Commission of India in its report no. 226.51
After throwing of acid to the victim, treatment should be commenced as soon as
possible and the victim should be admitted to the hospital. Real acid test in the
lives of the acid victim begins after injury
by acid. It takes long time to treat the patients. Generally, several cosmetic surgeries are necessary which are very costly.
Though paying compensation is only a
part of the entire rehabilitation process,
yet it plays an important role to meet the
treatment expenditure of the victims. After
the treatment is over, the victim should be
given an opportunity of being self reliant.
They should be trained and employed by
the government. It is the inevitable and
compulsory duty of the state to rehabilitate them. Government should formulate
a detailed rehabilitation schemes for the
victims. The Law Commission of India

47. Zehra Kazmi, Acid attack; a look at India and Other Countries, Hindustan Times, New Delhi, 19th
July, 2013.

.com
p
p
ing proceedings filed by one Laxmi in U.P.(Crl) No.129 of 2006
anon The Inclusion of Acid Attacks as
h
s
specific offences in the Indian Penal Code and a law
for
Compensation
for Victims of Crime.July
i
n
a
2008, Report No.226, July 2009, Page-43; .www.lawcommissionofindia.nic.in/reports/reports226.
wm
pdf(Accessed on 25-12-2014).
w
w
50. Ibid at P-44.
48. Ibid.

49. Report(No. 226) submitted to the Honble Supreme Court of India for its consideration in the pend-

51. Ibid at P-44.

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has also proposed to enact a separate late the sale of acid through government
Criminal Injuries Compensation Act that owned and controlled or licensed vendors
will provide both interim and final relief only. Local police and other administrato the victims of acid. In this regard the tive officials should take necessary steps
proposal by National Womens Commis- in order to prevent easy availability of acid
sion (NWC) is to be mentioned here.52 in their respective localities. A register
NWC has proposed to establish a Nation- should be maintained in each and every
al Acid Attack Victims Assistance Board. shop at the time of sale of acid and the
The Board shall provide assistance to the name, address and mobile number etc. of
victim of acid attack by way of ensuring each and every purchaser of acid should
medical treatment and other services, be recorded and should be informed to
which shall include psychological coun- the police or local administration on day
seling.53 The Board will recommend to to day basis. Taking a permission letter
the government strategies to regulate and from local police or administration should
control the import, production, transforma- be made compulsory for purchasing acid
tion, hoarding, sale, distribution of acids.54 and only on production of that letter acid
The Board, inter alia, will also provide fi- should be sold to the buyer.
nancial support to the victims.55 However, iv. More and more NGOs should
the Board may be constituted under the come up to protect and rehabilitate acid
Criminal Injuries Compensation Act, and victims and government should encourmay deal with acid victims along with all age and extend financial support to these
other victims of various criminal offences. NGOs.
However, following steps should be taken v.
Corporate houses can play an imto ameliorate the conditions of acid vic- portant role by adopting and rehabilitattims and to prevent and stop this barbaric ing these acid victims in discharging their
inhuman crime:
Corporate Social Responsibility (CSR) and
i.
Steps should be taken to imple- government should also give tax benefits
ment the existing provisions of laws in let- to those corporate houses.
ter and spirit.
vi. People should be educated and
ii.
Trained medical personnel should made aware regarding the cruelty, conbe available in each and every primary sequences and immorality of acid throwhealth centre and other hospitals so that ing. Steps should be taken to propagate
the treatment can be commenced with- the existing provisions of law and conseout delay;
quences of violation of these provisions.
iii. Strict regulations should be im- vii. Acid victims are generally isolated,
.com
posed upon production, storage and sale segregated
and ignored in the society.
p
p
n
a
of acid. Corporate houses have important
shSteps should be taken to bring them uni
n
a
roles to play here. Sale of acid across
.m pri- der one umbrella and encourage them to
w
vately owned shop counters
ww should be ventilate their problems and sufferings.
totally banned. Government should regu- viii. Regular inspection, stock checking
52. Prevention of offences ( by Acids) Act, 2008 (National Commission for Women-Draft Bill); www.ncw.
nic.in/pdffiles/offences_by_acids.pdf.(Accessed on 25-12-2014).
53. Ibid, Section 8(a).
54. Ibid, Section 8(d).
55. Ibid, section 8(h),

41

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and verification by law enforcing agencies should be made compulsory in all

the cases of production, storage, import
and sale of acid in our country.
ix.
Steps should be taken to dispose
of the acid attack cases through speedy
trial or through fast track courts so that the
victims of acid attack are not languished
in court for a long time.
x.
Acid attack victims must be given
complete legal support from the government to secure their rights and to provide
them justice.
xi. The government should facilitate
the victims with proper compensation,
give quality treatment and offer government jobs.
However, from the above discussion it can
be said that only incorporating some provisions in the existing laws will not solve

the problem. After throwing of the acid to

the victims, real acid test of their lives begins. To combat this acid test of their lives
they need continuous financial support,
continuous medical treatment and also
continuous psychological counseling.
For all these things detailed rehabilitation
schemes should be introduced by the
government. Enacting a separate legislation for this purpose is the need of the hour.
That legislation should cover not only the
penal provisions and procedural aspects
of those punishments but also regulation
of acid production, storage, sale and also
a detailed rehabilitation scheme of the
victims of acid attack. In fine, I appeal to all
concerned that let us gird up the loins, take
oath and join hands to stop this evil practice
from the land of Lord Sri krishna, Lord Ram,
Lord Buddha, Guru Nanak, Gandhiji, Netaji
and Nehru.

ww

sh

ni
.ma

42

om

p.c
p
n
a

N. J. Comp. Law Vol. 3 (1) 2016, pp. 43-52

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IN THE REAR BLOCKED ENTRY:

DOMESTIC VIOLENCE ACT FOR
WOMENS EMPOWERMENT IN INDIA
Nandita S.Jha
Faculty for Law, Chanakya National Law University, Patna (Bihar)
Email: nsmj.cnlu@gmail.com

For long, the fairer sex has suffered at the hands of men, the exploitation ranges from
physical to intangible abuse like mental and psychological torture. Women have been
treated as child bearing machines, and if I may, then preferably male child bearing
machines, push-over, to nothing but animals at the hands of men. Domestic violence
is one of the gravest and the most pervasive human rights violation. For too long now,
women have accepted it as their destiny or have just acquiescence their right to raise
their voice, perhaps, because of the justice system or the lack of it or because they are
vulnerable, scared of being ostracized by their own because domestic violence still
remains a taboo for most women who suffer from it or for other reasons best known
to them. But not anymore! Women gear up-take control because here comes the domestic violence act, 2005.

Feminist Jurisprudence: Theoretical Perspectives of Mackinnon and West

to gain liberty under such circumstance:1st to be the same as man The woman
in such case has to measure up to a certain standard. She has to live the life of
a man. She has to prove to the society
that she is identical to him. It is considered as gender neutrality. It is supposed
to encourage formal equality.

Catherine Mackinnon in her article Difference and Dominance, 1984 in Feminism

Unmodified has argued how sex has become a parameter of distinction between
man and woman hindering equality. It is
the concept of treating likes alike and unlikes unlike, thus the definition of sex has 2nd to be different from man Here, some
om
rule
of sex discrimination comes
been restricted to the narrow idea of their type ofpa.c
p
n
mutual unlikeness. The laws discriminat- hinto
a play, recognizing the obvious differs
i
ence
between a man and a woman.
ing among people on the basis a
ofnsex
m
.
support this idea. It bringsw
aw
kind of conGender neutrality is thus married to the
w
flict between equality which advocates
concept of male as a parameter. In both
sameness and sex which advocates difsame and unlike ways, female is comference.
pared to a male.
There are two ways available to a woman

Mackinnon has termed the second way

43

N. J. Comp. Law Vol. 3 (1) 2016, pp. 43-52

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as difference approach, as the whole

concept is revolving around difference in
sex. According to her theory, on the first
day difference between man and woman
arose, on the second day division was
created and on the third day dominance
arose without any rational explanation.
Among these, difference is most real and
justified. She argues that in society, women have been carrying the burden of being different, and then the compensation
for this discrimination should be worth the
trouble. But women have been excluded
from contact jobs in male only prisons for
the fear that they would be raped. The
courts also take into account the temptation of prisoners, and instead of stopping
them, take away the rights of the woman.
Excluding woman from the situation is
the easiest option when equality and sex
create an in-built tension.

Women find the same event painful

which men find pleasurable e.g. rape
Men are oblivious to the painful torture
through which the women go.

So actually men have it both ways. If

they want to be the same, then equality
is chosen and if they want to be different to promote their interests, then again
woman suffers. Womans equality is thus
a prey to the whim and fancy of man.In
her dominance theory, she states that
the whole point of womans weakness is
the things done to her are not done to
a man. For e.g. marital rape in domestic
violence. Her suggestion is equal protection of laws where protection is not a
dirty word and equality not a privilege.

West gives her opinion on two forms of

feminist theory;-

The womens distinctive, gender-specific

injuries are treated as trivial e.g. sexual harassment on street. Legal culture doesnt
pay heed to womens problems because
those in power hardly care for the disempowered. Feminist theorists fail to cover
certain areas because of such problems: Linguistic- women lack descriptive vocabulary necessary to convey the different pain suffered.
Psychological- before convincing others
about the gravity of their problems, women need to be convinced themselves.
Political- when subjugation is offered for
the resistant efforts
taken, it discourages women.

Liberal Feminism- According to it,

women should be given freedom of

choice in economic, political and personal areas since her free consent determines her welfare. It is based on the assumption that women are same-equal to
men. But, West argues that women sometimes dont consent to changes to satisfy
her desires rather to appease the desires
of others- giving selves. Then the liberals
presumption that essentially wishes are
taken selfishly on the basis of ones own
interests, wont apply on such women.
.comthe real cause of
It would riskpmissing
p
n
womans
shamisery.

Robin West in the difference in womens

hedonic lives: a phenomenological critique in feminist legal theory states that
womens subjective, hedonic lives are
different from mens as the quality and ani
.m Radical Feminism- According to it,
quantity of suffering is distinct from
wthat
w
of mans. Reasons for this are:-w
feminists want more power for women
44

N. J. Comp. Law Vol. 3 (1) 2016, pp. 43-52

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since they are not equal to men in society.

Their principles are:Submission makes women miserable
and substantive equality will make her
happy. Women should oppose not what
makes them miserable- the expropriation
of sexuality but the hierarchy of power that
facilitates it. Women are victims of false
consciousness if they are at odds with the
equalitarian idea. But West argues that
desire sexual submission is judged to be
false not because the woman considers
it such rather someone else has come to
judge it as such. Once again, womens
choice will be dictated by someone elses
conception of sexual right/wrong.
Wests suggestion is to insist on womens
humanity, on the difference of choice
she has when compared to men. The aim
should be simply to increase womens
happiness and to lessen her pain. Women should speak out about their unique
pain in their internal lives.

Application of the Theories

are treated differently to men because

of their sexual difference is in education.
Some of the Indians have this notion that
women are not entitled to sound education and job and their only duty is to
look after the household. Even educated
women are married off before they could
secure a job. So when such women try to
rebel against the domestic injustice meted out to them, the question of financial
security after separation faces them. In
such cases, even the womens own parents refuse to help. The parents are imbued with the idea that they partake off
their duties towards their daughters after
marrying them.
Moreover, men also sometimes choose
to advocate sameness formal equality to
suit their interests as opined by Mackinnon. The few laws through which Indian
women can legally fight are being criticized by mens organization which claims
that law is being misused by the women
to harass their husbands. Men are wrongfully imprisoned because the law allows
a man to be arrested solely on the testimony of a woman.

According to Mackinnon, society treats

women either differently or equally to According to West, there is a biological
men to suit the convenience of man. In difference between a man and a womIndia, women dont generally report cases an. Right from prehistoric times, man has
of domestic violence. This hesitance on undertaken the tougher task of hunting
the part of the women is partly due to the while women had taken over the lighter
burden of expectation which the society task of household
duties. A man is genm
o
c
has from her and not from the husband. erallypphysically
stronger than a woman.
p.
n
a
The wife is blamed for the failure of a marishBeing frail in body, she couldnt possibly
n
a
riage. The woman who offers .resistance
offer effective resistance against a mans
m
w
w her mar- physical advances and violence. This
and is not thus unable to
wsustain
riage is looked down upon, as someone leads to the discrimination of man bewho failed to perform her duties as an ing the stronger, and therefore the more
ideal wife. Divorcees are either shunned dominant being. As put forth by West,
or looked upon by hungry/ penetrating women sometimes themselves trivialize
eyes. Another example of where women their suffering. In India, the woman vic 45

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tim transforms her pain into punishment,

pleasure, inevitable and natural. Instead
of speaking out, she tries to suppress her
pain. Therefore, her response is to endure
the pain by giving it a more acceptable
form. West argues that women are giving
selves maybe because of her biological
pregnability. Women are by nature sacrificing, loving, nurturing beings because of
the innate sense of motherhood in them.
Some of them are willing to go through
traumatic marital experiences provided
their children develop in a healthier atmosphere of united family. As West puts
it, they respond by changing themselves
rather than protesting against the conditions which cause it.
Domestic Violence Act,2005 , is a comprehensive law and addresses all issues
related to women. It is for the first time
that an act has been made to address
women's issues in such detail. The Act
is an extremely progressive one not only
because it recognizes women who are in
a live in relationship but also extends protection to other women in the household,
including sisters and mothers thus the
Act includes relations of consanguinity,
marriage, or through relationships in the
nature of marriage, adoption, or joint family thus, 'domestic relationships' are not
restricted to the marital context alone. In
fact the Act has given a new dimension to
the word abuse because unlike the primitive notion abuse includes actual abuse
or threat of abuse, whether physical, sexual, verbal, economic and harassment by
way of dowry demands and thus, under
the new law;

tives also comes under this definition.

The law will cover those women who
are or have been in a relationship
where both parties have lived together
in a shared household , and are related by marriage or adoption.
Preventing one's wife from taking up a
job or forcing her to leave job are also
under the purview of the Act
One of the most important features of
the Act is that it also provides a woman a right to reside in the matrimonial
and shared household, whether or not
she has any title in the household.
Husbands or live-in partners who
would be guilty of domestic violence
can be put behind bars for a year and
fined Rs 20,000
And all crimes in the Domestic Violence Act are non-bailable
In addition to physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence
like forced intercourse, forcing his wife
or mate to look at pornography or any
other obscene pictures or material
and child sexual abuse. The new law
also addresses sexual abuse of children and forcing girls to marry against
their wishes. This certainly proves that
the new Act has been formed keeping
the current relationship culture in India
and the irregularities in the previous
Domestic Violence Laws in mind.

The Act has also defined Physical Violence very comprehensively,

as, Any
m
o
c
.
p
kind of bodily
p harm or injury, A threat
n
a
h
iofsbodily harm, Beating, slapping and
n
a
.m hitting.
w
Harassment by way of unlawful
wwdowry
demands on the woman or her rela- Thus, physical violence is defined as any
46

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act or conduct which is of such a nature

as to cause bodily pain, harm, or danger
to life, limb, or health, or an act that impairs
the health or development of the person
aggrieved, or that includes assault, criminal intimidation and criminal force.
But violence against women is not always
physical. For the first time, the law has expanded the definition to include sexual,
verbal and economic violence.

essary money as a weapon. The law also

sees a husband who sells off his wife's
jewellery and assets as being guilty of
economic abuse.

Under the Act the law provides for the setting up and function of Protection Officers. The State Government will appoint
protection officers to help the affected
women. These protection officers are likely to be appointed in every district across
Under the law, Sexual Violence will in- the country, helping the victims file cases
clude, Forced sexual encounter, Forc- before the magistrates. According to the
ing a woman to look at pornography or provisions of the Act, the woman will be
any obscene pictures , Any act of sexual given complete protection. Her 'tormennature to abuse, humiliate or degrade a tor' would be ordered not to attempt to
communicate with her, including at her
woman's' integrity.
workplace. The court can pass 'protection
The new law is also tough on men who orders' so that the charged person will not
subject women to name calling or ver- cause violence to the woman's relatives.
bal abuse. While Verbal Violence is often Apart from this, the woman can rightfully
trivialized as unimportant, observers say it continue to live under the same roof with
the man while fighting him in the court.
can damage a woman's self-esteem
Another significant step has been to rec- According to the Act, the woman will have
ognize Economic Violence. Under the the right to a 'secure housing ' in the matAct, Economic Violence is, Not providing rimonial or shared household. The PO will
money, food, clothes, medicines, Causing assist the court in making a Domestic Inhindrance to employment opportunities, cident Report or an application for a proForcing a woman to vacate her house, tection order on behalf of the aggrieved
woman and/or child. POs will ensure that
Not paying rent.
aggrieved people are provided legal aid,
As is apparent the inclusion of economic medical services, safe shelter and other
violence is a very forward-thinking and required assistance. POs will ensure that
important part of this definition. The depri- necessary information on service providvation of economic or financial resources ers is provided to the aggrieved woman,
om for monetary relief are
.corders
that
to which the aggrieved woman or child is and p
p
an
complied
with. Importantly, the PO can be
entitled under law or custom, or which the
h
s
i
n
a
person aggrieved requires out m
. of neces- penalised for failing/refusing to discharge
w
sity, can be claimed under
wwthe provisions his duty, with the proviso that prior sancof this law; withholding such resources tion of the state government is required.
now falls under the category of economic
abuse. This provision comes into play in The other relief envisaged is that of the
instances of marital disputes, where the power of the court to pass protection orhusband tends to deprive the wife of nec- ders that prevent the abuser from aiding
47

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or committing an act of domestic violence or any other specified act, entering

a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both the parties.
It also provides for a breach of protection
order or an interim protection order by
a respondent as a cognizable and nonbailable offence punishable with imprisonment for a term, which may extend to
a year or with a fine, which may extend to
twenty thousand rupees or with both.
Similarly, non-compliance or discharge
of duties by the Protection Officer is also
sought to be made an offence under the
Act with similar punishment.
An important addition to the law ensures
that an aggrieved wife, who takes recourse to the law, cannot be harassed for
doing so. Thus, if a husband is accused
of any of the above forms of violence, he
cannot during the pending disposal of the
case prohibit/restrict the wife's continued
access to resources/ facilities to which
she is entitled by virtue of the domestic relationship, including access to the
shared household. In short, a husband
cannot take away her jewellery or money,
or throw her out of the house while they
are having a dispute.

the courts, Protection Orders, Residence

Orders, Monetary Relief, Custody Order
for her children, Compensation Order and
Interim/ Ex parte Orders.
But all said and done there are some
protests that the Act can be misused to
blackmail men. There would be certain
cases where the complaint is legitimate,
but also cases where the complaint could
be fabricated or concocted and that the
Act will be misused by immoral wives to
get rid of husbands and indulge in infidelity rather than those who are really tormented by husbands.
So far, sections 498(A) (husband or relative of husband of a woman subjecting
her to cruelty), 304/B (dowry death), 306
(abetment to suicide) of the Indian Penal
Code was the only weapon which women had for fighting cruelty against her. Apparently the section was more misused
than used the act is an extension of these
sections and there are all possibilities of
it being mis-used. But why not look at it
with a different perspective, which these
sections are not against men but are in favour of women. However before we jump
to perverse conclusions it is pertinent to
note that the law says -any definition of
domestic violence must detail the fact
that it is a human rights violation. Further,
the law details the different forms of violence faced by women, and ensures that
such interpretations are not left solely to
the discretion of the judges. And as for
misuse, the investigating machinery can
ensure that the .complaints
com are genuine,
p
p
not faked.
an

A woman who is the victim of domestic

violence will have the right to the services
of the police, shelter homes and medical
establishments. She also has the right to
simultaneously file her own complaint
h
under Section 498A of the Indian Penal anis
Code. Sections 18-23 of the Act w
provide
w.m Therefore, in my view not every case
w abused can be listed under the Act so easily so
a large number of avenues for an
woman to get relief. She can get, through as to torment these aggrieved husbands
48

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therefore this Act isn't essentially an anti-men biased Act as is being claimed.
Whether or not the act will be mis-used
or not only time will tell for there cannot
be any perceptible change in women's
status overnight. It will take at least a decade before things change Constitutional
Perspectives: The enactment in question
was passed by the Parliament with recourse to Article 253 of the Constitution.
This provision confers on the Parliament
the power to make laws in pursuance of
international treaties, conventions, etc.
The Domestic Violence Act was passed
in furtherance of the recommendations of
the United Nations Committee on the CEDAW. The Act encompasses all the provisions of the Specific Recommendations
which form a part of General Recommendation no. 19, 1992.

ther permanently or even temporarily,

would be within the inhibition of Article 21.This right is incorporated in the
Act through the definition of physical
abuse, which constitutes domestic
violence (and is hence punishable under the Act). Physical abuse is said to
consist of acts or conduct of such nature that they cause bodily pain, harm,
or danger to life, limb or health, or impair the health or development of the
aggrieved person . Apart from this, the
Act also includes similar acts of physical violence and certain acts of physical violence as envisaged in the Indian
Penal Code within the definition of domestic violence. By adoption of such
an expansive definition, the Act protects the right of women against violence.

Protection of Women and Fundamental

Rights.

2. The right to dignity: In Ahmedabad

Municipal Corporation v. Nawab Khan
GulabKhan , the Supreme Court emphasised the fact that the right to life
The Statement of Objects and Reasons
included in its ambit the right to live
declares that the Act was being passed
with human dignity, basing its opinion
keeping in view the fundamental rights
on a host of cases that had been deguaranteed under Articles 14, 15 and 21.
cided in favour of this proposition. The
Article 21 confers the right to life and libright to dignity would include the right
erty in negative terms, stating that it may
against being subjected to humiliating
not be taken away except by procedure
sexual acts. It would also include the
established by law, which is required, as
right against being insulted. These two
a result of judicial decisions, to be fair, just
facets of the right to life find mention
and reasonable. The right to life has been
under them
definitions of sexual abuse
held to include the following rights (which
o
c
.
and
abuse, respectively. A
ppemotional
are reflected in the Act), among others:
n
a
ish praiseworthy aspect of the legislation
n
a
is the very conception of emotional
.m
w
abuse as a form of domestic violence.
1. The right to be free
of violence: In
ww
The recognition of sexual abuse of the
Francis Coralie Mullin v. Union Terriwife by the husband as a form of viotory Delhi, Administrator the Supreme
lation to the person is creditable, esCourt stated, any act which damages
pecially as such sexual abuse is not
or injures or interferes with the use
recognised by the IPC as an offence.
of any limb or faculty of a person, ei 49

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These acts would fall within the confines of domestic violence as envisaged by the Act, though the definition
would not be limited to it.
The right to shelter: In Chameli Singh v. State
of U.P. , it was held that the right to life
would include the right to shelter, distinguishing the matter at hand from Gauri
Shankar v. Union of India where the question had related to eviction of a tenant under a statute. Ss. 6 and 17 of the Domestic Violence Act reinforce this right. Under
S.6, it is a duty of the Protection Officer
to provide the aggrieved party accommodation where the party has no place
of accommodation, on request by such
party or otherwise. Under S.17, the partys
right to continue staying in the shared
household is protected. These provisions
thereby enable women to use the various
protections given to them without any
fear of being left homeless.

As a result of the ruling in cases such as

Royappa v. State of Tamil Nadu , any law that
is arbitrary is considered violative of Article 14 as well. This provision is significant
in putting a stop to arbitrariness in the exercise of State power and also in ensuring that no citizen is subjected to any discrimination. At the same time, it preserves
the States power to legislate for a specific
category of people.
Article 15 disallows discrimination on the
grounds of religion, caste, sex, race, etc.,
but permits the State to make special provisions for certain classes of persons, including women and children.

The Domestic Violence Act promotes

the rights of women guaranteed under Articles 14 and 15. Domestic violence is one among several factors
that hinder women in their progress,
and this Act seeks to protect them
from this evil. It indeed effects a classification between women and men,
Article 14 contains the equal protection protecting only women from domesclause. It affirms equality before the law tic violence, but this classification is
and the equal protection of the laws. Ar- founded on an intelligible differential,
ticle 14 prohibits class legislation , but namely, gender, and also has a rapermits classification for legislative pur- tional nexus with the object of the Act.
poses. A law does not become unconsti- Further, the Act is far from arbitrary, in
tutional simply because it applies to one that it is a well-thought and necessary
set of persons and not another. Where a attempt to curtail domestic violence
law effects a classification and is chal- and eventually vanquish it. It is to be
lenged as being violative of this Article, remembered that it is generally womthe law may be declared valid if it satis- en who are the victims of domestic
fies the following two conditions:
violence, and not men. At this stage,
it is also essential to
mkeep in mind Aro
c
.
p
1. The classification must be based on ticle 15(3) which
p empowers the State
n
a
h
some intelligible differentia,
to i
make
s legislations like this for the
n
a
2. There must be a rational nexus bebenefit
of women, thus creating an
.m
w
tween this differentia and w
thew
object exception in their favour against the
sought to be achieved by the law.
operation of Article 15(1).
50

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Where the Act Fails

The Act could play a stellar role in protection of womens rights in the household
and in guarding them from domestic violence. In the very first instance, a recognition of domestic violence as something
unacceptable, where it has become yet
another social practice, is necessary and
indeed, commendable in a patriarchal
society. Having recognised the rights of
women and the violation of these rights,
the next step taken is providing innovative
and efficacious remedies to enforce the
same. The conceptualization of the Act
thus far is admirable.

protect the rights of women. Yet, it must

be kept in mind that domestic violence,
though predominantly faced by women,
be they wives, mothers, sisters or daughters, is also aimed against male children
at times. It seems a poor excuse to say
that male children should not be provided easily accessible relief from domestic
violence simply because of their gender.
Even if other forms of violence could be
adequately addressed by the IPC (though
this hardly seems the case), it is a fact that
the sexual abuse of male children cannot be redressed in any apposite manner
by it. Reference may be had to the Sakshi case , and the subsequent 172nd Law
Commission report, where it was argued,
among other things, that the offence of
rape as addressed in the IPC be defined
in gender-neutral terms, so that the protection could be extended to male children as well. This was necessary keeping
in mind the increased and increasing instances of sexual abuse of children, male
and female. Once it is acceded that male
children are affected as much by sexual
abuse by female children, it must be accepted that they need to be protected from
such abuse within the private sphere
too. On the face of it, there seems to be
no concrete reason for denying male children protection from domestic violence.

However, one thing that the researcher

feel is amiss in the Act is the fact that it
brushes aside male children. Though
there are interpretations to the contrary,
it is the opinion of the writers that the Act
does not extend its protection to male
children. Firstly, an aggrieved person as
defined by the Act, is a woman who is, or
has been in a domestic relationship with
the respondent . While the Act does define a child as any person below the age
of eighteen years, the definition of domestic violence itself refers at all stages only
to an aggrieved person and not to a child;
the only relevant place in which a child
is mentioned is S.18(c), where it is stated
that a Magistrate may pass a protection
order restraining the respondent from en- CONCLUSION
tering the school of the child where the The Act, by and
is a valuable piece
omItslarge,
c
.
aggrieved person is a child. It is the opin- of legislation.
p
shortcomings
do not,
p
n
a
ion of the writers that this in itself is not sufishon final analysis, blot out the immense
n
a
ficient to construe the Act as applicable
.m to benefit the Act could be of to women. A
w
male children as well. ww
good thing about the Act is the fact that
it deals with domestic violence regardArguably, it could be said that the Act was less of the religion of the parties, as many
passed to cater to the needs of women a time wrongs are perpetrated (ab)usand not boys. After all, the very title of the ing the protection afforded by personal
Act indicates that it has been enacted to laws. It is thus secular in outlook in pro 51

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tecting womens rights. It also does take

up for consideration child sexual abuse,
though in a limited sense (male children being excluded from its purview),
at a time when the practice has become
rampant. The authors further consider
it desirable to extend the Act and allow
its application to male children who are
also affected by domestic violence, considering the nature of the practice, and
recommend such an extension. While
saying that the Act is protected by Article
15(3) from being considered discriminatory, it would help to recollect that this
provision creates an exception in favour
1.

of women and children, and thus could

be made use of to justify the extension of
the Act to male children as well. Indeed, it
would seem logical to do so.
It is, however, opined that it is too early
to predict the usefulness of this legislations to its target beneficiaries and the
society as a whole. It needs to be seen
whether the practicality of the Act has
been ensured by the legislature and
also the responsibility of implementation lies in the hands of the executive
which will be the actual scale for measuring the effectiveness of this Act..

Munro, V., 2006, Resemblances of Identity: Ludwig Wittgenstein and

Contemporary Feminist Legal Theory, Res Publica, 12: 137162.

2.

Antony, L., 1998, Human Nature and Its Role in Feminist Theory, in
Philosophy in a Feminist Voice, J. Kourany (ed.), New Haven: Princeton
University Press.

3.

Armstrong, D., 1989, Universals: An Opinionated Introduction, Boulder, CO: Westview Press.

4.

Friedan, B., 1963, Feminine Mystique, Harmondsworth: Penguin Books Ltd.

5.

Price, H. H., 1953, Thinking and Experience, London: Hutchinson's University Library.

6.

Campbell, A., 2002, A Mind of One's Own: The Evolutionary Psychology of Women, Oxford: Oxford University Press.

7.

Fausto-Sterling, A., 1993a, Myths of Gender: Biological Theories about Women

and Men, New York: Basic Books, 2nd edition.

8.

Frye, M., 1996, The Necessity of Differences: Constructing a Positive Category of

Women, Signs, 21: 9911010.

9. S.P.Sen Gupta, Commentaries on the Protection of Women from Domestic Violence Act, 2000, 2nd edition, 2014.
10. Jyotsna William Shana, Law Relating to Protection of Women from Domestic Violence (along with Honor Killing & A Glimpse of Rights Available to Women under
Various Enactments), 2011.
11. Anil Sachdeva, An Exhaustive Commentary on the Protection of Women from DO-

sh

ni
.ma

ww

52

om

p.c
p
n
a

MESTIC VIOLENCE Act & Rules.

12. 1981 AIR 746.

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WOMEN EMPOWERMENT VERSUS GANG RAPE IN INDIA:

AN ANALYTICAL STUDY
P. K. Pandey
Member, World Commission on Environmental Law, Assistant Professor,
Centre for Juridical Studies,
Dibrugarh University Dibrugarh
Email: bipin05bhu@gmail.com

On the land where women have been respected, depicted and worshipped in numerous forms of Goddess like Maa Parvati, Maa Saraswati, Maa Durga, Maa Laxmi
etc., the concept of women empowerment was felt to bring because of their adverse
conditions and deterioration in social values. Today, they are bound to face and suffer
various types of humiliations not only from men rather from women also, not only in
personal life rather in public life also and thus it feels that they have come on this earth
to be suppressed, oppressed and offended. Such types of wrongs are a big stumbling
block on the path of women empowerment and a black patch on the face of modern
civilized society where one organ of the humanity is not allowed to live freely with dignity. This paper attempts to unearth in detail the legal provisions relating to gang rape
under the Indian laws in the light of concept of women empowerment.

Key Words: Women, Offences Against Women, Gang Rape, Empowerment.

In our tradition bound society, structured on the basis of conservative values, when a woman is
subjected to sexual assault in any form, it translates into a multiple crime. She is raped at home
(literally and figuratively) and in public, followed by demeaning medical examination, examination
and cross-examination by the police and in court, in salacious media reports, and in the insensitive response of society, including family and acquaintances. In sum, the victim suffers intermittent
rape in full public glare.
-Justice J.S. Verma Committee 1
smooth running of humanity both the pillars, men and women, should be strong
In ancient India, the women had glorious and stout but the reality is wholly different
past where they could develop spiritually, and women-the second pillar of humanisocially, economically, educationally and ty- are humiliated
om and offended in numerc
.
p
culturally without any hindrance but latter ous
ways. Among other offences against
np
a
h
their situation deteriorated and in modis women, the offence of gang rape is not
n
a
ern era varieties of wrongs and
offences offence against an individual rather it is
w.m
w
are committed againstwthem which put offence against humanity and it is a great
question mark on their existence and stumbling block on the path of women
survival. Though it is expected that for empowerment. Women empowerment is

INTRODUCTION

1.

Report of the Committee on Amendments to Criminal Law, January, 2013, Government of India at 14

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N. J. Comp. Law Vol. 3 (1) 2016, pp. 53-63

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a multidimensional and multifaceted process which challenges traditional power

equations and relations. It involves many
aspects such as right against gender discrimination, right against harassment,
right to privacy and dignified life, social
equality and security. In true sense, the
women empowerment may come into effect when women will be provided equality in power sharing and active participation in decision-making in free of fear
environment like their counterpart. The
present paper attempts to unearth in detail the legal provisions relating to gang
rape under the Indian laws in the light of
concept of women empowerment.

CONCEPT OF GANG RAPE

of the body, not being the penis, into the

vagina, the urethra or anus of a woman or
makes her to do so with him or any other
person; or(c) manipulates any part of the
body of a woman so as to cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes
her to do so with him or any other person; or(d) applies his mouth to the vagina,
anus, urethra of a woman or makes her to
do so with him or any other person, under the circumstances falling under any
of the following seven descriptions First
Against her will. Secondly Without
her consent. Thirdly With her consent
when her consent has been obtained by
putting her or any person in whom she
is interested, in fear of death or of hurt.
Fourthly. With her consent, when the
man knows that he is not her husband
and that her consent is given because
she believes that he is another man to
whom she is or believes herself to be lawfully married. Fifthly. With her consent
when, at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent. Sixthly With or without her
consent, when she is under sixteen years
of age.Seventhly. When she is unable to
communicate consent. Explanation 1
For the purposes of this section, "vagina"
shall also include labia majora. Explanation 2 Consent means an unequivocal
voluntary agreement
.comwhen the woman
p
p
by words,
gestures or any form of verbal
an
h
s
i
communication, communiaornnon-verbal

As the term gang rape is combination of

gang and rape, it is prudent to see the
meaning of these both terms. The term
gang, in general term, means combining
of more than one person for illegal activities. Oxford English Dictionary defines this
term as an organized group especially
of criminals.2 Further, the term rape is
thought to be originated from Latin term
rapere which means to snatch, to grab,
to carry off. In present scenario, this term
is used for forcible unlawful sexual intercourse with a woman without her free
consent. Section 375 of the Indian Penal
Code, 1860 (IPC) defines the term rape
which has been substituted by the Criminal Law (Amendment) Act, 20133 as under: 375. Rape.- A man is said to commit
"rape" if he(a) penetrates his penis, to
any extent, into the vagina, mouth urethra
or anus of a woman or makes her to do
so with him or any other person; or(b) inserts, to any extent, any object or a part

.m

w
ww

2. Oxford English Mini Dictionary. 7th Edition, 2007, Oxford University Press Edited
by Catherine Soanes at 231
3.

Act 13 of 2013 with effect from 03.02.2013

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cates willingness to participate in the specific sexual act: Provided that a woman
who does not physically resist to the act
of penetration shall not by the reason only
of that fact, be regarded as consenting to
the sexual activity. Exception 1 A medical procedure or intervention shall not
constitute rape. Exception 2 Sexual intercourse or sexual acts by a man with his
own wife, the wife not being under fifteen
years of age, is not rape.It is clear from
the above that the definition of rape has
been made much more exhaustive and
extremely wide and the earlier definitions
of rape, interpreted by judiciary will not be
more useful. Patna High Court in Musa Ansari v. State of Bihar4 , observed that penile
penetration is, in the light of the amended definition of rape, no longer the only
means of committing rape as embodied
in Section 375 of the Indian Penal Code.
The expression gang rape is defined in
section 376D5 IPC which provides that
where a woman is raped by one or more
persons constituting a group or acting in
furtherance of a common intention, each
of those persons shall be deemed to have
committed the offence of rape.

life-personal and public. Not only this,

the State has been empowered to make
special laws for them under the Supreme
Law of the land i.e. Constitution of India.
By enacting various laws, the women
have been allowed to enjoy the real taste
of participatory democracy but at the
same time the practical aspects of these
protections cannot be termed as satisfactory. Despite having these protective
safeguards, they are bound to face countless humiliations, wrongs and offences
though it is true that such type of humiliations are not being committed only in India rather in the whole world at different
time but with same experiences, feelings
and consequences.
In India, the case of gang rape which took
place in a moving public bus of a 23-yearold woman in Delhi on December 16,
2012 attracted the attention of international community and thereafter Delhi was
characterized as city of offences against
women etc. In fact, if such offences are
committed, bad names will associate.

As per the Crime in India, 20146, issued

by the National Crime Records Bureau
Thus, where the offence of rape is be- (NCRB), the total number of rape incidents
ing committed, in presence of more than took place in India is 36735 which is only
one person in furtherance of their com- 1.3% of the total IPC crimes and during
mon intention, it is called gang rape.
this period the State of Madhya Pradesh
reported the highest number of rape cases i.e. 13.8% (5,076 out of 36,735 cases) of
om reported in India. Earlier,
.ccases
totalp
rape
Women Empowerment and
p
anNCRB never issued data on gang rape
the
Gang Rape in India
h
s
ani separately rather it was combined in the
m
.
w
In India, the women have
ww been given single head rape but from the year 2014,
equal status like men in every sphere of it has started to provide separate data on
4.

Criminal Appeal (SJ) No. 308 of 2013 decided on 6 October, 2015

5.

The Criminal Law (Amendment) Act, 2013

6.

National Crime Records Bureau, Ministry of Home Affairs, Government of India

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gang rape. For the purpose of analysis

of data on gang rape, the present study
has included the incidents of gang rape in
custody, where the victim was in custody,
and incidents of gang rape which did not
take place in custody.
The highest number of gang rape in
States took place in Uttar Pradesh (573),
followed by Rajasthan (414), Madhya
Pradesh(284) and Haryana (230).

In Union Territories, Delhi reported the

highest number of cases of gang rape
i.e. 147 which is followed by Andaman &
Nicobar Islands and Puducherry with only
1 case in both Union Territories and thus
the total numbers of gang rape cases in
Union Territories were 149.
Table-I indicates the total number of incidents of gang rape in the year 2014. It
is clear from the below data that 299 re-

ported cases were false which is significant number from the aspect of criminal
justice system. It should be taken into account that the rape causes the greatest
distress and humiliation to the victim but
at the same time a false allegation of rape
can cause equal distress, humiliation and
damage to the accused as well.7

posal of cases of gang rape by the courts

where it indicates that only in 353 cases
against 2650 cases (1121+1529) trials
were completed which indicates the requirement of reviewing criminal justice
system specially for sexual offences. In
cases of gang .rape,
comgenerally the acp
p
cused attempt
an to threat the rape victims
h
s
nitheir family members to withdraw the
aand
m
.
Table-II provides the data regarding
wwdis- case or change their statements during

7.

Raju v. State of Madhya Pradesh, (2008) 15 SCC 133

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trials and thus there are more chances,

if not accepted by victims, of being harassed, murdered etc. for rape victims.
As mentioned above, by the Criminal Law
(Amendment) Act, 2013, section 376D IPC
has been substituted as under376D. Gang Rape.- Where a woman is
raped by one or more persons constituting a group or acting in furtherance of a
common intention, each of those persons
shall be deemed to have committed the
offence of rape and shall be punished
with rigorous imprisonment for a term
which shall not be less than twenty years,
but which may extend to life which shall
mean imprisonment for the remainder of
that person's natural life, and with fine:
Provided that such fine shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.

rape, shall be punished with rigorous imprisonment for a term which shall not be
less than ten years but which may be for
life and shall also be liable to fine. Provided that the Court may, for adequate
and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment of either description for a
term of less than ten years. Explanation
1 attached with this sub-section provided
that where a woman is raped by one or
more in a group of persons acting in furtherance of their common intention, each
of the persons shall be deemed to have
committed gang rape within the meaning
of this sub-section.
Thus, it is clear from the above discussion
that by 2013 amendment, the amount of
punishment has been increased. The offence under section 376D IPC is cognizable, non-bailable and triable by the Court
of Session.
Where an accused is found guilty in gang
rape who was already convicted in any
early case of gang rape, the amount of
punishment will be increased as mentioned in section 376E IPC as under-

Section 376D IPC provides the punishment for gang rape as rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend 376E. Punishment for repeat offenders-.
to life which shall mean imprisonment Whoever has been previously convicted
for the remainder of that person's natural of an offence punishable under section
life, and with fine. But, such fine shall be 376 or section 376A or section 376D and
just and reasonable to meet the medical is subsequently convicted of an offence
m
.counder
any of the said sections
expenses and rehabilitation of the vic- punishable
p
p
n
a
tim. It is worthwhile to mention here that
shshall be punished with imprisonment for
i
n
a
any fine imposed under section.m
376D IPC life which shall mean imprisonment for
w
the remainder of that person's natural life,
shall be paid to the victim.
ww
or with death.'
Before 2013 amendment, the legal provisions relating to gang rape were con- The offence under section 376E IPC is
tained in section 376 (2) (g) IPC which cognizable, non-bailable and triable by
mentioned that whoever commits gang the Court of Session.
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Gang Rape: Procedure & Evidence

When the offence of gang rape is committed or attempted to commit and the
woman, against whom the offence has
been committed, gives information to the
Officer-in-Charge of the concerned Police Station such information shall be recorded by a woman police officer or any
woman officer.8 But, where the gang rape
is alleged to have been committed or attempted against a person who is temporarily or permanently mentally or physically disabled, then such information shall
be recorded by a police officer, at the
residence of the person seeking to report
such offence or at a convenient place of
such person's choice, in the presence of
an interpreter or a special educator and
the recording of such information shall
be videographed. Further, the police officer shall get the statement of the person
recorded by a Judicial Magistrate under
section 164 (5A) (a) as soon as possible.9
The statement of a woman against whom
an offence of gang rape is alleged to have
been committed or attempted shall be recorded by a woman police officer or any
woman officer. 10
It is significant to mention here that if in
gang rape, a public servant is involved,
there will not be any requirement of sanction under section 197 of CrPC from the
government to initiate legal proceed-

ings.11 Further, in case of gang rape, it

is mandated to complete the inquiry or
trial, as far as possible, within a period of
two months from the date of filing of the
charge sheet.12
In a prosecution for committing or attempt
to commit gang rape, where the question of consent is in issue, evidence of the
character of the victim or of such person's
previous sexual experience with any person shall not be relevant on the issue of
such consent or the quality of consent.13
In addition to this, in a prosecution committing or attempt to commit gang rape,
where the question of consent is an issue,
it shall not be permissible to adduce evidence or to put questions in the cross examination of the victim as to the general
immoral character, or previous sexual experience, of such victim with any person
for proving such consent or the quality of
consent. 14

Compensation to Gang Rape VictimsSection 357A of CrPC, inserted by the

Code of Criminal Procedure (Amendment) Act, 2008 which came into force
on 31st December, 2009, provides compensation to be paid by the concerned
State government. As the State has failed
in protecting serious violation of a victims
fundamental right, the State is duty bound
to provide compensation, which may help
in the victims rehabilitation. The humiliation or the reputation that is snuffed out

.com
p
p
n
10. Proviso of section 161 of the Code of Criminal a
Procedure,
1973
h
s
i
11. Explanation attached with section 197
of
the
Code
of
Criminal
Procedure, 1973
an
m
.
12. Proviso of section 309 (1) of thew
w Code of Criminal Procedure, 1973
w
13. Section 53A of the Indian Evidence Act, 1872
8.

First Proviso of section 154 of the Code of Criminal Procedure, 1973

9.

Second Proviso of section 154 of the Code of Criminal Procedure, 1973

14. Proviso of Section 146 of the Indian Evidence Act, 1872

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cannot be recompensed but then monetary compensation will at least provide

some solace. Nevertheless, the obligation
of the State does not extinguish on payment of compensation, rehabilitation of
victim is also of paramount importance.
The mental trauma that the victim suffers
due to the commission of such heinous
crime, rehabilitation becomes a must in
each and every case.15
In exercise of the powers conferred by section 357A of CrPC the States have framed
Victim Compensation Schemes for providing funds for the purpose of compen-

sation to the victims or their dependents

as a result of crime and who require rehabilitation. But, it is matter of sorrow that
the different States have different norms
of compensation and different list of offences included in the list for providing
compensation. Some relevant examples
related to compensation for rape victims
are as under-It is also pertinent to mention
here that all the above mentioned States,
in their schemes, have not mentioned the
term gang rape. This term may be found
only in the schemes of Assam, Delhi and
Madhya Pradesh having amount of compensation of Rs. 1 Lakh, 7 Lakhs and 3

om

15. In Re: Indian Woman says gang-raped on orders of Village Court published

p.c
p
n
a

in Business & Financial News, Suo Motu Writ Petition (Criminal) No. 24 of 2014

sh

ni
.ma

decided on 28 March, 2014.

16. Arunachal Pradesh Victim Compensation Scheme, 2011.

ww
w
18. Bihar Victim compensation Scheme, 2011.

17. Assam Victim Compensation Scheme, 2012.

19. Chhattisgarh Victim Compensation Scheme, 2011.
20. Delhi Victims Compensation Scheme, 2011 has been repealed by the Delhi
Victims Compensation Scheme, 2015.
21. Goa Victim Compensation Scheme, 2012.

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22. Gujarat Victim Compensation Scheme,2013

23. Haryana Victim Compensation Scheme,2013
24. Himachal Pradesh (Victim of Crime) Compensation Scheme, 2012
25. Jammu and Kashmir Victim Compensation Scheme, 2013
26. Jharkhand Victim Compensation Scheme, 2012
27. Karnataka Victim Compensation Scheme, 2011
28. Kerala Victim Compensation Scheme, 2014
29. Madhya Pradesh Crime Victim Compensation Scheme, 2015
30. Maharashtra Victim Compensation Scheme, 2014

.com
p
p
33. Nagaland Victim Compensation Scheme, 2012
an
h
s
i
34. Odisha Victim Compensation Scheme,
an2012
m
.
w
35. Punjab Victim or their Dependents
ww Compensation Scheme, 2011
31. Manipur Victim Compensation Scheme, 2011

32. Mizoram Victims of Crime Compensation Scheme, 2011

36. Rajasthan Victim Compensation Scheme, 2011

37. Sikkim Compensation to Victims or his Dependents Schemes, 2011

60

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lakhs respectively. In this respect, the

verdict delivered by Honble Supreme
Court of India is significant where the
court directed to all the States and Union Territories to make all endeavour to
formulate a uniform scheme for provid-

ing victim compensation in respect of

rape/sexual exploitation.48
The second proviso attached with section 376D IPC mentions that any fine imposed under this section shall be paid

38. Tamil Nadu Victim Compensation Scheme, 2013

39. Telangana Victim Compensation Scheme, 2015
40. Tripura Victim Compensation Scheme, 2012

om

p.c
p
n
a

41. Uttar Pradesh Victim Compensation Scheme, 2014

42. Uttarakhand Victim from Crime Assistance Scheme, 2013

ish
n
a
44. Union Territory of Chandigarh
w.m Victim Assistance Scheme, 2012
w
45. Union Territory of w
Dadra & Nagar Haveli Victim Assistance Scheme, 2012
43. West Bengal Victim Compensation Scheme, 2012

46. UnionTerritory of Daman & Diu Victim Assistance Scheme, 2012

47. Puducherry Victim Assistance Scheme, 2012

48. Tekan alias Tekram v. State of Madhya Pradesh, Criminal Appeal No. 884 of
2015 decided on February 11, 2016.

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to the victim. Earlier, it was thought that

the amount of fine, if any, given to the victim will be deducted from the amount of
compensation under section 357A CrPC
but this confusion has been removed
from section 357B CrPC which says that
the compensation payable by the State
Government under section 357A shall be
in addition to the payment of fine to the
victim under section 326A or section 376D
of the Indian Penal Code.

to the victims of any offence covered under Sections 326A, 376, 376A, 376B, 376C,
376D or Section 376E of the IPC.

CONCLUDING OBSERVATIONS
Despite being the unique creation of nature on this earth, the women are bound
to face and suffer endless humiliations
and wrongs in varieties of ways on the
land where it is said that

Treatment of Victims
Section 357C in CrPC, inserted by 2013
amendment, mandates to every hospitals
to provide immediately medical treatment
to the victims of gang rape. Section 357C
is as under:
357C. Treatment of victims.- All hospitals,
public or private, whether run by the Central Government, the State Government,
local bodies or any other person, shall immediately, provide the first-aid or medical
treatment, free of cost, to the victims of
any offence covered under section 326A,
376, 376A, 376B, 376C, 376D or section
376E of the Indian Penal Code, and shall
immediately inform the police of such incident.
Honble Supreme Court of India in In Re:
Indian Woman says gang-raped on orders of Village Court published in Business & Financial
News 49, held that all hospitals, public or private, whether run by the Central Government, the State Government, local bodies
or any other person, are statutorily obligated under Section 357C to provide the
first-aid or medical treatment, free of cost,

.m
ww

meaning where women are worshipped,

there dwells the divinity and where they
are dishonored, all action remains unfruitful. The condition of women in India
is pathetic. It is very well known fact that
without women the humanity cannot exist so it is need of hour to understand that
they can exist, survive and develop in
an atmosphere where they are provided
hygienic environment free from humiliations, offences etc. and for this, making
them socially, politically, economically,
culturally and educationally strong is
must. Though, numerous laws have been
made to protect and develop with vision
of empowering them but the ground reality is not satisfactory. The male dominated society does not want to accept that
women are also a human being having
those all qualities and characteristics like
men. The concept of women empowerment is not panacea rather it is an attempt
to provide women a dignified life like their
m be thought by
counterpart and c
it o
should
.
p
p
us that empowering
women is empoweran
h
s
ing
ninext generation.

49. Suo Motu Writ Petition (Criminal) No. 24 of 2014 decided on 28 March, 2014

62

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The offence of gang rape is black patch

on the face of developed and modern society. Immediate attention of the
whole community is required in this
regard. Combining for the purpose of
committing rape is disgusting and heinous. If anyone wants to combine, they
may combine for the purposes which
are required for national integrity, solidarity and development. Perhaps the
cause for such activities is deteriorating
the social values in our society where

the women are thought to be object.

The India Judiciary, being the guardian
of the Constitution and protector of little
man, has played crucial role but a lot is
needed to be done and it is expected
that a Judge must, therefore, take note
of the common mans sense of justice
and not merely be a slave of logic and
the letter of the law as held by Gujarat
High Court in S. D. Patel & others v. State
of Gujarat & others. 50

50. Special Civil Application No. 17826 of 2011 decided on February 4, 2016

ww

sh

ni
.ma

om

p.c
p
n
a

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ROLE OF NON-GOVERNMENTAL ORGANISATIONS IN THE

PROTECTION OF WOMENS RIGHTS IN INDIA
Ajay Kumar Singh
Asstt. Prof., Deptt. of Law, K. S. Saket P. G. College, Ayodhya, Faizabad, U.P.
Email : ajayksinghlaw@gmail.com
Optimum realization of human rights can be achieved through the enactment of protective law and the establishment of mechanisms to implement that law. National
Human Rights institutions, along with Inter-Governmental and Non-Governmental Organizations, can play an important role in promoting human rights at the domestic
level. The Tenth Plan Approach paper reaffirms the major strategy of mainstreaming
gender perspectives, in all sectoral policies and programmes. As much of the success of empowering women depends upon the holistic impact of various sectoral
achievements, the Tenth Plan recognizes and commits to, increasingly, involve the
voluntary sector to achieve empowerment of women, in its various dimensions. The
International Year of Volunteers ensured that the full potential contribution of voluntary
sector is realized with the fullest possible communication and co-operation between
national, state and local governments. This led to the inclusion of voluntary sector in
the Indian planning process. Keeping in view the strategic role of civil society, the
Tenth Plan constituted a steering committee for facilitating and improving the working
of voluntary sector in India.

ORIGIN AND DEVELOPMENT OF

NGOs : INDIAN SCENARIO

set up for the economically handicapped.

In the reign of King Ashoka, gopas were
appointed who performed the funcFrom the perspective of Indian history it tions of social workers, keeping record
can be seen that private effort has been of caste, occupation, births, deaths, martraditionally the method of approaching riages and other vital statistics concernsocial problems and undertaking social ing the people. From the 13th to the 16th
welfare. In ancient days the responsibil- century, under Muslim rule, social instituity for assisting the individual in need was tions underwent changes, with the state
shared by the community and the ruler. taking greater responsibility for welfare
The concept of brotherhood, charity and services to the people. We note the sysservice to ones neighbour were linked tem of Zakat, a tax of one-fifth of ones
with religious obligations. The religious income which was used for charitable
m of British rule,
emphasis was heavily on charity, philan- purposes. With .the
coadvent
p
p
thropy and mutual aid. Kautilya in his the economy
an of rural self-sufficiency was
h
s
Arthasastra writes that the responsibility adisturbed,
the contact with new ideas, esni
m
.
for the care of the poor, the aged,w
the
win- pecially through western education and
firm and the destitute is that ofw
the king. the impact of Christian missionary activHe also mentions workshops which were ity, influenced traditional social attitudes
64

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and created a new ferment in the social

structure. With the appearance of Mahatma Gandhi on the Indian scene, voluntary
social work, the foundations of which had
already been laid, acquired a new dimension. His was an integrated approach to
development which combined constructive work and social reform with political
programmes. The origin and development of the voluntary sector, in India, has
been shaped by two major influences
one-rooted in indigenous traditions and
value-systems, and the other a product
of the interface between the Indian society and the western world. In the PostIndependence period, there was general awareness that development, to be
meaningful, requires mobilization of resources, public co-operation and creation
of social capital. It was established that
no development strategy could be successful unless a shared vision of public
sector, private sector and voluntary sector is created. In India generally five types
voluntary organizations : traditional associations, religious associations, social
movements, membership associations,
intermediary associations.

INDIAN LAWS FOR THE

VOLUNTARY
ORGANIZATIONS

Act, 1950; Societies Registration Act, 1860;

Section 25 of the Companies Act; Foreign
Contributions Regulations Act, 1975; Section 80G of Income Tax Act given fifty per
cent tax relief of donations; sections 35
A(c), given hundred per cent tax relief on
donations and section 35(i) (ii) & (iii) also
given hundred per cent tax relief to approved scientific research bodies.

FUNCTIONS OF NGOs
NGOs have been performing a variety of
functions in promotions of Human Rights
the important functions are as under : (i)
Collection of information and monitoring
the same; (ii) NGOs have also played a
vital role in defining the new issues and
areas which require legislation, (iii) Preventing the abuses and securing redress
and humanitarian assistance to the victims. (iv) It is at an informal level and can
involve workshops, seminars, consultations, training the trade unionists, farmers
and even religious institutions. (v) rendering services in the areas of social rights.
(vi) create legal awareness among women. (vii) provide economic and social security, (viii) provide shelter to women, (ix)
provide counselling, guidance and legal
assistance, (x) In eradicating of social evil.

Today, the Government of India sees

In India, the right of all citizens to form as- NGOs as part of their poverty alleviasociations or unions is laid down in Article tion strategy. International development
19(1)(c) of the Constitution of India. Vol- agencies and the global network of inm
untary organizations are free to address ternational
.conon-governmental
organizap
p
n encourage this emphasis on NGOs
any public need, as long as the need is htions
a
is because they believe such organizations
n
addressed in a lawful manner andawith.m
w
out any intention of private
gain. How- are closer to the people and, therefore,
w
w
ever, there is no single body of law for more able than an elite patrimonial buthe voluntary sector, in India. Here some reaucracy to determine the types of sermiscellaneous provision about voluntary vices needed. NGOs have made signifiorganizations in different acts : Indian cant contributions in demonstrating new
Trusts Act, 1882; Bombay Public Trusts approaches to social sector programmes
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in many part of the country. They have

been successful in evolving, effecting
participatory training methodologies and
harnessing local resources in their areas
of operation. Women activist Radhika
Coomaraswamy recognize the role of
NGOs, in combating the violence against
women at regional level and she stated
that
The changes in South Asia have also
been made possible by the activism of civil
society and the foresight of many womens
NGOs. They have conducted research, suggested legal reform and put in place constructive programmes that actually assist women
victims of violence. They have trained policemen, lobbied politicians and judges and they
have put together shelters and crisis centres.
They have taken cases to court, demonstrated
for womens rights and in some countries, mobilized people at the risk of their own lives.
They have counseled and cared for many victims of violence breaking their silence and allowing them to regain their dignity.

ly charges the commission to encourage

the efforts of non-governmental organizations
and institutions working in the field of human
rights. This is a responsibility which the
commission readily assumes, for the
cause has much to gain both from the
practical help and from the constructive
criticism that NGOs and the commission
can bring to bear in their mutual interaction and growing relationship.

There are three areas in which NGOs can

be of particular assistance to the commission. Firstly, because of their grass-root
contacts, they can most effectively identify human rights violations, articulate them
and seek redress. The Commission sees
a most positive role for NGOs in bringing
complaints to its notice. Secondly, given the rapport that they have established
with the public at large, the assistance
and cooperation of NGOs can be of great
value in the investigation of the more serious cases that come to be looked into by
the Commission through its investigative
In many parts of India, collaborations be- staff a group that will be put together with
tween the government and the voluntary great care as to their sensitivity to human
sector have produced remarkable results. rights considerations. There can be inIn 10th Plan period, various development stances when the commission, in accordactors government, private sector, civil ance with its Regulation No. 18, in addition
society and international organizations to using its investigative staff, may choose
are likely to come together and share best to associate NGOs actively in investigapractices, interact, collaborate and build tion work. Thirdly, the high level of expertise of individual NGOs in specific areas of
strong partnerships.
human rights work can be source of great
benefit to the Commission as it studies
COORDINATION WITH NAand makes recommendations on specific
TIONAL HUMAN RIGHTS
issues and problems. There would thus
INSTITUTIONS
be a role for NGOs
in the research and
.com
p
p
of the commission
The exceptional role of non-governmental study programmes
n
a
h
they
organizations in furthering human rights as
is develop. The responsibilities enn
a
is given appropriate and special recogw.m trusted to the Commission under the Prow
w Rights tection of Human Rights Act, 1993, cannot
nition in the Protection of Human
Act, 1993. Section 12(i) of the Act express- be adequately discharged without the
66

N. J. Comp. Law Vol. 3 (1) 2016, pp. 64-68

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development of close and cooperative

ties between the commission and nongovernmental organization, which are regarded as the eyes and ears of the people
of India. The Commission has, from time
to time, invited leading human rights activists and NGO representatives for discussions and advice and sought their help in
practical ways. In addition, in every visit
to a state, the commission has made it a
point to benefit from the experience and
knowledge of NGOs, whose contacts at
the grass-roots level given strength and
meaning to the human rights movements
where it matters most. The commission
also recognize in promotion and protection of human rights cannot gather momentum without the fullest cooperation
between the commission and the NGOs.
Even since its inception the commission
has been encouraging NGOs and holding
meetings with them from time to time. And
for this purpose Commission provides financial assistance to well-reputed NGOs
for organizing seminars workshops, etc.
associated with spreading human rights
awareness amongst the people.

ommend that NGOs should take lead to

organize campaigns and programmes,
which bring about increased awareness
so that the patriarchal mindset prevalent
in the society could be changed.

VOLUNTARY
ORGANIZATIONS IN INDIA: CHALLENGES AHEAD

The fundamental challenges that the voluntary sector faces is the lack of a uniform, authentic and verifiable source of
information on its size and scope. There
is complete absence of reliable, centralized documentation on either the size
or the scope of the civil sector. There is
no data on the number of individuals involved in the sector or on the monetary
or personnel investments that are made,
year after year. Besides informational
aspects, the civil society also confronts
another types of challenges. Some of
these follows : (a) Self-Promotion of the
Sector: Inherent weakness of the voluntary sector is to marked itself and its
contributions. The usual misconception
protector of the underprivileged, further,
erodes the credibility and achievements
The Commission continues to receive of the voluntary sector. (b) Legitimacy :
complaints relating to serious violations The voluntary sector does not enjoy the
of human rights from NGOs, who act as legitimacy that it deserves. This is due
the eyes and ears of the Commission in to several reasons, the primary one, bethe remotest corners of the country. A ing the lack of initiative. (c) Impact Ascore group of NGOs has been constitut- sessment : There is no uniform measure
ed under Section 12(i) of the Protection of impact assessment. One of the major
.com
of Human Rights Act, 1993, to encourage challenges,
before the voluntary sector,
p
p
n
a
the efforts of the Non-Governmental Orshis in identifying methods of to arrive at
i
n
a
ganizations and institutions engaged
in uniform outcome measurements and im.m
w
the field of human rights.
w Core Group pact assessments. (d) Replicability and
wThe
provides the Commission with crucial Scalability : the replicability and scalabilinputs regarding the hopes, aspirations ity of voluntary organizations operations
and expectations of the civil society from is another challenge. Many organizations
the Commission. National Workshop of have introduced excellent programmes,
National Commission for Women rec- but have not been successful in scaling
67

N. J. Comp. Law Vol. 3 (1) 2016, pp. 64-68

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them up and replicating them. (e) Partnership : Another challenge is in encouraging greater networking and fostering of
partnerships. The current situation seems
to be bringing the three sectors, namely,
government, private sector and civil society, together in more meaningful and effective partnerships. (f) Dearth of Qualified
Staff : The voluntary sector suffers from inadequate professionally qualified staff within the sector. Organizations, in order to be,
continually, effective must be supported by
adequately and appropriately qualified and
experienced personnel. (g) Governance:
Within the context of voluntary organizations in India, the function of governance
(as in what the board does) has, generally,
been ambiguous. But a distinction needs
to be drawn between effective board members and an effective board that functions
as a single entity. Many ambiguities remain
about governing bodies, including their real
purpose, how members and chose, and
members contributions.

From the history and record of achievement of voluntary organizations, it is evident that the bulk of social welfare services are still being rendered by them. But
then, even with the volume of services,
a large part of the population is uncovered, and there are increasing numbers
of new problems. No country of this size,
with widespread social disabilities, can
be content with a merely voluntary effort
in social welfare. Apart from the scope
of expansion of social welfare, there is
the need to improve existing services.
This can be done by enabling voluntary
agencies to appoint qualified personnel
to given orientation and training to voluntary workers, by establishing standards of performance and coordination of
governmental and voluntary effort. The
formulation of a National Plan for Social
Welfare which will define the role and
sphere of activity of voluntary organizations and preserve their special contribution is long overdue.

1. The UN General Assembly by its 52nd session declared the year 2001 as International Year of Volunteers (IYV).
2. S.R.Bakshi, Womens Rights And Modernisation, Book Enclave, Jaipur India, 1998,p.216.
3. Ibid.
4. Id, pp. 216 & 217.
5. P. D. Kaushik, Womens Rights : Access to Justice, New Delhi Bookwell 2007, pp. 122 & 123 see also,
Wal. S., Banerji, Sharati, Encyclopaedia of Women as Human Resource in 21st Century and beyond,
Vol. I, New Delhi, Sarup & Sons, 2001.
6. Ibid, p. 119.
7. Id, p. 125.
8. Radhika Coomaraswamy, Human Security Gender Based Violence, Working Paper 7, pub. by
IFAD UNIFEM, Gender Mainstreaming Programme in Asia UNIFEM South Asia Regional Office,
New Delhi, p. 33 para 2nd.
9. Arun Kumar Palai, National Human Rights Commission of India : Formation, Functioning and Future
Prospects, Atlantic Publishers and Distributor pub. in 1999, pp. 168 & 169 see also Manoj Kumar
Sinha, Enforcement of Economic, Social and Cultural Rights, International and National Perspective,
New Delhi, Manak Publication Pvt. Ltd. 2006, pp. 200 & 201.
10. Ibid, p. 169.
11. Id, p. 170.
12. N.H.R.C.Annual Reports 2005 2006, p. 199, para 51.1 & 15.2.
13. Id, p. 200 para 15.3 & 15.4.
14. Report of the National Workshop on Gender and Law Enforcement, held at Vigyan Bhawan, New
Delhi on 1-2 June, 2001 p. 121.
15. Supra note 5, p. 148.

ww

sh

ni
.ma

68

om

p.c
p
n
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N. J. Comp. Law Vol. 3 (1) 2016, pp. 69-77

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EMPOWERING WOMEN THROUGH

ANIMAL HUSBANDRY EDUCATION & TRAINING
Shikha Verma & S. S. Kashyap
Department of B.Ed., K. S. Saket P.G. College, Ayodhya, Faizabad
*College of Veterinary Science & Animal Husbandry, NDUAT, Faizabad
Email: akslaw.seminar2014@gmail.com

Livestock is considered a key asset for rural households worldwide and a primary
livelihood resource for rural communities: about 752 million of the worlds poor keep
livestock to produce food, generate income, manage risks and build up assets. Depending on the region and livestock sub-sector, rural women and men often have
specific knowledge about various aspects of animal husbandry and livestock, and
diverse responsibilities and tasks to carry out (e.g. in dairy farming women are frequently responsible for feeding and milking while men for selling and slaughtering).
These tasks are often assigned to women and men on the basis of customary gender
roles, which are assigned according to what a society considers appropriate for men,
women, boys and girls.
Rural women play a major and crucial role in livestock farming, often responsible for
multiple daily tasks. In rural livestock-based economies they represent two-thirds (approximately 400 million people) of low-income livestock keepers. For example, in the
Gambia 52 percent of sheep owners and 67 percent of goat owners are women. In the
mountains of Chiapas, Mexico, sheep husbandry is mainly womens responsibility, providing 36 percent of household income through wool processing and sale. In Afghanistan, traditional backyard poultry activities are entirely carried out by women, who tend
to manage an average of ten hens producing around 60 eggs per year, which are sufficient to cover household consumption needs. In dairy farming, across different regions
and cultures, milking and processing of milk is mainly undertaken by women.
In spite of their heavy involvement in livestock farming, customary gender roles are
often biased, so rural women face obstacles more regularly than men in obtaining the
necessary tools to reach their full potential in the livestock/agriculture
sectors. Rural
om
.cextension
p
p
women tend to have limited access to resources
and
services,
less particin
a
h
s
pation in decision making and enjoyn
ai
smaller
share of the income derived from livea
stock farming if compared towtheir
.m male counterparts. Recognizing the different roles
w
w in the livestock and agriculture sector is key to identifying
that women and men play
the diverse challenges they face and to tailoring projects and programmes on their
specific needs. Understanding and integrating these diverse roles and specific dynamics into projects and programmes can infact significantly improve their outcomes
and effectiveness.
69

N. J. Comp. Law Vol. 3 (1) 2016, pp. 69-77

EMPOWERMENT

ISSN : 2393 - 9338

ELEMENTS

have amply, the landless poor can easily and profitably participate in the white
Empowerment is a multidimensional con- revolution, deriving employment and adstruct. As suggested by the World Bank ditional income from it. Since milk is not a
for assessing the Operation Flood pro- polluting substance in the Hindu religious
gramme on three dimensions: social em- ideology, people belonging to any caste,
powerment, economic empowerment, even the lowest, can and do participate in
and political empowerment.
producing milk. Also cooperatives which
organize only milk producers can sucSocial & Economic Empowerment
cessfully bypass the constraint of village
Social empowerment deals with issues power structure. Furthermore, although
of exclusion and inclusion. They become OF was not designed to eradicate the
important in a religiously diverse, multi- problems of poverty and unemployment,
cultural, and highly stratified society like it is true that millions of landless, marginIndia where rural poor face many forms al, and small farmers who were engaged
of exclusion. While Operation Flood is in milk production benefited greatly from
not an all-purpose development program the increased income and employment
and cannot hope to sweep away eco- opportunities generated by OF. Of the
nomic and social inequalities that existed farm families covered under OF, 21 per
in rural India for centuries, it has nonethe- cent had no land and another 66 per cent
less had a profound impact on the social were marginal and small farmers owning
landscape of the countryside. In its 1976 less than two hectares of land. Over 70
report on rural employment, the National percent of the participating households
Commission on Agriculture observed:
had just one or two milch animals. Thus,
OF turned out in practice to be a pro-poor
Next to crops, animal husbandry pro- programme that made the distribution of
grammes have the largest employment incremental income from milk among rupotential. The most important features ral milk-producing households more eqof these programmes are that they pro- uitable. As far as empowerment of womvide subsidiary occupation, offer gain- en is concerned, this took place mainly
ful employment at the location itself, and through the women dairy cooperative somake better utilization of female and cieties (WDC). In the WDCs women find
child labour. Most of these programmes themselves empowered, as they are auare particularly suitable for weaker sec- thorised to make their own decisions in
tions of the rural community and have meetings held outside the home. Income
re-distributive effect on rural income in fa- from WDCs enables the women to make
vour of them. Renowned Sociologist B.S. most household expenditures without
Baviskar explains that Operation Flood being dependent on their husbands. OF
m
was considered a means of overcoming has also played .an
role in gencoimportant
p
p
the barriers of caste, class, and power, erating employment
n
for women. With 3.5
ha
s
i
something that earlier rural development amillion
n milk suppliers, "it is reasonable to
.m assume that 5 percent represented womprograms had been unable to do. Since
w
wwmuch en who were able to stay at home rather
milk production does not require
land, but family labour which the poor than go out for work. This withdrawal of
70

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women from the labour force will have

created an additional 175,000 labouring
jobs, predominantly for the very poor," reveals the assessment report of the World
Bank in 1998.

OBJECTIVES

their misuse for sex determination leading to female foeticide . However, these
aims and objects are fulfilled through the
implementation of various provisions of
the Act. Some of these are discussed as
below.

The cult of female foeticide and infanti- Section 2(i) of the Act defines pre-natal
cide was prevalent in India from very ear- diagnostic procedures. The term means
lier days. But, the gravity of the offence all gynaecological or obstetrical or mediand number of incidents has increased cal procedures such as ultrasonography,
now due to various factors including ad- foetoscopy, taking or removing samples
vancement of science and technology. of amniotic fluid, chorionicvilli, blood or
When there was no ultra sound machine, any other tissue or fluid of a man, or of a
people used to kill girl child after their woman for being sent to a Genetic Labbirth. But, now, because of early detection oratory or Genetic Clinic for conducting
by the ultra sound machine, girl child are any type of analysis or pre-natal diagnoskilled even in the womb and before their tic tests for selection of sex before or afbirth. The practice of killing girl child in the ter conception. Section 2(j) defines prewomb is adopted by even educated and natal diagnostic techniques. It includes
reasonably well educated and rich fami- all pre-natal diagnostic procedures and
lies rather than poor families . However, pre-natal diagnostic tests. Section 2(k)
in order to prevent this barbaric and in- defines pre-natal diagnostic test. The
human evil practice of female foeticide, term means ultrasonography or any test
where the dignity of women is ravished or analysis of amniotic fluid, chorionic
even before their birth, government of In- villi, blood or any tissue or fluid of a pregdia enacted the The Pre-Natal Diagnostic nant woman or conceptus conducted to
Techniques (Regulation and prevention detect genetic or metabolic disorders or
of Misuse), Act, 1994. The Act was amend- chromosomal abnormalities or congenied in 2002. The amendment of the Act tal anomalies or haemoglobinopathies
and the rule took place keeping in view or sex-linked diseases. Section 2(o) dethe emerging technology for selection fines the term sex selection. It includes
of sex before and after conception and any procedure, technique, test or adminproblems faced in the working of imple- istration or prescription or provision of
mentation of the Act and directions of the anything for the purpose of ensuring or
m
.cothe
judiciary in various cases. The object of increasing
probability that an embryo
p
p
n
a
the Act is to provide for the prohibition of
be of a particular sex. According to the
ishwill
n
a
sex selection before or after conception,
Act, no Genetic Counselling Centre, Gem
.diagnostic
w
and for regulation of prenatal
netic Laboratory or Genetic Clinic unless
ww
techniques for the purpose of detecting registered under this Act, shall conduct
genetic abnormalities or metabolic dis- or associate with, or help in, conducting
orders or chromosomal abnormalities or activities relating to prenatal diagnostic
certain congenital malformations or sex- techniques . The Act also says that no
linked disorders and for the prevention of Genetic Counselling Centre or Genetic
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Laboratory or Genetic Clinic shall employ As per the Act, no person shall open any
or cause to be employed or take servic- Genetic Counselling Centre, Genetic
es of any person, whether on honorary Laboratory or Genetic Clinic, including
basis or on payment who does not pos- clinic, laboratory or centre having ultrasess qualifications as may be prescribed sound or imaging machine or scanner
. The act says that no medical geneticist, or any other technology capable of ungynaecologist, paediatrician, registered dertaking determination of sex of foetus
medical practitioner or any other person and sex selection, or render services to
shall conduct or cause to be conducted any of them, after the commencement
or aid in conducting by himself or through of the Pre-natal Diagnostic Techniques
any other person, any pre-natal diagnos- (Regulation and Prevention of Misuse)
tic techniques at a place other than a Amendment Act, 2002 unless such cenplace registered under this Act .As per the tre, laboratory or clinic is duly registered
Act, no person, including a specialist or a under the Act. The Act prohibits advertiseteam of specialists in the field ofinfertility, ment relating to pre-natal determination
shall conduct or cause to be conducted of sex and says, inter alia, that no person,
or aid in conducting by himself or by any organization, Genetic Counselling Cenother person, sex selection on a woman tre, Genetic Laboratory or Genetic Clinic,
or a man or on both or on any tissue, em- including clinic, laboratory or centre havbryo, conceptus, fluid or gametes derived ing ultrasound machine or imaging mafrom either or both of them . The Act says, chine or scanner or any other technology
no person shall sell any ultrasound ma- capable of undertaking determination
chine or imaging machine or scanner or of sex of foetus or sex selection shall isany other equipment capable of detect- sue, publish, distribute, communicate or
ing sex of foetus to any Genetic Counsel- cause to be issued, published, distributed
ling Centre, Genetic Laboratory, Genetic or communicated any advertisement, in
Clinic or any other person not registered any form, including internet, regarding faunder the Act . The Act specifically says cilities of pre-natal determination of sex
, that on and from the commencement or sex selection before conception availof this Act, (a) no Genetic Counselling able at such centre, laboratory, clinic or at
Centre or Genetic Laboratory or Genetic any other place . The Act also says that
Clinic shall conduct or cause to be con- no person or organization including Geducted in its Centre, Laboratory or Clinic, netic Counselling Centre, Genetic Laborapre-natal diagnostic techniques including tory or Genetic Clinic shall issue, publish,
ultrasonography, for the purpose of deter- distribute, communicate or cause to be
mining the sex of a foetus; (b) no person issued, published, distributed or commushall conduct or cause to be conducted nicated any advertisement in any manner
any pre-natal diagnostic techniques in- regarding pre-natal determination or precluding ultrasonography for the purpose conception selection
of sex by any means
.com
p
p
n
of determining the sex of a foetus; (c) no whatsoever,
scientific
or otherwise . Again
a
h
s
person shall, by whatever means, cause aSection
ni 22(3) of the Act says that any perm
.
or allow to be caused selection ofw
sex
wbe- son who contravenes the provisions of
w
fore or after conception.
sub-section (1) or sub-section (2) shall be
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punishable with imprisonment for a term

which may extend to three years and with
fine which may extend to ten thousand rupees. The Act clearly says that, any medical geneticist, gynaecologist, registered
medical practitioner or any person who
owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is
employed in such a Centre, Laboratory
or Clinic and renders his professional or
technical services to or at such a Centre,
Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or
rules made there under shall be punishable with imprisonment for a term which
may extend to three years and with fine
which may extend to ten thousand rupees and on any subsequent conviction,
with imprisonment which may extend to
five years and with fine which may extend
to fifty thousand rupees . The Act also directs that the name of the registered medical practitioner shall be reported by the
Appropriate Authority to the State Medical
Council concerned for taking necessary
action including suspension of the registration if the charges are framed by the
court and till the case is disposed of and
on conviction for removal of his name
from the register of the Council for a period of five years for the first offence and
permanently for the subsequent offence .

the marriage problems faced by the parents coupled with the dowry demand
by the so called educated and /or rich
person who are well placed in the society. The traditional system of female infanticide whereby the female baby was
done away with after birth by poisoning
or letting her choke on husk continues in
a different form by taking advantage of
advanced medical techniques. Unfortunately, developed medical science is misused to get rid of a girl child before birth.
Knowing fully well that, it is immoral and
unethical as well as it may amount to an
offence; foetus of a girl child is aborted
by qualified and unqualified doctors or
compounders. This has affected overall
sex ratio in various States where female
infanticide is prevailing without any hindrance. However, honble court gave the
following directions in this case:

DIRECTION TO THE CENTRAL

GOVERNMENT
(a).The Central Government is directed to create public awareness against
the practice of prenatal determination of
sex and female foeticide through appropriate releases/programmes in the electronic media. This shall also be done by
the Central Supervisory Board (CSB for
short) as provided under Section 16(iii) of
the PNDT Act.

JUDICIAL DEVELOPMENTS

(b).The Central Government is directed

with all vigour and zeal the
In Centre for Enquiry into Health and Al- to implement
.com
p
p
n
a Act and the Rules framed in 1996.
lied Themes(CEHAT) and others vs. Un- hPNDT
s
i
Rule 15 provides that the intervening periion of India and others Honble Supreme
an
m
.
w
Court held that it is unfortunate
that for od between two meetings of the Advisory
w
w
one reason or the other the practice of fe- Committees constituted under sub-secmale infanticide still prevails despite the tion (5) of Section 17 of the PNDT Act to
fact that the gentle touch of a daughter advise the appropriate authority shall not
and her voice has a charming effect on exceed 60 days. It would be seen that this
the parents. One of the reasons may be Rule is strictly adhered to.
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Directions to the Central Supervisory

Board (CSB)

(e). CSB shall lay down a code of conduct under Section 16(iv) of the Act to be
observed by persons working in bodies
specified therein and to ensure its publication so that the public at large can
know about it.
(f). CSB will require medical professional bodies/associations to create awareness against the
practice of prenatal
determination of sex and female foeticide
and to ensure implementation of the Act.

(a). Meetings of CSB will be held at least

once in six months [re proviso to Section
9(1)]. The constitution of CSB is provided
under Section 7. It empowers the Central Government to appoint ten members
under Section 7(2)(e) which includes
eminent medical practitioners, including
eminent social scientists and representatives of women welfare organizations. We
hope that this power will be exercised so Directions to State Governments/UT
as to include those persons who can gen- Administrations
uinely spare some time for implementa(a). All State Governments/UT Admintion of the Act.
(b). CSB shall review and monitor the im- istrations are directed to appoint by notification, fully empowered appropriate
plementation of the Act.
(c). CSB shall issue directions to all authorities at district and sub-district levStates/UT appropriate authorities to fur- els and also Advisory Committees to aid
nish quarterly returns to CSB giving a re- and advise the appropriate authorities in
port on the implementation and working discharge of their functions [re Section
of the Act. These returns should inter alia 17(5)]. For the Advisory Committee also, it
is hoped that members of the said Comcontain specific information about:
(i) survey of bodies specified in Section 3 mittee as provided under Section 17(6)(d)
should be such persons who can devote
of the Act;
(ii) registration of bodies specified in Sec- some time to the work assigned to them.
(b). All State Governments/UT Administration 3 of the Act;
(iii) action taken against non-registered tions are directed to publish a list of the apbodies operating in violation of Section 3 propriate authorities in print and electronic
of the Act, inclusive of search and seizure media in their respective States/UTs.
(c).
All State Governments/UT Adminof records;
(iv) complaints received by the appropri- istrations are directed to create public
ate authorities under the Act and action awareness against the practice of prenatal determination of sex and female foetitaken pursuant thereto;
(v) number and nature of awareness cide through advertisement in print and
campaigns conducted and results flow- electronic media by hoardings and other
appropriate means.
ing therefrom.
All State Governments/UT
(d). CSB shall examine the necessity to (d).
comto ensure Admin.
p
p
istrations
are
directed
that all
amend the Act keeping in mind emerging
n
a
h
technologies and difficulties encountered State/UT
is appropriate authorities furnish
n
a
in implementation of the Act and to make
w.m quarterly returns to CSB giving a report
w
wGovern- on the implementation and working of the
recommendations to the Central
Act. These returns should inter alia conment (re Section 16).
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tain specific information about:

(i) survey of bodies specified in Section 3
of the Act;
(ii) registration of bodies specified in Section 3 of the Act;
(iii) action taken against non-registered
bodies operating in violation of Section 3
of the Act, inclusive of search and seizure
of records;
(iv) complaints received by the appropriate authorities under the Act and action
taken pursuant thereto;
(v) number and nature of awareness
campaigns conducted and results flowing there from.

Directions to Appropriate Authorities

(iv) complaints received by the appropriate authorities under the Act and action
taken pursuant thereto;
(v) number and nature of awareness
campaigns conducted and results flowing therefrom.
(d). CSB and the State Governments/
Union Territories are directed to report to
this Court on or before 30-7-2001. List the
matter on 6-8-2001 for further directions at
the bottom of the list.
In CEHAT and Others vs. Union of India
Honble court held that there was total
slackness by the administration in implementing the PNDT Act. Court also was of
the view that those centres which were
not registered were required to be prosecuted by the authorities under the provisions of the Act and there was no question
of issue of warning and to permit them to
continue their illegal activities.

(a). Appropriate authorities are directed to

take prompt action against any person or
body who issues or causes to be issued
any advertisement in violation of Section
22 of the Act.
(b). Appropriate authorities are directed
to take prompt action against all bodies In CEHAT and Others vs. Union of India
specified in Section 3 of the Act as also Honble court gave the following direcagainst persons who are operating with- tions:
out a valid certificate of registration under In Hemanta Rath vs. Union of India and
the Act.
Others 23 Honble court directed that if
(c). All State/UT appropriate Authorities Appropriate Authorities as contemplated
are directed to furnish quarterly returns to under Section-17 of the PNDT Act and as
CSB giving a report on the implementa- defined under Section 2(a) of the said Act
tion and working of the Act. These returns has been constituted, such Authority must
should inter alia contain specific informa- act strictly in terms of the provisions of the
tion about:
said Act. If, however, such Committee has
(i) survey of bodies specified in Section 3 not been o
m
such Committee
c constituted,
.
p
of the Act;
p
must
an be constituted within a period of six
h
s
(ii) registration of bodies specified in n
Secfrom the date of service of the ora iul- weeks
m
tion 3 of the Act including bodies
using
.
der
upon
the Chief Secretary of the State.
w
w
trasound machines; w
After constitution of the said Committee,
(iii) action taken against non-registered it must take strict measures to implement
bodies operating in violation of Section 3 the provisions of the said Act. The said Act
of the Act, inclusive of search and seizure has been enacted to serve public purpose
of records;
and the Constitutional end as is clear from
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the object of the Act quoted hereinabove.

Therefore, the State is under both a statutory and Constitutional obligation to implement the provisions of the said Act.
In Vinod Soni and Anr. Vs. Union of India , a
very interesting argument was advanced
in this case by the Petitioner that the right
to life guaranteed under Article 21 of the
Constitution includes right to personal liberty which in turn includes the liberty of
choosing the sex of the offspring and to
determine the nature of the family. Therefore, it was contended that the couple is
entitled to undertake any such medical
procedure which provides for determination or selection of sex. The High Court
however exposed the fallacy of this argument by observing that, right to personal liberty cannot be expanded by any
stretch of imagination to liberty to prohibit
to coming into existence of a female or
male foetus which shall be for the nature
to decide. Honble Court also held that,
Article 21, cannot include right to selection of sex, whether preconception or
post-conception. It was observed by the
High Court that this Act is factually enacted to further the right of the child to full
development as given under Article 21. A
child conceived is, therefore, entitled under Article 21 to full development, whatever be the sex of that child.

in progress before the Magistrate was vitiated. High Court rightly rejected this contention by giving broader interpretation to
Section 28 of the Act. It was held that Section 28 does not narrow down the class
of persons who can initiate action. On the
other hand, it allows for fairly large body
of persons to set the law in motion. Apart
from the Appropriate Authority, an Officer
authorized by the Central or State Government can also file a complaint. He can
also be a person authorized by the appropriate Authority itself. As per the Explanation contained u/s 28, the expression person includes even a social organization.
The various categories of persons which
are set out u/s 28 give authority to a wide
range of persons who can initiate the action under the Act. It was further held that
Section 28 must not be read as constituting a narrow class of persons who could
initiate the action. It must be given an
extensive meaning to pave the way for
any socially conscious person to initiate
action. It was accordingly held that the
complaint filed by the Project Officer was
not illegal but it was only irregular and the
subsequent discussion and recording of
minutes by Appropriate Authority constituted valid ratification.

In M/S Malpani Infertility Clinic Pvt. Ltd.

and Others vs. Appropriate Authority,
PNDT Act and others in a Writ Petition
In Dr. Preetinder Kaur and Others Vs. The filed by M/S Malpani Infertility Clinic Pvt.
State of Punjab and Others it was con- Ltd. in the High Court of Bombay, the ortended that the Act contemplated the pro- der passed by Appropriate Authority susceeding to be initiated in particular fash- pending the registration of Petitioners Diion on a complaint by the appropriate agnostic Centre .under
comthe PNDT Act was
p
p
Authority, but the said procedure had not challenged.
an Main contention raised was
h
s
been followed. The person who had filed athat
nishow cause notice, as contemplated
m
.
u/s 20(1), an opportunity of hearing as
the complaint had never been authorized
ww
w
by the Appropriate Authority for taking any contemplated u/s 20(2) and sufficient reaaction; therefore the entire trial which was sons as required u/s 20(3) of the Act were
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not given to petitioners before taking the

action of suspending registration; hence
the order was bad as per law. However,
considering peculiar facts of the case,
High Court rejected this contention. It was
held that, as appropriate Authority has, after referring to that criminal prosecution
issued the order of suspension, there was
sufficient notice to petitioners and there
was also sufficient mention of the reasons
by the Appropriate Authority in suspension order. It was further held that, when
the reasons are required to be given in
writing it is not necessary that there ought
to be a detailed discussion. In the words
of High Court, where there is a conflict
of private interest, to carry on a particular
activity which the Public Authority considered as damaging to the social interest,
surely the power under the Statute has to
be read as an enabling power.

REAL SCENARIO
The girl child after she is born becomes
a victim of gross nutritional and health
neglect. Consequently, more female
children than male children succumb to

childhood illness and these impact the

child sex ratio directly. According to the
statistics of National Crime Record Bureau (NCRB) , number of total registered
cases of infanticide in Indian States was
134 in 2007 and the number became 74
in 2012[Table 1]. The number of infanticides was reduced in 2012 in comparison
with 2007. This is really very encouraging.
Again, the number of foeticide in Indian
States was 92 in 2007. This number was
increased to 207 in 2012. Within a gap
of 5 years the number was increased to
more than double, which is really alarming. However, the real number perhaps is
more than what is reflected in the statistics. Because, all cases of infanticides and
foeticides are not reported properly due
to various reasons. Arunachal Pradesh,
Assam, Goa, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Manipur,
Meghalaya, Mizoram, Nagaland, Orissa,
Uttarkhand did not report a single case of
infanticide and foeticide in 2012. Highest
number of foeticide took place in Madhya
Pradesh in 2012 among all Indian States
followed by Rajasthan, Haryana and Punjab [Table No. 1].

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HATE SPEECH AND THE LAWS:

A CRITICAL STUDY WITH REFERENCE TO
THE NATIONAL AND INTERNATIONAL PERSPECTIVES
Rajib Bhattacharyya
Assistant Professor, University Law College, Gauhati University, Guwahati- 14, Assam, India
Email: bhattacharyya.rajib@gmail.com

Among other things in our nation, Hate Speech is one of the most pressing issues in
India in the present days. The very fact that our societies and the different countries are
so diverse in nature that which may often lead to discrimination and cultural bias in
one form or another. Therefore, it has been studied in this paper, the different forms of
displaying hate speech all across the world, the mediums through which it is often exhibited, and why people react differently to hate speech presented in different forms or
degrees. In India, the law of the land i.e. the Constitution and its hate speech laws aim
to prevent discord among its many ethnic and religious societies & communities. The
laws prevailing in our country allow the citizens to seek the sanction of anyone who
shows the citizen disrespect "on the grounds of religion, race, place of birth, residence,
language, caste or community or any other grounds whatsoever". The prevailing laws
specifically forbid anyone from outraging or disrespecting someone's "religious feelings" and therefore the laws prohibit any means of expression which someone finds
insulting. It is not only in our country but all over the world, its a matter of serious concern that hate speech need to be curbed, cured or controlled in our societies so that
the people can live peacefully in this global village.

INTRODUCTION, MEANING AND

THE CONCEPT
Hate speech is the special scourge of minorities and indigenous peoples: like a
disease that afflicts only certain populations, it can cause some people to suffer
greatly, while others remain unaware and
unsympathetic. It gives rise to both psychological and physical harm, and affects
a variety of minority and indigenous communities. For example, hate speech has
recently been followed by violent attacks
against Coptic Christians in Egypt, Mus1.

lims in Burma and immigrants in Greece.

In those and other parts of the world, hate
speech is thriving, nurtured by coinciding
factors: economic hardship, large-scale
migration, competition between groups
for political power after the fall of repressive central regimes, and the ease of expressing hatred online. 1
The growth of hate speech has inspired
alarm in diverse quarters, because it can
cause or inspire serious
om harm in several
c
.
p
ways. It directly
its targets the
np affects
a
h
people
it
purports
to
describe
by frightis

n
.ma
w
Defining and diminishing hate speech
wwby Susan Benesch, available on http://www.minorityrights.
org/12473/state-of-the-worlds-minorities/mrg-state-of-the-worlds-minorities-2014-chapter02.pdf, last
visited on dated 31.03.2015 at about 8 P.M

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ening, offending, humiliating or denigrating them. This often has the secondary
effect of silencing them, by means of fear.
Speech can also harm indirectly (but no
less severely) by inciting, or pitting members of one group of people against another. Hatred, discrimination and dehumanization are steps in a process that can lead
to violence. In Kenya, for example, there
is consensus that months of hate speech
before the 2007 presidential election contributed to severe violence that broke out
when the results were disputed. Since
then Kenya has formed a new national
agency, the National Cohesion and Integration Commission, charged with reducing hate speech, among its other duties. 2

national virtual space of the internet.

First, migration and refugee flows have
established new minority communities
at the same time as economic and political changes have increased the tendency to stigmatize them. In countries
as varied as Greece, South Africa, Cote
dIvoire and Japan, economic hardship
is blamed on minorities, especially those
who are viewed by some of the majority
population as foreigners because their
ancestors immigrated, even though the
present-day members of minority groups
are native-born. In other cases, political
leaders scapegoat minorities to galvanize
their supporters, or leaders of ethnic or religious groups jockey for political power
by pitting their followers against one another. 4

At the regional and international levels,

too, there are new efforts to respond to
hate speech. The Council of Europe will Hate speech is disseminated by many
soon complete a two-year project called means, including the traditional soapbox
the No Hate Speech Movement, focused and bullhorn, graffiti, speeches recorded
on youth and on what they read, write and on CDs and digital communications. It
hear online. Frank LaRue, the UN Special is rife on the internet and social media
Rapporteur on freedom of opinion and because some feel free to express their
expression, devoted his 2012 annual re- hatred and anger there, even when they
port to the increasingly visible manifes- would not do so in similarly public settings
tations of hate speech. He noted several offline. Online, hateful speakers encourcases in which killings were linked to in- age and incite one another, and cause
citement, such as the murders of Ahmadi- extra pain to their targets, who are often
yya community leaders in Pakistan after a now privy to hate speech that they would
television broadcast in which two maula- not have seen or heard if it were shared
nas said the Ahmadiyya deserved to die; among haters offline, as was more comviolence against members of the Catho- mon in the past. Online platforms such
lic and Jewish communities in Venezuela as YouTube, Facebook and Twitter have
after incitement against them; and incite- contributed to a sudden and rapidly inment to racism in Israel against the Arab creasing wave
omof bigotry-spewing videos,
c
.
p
population in Israel, and against Jews in hate-oriented
affinity groups, racist online
np
a
3
h
the occupied Palestinian territory.
is commentary, and images encouraging
n
a
violence against the helpless and minori.m
w
Several converging reasons
ww help to ex- ties blacks, Asians, Latinos, gays, women,
plain why hate speech is on the rise in so Muslims, Jews across the Internet and
many countries and also in the trans- around the world. On social media, in
2.
3.
4.

Id.
Id.
Ibid.

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particular, civility can quickly disappear,

and the most vicious speech becomes
commonplace. An activist in Burma compared online spaces to toilet stalls where:
people write whatever they want on the
walls. Inflammatory falsehoods targeting
minorities have also become a familiar
feature online, where they are powerful
and difficult to refute. For example, in the
case of Burma, graphic images of violence in the Central African Republic have
been used to argue that Muslims are, as a
group, given to savagery.5
The right to freedom of expression doesnt include the freedom to insult someone or disrespect a community on the basis of caste,
religion, race, place of birth, and language.
The Indian Constitution forbids anyone from
making hate speeches that disturb the harmonious co-existence. In recent times, political discourse has created much discord
among the electorates. Anti-hate speech
laws have long been established to tackle
these aberrations. The Law Commission of
India is now working towards its immediate
goal suggest laws to tackle hate speeches
and decide whether the Election Commission can be empowered to de-recognise
a political party for making such speeches.
The major task ahead of the commission is
to define the expression hate speech and
recommend what could be the poll panels
role in curbing it. Some legal experts have
observed that the Supreme Court is finding
an excuse for not taking action against politicians by waiting for the law commission to
explain what constitutes hate speech. 6
The Constitution of India does not provide
for a state religion. Article 25(1) states,
5.
6.

"Subject to public order, morality and

health and to the other provisions of this
Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practise and propagate religion". Article 19 gives all citizens the right
to freedom of speech and expression
but subject to "reasonable restrictions"
for preserving inter alia "public order, decency or morality". Article 28 prohibits any
religious instruction in any educational
institution wholly maintained out of state
funds. Article 51A (h) imposes on every
citizen the duty to develop the scientific
temper, humanism and the spirit of inquiry and reform.7

The History and Purpose of Hate

Speech Laws 8

Indias hate speech offences are largely

a legacy of the British. These provisions
were viewed, by the British, as a necessary expedient to maintaining security
and stability in their colonial territories:
From the point of view of the British, the
purpose of the hate speech provisions
was to avoid communal tension, irrespective of who was right or wrong.
The importance of hate speech laws in
the British project of maintaining stability
in India (necessary for the perpetuation of
colonial rule), and the extent to which the
British perceived Indian colonial subjects
as uniquely vulnerable to religious insults,
are made clear by Macaulays commentary on Offences Relating to Religion and
Caste within the Indian Penal Code:
The question [,] whether insults offered
to a religion ought to be visited with pun-

om

p.c
p
n
a

Id.
Hate speech Laws in India, available on http://www.elections.in/political-corner/hate-speech-laws-inindia/ last visited on dated 31.03.2015 at about 8.45 P.M.
7. Hate Speech laws in India, available on http://en.wikipedia.org/wiki/Hate_speech_laws_in_India 31.03.2015
at about 8.40P.M, last visited on dated 31.03.2015 at about 8.15 P.M.
8. Module- Hate Speech in India, available on http://jmi.ac.in/upload/menuupload/11_ccmg_hatespeech.
pdf, last visited on dated 31.03.2015 at about 8.30 P.M.

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ishment, does not appear to us at all to

depend on the question whether that religion be true or false The religion may be
false but the pain which such insults give
to the professors of that religion.
Macaulays notion of words that wound
is surprisingly prescient. However, the
motives and objects of Macaulays code,
as it related to offences relating to religion
and caste, were by no means pure. As he
himself admits in his commentary, the
principal concern of such offences was
ensuring basic social stability and security, in the absence of which British rule
could not effectively function:

with multiple definitions of hate speech,

each state also has its own standards
for measuring and prosecuting those accused of hate speech, ranging from prosecution under criminal law and/or civil
law, to the protection of hate speech as an
extension of free speech, a fundamental
human right enshrined in Article 19 of the
Universal Declaration of Human Rights.9

The relationship between speech and action is one of the most complex in the law
of communications. Speech plays a pivotal role in the communication of ideas,
beliefs, doctrines, and schemes of action. Verbal and symbolic messages are
instrumental in the transmission of social
We have provided a punishment of great mores and dogmas. Those tenets then inseverity for the intentional destroying of or fluence persons to act on the expressed
defiling of places of worship, or of objects views. Free speech is quintessential for
held sacred by any class of persons. No maintaining democracy because it facilioffence in the whole Code is so likely to tates the exchange of diverse opinions.
lead to tumult, to sanguinary outrage, and In a representative democracy, dialogue
even to armed insurrection.
facilitates the testing of competing claims
and obtaining of diverse input into politiThe sentiments expressed in the above cal decision making. Free speech is also
extract the notion of Indians as subject essential to the enjoyment of personal auto a unique range of prejudices, sensi- tonomy. Embodied in the Universal Dectivities and particularities, to which they laration of Human Rights is the evocative
were uniquely vulnerable, and incapable proposition that & everyone has the right
of agency beyond an ancient and immu- to freedom of opinion and expression. But
table cultural framework dictating their beneath that level of abstraction there is
responses regarding the assessment of anything but universal agreement. ModIndian civilization as despotic, hierarchi- ern democratic societies disagree on the
cal, stultifying and mired in superstition.
text, content, theory, and practice of this
liberty. Hate speech that has now become
What is Hate Speech?
a fashion and a short cut to get publicWithin the law, defining hate speech and ity, poses vexing
om and complex problems
c
.
p
constitutional rights to
legislating against it has been a complex, forncontemporary
p
a
h
often controversial exercise globally. Conis freedom of expression. 10
n
a
sequently, ranges of definitions .exist,
m varyw
ing greatly from countryw
tow
country. Along Michel Rosenfeld defines hate speech
9. Hate Speech: A study of Pakistans Cyberspace (June, 2014), available on www.bytesforall.pk.
10. Hate Speech and Freedom of Expression: Balancing Social Good and Individual Liberty by Prof. (Dr.)
M.K. Bhandari and Dr. Mithilesh Narayan Bhatt, available on http://www.supremecourtcases.com/
index2.php?option=com_content&itemid=5&do_pdf=1&id=22819, last visited on dated 10.10.2015 at
about 9 P.M.

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as speech designed to promote hatred

on the basis of race, religion, ethnicity or
national origin. In the Indian context, the
contemporary meaning of the term hate
speech is inextricable from its origins
(as a form of legal action) in colonial attempts to assume the role of the rational
and neutral arbiter of supposedly endemic and inevitable religious conflicts. Given
this historical context, hate speech has
primarily been understood in India as referring to speech intended to promote hatred or violence between Indias religious
communities.11

cle 19 (2) on utilitarian grounds: some restrictions on freedom may be necessary

so that others may also enjoy their liberties. As noted by Sastri J in A. K. Gopalan
(1950):
Man, as a rational being, desires to do
many things, but in civil society his desires have to be controlled, regulated and
reconciled with the exercise of similar
desires by other individuals Liberty has,
therefore, to be limited in order to be effectively possessed.
As defined14

in Ram Manohar Lohia

CONSTITUTIONAL ASPECTS OF (1960), such public order is necessary for

HATE SPEECH AND FREEDOM OF citizens to peacefully pursue their norSPEECH IN INDIA
mal avocations of life.15 As the Supreme
Under Indian Constitution, Article 19 (1)
(a) guarantees the right of all citizens to
freedom of speech and expression. This
right, however, is not expressed in absolute terms (as in the American Constitution). Rather, it is subject to Article 19
(2), which allows the State to make laws
imposing reasonable restrictions upon
freedom of speech and expression in the
interests of the sovereignty and integrity
of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence. It is under the ground
of public order that India has prohibited
and penalized hate speech. 12
The Supreme Court 13 has justified the restrictions on free speech imposed by arti11.
12.
13.
14.
15.
16.
17.

Court put it in Praveen Bhai Thogadia (Dr)

(2004), the right to freedom of expression
may at times have to be subjected to reasonable subordination to social interests,
needs and necessities to preserve the
very core of democratic life preservation
of public order and rule of law. 16
It must be recognised that freedom of
speech and expression is one of the most
valuable rights guaranteed to a citizens
of India by the Constitution and has been
jealously guarded by the courts. Free political discussion is deemed essential for
the proper functioning of a democratic
government. 17
In Civil liberties and Human Rights David Feldman,18 counted certain justifications for and limits of freedom of expression. Firstly, self expression is a significant

Supra Note 8
Id.
Id.
Ibid.
Superintendent, Central Prison v. Ram Manohar Lohia AIR 1960 SC 633
Baragur Ramachandrappa and ors v State of Karnataka (2007) 3 SCC 11
HATE CRIME: POLITICO-LEGAL DIMENSION OF HATE SPEECH by Girjesh Shukla, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1861926, last visited on dated 31.03.2015 at about 8.53 P.M.
18. Id. Cf. Cited in Secretary, Ministry of I. & B. v Cricket Association, Bengal AIR 1995 SC 1236.

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instrument of freedom of conscience and

self fulfillment. Secondly, freedom of expression enables people to contribute to
debates about social and moral values.
The best way to find the best or truest
theory or model of anything is to permit
the widest possible range of ideas to circulate. Thirdly, the freedom of expression
allows political discourse which is necessary in any country which aspires to be
democratic. And lastly, it facilitates artistic
scholarly endeavours of all sorts.
In Indian Express Newspapers (Bombay) Pvt.
Ltd. v Union of India,19 the Supreme Court
delineated four broad social purposes of
freedom of speech and expression; Firstly, it helps an individual to attain self fulfillment, Secondly it assists in the discovery of
truth; thirdly, it strengthens the capacity of
an individual in participating in decision
making and lastly, it provides a mechanism by which it would be possible to
establish a reasonable balance between
stability and social change.
The court observed that all members of
the society should be able to form their
own beliefs and communicate them freely
to others. Freedom of speech and expression should, therefore, receive a generous
support from all those who believe in the
participation of people in the administration.

Restriction on Freedom of Speech20

for curbing hate speeches. These are law

and order which includes incitement to
the offences, public order and security
of state. This clause being inoperative
clause necessarily needs a legislation to
criminalise hate speeches.
It is necessary that the law imposing restrictions must be reasonable21 and in deciding the reasonableness of restrictions
the courts should consider the nature of
the right alleged to have been infringed,
the underlying purpose of the restrictions
imposed, the disproportion of the imposition and the prevailing conditions including the social values whose needs are
sought to be satisfied by means of the restrictions.22
In S. Rangarajan case23 court observed
freedom of speech is subject to reasonable restriction in the larger interest of the
community and the country set out in Article 19 (2). These restrictions are intended
to strike a proper balance between the
liberty guaranteed and the social interests specified in Article 19 (2).
Thus, there should be a compromise between freedom of expression and social
interests. The court cannot simply balance the two interests as if they are of
equal weight.

Restriction on Hate Speech; Clear and

Present Danger Test24

The Constitution has placed restrictions

or alarming speech
on freedom of speech and expression to Every instigating
m
o
c
protect and promote orderly society and doespnot
p. come under restriction clause.
n
a
The
restrictions
are legitimate attempts
human values. There are three grounds
h
s
i
n(2) to protect the public, not from the remote
which have found place in Articlea19

.m

w
ww

19. Id. Cf. (1985) 1 SCC 641 : AIR 1986 SC 515 cited in Secretary, Ministry of I.& B. v Cricket Association.,
Bengal AIR 1995 SC 1236.
20. Supra Note 17.
21. Article 19(2) of the Constitution of India.
22. Supra Note 19.
23. S. Rangarajan v P. Jagjivan Ram (1989) 2 SCC 574.
24. Supra Note 20.

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possible effects of noxious ideologies,

but from present excesses of direct, active conducts. The issue in every case
is whether the words used are used in
such circumstances and are of such a
nature as to create a clear and present
danger; that they will bring about substantive evils which the centre or state
Legislatures have a right to prevent; it is
a question of proximity and degree.
The question of when the right of free
speech becomes wrong by excess is difficult to determine. For the analysis of the
three expressions used in article 19 (2)
i.e. law and order, public order and security of state, one has to imagine three
concentric circles. Law and order represents the largest circle within which is
the next circle representing public order
and the smallest circle represents the
security of the State. All cases of disturbances of public tranquillity fall in the
largest circle but some of them are outside public order for the purpose of the
phrase maintenance of public order,
similarly every breach of public order is
not necessarily a case of an act likely to
endanger the security of the State.25

trends make it very clear that any legislative attempt to curb hate speech must
pass this test.

EXISTING LAWS AND LEGISLATIVE TRENDS OF HATE SPEECH

IN INDIA
Paradoxically, in spite of the apparent rise
in hate speech in many countries, and
anxiety about it, there is no consensus
on what the term hate speech means,
either in law or in common parlance; in
the words of Kenan Malik, if you look at
hate speech laws across the world, there
is no consistency about what constitutes
hate speech. This raises serious concerns for freedom of expression, since
efforts to restrict hate speech can easily
misfire because the term and related law
are unclear. Hate speech laws have also
been used to attack minorities instead of
protecting them for example, against
Roma in Hungary, where anti- Roma hate
speech is rife. 26

In general, hate speech is an expression

that denigrates or stigmatizes a person or
people based on their membership of a
Adopting this test it may be stated that
group that is usually but not always imstate is at the centre and society surmutable, such as an ethnic or religious
rounds it. Disturbances of society go in a
broad spectrum from mere disturbance group. Sometimes other groups, defined
of the serenity of life to jeopardy of the by disability or sexual orientation, for exState. The acts become graver and grav- ample, are included. Speech may express
er as we journey from the periphery of or foment hatred on the basis of any dethe larger circle towards the centre. In fining feature of a minority or indigenous
this journey we travel first through pub- people, such as ethnicity or religion and
lic tranquillity; then through public order can also denigrate people for another
and lastly to the security of the State. It is failing, such as their gender or even their
omof migrants. When
.ccase
the last two i.e. public order and security location, as in the
p
p
n
of state which attracts restrictions.
a
a group
is
doubly stigmatized in this way,
h
s
i
n
a
Thus, constitutional guidelines judicial
.m it is known as inter-sectionality. 27

ww

25. Ram Manohar Lohia v State of Bihar AIR 1966 SC 740.

26. Supra Note 5.
27. Ibid.

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Hate Speech and Legislative Trends in

India28
Hate speech is designed to promote hatred on the basis of race, religion, ethnicity,
or national origin. In traditional offences,
the offender is guilty only when criminal
act, commission or omission occurs with
a simultaneous mens rea or criminal intent. Such elements would be the basic
requirements for criminalizing such hate
speeches also.

Indian Penal Code, 186029

Indian Penal Code (IPC) has certain provisions prohibiting incitement, abetment,
and connivance and conspiring criminal
activities in general. Section 153 deals
with a somewhat diffused offence which
is neither abetment nor promotion of rioting. It is provocation of a person to commit rioting by malignant or wanton doing
of an illegal act. A person who appeals to
other persons sense of honour or wounded pride may or may not be guilty of an
offence under this section. This section
will apply when there is doing anything
which is illegal Moreover it must have
been done malignantly or wantonly and
with intention or knowledge that it will
probably provoke a breach of peace. The
accused may be punished under this section if his act of provocation is in all probability sufficient for rioting. In other words,
offence will be gazed upon the temper
and feeling of the person subjected to the
provocation and its knowledge by the accused.

or community or any other ground whatsoever or brings about disharmony or

feeling of hatred or ill-will between different religious, racial, language or regional groups or castes or communities. It is
only where the written or spoken words
have the tendency or intention of creating public disorder or disturbance of law
and order or affect public tranquillity that
the law needs to step in to prevent such
an activity. The intention to cause disorder or incite people to violence is the sine
qua non of the offence under section 153A, and prosecution has to prove the existence of mens rea in order to succeed.
If these incitements and hatred are very
much casual in nature and less frequent
then person may not be punished under
this section.

The section 153B is supplementary to

existing provisions like section 153A and
295A of IPC, which provides for taking
action against individuals for activities
promoting enmity or prejudicial to the
maintenance of harmony between different groups on ground of religion, place of
birth, race, caste and residence. Similarly,
Section 505 (2), of IPC makes any statement punishable which is made with a
view to create or promote enmity, hatred
or ill-will between classes of the society.
The main distinction between the two
offences is that while publication of the
words or representation is not necessary
om such publication is sine
.cformer,
under
the
p
p
an non under Section 505.
shqua

ni

Section 153-A provides for punishment

.ma
w
w
for promoting enmitywbetween
different groups on grounds of religion, race,
place of birth, residence, language, caste

Chapter XV of IPC deals with certain offences against religion. These offences
include injuring or defiling places of wor-

28. Supra Note 24

29. Id.

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ship with intent to insult the religion of any

class30, deliberate and malicious act intended to outrage religious feeling of any
class by insulting its religion or religious
belief, disturbing religious assembly, trespassing on burial places and uttering
words etc. with deliberate intent to wound
religious feelings.
Section 295A has been intended to respect the religious susceptibility of persons of different religious persuasion or
creeds. This section envisages the essential ingredients of the punishment and
provides that whoever, with deliberate
and malicious intention of outraging the
religious feelings of any class of citizens
of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to
insult the religion or the religious beliefs of
that class, shall be punished with imprisonment of either description for a term
which may extend to three years, or with
fine, or with both.

the intention of wounding his religious

feelings. And probably therefore it may
not have any application in cases when
grievance relates to written article.
It is interesting that scope of 295A and
298 is overlapping. Amongst the offences
under the two sections the offence under
former is more serious than later. Outraging is stronger than wounding. In order to
bring a case within ambit of 295A it is not
the matter of discourse as the manner of
it. In other words, the words used should
be such as are bound to be regarded by
any reasonable person intended to outrage the feelings of any class of citizens
of India.

Provisions under Representation of

People Act, 195130

Section 123 of the Representation of People Act 1951 (R. P. Act) prohibits the promotion of feeling of ene.mity or hatred
between different class of the citizens
of India on the grounds of religion, race,
caste, community or language by a candidate or his agent or any other person
with the consent of the candidate or for
prejudicially affecting the election of any
candidate or any attempt thereof. Any
such act or attempt will be deemed to
constitute corrupt practice. Accordingly a
speech-related corrupt practice may be
either of two things; firstly the appeal for
vote on the basis of religion, caste, creed
or language and secondly the promotion
of feeling of enmity or hatred between
class of citizens.

Similarly section 298 of IPC also prohibits uttering of any word with deliberate intent to wound religious feelings. The one
main objective of this section is on one
hand to allow all fair attitude to religious
discussion and on other hand to prevent
the professors of any religion from offering, under the pretext of such discussion,
intentional insult to what is scared by others. According to this provision if anyone
with the deliberate intention of wounding
the religious feeling of any person, utters
any word or make any sound in the hear.com
p
p
activity does the language of
ing of any person. It is therefore obvious To which
an
h
s
that section 298 relates to the oral words acorrupt
ni practice apply? In America the
m
.
uttered in the presence of a person
with statutory invocation of the term corrupww
30. Ibid.

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tion in the regulatory context of campaign

behaviour has only one meaning i.e. the
improper use of money to secure electoral advantage. However in our country the
term has wider implication. It includes not
only the money and political irregularities
but also covers the inappropriate use of
speech to advance electoral advantage.

Code of Criminal Procedure, (Cr.P.C)

197331
Section 144 of Cr.P.C makes certain provisions regarding hate speech. It finds place
in Chapter XI headed as Temporary Orders in urgent cases of nuisance or apprehended damage. The section confers
powers to issue an order at once in urgent
cases of nuisance or apprehended danger.
Such orders may be made by Magistrates when there is sufficient ground for
proceeding and immediate prevention or
speedy remedy is desirable. The grounds
for making the order are that in the opinion
of the Magistrate such direction is likely to
prevent, or tends to prevent obstruction,
annoyance or injury, to any person lawfully
employed or danger to human life, health
or safety or a disturbance of the public
tranquillity or a riot or an affray.

'Prevention of Offences' for the prevention of crimes and disturbances of public

tranquillity and breaches of the peace. Division A of this chapter is for security for
keeping the peace on conviction. Division
B then consists of 12 sections including
provisions for taking security for keeping
the peace; good behaviour from persons
disseminating sedition, vagrants and suspected persons and habitual offenders.
These provisions enable Magistrates to
make an order to show-cause and execute a bond, with or without sureties for
keeping the peace for certain period not
exceeding one year. This is an instance
of preventive justice which the courts are
intended to administer. This provision like
the preceding one is in aid of orderly society and seeks to nip in the bud the conduct
subversive of the peace and public tranquillity.

INTERNATIONAL SCENARIO OF
HATE SPEECH

Freedom of speech and expression is

universally accepted as one of the most
important freedoms in almost all modern
progressive nations. Several international
conventions and declarations guarantee
these rights. Freedom of speech is protected as a fundamental right under all the
The gist of action under section 144 is the major international covenants on human
urgency of the situation and its efficacy rights adopted since the end of World
in the likelihood of being able to prevent War II. A particularly strong stand against
some harmful occurrences. It is used in hate speech, which includes a command
a judicial manner and subject to further to States to criminalise it, is promoted by
m
judicial scrutiny. There is no general Article
4.c
ofo the 1965 International Conp
p
an on the Elimination of All Forms
proposition that an order under section
vention
h
s
i of Racial Discrimination (CERD). The Euanbe
144, Criminal Procedure Code cannot
m
.
w
passed without taking evidence.
ropean Court of Human Rights has also
ww
upheld convictions for hate speech as
The Chapter VIII of the criminal procedure consistent with the free speech guaranCode has another explanatory heading tees provided by Article 10 of the ECHR. 32
31. Id.

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Since the end of World War II, many European countries have witnessed a propagation of hate speech legislation designed
to curb stimulation to racial and religious
hatred. Though originally intended to
guard against the kind of xenophobic
and anti-Semitic propaganda that gave
rise to the Holocaust, today, national hate
speech laws have increasingly been invoked to criminalize speech that is merely
deemed insulting to one's race, ethnicity,
religion, or nationality. The crusade to demarcate the bounds of free expression
has its roots in three instruments of international law which include; the European
Convention on Human Rights (ECHR),the
International Convention on the Elimination of All Forms of Religious Discrimination (CERD), and the International Covenant on Civil and Political Rights (ICCPR).
Article 10 of the ECHR grants the freedom
of expression to all, but the exercise of this
right is subject to certain restrictions, including, "for the protection of the reputation and rights of others." Further, Article
4(a) of the CERD obligates signatories to
make "all dissemination of ideas based
on racial superiority or hatred" a punishable offense, while Article 20 of the ICCPR requires outlawing "any advocacy
of national, racial, or religious hatred that
constitutes incitement to discrimination,
hostility, or violence."Given the unclear
standards on which much of Europe's
hate speech laws are based, given that
there is not even a universally agreed
upon definition for what constitutes hate
speech, it is little wonder that such legislation has ensnared speech it was likely

never meant to punish. There is a fine and

highly subjective line between speech
that is considered rude and that which is
considered insulting and worthy of criminal prosecution, and effectively defining
this line is something that governments
are ill-suited to determine. 33
Any advocacy of national, racial, or religious hatred that constitutes incitement
to discrimination, hostility or violence shall
be prohibited by law. That pronouncement of the International Covenant on
Civil and Political Rights (ICCPR), counts
among the strongest condemnations of
hate speech. It has been in force now for
more than thirty years, alongside other
international norms. It now represents as
a norm of customary law, which would
mean that states would be responsible
in international law for banning at least
some forms of hate speech even if they
are not parties to the ICCPR or other instruments containing similar norms. 34
About 170 nations are parties to the International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD), demonstrating the international
communitys sweeping support to the
treaty. It is main tool for the international
community to combat racial discrimination. Having universal reach, it is legally
binding, and it has self-implementation
tools. It prohibits hate speech in the form
of propaganda that incites racial discrimination. It goes beyond the hate speech
prohibition in the International Covenant
m
on Civil and Political
p.co Rights (ICCPR) and

an
h
s
i

an

32. Supra Note 10

33. Inter-Religion Hate Speech in India: A Sociological Study on the Ambiguous Terminology of Secularism by Pooja Shankar, available on http://iosrjournals.org/iosr-jhss/papers/Vol19-issue1/Version-8/
W01918148155.pdf?id=8796 last visited on dated 08.10.2015 at about 5 P.M.
34. Supra Note 31

.m
ww

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mandates for the state parties to criminalize hate speech. The broad support
for the treaty demonstrates the international communitys commitment to the
criminalization of hate speech. 35
The ICCPR prohibits advocacy of racial
and national hatred when it constitutes
an incitement to discrimination. About 150
countries are parties to the ICCPR, none
of whom object to Article 20(2), demonstrating the international communitys
strong support to the prohibition of hate
speech. Both the ICERD and the ICCPR
prohibit hate speech. The ICERD goes as
far as requiring states to criminalize hate
speech. These two treaties demonstrate
the international communitys growing
concern with the prevention and prohibition of hate speech. 36

FREEDOM OF SPEECH, HATE

SPEECH AND JUDICIAL TRENDS37
Courts in India have history of securing
freedom of speech and expression even
by going beyond the doctrinaire sense of
permissible limitations given under the
constitution itself.
Any restriction imposed by state through
legislations have always been scrutinised
by court on the basis of clear and present
danger test. There can be no doubt that
freedom of speech and expression includes freedom of propagation of ideas, 38
35.
36.
37.
38.
39.

but individual has no such right of propagation of his idea when it is squarely coming
in the domain of threat to security of state,
public order or incitement of an offence. 39
Another important aspect of article 19 (2)
is that restriction can be made on freedom of speech and expression only on
the ground mentioned in this clause. Initially security of state and incitement of offences were such ground. In this category
only those offences against public order which
aim at undermining the security of the State or
overthrowing it, have been justified as a
ground for restricting freedom of speech.
Nothing less than endangering the foundations of the State or threatening to
overthrow it could justify curtailment of
the rights to freedom of speech and expression.40
According to Romesh Thaper case, a line
to be drawn in the field of public order
or tranquillity marking off, more or less
roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger
the security of the State and the relatively
minor breaches of the peace of a purely
local significance and thus treating the
differences in degree as if they were different in kind for this purpose.
Thus, very narrow and stringent limits
have been set to permissible legislative
om
abridgement
pp.c of the right of free speech

ha
s
i
n

Ibid.
Id.
Id.
Patanjali Sastri J, Romesh Thappar v State of Madras AIR 1950 SC 124, para 6
In the classification of offences in the Penal Code, for instance, VI lists waging war against the
Queen (S. 121), sedition (S. 124-A) etc. as "offences against the state", because they are calculated
to undermine or affect the security of the state, and Chap. VIII defines "offences against the public
tranquillity" which include Unlawful Assembly (S. 141), Rioting (S. 146,) Promoting enmity between
classes (S. 158A), Affray (S. 159) etc.
40. Romesh Thaper v State of Madrass AIR 1950 SC 124; State of Bihar v Shailbala Devi AIR 1952 SC 329

.m
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and expression and this was doubtless

due to the realisation that freedom of
speech and of the press lay at the foundation of all democratic organisations, for
without free political discussion no public education, so essential for the proper
functioning of the processes of popular
Government, is possible. A freedom of such
amplitude might involve risks of an abuse.
However, this narrow approach was
avoided by amendment in the constitution and public order has been inserted
in Article 19 (2) as a separate ground. 41
This widening of ground of restriction
was explained in Superintendent Central
Prison v Ram Manohar Lohia.42 The court
observed;
Public Order and Public Safety are allied
mattersit seems best to analyse the opposite
concepts..respectively labelled as 'public disorder' and public unsafety'. If public safety is
, as we have seen equivalent to 'security of the
State', what one may have designated as public
unsafety may be regarded as equivalent to 'insecurity of the State', When we approach the matter
in this way, we find that while 'public disorder' is
wide enough to cover a small riot as an affray
and other cases where peace is disturbed by or
affects a small group of persons, 'public unsafety'
(or 'insecurity of the State') will usually be connected with serious internal disorders and such
disturbances of public tranquillity it jeopardize
the security of the State. Thus 'public order' may
well be paraphrased in the context as public tranquillity and the words 'public safety' and 'public
order' may be read as equivalent to "security of
the State" and "public tranquillity.

Similarly Supreme Court in Hindutvacases made curious distinction between

asking vote on caste, creed and religion
base and making a state Hindu state
which is not a religion but a way of life. 43
It is submitted that such an interpretation
may be catastrophic to the nascent democracy where illiterate or semi-literate
voters may not be in position to reflect the
intention, howsoever good that may be,
of election candidate. It would be better
to save in entirety the basic values of different sections of society and put an end
to every such attempt.

Comparative Study of Hate Speech

among different Nations44
Many democracies throughout the world
consider free speech to be a fundamental
human right. The common trend is, nevertheless, to enforce criminal laws prohibiting the public dissemination of discriminatory messages. These policies are
driven by the conviction that hate speech
tends to incite conduct that is violent and
otherwise harmful to human dignity. A
non-exhaustive list of countries that have
restricted hate speech includes: Australia,
Austria, Belgium, Brazil, Canada, Cyprus,
Denmark, England, France, Germany,
India, Ireland, Israel, Italy, Sweden, and
Switzerland.
In the United States, hate speech is given
wide constitutional protection while under international human rights covenants
and in other Western democracies, such
as Canada, Germany, and the United
Kingdom it is largely
prohibited and sub.com
p
p
n
jectedh
toacriminal sanctions. In the USA

ani
Constitution (First Amendment) Act, 1951 .m
w
AIR 1960 SC 633
ww

41.
42.
43. Manohar Joshi v Nitin Bhaurao Patil (1996) 1 SCC 169
44. Supra Note 32

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Freedom of speech is not only the most

cherished American constitutional right,
but also one of its foremost cultural symbols. Free speech rights in the United
States are conceived as belonging to the
individual against the State, and they are
enshrined in the First Amendment to the
Constitution as a prohibition against Government interference rather than as the
imposition of a positive duty on Government to guarantee the receipt and transmission of ideas among its citizens. Even
beyond hate speech, freedom of speech
is a much more pervasive constitutional
right in the United States than in most
other constitutional democracies. American theory and practice relating to free
speech is ultimately complex and not always consistent.
The United Kingdom does not have a
written constitution. Nevertheless, it recognises a right to freedom of expression
through its adherence to international
covenants, such as the European Convention on Human Rights, and through
commitment to constitutional values inherent in its rule of law tradition. Moreover, the United Kingdom has criminalised
hate speech going back as far as the seventeenth century.

cluding citizenship) or ethnic or national

origins.
In 1986, however, Parliament added Section 5 of the Public Order Act, which made
hate speech punishable if it amounted to
harassment of a target group or individual, and in 1997 it enacted the Protection
from Harassment Act.93.
These provide more tools in the British
legal arsenal against hate speech, but
have not thus far led to any clearer or
more definitive indication of the ultimate
boundaries of punishable hate speech in
the United Kingdom.
The Racial and Religious Hatred Act, 2006
amended the Public Order Act, 1986 by
adding Part 3-A. That Part says: A person
who uses threatening words or behaviour,
or displays any written material which is
threatening, is guilty of an offence if he intends thereby to stir up religious hatred.

Canada is one of the democratic States

that have adopted international hate
speech standards in its domestic laws.
That nation guarantees the freedom of
expression through the Canadian Charter
of Rights and Freedoms, which is its Bill
of Rights. The Supreme Court of Canada
After World War II, the United Kingdom has recognised that the three values asenacted further laws against hate propa- sociated with the Charter guarantee of
ganda, consistent with its obligations un- expression are: (1) seeking truth; (2) par.cinom
der international covenants which made ticipating
social and political decision
p
p
n
a
it a crime to utter in public or to publish
shmaking; and (3) achieving self-fulfillment
i
n
a
words which are threatening, abusive
.m or and human flourishing in a pluralistic sow
insulting and which arew
intended
to incite ciety. The Supreme Court of Canada has
w
hatred on the basis of race, colour or na- determined that statutes punishing the
tional origin. In the United Kingdom, the spread of hate speech are in accordance
Public Order Act, 1986 prohibits hatred with those interests. Canada has found
against a group of persons by reason of that safeguarding fundamental liberthe groups, colour, race, nationality (in- ties is compatible with ;reasonable limits
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prescribed by law; that are necessary to

maintain a free and democratic society.
The contemporary German approach to
hate speech is the product of two principal influences: the German Constitution
conception of freedom of expression as
properly circumscribed by fundamental
values such as human dignity, and by
constitutional interests such as honour
and personality. Germany casts freedom
of expression as one constitutional right
among many rather than as paramount
or even as first among equals. Under the
German Basic law freedom of expression
must be balanced against the pursuit of
dignity and group-regarding concerns.
Germany has sought to curb hate speech
with a broad array of legal tools. These
include criminal and civil laws that protect against insult, defamation and other
forms of verbal assault, such as attacks
against a persons honour or integrity,
damage to reputation, and disparaging
the memory of the dead. Under current
law, criminal liability can be imposed for
incitement to hatred, or attacks on human
dignity against individuals or groups determined by nationality, race, religion, or
ethnic origin.
Australia, which is a member of the British Commonwealth, likewise prohibits
the public assertion of hatred based on a
group, race, colour, or national or ethnic
origin. While the Australian Constitution
does not expressly mention the freedom
of speech, it is well established as an im-

plied constitutional right. Nevertheless, in

2004 an Australian appellate court found
that as a democratic society the country
may safeguard political pluralism and tolerance by prohibiting the use of insulting,
humiliating, or intimidating statements
that have a real chance of causing harm.

The Political Scenario of Hate Speech

in India
Two recent decisions by Indias Supreme
Court have brought back the focus on
political hate speech. On January 30, the
court decided to review a set of controversial rulings - popularly known as the Hindutva Judgements, which hate-mongering
politicians have been using with impunity.
Then, on March 12, the court, while stopping short of cracking down on political
hate speech, asked the Election Commission to examine ways of eradicating this
malaise. However, a pitched battle is being waged over this between free speech
libertarians and liberals, and the reasons
are obvious. The libertarians swear allegiance to the Hindu Right, which comprises the Bharatiya Janata Party (BJP) as
well as the more virulent and fundamentalist organisations like the RSS (Rahtriya
Swayamsevak Sangh) and the Vishwa
Hindu Parishad (VHP). 45
The liberal camp, on the other hand, is
manned mostly by staunchly secular authors, artists and academics who want to
safeguard their right to creativity, fearless
expression and polemical inquiry.46
Keeping in mind o
that
mIndia mostly wit-

ni
.ma

.c

pp
n
a
h

45. Political hate speech flourishes in India- Religious hardliners are having a field day as loopholes
in law threaten India's secular democracy, available on http://www.aljazeera.com/indepth/opinion/2014/03/political-hate-speech-india-201431832847177887.html last visited on dated 31.03.2015
at about 8.55 P.M.
46. Id.

ww

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nesses the viciously polarised elections, it

becomes both expedient and imperative
to critically examine the issue of political
hate speech not from the prism of freedom of expression, but from that of electoral politics.47
Hindutva is a term that was coined by
Veer Savarkar, one of the RSS founders, in his 1923 essay Hindutva: Who is
a Hindu? in which he expounded on his
doctrine of cultural nationalism. It essentially meant that a persons "Indianness" was to be determined not by geography but by a homogenised culture, a
Hindu culture. This anthropological concept had concrete political moorings,
and it soon became the principal poll
plank of the militant Hindu Right. Time
and again, communal passions have
been whipped up, and legions of zealots unleashed on mosques and hapless
minorities. The Babri Masjid was demolished in 1992. Communal carnage of an
unprecedented level was seen in Bombay (rechristened Mumbai) in 1993, instigated by Hindu demagogues incendiary
diatribe, as the Justice Srikrishna Commission said in Chapter III of its report.
And of course, there was Gujarat 2002,
for which Modi is yet to be held accountable.48

Those whose inflammatory speeches

led to the province of Muzaffarnagar to
be ravaged by a communal inferno in
September last year are still enjoying impunity. 49
It would be a mistake to believe that hate
speech is the sole preserve of the militant Hindu Right. Azam Khan, representing the Samajwadi Party, remains defiant
about his tirade while Akbaruddin Owaisi
experienced in the politics of hate, remains unscathed due to the patronage
and skulduggery of the Congress.50
The fault doesnt lie with the Election
Commission, though. It is the lacunae
in the laws which allow the purveyors
of hate and bigotry to have a free hand.
Indias election law prescribes a Model
Code of Conduct which prohibits incendiary speeches, especially those pandering to religion and seeking to stir up
communal violence. But mere prohibition, without adequate authority for imposing meaningful punishment which
acts as a deterrent, is not of much use.
And it is here where the commissions
hands are tied. The code does not have
any legal teeth, so a candidate caught
delivering hate speeches cannot be debarred. For instance, in 2009, Modi had a
crowd baying for the blood of Muslims,
but the commissions chief stated that he
couldnt do much except rebuke."51

In February last year, the VHPs Praveen

Togadia engaged in a vicious anti-Mus.com
p
p
lim screed, was investigated, but the
ancynical subterfuge adopted by politih
s
sanction to prosecute is still awaited.
The
ni
47.
48.
49.
50.

.m
ww

Id.
Id.
Id.
Cynical politicians make the most of ineffective laws and a weak regulator by Saurav Datta, available on https://www.indexoncensorship.org/2014/04/open-season-hate-speech-indias-elections/
last visited on dated 08.10.2015 at about 4.55 P.M
51. Id.

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cal parties aggravates the situation. Immediate legal action is ruled out, since
the law permits a candidates election to
be challenged only after the results are
declared, thereby giving ample opportunity to the poisonous tree of hate to bear
its bitter fruit. In the meanwhile, the offenders parrot vehement denials, knowing very well that dilatory tactics only
work in their favour.52

NEW
TRENDS, FORMS AND
METHODS OF HATE SPEECH ON
INTERNET 53
The following discussion outlines briefly
the main methods used to spread hate
on the internet.

Hate Sites
A hate site is a site dedicated to promoting
or inciting hate against a particular group or
groups. The most effective hate sites may
be seen as those which employ all of the
available methods of electronic communication. They form hubs of hate for the purposes of building communities, spreading a
particular ideology, recruiting newcomers,
and sometimes though not inevitably encouraging or promoting hate crime.
New technologies have put new tools into
the hands of those who wish to spread
such messages and hate sites today
make full use of blogs, social networking sites, videos and open forums. Many
of the forms or specific sites mentioned
below will link through various routes to
each other, and sometimes to a general
site where supporters and newcomers
may aggregate.

Blogs and Online Forums

Hate Blogs provide one form in which individuals are able to display racist or intolerant views for general view, but haters
also target the blogs of potential victims
through comments on their sites. For
some groups, or in some countries, this
may be the preferred form: comments
can be anonymous, new identities can be
set up with ease, the impact on the individual concerned can be immediate - and
a few negative comments on a blog or in
a forum are likely to encourage others to
join in. If comments are un-moderated - or
if the 'moderation' is done by individuals
who support the attacks, the result can be
that the site quickly chases away members prepared to offer counter-examples
or arguments. There is a closing down of
debate and those left behind become a
mutually supporting community sharing
only negative comments or stereotypes.

Emails and Personal Messages

Private emails or personal messages are
perhaps the hardest medium to control or
influence. As the extract above indicates,
emails may be used to draw in supporters and spread ideology in private spaces
which are almost impossible to monitor.
Personal messages are also used to target and intimidate individuals, often resulting in self-censorship or the individuals removing themselves from the public gaze.

Gaming
Hate groups are creating their own antim games to incite
Semitic and racist
.coonline
p
p
violenceaand
n genocide. The objective of

sh

ni
.ma

52. Id.
53. Young People Combating Hate Speech On-line, available on https://www.coe.int/t/dg4/youth/
Source/Training/Training_courses/2012_Mapping_projects_against_Hate_Speech.pdf, last visited
on dated 31.03.2015 at about 9 P.M.

ww

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the computer game Ethnic Cleansing,

for example, is to kill subhumans, also
known as Blacks and Latinos, along with
their Jewish evil masters. Hate groups
are also reaching young people by developing hate versions of popular computer
games. The compelling world of online
games, where users appear to inhabit
a parallel world and actions can be presented as having no impact on real individuals is particularly effective in reinforcing stereotypes and presenting solutions
which target particular groups often
through violence. Games are increasingly
used to propagate myths, build prejudice
and create communities.

Social Networking Sites (SNS)

Most of the SNS have terms of use which
prohibit racism, calls to violence, or other
forms of abusive and discriminatory content. However, the ease with which these
pages can be set up and the strong networking possibilities they offer mean that
the terms of use, unless carefully monitored, are relatively ineffective. Facebook
and other SNS are cluttered with users
pages which target particular groups directly.

Videos and Music

lent videos, the volume of traffic, the anonymity of posters, and perhaps the lack of
a strong desire to enforce their own terms
means that hate groups or individuals
can put up videos containing apparently
forbidden content with ease. The same is
true of most other video posting sites.

Automated Content, Astroturfing and

Fictitious Identities
As far as hate speech is concerned, this
section is more a possible view of the nottoo-distant future than a form of dissemination for which we have found concrete
evidence. The key factor linking the methods identified in the title of this section is
the element of deceit, the pretence that
a particular piece of content has been
generated by a single individual. In some
cases, the content may in fact have been
generated by a computer programme;
in others, it has been generated by a
company or movement with a particular
agenda to push.
It is not yet clear that such methods have
reached widespread use but the use of
such methods for dissemination of information or messages is clearly extremely
powerful. It seems highly likely that as the
technology becomes more widely known,
it will be picked up by other groups and
begin to increase in volume.

Hate music and videos are also used to

attract supporters and often to raise revenue for racist groups. Record companies
set up by such groups will typically also
ARE pHATE
.com LAWS ENFORCED
contain links to games, videos, forums
p
an
EFFECTIVELY
IN INDIA?54
h
or other sites with connected ideologies.
s
ani If we take references from the past, it
Hate sites, in turn, link to the .download
m
ww
page for music clips or
record com- would be evident that individuals from the
wthe
pany itself. Although YouTube has terms political fraternity had gone scot-free dewhich forbid the posting of racist or vio- spite making a series of hate speeches.

54. Hate Speech Laws in India, available on http://www.elections.in/political-corner/hate-speech-lawsin-india/ last visited on dated 08.10.2015 at about 5.20 P.M

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Leaders of religious groups and political

outfits had often exchanged series of provocative speeches and yet they have not
been booked under the law. The instances of the courts having been hesitant in
handing out punishment to the political
leaders have surfaced time and again. It
was only recently that the Supreme Court
asked the governments legal experts
whether political parties can be derecognised for making communally sensitive
and provocative statements.
Experts are of the opinion that the courts
have failed to clamp down on political
figures involved in making divisive comments. Although the election commission
monitors hate speeches it lacks the power
to arrest or enforce laws. Hence, the fate
of hate speech mongers is decided by the
police, who may or may not file a case.
Moreover, prolonged delays in delivering
justice and low conviction rate have failed
to set deterrents for hate mongers.

CONCLUDING REMARKS
Hate crime and consequential hate
speech attacks the victim not only physically but also at the very core of his or her
identity, causing a heightened sense of

vulnerability beyond that normally found

in other crime victims. The hate - motivated violence carries with it the clear message that the target and his group are of
marginal value. Here the criminalization
of such acts may be helpful in protecting
the value of society. The impact of hate
crimes reaches beyond the harm done
to the immediate victim or victims of the
criminal behavior. There is a more widespread impact on the target community
that shares the Group characteristic of the
victim and an even broader based harm
to the general society. Members of the
target community do more than sympathizing or even empathizing with the immediate hate-crime victim and perceive
such crime as if it was an attack on them
directed by themselves. Finally, the impact of hate-crimes may spread well beyond the immediate victims and the target
community to the general society. Such
crimes violate not only societys general
concern for the security of its members
and their property but also the shared
value of equality among its citizens and
racial and religious harmony in a multicultural society. In such a situation state
should necessarily take the cognizance of
the effect of hate crimes and related hate
speeches. 55

55. Supra Note 36

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REPRODUCTIVE RIGHTS OF PRISONERS:

LEGAL AND INSTITUTIONAL CHALLENGES
Subham Srivastava
Assistant Professor College of Legal Studies,
University of Petroleum and Energy Studies, Dehradun India

Email : Subham.nalsar15@gmail.com

The Constitution of India under Article 21 provides that a person shall not be deprived of his right
to life and personal liberty except according to procedure established by law. A person who is
sentenced to imprisonment for the commission of an offence is deprived of certain fundamental rights
available to a person otherwise. The author claims that right to life and liberty under Article 21 of
the Constitution should be interpreted to mean right to procreate and such right should override
incarceration. The author claims, conjugal visits or artificial insemination could be adopted as
a means to ensure the reproductive rights to a prisoner and his wife. A brief study of the American and
European practice has also been discussed. It is pointed out that depriving a prisoner of the rights
not only affects such prisoner but also the human rights of all such persons related to the prisoner.

INTRODUCTION
The issue of gender justice has been a
universal concern. But the recent shocking deaths of women at sterilization
camps1 in India and the refusal by the
Andhra Pradesh High Court2 to allow
conjugal visits to spouses of prisoners in
jails across the State of Andhra Pradesh
points to a different story. The Indian Constitution makes special provision for securing gender justice but the state has
failed to protect the reproductive rights of
its people. The conflicting decision of the
High Court shows that even Judiciary is
unable to protect the reproductive rights
1.

of the people. Various International Conventions point out that reproductive rights
are basic to human rights and the state
parties shall endeavor to protect and promote the same. In 1994, the United Nations
International Conference on Population and
Development (ICPD) in Cairo adopted a
Programme of Action3 that took a broad
view of womens sexual and reproductive rights. It was the first international
policy document to promote the concepts of reproductive rights and reproductive health with a view to achieving
the same to all individuals by 20154 .
The Beijing Declaration and Platform for

.com
p
http://www.hindustantimes.com/india-news/
p
an

Chhattisgarh: Sterilisation toll climbs to 11 available at

sh

ni
.ma

chhattisgarh-sterlisation-camp-turns-tragic-eight-women-dead-25-in-critical-condition/article1-1284793.aspx.
2.

Ms. G. Bhargava, President M/s Gareeb Guide (Voluntary Organisation) v. State of Andhra Pradesh, PIL

ww

No.251 of 2012 decided on 16th July, 2012..

3.

Adopted at the International Conference on Population and Development, Cairo 5-13th September
1994, available at http://www.unfpa.org/publications/international-conference-population-anddevelopment-programme-action accessed on 18/02/15.

4.

Reproductive Rights and Reproductive Health, Page 61, Programme of Action, Adopted at the International Conference on Population and Development, Cairo 5-13th September 1994, available at http://
www.unfpa.org/publications/international-conference-population-and-development-programmeaction accessed on 18/02/15.

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Action5 further re-affirmed the principles

adopted in the International Conference
on Population and Development (ICPD).
The Convention relating to the Status of
Refugees6 , the Convention on the Elimination of all forms of Discrimination against
Women (CEDAW)7 , the Convention on
the Rights of the Child (CRC) , and the
Convention on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities (CRPD)9 points that gender discrimination should be stopped.
The development of the right to health
in the international regime has touched
upon the reproductive rights of women.
The WHO has engendered a human
rights based approach to reproductive
health and rights. The report on Health in
the Post 2015 Agenda specifically states
that sexual and reproductive health and
rights must be addressed.10 India being a
party to the International conventions is
obliged to protect the reproductive rights
of its people. Also Article 51 of the Indian
Constitution lays down a duty on the State
to foster respect for international law and
treaty obligations. In the light of above
discussion it is imperative for the Indian
government to act positively and enforce
the reproductive rights while showing respect towards International concord.

CONJUGAL VISIT

Conjugal visit is a positive right wherein

5.

state is obliged to act in a positive manner as opposed to negative right where

state is restrained from acting in a manner detrimental to the rights of the people. Conjugal visit is a scheduled period
in which a prisoner is allowed to spend
certain time in private generally with his/
her legal spouse. The parties may engage
in sexual relations so as to exercise their
conjugal and reproductive rights. The
general claim for allowing such visits in
modern times is to preserve family ties
and to increase the chances of the prisoner to rejoin the society as a responsible
and law abiding person. The visit can be
allowed in designated rooms provided for
the purpose where other arrangements
to facilitate the visit can be made.
Since right to procreate is concomitant to
married life it is necessary that the state
should come forward to protect the same.
This would bring a feeling to the prisoner
that the state is committed to work for the
prisoner and not only determined to crush
him under the criminal justice system.

Conjugal Visits or Artificial Insemination: Legal Issues

Right to Life under Article 21 of the Constitution of India includes right to enjoy every
faculty of life. But question arises whether such right extends to the prisoners or
not? What are the challenges in enforc-

Beijing Declaration and Platform for Action, The Fourth World Conference on Women, 4-15 September 1995, available at http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf accessed
on 12/02/15.

6.

Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 150, (entered into force 22

om

p.c
p
n
a

April 1954).
7.

Article 16(e), Convention on the Elimination of all forms of Discrimination against Women ,18 De-

ish
n
a
Convention on the on the Protection and Promotion
of the Rights and Dignity of Persons with Dis.m
ww
abilities 13 December 2006, 2515 w
UNTS
3.
cember 1979, 1249 UNTS193 [CEDAW].

8.
9.

Article 2, Convention on the Rights of the Child, 20 November 1989,1577 UNTS 3 [CRC].

10. Positioning Health in the Post-2015 Development Agenda, available at http://www.who.int/topics/

millennium_development goals/post2015/WHOdiscussionpaper_October2012.pdf.

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ing such right in Indian society? Would it

be just to sacrifice the right of a woman
where the husband is a death row convict
or long term prisoner? Would it be justified to allow the right to prisoners serving
small duration in prison? And whether
such right is traceable under our Constitutional framework? And whether right to
life and personal liberty guaranteed under Article 21 of the Constitution include
the right of convicts or jail inmates to have
conjugal visits or artificial insemination (in
alternate)?
The Punjab and Haryana High Court recently in Jasvir Singh v. State of Punjab 11 observed that right to procreation extends
to all convicts even while incarcerated
as there appears no inherent conflict between right to procreation and incarceration.
Contrarily the Andhra Pradesh High Court
in a PIL refused to allow the conjugal visits to the prisoners on the ground that it
would risk the security of the prison.

facilities of television, cable network, mobile phones and pagers etc. by prisoners
has been refused on such ground.12
In State of Andhra Pradesh v. Chalaram Krishna Reddy13 the Court held that a prisoner
whether convict, under-trial or a detenue
continues to enjoy the Fundamental
Rights including right to life which is one
of the basic Human Rights.
In a number of cases14 the Honble Apex
Court has diluted the concept of jail as a
symbol of torture and pain and has moved
towards reformatory jurisprudence and
has started concentrating on ways and
means which would help the offender to
reform, re-socialize and abstain from repeating the offence. The grant of parole,
furlough etc. is an instance of the same.
The convicts, who are proved guilty, are
certainly not entitled to each and every
fundamental right otherwise guaranteed
to a citizen or a person under our Constitution. But depriving such person of the
right to reproduce certainly has consecutive bearing on the rights of the family
members.

It is submitted that the conflicting decisions of the High Courts in India have
created confusion as to the reproductive In, D. Bhuvan Mohan Patnaik &Ors.v. State of
rights of the prisoners which has a con- Andhra Pradesh &Ors.15 ,the Supreme Court
secutive bearing on the rights of the pris- emphasised that convicts cannot be deoners spouse and other family members. prived of the protection of fundamental
The Supreme Court of India has been very rights merely because of their convicclear as to the rights of the prisoners and tion. It was observed that though a conm
.codenuded
has interpreted right to life under Article 21 vict stands
of some of the funp
p
n
a
of the Constitution to include myriad rights
shdamental rights, like the right to move
i
n
a
which are vital to human life. Even
.mban on freely or the right to practice a profession,

ww

11. CWP No. 5429 OF 2010 (O&M), Decided on 29.05.2014.

12. Viresh Shandilya v. Union of India and Others PLR (2005) 139 P&H 357.
13. State of Andhra Pradesh v. Chalaram Krishna Reddy (2000) 5 SCC 712.
14. State of Maharashtra v. PrabhakarPandurantSanzgiri AIR 1966 SC 424; Sheela Barse vs. State of
Maharashtra (1983) 2 SCC 96; Ramamurthy vs. State of Karnataka (1997) 2 SCC 642.
15. D. Bhuvan Mohan Patnaik &Ors.v. State of Andhra Pradesh &Ors. (1975) 3 SCC 185.

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nonetheless, such convict shall continue

to enjoy other constitutional guarantees
including the precious right guaranteed
by Article 21 of the Constitution.16
It is submitted that, visits to prisoners by family and friends act as solace to the secluded
prisoner. It is only a dehumanized system
which can derive, delight in depriving prison
inmates of this humane amenity.17
A study of Constitution and the survey of
cases in India lead one to conclude that
Right to conjugal visits is a facet of right
to life under Article 21 of the Constitution.
Contrarily the Andhra Pradesh High Court
refused to give dynamic interpretation to
right to life under Article 21 and in a case,
Ms. G. Bhargava, President M/s Gareeb Guide
(Voluntary Organisation) v. State of Andhra
Pradesh18 rejected the claim for allowing
conjugal visits to spouses of prisoners in
jails across the state of Andhra Pradesh,
observing that if conjugal visits are to be
allowed keeping in view good behavior
of the prisoners, chances of the environment
getting disturbed cannot be ruled out as it will
have an adverse impact on the other inmates of
the jail who have not been selected and extended
such benefit .
Contrast this with the action of the Israeli Court against the assassination of the
Prime Minister of Israel in 1995. Although
under Israeli law, prisoners are allowed to

marry and have children, but in this case

the right to marry was denied because of
the heinous nature of the offence. Having
married by proxy the couple petitioned
to consummate the marriage. The Court
of appeal allowed the wife conjugal visit
and held that prisoners have these human rights. Thus severity of the crime
should not be a ground for disqualifying
a prisoner of the human right to procreation.19 Anthony M. Scacco, Jr. in his book Rape
in Prison20 writes sex is unquestionably
the most pertinent issue to the inmates
life behind bar There is a great need to
utilize the furlough system in corrections.
Men with record showing good behavior
should be released for weekends at home
with their families and relatives.

INTERNATIONAL TREND
The United Nations Basic Principles for the
Treatment of Prisoners, 1990 states that except for those limitations that are necessitated by
the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms
set out in the Universal Declaration of Human
Rights.21 The Universal Declaration of Human Rights provides that men and women of full age have the right to marry and
form a family.22
Brenda Smith says that although many jurisdictions around the world permit the
sexual expression of prisoners in one way
or the other the US courts show antipa-

16. Francis Coralie Mulin v. The Administrator, Union Territory of Delhi (1981) 1 SCC 608.
17. Sunil Batra v. Delhi Administration (1980) 3 SCC488.

om

p.c
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18. PIL No.251 of 2012 decided on 16th July, 2012.

sh

19. Professor Baroness Deech, Human Rights and welfare,1990 available at http://www.gresham.ac.uk/

ni
.ma

print/2388, accessed on 18/2/2015.

20. Anthony M. Scacco, Charles C. Thomas, Rape in Prison, Springfield, IL, 1975.

ww

21. United Nations Basic Principles for the Treatment of Prisoners, 1990, adopted and proclaimed by
General Assembly resolution 45/111 of 14 December 1990.
22. Article 16(1), Universal Declaration of Human Rights.

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thy towards the prisoners sexual rights23.

Brazil has adopted conjugal visits which
allows prisoners to visit with family and
friends without physical restriction, and an
intimate visit, which allows prisoners to
receive visits from their partners or spouses in individual prison cells. Also in the
Czech Republic, the Director of prison may
allow married couples to visit in rooms
specifically designated for intimate contact. In Spain, inmates who cannot leave
the institution may receive conjugal/intimate visits once a month for one to three
hours. Finally, Denmark has implemented
a prison leave system for prisoners with
sentences greater than five months.24

AMERICAN VIEWPOINT

The American Courts have refused to allow conjugal visits to prisoners on the
ground that incarceration takes away the
rights of a person. When a person is imprisoned he sheds all his rights which are
inconsistent to incarceration. Illustratively,
in a case before the American Supreme
Court, William Gerber v. Rodney Hickmen,25 an
inmate in California State prison filed a
case alleging the violation of his Constitutional right on a refusal to provide his wife
with a sperm specimen that she may use
for artificially insemination. The question
before the court was whether right to procreate is fundamentally inconsistent with
incarceration?
The court held that prisoners have no Consti-

tutional right while incarcerated to contact visits

or conjugal visits, and that the right to procreation is inconsistent to incarceration.
Previously, in Steven J. Goodwin v. CA Turner26
the U.S. Court of Appeals, Eighth Circuit,
considered a similar case and declined
to accept the prisoners plea to artificially
inseminate his wife and held that by its
very nature, incarceration necessarily affects the
prisoners family.

EUROPEAN VIEWPOINT
The European trend is inclined towards
the rights of the prisoners and the right to
conjugal visits has found support in the
judicial arena. Notably, in a case27 before the European Court of Human Rights
two British nationals sought permission
for artificial insemination facilities, which
was rejected by the lower courts. The applicants alleged the violation of Articles 8
& 12 of the European Convention on Human Rights which, inter alia, provides that
(i) everyone has a right to his private and
family life and (ii) that men and women of
marriageable age have the right to marry and to find a family, according to the
national laws governing the exercise of
that right. The grand chamber of ECHR
awarded compensation with a view to
afford just satisfaction to the parties and
held that Article 8 applies to the parties
and the refusal to allow for artificial insemination is violation of right to respect
the decision to become genetic partner.
om
The Court
that the convention
.crecognized

np
a
h
s

ani
m
.
tive forms of global interdependence.
w Catherine Powell, Respondent United States Human Rights
ww
Policies in the 21st Century
in an Age of Multilateralism, 46 St. Louis L.J. 421 (2002).

23. The U.S. should be participating in international institutions and legal regimes that promote construc-

24. Smith, Brenda V. "Analyzing Prison Sex: Reconciling Self-Expression with Safety." Human Rights
Brief 13, no. 3 (2006): 17-22.
25. William Gerber v. Rodney Hickmen 291 F.3d 617 (2002).
26. Steven J. Goodwin v. CA Turner 908 F.2d 1395 (1990).

27. Dickson vs. The United Kingdom {Application No.44362/04} decided on 04/12/2007 available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83788.

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does not obligates the state parties to provide facilities for artificial insemination but
this could be interpreted by the state parties as a directive and implement the same
to earn a wide range of appreciation.

INSTITUTIONAL CHALLENGES
TO CONJUGAL RIGHTS

The Indian society which is guided by

morals and emotions will face myriad
challenges which may act as potent barriers to conjugal visits in Indian system.
Societal and economic challenges are
prominent among other barriers. From
the above discussion it is clear that sexual
deprivation is not necessarily an inherent
feature of prisoners life and therefore it
need not be assumed as a normal sequel
to incarceration. A person behind the bars
is most of the time concerned about the
well being of his family members. Depriving a person intimate visit to his family is
certainly a torture not only to the prisoner
but also to his/her spouse, thereby generating frustration and disbelieve towards
the government and society. This in turn
fails to serve the very purpose of criminal
justice system that is to reform the offender and to re-socialize him to join society
as a law abiding person.
It is submitted keeping males away from
their counterparts for long duration would
give birth to desire of homosexuality
among the prisoners.28 Such behavior is
certainly comprehensible, as due to imposed unisexual environment, homosexual desires and acts develop. Indulging in

sexual activities is also just a way of life

and men get into such orientation because they dont find anyone to engage
in. The situation gets worse where the homosexual act is non-consensual, which in
turn results in fights and sexual assaults.29
Thus, allowing conjugal visits would control the homosexual behavior in prisons
besides preserving the family ties and
also the tensions among the prisoners
emanating from sexual assaults. Besides
allowing conjugal visits would also reduce the problems of the jail authorities,
as it will be easy for them to control happier inmates and discipline them.
A thoughtful statement came from a former prisoner in United States saying that,
permitting sexual relations in prisons
would be the states way of saying that it
cares for the lives and marriages of the
prisoners. Sex was always important to
me and being away for 10 months from
my wife and seeing her only through
glass window could have broken us. 30
Thus it can be said all these factors are
encouragingly rehabilitative. But conjugal
visiting is not without its opponents. There
are several objections to implementing
conjugal visitation in India, which includes
preferential right to married prisoners, financial limitations and is opposed to public policy. These objections broadly fall under social barriers and economic barriers.

Social Barriers: The objections
to conjugal visits are generally grounded
in the thought that prisons are supposed

.com
p
p
an and hell-hole conditions dog Tihar
29. Rotting behind bars: As claims of daily violence, sexual h
assault
s
Jail, MAIL TODAY takes a look at life in India's toughest
ani prisons available at http://www.dailymail.
m
.
co.uk/indiahome/indianews/article-2294853/Rotting-bars-As-claims-daily-violence-sexual-assaultw
hell-hole-conditions-dog-Tihar-Jail-MAIL-TODAY-takes-look-life-Indias-toughest-prisons.html.
ww
28. The Problems of Modern Penology: Prison Life and Prisoner's Rights, 53 IOWA L. REV. 671, 698 (1967).

30. Norman Elliot Kent, The Legal and Sociological Dimensions of Conjugal Visitations in Prison Citation: 2 New Eng. J. on Prison L. 47 1975-1976.

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to be punitive in nature. Prisons are meant

to punish the criminal and not to entitle him
to all the joys and benefits enjoyed otherwise by an individual. Like father, Like son
tendency is widely prevalent in Indian society. Thus allowing an offender to procreate is in a way creating a criminal. Besides,
it is claimed that allowing conjugal visits
is discriminatory to unmarried prisoners. It
is submitted that reasonable classification
between married and unmarried prisoners
is justified under the Constitutional spirit.
Also it is open to the unmarried prisoners
to marry and form a family of their choice,
which is also a facet of right to life under
Article 21 of the Constitution.

Economic Barriers: It may be
claimed that providing facilities for conjugal visits in prisons will incur great cost
and thereby causing an increase in the tax
burden on the tax payers and the government exchequer. Certainly the tax payers
will not be ready to bear the extra burden
of tax so as to enhance the lives of offenders. However experiences from the Californias program shows that no budget
increase was involved and in some cases inmates constructed visiting facilities
for themselves by using old wood which
was salvaged.31 Thus it appears that any
burden which will ensue is that of administrative nature and not much finance. Illustratively, searches of the visitors, time
for visits will have to be established etc.
which could easily be managed.

CONCLUSION

lowing a right in the absence of any provision in the statute book does not violate
any rule of law. Merely because no statute
in India specifically provides for conjugal
visits does not mean such right cannot
be awarded. Notably while allowing such
right the Courts should be conscious of
the best interest of the child. The child
which is born out of the union should
be facilitated to grow in an environment
which is conducive to the overall development of the child. Since best interest of
the child lies in the care and company of
both the parents,32 a provision for the appointment of guardian may be prescribed
where situation demands. It is submitted
that the Courts should not allow the claim
until account has been taken of the welfare of any child who may be born as a
result of conjugal visit. Also no public purpose would be served by creating barriers
between the family units and contributing
to the dissolution of marriage which has
been made in heaven. Thus instruments
like parole etc. may be extensively used
to fill the gap between the child and the
parents.
An experiment could be done on select
prisoners whereby they could be allowed
to spend a day or a week with their spouses outside the four walls of the jail in a hotel
under the supervision of the jail authorities.
This would help in curbing the sexual tension and homosexual behaviors among
om
33
the prisoners.
pp.c

an
h
s
ni It is submitted that right to life includes the

a
m
.
w
From legal standpoint it isw
claimed that alw

right to procreate. Depriving a person of

31. California Department Of Corrections Status Report at 17 (1974).

32. Article 7 of the United Nations Convention on the Rights of the Child (CRC) provides that a child
shall have by birth the right to be cared by his/her parents. The term parents mean and includes
both mother and father.
33. Sir Leon Radzinowicz and Joan King, The Growth of Crime: The International Experience, Basic
Books, New York, 1977.

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the right to produce does not only causes

mental pain, agony and harassment to the
imprisoned but also to the spouse, parents
and other family members of the prisoner.
The aim of our Constitution is to achieve
social justice, thus depriving a person of
the inherent right which is bestowed upon
a person by the very fact of his being born
as human being does not serve the purpose. Thus the mere fact that a person has
been sentenced and punished for an offence does not deprive him of his right to
procreate. Even in death penalty cases a
person enjoys right to life till his execution,
encompassing all rights except the right to
move which has been taken away by way
of punishment.
Right to conjugal visits inheres with it right
to privacy, dignity, respect and free movement which cannot be taken away except
according to procedure established by law
and which should be just, fair and reasonable. Factors such as good behavior of the
convict, unlikelihood of his/her endangering
the State security, peace and harmony or
the social and ethical order, financial and social security of the convict and his/her family
etc. should be considered by the court while
deciding a case upon the issue.34
Inevitable questions which flow are whether eligible convicts should have the facility
of conjugal visits within the jail precincts or
the provision for parole or furlough should
be interpreted broadly to allow the prisoner
an exclusive conjugal visit. While answering
the questions, sick conditions of the prisons
have to be kept in mind. The issue of overcrowding, cleanliness, sanitation, healthy

Thus conjugal visitation is one way to

make correctional processes more humane, rehabilitative and people centric.
Right to life includes right to procreate and
such right extend to a prisoner as well. It
is to be noted India has its own traditions
customs, social values, inhibitions and taboos. But by allowing conjugal visits neither is sacrificed. The truth behind the steel
bars should be brought to light. By bringing
little love behind the steel bars we may be
eliminating the source of frustration to the
prisoners. Admittedly a conjugal visit is not
a panacea to all ills but certainly it is a right
which is wrongly taken away from prisoners on account of their incarceration. Thus
a society which is involved in academic
and intellectual debates on gay-rights or
rights relating to third gender should come
forward and deliberate on such a sensitive
issue. Apart from human right perspective
the age old notions of parole, furlough or
temporary release of convicts should be
equipped with modern notion of conjugal
visits. The aim of criminal justice system is
to avoid recidivism and to reform the criminal which would best be achieved by resocializing the criminal. Prescribing Right
to life under Article 21 of the Constitution
would be a dead letter unless practiced
by we the people of India. Therefore India should also bring its laws in line with
other countries where conjugal visits are
allowed, while learning from their experiences recognize conjugal visits and show
respect for the International
.com Covenants by
p
p
practicing
gender justice.
an

sh

ni
.ma

ww

food, medical facilities, and telecommunication facilities needs to be addressed.

34. Jasvir Singh & Anr.v. State of Punjab &Ors. CWP No.5429 of 2010 (O&M), decided on: 29.05.2014.

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WOMENS EMPOWERMENT:
AN INDIAN EXPERIENCE
Vanisree Ramanathan
Assistant Professor in Symbiosis Law School, Pune,
under Symbiosis International University (SIU)
Email: vanisree.ramanathan@symlaw.ac.in

History has been the evidence of this fact that man has dominated women to his will
and has used her as a means to promote their self gratification, to minister their sensual pleasures and uphold their comfort. According to Confucius, in ancient times the
subordination of woman to man was one of the supreme principles of government.1
Aristotle has even settled to the fact that the domination of male over the female, in
our family, organization to be natural and necessary.2 The empowerment of women
is a vital issue all over the world since last few decades. Many agencies of United Nations in their reports have emphasized that gender issue is to be given utmost priority.3
From the Convention on Elimination of all forms of Discrimination Against Women
(CEDAW, 1981), to the latest UN initiative of UN Women is focusing on the equality and
empowerment of women in the world. The significance of having more women leaders in political, economic and social fields has been consistently discussed in both developed and developing countries. Gender equality has been a central feature of the
UN Millennium Development Goals that has shaped more than a decade of poverty
reduction, education and anti-discrimination efforts. Advancing gender equality can
deliver sizeable extra economic growth and broad based prosperity. One of the most
enduring clichs about India is that it is the country of contradictions. Even though they
are said to be the most oppressed in the world, it is equally true to say that they are
among the most liberated, the most articulate and perhaps even the most free. This
paper is an attempt to assess the main challenges faced by the Indian women in their
march towards empowerment.

WHAT IS EMPOWERMENT?

powerment of women becomes a reality,

when women achieve increased control
Empowerment is an inclusive multi-di- and participation in decision making that
better access to resources,
mensional social process that helps to leads to
com
.their
p
p
n
gain control of their own lives. It is the pro- and
ha hence, improved socio-economic
s
i
status. The ability of women to control
cess which allows gaining power, knowlan
m
.
w
edge, attitude, and skill w
sets needed to their own fertility is fundamental to womw
cope with the changing world and the cir- ens empowerment. As per the United
cumstances in which one lives. The em- National Development Fund for women
1.

Miles Menander Dawson, The Ethics of Confucius (1915)

2.

Politics, Aristotle , Written in 350 B.C Translated by Benhamin Jowett

3.

Rao Mamta, Law relating to women and children, 2nd edition. Eastern Book Company. Lucknow, 2008

105

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N. J. Comp. Law Vol. 3 (1) 2016, pp. 105-115

(UNIFEM) the womens empowerment

means, acquiring knowledge and understanding of gender relations and the ways
in which these relations may be changed,
developing a sense of self worth, a belief
in ones ability to secure desired changes and the right to control ones life and
developing the ability to organize and influence the direction of social change to
create a more just social and economic
order, nationally and internationally.

GOVERNMENTAL ACTION
Legislatures in India from the outset have
enacted various legislations to protect
women from violence and to bring them
into the mainstream of development. The
principle of gender equality is enshrined
in the Indian constitution. The constitution
enjoins the state to undertake affirmative
action on behalf of women. The policy
makers realize that real development cannot take roots if it by passes women, who
represent very kernel around which social
change must take place. In 1980s a chapter on women and development is included in the sixth plan document (1980-95).
The national commission for women was
set up in 1990 to safeguard the rights and
legal entitlement of women. The 73rd and
74th Amendments (1993) to the constitution of India have provided, reservation
of seats in the local bodies of Panchayats and municipalities for women, laying
down strong foundation for their participation in decision- making process at the
local level. Among the array of social
legislation to empower women include,
the Dowry Prohibition Act 1961 and its
amendment in 1986, Maternity benefit Act
1961, Protection of Women from Domes-

tic Violence Act 2005, Hindu Minority and

Guardians Act 1956, The Muslim Women (Protection of Rights on Divorce) Act,
1986, The Medical Termination of Pregnancy Act 1997, Indecent Representation
of Women Prohibition Act, The Immoral
Traffic Prevention Act, 1956 etc, which
not significantly initiated by the womens
movement.
The level of participation of women in
any country is the reflection of the opportunities and constraints associated with
the democracy and the maturity and efficacy of the working of the democracy.
The objective of the National Policy for
the Empowerment of Women 2001 is to
bring about the advancement, development and empowerment of Women. 4 The year 2001 observed as the year
of Womens empowerment. SwaShakti,
Stree Shakti, Swayamsidha, Balika Samridhi Yojana and STEP are some of the
Government programs launched for the
empowerment of women. These initiatives are targeted to bring formal gender
equality. Are they brining about substantial equality or any alteration in the attitude
of a patriarchal society? At the outset, we
can observe that Indian women have entered and excelled in all sectors today.
India is having woman president, speaker and chief ministers in decision making positions. But is it reflected in entire
Womenfolk? Ratna Kapur5 suggests that
laws relationship to womens oppression
is not always the same; law does not always operate in the same way, nor does it
always produce .consistent
com results.

i
Anhighlight
of the efforts made by the In-

a
w.m

ww

np
a
h
s

4.

Gender Empowerment policy (2001) , India

5.

Ratna Kapur (1996) : Feminist Engagement with Law in India with Ratna Kapur (Sage, New Delhi
, 1996

106

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dian government for mainstreaming of Indira Gandhi, Sheila Dixit, Mayavati, Jaywomen is admirable but one of the chal- alalitha, Mamta Banerjee (Chief Ministers
lenges of the Indian women is that they of states) Pratibha Devisingh Patil (first
are not cohesive as a group. Indian wom- woman President of the Republic of Inen are diverse groups and stratified based dia), the names of womens leadership
on caste, urban rural differences, religion, in India is worth mentioning. 73rd and 74th
literacy and occupation. If we study the amendment to the constitution providenactment for women in India, we recog- ing for reservation of seats for women in
nize that there are too many disparities panchayats and municipalities and 43%
between initial demands made by wom- of seats are occupied by them in district,
ens group as well as the recommenda- provincial and national level. But most of
tions made by law commission and the the benefits of the government program
final enactment. Laws are framed more and legislation are limited to the urban
as token of gesture as from genuine con- women. Rampant practice of female
cerns for changing the state of affairs of foeticide is evident in the country as child
women. They are beneficial only for some sex ratio has declined from 945 to 933 in
sections of women and were full of loop- 2011. The World Economic Forums Genholes. Misuse of laws like IPC 498A, in- der Gap Index (2014) Indian ranks 15 out
stead of bringing gender justice will result of 142 countries with regards to womin gender abuse and breakdown of fam- ens political empowerment. India being
ily as an institution. Protection of Women the worlds largest democracy women
from domestic violence Act 2005, even today holds mere 11.9% of seats in the
though a weapon in the hands of the parliament. Women politicians continue
women to fight against injustice and vio- to face multiple barriers and disadvanlence in their homes, the conviction rate tages before and after taking their office.
is very less under this act and could not Even though womens leadership is acreduce the domestic violence cases . The knowledged in multiple levels common
family courts started insisting on docu- women are disadvantaged relative to
mentary proof of marriage. Several cases men in terms of access to education, inare kept unnumbered because if the in- formation, and employment for cash and
sistence of documentary proof, thereby health. There is a forward trend in political
blocking judicial remedies at the incep- participation, but did not lead to adequate
tion. Nivedita menon believed that at share in governance and family. Genderbest we may be able to use existing legal stereotypes are there in all sectors and
provisions creatively in such a way that levels. Available data on maternal mor.com
prevalence, sexually
we might negotiate some spaces outside tality,pcontraceptive
p
n
6
a
Diseases, HIV/AIDS infection,
and around prescribed identities .
ishtransmitted
n
a
unsafe Abortions, and gender Based vio.m
w
Socio - Economic Status
ww of Indian lence shows that sexual and reproductive
health rights are denied to women.7
Women
A reality check of the status of women in
India shows mixed results. It is true that There is a wide gender disparity in the lit6.

Menon, Nivedita,(1999) Gender and Politics in India, Oxford University Press

7.

Vanisree. Ramanathan (2015)

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eracy rate: 82.14% for men and 65.46% for

women in 2011,8 which negatively affect
the family planning and population stabilization efforts. As per the 2001 statistics,
the proportion of women workforce in India was 29%, less than (China, Somali and
Nigeria) compared to 51.93 % of their men
counterparts and most of these women
are working in agriculture, sales and elementary services and handicraft manufacturing. From this only around 20% of
them are only working in the organized
sector. In no Indian state, women and
men acquire equal wages in agriculture.
Womens rights to inheritance are still not
just and fair. Even though, Hindu succession Amendment Act, 2005 are womens
right to inheritance are approved by law.
Bina agarwal study from Kerala shows
that incidence of violence among women
is 49% among them without property.9 So
long as social acceptance to the equal
property rights is not realized, legal rights
are not going to empower Indian women.
The Nirbhaya case forced the parliament
to repeal the Rape laws and to pass the
sexual harassment (prevention, prohibition, and redressal) Act 2013, violence
against women is the biggest challenges
to the Indian Women. Human trafficking,
forced prostitution, rape, honor killings,
gang rape, acid throwing, dowry deaths,
female foeticide, domestic violence, the
crimes against womens list is endless in
India. Recently in January 30 2015, Indian
express newspaper reported that CBI unearthed information about a human trafficking racket in India, and estimated that
around 8000 women were transported to
Dubai using Delhi as a transit point. Re8.
9.

ports also give reference to a man, who

trafficked more than 5000 tribal kids from
the remotest areas of Jharkhand. Violence against small girl child is the new
reported crime, which is violence against
humanity, and there is an urgent need
for legal intervention of in the matters of
child sexual abuse. Girls and women are
not safe in their own house and schools
in India. The graph of gender based violence is mounting at an alarming rate.
The report of the National Crime Records
Bureau (NCRB), indicate that crime rates
against women such as rape, incest, sexual harassment, dowry related murders,
Abduction, deprivation of food, kidnapping
and abduction, trafficking and importation
of girls, domestic violence and suicide is increasing among all sections of women, at
a faster pace than the population growth
rate. With globalization and the participation
of women in IT Sectors, new forms of violences are being reported. Displacement,
lack of access to resources, unemployment,
and privatization of services are the after effects of globalization for the poor women.
The inclusion of 20% of skilled women in the
IT sector is the positive aspects but womens question in the liberalized economy is a
brave odyssey with deep costs.
The extent, nature and level of Indian womens electoral participation is much higher
than in most of the other countries- developed or developing. This electoral participation has been steadily expanding over the
years-by way of voting, as candidates, and
participation in campaigning, and so on.
mbetween men and
The gap in the turn
.c10 oout
p
p
n
women is
anarrow.

sh

ni
.ma

Census 2011 Report , India

Bina Agarwal: A field of Ones own: Gender and Land rights in South Asia (Cambridge: Cambridge
University Press (CUP), 1994, Reprinted in 1998).
10. Praveen Rai (2011) Electoral participation of Women in India: Key determinants and Barriers wqith

ww

CSDS, New Delhi : Economic and political Weekly, January 15, 2011, vol xlvI no 3,

108

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But the political leadership positions to

Indian women even though the number
of women MPs increased in the 16th Lok
Sabha elections, the results shows that
only 11% (62 0ut of 545) women occupy
parliamentary seats and majority of them
are women from elite class. As per the
times of India, India is 111th among having women members in the parliament.
Indias Maternal Mortality Ratio (MMR)
is found to be as high as 407 maternal
deaths per 1,00,000 live births, about four
times higher than the National Population Policy (NPP) 2010 goal. The average nutritional intake of women is 1400
calories compared to the requirement of
2200 calories. 50% of pregnant women
in India reported to have anemia.11 Gender stereotypes, patriarchal values, and
unequal power relations, lack of sexual
education, inadequate public health system and poverty forcing the women to be
the prey to STDs, HIV/AIDS, and mental
ill health. Even though new reproductive
technologies are empowering women,
the lack of women friendly reproductive
technologies and lack of their awareness
and Information, accessibility and availability giving them more harm to their
health than real empowerment.

Sexual and Reproductive Health of

Women

In India even though the changing sexual

behaviour of adolescents are accepted
by everyone, sex and sexuality is a still

taboo, which is rarely a topic of discussion in the public discourse due to the so
called culture. Even today Maternal and
child health (MCH) have for long been the
primary focus of the Indian development
and policy. It was through the pressure
and influence of the womens movement,
the struggle for gay and lesbian rights,
and more recently the HIV/ AIDS epidemic that the term sexuality has found its way
onto development and policy agendas.
There continue to be debates about their
relationship; however it is clear that reproductive health cannot be discussed without an understanding of sexuality.12 There
is often a conflation of the terms sexuality and reproduction, leading to the subsuming of the former under the latter.
Denial of sexual health information or an
abstinence-only approach to sexuality education interferes with fundamental rights
including the right to seek, receive, and
impart information and ideas of all kinds13
and the right to the highest attainable
standard of health14 which can have dire
consequences on the right to life. Sexual
health information is the key to the right to
life. 15 The failure to provide accurate information about the prevention of HIV transmission, for example, puts young people
at risk. However, the obscenity and censorship laws in India16 often restrict this
right on the grounds of preserving public decency and morality. Although present lawscin
India prohibit early marriage,
om

p.

np
a
h
s

ani
m
.
wessential to secure the highest attainable standard of health. See
13. Access to information is also
ww 12.
United Nations, 2000: Paragraph
11. National Family Health Survey 3 ( 2005-6)
12. Dixon-Mueller, 1993.

14. United Nations, 1989: Article 24(2)(e); United Nations, 2003: Paragraph 38(h); United Nations, 2000:
Paragraphs 12(b) and 16.
15. United Nations, 2000: Paragraphs 12(b), 16 and 34.
16.

Sections 292, 293 and 294, Indian Penal Code. These sections criminalise the sale of obscene
books/objects and performance of obscene acts. Obscenity is again widely defined and has been
interpreted with moral overtones by courts in the past.

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mandating the legal minimum age as 18

for girls and 21 for boys, marriage below
these ages is still fairly common. As per
the NFHS-3 from the selected states, 80%
of adolescent women are getting married between 14-17 years.17 Some studies on girls in India have found that they
are generally told nothing of menstruation until their first personal experience of
it .18Early pregnancy in India, almost all of
which takes place within marriage, is the
major cause of poor reproductive health
among female adolescents. Girls under
18 are 2-5 times more likely to die during
pregnancy or childbirth. Unsafe abortions
account for half of all maternal deaths of
girls between 15 and 19 years.19 Adolescent pregnant mothers, who are often already poorly nourished before becoming
pregnant, run a high obstetric risk for premature delivery, giving birth to a low birth
weight baby, prolonged and obstructed
labour, and severe intra partum and postpartum haemorrhage.20 Only 37 per cent
of mothers receive a postnatal check-up
within 2 days of birth, as is recommended
in existing guidelines; most women receive no postnatal care at all. (NFHS-3).
As per the national Family Health Survey
III (2005-06) nearly 21% pregnancies are
unwanted or mistimed. Indias maternal mortality rate is unacceptably high
at 230 per 100,000 live births as per 2008
estimates. Nearly 63,000(18% of global

maternal deaths) die every year due to

causes related to pregnancy and child
birth. Over half (52%) of all Indian women deliver without trained medical assistance.21 Another risk to the reproductive
health of female adolescents comes from
induced abortions. In India, up to half of
all maternal deaths among adolescents
aged 15-19 is reportedly due to unsafe
abortion. An estimated five to seven million induced abortions are performed in
India a year. While induced abortion was
legalised in India under the Medical Termination of Pregnancy (MTP) Act, a major
proportion (approximately 80 percent) of
all induced abortions are still performed
illegally by private and untrained persons
in unhygienic conditions .22
Induced abortions account for more than
11 percent of maternal deaths and significantly influence womens reproductive health.23 Lack of quality public health
facilities are the cause of concern. The
density of community and traditional
health workers is under 1 per 10,000
population. A Civil Society Review of the
National Rural Health Mission (NRHM)
highlighted severe deficiencies in terms
of community staffing. Adolescent health
services remain inaccessible, unaffordable, judgmental and of indifferent quality. More than half of women in India54
per centbelieve it is justifiable for a hus-

17. NFHS-3, selected states of Bihar, MP, UP, Rajasthan, Chattisgarh and Jharkhand.
18.

Narayan, Srinivasa, Pelto and Veeramal, 2001.

19. CEDPA, 2001

20. NFHS provides a comprehensive portrait of population and health conditions in India. The NFHS-2

.com
p
p
database for India. The second NFHS further expands the database,
an providing information on trends
h
s
over time and meeting emerging needs of population
ani and health. 38 Foundation for Research in
Health Systems and International Centre for
Research on Women, 2001.
m
.
ww
21. Hazra, 2010
w
22. Chhabra and Nuna, 1997
surveyed more than 90,000 women in 1998 and 1999. The first NFHS was conducted in 1992-93 and
proved to be a major landmark in the development of a comprehensive demographic and health

23. Jejeebhoy, 2000b.

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band to beat his wife under some circumstances. Thirty-five per cent of women in
India have experienced physical or sexual
violence, including 40 per cent of evermarried women (NFHS-3) only one in
four women who have ever experienced
violence has sought help to end the violence. Two out of three women have neither sought help nor told anyone about
the violence (NFHS-3). One in 5 women
(20%) faces domestic violence from their
husbands.

properly monitored will result in hormonal

imbalance and psychological ill health to
women. Among the married, communication between women and their husbands about sexual and reproductive
matters tends to be limited; in 19992000,
for example, only some 22 percent of married young women aged 1524 had discussed family planning matters with their
husbands 24 (IIPS and ORC Macro 2000).
According to the NACO report 40 million
new STI infections are reported annually
from the STD clinics in urban areas.

There is a strong correlation between HIV

and Gender based violence. A 2008 report Premarital sex varies from 17% among
on married women in India reveals that schoolchildren to 33% among young
women who have experienced physical workers in the typical north Indian popuand sexual abuse have HIV prevalence 4 lation. Of 3300 respondents to a recent
times greater than non abused women. of study, around one-third was found to be
sexual coercion are formidable: they are lacking in awareness of safe sex. The
short and long term; and have physical, working paper of MAMTA, a NGO, on
psychological and social effects. Sexual Sexual Behaviour among Adolescents
health manifestations range from unin- and Young People in India suggests that
tended pregnancy, abortion and infection there is a rising incidence of premarital
to risk taking behaviours, including early sex (up to 28 percent) among male and
onset of consensual sex, multiple partner female teenagers in India. Nationwide,
relations and non-use of condoms. Aca- only 17 per cent of women and 33 per
demic performance can also be affected. cent of men have comprehensive knowlPsychological outcomes of sexual coer- edge of HIV/AIDS (NFHS-3). There are
cion could range from symptoms of anxi- many myths about safe sexual practices
ety and depression to suicide attempts. and reproduction to them from whatever
The contraceptive prevalence rate among information they gathered from peers,
currently married women is 56 %. Howev- sexual partners, media and books. Expoer, female sterilisation accounts for two- sure to commercial sex workers, premarithirds of all contraceptive use. (NFHS-3). tal and extra martial affairs, multiple sex
om
.calcoholism
Only about one-third of modern contra- partners,
and media aroused
p
p
n
a
ceptive users were told about the side
shsexual fantasies are threat to the Sexual
i
n
a
effects of their chosen method,
and just and reproductive health of adolescents in
.m
w
one-quarter were told what
wwto do if those India. Even though reproductive challengside effects occurred. Fewer than 3 in 10 es like infertility have been resolved with
were informed about alternative meth- new medical technologies like IVF and
ods. The available contraception if not surrogacy. Despite all these technical ad24. IIPS 2007; 2IIPS and ORC Macro 2001a; 2001b; 3NACO 2006

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vancement, the ethical dilemmas remain

as most of these techniques are invasive
on womens bodies. For women IVF is
an intrusive procedure that may have to
be repeated a number of times before a
successful pregnancy is achieved, if at all.
Risks include ovarian hyper stimulation
syndrome a potentially life threatening
condition, and multiple births. 25

Political

Participation

of

Women

Womens Reservation Bill or the Constitution (108th Amendment) Bill, is a pending

bill in India which proposes to reserve 33
per cent of all seats in the Lower house of
Parliament of India, and in all state legislative assemblies for women for 15 years.
The seats to be reserved in rotation will be
determined by draw of lots in such away
that a seat shall be reserve only once in
three consecutive general elections. The
bill was introduced in the parliament in
1996, by Dev Gowda led United Front Government and subsequently in 1999, 2003,
2005, 2008 and in 2010. Finally, Womens
Reservation Bill was passed in Rajya Sabha on March 9, 2010. But Lok Sabha could
not clear the bill due to resistance of some
regional parties on certain provisions of
the bill. Opposition to the bill includes fears
of marginalization of men by elitist women
and of socially and economically backward classes. The lack of political voice
and poor representation of women in Parliament is a result of exclusions on gender
basis26 . They feel that due to the strength
and determination of womens movements in different parts of India, as well
as government- regulated quotas, female
presence in the political arena is increas-

ing, particularly in terms of voting patterns

and decision-making power, as well as in
access to positions in public office.27
But Womens participation in electoral
competition has been restricted to being
periodic electors, something that is not
only promoted and encouraged by the
political parties and society but also by
the state organs in India. Female electoral participation is grossly skewed and
asymmetrical vis--vis men in India when
it comes to contesting elections as candidates and representation in legislative
assemblies. The mains factors attributed
to low representation could be sociohistoric forces inherited from nationalist
movements, current social policies and
the gendered nature of citizenship which
hinder the womens political participation
in government structures, elections and
community organizations, the lack of national consensus and willingness among
political parties to give more tickets) perpetuation of a patriarchal political structure together with class, caste and gender
subordination acting as strong deterrents
to women contesting elections (Baseline
Report 1998); and the lack of awareness
and knowledge of electoral politics combined with a lack of support from the family and political parties in resources, which
severely affects womens chances to contest and win elections.
Even in womens participation in electoral
process as candidates in elections there
are inherent barriers and restrictions inom that severely reflicted by political.cparties
p
p
strict their
chances of candidature. It can
an

sh

ni
.ma

ww
w
Vyasulu, P and V Vyasulu (1999): Women in Panchayati Raj: Grassroots Democracy in India, Expe-

25. HEFA, 2008

26. Agarwal, Bina (2006): Social Exclusion, Plenary Comments, Asia 2015, March.
27.

rience in Malgudi, Background Paper No 4, New Delhi, United Nations Development Programme.

112

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be seen that the number of women can- ry for the benefits of reservation would
didates who contested the elections has further complicate the issue of womens
increased and almost doubled from 284 in representation and participation in Indias
general elections held in 1999 to 566 in the electoral competition. For, such benefits
general elections of 2004. But the number would largely be appropriated by those
of women candidates fielded by national women who belong to the upper stratum
parties, except for the Bharatiya Janata of society or to those already having a poParty, has remained almost the same dur- litical background. Womens movement
ing this intervening period. Thus, national and gender politics in India is currently diparties have followed a discriminatory and vided over the question of affirmative acgender exclusionist policy in allotment of tion for women in Parliament and state
seats to women in elections for Lok Sab- legislatures around two main issues: first,
ha over the years and discouraged active the issue of overlapping quotas for womparticipation in formal politics. The politi- en in general and those for women of the
cal decision to not allot seats to women lower castes and, second, the issue of elitby political parties at the national and state ism. Even though numerous womens orlevel electoral has been attributed to lack ganizations have played a significant role
of winnability of women.28 However, an in many of the riots, even today womens
analysis of the success rates of women access to power is mediated by their recandidates in Indian general elections as lationship to the male kin, and is often incompared to men reveals that it has been direct and symbolic. Even though many
higher in the last three general elections. of the autonomous womens movements
The complete lack of support to women tried to be away from the control of party
by political parties is corroborated by Kish- politics, parties allied with many of these
war who states, In our country, even the social movements and nongovernmental
best of women parliamentarians feel side- organizations.
lined and powerless within the party. The
few women leaders have not been able Urban feminist movement tried to retain
to facilitate the entry of greater number their autonomy from political parties and
of women in electoral and party politics, drawn to non electoral issues and achieved
and so remain an ineffective minority.29 gains in courts and bureaucracy, not in the
Womens interest in politics is a prerequi- electoral arena. But womens movement
site for encouraging higher participation of in India is not successful in pressurizing
women in formal politics. Education and the parties to address gender inequaliincome, socio cultural norms and caste ties issues and to meet their pre-election
.com Women leadership in Inare also associated with womens oppor- commitments.
p
p
anis not successful in influencing womtunities in political participation.30
dia
h
s
ani ens participation in party politics during
m
.
w catego- their tenure and fewer links with womens
But treating women asw
aw
blanket
28.

Deshpande, Rajeshwari (2004): How Gendered Was Womens Participation Women in Election

2004, Economic & Political Weekly, Vol 39 (51), pp 5431-36.

29. Kishwar, Madhu (1996): Women and Politics: Beyond Quotas, Economic & Political Weekly, XXXI,
Number 43, p 2871.
30. Agarwal, Bina (1997): Editorial: Re-sounding the Alert Gender, Resources and Community Action,
World Development, 25(9): 1373-80.

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N. J. Comp. Law Vol. 3 (1) 2016, pp. 105-115

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women are being served by contemporary development policies.31 A feminist politics cannot stop with the mere inclusion
of women in politics. The issue is one of
an alternative politics and a deeper moral
discourse. A feminist politics cannot stop
with the mere inclusion of women in politics. The issue is one of an alternative politics and a deeper moral discourse. Women
bring a different way of thinking; a cooperative spirit; a gift for reading people;
patience; empathy; networking abilities;
negotiating skills; a drive to nurture children,
kin, business connections and the local and
world community; an interest in ethnic diversity and education; a keen imagination; a
win-win attitude; mental flexibility; an ability
to embrace ambiguity; and the predisposition to examine complex social, environmental, and political issues with a broad,
contextual, long-term view. Women tend to
generalize, to synthesize, to take a broader,
more holistic, more contextual perspective.

movements. They are expected to strictly

adhere to the party policies with respect to
women and in contact with womens wing
of the political parties, and not placed gender equality as a priority in their agendas.
Today women are the important constituent for political parties. But there is an conscious attempt to divert from issues of gender equality to that of homogenizing laws
and secularism with less success. In the
name of secularism, the state is resorting
to a stop gap mechanism as an act of appeasing one community, and then another and is indulging in communalism and
identity politics without benefiting anyone
except community leaders and vote bank
strategy of the ruling party.
Women leadership in India is not successful in influencing womens participation in
party politics during their tenure and fewer
links with womens movements. They are
expected to strictly adhere to the party policies with respect to women and in contact
with womens wing of the political parties,
and not placed gender equality as a priority
in their agendas. Today women are the important constituent for political parties. But
there is an conscious attempt to divert from
issues of gender equality to that of homogenizing laws and secularism with less success. In the name of secularism, the state is
resorting to a stop gap mechanism as an
act of appeasing one community, and then
another and is indulging in communalism
and identity politics without benefiting anyone except community leaders and vote
bank strategy of the ruling party.
But Karin Kapadia (2002) observes that
neither social justice nor the interests of
31.

CONCLUDING REMARKS

.m
ww

Socio-cultural differences, traditional

barriers, existence of patriarchal values
which fosters gender prejudice, are some
of the hurdles to the efforts of womens
empowerment and gender justice in India. Poverty, illiteracy, traditional gender
specific tasks, lack of confidence coupled with social backwardness still force
to treat women in India as second sex.
Stratification and division among women
as urban- rural, educated, illiterate, upper- middle -lower and Hindu- Muslim
is still a challenge to the unity of women.
So long as men .and
women are located
com
p
p
in unequal
anand hierarchical manner in
h
s
social,
ni cultural and economic formation,

Karin Kapadia (2002) The violence of development, The politics of identity, gender and social inequalities in India, Kali for Women

114

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equality is a distant dream. Equality is

not possible between unequals Changing the socio-psychological mind set
through girls education and awareness is
the need of the hour. Joint efforts from all
stakeholders, the government, civil society, religious heads, community heads and
educational institutions can transform the
status of Indian women. For this, proper
implementation of Government program
targeted to women, encouragement from
the societies and communities at large
for the legitimization of new value and increased participation of women in social,
economic and political activities are essential. There is also a special problem,
such as, womens preference for male
children due to social and cultural reasons. To address this, it requires awareness, understanding and action. The best
way is to educate the new generation, orient the teachers, examine the text books
and teaching-aids and ensure that the
next generation grows up with new values and self confidence.

state and society will have to recognize

their decision making capacity and make
them part of the solution rather than the
problem. Sexual and Reproductive rights
of youngsters are part of the right to life
and the base of sustainable of development of any country.

There is an urgent need to ensure political representation of women not to share

power as a right but to change the nature
of power and governance. The most important defense of womens reservation
bill rests on the moral superiority and the
different perspective of women in public
life as beneficial not only to women but
also to the country as a whole. Reserving seats for women in the parliament is
not an end but only a means to an end
and one of the tools to deal with the gravest form of injustice and inequality. Even
though women in India are not a homogenous group, the bill is an aspiration for
their political collective based on political
mobilization. The most vital challenge of
the womens movement in India is in terms
Ensure access to sexual health informa- of broad basing the movement thereby
tion and care services for women and men democratizing it and making it poly-vocal.
alike, beginning with sexuality education With the emergence of multi party system
in schools and continuing through educa- engaging with the democratic parties, to
tion campaigns and confidential service be away from parties with chauvinist, ethand advice. A concrete strategy for pro- nic and religious interest is the challenge.
moting confidential abortions for women Womens empowerment in India, in the
and teenage girls is essential to prevent globalised era is still a distant dream. A
women falling prey to illegal service pro- collective action from families, communi.com
viders. In the context of changing sexual ties, p
societies
and state is the need of the
p
n
a
behavior of adolescents, where accurate
shhour. Legal intervention is the catalyst but
i
n
a
information is scarce and youngsters
.m are not the only answer. Gender equality is
w
considered as healthyw
and
w no need of not an end in itself; it is the prerequisite
health interventions, instead of covering to genuine democracy and to achieve all
the problems with the mask of culture, global developmental goals.

115

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WHY THEY DO, WHAT THEY DO :

ANALYTICAL STUDY OF ACID ATTACKS

S. Bindu Sravya and Santosh Aaghav .

Room No. 106, C Wing, Symbiosis Girls Hostel, Vimannagar, Pune
Email: sravyasmail@gmail.com

Aggression on humans is aggression on humanity. The increasing number of criminal activities is tampering with the moral and ethical fabric of the Indian
society. One such activity is acid attack. Acid attack is one of the most heinous crimes
which India is witnessing today. Acid attack, also known as vitriolage, is a violent assault which involves throwing acid on someone with an intention to disfigure, maim, or
kill them. Over the years, there is a steep rise in the number of acid attacks being committed, especially against women. According to a recent study by the Acid Survivors
Foundation of India (ASFI), 349 acid attacks against women were reported in 2014 as
compared to 116 in 2013 and 106 in 2012. There are a multitude of reasons for acid attacks against women which include rejection of marriage proposal, rejection of sexual
and romantic advances and it is also a form of domestic violence. The main aim of the
perpetrators is to scar the physical appearance of the woman, which ultimately lowers
her self-confidence and social standing. Inspite of the recent amendments to criminal
law our legal system has failed to control this menace. Also, the government proved
inefficient to regulate the over-counter sale of corrosive acids. This paper highlights
the gruesome effects (social, psychological and medical) of acid attacks on the victim.
The author will analyse the impact of the recent amendments made to Section 326
of the Indian Penal Code to deal with this heinous crime and will suggest measures
for their effective implementation. The recommendations proposed by Justice Verma
committee will be considered.The need for immediate medical attention to the victim
and positive societal response will also be highlighted.
past decade, crimes against women are
increasing at an alarming rate. Especially,
in a male dominated society like India the
situation is all the more disturbing. Different types of crimes are being committed
against women. Among them, acid attack
m
is one of the most
crime which
.coheinous
p
p
n
India is a
witnessing today. According to
h
s
i
Avon
Global
Center for Women and Jusan

INTRODUCTION
A day without a woman is incomplete.
We should be grateful to all the women
in this world for their unconditional love
and affection. But, unfortunately they are
made the victims of horrendous crimes.
Violence against women is prevalent in
all major countries from ages. Over the

.m

w
ww

S. Bindu Sravya- Student, 2nd yr BBALLB(Hons), Symbiosis Law School, Pune.(Symbiosis International University). Santosh Aghav, Assistant Professor, Symbiosis Law School, Pune (Symbiosis
International University).

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tice1 -Acid violence involves intentional

acts of violence in which perpetrators
throw, spray, or pour acid onto victims
faces and bodies. Acid attacks are also
committed against men but in most of
the cases the victims are women. In other
words it is a gender-based violence. The
main aim of the male perpetrator is to scar
the physical identity of the victim because
she rejected his proposals. The easy and
cheap availability of the weapon makes
his job easy. But, the consequences of the
attack are far-reaching. On the one hand
are the physical burns and scars and,
on the other hand is the mental trauma
which she undergoes for the rest of her
life. Our medical and legal systems have
proved to be inefficient for tackling this issue. It is sad that India failed in controlling
this menace inspite of being the signatory
to various treaties like Convention on the
Elimination of All Forms of Discrimination
Against Women (CEDAW). It is high time,
that we eliminate acid violence in India. The
author has reviewed the following literature
to understand the gravity of the crime.

REVIEW OF LITERATURE

Violence against women is increasing

both at the international and national level. According to the United Nations statistics division, women are subjected to
physical and sexual violence. The data
1.

2.
3.

available from 1995-2006 reveals that

the percentage of women experiencing
physical violence at least once in their
lifetime ranges from 12% in China to 59%
in Zambia. The percentage of women experiencing sexual violence at least once
in their lifetime ranges from 4% in Azerbaijan to 44% in Mexico.2 In India too, the
crimes against women are increasing
rapidly. For instance in the year 2012, an
alarming 2,44,270 incidents of crime were
registered. But unfortunately many such
incidents go unreported because of the
fear and stigma faced by the victims.
Acid attacks fall under the category of
physical violence. Acid attacks take
place in many countries but are particularly prevalent in Bangladesh, India,
Pakistan and Cambodia.3

Bangladesh

According to Bhuiyan and Lovely, Bangladesh has the highest world-wide incidence of acid violence and acid burns
constitute 9% of total burn injuries in the
country.4 Since the early 1980s acid attacks have been steadily increasing in
Bangladesh. 200 cases were reported in
1990s.5 In the year 2002 this number increased when 487 women, men and children were attacked.However, there has
been a consistent reduction in the num-

Virtue Foundation, Combating Acid violence in Bangladesh, India and Pakistan,, http://www.ohchr.
org/Documents/HRBodies/CEDAW/HarmfulPractices/AvonGlobalCenterforWomenandJustice.
pdf.

com
.
p
p
UN Statistics Division, Violence against women, n
a http://unstats.un.org/unsd/demographic/prodh
ucts/Worldswomen/WW2010%20Report_by%20chapter(pdf)/violence%20against%20women.pdf.
s
i
an
Jane Welsh, It was like burning in hell:
A comparative exploration of acid attack violence, http://
m
.
w
cgi.unc.edu/uploads/media_items/it-was-like-burning-in-hell-a-comparative-exploration-of-acidw
w
attack-violence.original.pdf.

4.

Bhuiyan, Firoz Alam, and Ferdushi Haque Lovely. "Impacts of Global Issues on Women and Children." Acid Violence: A Burning Impact on Women of Bangladesh-Case Studies. Dhaka, Bangladesh.

5.

Chowdhury Elora Halim. "Feminist Negotiations: Contesting Narratives of the Campaign Against
Acid Violence in Bangladesh." Meridians: feminism, race, transnationalism 6.1 (2005): 163-92.

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ber of acid attacks after the implementation of 2002 Acid Crimes Law and 2002
Acid Control Law. The current motivational trends in Bangladesh are different
from other countries. Many acid attacks
on women occur due to land or property
related disputes.6 The second most prevalent motivation is marital disputes.

most of the cases men attack women for

rejection of proposals. Also few members
of orthodox religious groups attack women if they feel that those women are too
modern and westernised. (for example- if
the women wear jeans instead of the traditional Pakistani dress.)10

The situation in Pakistan is not very clear

because the statistics revealed by different organisations do not match with each
other. According to Human Rights Commission of Pakistan (hereinafter HRCP)
400 women are attacked by acid each year
and 15000 cases were reported over the
past ten years.7 In 2004 the HRCP documented 46 acid attacks in Sothern Punjab
alone. Whereas in 2007 only 33 women
were burned in acid attacks which suggests a huge decline as compared to the
previous years.8 However, the figures revealed by HRCP are in complete contrast
to those revealed by Acid Survivors Foundation of Pakistan. The Progressive Womens Association documented 7800 cases
in which women were severely burned,
scalded and subjected to acid attacks in
the Islamabad area, but the perpetrators
were convicted in only 2% of those cases.9 The motivational trends in Pakistan
are similar to those of other countries. In

Before the period of 1999-2000, the number of reported acid attacks in Cambodia
remained low. This number increased after
the much publicised acid attack on Cambodias famous singer Tat Marina on 5th
December 1999.11 Also, there has been an
alarming rise in the number of acid attacks
in 2010.12 The data collected by Cambodian
Acid Survivors Charity (CASC) on people
treated in hospitals for acid burns reveals
that there are 271 acid attack victims in
Cambodia between 1985 and June 2010.13
The motivational trends in Cambodia show
that in most of the cases women attack other women in relation to triangle love and
other relationship affairs. Wives usually
throw acid on their husbands mistresses
or next wife so that they are no more loved
by their husbands. 14According to Cambodian League for Promotion and Defense of
Human Rights (LICADHO), the motivational
trend is slowly shifting. Now, more than half
of all attacks are perpetrated by men.15

Pakistan

6.

Cambodia

ASF. 6th Annual Report, Dhaka, Bangladesh: ASF,2004.

7.

HCRP. "Aims and Objectives." HCRP. 2004. 3 January 2009 <http://www.hrcpweb.org/objectives.

cfm>.
8. Amnesty International. Violence in the Family. Amnesty International 4 December2008 <http://asiapacific.amnesty.org/apro/APROweb.nsf/pages/svawfamily>.
9. Kristof, Nicholas. "Terrorism Thats Personal." The New York Times November 30 2008, December
1 2008<http://www.nytimes.com/2008/11/30/opinion.
10. Ansar Burney. Women's Rights: Our Struggle to Fight for the Rights of Women. Ansar Burney 6 December 2008 .
11. Jeff Smith & Kay Kimsong, Acid-Laced Vengeance, Cambodia Daily, Feb. 56, 2000.
12. Seth Mydans, In Scarred Land, A Haven for Victims of Acid Burns, N.Y. TIMES, Aug. 23, 2010.
13. Cambodian Acid Survivors Charity (CASC), AprilJune 2010, Quuarterly Report 4 (2010).
14. supra note.4.
15. ibid

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India

India is the fourth most dangerous place

in the world for women to live in. Women
are made the victims of this horrific crime
irrespective of their class, creed and
caste. 16 In India, there are no official statistics for this brutal crime. It is estimated
that there are 1000 attacks each year.17
The data collected from various Indian
newspapers reveal that 153 cases of acid
assault were reported from January 2002
to October 2010 while 174 judicial cases
were reported for the year of 2002. But
many scholars feel that there is gross
underestimation of this number as all
the cases are not reported in print media.18 According to the Campaign and
Struggle against Acid Attacks on Women (CSAAW) 68 cases of acid assault
were reported from 1998-2008, in the
state of Karnataka alone. This shows
that there will be more than 153 cases
in the entire country during the period
of January 2002 to October 2010. Another important thing to be noted is that
most of the acid attacks in India occur
in Kashmir and other northern states
and in 88% cases at least one male perpetrator is involved.19 The motivational trends in India are similar to that of
Bangladesh. 34% of acid attacks occur
due to rejection of marriage or sexual
advances by women. Also it is a form

of domestic violence where a woman is

attacked by her husband and his family
for dowry. On the other hand land and
property disputes accounted for 20% of
acid assaults from 2002-2010.20

CONSEQUENCES OF ACID ATTACKS

The consequences of an acid attack are

severe and unbearable by the victim. The
victim is nothing more than a living corpse.
Acid violence is usually followed by various
psychological, medical and social effects.

Health/Physical effects

The main consequence of an acid attack

is permanent body disfigurement. The victim has to undergo various surgical treatments to bring back the normal shape.21
But there, is no guarantee that the victim
will be able to recover completely. Also
permanent disfigurement of the body will
have an impact on the victims psychological, social and economic viability.22

Psychological Effects
After the attack the women feel worthless,
afraid, modified and become social outcasts because of their appearances.23 The
victims scored highest on Derriford appearance scale, which measures psychological distress due to ones concern for
their appearance. According to Rosenberg
scale the victims have lower self-esteem
and increased self- consciousness.24

16. Reuters, Thomas (2011-08-13). "The World's 5 Most Dangerous Countries for Women: Thomson
Reuters Foundation Survey". Retrieved June2011.
17. Bhadra Sinha, SC curbs acid sale, orders more money for victims, July 19, 2013.
18. supra note.1.
19. ibid.
20. D.S. Bhullar, Acid Throwing: A cause of concern, J Punjab Acad Forensic Med Toxical, 2013:13(2).
21. Khan, Adnan (Apr 21, 2012). "The real miracle workers fighting, and healing, Pakistans acid attacks". Acid Survivors Foundation, Pakistan. Retrieved 24 May 2012.
22. Breaking the Silence: Addressing Acid Attacks in Cambodia". Cambodian Acid Survivors Charity.
May 2010, pp. 151. Retrieved 6 March 2013.
23. Report No.226, Law Commission of India, July 2009.
24. Exclusive: Mamoon and suspect in attack speak to Pajhwok (Video). Pajhwok Afghan News. 24
January 2011. Retrieved 2013-07-21.

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Medical Effects
The medical effects of acid violence are
far-reaching. Once the acid comes into
contact with skin, it eats through two layers i.e. fat and muscle. Sometimes the
bone may also get dissolved. Acid can
quickly destroy the eyes causing permanent blindness. The ears get shrivelled
up. The nose may melt which blocks the
nostrils and ultimately results in inhalation
problems. Eyelids and lips may burn off
completely. There is the danger of infection because the dead tissues around the
wounds get infected very easily. Also the
skin and bones in other parts of the body
may be destroyed. 25

Social Effects
Acid attack victims are ostracized from
the society. They generally do not go
out of their houses because they may
be laughed at by people. Also pestering question from the world may embarrass the victim and increase her mental
trauma. Unmarried victims may never get
married.26 The attack usually leaves the
victim handicapped in some way. So,
they become completely dependent on
their parents/spouse for everyday activities like eating and running errands. If the
woman is an earning member of the family then the financial status of the family
will fall down because she can no longer
work as a result of her disabilities.27

Objectives of Study

To highlight the inefficiency of Indian legislature, executive and judiciary in
curbing this crime.

To analyse the recent amendments

Hypotheses

The following hypotheses shall be tested

for significance.
A0 : The legislature, executive and judiciary failed in tackling the crime of acid attacks.

Research Methodology
The research is entirely based on secondary data. The data has been collected
from various books, articles and seminar
papers. Also the different statistics were
collected from the websites of various
NGOs, case studies and law commission
reports.

Observations and Discussions

It is a harsh reality that India failed to curb

this menace from many years. There are
no proper laws in place and the existing
laws are not effectively implemented. Different governments make many promises but no one ever promised to stop acid
attacks and did not take effective steps for
the same. Also, our courts failed in rendering justice to victims in many cases.

Legislation
Before 2013, there was no separate legislation to control the crime of acid attacks. In those days the crime was registered under Section 320, 322, 325, 326
and 307 of the Indian Penal Code (IPC).

Section 320
deals with griev.com
p
p
ous hurt.
an

sh

ni
.ma

ww
w
Saeed Dehghan, "Iranian woman blinded by acid attack pardons assailant as he faces same fate".

25. supra note. 24.

26. ibid.

27.

made to criminal law to deal with this issue and suggest measures for their effective implementation.

The Guardian. 2011-07-31. Retrieved 2013-09-21.

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Section 322 deals with voluntarily
causing grievous hurt.

Section 325 deals with punishment
for voluntarily causing grievous hurt.

Section 326 deals with voluntarily causing grievous hurt by dangerous
weapons or means:

Section 307 deals with attempt to
murder.
In 2013, the Indian Penal Code was
amended through the Criminal Law
Amendment Act, 2013. Section 326A and
326B were inserted to specifically deal
with the issue of acid attack.
Section 326A-Whoever causes permanent or partial damage or deformity to, or
burns or maims or disfigures or disables,
any part or parts of the body of a person
or causes grievous hurt by throwing acid
on or by administering acid to that person,
or by using any other means with the intention of causing or with the knowledge
that he is likely to cause such injury or hurt,
shall be punished with imprisonment of either description for a term which shall not
be less than ten years but which may extend to imprisonment for life, and with fine:
Provided that such fine shall be just and
reasonable to meet the medical expenses of the treatment of the victim:

maiming or disfigurement or disability

or grievous hurt to that person, shall be
punished with imprisonment of either
description for a term which shall not
be less than five years but which may
extend to seven years, and shall also be
liable to fine.
Inspite of these two sections the position
in India did not improve. The acid attacks
are still increasing at an alarming rate.
According to Acid Survivors Foundation
of India (ASFI) 349 cases were reported
from all over India in 2014. This is the
first data collected after the amendment.
There is tremendous rise in this number
as compared to previous years. In 2012
and 2013 only 106 and 116 cases respectively were reported28 .There is a 300%
rise in the number of acid attacks after
the amendment. 29 This clearly shows that
the amendment is ineffective. The perpetrators do not respect the law of the land
because there is no proper enforcement
of the same.

EXECUTIVE
In many cases, the government of India
is neither taking preventive steps nor
helping the victims after the incident.

COMPENSATION

Section 357B has been recently inserted

Provided further that any fine imposed un- in the Code of Criminal Procedure, 1973
the
Criminal Law Amendment
der this section shall be paid to the victim. through .c
om
p
2013. It reads as follows-The comSection 326B-Whoever throws or at- Act,
np
a
h
is pensation payable by the State governtempts to throw acid on any personaor
atn
.mperson, ment under section 357A shall be in adtempts to administer acid tow
any
w
or attempts to use any w
other means, with dition to the payment of fine to the victim
the intention of causing permanent or under section 326A or section 376D of the
partial damage or deformity or burns or Indian Penal Code.
28. Acid Survivors Foundation of India(ASFI): Statistics.
29.

Utkarsh Anand,309 acid attack cases in14, 300% rise, Indian Express, Apr

10,2015.

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Also, in the famous case of Laxmi v Union of India30 it was held that a minimum
amount of Rupees 3,00,000 should be
paid as compensation to the victim by
the State government. Also, 1,00,000 of
the total amount should be paid within
15 days of reporting the incident and
the remaining 2,00,000 should be paid
within 2 months.
The state governments refused to give
importance to such legislations and
landmark judgements. In most of the
cases the victims are let to suffer without any compensation which ultimately
effects their medical treatment. For instance in the case of Sabana Khatun v
State of WB31 , an acid attack victim filed
a writ petition for not receiving compensation from the West Bengal government inspite of reporting the incident
to the Chief Secretary of west Bengal.
Later the court directed the government
to pay the compensation. In the case of
Forum Against Oppression of Women
vs. Union of India the state government
of Maharashtra refused to compensate a victim by taking the advantage
of time constraints i.e. the time of incidence and the time of implementation
of the scheme. The compensation was
provided only when the apex court directed them to do so. These two cases
substantiate the fact that the government is not fulfilling its obligations.

REGULATION OF ACID SALES

The number of acid attacks are increasing
because of easy availability of acids. Also,
the acids used by perpetrators like sulphu-

In Mahender v State32 a woman became

the victim at the hands of her husband. He
was her second husband. She had a sixyear old boy from her first marriage. The
second husband continuously tortured
her, so she sought divorce. On their way to
meet the lawyer Mahender threw acid on
her face and she succumbed to the burns.
In the case of Parivartan Kendra v Union of
India33 the plight of two dalit girls has been
highlighted. The perpetrators attacked the
two sisters when they were sleeping on
the rooftop because the elder sister rejected their proposals and sexual advances.
Only the regulation of acid sales through
stricter rules and norms can prevent such
unfortunate incidents.

JUDICIARY

In many cases effective justice has not

been rendered to the victims of acid
attacks. Let us consider the following
m understanding
cases to havep.aco
better
p
of thish
statement.
an

ni
.ma

ww

ric acid, nitric acid etc. are cheaply available. So many organisations call for stricter
regulations like ban on sale of concentrated acids license requirement, enhanced
system for monitoring acid sales etc. In
the famous Laxmis case of 2013 the government was ordered to regulate over-the
counter sale of acid but the continuance of
terrible attacks in 2014 and 2015 indicate
that the government failed to regulate the
sale. In India, the common man has easy
access to acid, to this day. The following
are some of the recent cases which testify
the same.

30.

Laxmi v Union of India, Writ Petition (CRL.)No.129 of 2006.

31.

Sabana Khatun v State of WB, 2014 SCC OnLine Cal 4937.

32.

Mahender v State, 2013 SCC Online Del 4405.

33.

Parivartan Kendra v Union of India,2015 SCC OnLine SC 1281.

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In the case of Revinder Singh v State of

Haryana 34, acid was thrown on a woman
by her husband for refusing to grant divorce.
He was involved in an extra-marital affair.
In this case life imprisonment was not imposed even though the victim died.
In Balu v State Represented Inspector of
Police35 a person suspected that his wife
developed illicit relation with one of his
acquaintances. Therefore he attacked
her with acid. He was punished with life
imprisonment. But the fine which was ordered to be paid was only Rupees 2000.
Thus, this meagre amount will not help
the victim to cover her medical expenses.
In a Supreme Court case 36, a husband
killed his wife by pouring acid on her. Also
he attempted to kill his two daughters. All
this was done to grab the property. The
court dismissed their appeal for acquittal but no compensation was awarded
to the victims. Thus, the crime was taken
care of but the condition of victims did
not matter or the court.

motivation for this crime may be different

in different countries but the effect on the
victim is the same. The victim is nothing
more than a living corpse. Also, in most
of the cases the victim is a woman. Over
the years the Indian legislature, executive
and judiciary did not do much to improve
the situation. Infact the number is increasing. If this keeps on continuing women in
India will be afraid to move out of their
houses. They need proper security in
this society and fear and stigma should
not suppress them. There can be some
scope for change if the only legislature,
executive and judiciary will fulfil their duties and obligations. Proper enforcement
of the above discussed laws will definitely
make a difference. The first and foremost
thing is the medical attention given to
the victim. Immediate first aid and proper
treatment of the victim will increase the
chances of survival and recovery. Positive
societal response is also required in such
cases. Instead of taunting the victim and
causing mental depression, the members
of the society should be friendly and welcoming, so that the victim does not feel
alienated. All these points should be kept
in mind for a positive reaction towards this
crime. Ultimately, the goal to be achieved
is reduction in the number of acid attacks,
and in the later stage, a complete elimination of the crime.

All these cases took place in the preamendment period. In the post-amendment period the judiciary is definitely
doing a better job as compared to the
legislature and executive. Though it failed
to render justice before the amendment,
proper steps are taken in the post amend- RECOMMENDATIONS
ment period. The cases of Laxmi and Pari-
Create
A Helpline- An all-India hel.com
vartan Kendra prove the same. But, still plinepshould
p
be created for the benefit of
an attack victims.
there is a wide scope for improvement. shacid
This will help them to

CONCLUSION

ni

a
w.m

wwstatistics, it is
Though there are no official

evident that the number of acid attacks

are increasing at an alarming pace. The
34.

35.

get immediate attention for their pain and

suffering.There are greater chances of receiving proper medical treatment and also
this treatment will be provided at the right

Revinder Singh v State of Haryana, AIR 1975 SC 856.

Balu Vs. State Represented Inspector of policedecided on 26/10/2006.

36. Ram Charittar and Anr. etc.vs. State of Uttar Pradeshetc. (04.04.2007 - SC).

123

N. J. Comp. Law Vol. 3 (1) 2016, pp. 116-124

ISSN : 2393 - 9338

time. Even before the attack, women can

gain useful information about the crime situation in their locality or city by utilising the
helpline services.

Regulate Acid Sales- If acid sales are
not regulated, any measure taken to prevent
this situation will not help. The government
should take strict action against those vendors who sell acid without proper licenses
or without complying with various rules and
regulations. As long as acid is easily and
cheaply available to the common man, the
situation cannot be improved.

Provide Government/Private JobsIt is very difficult for the victim to get a job
due to her physical and mental disabilities.
Thus, the government should provide employment to the victims. As a part of Corporate Social responsibility (CSR) all the
private companies should reserve a quota
for acid attack victims and should provide
them with a basic salary to meet their needs
of survival. This reduces their financial dependence on their families and spouse.
They can become economically stable and
will have a status in the society.

Free Medical Treatment- All the
government hospitals should provide free
medical treatment to acid attack victims.
This will reduce the burden of huge medical
expenses on poor victims. The private hospitals should also provide treatment free of
cost or at least at subsidised rates.

Maintain Proper Statistics-A crime
be curbed only if we know the rate at which
it is happening. Thus we need to maintain

proper statistics. Till date, there are no official statistics for acid violence in India. Proper record of acid attacks by the government
and other organisations will help to understand the severity of the crime in each locality, city and state. Thus, adequate measures
can be taken to control the menace in that
particular location.

LIMITATIONS
SCOPE

AND

FUTURE

The limitations faced by the author while writing this paper are a follows
No Official Statistics- Lack of
official statistics made it very difficult
to ascertain the crime position in our
country. The statistics revealed by various NGOs had to be considered. There
was a lot of ambiguity because the statistics of one organisation are different
from that of others.

Time Consuming- Collecting
statistics from the websites of different organisations is a time consuming
process. The author had to visit different sites to get relevant information and
avoid ambiguity.
The future scope of this research would
be to know the crime situation in each
and every state and recommend measures to the respective state government
and local governments to tackle the issue.
Correction of the limitations and consideration of future scope will help to
better the situation
and render justice
.com
p
p
n
to acid
victims.
a
hattack

ni
.ma

w

ww

124

N. J. Comp. Law Vol. 3 (1) 2016, pp.

ISSN : 2393 - 9338

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ISSN : 2393 - 9338

N. J. Comp. Law Vol. 3 (1) 2016, pp.

June

Volume No. 3, Issue No. 1, 2016

Contents

Reviewed Articles

1.

2016

01

EMPOWERMENT OF WOMEN IN INDIA: OPPORTUNITIES

AND CHALLENGES

Justice Devi Prasad Singh

2.
3.
4.

09

WOMENS EMPOWERMENT: A SOCIO-LEGAL ASPECT

Manik Sinha
EMPOWERMENT OF WOMEN AND GENDER EQUITY
Usha Tandon

17

GENDER EMPOWERMENT AND SOCIAL JUSTICE: ROLE

21

OF MNREGA IN NEW MILLENIUM

S. C. Roy

5.

27

ACID TEST OF THE ACID ATTACK VICTIMS: A DISCOURSE

FROM LEGAL PERSPECTIVE IN INDIA

Pradip Kumar Das

6.

43

IN THE REAR BLOCKED ENTRY: DOMESTIC VIOLENCE

ACT FOR WOMENS EMPOWERMENT IN INDIA

Nandita S.Jha

7.

53

WOMEN EMPOWERMENT VERSUS GANG RAPE IN INDIA:

AN ANALYTICAL STUDY

P. K. Pandey

8.

64

ROLE OF NON-GOVERNMENTAL ORGANISATIONS IN

THE PROTECTION OF WOMENS RIGHTS IN INDIA
Ajay Kumar Singh

9.

69

EMPOWERING WOMEN THROUGH ANIMAL HUSBANDRY EDUCATION & TRAINING

Shikha Verma & Dr. S. S. Kashyap

10.

78

HATE SPEECH AND THE LAWS: A CRITICAL STUDY WITH

REFERENCE TO THE NATIONAL AND INTERNATIONAL
PERSPECTIVES

11.

Rajib Bhattacharyya
REPRODUCTIVE

RIGHTS

OF

97

PRISONERS: LEGAL AND

INSTITUTIONAL CHALLENGES

12.

Subham Srivastava
WOMENS EMPOWERMENT: AN INDIAN EXPERIENCE

105

Vanisree Ramanathan

13.

116

WHY THEY DO, WHAT THEY DO :

ANALYTICAL STUDY OF ACID ATTACKS

sh

ni
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An International Refereed Journal

w
ww

128

om

p.c
p
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a

S. Bindu Sravya and Santosh Aaghav

JPMS Society

H.Office: EC-41 MAYA ENCLAVE,

NEW DELHI - 110064.

Email : manisha_npp@yahoo.com
manishanpp.com
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