National Commission for women

Introduction
The National Commission for Women was formed with an intention to establish an equal and
just livelihood for women by making legal and constitutional amendments for women in
India. The Violence against Women is a fundamental violation of human rights, across
nations, societies, cultures and classes and to stop this violation of the fundamental right; this
Commission was formed.
Problems faced by the women in the country has been one of the biggest concerns of the
Government and other authorities. Over the years, many Commissions have been set up by
the Government to look into the welfare of Women in the country. According to the reports
of these commissions, all of them state the necessity of setting up an apex body for reviewing
and addressing the grievances of women in the country. The demand for setting up a body
persisted for long and ultimately to keep the interest of the people, the National Commission
for Women Bill 1990 was introduced in the Lok Sabha on 22nd May 1990.
National Commission for Women
The National Commission for Women was set up in 1992 under the National Commission for
Women Act, 1990. This body was established to review the constitutional and legal
safeguards for women.
It recommends the remedial legislative measures, facilitates redressal of grievances and
advises the government on all policy matters affecting women. It enjoys all the powers of a
civil court.
The first commission was constituted on 31st January 1992 as Jayanti Patnaik as the
chairperson. Alok Rawat IAS is the first male member of the National Commission for
Women (NCW). His appointment filled the 4th seat on the five-member body. Ms Rekha
Sharma is the current Chairperson of the National Commission for Women.
Composition of National Commission for Women
The Commission must consist of a minimum number of members which includes a
chairperson, a member secretary, and the other five members.
Chairperson: The central government should nominate the chairperson.
Five members: The five members are also to be nominated by the central government from
amongst the person of ability, integrity, and standing. They should possess experience in
various fields like law or legislation, trade unionism, management of industry potential of
women, women’s voluntary organization, education, administration, economic development,
and social good-being.
Member Secretary: The Central Government also nominates member secretary. He/ she
should be either an expert in the field of management, an organization, or an officer who is a
member.
Functions of National Commission for Women
Inquiry and Investigation
The National Commission of Women enjoys the powers of a civil court. It investigates and
examines the matters related to the safeguards ensured for feminine society under the
Constitution of India. It took complaints suo moto notice of issues related to the non-
implementation of laws and non-enforcement of laws and non -compliance of policy
decisions, guidelines enacted and aimed at mitigating hardships ensuring the welfare and then
take up issues arising out of matter with the concerned authorities.
Action Research
NCW members take part in the planning process of socio-economic development of women,
propose measures to encourage their representation in all spheres, and review their
advancement. It also examines the safeguards provided for women in the Constitution and
other laws study their working, recommend amendments to meet any inadequacies or
deficiencies, and advocate measures for effective implementation.
Legal Intervention
The Parivarik Mahila Lok Adalat, (PMLA) is an innovative component with its roots in the
traditional Nyaya Panchayats. It is created by NCW for the redressal and speedy disposal of
cases. It has taken up 7500 cases so far. The essential feature of PMLA is cordial mutual
settlement and flexibility in implementation, aiming to empower women in the justice
delivery mechanism.
The Commission shall perform all or any of the following functions:
Investigation and Examination: Investigate and examine all the matters relating to the
safeguards provided for the women under the Constitution and other laws
Presentation of Reports: Table reports to the Central Government, every year and at such
other times as the Commission may deem fit, reports upon the working of those safeguards
Recommendations: Make in such reports and recommendations for the effective
accomplishment of those safeguards for enhancing the conditions of the women by the Union
or any State.
Review, every now and then, the current provisions of the Constitution and other laws
distressing the women and prescribe alterations and suggest curative legislative measures
meet any break, inadequacies, and incapacity in such legislation.
Cases of Violation: Take up cases of infringement of the provisions of the Constitution and of
other laws relating to the women with the relevant authorities
Suo Moto Notice: It looks into complaints, and takes Suo Motto notice of matters relating to
– deprivation of women’s rights, Non-implementation of the laws, and Non-compliance of
policy decisions guaranteeing the welfare for women society.
Special Studies and Investigation: It conducts special studies or investigation on the
concerning issues or circumstances emerging out of segregation and outrages against ladies
and recognizes the limitations in order to suggest techniques for their expulsion
Research: Undertake the promotional and educational research so as to propose ways of
ensuring due representation of women in all fields and identifies the factors responsible for
impeding the support services and technologies for reducing drudgery and professional health
hazards and for escalating their efficiency.
Participation in all spheres particularly in Planning: take part and advice on the planning
process of socio-economic development of women
Evaluation: assess the progress of the development of women society under the Union and
State.
Inspection: investigate or cause to be inspected a jail, remand home women’s establishment
or other places of guardianship where ladies are kept as detainees.
Funding: fund litigation, relating issues affecting a large body of women.
Reporting: make periodical reports on any issue pertaining to women and in particular
various difficulties under which women toil.
Powers of the Commission:
The Commission shall, while investigating any matter relating to safeguard provided by
Constitution or look into complaints and take suo motu notice of matters relating to
deprivation of women's rights, have all the powers of a civil court trying a suit under CPC
and in particular, in respect of the following matters, namely-
(i) Issuing of Summon. Summoning and enforcing the attendance of any person from
any part of India and examining him on oath;
(ii) Requiring the discovery of documents. - Requiring the discovery and production
of any document;
(iii) Receiving evidence. - Receiving evidence on affidavits;
(iv) Requisitioning anu public record. Requisitioning any public record or copy
thereof from any court or office; [Section 10(4)]
(v) Issuing commissions. - Issuing commissions for the examination of witnesses and
documents;
(vi) Appoint committees. -The Commission may appoint such committees as may be
necessary for dealing with such special issues as may be taken by the Commission
from time to time; [Section 8(1)]
(vii) Co-opted as members of any committee. The Commission shall have the power to
co-opt as members of any committee appointed, such number of persons, who are
not Members of the Commission, as it may think fit and the persons so co-opted
shall have the right to attend the meetings of the committee and take part in its
proceedings but shall not have the right to vote; [Section 8(2)]
(viii) Regulate its own procedure. -The Commission shall regulate its own procedure
and the procedure of the Committees thereof; [Section 9(2)]
(ix) Inspect custodial department. The Commission is also authorised to inspect a Jail,
Remand [Observation/Special/ Children] Home, Women's Institution or other
place of custody, where women are kept or detained in custody. It can also take up
any remedial measures with concerned authorities of these custody Houses;
(x) Residue matters. Any other matter which may be prescribed.
(d) Important court interventions and inquiries by NCW :
Bhateri gang rape case (Rajasthan).- The Commission suo moto took up the case of Ms.
Bhanwari Devi and extended its full support in going for appeal and also providing security
to the victim and appointment of a special public prosecutor to argue her case. Bhanwari Devi
was a "Sathin" associated with WDP in Rajasthan who was raped in retaliation for her
intervention in a child marriage on 22nd September, 1992.
Marine drive rape case. - On 21st April, 2005, "rape most foul" perpetrated at a police
chowki located adjacent to the Marine Lines Railway station in south Mumbai by an on duty
police constable (Sunil Atmaram More).
The abhorrent incident was committed by the policeman, who was reportedly in an inebriated
condition and raped the victim aged about 17 years in the chowki. The act being outrightly
condemnable, the incident impelled the NCW, to take immediate cognizance of the incident
and finally, resulted in conviction.
Imrana rape case. The Inquiry Committee was constituted to inquire into the alleged rape of
one lady, resident of Charthawal, in District Muzzaffarnagar by her father-in-law. The
incident was reported by the "Asian Age and other newspapers, on which the National
Commission for Women took immediate cognizance and issued notices to the district police,
directing them to register a case of rape. Finally, the father-in-law was awarded 10 years'
imprisonment by Sessions Court.
Drawbacks of National Commission for Women
It has no actual legislative powers. It only has the powers to suggest amendments and submit
reports which are not obligatory on a state or Union Governments.
It does not have the power to choose its own members. The power selecting members is
vested with the Union Government and the nature of the country’s volatile political scenario
tends the commission to be politicized.
It is reliant on financial assistance from the Union Government and this could compromise
the independence of the Commission.
The jurisdiction of the commission is not operating in Jammu and Kashmir and considering
the current political unrest and human rights infringements in the region, the presence of
commission is vital.
Complaints and Counseling Unit of National Commission for Women
This cell is the Core unit of the commission and pro members. The power selecting members
is vested with the Union Government and the nature of the country’s volatile political
scenario tends the commission to be politicized.
The jurisdiction of the commission is not operating cesses the complaints received oral,
written, or suo moto under Section 10 of the NCW Act. The complaints received relate to
domestic violence, harassment, dowry, torture, desertion, bigamy, rape, and refusal to register
FIR, cruelty by husband, deprivation, gender discrimination, and sexual harassment at the
workplace.
The complaints are dealt with and tackled in various ways such as Investigations by the
police are expedited and monitored, disaggregated data are made available to various state
authorities to facilitate action, family disputes are resolved or compromised through
counselling.
Conclusion
It can be said that in the short period of fourteen years the Commission has managed to fulfill
the mandate, if not completely then to a great extent. The achievements mentioned in the
prior chapter are only a few of many similar achievements and they are proof of the
popularity and support the Commission is gaining from the Indian woman. There is no doubt
about the effectiveness of the Commission and about the good work which it is doing for the
women of India, however, there are certain shortcomings in the working of the Commission,
which, if rectified, would lead to a more efficient and productive Commission.
National Commission for Women
INTRODUCTION
The National Commission for Women was set up in 1992 under the National Commission for
Women Act, 1990. This body was established to review the constitutional and legal
safeguards for women. It recommends the remedial legislative measures, facilitates redressal
of grievances and advises the government on all policy matters affecting women. It enjoys all
the powers of a civil court.
COMPOSITION
Chairperson: The central government should nominate the chairperson.
Five members: The five members are also to be nominated by the central government from
amongst the person of ability, integrity, and standing. They should possess experience in
various fields like law or legislation, trade unionism, management of industry potential of
women, women’s voluntary organization, education, administration, economic development,
and social good-being.
i. Member Secretary: The Central Government also nominates member secretary. He/
she should be either an expert in the field of management, an organization, or an officer who
is a member.
I. FUNCTIONS
i. Investigation and Examination: Investigate and examine all the matters relating to the
safeguards provided for the women under the Constitution and other laws
ii. Presentation of Reports: Table reports to the Central Government, every year and at
such other times as the Commission may deem fit, reports upon the working of those
safeguards
iii. Recommendations: Make in such reports and recommendations for the effective
accomplishment of those safeguards for enhancing the conditions of the women by the Union
or any State.
iv. Review, every now and then, the current provisions of the Constitution and other laws
distressing the women and prescribe alterations and suggest curative legislative measures
meet any break, inadequacies, and incapacity in such legislation.
v. Cases of Violation: Take up cases of infringement of the provisions of the
Constitution and of other laws relating to the women with the relevant authorities
vi. Suo Moto Notice: It looks into complaints, and takes Suo Motto notice of matters
relating to – deprivation of women’s rights, Non-implementation of the laws, and Non-
compliance of policy decisions guaranteeing the welfare for women society.
vii. Special Studies and Investigation: It conducts special studies or investigation on the
concerning issues or circumstances emerging out of segregation and outrages against ladies
and recognizes the limitations in order to suggest techniques for their expulsion
viii. Research: Undertake the promotional and educational research so as to propose ways
of ensuring due representation of women in all fields and identifies the factors responsible for
impeding the support services and technologies for reducing drudgery and professional health
hazards and for escalating their efficiency.
ix. Participation in all spheres particularly in Planning: take part and advice on the
planning process of socio-economic development of women
x. Evaluation: assess the progress of the development of women society under the Union
and State.
xi. Inspection: investigate or cause to be inspected a jail, remand home women’s
establishment or other places of guardianship where ladies are kept as detainees.
xii. Funding: fund litigation, relating issues affecting a large body of women.
xiii. Reporting: make periodical reports on any issue pertaining to women and in particular
various difficulties under which women toil.
II. CRITICISM
It has no actual legislative powers. It only has the powers to suggest amendments and submit
reports which are not obligatory on a state or Union Governments.
It does not have the power to choose its own members. The power selecting members is
vested with the Union Government and the nature of the country’s volatile political scenario
tends the commission to be politicized.
It is reliant on financial assistance from the Union Government and this could compromise
the independence of the Commission.
The jurisdiction of the commission is not operating in Jammu and Kashmir and considering
the current political unrest and human rights infringements in the region, the presence of
commission is vital.
COMPLAINTS & COUNSELING UNIT OF NCW
The jurisdiction of the commission is not operating cesses the complaints received oral,
written, or suo moto under Section 10 of the NCW Act. The complaints received relate to
domestic violence, harassment, dowry, torture, desertion, bigamy, rape, and refusal to register
FIR, cruelty by husband, deprivation, gender discrimination, and sexual harassment at the
workplace.
The complaints are dealt with and tackled in various ways such as Investigations by the
police are expedited and monitored, disaggregated data are made available to various state
authorities to facilitate action, family disputes are resolved or compromised through
counselling.
CASE LAWS
Bhateri gang rape case (Rajasthan)- The Commission suo moto took up the case of Ms.
Bhanwari Devi and extended its full support in going for appeal and also providing security
to the victim and appointment of a special public prosecutor to argue her case. Bhanwari Devi
was a "Sathin" associated with WDP in Rajasthan who was raped in retaliation for her
intervention in a child marriage on 22nd September, 1992.
Marine drive rape case - On 21st April, 2005, "rape most foul" perpetrated at a police chowki
located adjacent to the Marine Lines Railway station in south Mumbai by an on duty police
constable (Sunil Atmaram More).
The abhorrent incident was committed by the policeman, who was reportedly in an inebriated
condition and raped the victim aged about 17 years in the chowki. The act being outrightly
condemnable, the incident impelled the NCW, to take immediate cognizance of the incident
and finally, resulted in conviction.
Imrana rape case - The Inquiry Committee was constituted to inquire into the alleged rape of
one lady, resident of Charthawal, in District Muzzaffarnagar by her father-in-law. The
incident was reported by the "Asian Age and other newspapers, on which the National
Commission for Women took immediate cognizance and issued notices to the district police,
directing them to register a case of rape. Finally, the father-in-law was awarded 10 years'
imprisonment by Sessions Court.
CONCLUSION
It can be said that in the short period of fourteen years the Commission has managed to fulfill
the mandate, if not completely then to a great extent. The achievements mentioned in the
prior chapter are only a few of many similar achievements and they are proof of the
popularity and support the Commission is gaining from the Indian woman. There is no doubt
about the effectiveness of the Commission and about the good work which it is doing for the
women of India, however, there are certain shortcomings in the working of the Commission,
which, if rectified, would lead to a more efficient and productive Commission.

Gender Inequality
Introduction
Gender (or sex) inequality is the common act of civil rights that takes on multiple forms
including sexual embarrassment, unequal pay for women and inequality even in pregnancy.
While the Indian Constitution grants men and women equality and offers fair protection in
order to boost women’s status in society, most women are still unable to benefit from these
rights and opportunities that are provided to them.
While the Indian Constitution grants men and women the same privileges and benefits and
parallel recruitment for enhancing the role of women in the social community, given the fact
that the rights and opportunities provided to women by the constitution remain far from
achieving this advantage for the full number of women. The anti-female mentality and
injustice of society force women to put down their chances of thriving into the conventional
value structure, just as an undue household duty. In India, there are few other factors in the
present period, including lowest rates, joblessness and deprivation among women because of
the difference in society between men and women.
Defining gender inequality
The idea that men and women are not equal is gender inequality, and that gender influences a
person’s living experiences. Such variations are the product of biological, psychological and
cultural differences. Many of these types are empirically driven, whereas others seem to be
socially constructed. Studies have demonstrated a range of lived gender experience across
several fields, including education, life expectancy, personality, interests, family life. Gender
inequality across different cultures is experienced differently.
HISTORY OF GENDER INEQUALITY
In ancient India, an Indian woman was at position of honor and was marked by the term of
maata (mother) or Devi (goddess) in the Vedas and Upanishads. Same as Manu Smriti,
woman was considered as a precious being and in the early Vedic age, girls were looked after
with care. Then practice of bigamy declined the position of woman and in the medieval
period, in this period dowry system, and sati system came into existence The new insight in
science and technology being the practice of female in India. This has also led to a drop in the
female ratio. As per Indian census The main cause of female infanticide practices in few was
dowry system. Indian Society is male dominating; a woman still needs the anchor-person and
a family. Their dominating nature has led women to walk with their head down. It was all
practiced from the beginning and is followed till date. But to remove this disparities the
woman’s reservation in parliament, is one of the commendable step taken by Government of
India In many parts of India, women are viewed as an economic and financial liability despite
contribution in several was to our society, economy and by their families. The crime against
women is increasing day by day. Domestic Violence, Rape, Sexual harassment, molestation,
eveteasing, forced prostitution, sexual-exploitation, at work places are a common affair
today. So, it is an alarming issue for our country. The major reasons for the gender inequality
are identified as the need of a male heir for the family, huge dowry, continuous physical and
financial support to girl child, poverty, domestic – violence, farming as major job for poor
and the caste system.
Gender inequality around the world
For many countries around the world, gender inequality is a prevalent trend. This is evident
with a rather narrow look at the well-being measures such as employment, child mortality,
life expectancy, primary, secondary or university graduation levels, which are segregated
according to gender. According to the World Bank (2001) report on the worldwide
prevalence of gender disparity in different forms: women have not been treated equally-
constitutionally, socially and economically- in many underdeveloped countries for over a
decade. Gender inequality and poverty disparities in these countries have increased, as
women have little access to and control of wealth, little economic opportunity, and no impact
on political power. In addition, the costs of inequalities are borne not only by women but they
are generally socially spread and harmful to everybody. For many underdeveloped countries,
therefore, gender inequality is one of the most important development topics.
Gender inequality in the context of India
Male and female are both equal and play a key role in creating and developing their families
in their respective areas and in society in general. Nonetheless, the fight for equality became
one of the movement ‘s core concerns worldwide. There is no differentiation of rank in the
disparity between sex and physical form. A woman is the man’s counterpart, not the lower. In
India, women have long been an oppressed section of society and for centuries they have
been neglected. The son’s birth is celebrated as the daughter’s child is full of suffering. Kids
are taught to be diligent and thorough. But girls’ being homebound and shy is welcomed.
Both differences are sexual and social differences. This has a negative impact on
sustainability goals and thus limits economic growth. It obstructs the overall well-being
because it can adversely affect society to prevent women from participating in social,
political and economic activities.
Consequently, gender inequality is a form of inequality that differs from other forms of socio-
economic inequality. Gender inequality is a key reality in India. Women are particularly
successful in various spheres of activity in modern times. Many Indian women also face
sexism and gender inequality.
Various Forms of Gender Inequality
There are many kinds of gender inequality or gender disparity which are as follows:
1. Natality inequality: In this type of inequality a preference is given for boys over girls that
many male-dominated societies have, gender inequality can manifest itself in the form of the
parents wanting the newborn to be a boy rather than a girl. There was a time when this could
be no more than a wish (a daydream or a nightmare, depending on one's perspective), but
with the availability of modern techniques to determine the gender of the foetus, sex-selective
abortion has become common in many countries. It is particularly prevalent in East Asia, in
China and South Korea in particular, but also in Singapore and Taiwan, and it is beginning to
emerge as a statistically significant phenomenon in India and South Asia as well.
2. Professional or Employment inequality: In terms of employment as well as promotion in
work and occupation, women often face greater handicap than men. A country like Japan and
India may be quite egalitarian in matters of demography or basic facilities, and even, to a
great extent, in higher education, and yet progress to elevated levels of employment and
occupation seems to be much more problematic for women than for men. The example of
employment inequality can be explained by saying that men get priority in seeking job than
women.
3. Ownership inequality: In many societies the ownership of property can also be very
unequal. Even basic assets such as homes and land may be very asymmetrically shared. The
absence of claims to property can not only reduce the voice of women, but also make it
harder for women to enter and flourish in commercial, economic and even some social
activities. This type of inequality has existed in most parts of the world, though there are also
local variations. For example, even though traditional property rights have favoured men in
the bulk of India.
4. Household inequality: There are often enough, basic inequalities in gender relations within
the family or the household, which can take many different forms. Even in cases in which
there are no overt signs of anti-female bias in, say, survival or son-preference or education, or
even in promotion to higher executive positions, the family arrangements can be quite
unequal in terms of sharing the burden of housework and child care. It is, for example, quite
common in many societies to take it for granted that while men will naturally work outside
the home, women could do it if and only if they could combine it with various inescapable
and unequally shared household duties. This is sometimes called "division of labour," though
women could be forgiven for seeing it as "accumulation of labour." The reach of this
inequality includes not only unequal relations within the family, but also derivative
inequalities in employment and recognition in the outside world. Also, the established fixity
of this type of "division" or "accumulation" of labour can also have far-reaching effects on
the knowledge and understanding of different types of work in professional circles.
5. Special opportunity inequality: Even when there is relatively little difference in basic
facilities including schooling, the opportunities of higher education may be far fewer for
young women than for young men. Indeed, gender bias in higher education and professional
training can be observed even in some of the richest countries in the world, in India too.
Sometimes this type of division has been based on the superficially innocuous idea that the
respective "provinces" of men and women are just different.
Basic Facility Inequality
Even when demographic characteristics do not show much or any anti-female bias, there are
other ways in which women can have less than a square deal. Afghanistan may be the only
country in the world the government of which is keen on actively excluding girls from
schooling (it combines this with other features of massive gender inequality), but there are
many countries in Asia and Africa, and also in Latin America, where girls have far less
opportunity of schooling than boys do. There are other deficiencies in basic facilities
available to women, varying from encouragement to cultivate one's natural talents to fair
participation in rewarding social functions of the community.
Inequality in Families
This is a more dire scenario now than it was in past decades. Families would continue to
produce children until the birth of their sons. A girl was and is born, but foeticide was not as
rampant. It is not so rampant. Families with many kids and a combination of boys and girls
were often seen. The younger children would be boys (girls born while waiting for the son),
while the oldest children were girls.
The importance of only two children (shown in advertisements as a boy and a girl) was
widely expressed during the 1980s and 1990s family planning and population control
campaign. Many Indian families have realized that they can provide fewer children with
resources and ideally have only two children. But if a girl is the first child, and a boy is the
second, it isn’t a question. It’s okay if both the kids are boys too. What if the second child is
also a girl is the greatest fear.
The children who have to leave and travel with their parents is an integral part of Indian
cultural culture and a significant source of inequality. In an effort to improve this situation,
the structure of Indian society itself will need to be modified. This is also why girls are
considered to be an investment (as opposed to sons) which doesn’t make money and leads to
questions like foeticides, education or less education.
A variety of issues such as dowry, subjugation and the lack of job rights emerge from the
difficulties of living with the family of the married woman. Personality and equations of
power also have a role to play. When married, after marriage a woman is required to obey a
certain dress code while a man may continue dressing as he wishes. If the woman has to lose
her husband, she is forced to abandon her coding and a new, more demanding dress code and
lifestyle which she is used to at the present.
FACTORS CAUSING GENDER INEQUALITY
ECONOMIC FACTORS
 Labor participation: - There is wage inequality between man and woman in India. A
substantial number of women enter the labor market after thirties, generally after completion
of their reproductive roles of child bearing and rearing.
 Access to credit: - There are large disparities between men and women in terms of access
to banking services. Women often lack collateral for bank loans due to low levels of property
ownership and micro-credit schemes have come under scrutiny for coercive lending practices.
 Professional inequality: - Women are not allowed to have conflict roles in military
services. Permanent commission could not be granted to female officers because they have
neither been trained for command nor have been given the responsibility in India.
 Property Rights: - Although women have equal rights under the law to own property and
receive equal inheritance rights, yet in practice, women are at a disadvantage. The Hindu
Succession Act of 2005 provides equal inheritance rights to ancestral and jointly owned
property, the law is weakly enforced.
 Women’s inequality in proper legacy:-Women are insignificantly deprived of their proper
inheritance culturally and religiously as well. The religious constitution doesn‟t give women
equal inheritance; there is a segregation of giving the property to women as they will not be
given the property as men can have. Though Islamic constitution permits women having at
least half of the property as man, society is reluctant to give the desired property to women let
alone giving the equal share.
 Employment inequality: Women are in India are still not found at higher position & if they
found at later stage of their career. In the workplace the men usually hold the higher positions
and the women often hold lower paid positions such as secretaries.
SOCIAL FACTORS
 Education: - In India female literacy rate is lower than the male literacy rate. As per to
census literacy rate of female is 65.46% as compared to males which are 82.14%.
 Health:- On health issue, the gender inequality between women’s and men’s life
expectancy and women live compared to men in good health because of lots of violence,
disease, or other relevant factors.
 Patriarchal Society: - Most of India has strong patriarchal custom, where men hold
authority over female & family members and inherit property & title. It is the custom where
inheritance passes from father to son, women move in with the husband & his family upon
marriage & marriages include a bride price or dowry.
 Dowry: - The dowry system in India contributes to gender inequalities by influencing the
perception that girls are a burden on families. Such belief limits the resources invested by
parents in their girls and limit her bargaining power within the family.
 Gender-based violence: - Gender-based violence such as rape, sexual assault, insult to
modesty, kidnapping, abduction, cruelty by intimate partner or relatives, importation or
trafficking of girls, persecution for dowry, indecency and all other crimes are practiced on
women. These crimes show the high degree of inequality in India.
 Women’s inequality in decision making: In India, Women have less authority than men to
legal recognition and protection, as well as lower access to public knowledge and
information, and less decision-making power both within and outside the home. This is also
one of the reasons for inequality in gender.
CULTURAL FACTORS
 Old age support from sons: - A key factor driving gender inequality is the preference for
sons, as they are deemed more useful than girls. They are supposed to support the old age
security of their parents.
 partials system: - It is a common empathy system in which an individual's family
membership derives only through his or her father's lineage .It generally involves the
inheritance of property, names, or titles by persons related through one's male kin.
 Role of sons in religious rituals: - Another factor is that of religious practices, which can
only be performed by males for their parents' afterlife. Sons are often the only person entitled
to performing funeral rights for their parents
 Son Preference: - Boys are given the exclusive rights to inherit the family name and
properties and they are viewed as additional status for their family. Moreover, the prospect of
parents „losing‟ daughters to the husband‟s family and expensive dowry of daughters further
discourages parents from having daughters.
LEGAL & POLITICAL FACTORS
As per our Constitution men & women are equal according to the laws and means they have
equal rights. But, unfortunately, legal & political bias has prevented the law to attain the
success of equality in gender. This is another reason for inequality in gender.
Elimination of gender inequality by Indian Government
Across most societies worldwide, gender inequality is seen to varying degrees and India is no
exception. It is now recognized globally that there will be no absolute development unless
and until all kinds of inequalities including gender inequality are removed. The Indian
government has taken many steps to reduce discrimination between sexes and improve
women’s status. These steps are usually known as (a) Constitutional provisions and (b) Legal
provisions.
Constitutional provisions
Gender equality is enshrined in the Preamble, Fundamental Duties and Directive Principles of
the Indian Constitution. India’s constitution has provided many arrangements to protect
women’s rights. The following are a few significant provisions for women:
Article 14: ensures equality between men and women through equal rights and opportunities
in the political, economic and social spheres.
Article 15: forbids discrimination on grounds of sex, ethnicity, colour, caste, etc. against any
person.
Article 16 is concerned with equal opportunities.
Article 39: includes the governance principles to be implemented by the State in order to
ensure economic justice.
Article 42: allows the State to make provision for equal and humane working and maternity
relief conditions.
Article 51: imposes on every person a constitutional obligation to renounce activities
derogating from the dignity of women.
Article 325: guarantees women’s political equality.
Legal provisions
India’s government has enacted laws and legislations specific to women and related to
women:
The Immoral Traffic (Prevention) Act, 1956;
Maternity Benefit Act, 1961;
Other economic laws include:
Factories Act, 1948;
Several social legislation contains:
Family Court Act, 1984;
Indian Succession Act, 1925;
There is no question that these constitutional and legal protections have proved to be of
benefit to half of the Indian population. There is evidence everywhere; in parliament, courts,
and highways, the voice of women is gradually heard. Women had to struggle in the West for
more than a century to achieve some basic rights, such as voting, but from the beginning, the
Constitution of India has granted women equal rights to men. Unfortunately, most of the
women in this country do not recognize their rights due to analphabetism and patriarchal
practices. Such statutory and legal protections can not be used properly.
Suggestion
Only by treating both children as similarly bad investments for old age can that end up being
the only way to cope with it in the long-term is to move them to their separate homes after
marriage. That’s how the problem has been addressed by Singapore, the United States and a
lot of others with greater gender equality. It is the biggest disparity between Indian and
Western culture that you (or lack of) expect to live as you get older with your daughters,
grandchildren and also the main reason why they are on two opposite sides of gender
equality. If parents knew that, as their son(s) or daughters grew older, they would not stay
with either their son(s), plan ahead or at least be better prepared. Most Indian parents are
actually shuddering at a scenario like this. The only way that parents avoid deception at age,
is when a bird cares for its young people and allows them to fly once they develop their
wings. It would be complicated, but that’s the only realistic long-term option.
Conclusion
The most significant factor in continued use of law to enforce patriarchal privilege is that
men still control not only the legal process and the interpretation of laws, but also the subject
matter and vantage point of law. If the subject matter of law is male concerns and if the
perspective employed within the legal process are those of men, then women should actually
have no reason to expect that mere reform of existing law will materially improve the
condition of women. This is particularly true when attempts to improve the statutes of women
are made through incremental reforms that are not grounded in an understanding of how
women’s oppressions are constructed. Reforms of rape law will not materially improve the
status of women when the point of rape laws is their no enforcement.
It has been shown that law is strictly restricted in it capacity to deliver gender justice, which
in itself is contingent on the nature of law and its functioning. In this connection it is
worthwhile to recall that the law itself is not a monolithic entity, which simply progresses or
regresses.
Historically, the development of law has been an uneven one. That is to say, more than not,
what law promises on paper cannot carry through in reality. That is why law-as-legislation
and law-in-practice are most of the time in contradiction with each other. To cite an example,
the Indian constitution explicitly enshrines formal equality for women. However, the lives
and experiences of India women relentlessly continue to be characterized by substantive
inequality, inequity and discrimination.
Gender justice may not be then that much of a caste in the sky. Finally, one must at least
clearly suggest what ought to be done. The present feminist analysis is such a modest
endeavour which not only attempts to understand the reality but also tries to explain how to
change it.

Adoption and related problems

Adoption is the establishment of a parent-child relationship through a legal and social process
other than the birth process. It is a process by which a child of one set of parents becomes the
child of another set of parents or parent. Owing to our multicultural, multilingual, and
multireligious sentiments in the country, it has been a difficult task to identify all
complexities and bring into force an effective adoption policy uniformly in the country.
Adoption shall be restored to for ensuring the right to family for the orphan, abandoned and
surrendered children, and with the advent of civilization; secular as well as religious needs
have the effect of the process of adoption. The main object of adoption in the past has been to
secure the performance of one’s funeral rights and to preserve the continuance of one’s
lineage. But in recent times, adoption has been the means to restore family life to a child
deprived of his or her biological family. Adoption as a legal institution came to be recognized
only among the Hindus. Muslims do not recognize adoption but the practice has been
prevalent among Christians and Parsis. Hindu law is the only law that recognizes adoption in
the true sense of taking of a child as a substitute for a natural-born child. The desire to have a
natural-born son is considered to be the basis of adoption among Hindus. If a person had no
natural-born son he was allowed to take the son of some other person as his own. The sonship
was given importance due to various religious and secular purposes in the ancient period.
WHAT IS ADOPTION?
As far as the concept of adoption is concerned it is very difficult to define it in words. This
institution has changed over a while in its form, purposes, and objects. It is but, natural that as
human thought proceeds the concept and organization of social institutions also advances and
gets modified. According to the Encyclopedia of Religion and Ethics- “Adoption indicates
the transfer of a child from old kinsmen to the new. The child ceases to be a member of the
family to which he belongs by birth. The child loses all rights and is deprived of all duties
concerning his natural parents and kinsmen. In the new family, the child is like the natural-
born child with all the rights and liabilities of a native-born member.” Encyclopedia
Britannica explains thus- “Adoption is a way of conferring the privileges of parents upon the
childless and advantages of parents upon the parentless.” International Encyclopedia of
Social Science defines adoption in the following words- “Adoption is the institutionalized
practice through which an individual belonging by birth to one kinship group acquires new
kinship ties that are civilly defined as equivalent to the congenital ties. These new ties
supersede the old ones either wholly or in part.”
HISTORY OF ADOPTION IN INDIA
In India, adoption has been practiced for years together. All our epics Ramayana and
Mahabharata contain records of saints and royals who were adopted. They also have a
complied data of Kings and Saints who adopted. Hinduism believed in a patriarchal society,
wherein a lack of male offspring befell, couples went for embracing a male child to assign
him as a legal beneficiary. Children are important in a Hindu household and a deceased
parent’s spirit can simply accomplish salvation only when an individual has a child to light
the memorial service fire, and salvation can be achieved via a male child who provides tribal
love. This led Hindus to evolved the institution of adoption to a substantial length. It might
not be an exaggeration to say that no other race or religion of the globe advanced themselves
to such minute details in regards to the institution of adoption as Hindus. For Hindus
adaptation was as ‘dharma’. Dharma incorporates principles, rules, and regulations governing
the entire life of a man. The institution of adoption occupied a great significance under Hindu
law as the aspiration for ‘son’ predominated the Hindu culture and civilization. The Smritis
literature has a well-defined law of adoption. It was parent based and not child-based, and
suggested that only one son could be adopted for the continuation of the family line, to offer
oblations to deceased ancestors. The Dharmasastras on the other hand deals in detail with the
qualifications of the male child to be taken in adoption. The adopted son is uprooted from his
natural family and transplanted into an adoptive family like a natural son. But with the advent
of numerous legislations in Modern India, the whole idea of adoption concerning various
personal laws has undergone a significant transformation.
MODERN ADOPTION THEORY: CHILD WELFARE THEORY
In the present age, the concept of adoption has undergone a sea change. In our country, where
there is a large number of orphans, abandoned, handicapped, and destitute children, adoption
can serve a very important social purpose. Such children require homes and parents. On the
other side, there are a large number of people in India and abroad who do not have children.
Adoption serves the object of providing homes for homeless children and for providing richer
family life to those persons who have no children or who have only one child and want to
adopt another. In most Western countries one can adopt several children and one needs not to
be childless but under Hindu Law, one cannot adopt more than one son and one daughter.
Thus, a new theory i.e., the child welfare theory has emerged over time. It is providing a child
to the childless and homes and parents to the orphans, destitute and illegitimate children who
may be living in neglected and inhuman conditions. Adoption is thus serving double purposes
The pious purpose of adoption may be served in a better manner if the people show more
concern for such orphans and homeless children. Thus, the modern theory regarding adoption
appears to be more appropriate in modern days where the welfare of children has been given
utmost importance in all laws. Any law of adoption must be centered on the following
premises: 1. Child’s interest is the primary consideration and it outweighs all other
considerations 2. Adoption is primarily a child-welfare service 3. Adoption, which is the most
desirable form of substitute for children, should be provided as early as possible 4. The
primary object of adoptions is to provide a home to the child. If the child gets home with love
and affection; inheritance and property rights will follow, they are secondary.
ADOPTION UNDER HINDU LAW
The Old Hindu law saw post-independence reforms in the form of the 1956 Hindu Adoption
and Maintenance Act codified adoption legislation. Anyone who falls within the definition of
the term ‘Hindu’ as described in Section 2 of HAMA is eligible for the adoption of a child.
There have been numerous changes in the law from time to time, such as adoption by Hindu
women, eligibility for adoption by unmarried/single girls, etc. The Shastric Hindu law looked
at adoption more sacramental than as a secular act. Some judges think that time object of
adoption of a child is two-fold: 1. To secure one’s performance of one’s funeral rites 2. To
preserve the continuance of one’s lineage. Hindus believed that the deceased parent’s spirit
can accomplish salvation only when an individual has a son to light the memorial service fire.
One who died without having a son would go to hell and it was only a son who could save the
father from going to Poota. This is one of the main reasons to beget a son. Currently, the
adoption under Hindu is governed by the Hindu Adoption and Maintenance Act, 1956.
ADOPTION UNDER MUSLIM LAW
Muslim Law does not acknowledge Adoption. A Muslim therefore willing to adopt must
approach a tribunal under the Guardianship and Wards Act, 1890. The law takes into account
the concept of acknowledgment. A Muslim cannot establish the child’s paternity and if he
adopts a baby he does not becomes the father of the child. Various authors on Mohammedan
law are of the view that adoption which creates a relationship of parentage, is unknown to
Mohammedan law. Authors like Ameer Ali, Wilson, and Abdur Rahim are of the view that
adoption is unknown to Mohammedan law, and that the Holy Quran prohibits adoption.
Before the Shariat Act of 1937, the adoptions by certain Muslims were recognized and
allowed by customs. Thus the impression that adoption is not permissible or adoption is not
known to Muslim law is based on the improper application of Shariat law. However, in
matters of adoption, Muslim personal law does not automatically apply to an individual.
Thus, a Muslim never recognizes another’s baby as his or her own, and a baby is regarded to
be a direct descendant by legitimate means. If the adoption takes place, the adopted child
maintains his or her biological family name and does not alter his or her name to that of the
adoptive family. In all aspects, adoptive parents do not have the status of natural parents.
ADOPTION UNDER CHRISTIAN AND PARSI LAW
The Christians do not have a law for adoption, and like Muslims have to approach the court
under the Guardians and Wards Act, 1890. Christians can take a child under the said Act only
under foster care. Once a child under foster care, he is free to break away all his connections
once he attains the age of 18 yrs and is a major. Besides, such a child does not have any legal
right to inheritance. The 1890 Guardians and Wards Act contains the general law about
guardians and wards. It states that the right of the father is primary and no other individual
can be appointed unless the father is discovered to be inappropriate. This Act also offers that
while a guardian under the Act, the court must take into account the child’s welfare. There is
no particular statute in India that enables or regulates Christian adoption. In the lack of a
court recognized statutory or customary adoption, foster children are not regarded as children
in law. Their property is allocated among legal intestate heirs on the death of the foster
parents, to the detriment of foster children. Christian in India can adopt children by resort to
Section 41 of the juvenile Justice (Care and Protection of Children) Act, 2006 read with the
Guidelines and Rules issued by various State Governments.
ADOPTION LAWS IN INDIA
1. HINDU ADOPTION AND MAINTENANCE ACT
Adoption according to the Indian Law is a matter of personal law and hence is governed by
various legislations. The adoptions in Hindu law are governed by the Hindu Adoption and
Maintenance Act, 1956. The Act applies to all who are by religion Hindus, including
Buddhists, Jains and Sikhs, and any person who is not a Muslim, Parsi, Jew, or Christian.
Under this Act, the following persons can make adoptions: a. Any male Hindu, who is of
sound mind, not a minor and is eligible to adopt a son or daughter, but if the male has a living
spouse at the time of adoption, the consent of his spouse is mandatory. b. Any female Hindu,
who is not married or if married, her marriage has been dissolved or whose husband is not
alive or her husband has been declared incompetent can adopt a son or a daughter. In case a
biological child already exists in the family, then the adoption of the child of the opposite sex
is allowed. Where there is an adoption of a male child by female, then the female shall be at
least 21 years older than the son. Where there is an adoption of a female child by a male, then
the male shall be at least 21 years older than the daughter. The adopted child has the same
rights as a biological child. Adoption under this Act is irrevocable.
2. GUARDIANS AND WARDS ACT, 1890
As there is no general law for adoption and the personal laws of Muslims, Christians, Parsis,
and Jews, they do not recognize the concept of complete adoption. Under this Act, anyone
who is desirous of a child can become a guardian of the child until the child comes to 21
years of age. This Act however does not provide any adoptive rights to the guardian and the
only relationship which exists is of Guardian- Ward between the parents and the child. Unlike
the Hindu Adoption and Maintenance Act, 1956, this Act does not confer the status of the
biological child on the child so adopted.
3. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2000
In December 2000 the parliament of India passed the Juvenile Justice (care and protection)
Act, 2000 to protect and safeguard the interests and welfare of the children in need of care
and protection. Amendments have been made in the existing Act, 2000 to show greater
sensitivity to the needs and rights of children. The Juvenile Justice (care and protection) Act,
2006 has been introduced to give adoptions a child-friendly approach. It widened the
definition of ‘child in need of care and protection’ by including ‘abandoned’ and ‘surrendered
children’ or a ‘working child’. Under this Act, there is no bar to religion for adoption. The
provisions of this Act apply to all Indian citizens.
4. CENTRAL ADOPTION RESOURCE AUTHORITY
CARA is an autonomous body under the Ministry of Social Justice and Empowerment,
Government of India. It was set up on 20th June 1990 to deal with all the matters concerning
adoption in India. Its function is to mandate and regulate both in-country and inter-country
adoption of children in India. CARA is designated as the Central Authority to deal with inter-
country adoptions under the provisions of the Hague Convention on Inter-country Adoption,
1993 ratified by the Government of India in 2003. CARA primarily deals with the adoption
of orphan, abandoned, and surrendered children through its associated/ recognized adoption
agencies.
CHALLENGES IN ADOPTION
Although state-approved agencies are providing adoption, the fact is that private adoptions
are still taking place in some hospitals through agents and with unorganized sectors.
1. Most of the time, adoption agencies are perceived to be “money makers” and so they are
constantly put under “scanner” by the whistleblowers.
2. There is a lack of consistent and complete data in some states which makes it difficult to
conduct research studies.
3. If and when there is a budget downturn, many agencies who are normally responsible for
collecting data may find it difficult to continue their work.
4. Contrary to Western countries, Indian culture does not encourage “open adoption”.
Because India follows “closed adoption”, confidentiality about the birth parent/s is not
disclosed. As of today, it is observed both in rural and some families in urban areas, adoptive
parents are also not comfortable telling their children about status. If a child gathered this
information from others, the trust could become a major issue in the parentchild relationship.
5. Single parent adoptions are legal, yet there is no study or evidence of any increase in single
parents who have adopted children. There are no data available on the success rate of single-
parent adoption.
Inter-Country Adoption
Under inter-country adoption, any individual or any couple can become legal parents to any
child who is a citizen of a different country. If an Indian citizen is considering overseas
adoption, they should meet the eligibility criteria of that country, in addition to meeting
eligibility criteria within India. For example, the adoptive parents need to be willing to meet
the needs of children requiring adoption through CARA.
Legislative Background
Inter-country adoption is also known as transnational adoption. A few years back, India did
not have specific laws for inter-country adoption. In a famous case of Rasiklal Chhaganlal
Mehta Gujarat High Court and the landmark case of Laxmikant Pandey v. Union of India, the
Supreme Court issued certain guidelines regarding such adoption process, and subsequently,
CARA (The Central Adoption Resource Authority) was established for the regulation of
inter-country adoptions in India. Later CARA was designated as the Central Authority for
implementation of the Hague adoption convention.
Till 2000, Juvenile Justice Act’s provisions related to adoption were not very clear and
comprehensive but in the 2015, the J.J. act made the laws regarding adoption process
complete and streamlined. The law clearly states that all inter-country adoption will take
place only as per the provision of the Juvenile act, and adoption regulations framed by
CARA.
Principle of Subsidiarity
The basic principle of childcare and protection emphasizes that the child should be raised by
his or her own biological family. But if a child does not have a family, then efforts should be
made to place the child in an alternate family-based care for a peaceful and healthy growth.
Here adoption may be considered, but while considering adoption, it should be preferred that
the child remains in his or her original social, cultural environment and this the prime reason
why in-country adoption should be the first choice.
If a suitable family cannot be found in the country of origin, inter-country or cross-border
adoption may be considered, so that a permanent family can be offered to a child.
the Hague Convention
Hague Convention on the protection of children & cooperation in respect of inter-country
adoption is an international treaty. This treaty was concluded in Hague on 29th May 1993 and
came into force on 1st May 1995. The document of the treaty was drafted by the Hague
Conference on private international law and till now the treaty has been ratified by 99
countries and 3 countries have signed it but not yet ratified.
The countries which have ratified the conventions are supposed to follow the conditions or
the standards as far as possible. Many countries which have not ratified the convention are
neither permitted to participate in foreign adoptions of their children nor are allowed to adopt
foreign children by their residents.
Purpose of The Hague Convention
The purpose of the Hague convention is to safeguard the best interests of the adopted child
and to prevent illegal, irregular adoptions so that both the families and child are protected at
all costs. To achieve this purpose, it has set out clear roles, responsibilities, and procedures
regarding inter-country adoptions. It has also established a system of cooperation between the
authorities of the child’s native country and the receiving country. It provides inter-
government recognition of the adoption, which has taken place following the Hague
convention. Such adoptions shall be held valid by both the countries and no adverse
consequences will be faced by the adopted child and the adoptive family.
India has signed and ratified the Hague convention in 2003 and it is also a member of the
Hague Conference. An NRI, OCI, or a foreign prospective adoptive parent who wishes to
adopt a child from India must follow the Indian guidelines. These regulations are required to
check the illegal practices like trafficking, kidnapping, and sale of children and corruption.
Laws, Applicable on Inter-Country Adoption in India
All inter-country adoptions, whether it is an adoption of an orphan or an abandon, or a
surrendered child, or adoption of a relative’s child, can be done only as per the provisions of
the Juvenile Justice Act, 2015 and Adoption Regulation Act, 2017 (framed by CARA). These
provisions give effect to the Hague Convention on adoption, to which India is a contracting
party & therefore, India is obligated to adhere to its conditions.
Adoption Amendment Regulation, 2021
The latest amendment bill 2021 passed by the Rajya Sabha in July 2021 and made a few
changes in the Juvenile Justice Bill (Care & Protection of Children) Act, 2015 related to
adoption procedure.
It brought new rules to facilitate the transnational adoption under Hindu Adoption &
Maintenance Act (HAMA) by asking CARA to frame regulations regarding adoption under
the legislation. Earlier, the families had to go to court for the no-objection certificate in
transnational adoption cases but now after this amendment, adoptive families can obtain a
certificate of no-objection to take the child abroad from the Central Adoption Resource
Administration (CARA) which is a government’s adoption authority.
Under this amendment, the ministry waived the two-year mandatory period of stay in the
country for constant monitoring by CARA and other authorities. Following this new rule,
adoptive families can now inform Indian diplomatic missions two weeks in advance of their
intent to travel with the adopted child. During this process, the families must furnish all
details of their residence. Hereby, The Indian missions will then monitor the progress and
security of the adopted child, instead of CARA and other authorities.
How To Proceed?
CARA primarily deals with the adoption of orphan, abandon & surrender children through its
associated recognized adoption agencies. The parents who wish to adopt a child must be
sponsored by a child welfare agency or a social agency that is recognized by the government
of the country in which the foreign couple resides.
If there is no Authorized Foreign Adoption Agency or Central Authority in the country of the
couple, then they shall approach the Government department or Indian diplomatic mission
concerned in that country for the purpose. The adoptive parents are required to register with
CARA and need to follow the guidelines prescribed by the authority.
Challenges Arise in Case of Inter-Country Adoption
There are also some regulatory challenges to transnational adoption. These regulations are
required to check illegal practices like trafficking, kidnapping, exploitation, child labor, and
the sale of children. The major object of the amendment is to prevent such illegal activities
against children.
Some of the challenges that come with inter-country adoption are –
Lengthy Process
Due to the Lengthy process of adoption in our country, sometimes it is tough and
cumbersome to attain the documents of adoption like NOC, etc. within a limited time for
adoptive parents. Hence, to speed up the procedure the Ministry of Woman & Child Welfare
introduces some new guidelines and issues directions to CARA.
Illegal Practices
Sometimes people who want to be adoptive parents have malicious intentions towards the
adoption of a child, and in such cases, after taking them to other countries the child can be the
subject of illegal activities like exploitation, child labor, human trafficking, etc. To ensure the
safety of children and to prevent such illegal practices the government should proceed with
the process of adoption only after conducting a thorough investigation with all required legal
proceedings.
Post Adoption Identity Problem
In transnational adoptions, the procedures are generally onerous and lengthy. Adoptive
parents should complete the entire adoption procedure here in the child’s native country as
well as their own country by following all the regulations of adoptions of the countries
involved. In a situation where they fail to complete the adoption process of a foreign country
after taking the child abroad and the guardian does not turn out to be the adoptive parents of
the child, the condition can significantly worsen for the child. Hence, the Child Protection
Authorities, CARA, and now the Indian diplomatic missions ought to ensure the safety of
adopted children every time.
Post Adoption Negligence
In such inter-country adoptions, it is very tough to monitor the child custody in hands of
adoptive parents regularly therefore, there is a high possibility of negligence by the parents
towards adopted children. Hence, the government seeks the recommendation of adoptive
parents by a child welfare agency or a social agency that is recognized by the government of
that country in which the foreign couple resides, to ascertain the security of the child.
CONCLUSION
It is pertinent to note that it took at least three decades and several incidents that were
arbitrary in nature to lay down guidelines for adoption. In the guise of Lakshmi Kant Pandey
judgment, the Hon’ble Supreme Court laid down guidelines for intercountry adoption. In
many researchers' opinions, we as a nation are still divided and struggling with religious
beliefs. So much so that a process as natural and giving birth of children and then adoption is
being dragged into the umbrella of religious politics. Adoption is a noble cause, which brings
happiness to kids, who were abandoned or orphaned. This gives a chance for the humane side
of civilization to shine through. It is a beneficial program where the child is treated as a
natural-born child and given all the love, care, and attention. Although there is a tremendous
improvement in the adoption laws for Hindus, in the case of Muslims, there is a lack of
uniform civil code on adoption, and they cannot legally adopt a child. Only by enacting
uniform civil code in India, people of other religion will be allowed to adopt a child legally
which means making registration of adoption compulsory. This will further help to improve
the health of a childless parent. The adopted child will also get proper care and protection and
will have a bright future. It is accepted that the observance of the above is a difficult task but
not impossible. A uniform civil code in adoption laws will not violate fundamental rights to
religion. It should be remembered that the Directive Principles of States Policy (DPSP)
mandate the state to bring uniformity in laws. The children from all religions may easily be
given and taken in adoption and will agree with the constitutional mandate enshrined in
Articles 39 and 44.
Adoption and related problems
I. INTRODUCTION
Adoption is the establishment of a parent-child relationship through a legal and social process
other than the birth process. Owing to our multicultural, multilingual, and multireligious
sentiments in the country, it has been a difficult task to identify all complexities and bring
into force an effective adoption policy uniformly in the country. Adoption shall be restored to
for ensuring the right to family for the orphan, abandoned and surrendered children, and with
the advent of civilization; secular as well as religious needs have the effect of the process of
adoption.
II. DEFINITION OF ADOPTION
Section 2(2) of the Juvenile Justice Act of 2015 states that adoption is the process through
which the adopted child is permanently separated from his/her biological parents and
becomes the lawful child of his/her adoptive parents with all the rights, privileges and
responsibilities that are attached to a biological child.
III. OBJECT OF ADOPTION
1. In past, to secure the performance of one’s funeral rights and to preserve the
continuance of one’s lineage. But in recent times, adoption has been the means to restore
family life to a child deprived of his or her biological family.
2. Provides home for homeless children and for providing richer family life to those
persons who have no children or who have only one child and want to adopt another.
IV. LEGAL RECOGNITION TO ADOPTION
i. It is legally recognized only among the Hindus in the true sense of taking of a child as
a substitute for a natural-born child.
ii. Muslims do not recognize adoption.
iii. The practice has been prevalent among Christians and Parsis.
V. HISTORY OF ADOPTION IN INDIA
i. The Smritis literature has a well-defined law of adoption. Only one son could be
adopted for the continuation of the family line, to offer oblations to deceased ancestors.
ii. The Dharmasastras deals in detail with the qualifications of the male child to be taken
in adoption. The adopted son is uprooted from his natural family and transplanted into an
adoptive family like a natural son.
VI. Fundamental principles governing adoption
The following fundamental principles shall govern adoptions of children from India, namely:-
1. the child's best interests shall be of paramount consideration, while processing any
adoption placement.
2. preference shall be given to place the child in adoption with Indian citizens and with
due regard to the principle of placement of the child in his own socio-cultural environment, as
far as possible.
3. all adoptions shall be registered on Child Adoption Resource Information and
Guidance System and the confidentiality of the same shall be maintained by the Authority.
VII. STAKE HOLDERS IN ADOPTION PROCESS
i. Central Adoption Resource Authority (CARA)
ii. State Adoption Resource Agency (SARA)
iii. Specialised Adoption Agency (SAA)
iv. Authorised Foreign Adoption Agency (AFAA)
v. District Child Protection Unit (DCPU).
VIII. LEGISLATIONS GOVERNING ADOPTION
1. The Hindu Adoption and Maintenance Act of 1956:
This Act governs Hindus, Jains, Buddhists, and Sikhs
The Supreme Court under section 5(1) of the Hindu Adoption and Maintenance Act, held that
the adoption by a widow also binds the deceased husband along with all legal right to family
title and inheritance in the case of Sawan Ram V. Kalavati
2. The Guardians and Wards Act of 1890, and
3. The Juvenile Justice (Care and Protection) Act of 2000, amended in 2015:
Irrespective of faith and religion, adoption can be done under this Act.
IX. DIFFERENT KINDS OF ADOPTION
1. The Juvenile Justice (Care and Protection of Children) Act of 2015 read with
Adoption Regulation of 2017 has recognized five kinds of adoption namely:
i. An abandoned, surrendered, destitute children adopted by an unrelated person(s)
living within the country.
ii. An abandoned, surrendered, destitute children adopted by an unrelated person(s)
living outside the country.
iii. A related child by relatives living within the country.
iv. A related child by relatives living outside the country.
v. Adoption of a child by step-parents within the country.
X. WHO CAN ADOPT
Section 41 (6) Juvenile Justice (Care & Protection of Children) Act of 2000 states that the
court is empowered to allow a child to be given in adoption to the following persons:
• A person irrespective of his/her marital status,
• The parents to adopt a child of the same sex irrespective of the number of existing
biological sons or daughters, and
• Childless couples. According to Section 57 of the Juvenile Justice (Care and Protection of
Children) Act of 2015 and Regulation 5 of Adoption Regulations of 2017.
General
Prospective adoptive parents (PAP) are physically, mentally and emotionally stable,
financially capable and who do not have any life-threatening medical conditions are eligible
to adopt.
• The minimum age difference between the child and PAP(s) shall not be less than twenty-
five years.
Married Couple
• Married couples with at least two years of a stable marital relationship. • Both spouses must
consent for adoption in case of a married couple. • The composite age of the married couple
does not exceed a hundred and ten years.
Single Parent
• Single persons with or without biological or adoptive children can adopt provided they
satisfy the following:
i. A single female can adopt a child of any gender.
ii. A single male is not eligible to adopt a girl child.
iii. Age of a single parent does not exceed fifty-five years.
iv. Must have less than four children unless they are adopting a child with special needs,
a hard-to-place child, a relative’s child or a step-child.
Capacity to Adopt for a male
For a male who wants to adopt he needs to satisfy the following conditions,
1. Should have a sound mind
2. If married consent of the wife is required.
Capacity to Adopt for a female
For a female who wants to adopt she need to satisfy the following conditions
1. Unmarried
2. Divorced
3. Widowed or
4. Her husband suffers from certain disabilities
a. Ceased to be a Hindu
b. Has renounced the World
c. Has been declared to be of unsound mind by the court.
Which child can be adopted?
A child can be adopted if she/he is:
• A child who has been declared by the child welfare committee (CWC) as legally free for
adoption. That child may be an orphan, abandoned or surrendered (OAS) child or declared as
such under the provisions and rules of the Juvenile Justice (Care and Protection of children)
Act of 2015.
• A child of blood relations (a child’s paternal uncle or aunt, a maternal uncle or aunt or
paternal and maternal grandparents are related through bloodline and called blood relations)
• A child or children of the spouse from an earlier marriage. In this case, the child or children
is\are should be surrendered by the biological parent(s) for adoption by the step-parent.
[Section 38 and 56 of the Juvenile Justice (Care and Protection of Children) Act of 2015.
XI. ADOPTION UNDER VARIOUS RELIGION
Muslim Law:
Kafala is the Islamic term for adoption. Rules for Kafala under Islamic law:
• The surname of the adopted child remains the same as that of his/her Biological family.
• Normally the adopted child does inherit from the adoptive parents but inherits from
biological parents.
• The adoptive parents act merely as trustees of property or any other wealth provided by the
biological family and should not intermingle the adopted child’s property or wealth with their
own.
Christians and Parsis:
There is no civil law for Christians for adoption.
Anyone who wants to adopt has to obtain permission from the court under Guardians and
Wards Act, 1890.
Here the adopted child is said to be under foster care and legally free to break away from the
adopted family once he/she becomes major.
Does not have the legal right of inheritance.
Hence the national commission for women stressed for uniform civil law for adoption.
XII. INTERNATION COVENANTS
Hague Adoption Convention: When the adoption is done not per the adoption laws and
procedure it is called as illegal adoption. To eradicate such abuses The Hague Adoption
Convention was established.
An illegal adoption may be mainly in two forms:
1. Illegal actions or misconduct from adoption agencies.
2. Black market adoptions. Added to the above, mistakes made by adoption agencies, courts,
and poorly advised prospective parents may result in an illegal adoption.
XIII. Adoption Amendment Regulation, 2021
The latest amendment bill 2021 passed by the Rajya Sabha in July 2021. It brought new rules
to facilitate the transnational adoption under Hindu Adoption & Maintenance Act (HAMA)
by asking CARA to frame regulations regarding adoption under the legislation. Earlier, the
families had to go to court for the no-objection certificate in transnational adoption cases but
now after this amendment, adoptive families can obtain a certificate of no-objection to take
the child abroad from the Central Adoption Resource Administration (CARA) which is a
government’s adoption authority.
Under this amendment, the ministry waived the two-year mandatory period of stay in the
country for constant monitoring by CARA and other authorities. Following this new rule,
adoptive families can now inform Indian diplomatic missions two weeks in advance of their
intent to travel with the adopted child. During this process, the families must furnish all
details of their residence. Hereby, The Indian missions will then monitor the progress and
security of the adopted child, instead of CARA and other authorities.
XIII. CHALLENGES FACED IN ADOPTION
1. Lengthy Process
It is tough and cumbersome to attain the documents of adoption like NOC, etc. within a
limited time for adoptive parents. Hence, to speed up the procedure the Ministry of Woman
& Child Welfare introduces some new guidelines and issues directions to CARA.
2. Illegal Practices
Sometimes adoptive parents have malicious intentions towards the adoption of a child, and in
such cases, after taking them to other countries the child can be the subject of illegal activities
like exploitation, child labor, human trafficking, etc.
Solution: To ensure the safety of children and to prevent such illegal practices the
government should proceed with the process of adoption only after conducting a thorough
investigation with all required legal proceedings.
3. Post Adoption Negligence
In inter-country adoptions, it is very tough to monitor the child custody in hands of adoptive
parents regularly therefore, there is a high possibility of negligence by the parents towards
adopted children.
Solution: Hence, the government seeks the recommendation of adoptive parents by a child
welfare agency or a social agency that is recognized by the government of that country in
which the foreign couple resides, to ascertain the security of the child.
Although state-approved agencies are providing adoption, the fact is that private adoptions
are still taking place in some hospitals through agents and with unorganized sectors.
4. Most of the time, adoption agencies are perceived to be “money makers” and so they are
constantly put under “scanner” by the whistleblowers.
5. There is a lack of consistent and complete data in some states which makes it difficult to
conduct research studies.
6. Contrary to Western countries, Indian culture does not encourage “open adoption”.
Because India follows “closed adoption”, confidentiality about the birth parent/s is not
disclosed. As of today, it is observed both in rural and some families in urban areas, adoptive
parents are also not comfortable telling their children about status. If a child gathered this
information from others, the trust could become a major issue in the parentchild relationship.
7. Single parent adoptions are legal, yet there is no study or evidence of any increase in single
parents who have adopted children. There are no data available on the success rate of single-
parent adoption.
8. Gender Bias in Adoption: Conceptually the gender bias is removed in the adoption process
by the enactment of the Hindu adoption and maintenance Act, but in reality, a married female
cannot adopt even with the consent of the spouse unless when the husband suffers some form
of disability or deceased. This is a clear case of gender bias in terms of adoption. The law
gives the male a broader right while restricting the female. This is clearly referred to in the
case of Malti Roy Choudhury v. Sudhindranath Majumdar.
XIV. CONCLUSION
It is pertinent to note that it took at least three decades and several incidents that were
arbitrary in nature to lay down guidelines for adoption. In the guise of Lakshmi Kant Pandey
judgment, the Hon’ble Supreme Court laid down guidelines for intercountry adoption. In
many researchers' opinions, we as a nation are still divided and struggling with religious
beliefs. So much so that a process as natural and giving birth of children and then adoption is
being dragged into the umbrella of religious politics. Adoption is a noble cause, which brings
happiness to kids, who were abandoned or orphaned. This gives a chance for the humane side
of civilization to shine through. It is a beneficial program where the child is treated as a
natural-born child and given all the love, care, and attention. Although there is a tremendous
improvement in the adoption laws for Hindus, in the case of Muslims, there is a lack of
uniform civil code on adoption, and they cannot legally adopt a child. Only by enacting
uniform civil code in India, people of other religion will be allowed to adopt a child legally
which means making registration of adoption compulsory. This will further help to improve
the health of a childless parent. The adopted child will also get proper care and protection and
will have a bright future. It is accepted that the observance of the above is a difficult task but
not impossible. A uniform civil code in adoption laws will not violate fundamental rights to
religion. It should be remembered that the Directive Principles of States Policy (DPSP)
mandate the state to bring uniformity in laws. The children from all religions may easily be
given and taken in adoption and will agree with the constitutional mandate enshrined in
Articles 39 and 44.

Mediation and Conciliation

Arbitration, Conciliation and Mediation are the Alternative Dispute Resolution for solving
civil nature disputes. These are dispute resolution methods to deal with disputes on a broad
and global scale. Through these methods one can resolve their disputes without access to the
regular judicial system, i.e. judicial courts. The Article 39A of the Indian Constitution clearly
states that The State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing justice
are not denied to any citizen by reason of economic or other disabilities.
to implement their orders, the Parliament came up with various alternative dispute Resolution
(ADR) methods such as arbitration, conciliation, mediation etc to strengthen the judicial
system of the country. Not only Constitution , CPC also provide Section 89 Order 10 Rule 1-
A to 1-C to the parties to opt for ADR processes. In recent years, ADR has gained worldwide
recognition among the general public and also in legal world. It is a cost effective method to
resolve disputes as trial is the expensive one. ADR procedures are generally more flexible
than court procedures. ADR is provides speedier mechanism to resolve a matter in dispute
rather than the court system.
Conciliation
Conciliation means settling disputes without litigation. It is an informal process in which
conciliator i.e. third party tries to bring the disputants to agreement. He overcomes the
disputable issues by lowering the tension, improvement in communication, interpreting
issues, providing technical assistance, exploring potential solutions and bringing the
negotiated settlement before the parties. Conciliator adopts his own method to resolve the
dispute and the steps taken by him are not strict and legal. There is no need of agreement like
arbitration agreement. The acceptance of settlement is needed by both of the parties.
Part III of the Arbitration and Conciliation Act, 1996 deals with conciliation. it is a voluntary
proceeding where parties in dispute agree to resolve their dispute through conciliation. It is a
flexible process which allows the parties to decide the time and place for conciliation,
structure, content and terms of negotiations. In Conciliation, the conciliators are trained and
qualified neutral person who help the conflicting parties to make them understand the issues
in dispute and their interest to reach mutually accepted agreements. The conciliation process
includes the discussion between the parties which is made with the participation of the
conciliator. It covers many disputes like industrial disputes, marriage disputes, family
disputes etc. This allows the parties to control the output of their dispute. The result is also
likely to be satisfactory.
Conciliator
Conciliator is the third party who is involved in settling the dispute of the parties. Generally,
there is one conciliator for the settlement but there can be more than one conciliator, if the
parties have requested for the same. If there is more than one conciliator then they will act
jointly in the matter. Section 64 deals with the appointment of conciliator which states that if
there is more than one conciliator then the third conciliator will act as the Presiding
Conciliator.
Kinds of Conciliation
Voluntary Conciliation- In this method parties can voluntarily participate in the process of
conciliation for resolving their dispute.
Compulsory Conciliation- If parties do not want to take the opportunity of voluntary
conciliation then they can go for compulsory conciliation. In this method, if the parties do not
want to meet the other party to resolve the dispute then the process is said to be compulsory.
This method is commonly used in labour cases.
Procedure of Conciliation
The objective of the conciliation proceedings is to reach upon mutual terms, speedy and cost-
effective settlement of the dispute. Section 62 discuss the initiative of conciliation will start
when one party will send Written Invitation to conciliate upon the matter to the other party.
There will be the commencement of procedure if the other party accepts the invitation in
writing to conciliate. If the other party rejects the invitation or the party who is willing for the
conciliation does not get a reply from the other party within Thirty days then it will be treated
as a Rejection of the Invitation.
Section 65 explains the submission of the statements of both the parties to the conciliators.
Each party should submit a brief written statement regarding dispute as requested by the
conciliator. The statement should describe the general nature of the dispute and the points of
issue. Each party should send a copy of their statement to the other party. The conciliator can
also ask for the submission of written statements which includes issues of the parties, grounds
of settlement etc. These statements must be supplemented by evidence, documents or visual
representation. The copy of the same statement must be sent to the other party. Conciliator
can also request for additional documents whenever he needs them. According to Section
67(3) and 69(1), the conciliator can set up meetings for the parties or he can meet parties
together or separately. The place of meeting can be decided by parties or conciliators. He can
also communicate with the parties orally or in written form. He must also consider the party’s
expressed wishes like quick settlement of the case which also depends upon the
circumstances of the case.
Advantages and disadvantages of Conciliation
Advantages
The conciliation procedure is of private nature. The documents, evidences or any other
information which are used during the process are Confidential.
One of the most important advantages is that they are Informal process and contains Simple
procedures which can be easily followed by the general people.
The process depends upon the circumstances of the case. In these processes the need of the
parties comes first like quick settlement of their cases so there is no chance for delay.
The selection of the conciliators depends upon the parties. The parties can choose conciliator
on the basis of their availability, experience in particular field, previous track records of the
cases, knowledge in subject area.
The conciliation is cheap as compared to litigation. They are cost effective and most opted
process for resolving disputes. It purely depends upon the nature of the dispute but is widely
acceptable.
Disadvantages
Conciliator is not a legally qualified person for resolving disputes. His decision is not binding
upon the parties.
As the procedure of conciliation is informal and simple there is high possibility of delivering
injustice.
Miscommunication of information: The role of the conciliator to settle up the case by giving
information of one party to another and vice versa. The process of sending and receiving
information sometimes leads to mixed and incorrect information. So, by these processes one
can easily interpret the information given.
Mediation
Meaning
Mediation is one of the alternative dispute resolutions which are voluntary and informal
process for resolution of disputes. Mediation is a process which is under the control of the
parties. The mediator acts as a middle person who helps to come on a negotiated common
point of their dispute. They are trained professionals or sometimes attorneys who assist the
parties in dispute to meet at a common place where they can discuss their issues and can try
to negotiate to reach at a common output. A mediator uses special kind of conversation and
communication to resolve the parties dispute.
The parties can appoint the mediators themselves with mutual consent or the court may
appoint the arbitrators in pending litigation. In Mediation, the parties are the decision makers.
Mediators don’t decide what is right or wrong or what is fair or unfair. Mediator can’t impose
his opinion upon the parties but he can suggest and help the parties to reach a mutual
accepted agreement. Mediators may hold joint meetings or can meet with the disputed parties
together or separately and can suggest some possible solutions, provide options to
compromise, or provide advice and guidance but they cannot impose their opinion or try to
solve the dispute forcefully. In mediation, both parties are responsible for reaching the
outcome. The role of the parties in mediation is not to convince the mediator but to come up
with a common solution which is acceptable by both the parties.
Mediation is an informal method of settling disputes, while it consists of basic rules or
procedures. The decision of the mediation is non-binding upon the parties. If the disputed
parties have agreed for the process of mediation then it is not binding upon them to agree
upon the proposed opinion of the Mediator. The mediator can suggest, give opinions and can
tell what to do or what not but he can’t force the parties to attend the mediation if they are not
interested to continue.
Mediation can be divided into two categories which is commonly followed in India:
Court referred mediation
The court may refer the pending case to a mediator for mediation if they think there is
possibility for the settlement of the case. The act of referring cases is given in Section 89 of
the civil procedure code, 1908. These kinds of mediation are used in matters like divorce
cases or cases which deals under Negotiable Instrument Act, 1881.
Private mediation
In this kind of mediation, the professional and trained person works as Mediator. The general
public, government authorities, personnel from corporate sector or anyone from court can
approach them for settling their dispute through mediation.
Mediation in India
Mediation is one of the ancient methods of resolving disputes between the parties.Various
forms of Mediation among businessmen gained recognition during Pre-British rule in India.
The Mahajans were respected, impartial and wise businessmen who resolved disputes
between merchants through mediation. The informal process practiced in India’s western
province of Gujarat was a combination of Mediation and Arbitration, now known as Med-
Arb in the Western world. Despite of getting widespread acceptance in the business world,
arbitration had no legal sanction.
The East India Company gained control from England and divided Indian rulers and
converted their commercial purpose in political aggression. By 1753, Britishers established
their colonies and British-style courts came into existence in India. By 1775, Britishers
ignored the local indigenous processes for settling disputes and set up courts based on British
laws of that period. However, there was an underground dispute going on between British
values which gives clear decision on cases and Indian values which promote the parties to
work with their differences and end it with some kind of settlement. British courts slowly
became recognized for their integrity and by gaining people’s confidence. Even after the
Independence of India in 1947, the Indian judiciary has been declared as Nation’s Pride.
Commerce, trade and industry began to expand rapidly in the 21st century the British system
quickly dispensed justice while maintaining respect and honour. In Independence, mediation
has also played an important role in awareness of fundamental and individual rights,
Government’s participation in the growth of trade, commerce and industry of the nation,
establishment of Parliament and State Assemblies, Government Corporation, Financial
Participation in institutions, fast growing international commerce and public sector business.
The explosion in litigation resulted from the increase of civil litigation, Business
opportunities beyond local borders, increase in population, creation of new acts, new rights
 and measures and increase dependence on sole Judicial Forum of Courts.. Due to lack of
facilities there was a challenge to handle the overload of cases efficiently and effectively by
the judicial forum. The concept of Arbitration got legislative recognition for the first time in
India through Industrial Disputes Act, 1947. Almost all democratic countries of the world
have faced similar problems regarding access to justice. The United States faced the most
major changes in their law reform in 30 years and the same was being followed in Australia.
United Kingdom has also adopted alternative dispute resolution as part of its legal system.
European Union also favoured the arbitration for the settling of commercial disputes between
member states.
Difference between Mediation and Conciliation

Conciliation Mediation

Conciliation is an alternative dispute

Mediation refers to a process of settling
resolution method in which an expert is
disputes by independent and impartial
Meaning appointed to resolve a dispute by
third party who assists the parties to
convincing the parties to agree upon an
reach a common outcome.
agreement.

Regulation By The Civil Procedure Code, 1908. Arbitration and Conciliation Act, 1996.

Number of
One or more conciliator. One mediator.
Third party

In mediation confidentiality depends

In Conciliation Confidentiality is upon thrust, and it is advised for all
Confidentiality
determined by the law. parties to sign a Confidentiality Clause
for extra measure.

In mediation, the mediator should be

Nature of third In conciliation the conciliator plays a more
impartial and objective to the parties’
party active role.
dispute.

In Conciliation, the conciliator also plays

In Mediation, the mediator does not
Third party the role of evaluation and intervention for
give any judgement.
settling the dispute.

Conclusion
The procedures and techniques discussed above are the most commonly used methods of
ADR. However, there are countless various ADR methods, many of which modify or
combine the above methods. With each type of ADR, the objective is to resolve the dispute
by method of round table discussion . ADR is the most effective process which lessens the
burden of courts. ADR promotes harmonious relationship among parties. The settlement of
disputes through ADRs is so effective and globally accepted that courts have recognized
some of them like mediation more often. This avoids procedure of litigation and the award
for fair and impartial settlement of doubtful issues of an individual on legal and ethical basis
which is based upon ground reality.
This is what distinguishes ADR methods from general litigation. There can be only one
winning party after a court trial, while all parties can be treated as winner after conciliation,
mediation or negotiation, as there is no conflict between them and they go through the
settlement procedure.

Naxalite Movement: Causes & Cure

Introduction
Democracy has been noted as the strongest voice of the people, be it for the tangible interests
of the people or the intangible interests of the people. The term Naxalism has been used as an
expression of the socio-economic view of understanding. The young and fierce ideology of
the rebel minds caused a surge in the movement, giving it the name of Naxalism in India. It
was the beginning of a movement that would create a “liberated zone”.
Naxalite are a group of left radical communist and the supporter of Maoist political ideology.
The word Naxalite derived from the word "Naxalbari" which is the name of a village of west
Bengal where a peasant insurgencies took place on 1967 against the landlords. Generally the
majority of people of naxalite group are belongs to labourer, adibashi, and unemployed and
mostly of them are living in remote area where the development failed to reach yet.
At very first this movement had started in Naxalbari village and gradually spread to all over
India. At initial stage this movement started against the landlords by peasants but now they
are fighting for the all poor, downtrodden and socially backward classes. And now they are
significantly active in 72 districts of 9 different states and gradually it is becoming threat to
the Development of Indian economy.
Origin:
Naxalism was originated by the gentleman Kanu Sanyal, Charu Majumdar and Jangal Santhal
Kanu Sanyal, "who were follower of communist ideology. He think the economic freedom
will come when you fight with maximum wealth holder[4]."
Charu Majumdar, who were inspired by the various ideology of Mao Zedong of china. He
said, "That Indian peasants and lower class tribal's overthrow the government and upper class
by force for whom he held responsible for their commitment." A large of urban elites were
also attracted to the ideology, which spread through Charu Majumdar writing particularly the
"eight historic documents" which formed basis naxalite ideology. Charu Majumdar wanted a
prolonged people's war in India similar to Chinese revolution 1949.
And Jangal Santhal, who started his political carrier on 1949 in Nepal. Santhal was a popular
person among the Adivashi, peasants and tea labourers of Darjeeling. Santhal stood in
election for communist party of India and communist party of India(Marxist) on 1957,1962
and 1967 but he had been unsuccessful to achieved winning number of votes. Santhal was
front warrior of the naxalite movement.
Initially the Naxalite movement originated in West Bengal and had later moved to the less
developed rural areas in southern and eastern India including in the state of chhatisgarh,
Odisha, Andhrapradesh, and telengana.
Some Naxalite group have legal organisations as representative in the parliament like the
communist party of India, liberal and communist party of India. As of 2018, the states where
Naxalites are most visible these are:
Chhatisgarh, Odisha, Andhrapradesh, and telengana
It was the year of 1967, It had been 20 years since India achieved independence from the
British but the country still following the colonial land tenancy system. Indigenous landlords
were allotted a piece of land in return of collection of tax revenue and this landlords were
giving subleased of their lands to the peasants for half of yield.
According to 1971 census[5], about 60% of people of the population were landless and the
major share of land were in the hands of 4% richest peoples. The peasants were exploited by
the landlords raised their bow and arrows in insurgencies. And this was the primary cause of
this movement.
In India about 8% people are adhibasi and 92% of them living in tribal areas such as forest
and hills and this tribal areas are far away from development or the government failed to give
them a secure or peaceful life and this are the main causes for increasing number of naxalite
movement in this areas. According shri Gadar "the revolutionary poet support Naxalism and
said Naxalism is the result of failure of democracy."
Who are Naxalites?
Naxalites are common people who want equal social and financial status for all. Their
ideology is clear that they are fighting oppression and exploitation to create a classless
society. They work for the centralization of power. They just want basic amenities for their
survival; infrastructure and most importantly they want opportunities to grow. The Naxalites
operate mostly in rural and Adivasi regions. They are usually found in the area where there is
a forest cover. Their motto is to show teeth and enlarge upon their ideology and if possible
support landless and poor.
Root Cause behind Naxalism:
Zamindari System
The Zamindari system was adopted during the British rule wherein a piece of land was given
to a Zamindar and in return, he was required to pay a certain amount to the company or the
state. The Zamindar did not cultivate the land himself. He distributed and redistributed it till
it reached the tiller of the land who was a tribal or a common man working hard in the field.
At each stage, the poor people or the tribals suffered immensely because a certain amount
was required to be paid to the renter of the land and it led to the exploitation of the poor tribal
at each stage.
Improper implementation of Government's plans:
Generally most of the tribal people are living in remote areas and because of remoteness and
tough to reach there the development also failed to reach here even after many years of
Independent government failed to implement adequate development in this areas.
MNNREGA, PMGSY, PDS, Mid-day mill are the programs for underprivileged people but
this programs are failed to took adequate changes because of the corrupted authority and
government improper supervision.
According to 2010 census[6] about 37% of tribal students were leaving their school at
primary level and about 78% tribal students leave their school at high school level because of
poverty. Many decades had been passed after independent but yet government failed to
secure a dignified and peaceful life for this tribal people because of this there is no way left
for to this people except to join violence for living.
Economic Deprivation:
The main reason behind the growing of Naxalism is increasing awareness among the tribal
about their socio economic deprivation. The tribal people's socio economic condition is very
poor even the government do nothing for their development. They have understood that
without proper governance no development will take place.
The government expending crores of rupees on every year for implementing plans and
programs for their development. But no development are taking place for them instead of
development of the rich who becoming richer and poor poorer. According Washington report
there are 20 lakh crore rupees the Indian government lost in corruption, tax evasion and
bankruptcy from independent this is extreme shame for India. The tribal people understood
that without good governance no development will take place which bring them closer to
Naxalism.
Improper Management of forest resources:
"In the colonial ruling the British administration passed law to create monopolization of
forest resources and this system was continuous even after independent the Indian
government try to use forest resources this situation led the forest dwellers to fight to save
their forest." The government decided to declare certain forests as reserved forests for the
purposes of conservation, scientific research, for sanctuaries and land acquisition for dams,
roads, industries, etc. It was done directly at the cost of the tribals who the inhabitants of
these forests for many generations. Thus, the state government, the contractors, and lower
level officials fully exploited the tribals, bringing down their status to that of encroachers in
the forests.
Resettlement and Rehabilitation
The records of resettlement and rehabilitation reveal that payment of compensation for lands
and assets acquired from the people for various purposes, are very rarely compensated to
them. For certain poor families, it has meant generations of resettlement without being given
any compensation. This has led to deprivation and marginalization of the people. Although
industrialization did take place in the country, the tribals were deprived of the basic benefits
of education and training. Therefore, they could not avail of new opportunities in the
industries and remained marginalized. Administration in Remote Areas Being very poor and
unmonitored, these areas were developed but had poor connectivity. Even post-independence,
the agrarian reforms did not reach these areas. Corruption, vote bank politics and atrocities
against the Scheduled Castes wreaked havoc in the economic and social fabric of the society.
Unemployment:
Unemployment is the root cause for the tribal people joining naxal . as per some report about
60% people of tribal area are living in rural and 32% are living in urban are below poverty
line and approx. 76% of them are farmer or agriculture labor. Several report reveal that 20
rupees is the daily expense of 60% of people of India. The Indian government framing
various plans and programmes for development of this people but because of improper
awareness, corruption and middleman this plans are failed to make any changes in this areas.
To get rid of this humiliation and pathetic life the youth are joining naxal and by the naxal
they are giving education to their fellows.
Remedies of Naxalism:
Basically the Naxalite Movement is a movement to snatch the peaceful & developed living
life which the government failed to provide them. The participants of this movements are
belongs to Adhibasi, laborer, Unemployed youth & socially backward class mostly of them
living in remote areas where the development failed reach or the government were failed to
give them a peaceful & standard life. So if the government wants to stop this movement the
government have to take some measures.
Which mentioned below:
Setup proper Infrastructure to Educate the people living in Remote Areas:
The majority of peoples living in remote or tribal areas are Uneducated it sounds bad but it is
reality. As per census 2011 the literacy rate of India were 74.04% and in remote areas or
tribal areas this rate decreased to about 38%. Due to lack of proper education the peoples
living in this areas are not so aware about the consequences of their act or some educated
peoples of this area are fighting to give their child a proper education environment which the
government failed to give them.
Though The Indian government had have launched many scheme to spread education in this
areas but due to improper implementation plan or corrupted employees this scheme had failed
to reach its destination. The government should take necessary measures to setup a corruption
free government offices so they can successfully implement the various education programs
of the government and the people for whom this programs had launched get benefited.
To give employment to the youth:
Tribal are mainly living at remote rural areas, hills and forest where infrastructural facilities
such as road transport, electricity, healthcare, educational institutions are not available in this
area due to this the peoples of there have failed to get job. The government has launched
NREGA for providing 100 days job to a male member of a family but it is not sufficient.
Good Governance:
The government of India launching various programs and policies for socio economic
development of socially backward, downtrodden, poor and tribal people. This plans
implemented through various ministries of government. But separate research reveal that this
schemes & plans are not implemented in proper way.
Invoking Social Responsibility between people:
A country or a society cannot grow without sense of social responsibility between its people.
The industrialist who have industries in the remote areas should exhibit social responsibility
by setting up school, colleges and health center for welfare of the poor people. And the
persons from this areas by the support of the various scheme of government held high official
post in the government, industries and political parties should contribute something to their
own community.
 NAXAL STRATEGY AND TACTICS
i. Organisational Strength of the Extremist Groups
The consolidation of several sections of the Naxalites has been responsible for the organised,
institutionalised and planned manner in which the Naxalites function. The ideological
dedication, the cadre-based organisational setup and understanding of the micro socio-
economic situation in various regions of India makes the extremists plan, operate and
implement their strategies efficiently. There is a Central Committee and a Politburo at the
apex. The hierarchical structure, which flows from the Regional Bureaus— State
Committee/Special Zone Committee—Zone and Sub-Zone District/ Division Committee—
Squad Area Committee, is well established and institutionalised. The armed wing has a few
divisions. At the village level, they have units called “Sanghams” comprising ideologically
committed active supporters.
ii. Protracted War
The Naxalites have adopted the strategy of “protracted war”. The aim is to capture political
power by armed struggle as a prelude to the subsequent unification of the liberated areas. The
armed struggle has no time limit. It can attain the goal in one or 10 or 20 years and, in this
way, the struggle moves ahead. Recently, the Naxalite groups have laid greater focus on
organising along military lines. The military wing has based its ideology on guerrilla warfare.
They have resorted to well-conceived, thoroughly planned and ably executed sensational
actions such as the attack on the convoy of Mr. Chandra Babu Naidu, the then Chief Minister
of Andhra Pradesh, the forced release of prisoners from the prisons at Jehanabad (Bihar),
Narayangarh (Orissa), police stations in Chhattisgarh and Silda (West Bengal) and the recent
spurt in hijacking of trains in Bihar and Jharkhand.
iii. Building up Bases/Guerrilla Zones
In order to fulfil the aim of protracted war, the Naxalites believe in building up both physical
and mass bases. Initially, the bases are built up in rural and remote areas. The areas are, then,
to be developed into “Guerrilla Zones” and ultimately into “Liberated Areas”. Naxalites
operate in the very heartland of India, known as the Dandakaryna region (named after a
mythological region from the epic Ramayana) which spreads over Chhattisgarh, Orissa,
Andhra Pradesh, Maharashtra and Madhya Pradesh. The heart of this region is the thickly
forested area of Abujmarh which is approximately 10,000 sq. km. This area till date has not
been surveyed by the Government of India. The Naxalites treat it as a totally liberated area.
iv. Compact Revolutionary Zone (CRZ)
The Naxalites, with the support of their Nepal counterpart, plan to create a ‘Red Corridor’,
starting from the Nepal border with Nepal and extending up to Kerala. It was in August 2001
that the idea came up of establishing a Compact Revolutionary Zone (CRZ) or the Red
Corridor. It extended from the forest tracts of Adilabad (Andhra Pradesh) to Nepal, traversing
the forest areas of Maharashtra, Chhattisgarh, Jharkhand and Bihar and Nepal. It was
conceptualised at Siliguri in a high-level meeting of the Maoist leaders. The notion of CRZ
seems to be working in the correct direction. There has been a remarkable growth in Maoist
between 2001 and 2010 in India. It has been reported that some Nepal Maoists have been
possibly trained in the West Champaran and Aurangabad districts of Bihar, and Palamau and
Kodarma districts of Jharkhand. Also, CPI - ML and PWG cadres are imparting specialist
training to the Maoists of Nepal in Rolpa and Rukum districts of Nepal. On this basis, they
attack the enemy’s outposts. An uncorroborated media input reveals that an attack on a police
outpost in the West Champaran district on July 16, 2004, was carried out jointly by Indian
and Nepalese groups. The attack on a police post in Madhu Bani in North Bihar in June 2005
is also reported to be a joint operation.
v. Tactics
To obtain their strategic, objectives, the Naxalites have been very ruthless in their approach.
The following methods highlight their tactics to achieve their goals. The Naxalites aim at
enhancing public support and mass base.8 The failure of the Naxalbari movement in the
initial stages led the Naxalite leaders to rely solely on the people and create a powerful mass
base. Therefore, now, the Naxals’ aim is to enlarge their mass/support base by undertaking
development work and garnering the support of the civil liberty groups. In addition, they
indulge in rendering instant justice through ‘Jan Adalat’s’. The movement has strengthened
itself in the forest areas and in areas marked by lack of governance.
vi. Jan Adalat’s:
Naxalites hold ‘Jan Adalat’s’ to dispose of the criminal and civil cases and, then, dispense
justice by settlement of disputes and punishing the offenders. For this, the PWG has
introduced a new ‘Judicial System’ by forming the ‘People’s Court’, i.e., the Gram Rajya
Committee and subsequently ‘Revolutionary People’s Committee’, as an alternate judicial
system. The ‘Judicial Department’ i.e. ‘Sangham’ comprising three to five members with a
‘People’s Protection Squad’ at its disposal, delivers judgments and sentences, including fines
and imprisonment in a temporary designated lock-up in the village, apart from awarding
capital punishment. The Dandakaranya Adivasi Mazdoor Kisan Sangh (DAKMS) and the
Krantikari Adivasi Mahila Sanghatan (KAMS) are two specific Naxal front organisations that
are entrusted with the task of looking into all disputes.
Naxalite movement as the biggest threat
The Naxalite threat is the biggest security problem for India’s future as its effects are multi-
layered. The Maoist movement highlights India’s interior weaknesses, which makes India
also vulnerable to external threats. As part of globalization, threats such as the Naxalite
movement can no longer be viewed as simply internal as it also affects external security.
The security dangers are aptly described by a former Pakistani Director-General of the Inter-
Services Intelligence and his description of India’s foreign affairs. The Director-General
equated India being busy with internal security problems to having two extra Divisions in the
Pakistan Army for free.
A nation cannot effectively withstand threats coming from outside its country if there is
instability inside it. Furthermore, globalization has encouraged the emergence of non-state
terrorist actors as well as international interference in each other’s affairs.
India has been one of the victims of international and state sponsored terrorism fuelled by
fundamentalist ideologies. India’s regional neighbors are also external threats.
For example, in 2004, the MHA was wary of the “symbiotic relationship” between the
Communist Party of Nepal and Naxal groups in India. This means having military deployed
along the border. In the past, India has also been involved in territorial disputes with China
such as over Aksai Chin. Another reason why the Naxalites are the biggest threat to security
is because of the way the issue affects India‟s economic development. This is apparent in
several ways.
For example, the more the Maoists concentrate on the poor and marginalized regions of India,
the more economic development (which is imperative to improving those regions‟
conditions) will be hampered.
Furthermore, the Naxalite rebels are no longer just focusing on remote jungles but on urban
centers. Maoist leader Kishenji even declared that the group aims to establish an armed
movement in Calcutta by 2011.
The Laws Made by the Government
Rehabilitation and Resettlement Policy, 2007 : The main aim of this act is to minimize the
displacement of people and to promote non-displacing or least displacing alternatives. The
Government issued a rehabilitation policy on 11 October 2007 for the easy displacement of
people who lose their land for industrial growth. Under this policy land in change for land
will be given, job prospective to at least one member of the family, vocational training and
housing benefits including houses to people in rural areas and urban areas will be some of the
benefits.
Forest Rights Act, 2006 : The Scheduled Tribe and Other Traditional Forest dwellers
(Recognition of forest Rights) Act 2006 or the Forest Rights Act recognizes the rights of the
scheduled tribes and forest dwellers who have been living in the forests for years but their
rights have still not been recognized. The Ministry of Environment and Forests has also
allowed use of 1 hectare of land for non-forest purposes and conversion of kattcha roads into
pakka roads.
Chhattisgarh Special Public Securities Act, 2006 : This bill provides definition of unlawful
activities, declaring an organization unlawful, formation of an advisory board wherever the
state government feels the need for its establishment, procedure of the formation of the
advisory board, action of the advisory board, penalties viz punishments even for not
committing a crime, the power to notify a place being used for unlawful activities and taking
occupation of such place thereof and revision/bar against intervention by the courts.
Are these laws effective?
These laws have in many ways caused a lot of problems to the tribal’s and the scheduled
castes by negating the spirit of the various safeguards available to the scheduled tribes under
the constitution and other laws in the country. The act providing ‘land for land’ has become a
nightmare for the government and has become a stumbling block for ensuring
industrialisation.
As per the Unlawful activities prevention act (UAPA) the government has banned all
organisations that have any connections with any Naxal movements like the MCC or the CPI-
M (Marxist-Leninist).
CSPS Bill, 2005: It provides the District Magistrate unconditional powers to notify places
which he thinks are being used for unlawful activities without any prior notification.
This bill also provides that any revision application has to be filed with the High court only,
challenging the validity of the order of the government. This petition has to be filed within 30
days and that no court has the jurisdiction against any decision of the court. Any kind of
application or form of revision or injunction by a court or officer except for the High court
and the Supreme Court regarding any action to be taken as a follow up to the order of the
government has been barred in this Bill. So it can be said that this bill was totally uncalled for
and has only be brought to act as a blandishment to the people.
Naxalite Movement Today
The naxal movement in India still has strength in certain regions but it is grossly untenable to
say that they pose an existential threat to India as they did in late 2000s. The steadfast
implementation of the “National Policy and Action Plan to address Left wing Extremism” -
201 has resulted in a consistent decline in naxal violence. Joint efforts of the Centre and the
States in cracking down on left wing Extremism led by Prime Minister have yielded much
success. The government is pushing towards modernisation of forces with the latest
equipment, arms and ammunition in fighting with Naxals. The government has approved
Rs.26, 275 crore from 2021- 22 to 2025-26 for its umbrella scheme, Modernisation of Police
Forces as part of the initiative to improve the functioning of police forces across States and
Union Territories. The Union Ministry in its efforts to curb the expansion plan of CPI
{Maoist) and also to restrict them to bounce back in the areas, recently has taken away from
Left Wing Extremists influence 8 districts. The overall decline in Naxal activities has further
been facilitated by the restrictions relating to coronavirus pandemic. Their activity is now just
concentrated in four States- Chattisgarh, Jharkhand, Odisha and Maharashtra. Thus one can
say that the geographical influence of the Naxals as well as the incidents of Left Wing
Extremism violence have reduced over a period of time.
Way Forward
The complexity of the causes of the Naxalite problem as well as its implications both for
internal and external security reflect a solution that is multi-dimensional and calls for a
synergy between the central governments and the states. In order to comprehensively dissolve
the Naxalite threat, the government has to address its root causes.
Socio-economic alienation and the dissatisfaction with the widening economic and political
inequality will not be solved by military force alone, which seems to be the main instrument
employed by the government. The problem calls for a three-pronged solution: social and
economic development, multi-lateral dialogue and military force.
Socio-economic development: As the Naxalites are fuelled by discontent from the
marginalized and the poor, a larger percentage of the national budget must be allocated to
addressing the needs of these regions. More of the national expenditure needs to be focused
on developing these poorer regions through initiatives regarding health, education, social
welfare and rural and urban development.
Government service delivery should be improved in these tribal areas. Both state and
government must ensure that things such as statutory minimum wages, access to land and
water sources initiatives are implemented. In coming up with strategies for national economic
growth, the government must always bear in mind the possible effects of fast growth for all
socio-economic groups in a country as large and diverse as India. If the social needs of these
marginalized people are addressed, there will be no discontent to fuel the Naxalite’s
movements.
Dialogue : Second, the government should initiate sincere dialogue with these marginalised
groups, the Naxalites and state leaders. The popularity of Naxalites with the adivasis is a
reflection of the fact that the government has been unaware or “unapologetically indifferent
to their plight”. By communicating and starting a dialogue between these stakeholders, these
groups will feel that they being listened to. By opening dialogue, the government can give
opportunity for the rebels to join the mainstream by showing them that solutions can be
created together with the government, by being part of the political system in a legitimate
way. They no longer need to resort to violence to get the state‟s attention.
For example, the former director-general of AP concluded that as a result of the ceasefire and
dialogue with Maoists in 2004, the violence in the state decreased by 80-90 percent in the
region. As David Pilling noted, the challenge for India‟s leaders will be to allow the
necessary development in these poverty-stricken areas while acknowledging the rights of a
neglected indigenous group.
Military: Currently, the main instrument employed by the government to address the Naxalite
threat is the increasing use of the military. While some military force is still needed to combat
against the Maoist guerrillas, it should not be the only solution. By only addressing the issue
by brute force, government risks alienating civilians who are caught in the middle. Coercion
of the state will only encourage people to rally against it.
Governance: The growing Naxalite insurgency also reflects a flaw in the federal structure.
Because law and order is seen as a state responsibility, the central government is unable to be
implementing a coherent national strategy to address the threat. The government has the
overall responsibility of mobilizing development, but it cannot do so without the support of
the states. The central government and the states need to cooperate together to solve the
internal security threats and co-ordinate the implementation of this multi-dimensional
approach. Both organizations must complement and support each other’s initiatives and
strategies.
Conclusion
The Naxals reached out to the people, understood them, took up their issues and fought for
their dignity and rights. They earned goodwill among the tribals and the downtrodden by
fighting for them. The Naxalite Movement started with a noble objective to protect the rights
of the tribals, but its extremism and violence deterred it from becoming an accepted
revolution. The tackling of the threat to internal security, as a result of this movement must
start with government addressing the problems faced by the tribals and ensure that their rights
are protected. The central and eastern parts of the country are relatively underdeveloped as
compared to other parts of India, both industrially and agriculturally. The areas also lag
behind in almost all human development indicators. Hence, efforts must be made by the
government to tackle the disparities in the social system. The government must take
immediate steps to eliminate poverty, ensure speedy development and enforce law and order
strictly and initiate welfare programs for the tribals in all parts of India.
Naxalites today are far more radicalised than they were when they first began and this leads
to a greater chance of increased violence. Before the government retaliates, it must address
the core issues on which this movement is based, eradicate or solve them and then further
work towards restricting the existence and spread of Naxalism. The government must also
resort to publicity campaigns in order to expose the unlawful activities and misdeeds of Naxal
outfits and their leaders, use of violence and armed struggle, loss of human life and property
and absence of developmental activities in the affected areas due to fear of, and extortion by,
Naxal cadres, etc. It must aim at finding loopholes in the strategy and tactics in the modus
operandi of Naxalites in the State. Furthermore, an attractive and all-encompassing surrender-
cum-rehabilitation policy will have a great psychological effect on the Naxals who seem far
removed from their ideology

Objectives of The Protection of Children from Sexual Offences Act, 2012

Introduction of the Act :
The aim of the Act is to protect children from offences of sexual assault, sexual harassment
and pornography and provide for establishment of Special Courts for trial of such offences
and for matters connected therewith or incidental thereto.
The Act enlarges the definitions relating to sexual offences provided by existing laws while
the victim is a child below the age of 18 vears. But, it does not exclude the existing penal
provisions. The Act defines offence of penetrative sexual assault and sexual assault with their
aggravated forms, sexual harassment and use of child for pornographic purposes. The Act
also declares that abetment of and attempt to commit an offence is separate offence.
The Act introduces constitution of special courts and procedural law in Chapters V to VIll of
the Act. Chapter V of the Act describes procedure for reporting of cases including obligation
and procedure for media, whereas Chapter VI prescribes the procedures for recording
statement of the child by police and by magistrate including procedure for medical
examination of a child. Chapter VII empowers the Government to constitute Special Courts
and appoint Special Public Prosecutors and establish relation between the procedure under
the Act and the Code of Criminal Procedure. It also empowers Special Court to presume in
certain offences. Chapter VIII describes procedure and powers of special courts and
recording evidence; it also says that trials under this Act are to be conducted in camera. The
Act also recognized right of child to take assistance of legal practitioner and take assistance
of the experts, whenever necessary.) by Object and reasons to introduce the Act.-
The Act was introduced with following aim and objects-
(1) Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to
make special provisions for children;
(2) The Government of India has acceded on the 11th December, 1992 to the Convention on
the Rights of the Child, adopted by the General Assembly of the United Nations, which has
prescribed a set of standards to be followed by all State Parties in securing the best interests
of the child;
(3) It is necessary for the proper development of the child that his or her right to privacy and
confidentiality be protected and respected by every person by all means and through all
stages of a judicial process involving the child;
(4) It is imperative that the law operates in a manner that the best interest and well-being of
the child are regarded as being of paramount importance at every stage, to ensure the healthy
physical, emotional, intellectual and social development of the child;
(5) The State Parties to the Convention on the Rights of the Child are required to undertake
all appropriate national, bilateral and multilateral measures to prevent-
(a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices;
(c) the exploitative use of children in pomographic performances and materials.
(6) Sexual exploitation and sexual abuse of children are heinous crimes and need to be
effectively addressed.
General Principles of POCSO Act
There were 12 main principles defined under the Protection of Children from Sexual
Offences Act of 2012. These were to be followed by everyone involved; the state
governments, child welfare committees, the Special Courts, and the Police alike. These 12
principles have been listed down below;
Best Interest of the child: The most significant part of the process is the development of the
child in a holistic manner.
Right to Life and survival: Any kind of psychological, physical, emotional, and mental harm
should be kept away from the child in the best manner feasible.
Right to be protected from discrimination: The passage of justice should not be marked by
any discrimination on any grounds. It should be transparent.
Right to be treated with dignity and compassion: As per the provisions of the POCSO Act,
victims are to be treated with great care and sensitivity throughout the process.
Right to be informed: The legal proceedings should be clearly explained to the child victim or
witness.
Right to special preventive measures: The likeliness of once abused children being abused
again is high and since prevention is better than cure, this act operated on the preventive
measures pretty seriously.
Right to effective assistance: The process of legal proceedings can be harrowing for an
individual in more than one way, which is why a lot of crimes go unreported because the
mental and financial cost is often too high. This is why the act provides for legal, health,
counsel, psychological and financial aspects.
Right to be heard and to express views and concerns: A child has the right to be heard for the
parts that affect him/her.
Right to be protected from hardship during the justice process: There is a very real secondary
victimization that occurs when a child is involved in the process of legal cases. This is to be
minimized.
Right to Privacy: Cases can get very public, which is why the POCSO Act 2012 made it
necessary that the identity and privacy of a child are protected at all times of the trial, pre and
post-trial.
Right to compensation: Relief and rehabilitation of a child must be compensated for.
Right to safety: The protection of the child is vital, be it during the trial or after it.
Case Laws
Bijoy v. The State of West Bengal (2017)
In this case, the accused was convicted of committing sexual assault and the Calcutta High
Court laid down some directives which are to be followed by the investigating agencies to
protect the dignity of the child victim. Following are some of the important directions:
The police officer has to register the FIR as per Section 19 of the POCSO Act. Also, they
have to inform the victim and their parents about their right to legal aid and representation.
After the registration of the FIR, the child should be immediately sent for medical
examination under Section 27 of the POCSO Act. In case the child falls within the definition
of ‘child in need of care and protection; as defined under Section 2(d) of the Juvenile Justice
(Care and Protection of Children) Act, 2000, the child is to be forwarded to jurisdictional
CWC.
The identity of the victim is not to be disclosed in any media.
Further, the Court issued some guidelines regarding the compensation to the victims. Some
important points are as follows:
Compensation under Section 33(8) of the POCSO Act can be awarded by the Special Court at
the interim stage.
The compensation at the interim stage is independent of compensation to be paid by the
convict upon conviction.
The objective behind providing compensation is the relief and rehabilitation of the child
victim and the reparation to the victim when the State has failed to protect the individual from
crimes.
Vishnu Kumar v. State of Chhattisgarh (2017)
The Chhattisgarh High Court observed that Section 36 of the POCSO Act was not complied
with in its letter and spirit while deciding the appeal of the accused. Therefore, some
guidelines were issued by the Court to all the judicial officers of the state:
The Presiding Officer must make the child witness as comfortable as possible. Along with the
in-camera proceedings, the Presiding Officer should come down from the dais and engage in
conversation with the child. He/ she can also offer toys and sweets to the child witness as the
child must not feel that he/ she is in a majestic place.
The strict rules of evidence can be ignored in order to search for the truth as justice should
prevail.
The Court should ensure the child’s safety and the statement of the child can be recorded
after 3-4 hours or the next day if necessary as the prime motive should be to make the child
comfortable and record the statements free of any influence.
A child normally tells the truth but as they are dependent beings so their statements might get
influenced by other people so it is the rule of prudence and caution that the statements of a
child are to be scrutinized carefully.
Dinesh Kumar Maurya v. State of U.P. (2016)
This case throws light upon the intricacies of the medical evidence of the victim. The
Allahabad High Court in this case set aside the conviction of the accused under Sections 3
and 4 of the POCSO Act as there were no marks of injury on the body of the victim who was
14 years of old but the victim had stated that there was forcible sexual intercourse. The Court
made the following observations in this case:
The injuries on the body are not always sine qua non for proving the offence of sexual assault
but if the victim states that she has been helplessly raped then the marks of injury on the
thighs, breasts, face, wrists or any other part of the body can immensely support her
statements.
The Courts should always take into consideration the fact that false charges of rape or sexual
assault are common and the parents in order to take revenge convince their minor daughters
to tell lies and concoct stories.
Initiatives Related to POCSO Act
There are multiple initiatives related to the Protection of Children from Sexual Offences act
(POCSO Act) that have been undertaken by the government. They are discussed below:
Child Abuse Prevention and Investigation Unit: An Online Child Sexual Abuse and
Exploitation (OCSAE) has been set up by the Central Bureau of Investigation (CBI). The unit
is to work under the Special Crime Zone of CBI. The unit extends its territorial jurisdiction
all over the country.
Juvenile Justice Act/Care and Protection Act, 2000: The Juvenile Justice (Care and Protection
of Children) Amendment Bill, 2021 was recently passed by the Lok Sabha and sought to
reinforce to streamline the government’s efforts to provide better aid for the adoption and
subsequent care of children. The Bill is an amendment to the Juvenile Justice (Care and
Protection of Children) Act of 2015.
Beti Bachao, Beti Padhao: Beti Bachao, Beti Padhao is a campaign launched by the
Government of India which is related to the POCSO Act of 2012. It primarily targets the
states of Haryana, Uttar Pradesh, Uttarakhand, Bihar, Punjab, and Delhi to address the
declining Child Sex Ratio (CSR). it also aimed to work on the issues related to women’s
empowerment and emancipation.
Child Labour Prohibition and Regulation Act, 2016: This is an amendment to the act of 1986.
The government shall provide harsher sentences and punishment for those in violation of this
act. It bars the employment of teens in hazardous work conditions.
Child Marriage Prohibition Act (2006): The Child Marriage Restraint Act of 1929 was
implemented under British rule, and this act replaced it. It defines what a child is in the eyes
of the law which makes it related to the POCSO Act. An individual under 21 years of age and
a female under 18 years of age shall be ‘minors’. A marriage between minors shall be null
and void if either of the parties demands it to be so. The marriage shall be void if the consent
has been acquired through deceit, enticement, or fraud from their guardians or if the primary
purpose of the marriage was to abuse the child for human trafficking.
Shortcomings of the POCSO Act, 2012
There are various loopholes in the procedure and implementation of the laws specified under
the POCSO Act. Following are some criticisms:
Problem with the application of the last seen theory: The last seen theory can lead to
wrongful conviction in several cases and therefore, it cannot be applied without
circumstantial evidence. It was held by the Supreme Court in the case of Anjan Kumar Sarma
v. State of Assam (2017), that the last seen theory is a weak piece of evidence and cannot be
relied upon single-handedly.
Unprepared investigation machinery: The investigation machinery in the child sexual abuse
cases is not well acquainted with the procedure which leads to a faulty investigation. For
instance, in the case of the Addl. Sessions Judge, Hoingoli and Ors. v. Bhawat and Ors.
(2017), the High Court of Bombay acquitted the alleged accused as the frock of the victim
which was in the custody of police was unsealed and therefore, the semen stains on the frock
could not be relied upon for the conviction.
Silent on consensual sexual activities: In case of sexual intercourse with consent, one of
which is minor, the partner who is not minor can be prosecuted under the POCSO Act as the
consent of a minor is not considered relevant under this Act.
False complaints by children are not punishable: Section 22 of the POCSO Act provides for
the punishment to the persons who file a false complaint in order to humiliate, extort, threaten
or defame another person. However, a child is exempted from any such punishment which is
a loophole as many people take advantage of this exemption and misuse this provision.
Pending cases: Although, the POCSO Act specifies that “the Special Court shall complete the
trial, as far as possible, within a period of one year from the date of taking cognizance of the
offence” under Section 35(2) but the number of pending cases is rising which is creating a
huge problem in making the justice mechanism effective.
Two-finger test violates privacy and dignity: Two-finger test is administered on the victims
of sexual assault while conducting their medical examination. If the vagina of a girl is
capable of allowing two fingers to move freely then it is inferred that the victim has been
subjected to repeated sexual intercourse. This test is conducted on the minor girls against
whom any offence under the POCSO Act is committed. Although the government banned
this test in the year 2012, it is still administered. In the case of Lillu @ Rajesh and another v.
State of Haryana (2013), it was observed that the administration of two-finger tests breaches
the right to privacy, dignity and mental integrity of a woman and hence it is unconstitutional.
Conclusion
The POCSO Act, 2012 is exhaustive legislation which aims at covering all the aspects of
child sexual abuse. Amendment has been made in the Act via the Protection of Children from
Sexual Offences (Amendment) Act, 2019, with which the punishments for the offenecs have
been made more stringent.
The need of the hour is to sensitize the public regarding child sexual abuse so that there is no
reluctance in reporting these crimes. Moreover, the investigating agencies should be well
trained and professionals such as medical practitioners involved in the stages of investigation
and trial should be efficient so as to leave any scope of negligence on their part. The POCSO
Act already makes the procedure child friendly and this approach should be followed by the
judicial officers, magistrates, and police officers so that the child victims could repose trust in
them.

Gram Panchayat
Nyaya Panchayat” as the word “Panchayat” means a group of people in a village who enjoy
respect from their community and have the authority to issue orders to the community. And
the word “Nyaya” means justice. Even in the earlier period of Indian culture, village
communities created their panchayats but without elections constituted the panchayat with
the responsible persons of that village community. Therefore decisions and disputes resolved
by the village headman are generally respected, trusted, and accepted by the parties and the
village community. such a person was assisted by the members with an equal position to refer
to the panchayat and the members of the panchayat termed “Panch Parmeshwar“. And such
Nyaya Panchayats are constituted for the settlement of disputes at the village level on the
principle of natural justice with criminal and civil jurisdiction. But in independent India, the
role of panchayats in providing justice was discarded and village development tasks were
entrusted to them.
Evolution of Nyaya Panchayats:
Village bodies were first formally empowered to provide certain administrative and judicial
functions under British rule in 1888 from the Village Courts Act, which was amended in
1920 and 1951 respectively. The Madras legislation introduced the scheme with two classes
of village courts, the first being courts presided over by village “Munsif” and the second
being elected panchayat courts of not less than five and not more than 15 members. The
Royal Commission on Decentralization in 1909 recommended the restoration of judicial
panchayats in minor civil and criminal cases arising in the village.
In 1915, the British Government of India passed a resolution leaving the matter of
establishment of Nyaya Panchayats to the Provincial or State Governments. In 1920, the
Bombay Village Panchayat Act was passed and as a result, many panchayats were started in
the country. The Civil Justice Committee of 1924-25 also held that the judicial function of the
Panchayat should form part of the village system
Since independence, almost all the states have created Village Panchayats under the
guidelines of Directive Principles of State Policy and as a result, some states have created
statutory Nyaya Panchayats. In independent India, the first Committee on Nyaya Panchayats
chaired by G. R. Rajagopal recommended that villages should be given the freedom to elect
members of Nyaya Panchayats, and the committee also framed a bill entitled “Nyaya
Panchayat Bill of 1962”.
Salient Features of the Gram Nyayalayas Act:
Government of India To provide justice to the citizens at their doorsteps, the Central
Government enacted the Gram Nyayalaya Act, 2008 and it came into effect on October 2,
2009.
Establishment: Section 3 of the Gram Nyayalayas Act, 2008 provides for the establishment of
Gram Nyayalayas and Section 4 of the Act provides for the establishment of the village
Grama Nyayalaya headquarters in the concerned panchayat or intermediate panchayat
notified by the State Government. The establishment of Gram Nyayalayas is at an
intermediate level i.e. a Gram Nyayalayam for a group of contiguous Panchayats. The level
of Gram Nyayalayas is equivalent to the Court of First Class Judicial Magistrate.
Composition: A Nyaya Panchayat usually has jurisdiction within a circle of five to seven
nearest Panchayats. The officer Collector is usually responsible for determining the
jurisdiction of Nyaya Panchayats, and he is assisted by Tehsildars, Naib Tehsildars, and
Vikas Adhikari in discharging his duties. Members of each Nyaya Panchayats are appointed
is based on nomination election and the member must be a registered voter in that Panchayat,
he must be literate to read & write, he must not be more than 30 years old, he must not be
debarred by law, he does not hold any office like Sarpanch, Parishad, Samiti, State
Legislature, or Parliament.
Appointment: Section 5 of the Gram Nyayalayas act, 2008 lay down the appointment of the
presiding officer of the called Nyayadhikari by the state government after the consultation
with the high court, and Section 6 of the Act mandates the fulfillment of the requirements and
qualifications of a First-Class Judicial Magistrate for appointing as a Nyayadhikari. Section 7
of the concerned act states that the salary of the Nyayadhikari shall be equivalent to that of
the judicial magistrate of the first class, While appointing the Grama Nyayadhikari, the State
Government shall issue notification from time to time including Scheduled Castes, Scheduled
Tribes, and Women.
Jurisdiction: The Gram Nyayalaya has jurisdiction over the area declared by the State
Government in consultation with the High Court by notification. Nyayadhikari can organize
mobile courts and conduct hearings in villages. They have jurisdiction to try criminal cases
specified in the First Schedule and civil suits specified in the Second Schedule of the Gram
Nyayalayas act, 2008. The provisions in section 30 of the act, allow any statement, report,
document, or information to be accepted as evidence by the Gram Nyayalayas. The financial
jurisdiction of Gram Nyayalayas is determined by the respective high courts. Section 24 (6)
of the act provides for the adoption of such discretionary powers to the Nyayalaya as it thinks
fit and reasonable for the conduct of civil cases. and also concerning the transfer of cases
High Courts have the power to transfer eligible cases from District Court to Gram
Nyayalayas.
Conciliation: It is suggested that the disputes should be resolved as far as possible by
reaching a conciliation between the parties, and the Grama Nyayalayas should use the
conciliators to be appointed for this purpose. Section 26 of the act mandates solving the
dispute through the method of conciliation, which is approved by the concerned high court by
section 27 of the act.
Summary Procedure: The Grama Nyayalayas follow the summary procedure in criminal
proceedings and this procedure helps faster and simpler than the ordinary stages in suits.
Grama Nyayalayas are not bound by the rules of evidence provided in the Indian Evidence
Act, 1872 but are guided by principles of law and subject to any rule made by the High Court.
Every Gram Nyayalayas shall use a seal of the court where such a form and dimensions as
may be prescribed by the high court with the approval of the state government. A copy of the
Judgment shall be delivered free of cost to both parties within three days from the date of
pronouncement of judgment.
Appeal: An appeal in criminal cases lies to the Court of Sessions, which shall be heard and
disposed of within six months from the date of filing of such appeal. An appeal in civil cases
lies to the District Court, which shall be heard and disposed of within six months from the
date of filing of such appeal.
Present Status of Nyaya Panchayats:
As per information available in February 2022, a total of 476 Grama Nyayalayas have been
notified so far by 15 states, and out of these 258 are operational in 10 states at present. These
10 states have been notified and functioning the Grama Nyayalayas in their states, which are
Madhya Pradesh, Rajasthan, Kerala, Maharashtra, Haryana, Punjab, and Jharkhand. Out of
these 5 states Goa, Andhra Pradesh, Telangana, Ladakh, and Jammu & Kashmir are notified
but not implemented. Law Minister Kiren Rijiju said in Lok Sabha, that a total of 258 Grama
Nyayalayas disposed of 43,914 cases in the last 15 months from December 2020 to February
2022.
The Grama Nyayalayas scheme has been regularly evaluated and monitored by the State
High Courts and a third-party evaluation of the scheme was done by NITI Aayog and which
also recommended the continuation of the scheme. The government of India has expanded
the scheme for 5 years up to 31/03/2026 with a budgetary of Rs 50 crores. The Union
government provides on-time assistance of Rs 18 lakhs to states towards expenses for setting
up one Gram Nyayalaya. The central government also assists 3.20 lakhs per One Gram
Nyayalayas towards expenses for operating these Grama Nyayalayas for the first 3 years.
Need for Grama Nyayalayas:
The Law Commission of India in its 14th report recommended the establishment of Grama
Nyayalayas for providing speedy and inexpensive justice to the public. It stated that the
composition of the democratic Nyaya Panchayats should be established through elections. It
also suggested that the establishment of a three-member panel with presiding officers be
selected from amongst the cadre of judges of that state, and two lay judges to be selected on
the recommendations of the panel comprising of the district magistrate and district sessions
court.
The 42 Constitutional amendment act inserted Article 39A into the Constitution of India,
which provides that the State shall create a judicial system that promotes justice based on
equal opportunities for the poor and weaker sections of society. Appropriate training should
be provided to Nyayadhikari about legal procedures, the local language, legal skills, and
customary and traditional knowledge. Despite these measures, access to justice and quick and
inexpensive dispute resolution at the grassroots level need to be materialized. Infrastructural
facilities for a dedicated building and its staff should be provided and appropriate budgetary
measures should be taken.
The state government should provide all facilities to the Grama Nyayalayas including the
provision of vehicles for holding mobile courts by the Nyayadhikari while conducting trails
outside its headquarters. The state government should provide a police officer who functions
within the limits of the jurisdiction of grama nyayalayas and shall be bound to assist the
Grama Nyayalayas in the exercise of its lawful authority.
The government should consider several measures such as simplification of procedural law
and establishment of scientific dispute redressal mechanisms in Grama Nyayalayas. Scientific
monitoring of the performance of Grama Nyayalayas must be done periodically by respective
high courts and other institutions like NITI Aayog. Awareness campaign to sensitize people
about the importance and easy access to the Gram Nyayalaya process through digital and
print media. The state should carry forward the ideals of Mahatma Gandhi and his support for
the “swadeshi” system of dispute settlement.
Functions of Nyaya Panchayats:
Nyaya Panchayats function as judicial components of the Panchayat system, which ensures
proper administration of justice at the local or village level. It is a judicial function in both
civil and criminal fields.
Nyaya Panchayats have minor civil and criminal jurisdiction, which extends to offenses such
as simple injury, wrongful possession, theft, and punishing the accused to pay a fine.
In civil matters, Nyaya Panchayats have jurisdiction in cases such as suits for money and
goods.
The Nyaya Panchayats call the witness and the parties to record their evidence or produce
any relevant documents or facts.
Nyaya panchayats investigate the facts to find out the truth and at the same time they have the
power to punish for contempt, on the other hand, courts don’t have the authority to
investigate.
The main function of Nyaya Panchayats is to resolve cases as quickly as possible.
Nyaya Panchayats conduct legal inquiries within its jurisdiction and report as per the order of
the Magistrate.
Nyaya Panchayats deal with local cases of robbers, Trespassing, and personal disputes and
can impose a maximum penalty of Rs. 100 may be fined.
Nyaya Panchayats provide justice at doorsteps and save money and time.
Advantages of Nyaya Panchayat :
The great advantage of the common man's court at the Panchayat level is not merely that it
promotes accessibility to the institution of justice for the common man, the deprived and the
neglected classes who are priced out of the judicial market and forbidden by the logistics of
court centred justice from reaching the institution, but also because of the informality of the
procedure. Administrative tribunal, which handles subject-matter immensely more
significantly in terms of person and property, do not act according to the technical rules of the
Indian Evidence Act and yet there is fair-play and justice. In the European countries the
accent is more on being convinced on the materials rather than on the exclusionary rules of
evidence.
Generally, in an ordinary court, the parties join issue and their fight becomes fiercer at the
end of the litigation. Contrary to it, in the Panchayat courts the whole emphasis is on
conciliation and promotion of better relations as footprints of goodwill are left behind, not
stains of blood feud. They come as foes but retur as friends. In this regard Mr. Abraham
Lincoln has observed that- It discourages litigation; persuade your neighbours to compromise
whenever you can, point out to them how the nominal winner is often the loser- in fees,
expense and waste of time". Some of the advantages may be described in the following
manner-
(i) it provides speedy justice;
(ii) it provides Justice without expense;
(iii) it reduces the litigations in the court;
(iv) it is not a single judge court but a Bench of more than five members;
(v) no chance to fabricate the evidence;
(vi) full availability of witnesses;
(vii) parties are happy with the decision, etc.
Disadvantages of Nyaya Panchayat :
Just like a coin, Nyaya Panchayat also has two faces. Sometimes these advantages miscarries
the justice at high level. Generally, Sarpanch belongs to upper caste and is a financially
healthy person, therefore, bias cannot be denied. It was heard from elders that "gareeb ki
bahoo sab ki bhabhi and ameer ki bahoo sab ki dadi" it means, wife of poor is sister-in-law of
all the villagers; and contrary to it, wife of a rich person is grandmother of each villager. It
states that you may chit-chat with the wife of poor man but you have to respect wife of a rich
person.
The position and the morality found in villages before independence could not be. carried
over into the next decades. In olden time, people respected every elder of the village. What an
elder said was the line of stone' or 'Laxaman rekha' which was not crossed by the villagers.
But slowly the position has changed. Some disadvantages of Nyaya Panchayats may be
discussed as follows
(i) procedure is unknown;
(ii) verdicts are not swayed;
(iii) miscarriage of justice by Nyaya Panchayat;
(iv) non-applicability of rules of evidence;
(v) the jury is not legally qualified and aware of the latest provisions of law;
(vi) the award of Nyaya Panchayat is not enforceable;
(vii) the Panchayat can give only social and financial (compensation) punishment; etc.
CASE LAWS
Nyaya Panchayats aims to promote the Article 39 A of the Constitution. The Preambular
emphasis of the Nyaya Panchayat Bill, 2009 that “Article 39A of the Constitution mandates
that the opportunities for securing justice are not denied to any citizen by reason of social,
economic or other disabilities in the administration of justice” is well placed. In State of U.P.
and others Vs. Pradhan Sangh Kshettra Samiti and others, AIR 1995 S.C. While examining
the legal and constitutional validity of the UP Panchayat Raj Act, 1947 that provides for the
constitution of Nyaya Panchayats in the State the following observations of the Supreme
Court merits attention: “The last contention of the respondents was that the Act makes
provision for the Nyaya panchayats whereas the amended provisions of the Constitution do
not direct the organization of such panchayats and, therefore, the Act is ultra vires the
Constitution. The contention is only to be stated to be rejected. Admittedly the basis of the
organization of the Nyaya panchayats under the Act is different from the basis of the
organization of the gram panchayats, and the functions of the two also differ. The Nyaya
panchayats are in addition to the gram panchayats. The Constitution does not prohibit the
establishment of Nyaya panchayats. On the other hand, the organization of the Nyaya
panchayats will be in promotion of the directive principles contained in Article 39-A of the
Constitution.” The above decision of the Supreme Court affirms what has been stated at the
outset in this work. Panchayats need to be seen afresh in the light of the mandate to promote
Justice ‘in all possible ways’ under Article 39A of the Constitution of India. As pointed out
above, Law Commission of India in its 114th Report in 1986 had remarked that “The
Constitution now commands us to remove impediments to access to justice in a systematic
manner. All agencies of the Government are now under a fundamental obligation to enhance
access to justice. Article 40 which directs the State to take steps to organize village
panchayats and endow them with such powers and authority as may be necessary to enable
them to function as units of self-government, has to be appreciated afresh in the light of the
mandate of the new article 39A.” The Nyaya Panchayat Bill 2009 responds to this
constitutional mandate while seeking to bring justice to the door of the rural folks by
establishing Nyaya Panchayats at the Village Panchayat level.
The question as to whether conferring of judicial power on elected panchas is constitutional
has also been judicially answered in the affirmative. In Kishna Kumar Mishra Vs. State, AIR
1996, the Patna High Court while deciding the question relating to validity of Constitution of
Gram Kutchery (Village Court) by way of election thus held-“So far as appointment of
members of Gram Kutchery by way of election is concerned, I find no illegality in the same.
It is for the Legislature to decide as to what will be the mode of appointment. If the election is
made one of the mode of appointment, that will not render the provision as unconstitutional”
Likewise, the Punjab and Haryana High Court, posed with exactly the same questions as to
decide the validity and constitutionality of the provision of elective judiciary as contained in
Punjab Gram Panchayat Act, 1952 in Gurdial Singh Vs. The State, AIR 1957 as also to
decide on the contention raised with respect to separation of executive from judiciary as
enshrined in Article 50 of the Constitution of India, held that “The validity of the Punjab
Gram Panchayat Act cannot be challenged on the ground that it has sanctioned the
appointment of an elective judiciary and has thereby contravened the provisions of the
Constitution. It is true that the method of the recruitment of judicial officers like judges of the
Supreme Court, Judges of High Courts & District & Subordinate Judges has been set out in
the appropriate Articles of the Constitution, but items 3 and 5 of the List II (State Legislative
List) confers ample power on the State Legislature to provide for administration of justice,
constitution and organization of Courts and the constitution of local authorities for purposes
of local self Government or village administration.
CONCLUSION
The Preamble to the Gram Nyayalayas Act envisions access to justice to the citizens at their
doorstep and to ensure that opportunities for securing justice are not denied to any citizen.
Despite the many challenges and shortcomings of the existing framework of the Village
Courts in India, they have a positive role in providing access to justice to the poor and
reaching out to marginalized sections of the society. It has the potential to reduce the
pendency of cases at higher levels. However, to achieve the stated objectives, efforts must be
made to revamp the organizational and jurisdictional aspects of Gram Nyayalayas.
Recommendations can be made about the rationalization for the Nyaya Panchayats system,
such as, Firstly, the nation of the Nyaya Panchayat as a revitalization of traditional village life
must be abandoned. In practice, given the highly stratified and culturally divergent character
of Indian society, a nation-wide scheme imposed on the villages from above which is not
created and organized by each village according to its particular customs and exigencies, is
bound to fail in achieving its objective of recreating traditional village life. Secondly, the
mere extension of the regular court system to the village level, without a corresponding
simplification of procedure and change in judicial approach (from adversarial to
inquisitional) would be inadequate. Although possibly reducing the caseload of the higher
courts, it would still leave many people without access to justice because of the expenses,
fears, etc., surrounding the regular court system. The only cohesive and realistically effective
rationale for the implementation of a Panchayati system of justice is that of increasing access
of justice for all the citizens of India. By formulating and implementing an all-India level
plan for Nyaya Panchayats based on the particularly model of justice (utilizing either
nominated or elected lay judges) with simplified procedures and the utilization of a non-
adversarial, inquisitorial judicial approach, exclusive and sufficient jurisdiction and adequate
funding, access to inexpensive and effective justice would be greatly facilitated. However,
certain safeguards must be implemented to assure that the landed elite classes do not
dominate the Nyaya Panchayats Ifthe elective to run in the election should be implemented,
including no criminal record, no communal or casteist background, income and property
limits, and the reservation of positions for women, scheduled tribes and castes. If the
nominative method a utilized, then similar qualifications should be set for eligibility for
nomination. If the Nyaya Panchayats system were implemented in this way, many of the
shortcomings of the past ineffective Nyaya Panchayats would be safeguarded.

Fundamental duties of India

As an Indian citizen, certain rights and duties are provided to us. The duty of every citizen is
to abide by the laws and perform his/her legal obligations. A person should always be aware
of his/her fundamental duties. 11 fundamental duties are laid down by the Indian
Constitution.
Origin and scope of fundamental duties
Origin
On the recommendations of the Swaran Singh Committee, the fundamental duties were added
by the 42nd Amendment, 1976 in our Indian Constitution. The fundamental duties were
originally 10 in numbers but in 2002, the 86th Amendment increased its number to 11. The
11th duty made it compulsory for each and every parent and guardian to provide the
educational opportunities to their child who is more than 6 years but less than 14 years of age.
These duties are borrowed from the Constitution of Japan.

Scope
Neither there is a direct provision in the Constitution for the enforcement of these duties nor
there is hardly any legal sanction in order to prevent violation of these duties. These duties
are obligatory in nature. The following facts provide for the importance of fundamental
duties:
A person should respect the fundamental rights and duties equally because in any case, if the
court comes to know that a person who wants his/her rights to be enforced is careless about
his/her duties then the court will not be lenient in his/her case.
Any ambiguous statute can be interpreted with the help of fundamental duties.
The court can consider the law reasonable if it gives effect to any of the fundamental duties.
In this way, the court can save such law from being declared as unconstitutional.
Fundamental duties taken from
The fundamental duties are taken from the USSR (Russia) constitution. The addition of
fundamental duties in our constitution have brought our constitution aligned with the Article
29(1) of the Universal Declaration of Human Rights and with various provisions of the
modern constitution of other countries.
Fundamental duties
Only one Article that is Article -51A is there in Part-IV-A of the Indian Constitution that
deals with fundamental duties. It was added to the Constitution by the 42nd Amendment Act,
1976. For the first time, a code of 11 fundamental duties was provided to the citizens of India.
Article 51-A states that it is the duty of every citizen of India:
To respect the Constitution, it’s ideals and institutions, the National Flag and National
Anthem–Ideals like liberty, justice, equality, fraternity and institution like executive, the
legislature, and the judiciary must be respected by all the citizens of the country. No person
should undergo any such practice which violates the spirit of the Constitution and should
maintain its dignity. If any person shows disrespect to the National Anthem or to the National
Flag then it will be a failure as a citizen of a sovereign nation.
The noble ideas that inspire the national struggle to gain independence, one should cherish
them– Every citizen must admire and appreciate the noble ideas that inspired the struggle of
independence. These ideas focus on making a just society, a united nation with freedom,
equality, non-violence, brotherhood, and world peace. A citizen must remain committed to
these ideas.
One should protect and uphold the sovereignty, unity and integrity of India– This is one of
the basic duties that every citizen of India should perform. A united nation is not possible if
the unity of the country is jeopardized. Sovereignty lies with the people. Article 19(2) of the
Indian Constitution put reasonable restrictions on the freedom of speech and expression in
order to safeguard the interest and integrity of India.
One should respect the country and render national service when called upon–Every citizen
should defend the country against the enemies. All the citizens apart from those who belong
to the army, navy etc should be ready to take up arms in order to protect themselves and the
nation whenever the need arises.
One should promote harmony as well as the spirit of common brotherhood amongst the
citizens of India, transcending religious, linguistic, regional or sectional diversities and to
renounce practices that are derogatory to the dignity of the women– Presence of one flag and
single citizenship not only reflects the spirit of brotherhood but also directs the citizen to
leave behind all the differences and focus on collective activity in all spheres.
One should value and preserve the heritage of our composite culture– India’s culture is one of
the richest heritages of the earth. So, it is compulsory for every citizen to protect the heritage
and pass it on to future generations.
One should protect and improve the natural environment including forests, lakes, rivers,
wildlife and a citizen should have compassion for living creatures– Under Article 48A this
duty is provided as a constitutional provision also. The natural environment is very important
and valuable for each and every country. So each and every citizen should make efforts in
order to protect it.
One should not only develop the scientific temperament and humanism but also the spirit of
inquiry and reform– For his/her own development it is necessary for a person to learn from
the experiences of others and develop in this fast-changing environment. So one should
always try to have a scientific temperament in order to adjust with these changes.
One should always safeguard public property and abjure– Due to unnecessary cases of
violence that occurs in a country which preach for non-violence, a lot of harm has already
been done to the public property. So, it is the duty of every citizen to protect the public
property.
One should always strive towards excellence in all spheres of life and also for the collective
activity so that the nation continues with its endeavour and achievements– In order to ensure
that our country rises to a higher level of achievement, it is the basic duty of every citizen to
do the work that is given to him/her with excellence. This will definitely lead the country
towards the highest possible level of excellence.
One should always provide the opportunity of education to his child or ward between the age
of six to fourteen years– Free and compulsory education must be provided to the children
who belong to 6 to 14 years of age and this has to be ensured by the parents or guardian of
such child. This was provided by the 86th Constitutional Amendment Act, 2002.
Features of Fundamental Duties
The features of Fundamental duties are as follows:
Both moral and civic duties have been laid down under the fundamental duties, like, “the
Indian citizens should not only cherish the noble ideas that lead to the freedom struggle but
they should also respect the Constitution, the National Flag and National Anthem”.
Fundamental rights can be applied to foreigners also but the fundamental duties are only
restricted to the Indians citizens.
The fundamental duties are not enforceable in nature. No legal sanction can be enforced by
the government in case of their violation.
These duties are also related to Hindu traditions or mythology like paying respect to the
country or promoting the spirit of brotherhood.
Fundamental duties and Indian constitution
The Constitution was adopted in the year 1949, but it did not contain the provisions for
fundamental duties. The Parliament of India not only realised the need to insert fundamental
duties in the Indian Constitution but it also felt that everyone should perform such duties. A
new part, that is Part IVA, was inserted by the 42nd Amendment Act, 1976 which provides
for several fundamental duties that needs to be followed by the citizens of India.
These duties are considered as “directory” as these duties cannot be enforced through the writ
of mandamus because they don’t cast any public duties. Fundamental duties are the basic
reminder of our national goals and basic norms of political order. They inspire an individual
to inculcate in himself/herself a sense of social responsibility. The Supreme Court said that
the fundamental duties can be used to interpret any statue which is uncertain. These duties
provide educational and psychological value to the citizens of India. These duties uphold the
spirit of Democracy and patriotism.
In the case of Ramlila Maidan Incident[1], the court held that the word “fundamental” is used
in two separate senses in our Indian Constitution. When this word is used for rights then it
means that these rights are very essential and any law which will violate the fundamental
rights will be declared as void. But when this word is used for the duties then it is used in a
normative sense as it set certain goals before the state which the state should try to achieve.
42nd amendment 1976
The 42nd Amendment Act, 1976 was approved during the Emergency period. The Indian
National Congress which was at that time headed by Indira Gandhi approved this
amendment. This amendment was regarded as the most controversial amendment. The
provisions that were provided by this amendment act came into force on different dates. Most
of the provision came into force on 3 January while others came into force from 1 April 1977.
This amendment is also known as “Mini-Constitution” or “Constitution of Indira” because
wide changes were brought to the constitution. 11 Fundamental Duties were laid down by the
42nd Amendment.
86th amendment 2002
Only a few constitutions in the world provide the guidelines stating the obligations and duties
of the citizens. To govern the rights and the duties of its citizens, Canada and Britain lay
significance on the Common Law and its judicial decision. It is said that one should be taught
to follow fundamental duties at a younger stage because if this will happen then it will not be
important to list the duties in the Constitution as it will not affect its implementation.
The Unnikrishnan Judgement[2] provided that all the citizens who are below the age of 14
years have a right to free and compulsory education. Due to an increasing public demand for
education, the government worked towards making education a fundamental right. In 2002,
an amendment was inserted in Article 51A. Article 51(k) was added after Article 51(j) which
stated that it is a fundamental duty of every citizen who is a parent or a guardian to provide
opportunities for free and compulsory education to a child who is between 6 years to 14 years
of age.
In M.C Mehta (2) vs. Union of India[3] the Supreme Court held the following:
It is compulsory for all the educational institutions to organise a teaching lesson of at least
one hour a week on the protection and improvement of the natural environment.
It is the duty of the Central Government under Article 51-A (g) to introduce this lesson in all
the educational institutions.
The Central Government should also distribute books free of cost on the same subject in all
the institutes.
To give rise to the consciousness among the people towards a clean environment, the
government should organise ‘keep the city clean’ week at least once in a year.
Fundamental duties committees
Swaran Singh Committee
The Chairperson of this committee was Sardar Swaran Singh who was given the
responsibility to study the Indian Constitution during the National emergency. After declaring
the emergency Indira Gandhi put the responsibility on this committee to study the
Constitution and amend it keeping in mind the past experiences. Several changes were
incorporated into the Constitution by the government based on the recommendations of the
committee.
The need and necessity of fundamental duties was felt during the emergency period. So in
1976, a committee was set up who made the recommendation for the same. The
recommendation was made for including a separate chapter in the Indian Constitution under
the heading Fundamental Duties. Citizens will be aware of their duties while enjoying their
fundamental rights. This suggestion was accepted by the government and a new article that is
Article 51A was included in the Indian Constitution which had 10 fundamental duties in it
earlier. The government also said that it was a mistake that was made by the original framers
of the India Constitution to not to include the fundamental duties at that time. The committee
suggested for 8 fundamental duties but the 42nd amendment had 10 duties. Out of all the
recommendations, not every recommendation was accepted.
Some of the recommendations that were not accepted are:
In case of non-compliance with the fundamental duties, the Parliament can impose penalty or
punishment.
In a court of law, such punishment or law won’t be questioned.
Fundamental duties also include the duty to pay taxes which was rejected.
Justice Verma committee
In order to plan a strategy and methodology for working out a programme that was started
worldwide for making the fundamental duties enforceable in every type of educational
institution and to teach these duties in every school, Justice Verma Committee was
established in 1998. The committee took this step because it was aware of the non-
operationalization of the Fundamental duties. The committee found that the reason for non-
operationalization was due to lack of strategy for its implementation rather than lack of
concern.
The committee provided with the provisions like:
No person can disrespect the National flag, Constitution of India and the National Anthem
under the Prevention of Insults to National Honour Act, 1971.
Various criminal laws have been enacted which provide punishment to the people who
encourage enmity between people on the grounds of race, religion, language etc.
The Protection of Civil Rights Act (1955) provided for punishments in case of any offence
related to caste and religion.
The imputations and assertions that are prejudicial to the nation’s integrity and unity are
considered as punishable offences under various sections of the Indian Penal Code, 1860.
In order to prevent a communal organisation to be declared as an unlawful association, the
Unlawful Activities (Prevention) Act, 1967 was established.
If the members of the Parliament or the state legislature indulge in any corrupt practices like
asking votes in the name of religion then they will be held liable under the Representation of
the People Act, 1951.
The Wildlife (Protection) Act, 1972 protect and prohibit the trade in the case of rare and
endangered animals.
The Forest (Conservation) Act, 1980 was implemented to make sure that Article 51A(g) was
properly implemented.
Need for Fundamental Duties
Rights and duties are correlative. The fundamental duties serve as a constant reminder to
every citizen while the Constitution specifically conferred on them certain fundamental
rights. Certain basic norms of democratic conduct and democratic behaviour must be
observed by the citizens. The then ruling party, Congress, claimed that what the framers of
the Constitution failed to do is being done now. This omission was rectified by introducing a
chapter on citizen’s duties towards the nation. In India, people lay more emphasis on rights
and not on duty.
This view was wrong. In this country, there has been a tradition of performance of one’s
duties even in partial disregard of one’s rights and privileges. Since time immemorial
emphasis was on individual’s KARTAVYA which is the performance of one’s duties towards
society, his/her country and his/her parents. The Geeta and Ramayana also provide that
people should perform their duties without caring for their rights.
Traditional duties have been given a constitutional sanction. If one clearly looks in the
Constitution not only he/she will discover his/her rights but also the duties. A careful look at
the Constitution will definitely solve the question of the people who claim that the
Constitution only provides for the rights to the citizen and not the duties of the persons
towards the society. The Fundamental Rights that are provided to all the citizens are present
in the Preamble of the Indian Constitution like liberty of thought, expression, belief, faith and
worship. These are not absolute rights as the state can put reasonable restrictions on them in
the interest of society. The remaining Preamble put emphasis on the duties like justice, social,
economic and political.
Importance of fundamental duties
The government in order to create a strong foundation with a strong national character
introduced fundamental duties. It not only lay emphasis on human dignity but also creates a
feeling of harmony in the community. Our society can only be uplifted if each and every
citizen focuses on bridging the gaps that have been created in the society, by performing their
duties towards the society. Judicial reforms help in enforcing such duties from time to time
because there is no provision in the Indian Constitution for their enforcement. If every person
wants their fundamental rights to be realized then everyone should fulfill their duties.
The importance of fundamental duties are as follows:
Fundamental duties act as a constant reminder that the citizens while enjoying their
fundamental rights should not forget about their duties towards the nation.
These duties act as a warning signal for the people against any type of antisocial activities.
These duties gives a chance to the people to have an active participation in the society rather
than being a spectator.
These duties promote a sense of discipline and commitment towards the society.
The courts can use fundamental duties for determining constitutionality of law. If any law is
challenged in court for its constitutional validity and if that law is providing force to any of
the fundamental duties then that law will be held reasonable.
If the fundamental rights are enforced by a law then in case of its violation the Parliament can
impose penalty or punishment for the same.
The Supreme Court of India ordered cinema halls to play National Anthem while portraying
the Nation Flag. This was a remarkable step taken by the Supreme Court while giving the
importance to the fundamental duties.
Criticism of fundamental duties
There were various grounds for criticism for fundamental duties. These include:
Critics don’t consider the list of fundamental duties as exhaustive. They feel that many more
important duties like paying taxes, casting votes that were also suggested by the Swaran
Singh Committee were not included in this list.
A common man cannot understand the complex words like composite culture that are present
in the fundamental duties. Due to lack of understanding, the true meaning cannot be
established. For him/her such words are difficult to understand. Moreover some duties are
ambiguous in nature.
These duties cannot be enforced by a court of law so, critics feels that it is of no use to
include these duties in the Constitution.
Some duties are of such a nature that they are being performed by the citizen in each and
every case like paying respect to the National Flag and National Anthem. So there was no
need to include these duties in the Constitution.
These duties are placed in Part IV-A of the Indian Constitution that is after the Directive
Principles of the State Policy, that’s why not much importance is given to them. According to
the critics it should be placed in Part III after the Fundamental Rights.
Fundamental duties case laws
In the case of Bijoe Emmanuel vs. State of Kerala[4] which is popularly known as the
National Anthem Case, on refusing to sing the National Anthem in the school, three children
of the Jehovah’s Witnesses were expelled from the school. There was a circular that was
issued by the Director of Instructions, Kerala which made it compulsory for the school
students to sing the National Anthem. These three children did not join the singing of the
National Anthem but they stood up out of respect. They didn’t sing the National Anthem
because their religious faith didn’t permit it and it was against their religious faith. They were
expelled on the ground that they violated their fundamental duties and committed an offence
under the Prevention of Insult to National Honours Act, 1971. The court reversed this
decision of the High Court because they did not commit any offence and also they committed
no crime under the Prevention of Insult to National Honours Act, 1971 as though they did not
sing the National Anthem but they stood out of respect.
In M.C.Mehta (2) vs. Union of India[5], the Supreme Court held that it is compulsory for all
the educational institute to organise a teaching lesson of at least one hour a week on the
protection and improvement of the natural environment and it is the duty of the Central
Government under Article 51A (g) to introduce this in all the educational institute. The
Central Government should also distribute books free of cost on the same subject in all the
institutes and also raise consciousness amongst people towards clean environment. The
government should organise ‘keep the city clean’ week at least once in a year.
In the case of AIIMS Students Union vs, AIIMS[6] the Supreme Court held that the
fundamental duties are equally important like the fundamental rights so the Court strike down
the institutional reservation of 33% in AIIMS which is also coupled with 50% reservation
discipline-wise which was violative of Article 14 of the Indian Constitution. The court also
said that just because they are duties they cannot be overlooked. They have the same
importance which the fundamental rights hold.
In Aruna Roy vs. Union of India[7], the court upheld the validity of the National Curriculum
Framework for School Education which was challenged on the ground that it violated the
Article 28 of the Indian Constitution and it was anti-secular because it provided for value
development education relating to the basics of all religions. The court said that the NCFSF
does not mention anything related to imparting religious instruction which is prohibited under
Article 28 and education neither violate Article 28 nor the concept of secularism.
In order to make a right balance between Fundamental Rights and Duties the petitioner in the
case of Hon’ble Shri Rangnath Mishra vs. Union of India[8] wrote a letter to the President so
that he can give directions to the State in order to educate citizens in the matter related to
fundamental duties. This letter was treated as a writ petition by the Court. But by the time this
matter would be heard a report was submitted to the Government of India by the National
Commission who was reviewing the Constitution at that time. Following suggestions were
provided by the commission in the court:
In order to sensitise the people and to create general awareness regarding the fundamental
duties, the State and the Union Government should take proper steps on the lines that were
recommended by the Justice Verma Committee.
For generating awareness and consciousness of citizens related to fundamental duties, modes
and manners needs to be adopted.
The court took into account the recommendations made by the National Commission and also
directed the government to take necessary steps. The writ was disposed of.
In Government of India vs. George Philip[9], the compulsory retirement was challenged by
the respondent from the service. Two years of leave was granted to him by the department to
pursue advanced research training. After the repeated reminders he overstayed in foreign, so,
an inquiry was instituted against him and the charge was proved. The High Court provided
him with a remedy to join the service again on one clause that no back wages would be
provided but the Supreme Court had set aside this order. The Supreme Court said that
according to Article 51A(j) one should always strive towards excellence in all spheres of life
of an individual and also for the collective activity so that the nation constantly rises to a
higher level of endeavour, achievements and excellence could not be achieved unless
discipline is maintained by the employees. The court also said that no order should be passed
by the courts which destroy the essence of Article 51A and the order passed by the High
Court, in this case, was destroying the essence of the Article.
The court in the case of Dr. Dasarathi vs. State of Andhra Pradesh[10], held that under
Article 51(j) every citizen must abide by its duty to always strive towards excellence in all
spheres of life and also for the collective activity so that the nation constantly rises to a higher
level of endeavour and achievements. For this, the State can provide ways to achieve
excellence according to the methods which are permitted by our Indian Constitution.
In the case of Charu Khurana vs. Union of India[11] the Supreme Court held that the State
should provide for opportunities rather than curtailing it. The court also said that the duty of
the citizen have also been extended to the collective duty of the state.
Enforcement of Fundamental Duties
The fundamental duties not only guide the citizen but also guides the legislative and
executive actions of elected or non-elected institutions, organisations and municipal bodies.
Duties are only observed by the citizens when either it is made compulsory by the law or
under the influence of role models etc. So this makes it necessary to make suitable legislation
whenever it is important for the citizens to observe the duties. These duties should be made
operational only when the directions have been provided by the legislature and judiciary and
still there is a violation of fundamental duties. But if the existing laws are inadequate and
they cannot enforce the required discipline then the legislative vacuum needs to be filled.
The legal utility of fundamental duties and directive principles is the same. Fundamental
duties are addressed to the citizens whereas directive principles address to the state and there
is no legal sanction in case of their violation. If a person does not care about his/her
fundamental duties then he/she does not deserve the fundamental rights. These duties are not
legally enforceable but if any act is done by a citizen that is in violation of the fundamental
duties then it would be considered as a reasonable restriction on the relevant fundamental
rights.
The 42nd Amendment, incorporated duties in the Constitution and these are statutory duties
and shall be enforceable by law. If there will be a failure to fulfil those duties and obligations
then the Parliament, by law can impose penalties. The success of this provision will solely
depend upon the manner and the person against whom these duties would be enforced. If the
duties are not known to all, then there would not be proper enforcement of these duties. Due
to the illiteracy of the people, they are not politically conscious of what they owe to the
society and country. Homes, universities, or any other place can be made the centres for
imparting in the performance of their obligations.
Fundamental duties complement fundamental rights
The Constitution of India not only provide with the fundamental rights but also with the
fundamental duties. Although the fundamental rights were introduced in the Constitution
much before the fundamental duties and are also enforceable by the court. 42nd Amendment,
1976 introduced the fundamental duties. But these duties are not enforceable. These are the
moral duties of a responsible citizen. The fundamental duties must be complementary to the
fundamental rights.
Article 21 of the Indian Constitution provides for Right to education and Article 51A(k)
provides that all parents and guardians must provide their children with free and compulsory
education at the age of 6-14 years. This shows that fundamental rights and duties are
complementary to each other.
But in today’s time people only want their rights and don’t want to perform their duties.
There are many examples which shows that people while using their fundamental rights
avoid their fundamental duties.
The recent example can be taken of what happened in JawaharLal Nehru University. People
while exercising their fundamental right of Freedom of Speech and Expression raised anti
India slogans in the campus of the university. While exercising this right they violated their
fundamental duty that is laid down in Article 51A(c), that is the “power, unity, integrity of
the country must be protected by its citizens”.
Many political leaders often attract votes in the name of religion. While doing this they
violate their fundamental duty that is provided in Article 51A(c) that is “the power, unity,
integrity of the country” must be protected by its citizens. They divide the society into
different religion and caste.
Democracy cannot establish its deep roots in the society until and unless the citizens don’t
compliment their fundamental rights with their fundamental duties. While enforcing their
fundamental rights they should fulfill their fundamental duties.
Relationship between the fundamental rights, directive principles and fundamental duties
The relationship between the fundamental rights, directive principles and fundamental duties
are as follows:
In cases where there was a conflict between the constitutional validity of the legislation with
the fundamental rights, then the Directive Principle of State Policy have been used to uphold
the constitutional validity of such legislation. The 25th amendment in 1871 added Article
31C which states that any law enforced which was to give effect to the directive principles
that were provided in Article 39(b)-(c) would not be held invalid on the grounds that they
derogated from the fundamental rights that are present in the Articles 14, 19 and 31 of the
Indian Constitution. The 42nd amendment proposes that Article 31C should be made
applicable to all the Directive Principles. But the Supreme Court struck down this suggestion
as it violates the basic structure of the Indian Constitution. For forming the basis of the
legislation related to social welfare the fundamental rights and the directive principles have
been used together.
The Supreme Court of India after the Kesavananda Bharati Case[12], adopted a view that
fundamental rights and directive principles are not only complementary to each other but they
both supplement each other by providing some goals to establish a welfare state by the means
of social revolution.
The Supreme Court has also upheld the constitutional validity of various statutes which
promote the objects that were laid down in the fundamental duties. These duties are not only
obligatory for all the citizens but the Court can enforce them by making various laws. For this
the Supreme Court has already given direction to the state in order to ensure effective
implementation of these duties.
Fundamental duties are not enforceable through courts but fundamental rights are enforceable
through the Supreme Court under Article 32 of the Constitution and the High Court has the
power to issue writs for the enforcement of the fundamental rights under Article 226. The
fundamental duties and the directive principles of the state policy that are provided in Part IV
of the Indian Constitution are taken into account by the Courts while interpreting the
fundamental rights or any restrictions that are imposed on such rights.
The court in the case of Javed vs. State of Haryana[13] held that the fundamental rights have
to be read with fundamental duties which are provided in Article 51A of the Indian
Constitution and with the directive principles of the state policy that are provided in Part IV
of the Constitution. They cannot be read in isolation.
In the State of Gujarat vs. Mirzapur[14] the Supreme Court held while considering the
provisions regarding Article 48, 48-A and Article 51(g) that the directive principles of state
policy and fundamental duties that are provided in Article 51-A of the Indian Constitution
plays a significant role while testing the constitutional validity of any statutory provision or
of any executive act. The Court also said that the reasonableness of any restriction that is cast
by the law on the fundamental rights in the form of regulation, control or prohibition can be
tested by taking the fundamental duties and the directive principle of state policy into
account.
The court in Ramlila Maidan Incident[15] held that a balance has to be maintained between
the fundamental rights and restrictions on one hand and fundamental rights and fundamental
duties on the other hand. There would be an imbalance if importance is given to only
fundamental rights or to the fundamental duties. Duty is considered as a true source of right.
The courts consider the fundamental duties that are present in Article 51A while examining
the reasonableness of the legislative restriction on exercise of various freedoms. The court
also said that duties like protecting the sovereignty, unity and integrity of the country, provide
safeguard to public property etc. are not insignificant.
It was observed in N.K. Bajpai vs. Union of India[16] that there is a common thread which
runs between Part III, IV and Part IV-A of the Indian Constitution. First part provides us with
the fundamental rights while the second part provides us with the basic principle of
governance of the state and the third part provides the fundamental duties of the citizens of
India. The court should consider all the constitutional aspect of fundamental rights,
fundamental duties and the directive principle of state policy while interpreting any
provision.
Conclusion
The non-enforceability of the fundamental duties won’t affect its importance. Fundamental
duties are an important aspect of a democratic state because it not only allows people to enjoy
their rights but also reminds them to perform their duties which they have towards the nation.
The word ‘fundamental’ which is attached to the duties makes them utmost important and
thus it is required that they are to be followed by everyone. Many duties have also been set up
as a separate law and are made enforceable by the law but this does not reduces the value of
other duties that are provided in Article 51A. It is not only the duty of the government to
provide everything in the Constitution, it is the people who should also be conscious about
their role in the society. Even duties like paying taxes, right to vote must be performed by
each citizen of the nation. These duties inculcate a sense of social responsibility in everyone.
While interpreting the fundamental rights these fundamental duties are always considered.

Child Labour
INTRODUCTION
The incidence of child labour is not modern phenomenon. Even in the olden days children
were put to strenuous labour in houses and in fields at an early age. Children should perform
the tasks such as nurture of cattle, collection of grass and fuel etc. Because of this adult
member of the family could able get relive for more fruitful and productive works. There was
no common labour beside children working along with their family members. It was the
factor that child labour which strongly established family and kinship ties in many
occupations. In urban areas, because of an abject poverty majority of the parents cannot make
any investment on their children development and they are also averse to support them. They
are eager about children to find work for themselves. The employers wish to prefer children
as they are more nimble, amenable to discipline, control and too cheaper. The problem of
child labour became more distinct with the beginning of industrial revolution.
The recent ILO report on child labour pointed out that globally 152 million children engaged
as a child labour, out of these 64 million girls and 88 million boys and this is accounting for
almost one in ten of all children worldwide as child labour. In this estimate 71 per cent of
children working as a child labour in agricultural and allied sector and 69 per cent work
within their own family. Nearly half of all those in child labour 73 million children are in
hazardous work that directly cause dangerous to their health, safety, and moral development.
Children in employment, a broader measure comprising both child labour and permitted
forms of employment, involving children of legal working age, number 218 million.
Child Labour
"Child" as defined by the child labour (prohibition and regulation) Act 1986 is a person who
has not completed the age of 14 years. As a layman we can understand that Child labour is
the practice of having children engage in economic activity, on a part- or full-time basis.
Every child is considered as a gift of God, it must be nurtured with care and affection with in
the family and society. But unfortunately, due to the socio-economic problems children were
forced to work in industries, leather factories, hotels, and eatery. The child labour is not an
isolated phenomenon it is coupled with socio economic problem of the society so in order to
eliminate child labour first we should focus on socio economic issues of the society. It is in
the hands of administrative. It should bring effective measures to eliminate child labour.
International Labour Organisation
[ILO] defines child labour as a work that not only affects their childhood but also doesn’t let
the children attend the school regularly, or have a proper education. Child labour also
deprives children of their dignity, potential and childhood. Children working below the age of
14 years are not able to develop mentally, socially, physically or morally.
A different definition of child labour is given by the United Nation’s Children’s Fund
[UNICEF]. According to it, a child is considered as labour when:
His/her age is between 5 to 11 years, and
At least 1 hour of economic activity is performed by him/her or he/she is doing at least 28
hours of domestic work in a week.
If the children are between 12 to 14 years of age then either they should be doing at least 14
hours of economic activity or at least 42 hours of domestic work per week to be considered as
child labour.
According to India’s Census 2001, when a child below the age of 17 years participate in
economic activity with or without compensation, either physically, or mentally, or both ways.
Part-time help or unpaid work on farms, a family business or any other economic activity like
cultivation and milk production for sale or domestic consumption will be included in child
labour. Child labour is classified into two groups in India:
Main workers: Main workers are those workers who work for at least some months or more
per year, and
Marginal child workers: Marginal child workers are those workers who work for less than 6
months in a year and work at any time during the year.
Causes of child labour in India
In India, the major causes of child labour are:
Poverty: Children are considered helping hands of their family. In developing countries, it is
almost impossible to control child labour as children not only have to support themselves but
their families also and provide them with a living. Due to poverty, the rate of unemployment
and underemployment are also very high and so the parents have to send their children to
work on low wages.
Previous debts: Due to their poor economic condition people take loans. But they don’t have
sufficient money to pay back the loans so they not only work day and night to pay off the
loans but they also drag their children to work so that the loan could be paid off before time
and easily.
Professional needs: Some industries require delicate and soft hands rather than rough hands
that are required in bangle industries. So they prefer children and not adults for such work.
Bonded labour: Children often work for long hours in the sun and they are deprived of water,
food. These children are seldom paid. Bonded labour further adds to the large scale increase
in child labour.
Domestic help: Small children often work for educated families and irrespective of several
laws that violate the employment of children, they often welcome small children so that these
children can take care of their homes as well as their children.
Child sex workers: Often, girls who attained the age of puberty are forced into prostitution in
lieu of a promise that they would be given opportunities to do glamorous jobs.
Forced begging: Families who can’t support themselves force their children to beg on the
roads in subhuman conditions. They get their children maimed in order to get more money
from the people.
CONSTITUTIONAL PROVISIONS
The Constitution of India contains the provisions in respect of children under Part III i.e.
Fundamental Rights, and Part IV of the constitution, i.e. Directive Principles. The provisions
are as follows;
Article 14: Equality before law, i.e. equal treatment and Protection under law. All children in
similar circumstances are required to be treated in a similar manner, and if not so treated,
such treatment can be challenged on the ground of discrimination and arbitrariness.
Article 15(3): Permits the State to make special provisions for women and children. Special
enactments made for the benefit of children cannot be struck down on the ground of
discrimination.
Article 19(1): Guarantees citizens of India the right to freedom of speech and expression, to
form an associations or unions, to move freely throughout the territory of India, etc. Under
Indian law, child labour is prohibited only in factories, mines or other hazardous
employment; therefore there is no blanket ban on employment of children. Though children
form part of the labour force they are not permitted to unionise and fight for their rights as
workers.
Article 21: This article guarantees the right to life to all persons. The Supreme Court has
interpreted "right to life" to include right to food, clothing, adequate shelter, and other basic
necessities of life.
Article 21(A): The article 21A states that there must be a free and compulsory education to
ail children of age of six to fourteen years.
Article 22: Provides for safeguards upon arrest, and states that a person should be produced
before the nearest Magistrate within 24 hours of arrest. A juvenile in conflict with law or a
child in need of care and protection should be produced before the Competent Authority
established under the Juvenile Justice [Care and Protection of Children] Act 2000 within 24
hours of having been picked up by the police.
Article 23: Prohibits trafficking in human beings and forced labour. Any contravention of this
provision is punishable under law.
Article 24: Prohibits the employment of a child below 14 years in any factory or mine or any
other hazardous employment.
Article 39(e) & (f): The State is required to ensure protection of children of tender age from
abuse, and from entering vocations unsuited to their age and strength. Children are also to be
provided with equal opportunities and facilities to develop in a healthy manner. The State is
to further ensure that childhood and youth are protected against exploitation and
abandonment.
Article 41: The State is required to take steps to secure Educational opportunities and
facilities.
Article 44: The State is to endeavour to secure for all citizens a uniform civil code. A uniform
civil code implies a uniform legal framework for adoption of a child applicable to all
religions.
Article 45: The State is to take measures to ensure free and compulsory education for all
children till they attain 14 years of age.
Article 47: The improvement of public health and the raising of the level of nutrition is a
primary duty of the State.
Article 51(c): The State is to respect international law and treaty obligations. The
Government of India and the State Governments are obligated to the commitments contained
under the Convention on the Rights of the Child.
MAJOR LEGISLATIVE MEASURES
FACTORIES ACT, 1948
The Factories Act, 1948 prohibits employment of a child below 14 years in any factory. To
safeguard the health of young persons of above 14 years of age and below 18 years, and for
their safety, the Act places a few other restrictions on their employment. Such young persons
are required to obtain a certificate of fitness from a certifying surgeon. The Act also provides
for initial and periodical examination (at intervals of not less than twelve months) of young
person’s by certifying surgeons. The Act puts restrictions in the matter of working hours of
these young persons. Thus, a child belonging to the age group of 14 years and below 17 years
is not to be employed at night (night means a period of at least twelve consecutive hours
which shall include the interval between 10 P.M. to 6 A.M.). Then a child between the age
group of 14 and 15 cannot be employed for more than 4 ½ hours in any day, and he cannot be
employed in two shifts and cannot be allowed to work in more than one factory on-the same
day. Subject to what has been stated above, a young person between the age group of 15
years and 18 years is considered to be an adult for purposes of other provisions of the
Factories Act, provided he has a certificate from a certifying surgeon that he is fit for a full
day's work in a factory, otherwise he is considered to be a child.
MINES ACT, 1952
The Mines Act, 1952 has provisions regulating the employment of children in mines. The
provisions in the Mines Act are more stringent than the Factories Act in this respect. No
young person who has not completed the age of 16 years can be employed in any mine. A
child (a person who has not completed 15 years of age) cannot even be present in any part of
a mine which is below ground, and also above ground after such date as the central
government may by a notification fix. A young person who is between 16 years of age and 18
(known as adolescent) is allowed to work in any part below ground if he has a medical
certificate from a certifying surgeon certifying that he is fit for work as an adult. Even then
such a person cannot be allowed to work at night.
EMPLOYMENT OF CHILDREN ACT, 1938
To prevent employment of children in hazardous employments and those injurious to health,
the Employment of Children Act, 1938 prohibits their employment in certain occupations.
Thus no child who has not completed 15 years of age can be employed in any occupation
connected with the transport of passengers, goods or mails by railway; or a port authority
within the limits of a port.
MERCHANT SHIPPING ACT, 1958
The Merchant Shipping Act, 1958 applies to sea-going ships. It has some provisions
regulating employment of children. The Act bars employment in any capacity of a person
below 15 years in a ship except (a) in a school ship, or training ship, in accordance with the
prescribed conditions; or (b) in a ship in which all persons employed are members of one
family; or (c) in a home-trade ship of less than two hundred tons gross; or (d) where such
person is to be employed on nominal wages and will be in the charge of his father or other
adult near male relative.
MOTOR TRANSPORT WORKERS ACT, 1951
The Motor Transport Workers Act, 1951 regulates the condition of work of employees in
motor transport undertakings. Section 21 of the Act is prohibits an employment of children in
a motor transport undertaking, and a child is defined as a person who has not completed 15
years of age. An adolescent (a person who has completed 15 years of age but not 18 years) is
allowed to work provided he has a certificate of fitness granted by a certifying surgeon. The
certificate is valid for a period 0 f one year but can be renewed.
PLANTATION LABOUR ACT, 1951
The Plantations Labour Act, 1951 applies to plantations in tea, coffee, rubber or cinchona
which admeasures 10.117 hectares or more, and in which thirty or more persons are
employed Section 24 of the act prohibits employment of children. This act applies to any land
used for cultivation of the coffee, rubber, cinchona or cardamom which measures five
hectares or more and in which fifteen or more persons are employed.
BIDI AND CIGAR WORKS (CONDITIONS OF EMPLOYMENT) ACT, 1966
As far as the specific provisions of the Act with regard to child labour are concerned, no child
(a person who has not completed 14 years of age) can be employed in any "industrial
premises".
CHILDREN (PLEDGING OF LABOUR) ACT, 1933
The Children (Pledging of Labour) Act of 1933 prohibits the making of agreements to pledge
the labour of children for employment. A child is defined as a person who is under the age of
fifteen years. An agreement to pledge the labour of a child is void under the Act. Such a
contract will also be void under the Indian Contract Act on account of the contract being
opposed to public policy.
APPRENTICES ACT, 1961
The Apprentices Act, 1961 regulates the training of apprentices in industry so that the
programmes of training may be organised on a systematic basis, and the apprentices may get
the maximum advantage of their training. The Act provides that a person who is less than 14
years of age will not be qualified for apprenticeship training. In other words only children
between the ages of over 14 years and below 18 years adults are eligible for training.
SHOPS AND ESTABLISHMENTS ACT, 1961.
Different states have enacted their own statutes regulating conditions of work of workers in
shops and establishments. These Acts apply to shops, commercial establishments, restaurants
and work of workers in shops and establishments. These Acts apply to shops, commercial
establishments, restaurants and hotels and places of amusement at notified urban areas, to
which the Factories Act does not apply, the state governments are empowered to extend the
application of the Act to such other areas or categories of establishments as may be
considered necessary. The Acts prohibit the employment of a child in shops and
establishments, and he cannot be employed even as a member of the family of the employer.
Generally speaking, a child is a person' who has not completed the age of 12 years, though in
a few states like Tamil Nadu, Pondicherry and Uttar Pradesh and even in Karnataka the age is
14 years.
CHILD LABOUR PROHIBITION AND REGULATION ACT, 1986 (AMENDMENT,
2016).
This Act may be called the Child Labour (Prohibition and Regulation) Amendment Act,
2016. In the Child Labour (Prohibition and Regulation) Act, 1986 (hereinafter referred to as
the principal Act), for the long title, the following shall be substituted, namely:—An Act to
prohibit the engagement of children in all occupations and to prohibit the engagement of
adolescents in hazardous occupations and processes and the matters connected therewith or
incidental thereto.”
According to this amendment Act “Child” means a person who has not completed his
fourteenth year of age or such age as may be specified in the Right of Children to Free and
Compulsory Education Act, 2009, whichever is more;’
“Adolescent” means a person who has completed his fourteenth year of age but has not
completed his eighteenth year.
 Under section 3 (1) of the Act, No child shall be employed or permitted to work in any
occupation or process.
(2) Nothing in sub-section (1) shall apply where the child,—
(a) Helps his family or family enterprise, which is other than any hazardous occupations or
processes set forth in the Schedule, after his school hours or during vacations;
(b) Works as an artist in an audio-visual entertainment industry, including advertisement,
films, television serials or any such other entertainment or sports activities except the circus,
subject to such conditions and safety measures, as may be prescribed:
Provided that no such work under this clause shall effect the school education of the child.
Section ‘3A’ of the Act says that ‘No adolescent shall be employed or permitted to work in
any of the hazardous occupations or processes set forth in the Schedule.’
According to section 14 (1) whoever employs any child or permits any child to work in
contravention of the provisions of section 3 shall be punishable with imprisonment for a term
which shall not be less than six months but which may extend to two years, or with fine
which shall not be less than twenty thousand rupees but which may extend to fifty thousand
rupees, or with both: Provided that the parents or guardians of such children shall not be
punished unless they permit such child for commercial purposes in contravention of the
provisions of section 3.
(IA) Whoever employs any adolescent or permits any adolescent to work in contravention of
the provisions of section 3A shall be punishable with imprisonment for a term which shall not
be less than six months but which may extend to two years or with fine which shall not be
less than twenty thousand rupees but which may extend to fifty thousand rupees, or with
both: Provided that the parents or guardians of such adolescent shall not be punished unless
they permit such adolescent to work in contravention of the provisions of section 3A.

Empowerment of women in India. COI & other legal prov. Caselaws

Crime against Women in India. Elaborate statutory provisions for protection of rights of women in
India.

Changing dimensions of crimes against women in India. Explain legal framework for protection of
rights of women.

I. INTRODUCTION
Dr. B. R. Ambedkar once expressed ‘I measure the progress of a community by the
degree of progress which women have achieved’. Though in view of Supreme Court, women
form half of the Indian population (Madhu Krishnan vs. State of Bihar), there is a situation of
decreasing sex ratio due to the reason of asymmetrical social status of women with men.
It is apparent from Indian culture that at one side woman is treated as Goddess in the
form of Lakshmi, Saraswati, Durga and the very split second all the heinous and illegal
offences are being committed against them like rape, sexual exploitation, kidnapping and
most importantly female foeticide.
 In India, the struggle of a girl begins the moment she is conceived in her mother’s
womb. Surviving female foeticide, she faces sex discrimination in all the spheres of her life
including heinous offences like sexual harassment at school, street and workplace, rape and
other offences which end only after her death.
II. HISTORICAL DEVELOPMENT - OVER BURDENING WOMEN
British period:
i. The social reformers like Swami Dayanand Saraswati, Swami Vivekanand, Annie Basant,
Ishwar Chandra Vidyasagar and Jyotirao Phule contributed a lot towards the elevation of the
status of women.
ii. Peary Charan Sarkar setup the first free school for girls in India in 1847 in Barasat, a suburb
of Calcutta.
iii. Hindu Widow Re-marriage Act, 1856 bought end to the evil tradition and S. 5 of this Act
ensured a widow to enjoy all the rights like a married woman.
iv. Child marriage restraint act, 1929 fixed a minimum marriageable age of women to 15 years
which was later increased to 18 years.
Modern Epoch:
‘Human rights are women’s rights, and women’s rights are human rights’. -
Hillary Clinton
Women in India have infiltrated into the traditionally exclusive men’s domain. From
topmost constitutional position of Prime Minister and President to constables and metro
driver, they have marked their presence. Today women are I.A.S., I.P.S., judges, bank
managers, army officers, pilots. They are efficiently handling banking operations, share
market, space research and are successful in the field of business and commerce as well.
III. STATUTORY PREVILEGES
i. The Hindu Marriage Act, 1955 recognised equal rights of men and women in matters of
marriage and divorce.
While dealing with the alimony and maintenance, the amount to be awarded is always
difficult for the judges and therefore, in Rajnesh vs. Neha (2020), the Supreme Court held
that there is no straitjacket formula for fixing the quantum of maintenance to be awarded. It is
mandatory to file affidavit of assets and liabilities by both the parties in order to avoid
injustice.
My opinion: this step is favourable to both the parties when they are honest as the court was
of the view that the sufficiency of amount has to be determined such that she is able to
maintain herself with reasonable comfort. There are instances where wifes earn more than the
husband and are capable of maintaining themselves and in such cases wife should not be
allowed to misuse the provision merely for harassing the husband.
ii. Dowry Prohibition Act, 1961 punishes giving and receiving of dowry whilst marriage.
iii. Maternity Benefit Act, 1961 provides certain establishments for certain periods before and
after child-birth and to provide for maternity benefit and certain other benefits. And
 Amendment of 1995 provides leave of 6 weeks immediately preceding the medical
termination of pregnancy along with miscarriage. 2 weeks leave with wages at the rate of
maternity benefit following the day of tubectomy operation.
iv. Equal remuneration Act, 1976 provides for the payment of equal remuneraion to men and
women workers and for the prevention of discrimination, on the ground of sex, against
women in the matter of employment and for matters connected therewith or incidental
thereto.
v. The Protection of Women from Domestic Violence Act, 2005 is a law specially made for
protecting the women from violence at home by their husband or his relatives. However, the
Courts have time and again interpreted this law in order to provide justice.
Satish Chandra Ahuja vs. Sneha Ahuja (2020) held that a wife is entitled to claim the right of
residence in a shared house belonging to her husband’s relative and therefore overruled S. R.
Batra and Anr. Vs. Taruna Batra (2006) which provided exhaustive definition of ‘Shared
household’ as that which is belonging to her husband or if the husband is a member of the
HUF or if the husband is rent payed of property residing in.
IV. CONSTITUTIONAL PRIVILEGES
Article 14 provides for equality, Article 15(3) empowers state to make any provision relating
to women and children. Article 16 provides for equal opportunities with regards to
government employment whereas Art. 39(d) directs the State to make policies to secure equal
pay for equal work for both men and women. Art. 42 directs the state to make provisions for
securing just and humane conditions of work and for maternity relief. Art. 51A (e) imposes a
fundamental duty upon the citizens of India to renounce practices derogatory to the dignity of
women.
1. Not less than one-third (including the number of seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct
election in every Panchayat to be reserved for women and such seats to be allotted by rotation
to different constituencies in a Panchayat (Article 243 D(3))
2. Not less than one- third of the total number of offices of Chairpersons in the Panchayats at
each level to be reserved for women (Article 243 D (4))
3. Not less than one-third (including the number of seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct
election in every Municipality to be reserved for women and such seats to be allotted by
rotation to different constituencies in a Municipality (Article 243 T (3))
4. Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the
Scheduled Tribes and women in such manner as the legislature of a State may by law provide
(Article 243 T (4)

V. IPC PROVISION
S. 354 of IPC punishes assault or criminal force to woman with intent to outrage her modesty with
imprisonment of either description for a term which may extend to 2 years or with fine or both.

S. 354A defines and punishes sexual harassment with imprisonment upto 1 year or with fine or both.
 (S. 354A to D) - sexual harassment, assault or use of criminal force to woman with intent to disrobe,
voyeurism, stalking which was a result of Mukesh and Anr v. State (NCT of Delhi) and Ors (2017) also
known as Nirbhaya Case.

The Nirbhaya Case also widened the scope and revised the definition and punishment u/s. 376 and
added five provisions to the said sections i.e. S. 376A to D. S. 376A-Punishment for causing death or
putting the person into a vegetative state, S. 376B outlines the consequences of a husband having
sexual relations with his wife when separated, S. 376C – Sexual intercourse by person in power,
authority or under influence of his power. S. 376D deals with offence of Gang rape.

i. Insertion of S. 326A and 326B - Acid Attack was a result of Lakshmi v Union of India and
Ors (2015).
ii. Kathua Gang rape case inserted S. 376AA, AB – rape and gang rape of victim under 12 years
was made punishable with minimum 20 years upto life imprisonment and death.
iii. S. 498A punishes cruelty by husband or his relatives with imprisonment upto 3 years and
fine.
iv. S. 302, 304B and 306 defines and punishes murder, Dowry death, and abatement of suicide.
All these offences are non-compoundable in nature.
VI. INEFFECTIVE EXISTING LEGAL AND IPC PROVISIONS
The Indian Penal Code was enacted to penalize the person for the act which he has committed
against other person and also defines different kinds of offences committed against woman
which includes dowry death, abetment or attempt to commit suicide, rape, offences against
pregnant woman like injury to an unborn child or infants, causing miscarriage and
concealment of birth sexual harassment and immoral or illegal trafficking of woman,
outraging the modesty of woman, cohabitation by deceitful means, bigamy, etc. All these
offences are descriptively defined under this code with specific punishment. In this way the
penal code provides protection to the woman. No wonder even after such provisions the
crime rates against women are not decreasing, because there are merely provisions without
stringent penalty and deficit enforcement. Even after the enactment of The Dowry Prohibition
Act, 1961 and insertion of Section 304-B 3 into IPC (dowry death), there were 7,621 reported
cases of dowry deaths in 2016 which undoubtedly demonstrates the failure in achieving the
object of its insertion.
VII. PERFORMANCE OF JUDICIARY AND CHALLENGES IN ITS EXECUTION
Vishakha vs. State of Rajasthan (1997)
The Supreme Court itself laid down guidelines which later on formed the basis of The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The
National Commission for Women disclosed that in 2018, 716 complaints of sexual
harassment were received by them, what is worth noting here is that these are exclusive of the
unreported cases. 97% of the firms are not even aware of the sexual harassment law.
My opinion: What is the significance of the law if majority is unaware of it? The National
Crimes Record Bureau (NCRB) revealed in 2016 that there were 327,394 cases of crimes
 against women in India and in 2017, there were 600 cases where the offenders in rape were
employees and co-workers.
Shayara Bano and others vs. Union of India and Others (2017)
The Supreme Court declared the practice of Triple Talak “unconstitutional” wherein husband
pronouncing talak to his wife according to ‘Talak-e-Biddat’ is held to be violative of
Fundamental Rights under Articles 14, 15 and 21 of the Constitution.
My opinion: But this judgment appears to be made to deny the privileges of Muslim men
rather than protecting the rights of Muslim women and a political move for securing the vote
bank of the Hindu voters.
Mukesh and Another vs. State for NCT of Delhi and others (2017)
Infamous as Nirbhaya Rape Case led to the amendment in the Juvenile Justice (Care and
protection) Act, 2000 permitting Juveniles aged 16- 18 to be tried as adults for heinous
crimes. The court considered the case to be rarest of rare by understanding the gravity of
crime and the criminal tendency of the accused giving due consideration to the extreme
mental and physical trauma of the victim.
My opinion: But on 10th February 2019, a class 8 girl was raped by a minor of class 10 in
school bathroom in Orissa during Saraswati Pooja celebration.
Re Mohd. Ahmed Khan vs. Shah Bano Begum and Others (1985)
The Supreme Court ruled in favour of Shah Bano providing her right to alimony from her
husband. But, the Muslim Personal Law Board agitated against the judgment and the Rajiv
Gandhi government subsequently passed The Muslim Women (Protection of Rights on
Divorce) Act, 1986 which totally contradicted the judgment.
My opinion: Thus the victory of communal forces and political pressures over the rights of
women displays the importance and status that Indian women possess in the society.
VIII. CONCLUSION
It is true that, the courts have changed their attitude towards constitutional interpretation in
recent years which is perceptible through various judgments cited above. These judgments
have set precedents and have formed new laws either by amending and modifying the
existing ones or by creating new. Though, the initial measures undertaken by the Parliament
and Courts are commendable, but unpleasant challenges and risks are still predominating and
therefore, vigilant assessment and proper implementation is imperative.
Hence, we can convincingly conclude that, though the Indian laws do not discriminate
between men and women, the status of Indian woman today is practically far below the status
of men. ‘Woman’s Empowerment’ in modern India cannot take place unless woman come
together and decide to self-empower themselves. This can begin by addressing day to day
issues faced by individual woman and tackling them with a mind-set of convalescing the
overall living conditions of woman at every level and strata of the society. There is a need to
establish a true gender equality and eradication of all patriarchal system.
 Explain “Law as an important mechanism in social transformation.
I. INTRODUCTION

Law can be simply defined as a system of rules that are used to regulate a society or rather
control it. A society is a heterogeneous place where people of all class, caste, creed, colour,
gender, background resides. Therefore, there arises a need to keep a balance between society
and the people living in it so that they can coexist interdependently which in turn will help in
bringing social change. Social change is something that every society and its people look
forward to because a change for good is always welcoming. Law plays an indispensable role
in bringing in a social change. A lawless society is absent of harmony and peace between the
people and the society.

II. REASONS FOR NEED OF SOCIAL TRANSFORMATION

As a society consists of all kinds of people, there is always a chance of one group of people to
be in the position of authority and dominance due to certain factors like money, power, and
status to rule over the other groups who are relatively weak. This scenario is nothing new for
every society once in a while have experienced such a setup. Not only this but society is
subjected to several other issues as well. Some of the notable being poverty, drug abuse,
corruption, prostitution, rape, lynching, child marriage, acid attacks, child labour,
discrimination in the form of caste, race, colour, gender etc. Law acts as a driving wheel for
society to eliminate all forms of hurdles by bringing legislation and statutes that will help
make a difference in the present and the future society. The society has been through several
modifications in the past years and law has indeed been helpful in bringing changes but let’s
not forget that societal issues are not disappearing completely on the contrary they are
accelerating. It is time for society to utilize the laws that are existing efficiently so that the
laws can be effective to bring about a social change in its true sense. Therefore, the solution
to the question as to how can the law be used as an instrument for creating social change lies
in the society and its people itself.

III. HISTORICAL BACKGROUND OF LAW AND SOCIAL

1. Traditionally, the norms that were followed by society to regulate itself in order to infuse the
elements of uniformity, consistency, development in society. The norms that were accepted
by society took the shape of the law.
2. The people of society had to follow the norms in their everyday life and contravention of
which would amount to offence either criminal or civil in nature.
 3. The same pattern is being followed at present as well. The only difference that has been
brought about is the amendments in the existing laws in order to renovate society for a better
look.

The relationship between law and society is therefore old and requires nurture and care in
order to keep it lively and fresh.

IV. FACTORS RESPONISBLE FOR SOCIAL TRANSFORMATION

1. The demographic structure;
2. Technological upliftment;
3. Change in the ideologies of the people in society;
4. Increase in the welfare of the people in society, etc.

It was an American Judge named Benjamin Cardozo who said that law should not be viewed
as a definite instrument trying to bring in social change but as a flexible instrument of a
necessity to bring in the welfare of the society. This is the essence of the Indian
Constitution as well.

THEORIES INVOLVED IN SOCIAL CHANGE

1. Linear theory of social change- Improvement and advancement in society take place as
society moves to a higher civilization gradually.

2. Cyclic theory of social change- The changes that take place in a society is in a cyclic form
and therefore happens again and again. Therefore, this theory terms social change to be
continuous in nature without any period of consistency.
V. WHY LAW IS NEEDED FOR BRINGING SOCIAL CHANGE
1. The theories of social change cannot bring in the transformation in the society, therefore,
needs the help of law.
2. The law helps in bringing these theories to go through procedures so that they can be
implemented.
3. Thus without legal regulations, social movements cannot be carried out.
4. Law brings social change in two different ways as under:
i. By providing stability in society and maintain an orderly life within the society.
ii. Bring in social change by changing itself so as to adjust with the demands and needs of the
society and its people.
VI. RULE OF LAW AND SOCIETY
1. Rule of law tells that no man can be held to be above the law of the land and thereby ensures
that law is the supreme element that regulates any society.
2. Law brings in a social order by making it clear that the people have to abide by law of the
land in order to avoid unnecessary conflicts that can act as an obstacle for the overall
development of the society.
3. Law is a weapon of the State to create fear in the minds of the people so that they do not by
their actions infringes the law of the land. Fear is necessary to bring in consciousness and
awareness among the public so that they can think before doing something wrong and in a
way protecting the people of the society from any kind of injustice that will exploit them and
their lives.

Law, therefore, makes a society a place worth living.

VII. CONSITITUTIONAL PROVISIONS

The Indian Constitution majorly had been brought about to maintain a balance between
individual freedom and promulgation of social justice in the nation. It can be said that
collectively Part III and Part IV of the Constitution has been a driving force to bring in a
social revolution in the country and therefore they formed a conscience for the Constitution.

Fundamental Rights in the Indian Constitution

Fundamental rights enforced:

i. right to freedom of life and personal liberty under Article 21. Right to free and compulsory
Education under Article 21A was a new addition under the right to life in the year 2002. The
society felt the need to educate its children in order to make them more aware of the social
change taking place around him or her. The way it was carried out was by law so as to make
education a compulsory necessity for all children up to 14 years of age.
ii. right to equality under Article 14,
iii. right to freedom under Article 19 and several other rights that prove to be essential to make a
difference in the existing society.
iv. The fundamental rights are enforceable in the court of law (Article 32 and 226) which says
that the people can approach the court if there is any contravention with the fundamental
rights.
v. Any laws contravening the Fundamental Rights of the people are to be declared as ultravires
the Constitution by the Judiciary with the help of Judicial Review.

Public Interest Litigation

1. PIL is the power given to the public by courts through judicial activism.

2. PIL means litigation filed in a court of law, for the protection of “Public Interest ”, such as
Pollution, Terrorism, Road safety, Constructional hazards, food adulteration, atrocities on
women, neglected children, etc. Any matter where the interest of public at large is affected
can be redressed by filing a Public Interest Litigation in a court of law.

3. The court can itself take cognizance of the matter and proceed suo motu or cases can
commence on the petition of any public spirited individual.

4. PIL can be filed in the Supreme Court u/Art 32 of the Indian Constitution, in the High Court
u/Art 226 and in the Court of Magistrate u/sec. 133 of the Criminal Procedure Code.

5. MC. Mehta v. Union of India (2020). In this public interest litigation, it was urged to the
Supreme Court to provide people to live in an environment that is free and healthy in terms of
water, air and the surrounding and was held that these necessities came under the ambit of
Article 21 of the Constitution.
6. Ganga is cleaned as a result of PIL, Guidelines through Vishakha vs. Sate of Rajasthan
resulting in enactment of Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.

Child marriage

Child marriage is one of the unfair customs that used to prevail until the coming of the Child
Marriage Restraint Act, 1929. Act was further amended in 2006 and came to be known as
the Prohibition of the Child Marriage Act, 2006. Child marriage is in one-way exploitation
against the girl child. In an age when children should pursue education, they are married in
order to remove responsibilities on the part of the parents and society. Though being a social
 evil, it was accepted by the society and therefore, legislation was only solution to eradicate it
completely.

Rape

More than just being a social issue, rape occurs due to the mindset of the people in the nation.
It is only through law, there be a change in the mentality of individuals in the society so as to
stop committing such a heinous offence. A social change by creating a strong deterrent for
the offenders which can as well act as fear for them and make them think before committing
anything of this sort. S. 376 includes all instances of Rape under 7 sub sections i.e. by police,
by person in authority, by public servant. Then Criminal law Amendment Act, 2013 i.e. result
of Nirbhaya case is S. 376 A (causing women into vegetative state), 376B (intercourse by
husband during separation), S. 376C (by person in authority) and lastly S. 376D (gang rape).

i. State vs. Sandeep (2019) –

Facts: accused and prosecutrix—having love affair—couldn’t marry because prosecutrix’s

father opposed—she filed for rape—on promise to marry—trial court held—Accused cannot
be guilty of rape because she established physical relations with accused not on account of
promise to marry but due to love and affection—the trial is not about not getting married but
on allegation of committing an offence of rape.

Held: Hon’ble Delhi High Court that Inducement to have a physical relationship by
promising marriage must have a clear nexus with the moment promise of marriage cannot be
held out as an inducement for engaging in sex over a protracted and indefinite period of time.

Section 377

Section 377 of the Indian Penal Code,1860 that use to criminalise unnatural offences that is if
intercourse takes place between two men or between two women, the same will be declared
as an offence under this provision was scraped off by the Supreme Court of India on the
grounds that homosexuality is no more an offence in the eyes of law. Supreme Court in the
landmark judgment of Navtej Singh Johar v. Union of India (2018) decriminalised all kinds
of consensual sex among adults which were inclusive of homosexual sex also. This decision
by the apex court brought in a revolutionary change in the Indian society, traditions and
beliefs. It was a welcoming judgment for the majority of the people especially the queer
community. The Supreme Court in a way established Article 21 once again placing that every
 individual has a right to life and personal liberty which should not be curbed due to societal
norms.

Loopholes in the law to make a social change

1. As social issues take time to remove, the law should be strong enough to accelerate that
change.
2. Rape laws have been laid down but rapes are not decreasing.
3. Racial discrimination and caste discrimination are being faced by the world until today.
4. Protests, mass gatherings, everything are failing because the laws that are present are not
having a strong root to bring in a social impact.
5. Homosexuality has been brought to the mainstream but not many accept the same as it goes
against the social norms.

CONCLUSION

It can therefore, be said that though law is an instrument present to bring in a social change
and to be precise it has brought in a lot of social changes like ending child marriage, Sati, and
reducing other social evils like Female infanticide and foeticide (tho present in come parts of
India), but it still has a long way to go in order to bring in societal transformation because
mentality and outlook of people would take some more time.