Category: Volume 1 Issue 3

THE ROAD NOT TAKEN: MAKING ADULTERY GENDER-NEUTRAL – VEDDANT MAJUMDAR

THE ROAD NOT TAKEN: MAKING ADULTERY GENDER-NEUTRAL

Author: Veddant Majumdar

Amity Law School, Delhi

ISSN: 2581-8465

ABSTRACT

Section 497 of The Indian Penal Code defining adultery and prescribing punishment for the same, has been criticized for being discriminatory towards women by treating them as husband’s possession. The said section is also discriminatory towards men by not punishing the women indulging in an adulterous act. In an episode of adultery, only the man participating in it would be held guilty and the woman participating in the said act of adultery would not be punished as an abettor. The law of adultery being oppressive towards women, treating them as chattel as men, has been struck down as unconstitutional by a five-judge bench of the Hon’ble Supreme Court of India in the case of Joseph Shine v. Union of India. However, it is pertinent to mention that the decriminalization of adultery is a tribute to the right to liberty, but also a threat to the social institution of marriage. This decision, primarily premised upon the intention of upliftment of women, is acting contrary to its cause. The penalization of adultery leads to the creation of deterrence, and in the absence of it in the present scenario, women have become mute spectators of their husband’s acts of infidelity. Considering the patriarchal setting of the Indian society, divorce as a civil remedy to adulterous acts is not a sound option. Women, quite sadly, are still dependent on their husbands to make ends meet. Therefore, the most appropriate solution to this problem is criminalizing adultery with a gender-neutral approach. It would ensure equality to men and women alike and would also create deterrence against adulterous acts, thereby strengthening the social institution of marriage and stabilizing the society. This paper analyses the shortcomings of decriminalization of adultery and provides a prospective solution by making the law of adultery in India, gender-neutral.

INTRODUCTION

Recently, a five-judge constitutional bench of the Hon’ble Supreme Court of India delivered a judgment decriminalizing adultery. The intent behind the same was noble and was to liberate women of the identity of being a man’s possession. The Hon’ble Supreme Court is to be applauded for its courageous take on such a volatile issue, however, the flipside of this judgment is too important to let it slip into oblivion.

This judgment ensures the individuality of a woman in wedlock and rightly so, but this would grant leeway to the acts of infidelity, thereby weakening the institution of marriage. Clean consciences of all people in marriages is a utopian concept and therefore, ensuring the absence of infidelity by providing a deterrent against it by criminalizing such acts is imperative. The law of adultery contained in section 497 of The Indian Penal Code is violative of equality on two grounds, namely:

  1. A married woman indulging in an adulterous act is not punished as an abettor.
  2. A husband has the right to consent for his wife to have sexual intercourse with a person outside the wedlock.

Thus, the law of adultery contained in The Indian Penal Code is biased towards both: men and women, in different respects. The opposite solution to remedy these flaws would be to make the law of adultery gender-neutral.  The Indian Penal Code Amendment Bill, 2017, introduced in The Lok Sabha by BJP MP Jagdambika Pal, rooted for an ideal solution by making section 497 of The Indian Penal Code gender-neutral. The following was the proposed language of the amended section:

497.[1] Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be spouse of another person, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”.

The substitution of the current section has been repealed by the Hon’ble Supreme Court’s judgment in the case of [2]Joseph Shine Vs. Union of India, by the above mentioned proposed amendment to section 497 of The Indian Penal Code, would serve the dual purpose of:

  1. Making the law of adultery gender-neutral in all respects.
  2. Acting as a deterrent against acts of infidelity in a marriage, thereby ascertaining the protection of the social institution of marriage and resulting in the stability of the society.

HISTORY

The law of adultery in India has always been a subject of contentious views. The landmark judgments which have laid down the journey of the law of adultery are discussed below ina chronological manner, to trace its development.

  • [3]In 1954, The Hon’ble Supreme Court in the case of Yusuf Abdul Aziz v. State of Bombay, observed that section 497 of the Indian Penal Code is not ultra vires of Articles 14, 15 and 21 of the Constitution. The apex court held that it is only the man who is liable for adultery and not the wife with whom the adultery is committed. The wife is saved from the purview of the section and is not punished as an abettor. It was held that ‘sex’ is a reasonable and sound classification accepted by the constitution, which provides that the State can make special provisions for women and children vide Article 15(3) of the Constitution.
  • [4]Then, in 1985, the Hon’ble Supreme Court of India, in Sowmithri Vishnu v. Union of India held that section 497 of the Indian Penal Code cannot be said to be violative of Article 14 on the ground that it makes an irrational classification between men and women. The Apex Court opined that a provision for hearing the wife is not contained in section 497 of the IPC, but it does not make the section unconstitutional as violating Article 21 of the Constitution. It is true that section 497 does not contain a specific provision for hearing the married woman, but that does not justify the proposition that she is not entitled to be heard at the trial if she makes an application to the court to that effect.
  • [5]In a recent judgment, the Supreme Court in the case of Joseph Shine v. Union of India ruled that adultery is not a criminal offence, thus, striking down a colonial-era law. Section 497 of the Indian Penal Code stated that adultery is defined as a person having sex with a man’s wife without taking prior consent from the husband. The law exclusively applies to men, women can neither be charged with adultery nor can they be the complainant. This ousted the wife’s position in an adulterous act; therefore, the wife’s consent played no role in the law. It didn’t look at women as an agency of their own, but merely as the husband’s possession

In 2017, Joseph Shine filed a petition challenging the aforementioned section. A three-judge bench, headed by the then Chief Justice of India, Dipak Misra, had referred the petition to a five-judge Constitution Bench which opined that the law does seem to be archaic and unjust. In four separate yet concurring judgments, the court struck down the law and declared that the husband is not the master of his wife, thereby repealing section 497 of the Indian Penal Code.

UNCONSTITUTIONALITY OF SECTION 497

The Hon’ble Supreme Court decriminalized adultery and repealed section 497 of the Indian Penal Code on the pretext of it being patently biased against women, treating women as the chattel of men, and thereby denying them the right to equality granted by the Constitution of India. [6]The Judgement delivered in Joseph Shine v. Union of India, was to protect the rights of women, as Justice D.Y Chandrachud pointed out, and rightly so, that section 497 of The Indian Penal Code undermines the autonomy, agency, and identity of women in wedlock.

Thus, the five-judge bench of the Hon’ble Supreme Court, comprising of the then Chief Justice of India: Justice Dipak Misra, Justice AM Khanwilkar, Justice D.Y Chandrachud, Justice R.F Nariman and Justice Indu Malhotra unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.

Articles 14 and 15 of the Constitution state the right of equality, with everyone being equal before the law irrespective of race, religion, caste, sex, and place of birth. Section 497 is prima facie discriminatory towards women, with the adulterer requiring the consent or connivance of the husband of the wife who is engaging in an adulterous act. If the husband so connives or consents, the said act would not be criminal anymore. However, if the husband is involved in sexual relations out of the course of the wedlock, with an unmarried woman, the wife’s connivance or consent is not sought for such acts of the husband. Such acts of the husband will not be considered criminal, irrespective of the wife’s consent or connivance in this regard.

Section 497 also stands to be discriminatory towards men in a different respect. The married woman who indulges in an adulterous act without the consent of connivance of her husband is not punished as an abettor and only the man with whom he said the adulterous act is committed, is held criminally liable.

Article 21 of the Constitution states the right to life and personal liberty. Section 497 of the Indian Penal Code deprives women of [7]the right to live with dignity’, which is an essential part of the right to life and personal liberty, as held by the Hon’ble Supreme Court in the case of Francis Coralie v. The administrator, Union Territory of Delhi and Ors.

Section 497 deprives married women of this right to live with dignity; when the husband of the wife has the right to consent to her sexual acts outside the purview of the marriage. This unjust provision deprives the married woman of autonomy over her own sexuality, which is demeaning to her identity and thus, violative of the right to live with dignity.

Therefore, section 497 of the Indian Penal Code has been rightly struck down as unconstitutional, but to protect the institution of marriage and to ensure stability in the society, making the law of adultery gender-neutral; while adultery still remains a criminal offence, working as a deterrent to prospective adulterers, is the right approach in all respects.

ONLY CIVIL REMEDY AGAINST ADULTERY NOW?

The judgment decriminalizing adultery also stated that adultery will be treated as a civil wrong as a ground for dissolution of marriages, but not as a criminal offence anymore.

It is a fundamental principle of criminal jurisprudence that the acts affecting the society and social institutions adversely, are included within the ambit of crime and are, therefore, criminally punishable. Marriages are affected adversely by adulterous acts of the participating parties and marriage being a social institution, criminalizing adultery is a lawfully sound course of action.

The Hon’ble Supreme Court itself has acknowledged that marriage is a social institution in the case of [8]Indra Sarma v. V.K.V Sarma., The Hon’ble court stated in paragraph 24 of the judgment:

Marriage and the family are social institutions of vital importance. The institutions of marriage and the family are important social institutions that provide for the security, support, and companionship of members of our society and bear an indispensable role in the nurturing of children.

The apex court again reiterated its stance on marriage is a social institution in the case of [9]SmrutiPahariya v. Sanjay Pahariya, wherein it stated in paragraph 21 of the judgment that

Marriage is an institution of enormous social relevance.

Time and again it has been brought to notice by the Hon’ble Supreme Court that marriage is a social institution, and a result of which, acts such as adultery; which adversely affect this social institution, are to be criminalized in coherence with the principles of criminal jurisprudence. It is, therefore, respectfully submitted that the five-judge bench of the Hon’ble Supreme Court which decriminalized adultery, overlooked the social character of the institution of marriage; which makes it permissible to criminalize adulterous acts which adversely affect this social institution of marriage. Hence, only a civil recourse being available against adulterous acts is a flawed opinion and against the tenets of criminal jurisprudence.

IMPACT OF DECRIMINALISING ADULTERY

[10]While the judgment decriminalizing adultery is bound to have a deep impact on marriages in India, the flipside of it cannot be overlooked. In a country witnessing upheaval in divorce rates and cases of marital infidelity, the decriminalization of adultery will significantly endanger the social institution of marriage. Not only does it give a leeway to the risk of fostering extra-marital affairs, divorce being left as the only recourse against adultery will patronage the break-up of marriages, but little children of the said marriages would be left in the lurch too.

[11]The Delhi Commission for Women (DCW), in a press release, has expressed its opposition and disbelief over the Supreme Court verdict that decriminalized adultery.DCW Chief, Swati Maliwal, in the statement, expressed that an open license to have illegitimate relationships has been given to the married citizens of the country. She said that the law against adultery should have been made gender-neutral by criminalizing the adulterous relationships by women as well men by the apex court. Decriminalizing the acts of adultery itself is adding to the woes of women, instead of providing a solution. The press release revealed that thousands of complaints are addressed to the DCW from women, husbands of whom participate in extramarital relationships and thereafter abandon them. These women, along with their children are rendered with no support whatsoever from their husbands and struggle to actuate the most appropriate legal recourse available.

In the patriarchal setting of our country, decriminalizing the act of adultery would only add to the pain of such aggrieved women. The judgment delivered by the Hon’ble Supreme Court of India was to safeguard the interests of women and their identity in a marital tie, but ironically it added fuel to fire as far as the situation of women seeking recourse to adulterous acts of their respective husbands is concerned. The penal law which acted as a deterrent against adulterous acts is now a relic of the past!

CONCLUSION

Section 497 of the Indian Penal Code is no doubt, ex- facie unjust towards both: men and women in different respects. The law of adultery contained in section 497 of The Indian Penal Code is violative of equality on two grounds, namely:

  1. A married woman indulging in an adulterous act is not punished as an abettor.
  2. A husband has the right to consent for his wife to have sexual intercourse with a person outside the wedlock.

Moreover, it is also infringing upon the right to live with the dignity of a woman, as it seeks the consent or connivance of the husband of such a wife, for her to have sexual intercourse out of the wedlock. Having obtained this consent or connivance of the husband, he said of sexual intercourse is not considered an adulterous act anymore. This implies that the sexual autonomy of the wife vests with her husband, which is violative of her right to dignity. It denies to grant the wife an identity of her own and treats her like her husband’s possession. This section is fallacious, but doing away the criminality of adultery is not the solution. It would only weaken the institution of marriage and encourage acts of infidelity in the absence of a deterrent. Making the penal law of adultery gender-neutralize, therefore, the most appropriate option and would go a long way in catering to the dual objective of:

  1. Preserving the social institution of marriage and stabilizing the society; and
  2. Ensuring equality and dignity of the parties in wedlock, while creating a deterrent against adulterous acts.

[1]The Indian Penal Code (Amendment) Bill, 2017, S.497

[2]Joseph Shine v. Union of India; AIR 2018 SC 4898

[3]K.D Gaur, Textbook on Indian Penal Code, page no. 1053, (sixth edition)

[4]K.D Gaur, Textbook on Indian Penal Code, page no. 1055, (sixth edition)

[5]Jyotsna Raman, Adultery no longer a criminal offence in India: 5 things the judgment said,thenewsminute.com, (25th June, 2019, 2:00 pm), https://www.thenewsminute.com/article/adultery-no-longer-criminal-offence-india-5-things-judgement-said-89067

[6]Supra Note. 2

[7] Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Ors; AIR1981SC746

[8]Indra Sarma v. V.K.V Sarma; AIR 2014 SC 309

[9]SmrutiPahariya v. Sanjay Pahariya; AIR 2009 SC 2840

[10]AbhaSingh,Decriminalisation Of Adultery – A Setback To The Institution Of Marriage In India, outlookindia.com (1st July, 2019, 9: 00 am) , https://www.outlookindia.com/website/story/decriminalisation-of-adultery-a-setback-to-the-institution-of-marriage-in-india/317282

[11] Mirror Now Digital, Adultery law abolished: DCW disappointed with SC judgement, invites those in favour to interact with victims, (4th July, 2019, 4:00 pm), timesnownews.com, https://www.timesnownews.com/mirror-now/in-focus/article/adultery-law-section-497-abolished-by-sc-dcw-chief-swati-maliwal-disappointed-with-supreme-court-judgement-invites-those-in-favour-to-interact-with/290971

DNA TECHNOLOGY REGULATION BILL – CHHAYA LALWANI

DNA TECHNOLOGY REGULATION BILL

Author: Chhaya Lalwani

Law college Dhanbad

ISSN: 2581-8465

ABSTRACT:

The present article deals with proposed legislation named DNA TECHNOLOGY REGULATION BILL 2019 which was introduced in the parliament on July 8th, 2019.

A similar bill was passed in Lok Sabha in January but it could not be cleared in the Rajya Sabha. The bill had then lapsed with the dissolution of the previous Lok Sabha.

The proposed law, which has been in the making since at least 2003, is the third attempt by the government to enact a law to regulate the use of DNA technology in the country after an earlier version of the Bill had been finalized in 2015 but could not be introduced in parliament. The article highlights the key features, provisions, setbacks, the advantage of the Bill. Despite many setbacks in the legislations, there is a major advantage from this that is there will be no loopholes in the criminal justice system and rendering of justice would be a step closer. There is another advantage that DNA is conclusive evidence as “DNA DOES NOT LIE”

INTRODUCTION

The DNA TECHNOLOGY REGULATION  Bill 2019 that provides for the regulation of use and application of DNA technology for establishing the identity of certain categories of persons, including offenders, victims, suspects, and undertrials, was passed in Lok Sabha on this Monday, July 8, 2019. The bill also is known as the Human DNA Profiling Bill. Bill is formulated by the Center for DNA Fingerprinting and Diagnostics, Hyderabad.

Union Minister of Science and Technology Dr. Harsh Vardhan recently introduced ” The DNA Technology ( Use and Application) Bill, 2019.”

This Bill seeks to expand the application of DNA – based forensic technologies to support and strengthen the justice delivery system.

This is the third attempt of the parliament regarding the bill. It is a piece of technical legislation

A similar bill was passed in Lok Sabha in January but it could not be cleared in the Rajya Sabha. The bill had then lapsed with the dissolution of the previous Lok Sabha. The proposed law, which has been in the making since at least 2003, is the third attempt by the government to enact a law to regulate the use of DNA technology in the country after an earlier version of the Bill had been finalized in 2015 but could not be introduced in parliament. The congress was against the introduction of the bill, raising privacy and other security concerns.

History of the Bill

In the year 2000, a  meeting i.e.the International Congress was held on how biology was impacting society The members of the meeting included the then Prime Minister  Dr. APJ Abdul Kalam and Ananda Chakravarty, who was the 1st person to file a patent on living forms.

After the talks, a committee was set up and it recommended to bring in action The DNA Technology Bill. After the enactment of this bill DNA would become admissible in the courts.

In 2000, The bill was then presented to the Ministry of Science and Technology in 2002 and since then it has passed through various phases.

Salient features of the Bill

1.Formulation of  National DNA Data Bank and Regional DNA Data Bank

Every Data Bank will maintain the following indices: (i) crime scene index, (ii) suspects’ or undertrials’ index, (iii) offenders’ index, (iv) missing persons’ index, and (v) unknown deceased persons’ index. The bank would be the repository of all DNA samples collected from various people under specified rules.

2.  Formulation of Regulatory board with a view  to authorize laboratories across the country and provide Framework for collection and removal of DNA information

And prepare schedule which lists down circumstances/ provisions of the law under which the DNA information collected can be used.

Further, the board would frame the rules and guidelines for DNA collection, testing, and storage,

3. Under the Bill, written consent by individuals is required to collect DNA samples from them. However, Consent is not required for offenses with a punishment of more than seven years of imprisonment or death.

4. It also provides for the removal of DNA profiles of suspects upon the filing of a police report or court order, and of undertrials on the basis of a court order.

Profiles in the crime scene and missing persons’ index will be removed on a written request.

The government has insisted that the Bill will merely expand the “application of DNA-based forensic technologies to support and strengthen the justice delivery of the country”, activists and civil society members claim that the Centre has ignored privacy and security concerns.

The Law Commission, which submitted the final version of the DNA-Based Technology (Use and Regulation) Bill, 2018 to the government in 2017, did not examine the Bill in light of two important privacy-related developments.

The Law Commission finished its deliberations regarding the bill by July 2017, a month before a nine-judge bench of the Supreme Court ruled in Puttaswamy vs [1]Union of India that Indians enjoy a fundamental right to privacy. In its report, the Law Commission made multiple allusions to the then-impending privacy judgment and stated that “whether in Indian context privacy is an integral part of Article 21 of the constitution is a matter of academic debate. The issue is pending consideration before a larger bench of the Supreme Court.”

Secondly, the Law commission’s report preceded Justice Srikrishna’s report [2]which laid down the rights of ‘data principals’ (Indian citizens), proposed the creation of a data authority to enforce the Act and set penalties for violations by ‘data fiduciaries’.

Benefits of this bill; especially with regard to the criminal justice system:

  •  Help in solving crimes and quick identification of missing persons and resolving criminal cases in which repeat offenders might be involved. According to a brief [3]published by PRS Legislative Research, “This includes offences under the Indian Penal Code, 1860, as well as offences under other laws such as the Immoral Traffic (Prevention) Act, 1956, the Medical Termination of Pregnancy Act, 1971, the Protection of Civil Rights Act, 1955, and the Motor Vehicles Act, 1988.”
  • Thus, it will support and strengthen the justice delivery system of the country.
  • It will further bring about efficiency and improve the judicial system as the pending cases will be resolved in a speedy manner.
  •  It even tackles paternity issues, progeny issues, IVF issues, etc.
  • Help in  Criminal Justice System: DNA admitted as evidence now in criminal cases. This will improve conviction rates.
  •  National Security: We are victims of terrorism, fugitives change identities & escape. Usage of DNA will help in reducing cases that are disposed of due to lack of evidence.
  • The proposed bill gives a fillip to the development of a uniform code of practice in all laboratories involved in DNA testing throughout the country. This will aid in scientific upgradation and streamlining of DNA testing activities in the country.
  • It is the need of the hour.
  •  Not only the text of the law but the operating regulations will also be important as well.
  • The Bill is expected to fast-track criminal cases in which DNA evidence could prove especially conclusive.
  • Civil Cases: Will help in identifying the missing persons.
  •   Provision of consent in self-incrimination cases.
  • Game changer as a futuristic technology

The debate around the bill/ issues or concerns regarding the bill

The debate in the Lok Sabha focused on the potential for misuse of the Bill, consent, and privacy.

On the first count, Harsh Vardhan, Union science and technology minister, said that the potential was there as with any other laws, implying that its safe implementation came down to enforcement.

 Use of DNA for Civil purposes: In the earlier bill, the consent requirement for DNA usage in civil cases was missing. 

DNA data if shared with health agencies may increase the insurance price if they find any susceptibility to disease.

However, DNA profiling is just a genetic signature and can only identify the person. It doesn’t disclose any other information about the person. DNA Storage & deletion of data:  DNA profile can be removed if given in writing.

Privacy concerns for people with storage of data- affects Article right to life. However, the storage of DNA is beneficial in identifying unclaimed bodies & give it back to persons.

DNA material is limited to investigator & destroyed after use i.e. should not be passed to any other agencies.

A comprehensive roadmap for capacity building: training of police & investigator.

Must bring the data protection law to assuage the concerns of people for privacy issues. Data protection law must come first

For DNA storage: basic facilities can be upgraded.

Technical legislation must be consulted with technical people to allay the fear of parliamentarians.

DNA technology bill is the need of the hour. Deliberations, discussions & technical scrutiny by the parliamentary standing committee should be at a faster pace Capacity Building and training of police officers DNA technology is being used even for proving Civil Offences.

DNA can reveal more than required information about an individual like health issues etc.

DNA once collected and investigated if not destroyed can be used by insurance agencies to charge one heavily on the suspects of future ailments.

One of the provisions of the bill states that DNA information of an individual can be deleted if he/ she gives in writing and then in the case of disaster identification of the individual will be impossible.

There should be delimitation on the usage of DNA to only that part which establishes identity.

DNA Data Protection is the most important.

PROBLEMS IN ENACTING THE BILL

The latest draft is rid of many of these problems but still retains a few. For example, written consent is required from everyone for their DNA samples to be collected, processed and included in the database except for those who have committed crimes with a punishment of 7+ years or death. However, similarly, specific instruction is missing for the collection of DNA samples for civil matters. Such matters include parentage disputes, emigration or immigration and transplantation of human organs. The Bill also doesn’t state that the consent has to be voluntary.

Second, it’s not clear if DNA samples collected to resolve civil disputes will also be stored in the databank (regional or national), although there is no index specific for the same. If they will be stored, then the problem cascades because the Bill also does not provide for information, consent and appeals, i.e. if a person’s DNA data has entered the databank, there is no process specified by which they can have it removed. All of these issues together could violate the right to privacy.

A nine-judge bench of the Supreme Court had ruled in August 2017 that the right to privacy is a fundamental right. They had also specified that should an activity need to violate the need, it should also meet three conditions: there should be a law describing/defining the specific activity, the law must have a public purpose and the purpose should be “proportionate” to the violation of privacy. While the DNA Bill may not clear the second condition, it remains to be seen if the use of the Bill to do good – so to speak – will allow it to jump over this barrier.

Third, there’s also the question of whether the DNA labs accredited by the Regulatory Board are allowed to store copies of the samples they analyze – and if so, how the owners of those samples can ensure the data is safe or needs to be removed from their own indices. In fact, going a step further, it’s unclear if the Regulatory Board will oversee other tests performed at the accredited labs.

This could become necessary because, unlike one’s biometric data or PAN number, the human genome contains lots of information about every individual. So a test undertaken to ascertain a person’s identity by analyzing her DNA will in the process also reveal a lot of other things about that person, including information about their ancestry, diseases to which they are susceptible, etc. – i.e. information that the individual has a right to keep private.

This also highlights a fourth – and major – issue with the Bill: it does not specify which parts of an individual’s DNA can be analyzed to ascertain their identity. The more parts are subjected to analysis, the more conclusively a person’s identity can be established. But this can’t be used as a license to parse more than is necessary because then the DNA lab is also likely to reveal more information than it has the right to seek.

WHY BILL WAS DELAYED? Due to the Opposition of the introduction of the bill by the Congress leader in Lok Sabha Adhir Ranjan Chowdhury by stating that the Bill violates fundamental rights as DNA of undertrials can be collected without court orders. Describing the draft law as “flawed”, he said there is no provision of consent on the storage of DNA data.

Further, Another opposition by Congress leader Shashi Tharoor alleged that the bill would institutionalize a “surveillance state” and suggested that a data protection law should be put in place first. “You cannot put the cart before the horse,” he said. However

Minister for science and technology Harsh Vardhan, who introduced the Bill, said there is “no serious substance” in the concerns raised by members. He also pointed out that several rounds of consultations have been undertaken and the measure has been pending for nearly a decade. He reminded members that a similar bill was passed by the previous Lok Sabha too after long deliberations.

Will this Bill help the Judicial system or Not?

The bill will empower the criminal justice delivery system by enabling the application of DNA evidence, which is considered the gold standard in crime investigation.

Currently, this bill proposes to use DNA samples in both criminal and civil cases for which the objections were raised.

The consent of the individual should be obligatory. DNA can reveal a lot of information.

The bill proposes that DNA profiling to be completely neutral meaning thereby to be used only for the purpose it is taken for.

• The data banks are required to store information under one of the five indices:-

 1) A crime scene index

 2) A suspect or undertrial index

 3) An offender’s index

 4) A missing person index and

 5) An unknown deceased person index.

• Also, the data banks are supposed to store only that information that is necessary to establish the identity of the mission.

SUGGESTIONS:

The bill should be referred to Standing committee for the following reasons:

Reason 1: Puttaswamy judgment and Srikrishna report

The DNA Bill was not examined, either by the government or the Law Commission, in the context of two recent and important privacy-related developments.

The first is the ‘right to privacy’ judgment, or Puttaswamy vs Union of India[4], which came out in August 2017 and held that all Indians enjoy a fundamental right to privacy. The judgment – which overruled verdicts given in the M.P. Sharma case of 1958 and the Kharak Singh case of 1961 – ruled that the right to privacy is intrinsic to life and liberty and thus comes under Article 21 of the constitution.

The Law Commission, which finished its deliberations by July 2017, a month before the right to privacy was guaranteed, could not consider or ensure that it worked in the full import of the Puttaswamy judgment into the Bill.

In fact, the Law Commission’s report makes multiple mentions to (at the time) the impending privacy judgment.

At one point it makes reference to M.P. Sharma and Kharak Singh and notes that the court has “referred the matter to a larger bench for authoritative interpretation of the law on the issue”.

At another point, in the ‘conclusions’ section of its report, the Law Commission acknowledges that the 2017 Bill “provides provisions intended to protect the right to privacy”, but grimly states that in India, it is a “matter of academic debate” as to whether privacy is an integral part of Article 21 of the constitution.

As we know now, it is indeed an integral part of Article 21 and has been upheld by the Supreme Court. Why does this matter? It is crucial because as privacy experts point out[5], the 2017 Bill still hasn’t tightly defined how exactly DNA profiling can be used and is missing a “number of safeguards that would enable individual rights”. A parliamentary standing committee would do well to see how well the DNA Bill conforms to the Puttaswamy judgment.

The second context in which the Bill must be examined is the Justice Srikrishna report which is yet to be released. This report, which has been delayed, will provide a framework for data protection and privacy and hopefully lay down foundational principles on how public and private entities must treat an individual person’s data.

Reason 2: Is India’s law enforcement system ready?

While the DNA Bill originated in the Ministry of Science and Technology, its actual use and utility lie with India’s law enforcement agencies. In this context, it is odd that the DNA Bill hasn’t been subjected to an in-depth review by the home affairs ministry or law enforcement agencies.

While both parties appear to have replied in brief[6] to a few issues surrounding the Bill in the Supreme Court, in response to a PIL petition filed by the Lokniti Foundation, that is not nearly enough.

While DNA profiling and testing have been used before in criminal investigations in India, the lack of proper infrastructure and technical know-how has restricted it from being used in a widespread or effective manner.

As at least one member of the expert committee that reviewed the 2012 version of the DNA profiling Bill noted, the way local police and law enforcement agencies interact with and collect samples is of paramount importance.

There are risks of contamination, risks in the chain of custody and risks in how the crime site is treated.

Indian police investigations have been sharply criticized for their shoddy forensic techniques. What is further worrying is that the home ministry only recently circulated[7] a set of guidelines on how investigating officers should “search crime scenes and scientifically collect, store and transport DNA samples in criminal cases”.

If the Bill was referred to a standing committee, it could assess the state of readiness of India’s police and whether that would make the DNA Bill a good or bad idea. Specifically in the context of whether the law enforcement system is equipped to handle it in a secure and responsible manner. After all, the implications of being found on the database are serious.

Reason 3: How much is this going to cost?

Like most large-scale technological systems in India, the proposed DNA database project has suffered from the lack of a cost-analysis study.

The Indian government, however, has maintained that the whole project will cost only Rs 20 crore.

This, on the face of it, appears to be a ridiculous under-estimate. The Wire has shown,[8] the cost of just acquiring the DNA samples from people arrested in India on criminal charges alone could be over Rs 1,800 crore. This figure is based on costs put out by India’s nodal DNA profiling agency, the Centre for DNA Fingerprinting and Diagnostics (CDFD).

A standing committee should look at this and more.

Reason 4: Caste, fidelity, and silo-linking

Civil society stakeholders have maintained over the years that the new system should not further contribute to the institutional bias that is already present in the existing DNA identification.

Law enforcement techniques that involve the use of DNA technology often rely on the practice of ‘cold hits’, where DNA databases are searched even if there isn’t an investigative lead. This practice, combined with the reliabilities that come with DNA testing, proves to be deadly for already vulnerable populations (Dalit communities) that are at increased risk of police bias.

A standing committee should look into this before any law is passed and before any database can be created.


[1]http s://thewire.in/law/supreme-court-aadhaar-right-to-privacy

[2] https://thewire.in/tech/india-template-data-protection-draft-bill

[3]http://prsindia.org/sites/default/files/bill_files/Legislative%20Brief-%20DNA%20Regulation%20Bill%202018.pdf

[4] https://thewire.in/law/supreme-court-aadhaar-right-to-privacy

[5] https://www.hindustantimes.com/analysis/here-s-why-we-need-a-lot-more-discussion-on-india-s-new-dna-profiling-bill/story-CojTDv2vfMMMBsW0CaLxIP.html

[6]https://www.outlookindia.com/website/story/process-to-bring-in-human-dna-profiling-bill-has-begun-government-tells-supreme-/299696

[7] https://economictimes.indiatimes.com/news/politics-and-nation/home-ministry-guides-states-on-searching-crime-scenes-collecting-evidence/articleshow/64940735.cms

[8] https://thewire.in/health/modi-wants-the-dna-profiling-bill-passed-right-away-heres-why-it-shouldnt-be

AN OVERVIEW OF CHILD SEXUAL ABUSE IN INDIA – SNIGDHA PANIGRAHI

AN OVERVIEW OF CHILD SEXUAL ABUSE IN INDIA

Author: Snigdha Panigrahi

ULC Bhubaneswar

ISSN: 2581-8465

Abstract

The World Health Organization defines child sexual abuse as “the involvement of a child in sexual activity that he or she does not fully comprehend and is unable to give informed consent to, or for which the child is not developmentally prepared r else that violate the laws or social taboos of society.”Our country is home to 19% of the world’s children. It is a real and serious problem in India which is veiled in secrecy as it is in other countries of the world. Such incidents at a small age hamper the psychological, physical, behavioral, and interpersonal well being of the child. People don’t report due to fear of being outcaste from society, fear of losing dignity, communication of gap between child and parents. There is a dearth of various monitoring authorities and a lack of effective implementation of the existing laws. The issues are wide, intricate and challenging to study. This article focuses on the child sexual abuse scenario in India, the laws and flaws in the system.

“Safety and securities don’t just happen, they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear”.-Nelson Mandela

India is a rich country in its culture and tradition. Kautilya was of the view that infants should be taken proper care and it is our duty and responsibility to see that they develop and prosper in a proper environment. But the children live a life of fear, neglect, abandoned, exploited and the road ahead for them is full of darkness. The ugly and uncalled exploitation of children is a regular phenomenon in our country. Despite the national and international measures, they continue to be exploited. There are various forms of exploitation out of which sexual abuse is the heinous one. Sexual exploitation includes child prostitution, child trafficking, child sex tourism, child pornography, pedophilia, drug peddling, etc.

India is becoming a hub for child prostitution. Immoral Traffic (Prevention) Act, 1956 defines prostitution as, “sexual exploitation or abuse of persons for commercial purposes”. The reasons for entering such a barbaric act is the socio-economic conditions prevailing in the families that the children come from. The tribal community of Bedia that resides along the Jaipur Highway outside Bharatpur takes pride in their family business which is “Prostitution”. Customarily, were entertainers in Rajasthan and Madhya Pradesh. It was their occupation for the women and girls to perform for feudal lords. With the changing times, Prostitution has become their family tradition. Adolescent girls have initiated into the family ‘tradition’, while their brothers become ‘agents’. According to Prof K. K. Mukherjee, former head of the department of social work, DU, “There are 91 families in Khakranagla. Of these, 75 are of Nat, Bedia, and Gujjar castes 46 of them engage in sex work.”  Apart from the Bedia, there are other tribal communities such as the Kanjars, Nuts and Sanshis who takes up prostitution as their primary source of income.

Child trafficking across borders is a major international concern. UNICEF defines it as “A child has been trafficked if he or she has been moved within a country, or across borders, whether by force or not, with the purpose of exploiting the child”. The state of West Bengal and Rajasthan provides an easy route for the trafficking of children. According to 2017 Reuters report, 9,104 children were trafficked last year which is a 27 percent increase from the previous year. The reasons for considering the child as a commodity vary depending upon the purpose of trafficking. However, common reasons for buying and selling of a child are economic backwardness, illiteracy, and ignorance. This system operates in an organized manner where the agents are none other than friends, teachers, social workers, politicians, travel agents, etc. who promise good jobs and a better future.

The World Tourism Organization defines sex tourism as “trips organized from within the tourism sector, or from outside this sector but using its structures and networks, with the primary purpose of effecting a commercial sexual relationship by the tourist with residents at the destination”. The child sex tourists are individual who travel foreign countries to satisfy their sexual urge and engage in sexual activity with children by attracting them with gifts and incentives. Child sex tourism is prevalent in Goa, North Karnataka, Kerala, Tamil Nadu, Orissa, West Bengal, and Rajasthan. The agents involved in this crime are adult sex workers, rickshaw pullers, travel agencies, petty traders, etc. Another aspect also considered as a reason is the prevalence of a “devdasi system”. The girls are dedicated to the deities and are forced prostitutes who are there to entertain males in order to invoke the blessings of God.

Child pornography has emerged as a form of sexual abuse. Children of poor families and street children fall prey to the foreigners. The advancement in science and technology is affecting the children and they are exposed to inappropriate material on sex. Excessive use of phones acts as a major instrument of spreading and sending such material. Cheap CD’s and DVD’s containing such pictures are easily available in the market. The internet is flooded with such explicit content. The Indian Cyber Army director Kislay Chaudhary said, “The content and consumers of child pornography are growing at a sharp rate. There are no exact statistics but our findings show that search engines get over 1,16,000 queries every day related to child pornography,”

The United Nations Convention on the Rights of the Child, 1989 under Article 34 states, States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. In 2000, the General Assembly of the United Nations adopted the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Article 3 of the Optional Protocol requires States Parties to criminalize “producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in Article 2.”. Section 292, 293, 294 of IPC, 1860, criminalizes publicity and circulation of obscene literature, doing obscene acts, reciting obscene songs, uttering obscene words in public. Sec .67 of the IT Act, 2000 prohibits publication and transmission of obscene material in electronic form. Sec. 67A deals with publication and transmission of sexually explicit material. Sec.67B provides for punishment for publishing or transmitting of material depicting children in sexual activity in electronic form. Section 67C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe. The Protection of Child from Sexual Abuse Act, 2012 is a robust legal framework to combat offences against children such as sexual assault, sexual harassment, and pornography. This act was a need because of several reasons like the sections of IPC are not gender neutral whereas POCSO Act is gender neutral, reflection of different surveys conducted by the government, less efficacy of IT Law and increase in a number of child abuse cases according to the reports of NCRB. In 2018, the POCSO Act amended Section 42 to insert Section 376DA, 376DB of IPC, 1860. Sec. 376DA provides where a woman under 16years of age is raped by one or more person, then each of them shall be imprisoned for the remainder of that person’s natural life with fine and Section 376DB provides for imprisonment for life and fine or with death where the women are below 12 years of age. The death penalty which was inserted by the Criminal Law (Amendment), 2018 came to the center stage after the Jammu Kashmir’s Kathua and Uttar Pradesh’s Unao rape case leading to a massive outcry across the country.  The POCSO Act may appear to be an ideal piece of legislation but there are several conceptual problems and cornerstones to the Act. For example- the act does not cover the consent given by persons under 18 years. This means that if a 17-year-old girl had sexual intercourse with a 19-year-old guy, then the 19-year-old the guy is booked under this Act. There is no clarity on the issue that when two minors have sexual relations who is the child in need of care and protection and who is the child in conflict with the law because technically both of them is a child in need of care and protection and child in conflict with the law. The Act remains silent on what documents are to be considered for proving the age of the child. Rule 12 of the Juvenile Justice Rules recognize both certificates, matriculation certificates but those who produce other documents like passport have to undergo a bone ossification test, giving the rough estimate of the child’s age. There is a large number of cases under the POCSO Act and the conviction rate is low which challenge that the nation is yet to surmount. Insufficient courts, judges are not subject experts due to lack of additional training by the State government or their interest in such laws, long drawn out legal process, existing legal infrastructure add to the series of challenges.

With the increasing reports of child abuse in the media, it barely inspires confidence in the criminal justice system of our country. There is a need for reassessment of working of the criminal justice system and take measures to tackle the problems in the implementation of the act. These cases often go unreported and unseen due to the callousness of the parents, teachers, etc., the social stigma attached to them, lack of interest from the investigating agencies, lack of awareness and poor implementation of the Act. It is our duty to take care of such offences against children as early as possible because they are vital for the development and progress of the society and nation.

References-

1.      Paras Diwan & Peeyushi Diwan , Human rights and The Law, Universal and Indian, Deep & Deep Publications,1996

2.      Malik and Raval, Law & Social transformation in India, 3rd  Edi. Allahabad Law Agency,2011

3.      Saritha  Vashistha, Crime against Children, 1st  Edi. , K.K. Publication, 2012.

4.      Anjani Kant, Law relating Women and Children, First Edi. Central Law Publcation, 200

5.      http://indiankanoon.org

6.      http://medspcae.com

7.      www.thehindu.com

8.      www.childlineindia.org.in

SEXUAL HARASSMENT OF WOMEN AT WORKPLACES IN INDIA AND THE LAWS GOVERNING IT – YASH KEDIA & ANJALI VISHWAKARMA

SEXUAL HARASSMENT OF WOMEN AT WORKPLACES IN INDIA AND THE LAWS GOVERNING IT

Author: Yash Kedia

C0-Author: Anjali Vishwakarma

The ICFAI University, Dehradun.

ISSN: 2581-8465

Abstract: –

Gone are the days when men used to be the one who brings home the bacon. Now, both men and women are working together with equal rights and opportunities. After globalization, there has been a significant change in the status of women worldwide. Women are also stepping out of their houses to work and earn. But this exposure is making these working women more prone to sexual harassment at the hands of men.

Sexual harassment is a complex issue, that results in the violation of the basic fundamental rights of women, that is Right to Equality under article 14 and 15 of the constitution of India and also her Right to Life and to live with Dignity under article 21 of the Indian constitution. Measures have been taken and are still being taken to deal with the consequences of such a problem.

In this paper, the origin of sexual harassment has been taken from the case of Bhanwari Devi together with some parts of the theVishaka judgment, which resulted in the enactment of THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION, AND REDRESSAL) ACT, 2013. This paper discusses the reason behind sexual harassment of women, and the #ME TOO movement, which took the world by storm by this issue. Finally, the current paper recommends that the need of this era is to look closely over this issue and provide for better preventive measures that could better access the situation.

Keywords:-Bacon, Globalization, Era, Strenuous, Prone, Consequences, Recommends

Introduction: –

No doubt, there is a massive increment in the rate of women employment worldwide. But this massive increment has also led to many evil practices, such as gender discrimination, especially, sexual harassment at workplaces. By the changing time, sexual harassment at workplaces is taking new shape and the male colleagues, employers, supervisors always tries to find new ways to make contact with their women employees either by touching them, or by talking to them in a seductive manner which creates an unhealthy atmosphere and also affects the working and productivity of that particular women.

Sexual harassment at workplaces has been recognized as one of the, most cruel offences as well as the most frightening form of violence that almost every working women experiences at some point of time, either in their office or on the way to their work. But there are very few registered cases or public records for these types of incidents because if the affected women try to loud her voice against it, she becomes subject to worst crimes like assault, rape, acid attack, murder, etc. And surely these incidents led to the devaluation of women and the domination of men.[1]

Background:

In India, all this started with the case of Bhanwari Devi, who was a social activist in one of the villages of Rajasthan. She worked under the state government’s Women’s Development Programme (WDP) as a Saathin(Friend) since 1985, to stop all the evil practices that were being done against women in the society. During the course of her work, she tried to stop the marriage of a girl who was merely one(1) year old but was unsuccessful. Her trying to stop the marriage, made her the enemy of that family and the men of that family wanted to teach her a lesson. She also reported all this to the local authority, but no action was taken by them and she was brutally gang-raped by those men. Later, based on the facts of the case and also the judgments of the trial court and the High court, a PIL was filed by other women groups and an NGO named VISHAKHAagainst the State of Rajasthan and the Union of India, before the apex Court. Subsequently, the three judges bench of the apex court passed a landmark judgment in 1997, which is commonly known as the Vishakha Judgement. The guidelines of this judgment later came into an extensive form with an enforcing law named, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. All the provisions given under this act has provided working women with a sense of security from sexual harassment at their workplaces, irrespective of their age, color, caste or employment status. By providing them with a safe and secure working atmosphere, the organization could get the best outcome from these female employees.

Reasons behind sexual harassment at the workplace: –

There are numerous reasons behind the sexual harassment that takes place in our country but the most important one is the culture and value system and the relative power and status of the men and women in our society. Talking about values and principles, there’s a huge difference between how both genders are brought up. The way in which men and women are brought up in India strongly influences their behavior in society. Women often lack confidence because of the way they have been socialized and are customized to suffer in silence.

Right from the beginning women are taught that ” They are supposed to be in the custody of their father when they are children, they must be under the custody of their husband when married and under the custody of her son in old age or as widows. In no circumstances, she should be allowed to assert herself independently. This kind of upbringing makes these women dependant on men. They are so much brainwashed from the very beginning that they believe without hesitation that they are inferior to men and hence never revolt but accept this attitude of men and suffer without saying a word. While men are exposed to numerous opportunities, women are often given less exposure and thus make these women vulnerable to crimes like sexual harassment.

The fault lies in the past. It’s our thinking about the female gender that there is so much suffering on the part of these women. After two thousand years of ” civilization “, women are still considered inferior to men by most cultures even in developed or developing countries. Though men and women are the sides of the same coin and contribute together for the family and upliftment of the society, women are looked down with bias and prejudice even in their own family and men tend to carry the same belief in themselves and as a result, they harass women who emerge superior to them.

According to patriarchy, women belong to the kitchen and they should not go out of their dens to earn a living because this is the supposed “Men’s World”. This kind of atmosphere makes men superior to women and men often take advantage of this. Such patriarchal viewpoints create an atmosphere that allows men the freedom of sexual harassment in the workplace, while women remain vulnerable. Women are taught to suffer in silence and not to raise their voices. Because of this discrimination, they develop a personality of dependency, insecurity, low self-confidence, and inferiority.

The root cause of sexual harassment against women lies in the patriarchy system in our country. For centuries, women have been deliberately denied the opportunities for growth in the name of religion and sociocultural practices. At the social-political plain, women suffered from the denial of freedom even in their homes, repression and unnatural indoctrination, an unequal and inferior status. All these things coming together made men arrogant and powerful in such a manner that they think it’s easy and pretty normal to sexually harass a woman and getting away with it because women are supposed to suffer in silence. Even if a woman raises her voice, she is subjected to humiliation, torture, and exploitation by society. This patriarchy system made women powerless and these women are often insecure about their position in the organization and this fear makes them resign to their fate rather than raising voices against the sexual harassment.

Despite the patriarchy system in our country, there has been a change in the power relations between men and women.

  • Women are grabbing every possible opportunity and are emerging superior to men and with women being empowered men are feeling insecure and threatened by their career advancement and to overcome this feeling of insecurity, some men resort to harassing the women at the workplace.
  • Another reason behind sexual harassment at the workplace is also the growth of women in the male-dominated fields. Men sometimes are under stress because even after putting their best they lack behind whereas a woman with little talent gets the recognition. This sometimes causes frustration and men resort to sexual harassment to overcome their stress.
  • Another aspect of sexual harassment also lies in the power game that exists at every workplace, where, Men take advantage of their higher position and sexually exploit women in exchange for giving them recognition or promotions and sometimes these women are threatened not to raise their voices or meet with dire consequences. As a result due to the fear of reprisal from the harasser, losing one’s livelihood, being stigmatized or losing professional standing and personal reputation, these women do not report the matter to the concerned authorities in most cases.

Women accept these with mouth shut because they have a family to support. This clearly shows that the persons with inferior job position in an organization are more prone to sexual harassment than a person in power. That fact, that most of the sexual harassment isn’t about always sex but sometimes men harass women to show the domination of male folk, which clearly shows, what patriarchy has done to our country.

  • Another major reason behind sexual harassment is the misperception about the friendly nature of women. It is clearly evident that men in any organization began to harass their female colleagues who are quite open and friendly in nature. Men have this misperception that these kinds of women are open to any kind of behavior and they will accept sexual favors from them without any hesitation. Women who are quite frank and open to their male colleagues are perceived as having sexual interest.
  • Lesser job opportunities for women: –

At present, we are quite well versed with the fact that there is a large number of women populations, who are with higher academic degrees rendering for the job, compared to available job positions. So, when these women hunt for a job they are faced with different types of behaviors. One of the most common is asking for sexual favors in return for a job. Not only this, even if a woman gets a job she is further sexually exploited for promotions, salary increases and other conditions of employment.

The above causes clearly show that women either employed in a multinational company or in any sector are conditioned to face sexual harassment by their male colleagues.

Laws and Acts related to Sexual Harassment in India: –

Sexual harassment at the workplace is an extension of violence in everyday life and is discriminatory and exploitative, as it affects women’s right to life and livelihood. Taking Discrimination against the women into consideration, the United Nations Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) was adopted by the UN General Assembly in 1979, which was ratified by India on 9th July 1993, with two (2) declarations and one (1) reservation.

Declarations:
I )With regard to articles 5 (a) and 16 (1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent.[2]

II)With regard to article 16 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions, and level of literacy[3]

Reservation:

With regard to article 29 of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it does not consider itself bound by paragraph 1 of this article.

1)Provisions under the constitution of India: –

Sexual Harassment is clearly the violation of the Fundamental Rights of women together with all the other rights that are guaranteed to them under the Constitution of India.

The provisions under the Indian Constitution, for the protection of the rights of the women, are as follows[4]: –

  • Fundamental Rights: –
  • Article 14 – Right to Equality
  • Article 15 – No discrimination against any citizen on grounds of religion, caste, sex, race, place of birth.
  • Article 16 – Equality of opportunity for all citizens in matters related to employment or appointment to any office or organization.
  • Article 19 (1) (g) – Right to practice any profession or to carry on any occupation or trade or business.
  • Article 21 – Right to life and personal liberty
  • Other guaranteed rights: –
  • Article 39 – There are certain principles that must be followed by the state, they are

(a) Men and Women equally have the right to an adequate means of livelihood.
(b) Equal pay for equal work for both men & women

  • Article 39 (A) – Equal justice to free legal aid
  • Article 42 – Provisions for just & humane condition of work & maternity reliefs.
  • Fundamental Duties: – 
  • Article 51 (A) – It shall be the duty of every citizen of India—

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women.

2)Provisions under the India Penal Code (IPC), 1860: –

Prior to the “Criminal Amendment Act 2013”, there was no definition on the term sexual harassment in the Indian Penal Code, 1860. But, after the commencement of this act, some subsections were added under the section.354 0f IPC, which defined the term sexual harassment and related offences and also gave the punishments for the same.

Such Sub-Sections are as follows[5]:

Section 354(A) (1) – Defined sexual harassment as –

  1. An unwelcome physical contact and advances, involving unwanted and explicit sexual overtures.
  2. A demand or request for sexual favors
  3. Showing sexual images (pornography) against the will of a woman, or
  4. Making sexual coloured remarks

Section 354(B) – A man forcing and compelling a woman to be naked or undressed.

Section 354 (C) – A man watching or capturing images of a woman without her consent (Voyeurism).

Section 354 (D) – A man, who follows a woman and contacts or tries to contact her, despite a clear instruction of disinterest by such women or monitors a woman through the internet or any other form of electronic communication, commits an offence of stalking.

Sexual harassment can basically be called an attempt to rape. In which a man doesn’t actually commit rape, but the woman upon whom it is done, gets the apprehension of being raped. This apprehension is dealt under section 354 of IPC.

Criminal Proceedings in such cases:

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

3) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: –

Since sexual harassment results in the violation of fundamental rights of a woman as per Article 14, 15 and 21 of the Indian Constitution. So, to prevent this violation, the Government of India enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, This act is an extension of the guidelines given by the Supreme Court (hereinafter SC) of India for the very first time to acknowledge the sexual harassment at workplaces as a Human Rights violation. Further, this act also reflects the commitment of the Indian government to the ratification of the Convention on the Elimination of Discrimination against Women (CEDAW) 9th July 1993.

This act is unique in itself, as it has a broad coverage to prevent all the working women from organized, unorganised, public as well as private sectors, irrespective of their age, color, caste, employment status, etc. The main challenge before the government is the effective implementation of this act.

It provides for the constitution of Internal Complaints Committee (ICC) and Local Complaints Committee (LCC) and both the committees are responsible to prepare an annual report at the end of every year, regarding the lodged complaints, disposal of lodged complaints as well as the pending complaint and to submit the same to the employer and the district officer respectively.

4. Vishaka Judgement: –

In the year 1997, the Supreme Court of India pronounced a landmark judgement in the case of Vishaka&Ors vs State of Rajasthan &Ors[6]commonly known as Vishaka Judgement.

Under this judgement, taking into consideration the facts of the case, the apex court said that, in view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, moreparticularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose[7].

The GUIDELINES and the NORMS prescribed under are as follows: –

I. Preventive Steps are to be taken by the employers at their workplaces: –

All employers or persons in charge of the workplace whether in the public or private sector should takeappropriate steps to prevent sexual harassment. Following steps must be taken by them: –

(a) Express prohibition of sexual harassment as defined above at the workplace should benotified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and

discipline should include rules/regulations prohibiting sexual harassment and provide for

appropriate penalties in such rules against the offender.

(c) Appropriate work conditions and environment should be provided to the women employees at workplaces and if any of thewomanemployees is putting any allegation upon anyone then she should have reasonable grounds to believe that she is disadvantaged in connectionwith her employment. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

II. Awareness: –

Awareness of the rights of female employees in this regard should be created in particular by

prominently notifying the guidelines (and appropriate legislation when enacted on the subject) suitable manner.

III. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

IV. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employersin the Private Sector.

V. These guidelines will not prejudice any rights available under the Protection of Human RightsAct, 1993.

Accordingly, we direct that the above guidelines and norms would be strictly observed in all workplaces 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.

Objectives of the study: –

Some of the basic objectives of this paper are as follows:

I.To throw light upon the causes, that results in the sexual harassment of women at workplaces.

II. To investigate and collect the available data and records that show rise or decline in the sexual harassment at workplaces.

III. To make others aware of the laws, rules and regulations that have made to prevent such type of evil practices.

IV. To make the female employees and workers at different working places, able to feel safe and secure in the organization they are working as well as to raise their voice if anyone tries to make any type of physical contact.

V. To make suggestions that address the incidents of sexual harassment of women at workplaces.[8]

CONCLUSION:-

Most women around the world have experienced sexual harassment, assault and violence, or have at times been pushed into a zone where they knew it did not feel right. It is clearly evident from this research paper that sexual harassment has been and still is a workplace problem in the country. According to statistics, a lack of awareness of the available legal procedures is a common problem. The enactment of the Sexual Harassment at Workplace Act in the year 2013 is a significant step forward to protect women from sexual harassment as well as to provide redressal forum to the victims. This act has helped create a healthy and safe environment for women. There are a number of steps that can be taken to tackle and reduce the risk of sexual harassment. There should be a clear sexual harassment policy in every working place. So that no women have to go through the pain of silent suffering., Because failure to recognize that sexual harassment is also a human right issue and that it must be addressed to create an equal and impartial working condition for women. Women also have every right to work in a friendly and congenial environment and when we have achieved this we have indeed empowered our women.


[1]M. P. J. Pereira, E. J. Rodrigues, “Sexual Harassment at Work Place in India Medico Legal Aspects”, J Indian Forensic Med, October-December 2014, Vol.306, No. 4, 2014

[2]UNTC “Ch- 4 Human Rights” “Convention on the Elimination of all forms ofDiscrimination Against Women (CEDAW)(https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en#EndDec)

3UNTC “Ch- 4 Human Rights” “Convention on the Elimination of all forms ofDiscrimination Against Women (CEDAW).

(https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en#EndDec)

4The Constitution of India

[5] The Criminal Law (Amendment) Act, 2013, No. 13 of 2013, Sec – 7.

[6] AIR 1997 SC 311

[7]Vishaka&Ors vs State of Rajasthan &Orson 13 August, 1997,AIR 1997 SC 311

[8]IJIRSET, “An Overview of Sexual Harassment of Womenat Workplace in India: An Analytical Study” vol. 6, page no. .3, July 2007.