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Dr.P .Sailaja

B.Sc., LL.M., Ph.D.(Law) Lecturer in Law, MRVRGR Law College,Vizianagaram

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Dr. Petikam. Sailaja

Right from the vedic times till date, we as a nation suffer from the well known vice – Gender Bias. Women and children in the contemporary world are growing up with an unprecedented exposure to sophisticated and violent kinds or imagery. They are exposed to every kind of harmful materials through radio, movies, phones and the internet. Family is foundation of civilized society. Infact, man and woman are two halves of humanity none of the two can reach its highest creative excellence without cooperation of the other. Through the ages, a woman is the mother of mankind. But the most horrendous cruelties have influenced her life. Even in the new millennium, the status of women has not improved significantly. The World today is said to be controlled by money, power and influence. Most of that is bundled up in the hands of a few. The rich rarely become victims of the law. Women constitute about one-half of the global population, but they are placed at various disadvantageous positions due to gender difference and bias. They have been the victims of violence and exploitation by the male dominated society all over the world. The concept of equality between male and female was almost unknown to us before the enactment of the Constitution of India . The journey has been a long, but interesting and rewarding one is learned that sexual harassment is a complex challenge, one that is often controversial and contentious. Attitudes towards sexual harassment run the gamut from discomfort, fear and concern; to disbelief and indifference. Children too in current times are being increasing exposed to sexually explicit material which is not suitable to their age. Women’s and children’s issues have been a matter of great concern for a long time but these are taken seriously only in the past few decades.

The International Bill of Human Rights strengthened and emphasized on the human rights of women and children. As regards India, our Constitution provides better protection to women and children under Articles 14 , 15(3) , 16 , 21 , 21-A , 24 , 39(A) , 51-A , 32 , 226 and the Preamble of the Constitution. Moreover, the earlier legislations in India have protected the women and children from torture, cruelty, outrage of modesty, rape, cheating, assault, bigamy and harassment under the provisions of sections 509 , 498-A , 494 , 497 , 304-B , 305 , 354 , 375 and 376 of the Indian Penal Code, 1860 for maintenance under section 125 to 128 of Code of Criminal Procedure, 1973.

Social Legislations to protect the Women and Child:

Government of India has enacted special legislations to protect the women and child. Some of the most useful legislations are as follows-

1. The Factories Act, 1948:

This Act provides some special provisions for women and children to regulate the conditions in manufacturing establishments (Factories) in order to protect the women and children and also provide some provisions for health and safety measures. According to this Act no child who has not completed his fourteen year shall be required or allowed to work in a factory. But a child who has completed his fourteenth year or an adolescent may be allowed to work in a factory if (a) a certificate of fitness for such work is in the custody of the manager of the factory, and (b) such child or adolescent carries, while he is at work, a token giving a reference to such certificate. No women shall be required or allowed to work in a factory except between the hours of 6 a.m. and 7 p.m..

 

2. The Immoral Traffic (Prevention) Act, 1956:

This Act is enacted in pursuance of the International Convention signed at New York on the 9th day of May 1950, for the prevention of immoral traffic. The scope of the law is to cover both the sexes exploited sexually for commercial purposes and provided, inter alia, enhanced penalties for offences involving children and minors. The Act, lays down penalties for keeping a brothel or allowing premises to be used as a brothel; living on earning of prostitution; procuring, inducing and inducing person for the sake of prostitution; detaining a person in premises where prostitution in or in the vicinity of public places; seducing or soliciting for purpose of prostitution; and seduction of a person in custody. Besides contemplating specialized machinery for its enforcement, the Act envisages a comprehensive scheme for secure, protection and corrective treatment of prostitutes.

3. The Dowry Prohibition Act, 1961:

Main object of this Act is to prohibit the giving or taking of dowry . This Act impose penalties for giving or taking dowry and also for demanding dowry. Any agreement for the giving to taking dowry shall be void. Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the women, and pending to such transfer, shall hold it in trust for the benefit of the women. Otherwise, he shall be punishable. Offences under this Act are cognizable, bailable and non-compoundable and trial by the Metropolitan Magistrate or a Judicial Magistrate of the First Class. The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

4. The Maternity Benefit Act, 1961:

The Maternity Benefit Act, 1961 was enacted to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits. The Maternity Benefit Act, 1961 is intended to achieve the object of doing social justice to women workers. Therefore the Court held in B.Shah vs. Labour Court, Coimbatore, that in interpreting the provisions of this Act, the Court has to adopt the ‘beneficient rule of construction’, which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output.

5. The Child Labour (Prohibition and Regulation) Act, 1986 :

This Act has been enacted to prohibit the engagement of children in certain employments and to regulate the conditions of work of children in certain other employments. According to this Act no child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the process set forth in Part B of the Schedule is carried on. Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from Government. Child means a person who has not completed his fourteenth year of age. This Act regulated the conditions of work of children in employments where they are not prohibited form working.

6. The Indecent Representation of Women ( Prohibition ) Act, 1986:

This Act is intended to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other matter. This Act prohibits the advertisements containing indecent representation of women. No person shall, or cause to be published, or arrange or take part in the publication of exhibition of any advertisement which contains indecent representation of women in any form. The Act also prohibits the publication or sending by post of books, pamphlets etc., and containing indecent representation of women.

7. The Family Courts Act, 1984:

According to this Act, establish Family Courts where population exceeds one million. The main object for the establish Family Courts with a view to promoting conciliation in, and securing speedy settlement of, disputes relating to marriage and family affairs. No party to a suit or proceeding before a Family Court is entitled, as of right, to be represented by a legal practitioner provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of legal expert as amicus curie.

8. The Legal Services Authorities Act, 1987 :

The Act came into operation on 9th November 1995 and that day is celebrated as legal service day throughout country. All the governmental and non-governmental institutions having concern with legal service organize different types of activities and programmes on the eve of the legal services day. The Act was passed to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. The Act strive to fulfill the aims and objectives as envisage under Article 39-A of the Constitution of India. According to section 12 of this L.S.Act, 1987 the women and child shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend. Legal services may be provided in any one or more than one of the following modes, namely:

a) Process fees and all other charges payable or incurred in connection with any legal proceedings except court fees,

b) Representation by a legal practitioner in a legal proceeding,

c) Obtaining of certified copies of orders and other documents in the legal proceedings,

d) Preparation of a paper book including printing and translation of documents, in the legal proceedings,

e) Any other expenses which chairman of Legal Services Committee or District Authority deem fit to grant in special circumstances of a given case.

Any person desiring legal aid or advice may make an application addressed to the concern authority and the application shall be processed as early as possible and preferably within one month.

9. The National Commission for Women Act, 1990:

This Act came into force w.e.f. 31st January, 1992. The National Commission for Women under section 3 of the Act has been constituted. The main objective of the Commission is to study and monitor all matters relating to provisions of Constitutional safeguards for women and to review existing legislations as well as suggest amendments, wherever necessary. The Commission consists of a Chairperson nominated by the Union Government and five other members who have experience of law, administration, health, education, social welfare and management. A Member-Secretary is also nominated by the Central Government who is member of Civil Services of the Union or All India Services.

10. The Protection of Human Rights Act, 1993 :

This Act provides for the constitution of National Human Rights Commission, State Human Rights Commissions and Human Rights Courts for better protection of Human Rights. Human Rights mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.

11. Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994:

In olden days, it was impossible to determine the sex of the baby in the womb of mother until it was delivered. As medicine advanced, new techniques were devised for preventing the genetic, chromosomal disorders of child in the womb. With these modern techniques and machinery it became possible to ascertain the sex of the child in the womb even in the early stages of pregnancy. The techniques used to diagnose the condition, and sex of the foetus is called ‘Amniocentisis’. These techniques are actually used to test the amniotic fluids, blood or any tissue of a pregnant woman for the purpose of finding any genetic or metabolic disorders. This advancement of science turned to be a curse towards female child. This is an Act to provide for the prohibition of sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto. This Act came into effect from 1st February, 1996. The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 was enacted with the following objects

(i) Prohibition of the misuse of Pre-natal Diagnostic Techniques for determination for sex of foetus, leading to female foeticide,

(ii) Prohibition of advertisement of Pre-natal Diagnostic Techniques for detection or determination of sex,

(iii) Permission and regulation of the use of Pre-natal Diagnostic Techniques for the purpose of detection of specific genetic abnormalities or disorders,

(iv) Punishment for violation of the provisions of the Legislation.

The Medical Termination of Pregnancy Act, 1971 is enacted to provide for the termination of pregnancy by registered medical practitioners where its continuity would involve a risk to life or grave injury to her physical or mental health. Because in recent years health services are available everywhere and the service hospitals with qualified doctors are available to all classes of people. The Government proposed to liberalize certain existing provisions relating to termination of pregnancy to avoid loss of the mother’s health, strength and sometimes life.

12. The Juvenile Justice Act, 2000:

The movement for special treatment of Juvenile offenders started towards the end of eighteenth century. Prior to this, juvenile offenders were dealt with exactly like those of adults. They were prosecuted in criminal courts and were subjected to some penalties as adults. The guiding principles relating to the treatment of children and young delinquents are now contained in two Central Acts namely, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Prohibition of Offenders Act, 1958. The latter Act provides for release of juvenile offenders on probation. The J. J. Act, 2000 lays down a separate procedure for dealing with the neglected and uncontrollable juveniles who have been termed as ‘children in need of care and protection’. A “Juvenile in conflict with law ” is dealt with by the Juvenile Justice Board. While the “child in nee of care ” is to be proceeded by the Child Welfare Committee (CWC), children Home and Shelter Home to look after the interest of the child. J.J.Board may order the release of Juvenile in Conflict with law on probation . By the Juvenile Justice Amendment Act, 2006 of provides for the Constitution of Child Protection Unit responsible for implementation of the Act. And also provides for the establishment of Special Juvenile Police Units for handling of the Juveniles and Children under the Act and prevention of Juvenile Crimes. These police units shall be specially trained for the purpose.

10. The Commission for Protection of Child Rights Act, 2005:

In order to give effect to the policies adopted by the Government for the protection of the rights of child The Commission for Protection of Child Rights Act, 2005 was enacted with a view to provide for the constitution of a National Commission and State Commission for Protection of Child Rights and Children Courts for providing speedy trial of offences against children or of violation of child rights .

The Commission National/State shall perform a number of functions which includes:

(a) examine and review the safeguards provided by or under any law for the time being in force for the child rights;

(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of these safeguards;

(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;

(d) examine all factors that inhibit the enjoyment of rights of child affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures;

(e) look into the matters relating to children in need of special care and protection;

(f) study treaties and other international instruments and undertake periodical review of existing policies and programmes and other activities on child rights;

(g) undertake and promote research in the field of child rights;

(h) spread child rights literacy among various sections of the society;

(i) inspect any juvenile custodial home or any other place of residence or institution meant for children;

(j) inquire into complaints and take suo motu notice of matters relating to deprivation and violation of child rights;

(k) Such other functions as it may consider necessary for the promotion of child rights.

The Act also says that for the purpose of providing speedy trail of offences against children or of violation of child rights, the State Government, may with the concurrence of the Chief Justice of the High Court, by notification, specify at least a Court in the State or specify, for each district, a Court of Session to be Children’s Court to try the said offences: For every Children’s Court, the State Government shall, by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a special Public Prosecutor for the purpose of conducting cases in that court .

Children are not an expense, they are an investment. They shape the future of the country. It’s the duty of the parents, NGO’s and the Government to see the care of every child by way of protecting their rights as a need to the county.

11. The Protection of Women from Domestic Violence Act, 2005:

This Act proposed to enact a Law keeping in view the rights guaranteed under Article 14 15, and 21 of Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrences of domestic violence in the society. According to The Protection of Women from Domestic Violence Act, 2005 “Domestic Violence” means any harm, or injury to health, safety, life, limb or well-being or any other act or threatening or coercion etc., by any member of family. An aggrieved woman who is, or has been, in a domestic or family relationship in the nature of marriage, adoption or are family members can complain. Aggrieved women, who have been subjected to any act of domestic violence by the respondent, can complain to the Protection Officer, Police Officer, Service Provider or Magistrate. The Magistrate receiving the Domestic Incident Report(DIR) which is equivalent to FIR may take up enquiry into the case which is called DVC (Domestic Violence Case). After receiving DIR issue notice to the respondent within 2 days and fix the 3rd as the date of hearing. Meanwhile, if the Magistrate deems it fit may issue exparte interim orders against the respondent such orders may be passed even after the appearance of the respondent as well pending issuance of reliefs prayed for by the aggrieved women. According to this Act after receiving the domestic incident report the Magistrate try the matter speedily and the court has the power to ban publication of proceedings held in camera. The aggrieved women can seek protection orders, residence orders, monetary orders, custody orders and compensation orders . The victims may be wives, sisters and mothers or any other female relative living in the share-household in domestic relationship. The respondents are males or may also be female. All orders of the Magistrate are appealable to the Sessions Court which disposes of the appeal as though it is a criminal appeal filed under Cr.P.C. There is no revision to the Sessions Court or the High Court against the orders of the Magistrate. The orders of the Sessions Court not being appealable to the High Court and the High Court may entertain revision against the orders of the Sessions Court. The Act by itself does not punish the respondent in the domestic violence case, but if the case discloses any offences punishable under the Penal Code or any other penal law, or under the Dowry Prohibition Act. As far as this case is concerned, it runs as a civil case and in the manner the maintenance under section 125 of Cr.P.C. or in the manner in which security proceedings are held by the Magistrate under the provisions of Cr.P.C.

12. The Protection against Sexual Harassment of Women Bill, 2005:

This Bill confers upon women the right to protection against sexual harassment, and towards that end for the prevention and redressal of sexual harassment of women. Every woman shall have a right to be free from sexual harassment and right of work in an environment free from any form of sexual harassment.

13. The Prohibition of Child Marriage Act, 2006:

After passing of this Act The Child Marriage Restraint Act, 1929 has been repealed. The object of this Act is to provide for the prohibition of solemnization of child marriages. According to this Act child means a person who, if male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age. Every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contraction party who was a child at the time of the marriage. Marriage of a minor child’s to be void in certain circumstances. Child marriage has been annulled by a decree nullity under this Act, every child begotten or conceived of such marriage before the decree is made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all purposes. This Act provides punishments for male adult marrying a child or for solemnizing a child marriage and for promoting or permitting solemnization of child marriage. Contravention of the provisions of this Act the person shall be punished and the offence is cognizable and non-bailable.

14. The Right of Children to Free and Compulsory Education Act, 2009:

This Act provides free and compulsory education to all the children of the age of 6-14 years. Act says that every child of the age of 6-14 years have a right to free and compulsory education in a neighborhood school till completion of elementary education. The child so admitted to elementary education shall be entitled to free education till completion of elementary education even after 14 years. The Appropriate Government may make necessary arrangements for providing free pre-school education like early childhood care and education for children above the age of three years to six years. No capitation fee and screening procedure for admission to a child or his/her parents or guardian. Contrary to this, receives capitation fee shall be punishable with fine which may extents to ten-times the capitation fee charged and to screening procedure, shall be punishable with fine which may extent to Rs.25,000/- for the first contravention and Rs.50,000/- for each sub-sequent contraventions.

Any person having any grievance relating to the right of a child under this Act, may make a written complaint to the local authority having jurisdiction and the authority decide the matter within a period of three months after affording a reasonable opportunity to the parties concerned. Aggrieved by the decisions of the local authority may preferred an appeal to the State Commission for protection of child rights constituted under the Commission for Protection of Child Rights Act, 2005.

15. The Protection of Children from Sexual Offences Act, 2012:

This Act came into force from November 14th 2012. The Act aims at protecting children from offences of sexual assault , sexual harassment and pornography and provides for establishment of Special Courts for trial of such offences. Until now, various provisions in the Indian Penal Code were used to deal with sexual offences. However the law did not make a distinction between an adult and a child. This is the first time different sexual offences against persons below the age of 18 years have been defined and specifically provided for. The object of the Act is to provide safety, security and protection of children against sexual assault, sexual harassment and pornography. The punishments provided in the law are also stringent and are commensurate with the gravity of the offence. The offence is considered ‘aggravated’ if committed by a person in a position of authority such as a public servant or member of the security forces. The criminal procedure law has been made widely applicable in dealing with cases under this Act. Any child offender has been directed to be dealt under Juvenile Justice (Care and Protection of Children) Act, 2000 that recommends rehabilitate measures other than penal actions for child offenders. Complaints under this law are to be filed before the Special Court of Session, which includes the power to impose punishment up to life imprisonment.

Personal Law Legislations:

Personal laws are applicable to the persons of particular religions and not applicable to all religions persons like general laws. Hence, Hindu laws applicable to Hindus, Muslim laws applicable to Muslims and Christian law applicable to Christians. Some of the special provisions are inserted for the protection of women in Religious Legislations, they are as follows-

1. The Hindu Marriage Act, 1955

2. The Hindu Adoption and Maintenance Act, 1956

3. The Hindu Minority and Guardianship Act, 1956

4. The Succession Act, 1956

5. The Muslim Women Protection Act, 1986

Judicial Approach:

The Supreme Court of India has touched on the issue of immoral human traffic in two prominent judgments, i.e.-Vishal Jeer vs. Union of India (1990) and in Gaurav Jain vs. Union of India(1997). These judgments directed the Government if India, among other things, to prepare a ‘National Plan to Combat Trafficking and Commercial Sexual Exploitation of Women and Children’. As a result of this, a Nation Plan was drafted in 1998 which lays down measures for prevention, rescue, rehabilitation and reintegration. In the matter of Visakha vs. The State of Rajasthan the Hon’ble Supreme Court laid down the definition of sexual harassment and gave its details of sexual harassment.

Society has to be controlled. Society can exist only under the shelter of the State, and the law and justice of State is a permanent and necessary condition of peace, order and civilization . India is a socialist State . According to the Supreme Court “The principal aim of socialism is to eliminate inequality of income and status and standard of life and to provide a decent standard of life to the working people”. Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. Socialistic concept of society should be implemented in the true spirit of the Constitution . The Constitution embodies a distinct philosophy and declares that India will be organized as a Social Welfare State .

Conclusion:

Though various Legislations are enacted for the protection of women’s and children’s rights various anomalies are also existed in legislations which must be amended for better protection of women’s and children’s rights to save the women and child. The Children are the nation’s asset and future resource of manpower for the country. They constitute the core of human society. It is their development, which sustains the society. Their development with dignity is a matter of great concern throughout the world .

It is to be noted that the legislations or Acts alone cannot eliminate the discrimination against women and child. In order to reduce the offences we must change the attitude and behaviour of men; and this has to start early in boyhood. Enlightened fathers, husbands and brothers are more likely to respect daughters, wife and sisters.


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