Law and

Human Rights

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Concepts of Justice:
Natural Rights and
Natural Justice

Chapter – 01

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Natural Justice and Natural law

The science of mine and thine --- the science of justice --- is the science of all human
rights; of all a man's rights of person and property; of all his rights to life, liberty, and the
pursuit of happiness.

It is the science which alone can tell any man what he can, and cannot, do; what he can,
and cannot, have; what he can, and cannot, say, without infringing the rights of any other
person.

It is the science of peace; and the only science of peace; since it is the science which
alone can tell us on what conditions mankind can live in peace, or ought to live in peace,
with each other.

These conditions are simply these: viz., first, that each man shall do, towards every other,
all that justice requires him to do; as, for example, that he shall pay his debts, that he shall
return borrowed or stolen property to its owner, and that he shall make reparation for any
injury he may have done to the person or property of another.

The second condition is, that each man shall abstain from doing so another, anything
which justice forbids him to do; as, for example, that he shall abstain from committing
theft, robbery, arson, murder, or any other crime against the person or property of
another.

So long as these conditions are fulfilled, men are at peace, and ought to remain at peace,
with each other. But when either of these conditions is violated, men are at war. And they
must necessarily remain at war until justice is re-established.

Through all time, so far as history informs us, wherever mankind have attempted to live
in peace with each other, both the natural instincts, and the collective wisdom of the
human race, have acknowledged and prescribed, as an indispensable condition, obedience
to this one only universal obligation: viz., that each should live honestly towards every
other.

The ancient maxim makes the sum of a man's legal duty to his fellow men to be simply
this: "To live honestly, to hurt no one, to give to every one his due."

This entire maxim is really expressed in the single words, to live honestly; since to live
honestly is to hurt no one, and give to every one his due.

Man, no doubt, owes many other moral duties to his fellow men; such as to feed the
hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenceless,
assist the weak, and enlighten the ignorant. But these are simply moral duties, of which
each man must be his own judge, in each particular case, as to whether, and how, and
how far, he can, or will, perform them. But of his legal duty --- that is, of his duty to live
honestly towards his fellow men --- his fellow men not only may judge, but, for their own

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protection, must judge. And, if need be, they may rightfully compel him to perform it.
They may do this, acting singly, or in concert. They may do it on the instant, as the
necessity arises, or deliberately and systematically, if they prefer to do so, and the
exigency will admit of it.

Although it is the right of anybody and everybody --- of any one man, or set of men, no
less than another --- to repel injustice, and compel justice, for themselves, and for all who
may be wronged, yet to avoid the errors that are liable to result from haste and passion,
and that everybody, who desires it, may rest secure in the assurance of protection,
without a resort to force, it is evidently desirable that men should associate, so far as they
freely and voluntarily can do so, for the maintenance of justice among themselves, and
for mutual protection against other wrong-doers. It is also in the highest degree desirable
that they should agree upon some plan or system of judicial proceedings, which, in the
trial of causes, should secure caution, deliberation, thorough investigation, and, as far as
possible, freedom from every influence but the simple desire to do justice.
Yet such associations can be rightful and desirable only in so far as they are purely
voluntary. No man can rightfully be coerced into joining one, or supporting one, against
his will. His own interest, his own judgment, and his own conscience alone must
determine whether he will join this association, or that; or whether he will join any. If he
chooses to depend, for the protection of his own rights, solely upon himself, and upon
such voluntary assistance as other persons may freely offer to him when the necessity for
it arises, he has a perfect right to do so. And this course would be a reasonably safe one
for him to follow, so long as he himself should manifest the ordinary readiness of
mankind, in like cases, to go to the assistance and defense of injured persons; and should
also himself "live honestly, hurt no one, and give to every one his due." For such a man is
reasonably sure of always giving friends and defenders enough in case of need, whether
he shall have joined any association, or not.

Certainly no man can rightfully be required to join, or support, an association whose

protection he does not desire. Nor can any man be reasonably or rightfully expected to
join, or support, any association whose plans, or method of proceeding, he does not [*8]
approve, as likely to accomplish its professed purpose of maintaining justice, and at the
same time itself avoid doing injustice. To join, or support, one that would, in his opinion,
be inefficient, would be absurd. To join or support one that, in his opinion, would itself
do injustice would be criminal. He must, therefore, be left at the same liberty to join, or
not to join, an association for this purpose, as for any other, according as his own interest,
discretion, or conscience shall dictate.

An association for mutual protection against injustice is like an association for mutual
protection against fire or shipwreck. And there is no more right or reason in compelling
any man to join or support one of these associations, against his will, his judgment, or his
conscience, than there is in compelling him to join or support any other, whose benefits
(if it offer any) he does not want, or whose purposes or methods he does not approve.

No objection can be made to these voluntary associations upon the ground that they
would lack that knowledge of justice, as a science, which would be necessary to enable

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them to maintain justice, and they avoid doing injustice. Honesty, justice, natural law, is
usually a very plain and simple matter, easily understood by common minds. Those who
desire to know what it is, in any particular case, seldom have to go far to find it. It is true,
it must be learned, like any other science. But it is also true that it is very easily learned.
Although as illimitable in its applications as the infinite relations and dealings of men
with each other, it is, nevertheless, made up of a few simple elementary principles, of the
truth and justice of which every ordinary mind has an almost intuitive perception. And
almost all men have the same perceptions of what constitutes justice, or of what justice
requires, when they understand alike the facts from which their inferences are to be
drawn.

Men living in contact with each other, and having intercourse together, cannot avoid
learning natural law, to a very great extent, even if they would. The dealings of men with
men, their separate possessions and their individual wants, and the disposition of every
man to demand, and insist upon, whatever he believes to be his due, and to resent and
resist all invasions of what he believes to be his rights, are continually forcing upon their
minds the questions, Is this act just? Or is it unjust? Is this thing mine? Or is it his? And
these are questions of natural law; questions which, in regard to the great mass of cases,
are answered alike by the human mind everywhere.

Children learn the fundamental principles of natural law at a very early age. Thus they
very early understand that one child must not, without just cause, strike or otherwise hurt,
another; that one child must not assume any arbitrary control or domination over another;
that one child must not, either by force, deceit, or stealth, obtain possession of anything
that belongs to another; that if one child commits any of these wrongs against another, it
is not only the right of the injured child to resist, and, if need be, punish the wrongdoer,
and compel him to make reparation, but that it is also the right, and the moral duty, of all
other children, and all other persons, to assist the injured party in defending his rights,
and redressing his wrongs. These are fundamental principles of natural law, which govern
the most important transactions of man with man. Yet children learn them earlier than
they learn that three and three are six, or five and five ten. Their childish plays, even,
could not be carried on without a constant regard to them; and it is equally impossible for
persons of any age to live together in peace on any other conditions.

It would be no extravagance to say that, in most cases, if not in all, mankind at large,
young and old, learn this natural law long before they have learned the meanings of the
words by which we describe it. In truth, it would be impossible to make them understand
the real meanings of the words, if they did not understand the nature of the thing itself.
To make them understand the meanings of the words justice and injustice before knowing
the nature of the things themselves, would be as impossible as it would be to make them
understand the meanings of the words heat and cold, wet and dry, light and darkness,
white and black, one and two, before knowing the nature of the things themselves. Men
necessarily must know sentiments and ideas, no less than material things, before they can
know the meanings of the words by which we describe them.

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The Science of Justice

If justice be not a natural principle, it is no principle at all. If it be not a natural principle,

there is no such thing as justice. If it be not a natural principle, all that men have ever said
or written about it, from time immemorial, has been said and written about that which
had no existence. If it be not a natural principle, all the appeals for justice that have ever
been heard, and all the struggles for justice that have ever been witnessed, have been
appeals and struggles for a mere fantasy, a vagary of the imagination, and not for a
reality.

If justice be not a natural principle, then there is no such thing as injustice; and all the
crimes of which the world has been the scene, have been no crimes at all; but only simple
events, like the falling of the rain, or the setting of the sun; events of which the victims
had no more reason to complain than they had to complain of the running of the streams,
or the growth of vegetation.

If justice be not a natural principle, governments (so-called) have no more right or reason
to take cognizance of it, or to pretend or profess to take cognizance of it, than they have
to take cognizance, or to pretend or profess to take cognizance, of any other nonentity;
and all their professions of establishing justice, or of maintaining justice, or of rewarding
justice, are simply the mere gibberish of fools, or the frauds of imposters.

But if justice be a natural principle, then it is necessarily an immutable one; and can no
more be changed --- by any power inferior to that which established it --- than can the
law of gravitation, the laws of light, the principles of mathematics, or any other natural
law or principle whatever; and all attempts or assumptions, on the part of any man or
body of men --- whether calling themselves governments, or by any other name --- to set
up their own commands, wills, pleasure, or discretion, in the place of justice, as a rule of
conduct for any human being, are as much an absurdity, an usurpation, and a tyranny, as
would be their attempts to set up their own commands, wills, pleasure, or discretion in the
place of any and all the physical, mental, and moral laws of the universe.

If there be any such principle as justice, it is, of necessity, a natural principle; and, as
such, it is a matter of science, to be learned and applied like any other science. And to
talk of either adding to, or taking from, it, by legislation, is just as false, absurd, and
ridiculous as it would be to talk of adding to, or taking from, mathematics, chemistry, or
any other science, by legislation.

If there be in nature such a principle as justice, nothing can be added to, or taken from, its
supreme authority by all the legislation of which the entire human race united are
capable. And all the attempts of the human race, or of any portion of it, to add to, or take
from, the supreme authority of justice, in any case whatever, is of no more obligation
upon any single human being than is the idle wind.

If there be such a principle as justice, or natural law, it is the principle, or law, that tells
us what rights were given to every human being at his birth; what rights are, therefore,

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inherent in him as a human being, necessarily remain with him during life; and, however
capable of being trampled upon, are incapable of being blotted out, extinguished,
annihilated, or separated or eliminated from his nature as a human being, or deprived of
their inherent authority or obligation.

On the other hand, if there be no such principle as justice, or natural law, then every
human being came into the world utterly destitute of rights; and coming into the world
destitute of rights, he must necessarily forever remain so. For if no one brings any rights
with him into the world, clearly no one can ever have any rights of his own, or give any
to another. And the consequence would be that mankind could never have any rights; and
for them to talk of any such things as their rights, would be to talk of things that never
had, never will have, and never can have any existence.

If there be such a natural principle as justice, it is necessarily the highest, and

consequently the only and universal, law for all those matters to which it is naturally
applicable. And, consequently, all human legislation is simply and always an assumption
of authority and dominion, where no right of authority or dominion exists. It is, therefore,
simply and always an intrusion, an absurdity, an usurpation, and a crime.

On the other hand, if there be no such natural principle as justice, there can be no such
thing as dishonesty; and no possible act of either force or fraud, committed by one man
against the person or property of another, can be said to be unjust or dishonest; or be
complained of, or prohibited, or punished as such. In short, if there be no such principle
as justice, there can be no such acts as crimes; and all the professions of governments, so
called, that they exist, either in whole or in part, for the punishment or prevention of
crimes, are professions that they exist for the punishment or prevention of what never
existed, nor ever can exist. Such professions are therefore confessions that, so far as
crimes are concerned, governments have no occasion to exist; that there is nothing for
them to do, and that there is nothing that they can do. They are confessions that the
governments exist for the punishment and prevention of acts that are, in their nature,
simple impossibilities.

If there be in nature such a principle as justice, such a principle as honesty, such

principles as we describe by the words mine and thine, such principles as men's natural
rights of person and property, then we have an immutable and universal law; a law that
we can learn, as we learn any other science; a law that tells us what is just and what is
unjust, what is honest and what is dishonest, what things are mine and what things are
thine, what are my rights of person and property and what are your rights of person and
property, and where is the boundary between each and all of my rights of person and
property and each and all of your rights of person and property. And this law is the
paramount law, and the same law, over all the world, at all times, and for all peoples; and
will be the same paramount and only law, at all times, and for all peoples, so long as man
shall live upon the earth.

But if, on the other hand, there be in nature no such principle as justice, no such principle
as honesty, no such principle as men's natural rights of person or property, then all such

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words as justice and injustice, honesty and dishonesty, all such words as mine and thine,
all words that signify that one thing is one man's property and that another thing is
another man's property, all words that are used to describe men's natural rights of person
or property, all such words as are used to describe injuries and crimes, should be struck
out of all human languages as having no meanings; and it should be declared, at once and
forever, that the greatest force and the greatest frauds, for the time being, are the supreme
and only laws for governing the relations of men with each other; and that, from
henceforth, all persons and combinations of persons --- those that call themselves
governments, as well as all others --- are to be left free to practice upon each other all the
force, and all the fraud, of which they are capable.

If there be no such science as justice, there can be no science of government; and all the
rapacity and violence, by which, in all ages and nations, a few confederated villains have
obtained the mastery over the rest of mankind, reduced them to poverty and slavery, and
established what they called governments to keep them in subjection, have been as
legitimate examples of government as any that the world is ever to see.

If there be in nature such a principle as justice, it is necessarily the only political principle
there ever was, or ever will be. All the other so-called political principles, which men are
in the habit of inventing, are not principles at all. They are either the mere conceits of
simpletons, who imagine they have discovered something better than truth, and justice,
and universal law; or they are mere devices and pretences, to which selfish and knavish
men resort as means to get fame, and power, and money.[*16]

Natural Law Contrasted with Legislation.

Natural law, natural justice, being a principle that is naturally applicable and adequate to
the rightful settlement of every possible controversy that can arise among men; being too,
the only standard by which any controversy whatever, between man and man, can be
rightfully settled; being a principle whose protection every man demands for himself,
whether he is willing to accord it to others, or not; being also an immutable principle, one
that is always and everywhere the same, in all ages and nations; being self-evidently
necessary in all times and places; being so entirely impartial and equitable towards all; so
indispensable to the peace of mankind everywhere; so vital to the safety and welfare of
every human being; being, too, so easily learned, so generally known, and so easily
maintained by such voluntary associations as all honest men can readily and rightfully
form for that purpose --- being such a principle as this, these questions arise, viz.: Why is
it that it does not universally, or well nigh universally, prevail? Why it is that it has not,
ages ago, been established throughout the world as the one only law that any man, or all
men, could rightfully be compelled to obey? Why is it that any human being ever
conceived that anything as self-evidently superfluous, false, absurd, and atrocious as all
legislation necessarily must be, could be of any use to mankind, or have any place in
human affairs?

The answer is, that through all historic times, wherever any people have advanced
beyond the savage state, and have learned to increase their means of sub-substance by the

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cultivation of soil, a greater or less number of them have associated and organized
themselves as robbers, to plunder and enslave all others, who had either accumulated any
property that could be seized, or had shown, by their labor, that they could be made to
contribute to the support or pleasure of those who should enslave them.

These bands of robbers, small in number at fist, have increased their power by uniting
with each other, inventing warlike weapons, disciplining themselves, and perfecting their
organizations as military forces, and dividing their plunder (including their captives)
among themselves, either in such proportions as have been previously agreed on, or in
such as their leaders (always desirous to increase the number of their followers) should
prescribe.

The success of these bands of robbers was an easy thing, for the reason that those whom
they plundered and enslaved were comparatively defense less; being scattered thinly over
the country; engaged wholly in trying, by rude implements and heavy labor, to extort a
subsistence from the soil; having no weapons of war, other than sticks and stones; having
no military discipline or organization, and no means of concentrating their forces, or
acting in concert, when suddenly attacked. Under these circumstances, the only
alternative left them for saving even their lives, or the lives of their families, was to yield
up not only the crops they had gathered, and the lands they had cultivated, but themselves
and their families also as slaves.

Thenceforth their fate was, as slaves, to cultivate for others the lands they had before
cultivated for themselves. Being driven constantly to their labor, wealth slowly increased;
but all went into the hands of their tyrants.

These tyrants, living solely on plunder, and on the labor of their slaves, and applying all
their energies to the seizure of still more plunder, and the enslavement of still other
defenseless persons; increasing, too, their numbers, perfecting their organizations, and
multiplying their weapons of war, they extend their conquests until, in order to hold what
they have already got, it becomes necessary for them to act systematically, and cooperate
with each other in holding their slaves in subjection.

But all this they can do only by establishing what they call a government, and making
what they call laws.

All the great governments of the world --- those now existing, as well as those that have
passed away --- have been of this character. They have been mere bands of robbers, who
have associated for purposes of plunder, conquest, and the enslavement of their fellow
men. And their laws, as they have called them, have been only such agreements as they
have found it necessary to enter into, in order to maintain their organizations, and act
together in plundering and enslaving others, and in securing to each his agreed share of
the spoils.

All these laws have had no more real obligation than have the agreements which
brigands, bandits, and pirates find it necessary to enter into with each other, for the more

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successful accomplishment of their crimes, and the more peaceable division of their
spoils.

Thus substantially all the legislation of the world has had its origin in the desires of one
class --- of persons to plunder and enslave others, and hold them as property.

In process of time, the robber, or slaveholding, class --- who had seized all the lands, and
held all the means of creating wealth --- began to discover that the easiest mode of
managing their slaves, and making them profitable, was not for each slaveholder to hold
his specified number of slaves, as he had done before, and as he would hold so many
cattle, but to give them so much liberty as would throw upon themselves (the slaves) the
responsibility of their own subsistence, and yet compel them to sell their labor to the
land-holding class --- their former owners --- for just what the latter might choose to give
them.

Of course, these liberated slaves, as some have erroneously called them, having no lands,
or other property, and no means of obtaining an independent subsistence, had no
alternative --- to save themselves from starvation --- but to sell their labor to the
landholders, in exchange only for the coarsest necessaries of life; not always for so much
even as that.

These liberated slaves, as they were called, were now scarcely less slaves than they were
before. Their means of subsistence were perhaps even more precarious than when each
had his own owner, who had an interest to preserve his life. They were liable, at the
caprice or interest of the landholders, to be thrown out of home, employment, and the
opportunity of even earning subsistence by their labor. They were, therefore, in large
numbers, driven to the necessity of begging, stealing, or starving; and became, of course,
dangerous to the property and quiet of their late masters.

The consequence was, that these late owners found it necessary, for their own safety and
the safety of their property, to organize themselves more perfectly as a government and
make laws for keeping these dangerous people in subjection; that is, laws fixing the
prices at which they should be compelled to labor, and also prescribing fearful
punishments, even death itself, for such thefts and trespasses as they were driven to
commit, as their only means of saving them-selves from starvation.

These laws have continued in force for hundreds, and, in some countries, for thousands of
years; and are in force to-day, in greater or less severity, in nearly all the countries on the
globe.

The purpose and effect of these laws have been to maintain, in the hands of the robber, or
slave holding class, a monopoly of all lands, and, as far as possible, of all other means of
creating wealth; and thus to keep the great body of laborers in such a state of poverty and
dependence, as would compel them to sell their labor to their tyrants for the lowest prices
at which life could be sustained.

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The result of all this is, that the little wealth there is in the world is all in the hands of a
few --- that is, in the hands of the law-making, slave-holding class; who are now as much
slaveholders in spirit as they ever were, but who accomplish their purposes by means of
the laws they make for keeping the laborers in subjection and dependence, instead of each
one's owning his individual slaves as so many chattels.

Thus the whole business of legislation, which has now grown to such gigantic
proportions, had its origin in the conspiracies, which have always existed among the few,
for the purpose of holding the many in subjection, and extorting from them their labor,
and all the profits of their labor.

And the real motives and spirit which lie at the foundation of all legislation ---
notwithstanding all the pretences and disguises by which they attempt to hide
themselves --- are the same to-day as they always have been. They whole purpose of this
legislation is simply to keep one class of men in subordination and servitude to another.

What, then, is legislation? It is an assumption by one man, or body of men, of absolute,

irresponsible dominion over all other men whom they call subject to their power. It is the
assumption by one man, or body of men, of a right to subject all other men to their will
and their service. It is the assumption by one man, or body of men, of a right to abolish
outright all the natural rights, all the natural liberty of all other men; to make all other
men their slaves; to arbitrarily dictate to all other men what they may, and may not, do;
what they may, and may not, have; what they may, and may not, be. It is, in short, the
assumption of a right to banish the principle of human rights, the principle of justice
itself, from off the earth, and set up their own personal will, pleasure, and interest in its
place. All this, and nothing less, is involved in the very idea that there can be any such
thing as human legislation that is obligatory upon those upon whom it is imposed.

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Indian Constitution

Chapter – 02

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The Constitution of India

The Constitution of India is the world's lengthiest written constitution with 395 articles
and 8 schedules. It contains the good points taken from the constitutions of many
countries in the world. It was passed on 26 Nov 1949 by the 'The Constituent Assembly'
and is fully applicable since 26 Jan 1950. The Constituent Assembly had been elected for
undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th
August 1947, as The Sovereign Constituent Assembly for the dominion of India. In
regard to its composition the members were elected by indirect election by the members
of The Provisional Legislative Assemblies (lower house only). At the time of signing 284
out of 299 members of the Assembly were present.

The constitution of India follows the principles of liberal democracy. It embodies some
Fundamental Rights and the concept of a Supreme Court. India is a federal system in
which residual powers of legislation remain with the central government. The
constitution provides detailed lists dividing up powers between central and state
governments, and it elaborates a set of Directive Principles of State Policy.

The constitution has provision for Schedules to be added to the constitution by

amendment. The ten schedules in force cover the designations of the states and union
territories; the emoluments for high-level officials; forms of oaths; allocation of the
number of seats in the Rajya Sabha. A review of the constitution needs at least two-thirds
of the Lok Sabha and Rajya Sabha to pass it.

The Indian constitution is one of the most frequently amended constitutions in the world.
Infect the first amendment to it was passed after only a year of the adoption of the
constitution and instituted numerous minor changes. Many more amendments followed a
rate of almost two amendments per year since 1950. Most of the constitution can be
amended after a quorum of more than half of the members of each house in Parliament
passes an amendment with a two-thirds majority vote. Articles pertaining to the
distribution of legislative authority between the central and state governments must also
be approved by 50 percent of the state legislatures

Preamble

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all
its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all FRATERNITY
assuring the dignity of the individual and the unity and integrity of the Nation;

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IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Fundamental Rights

Article 12 Definition
In this Part, unless the context otherwise required, "the State" includes the Governmental
and Parliament of India and the Government and the Legislature of each of the States and
all local or other authorities within the territory of India or under the control of the
Government of India.

Article 13 Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of this Part, shall,
to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise required, - (a) "law" includes any
Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the
territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under
article 368.

Article 14 Equality before law

The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.

Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place

of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, and place of birth or any of them.
(2) No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to -
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
whole or partly out of State funds or dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.

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(4) Nothing in this article or in clause (2) or article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 16 Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such employment
or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion to any class or classes of posts in the services under
the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the services under the State.
(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.

Article 17 Abolition of Untouchability

"Untouchability" is abolished and its practice in any form is forbidden. The enforcement
of any disability arising out of "Untouchability" shall be an offence punishable in
accordance with law.

Article 18 Abolition of titles

(1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit or
trust under the State, accept without the consent of the President any title from any
foreign State.
(4) No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind from or
under any foreign State.

Article 19 Protection of certain rights regarding freedom of speech, etc.

(1) All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;

15
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practice any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interests of
the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interest of the sovereignty and integrity of India or public order, reasonable restrictions
on the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub-
clauses either in the interests of the general public or for the protection of the interests of
any Schedule Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall
affect the operation of any existing law in so far as it relates to, or prevent the State from
making any law relating to, -
(i) the professional or technical qualifications necessary for practicing any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of
any trade, business, industry or service, whether to the exclusion, complete or partial, of
citizens or otherwise.

Article 20 Protection in respect of conviction for offenses

(1) No person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the act charged as an offence, not be subjected to a penalty
greater than that which might have been inflicted under the law in force at the time of the
commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.

Article 21 Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure
established by law.

16
Article 22 Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult,
and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to court of the magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
magistrate.
(3) Nothing in clauses (1) and (2) shall apply -
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive
detention.
(4) No law providing for preventive detention shall authorize the detention of a person for
a longer period than three months unless -
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said period
of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-clause
(b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing
for preventive detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred
to in that clause to disclose facts which such authority considers to be against the public
interest to disclose.
(7) Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of cases in which, a person
may be detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in accordance
with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a)
of clause (4).
Article 23 Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and beggar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purposes, and in imposing such service the State shall not make any discrimination
on ground only of religion, race, caste or class or any of them.

17
Article 24 Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any other hazardous employment.

Article 25 Freedom of conscience and free profession, practice and propagation of

religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law -
(a) Regulating or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
(b) Providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion.
Explanation II: In sub-Clause (b) of clause (2), the reference to Hindus shall be construed
as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the
reference to Hindu religious institutions shall be construed accordingly.

Article 26 Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination or any section
thereof shall have the right -
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.

Article 27 Freedom as to payment of taxes for promotion of any particular religion

No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular
religion or religious denomination.

Article 28 Freedom as to attendance at religious instruction or religious worship in

certain educational institutions
(1) No religious instruction shall be provided in any educational institution wholly
maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered
by the State but has been established under any endowment or trust which requires that
religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognized by the State or receiving
aid out of State funds shall be required to take part in any religious instruction that may
be imparted in such institution or to attend any religious worship that may be conducted

18
in such institution or in any premises attached thereto unless such person or, if such
person is minor, his guardian has given his consent thereto.
Article 29 Protection of interests of minorities
(1) Any section of the citizens residing in the territory of India or any part thereof having
a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them.

Article 30 Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right guaranteed
under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a minority,
whether based on religion or language.

Article 31 Compulsory acquisition of property

{...}

Article 31A Saving of laws providing for acquisition of estates, etc.

(1) Notwithstanding anything contained in article 13, no law providing for -
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment
or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period
either in the public interest or in order to secure the proper management of the property,
or
(c) the amalgamation of two or more corporations either in the public interest or in order
to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and
treasurers, managing directors, directors or managers of corporations, or of any voting
rights of share-holders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement,
lease or license for the purpose of searching for, or winning, any mineral or mineral oil,
or the premature termination or cancellation of and such agreement, lease or license, shall
be deemed to be void on the ground that it is inconsistent with, or takes away or abridges
any of the rights conferred by article 14 or article 19: Provided that where such law is a
law made by the Legislature of a State, the provisions of this article shall not apply
thereto unless such law, having been reserved for the consideration of the President, has
received his assent:
Provided further that where any law makes any provision for the acquisition by the State
of any estate and where any land comprised therein is held by a person under his personal

19
cultivation, it shall not be lawful for the State to acquire any portion of such land as is
within the ceiling limit applicable to him under any law for the time being in force or any
building or structure standing thereon or appurtenant thereto, unless the law relating to
the acquisition of such land, building or structure, provides for payment of compensation
at a rate which shall not be less than the market value thereof.
(2) In this article, -
(a) the expression "estate" shall, in relation to any local area, have the same meaning as
that expression or its local equivalent has in the existing law relating to land tenure in
force in that area and shall also include -
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and
Kerala, any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture of for purposes ancillary thereto,
including waste land, forest land, land for pasture or sites of buildings and other
structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression "rights", in relation to an estate, shall include any rights vesting in a
proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other
intermediary and any rights or privileges in respect of land revenue.

Article 31B Validation of certain Acts and Regulations

Without prejudice to the generality of the provisions contained in article 31A, none of the
Acts and Regulations specified in the Ninth Schedule nor any of the provision thereof
shall be deemed to be void, or even to have become void, on the ground that such Act,
Regulation or provision is inconsistent with, or takes away or abridges any of the rights
conferred by, any provisions of this part, and notwithstanding any judgment, decree or
order of any court or tribunal to the contrary, each of the said Acts and Regulations shall,
subject to the power of any competent Legislature to repeal or amend it, continue in
force.

Article 31C Saving of laws giving effect to certain directive principles

Notwithstanding anything contained in article 13, no law giving effect to the policy of the
State towards securing all or any of the principles laid down in Part IV shall be deemed to
be void on the ground that it is inconsistent with, or takes away or abridges any of the
rights conferred by article 14 or article 19; and no law containing a declaration that it is
for giving effect to such policy shall be called in question in any court on the ground that
it does not give effect to such policy: Provided that where such law is made by the
Legislature of a State, the provisions of this article shall not apply thereto unless such
law, having been reserved for the consideration of the President, has received his assent.

Article 31D Saving of laws in respect of anti-national activities

{...}

Article 32 Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.

20
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and
(2), Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
(2).
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

Article 32A Constitutional validity of State laws not to be considered in proceedings

under article 32
{...}

Article 33 Power of Parliament to modify the rights conferred by this Part in their
application to Forces, etc.
Parliament may, by law, determine to what extent any of the rights conferred by this Part
shall, in their application to, -
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for
purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for
the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be
restricted or abrogated so as to ensure the proper discharge of their duties and the
maintenance of discipline among them.

Article 34 Restriction on rights conferred by this Part while marital law is in force in any
area
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law
indemnify any person in the service of the Union or of a State or any person in respect of
any act done by him in connection with the maintenance or restoration or order in any
area within the territory of India where martial law was in force or validate any sentence
passed, punishment inflicted, forfeiture ordered or other act done under martial law in
such area.

Article 35 Legislation to give effect to the provisions of this Part

Notwithstanding anything in this Constitution, -
(a) Parliament shall have, and the Legislature of a State shall not have, power to make
laws -
(i) With respect to any of the matters which under clause (3) of article 16, clause (3) of
article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this
part, and Parliament shall, as soon as may be after the commencement of this

21
Constitution, make laws for prescribing punishment for the acts referred to in sub-clause
(ii);
(b) any law in force immediately before the commencement of this Constitution in the
territory of India with respect to any of the matters referred to in sub-clause (i) of clause
(a) or providing for punishment for any act referred to in sub-clause (ii) of that clause
shall, subject to the terms thereof and to any adaptations and modifications that may be
made therein under article 372, continue in force until altered or repealed or amended by
Parliament. Explanation: In this article, the expression "law in force" has the same
meaning as in article 372.

Fundamental Duties

These Fundamental rights have been provided at the cost of some fundamental duties.
These are considered as the duties that must be and should be performed by every citizen
of India. These fundamental duties are defined as:

It shall be the duty of every citizens of India: -

 To abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
 To cherish and follow the noble ideals which inspired our national struggle for
freedom;
 To uphold and protect the sovereignty, unity and integrity of India;
 To defend the country and render national service when called upon to do so;
 To promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;
 To value and preserve the rich heritage of our composite culture;
 To protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;
 To develop the scientific temper, humanism and the spirit of inquiry and reform;
 To safeguard public property and to abjure violence;
 To strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavor and achievement.

The Right to Equality

The right to equality is one of the six rights that have been granted to us. In the Indian
Constitution this right have been described as:

The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to access
to shops, public restaurants, hotels and places of public entertainment; or the use of wells,
tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of
State funds or dedicated to the use of the general public.

22
Nothing in this article shall prevent the State from making any special provision for
women and children.

Nothing in this article or in clause (2) of article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Equal opportunity for all:

There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State. No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under the State.

Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such employment
or appointment.

Nothing in this article shall prevent the State from making any provision for reservation
in matters of promotion to any class or classes of posts in the services under the State in
favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the services under the State. Nothing in this
article shall prevent the State from considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with any provision for reservation
made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in
any succeeding year or years and such class of vacancies shall not be considered together
with the vacancies of the year in which they are being filled up for determining the
ceiling of fifty per cent reservation on total number of vacancies of that year.

Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.

Directive Principles of State Policy

The Fundamental Rights embodied in the constitution are guaranteed to all citizens.
These civil liberties take precedence over any other law of the land. They include
individual rights common to most liberal democracies, such as equality before the law,
freedom of speech and expression, freedom of association and peaceful assembly,
freedom of religion, and the right to constitutional remedies for the protection of civil
rights such as habeas corpus. In addition, the Fundamental Rights are aimed at
overturning the inequities of past social practices. They abolish "untouchability"; prohibit

23
discrimination on the grounds of religion, race, caste, sex, or place of birth; and forbid
traffic in human beings and forced labor. They go beyond conventional civil liberties in
protecting cultural and educational rights of minorities by ensuring that minorities may
preserve their distinctive languages and establish and administer their own education
institutions. Originally, the right to property was also included in the Fundamental
Rights; however, the Forty-fourth Amendment, passed in 1978, revised the status of
property rights by stating that "No person shall be deprived of his property save by
authority of law." Freedom of speech and expression, generally interpreted to include
freedom of the press, can be limited "in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an
offence".

An important feature of the constitution is the Directive Principles of State Policy.

Although the Directive Principles are asserted to be "fundamental in the governance of
the country," they are not legally enforceable. Instead, they are guidelines for creating a
social order characterized by social, economic, and political justice, liberty, equality, and
fraternity as enunciated in the constitution's preamble.

In some cases, the Directive Principles articulate goals that, however admirable, remain
vague platitudes, such as the injunctions that the state "shall direct its policy towards
securing . . . that the ownership and control of the material resources of the community
are so distributed to sub serve the common good" and "endeavor to promote international
peace and security." In other areas, the Directive Principles provide more specific policy
objectives. They exhort the state to secure work at a living wage for all citizens; take
steps to encourage worker participation in industrial management; provide for just and
humane conditions of work, including maternity leave; and promote the educational and
economic interests of Scheduled Castes, Scheduled Tribes, and other disadvantaged
sectors of society. The Directive Principles also charge the state with the responsibility
for providing free and compulsory education for children up to age fourteen.

The Directive Principles also urge the nation to develop a uniform civil code and offer
free legal aid to all citizens. They urge measures to maintain the separation of the
judiciary from the executive and direct the government to organize village panchayats to
function as units of self-government. This latter objective was advanced by the Seventy-
third Amendment and the Seventy-fourth Amendment in December 1992. The Directive
Principles also order that India should endeavor to protect and improve the environment
and protect monuments and places of historical interest.

The Forty-second Amendment, which came into force in January 1977, attempted to raise
the status of the Directive Principles by stating that no law implementing any of the
Directive Principles could be declared unconstitutional on the grounds that it violated any
of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting
"antinational activities" or the formation of "antinational associations" could not be
invalidated because they infringed on any of the Fundamental Rights. It added a new
section to the constitution on "Fundamental Duties" that enjoined citizens "to promote

24
harmony and the spirit of common brotherhood among all the people of India,
transcending religious, linguistic and regional or sectional diversities." However, the
amendment reflected a new emphasis in governing circles on order and discipline to
counteract what some leaders had come to perceive as the excessively freewheeling style
of Indian democracy. After the March 1977 general election ended the control of the
Congress (Congress (R) from 1969) over the executive and legislature for the first time
since independence in 1947, the new Janta-dominated Parliament passed the Forty-third
Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the
Forty-second Amendment's provision that Directive Principles take precedence over
Fundamental Rights and also curbed Parliament's power to legislate against "antinational
activities”.

25
Social Legislation

Chapter – 03

26
Social Legislation

Laws that seek to promote the common good, generally by protecting and assisting the
weaker members of society, are considered to be social legislation. Such legislation
includes laws assisting the unemployed, the infirm, the disabled, and the elderly. The
social welfare system consists of hundreds of state and federal programs of two general
types. Some programs, including Social Security, Medicare, unemployment insurance,
and Workers Compensation, are called social insurance programs because they are
designed to protect citizens against hardship due to old age, unemployment, or injury.
Because people receiving benefits from these programs generally have contributed
toward their benefits by paying payroll taxes during the years that they worked, these
social insurance programs are usually thought of as earned rewards for work. Programs of
a second type, often cumulatively called the Welfare System, provide government
assistance to those already poor. These social programs have maximum income
requirements and include Aid to Families with Dependent Children, the Food Stamp
Program, Medicaid, and Supplemental Security Insurance.

Social Legislations pertaining to Disability

A significant portion of our population (over thirty million in the U.S.1) has impairments
which reduce their ability to effectively or safely use standard consumer products. These
impairments may be acquired at birth or through accident or disease. Note that much
impairment which results in disabilities is associated with aging. This is especially
significant, as the population as a whole is growing older. Although there is a tremendous
variety of specific causes, as well as combinations and severity of disabilities, we can
most easily relate their basic impact to the use of consumer products by looking at four
major categories of impairment. The four categories are:
 Visual Impairments
 Hearing Impairments
 Physical Impairments
 Cognitive/Language Impairments

Acts in Disability

 The Person with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995
 The Rehabilitation Council of India Act, 1992
 The Mental Health Act, 1987
 The National Trust for the Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999
 Employees State Insurance Act, 1948

27
The Person with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995

Prevention and Early Detection of Disabilities

1. Within the limits of their economic capacity and development, the appropriate
Governments and the local authorities, with a view to preventing the occurrence
of disabilities, shall -
a. undertake or cause to be undertaken surveys, investigations and research
concerning the cause of occurrence of disabilities;
b. promote various methods of preventing disabilities;
c. screen all the children at least once in a year for the purpose of identifying
"at-risk" cases;
d. provide facilities for training to the staff at the primary health centers;
e. sponsor or cause to be sponsored awareness campaigns and disseminate or
cause to be disseminated information for general hygiene, health and
sanitation;
f. take measures for pre-natal, prenatal and post-natal care of mother and
child;
g. educate the public through the pre-schools, primary health centers, village
level workers and anganwadi workers;
h. create awareness amongst the masses through television, radio and other
mass media on the causes of disabilities and the preventive measures to be
adopted.
Education

1. The appropriate Governments and the local authorities shall -

a. ensure that every child with a disability has access to free education in an
appropriate environment till he attains the age of eighteen years;
b. endeavour to promote the integration of students with disabilities in the
normal schools;
c. promote setting up of special schools in Government and private sector for
those in need of special education, in such a manner that children with
disabilities living in any part of the country have access to such schools;
d. endeavour to equip the special schools for children with disabilities with
vocational training facilities.
2. The appropriate Governments and the local authorities shall by notification make
schemes for -
a. conducting part-time classes in respect of children with disabilities who
having completed education up to class fifth and could not continue their
studies on a whole-time basis;
b. conducting special part-time classes for providing functional literacy for
children in the age group of sixteen and above;
c. imparting non-formal education by utilizing the available manpower in
rural areas after giving them appropriate orientation;
d. imparting education through open schools or open universities;

28
 e. conducting class and discussions through interactive electronic or other
media;
f. providing every child with disability free of cost special books and
equipments needed for his education.
3. The appropriate Governments shall initiate or cause to be initiated research by
official and non-governmental agencies for the purpose of designing and
developing new assistive devices, teaching aids, special teaching materials or such
other items as are necessary to give a child with disability equal opportunities in
education.
4. The appropriate Governments shall set up adequate number of teachers' training
institutions and assist the national institutes and other voluntary organisations to
develop teachers' training programmes specialising in disabilities so that requisite
trained manpower is available for special schools and integrated schools for
children with disabilities.
5. Without prejudice to the foregoing provisions, the appropriate Governments shall
by notification prepare a comprehensive education scheme which shall make
provision for -
a. transport facilities to the children with disabilities or in the alternative
financial incentives to parents or guardians to enable their children with
disabilities to attend schools;
b. the removal of architectural barriers from schools, colleges or other
institutions imparting vocational and professional training;
c. the supply of books, uniforms and other materials to children with
disabilities attending school;
d. the grant of scholarship to students with disabilities;
e. setting up of appropriate fora for the redressal of grievances of parents
regarding the placement of their children with disabilities;
f. suitable modification in the examination system to eliminate purely
mathematical questions for the benefit of blind students and students with
low vision;
g. restructuring of curriculum for the benefit of children with disabilities;
h. restructuring the curriculum for benefit of students with hearing
impairment to facilitate them to take only one language as part of their
curriculum.
6. All educational institutions shall provide or cause to be provided amanuensis to
blind students and students with or low vision.

Employment

7. Appropriate Governments shall -

a. identify posts, in the establishments, which can be reserved for the persons
with disability;
b. at periodical intervals not exceeding three years, review the list of posts
identified and up-date the list taking into consideration the developments
in technology.

29
8. Every appropriate Government shall appoint in every establishment such
percentage of vacancies not less than three per cent for persons or class of persons
with disability of which one per cent each shall be reserved for persons suffering
from -
i. blindness or low vision;
ii. hearing impairment;
iii. loco motor disability or cerebral palsy, in the posts identified for each
disability: Provided, that the appropriate Government may, having regard
to the type of work carried on in any department or establishment, by
notification subject to such conditions, if any, as may be specified in such
notification, exempt any establishment from the provisions of this section.
9. (1) The appropriate Government may, by notification, require that from such date
as may be specified, by notification, the employer in every establishment shall
furnish such information or return as may be prescribed in relation to vacancies
appointed for persons with disability that have occurred or are about to occur in
that establishment to such Special Employment Exchange as may be prescribed
and the establishment shall thereupon comply with such requisition.
(2) The form in which and the intervals of time for which information or returns
shall be furnished and the particulars, they shall contain shall be such as may be
prescribed.
10. Any person authorised by the Special Employment Exchange in writing, shall
have access to any relevant record or document in the possession of any
establishment and may enter at any reasonable time and premises where he
believes such record or document to be, and inspect or take copies of relevant
records or documents or ask any question necessary for obtaining any
information.
11. Where in any recruitment year any vacancy under section 33, cannot be filled up
due to non-availability of a suitable person with disability or, for any other
sufficient reason, such vacancy shall be carried forward in the succeeding
recruitment year and if in the succeeding recruitment year also suitable person
with disability is not available, it may first be filled by interchange among the
three categories and only when there is no person with disability available for the
post in that year, the employer shall fill up the vacancy by appointment of a
person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given
category of person can not be employed, the vacancies may be interchanged
among the three categories with the prior approval of the appropriate
Government.
12. (1) Every employer shall maintain such record in relation to the person with
disability employed in his establishment in such form and in such manner as may
be prescribed by the appropriate government.
(2) The records maintained under sub-section (1) shall be open to inspection at all
reasonable hours by such persons as may be authorised in this behalf by general
or special order by the appropriate Government.

30
 13. (1) The appropriate Governments and local authorities shall by notification
formulate schemes for ensuring employment of persons with disabilities, and such
schemes may provide:
. the training and welfare of persons with disabilities;
a. the relaxation of upper age limit;
b. regulating the employment;
c. health and safety measures and creation of a non-handicapping
environment in places where persons with disabilities are employed;
d. the manner in which and the persons by whom the cost of operating the
schemes is to be defrayed; and
e. constituting the authority responsible for the administration of the scheme.
14. All Government educational institutions and other educational institutions
receiving aid from the Government, shall reserve not less than three per cent seats
for persons with disabilities.
15. The appropriate Governments and local authorities shall reserve not less than
three per cent in all poverty alleviation schemes for the benefit of persons with
disabilities.
16. The appropriate Governments and the local authorities shall, within the limits of
their economic capacity and development, provide incentives to employers both
in public and private sectors to ensure that at least five per cent of their work force
is composed of persons with disabilities.

Affirmative Action

17. The appropriate Governments shall by notification make schemes to provide aids
and appliances to persons with disabilities.
18. The appropriate Governments and local authorities shall by notification frame
schemes in favour of persons with disabilities, for the preferential allotment of
land at confessional rates for -
. house;
a. setting up business;
b. setting up of special recreation centers;
c. establishment of special schools;
d. establishment of research centers;
e. establishment of factories by entrepreneurs with disabilities.

Non-Discrimination

19. Establishments in the transport sector shall, within the limits of their economic
capacity and development for the benefit of persons with disabilities, take special
measures to-
. adapt rail compartments, buses, vessels and aircrafts in such a way as to
permit easy access to such persons;
a. adapt toilets in rail compartments, vessels, aircrafts and waiting rooms in
such a way as to permit the wheel chair users to use them conveniently.

31
 20. The appropriate Governments and the local authorities shall, within the limits of
their economic capacity and development, provide for -
. installation of auditory signals at red lights in the public roads for the
benefit of persons with visual handicap;
a. causing curb cuts and slopes to be made in pavements for the easy access
of wheel chair users;
b. engraving on the surface of the zebra crossing for the blind or for persons
with low vision;
c. engraving on the edges of railway platforms for the blind or for persons
with low vision;
d. devising appropriate symbols of disability;
e. Warning signals at appropriate places.
21. The appropriate Governments and the local authorities shall, within the limits of
their economic capacity and development, provide for -
. ramps in public building;
a. adaptation of toilets for wheel chair users;
b. Braille symbols and auditory signals in elevators or lifts;
c. ramps in hospitals, primary health centers and other medical care and
rehabilitation institutions.
22. (1) No establishment shall dispense with, or reduce in rank, an employee who
acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post
he was holding, could be shifted to some other post with the same pay scale and
service benefits:
Provided further that if it is not possible to adjust the employee against any post,
he may be kept on a supernumerary post until a suitable post is available or he
attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his
disability:
Provided that the appropriate Government may, having regard to the type of work
carried on in any establishment, by notification and subject to such conditions, if
any, as may be specified in such notification, exempt any establishment from the
provisions of this section.

Research and Manpower Development

23. The appropriate Governments and local authorities shall promote and sponsor
research, inter alia, in the following areas: -
. prevention of disability;
a. rehabilitation including community based rehabilitation;
b. development of assistive devices including their psycho-social aspects;
c. job identification;
d. on site modifications in offices and factories.
24. The appropriate Governments shall provide financial assistance to universities,
other institutions of higher learning, professional bodies and non-governmental

32
 research-units or institutions, for undertaking research for special education,
rehabilitation and manpower development.

Recognition of Institutions for Persons with Disabilities

25. The State Government shall appoint any authority as it deems fit to be a
competent authority for the purposes of this Act.
26. Save as otherwise provided under this Act, no person shall establish or maintain
any institution for persons with disabilities except under and in accordance with a
certificate of registration issued in this behalf by the competent authority:
Provided that a person maintaining an institution for persons with disabilities
immediately before the commencement of this Act may continue to maintain such
institution for a period of six months from such commencement and if he has
made an application for such certificate under this section within the said period
of six months, till the disposal of such application.
27. (1) Every application for a certificate of registration shall be made to the
competent authority in such form and in such manner as may be prescribed by the
State Government.
(2) On receipt of an application under sub-section (1), the competent authority
shall make such enquiries as it may deem fit and where it is satisfied that the
applicant has complied with the requirements of this Act and the rules made
thereunder it shall grant a certificate of registration to the applicant and where it is
not so satisfied the competent authority shall, by order, refuse to grant the
certificate applied for :
Provided that before making any order refusing to grant a certificate the
competent authority shall give to the applicant a reasonable opportunity of being
heard and every order of refusal to grant a certificate shall be communicated to
the applicant in such manner as may be prescribed by the State Government.
(3) No certificate of registration shall be granted under sub-section (2) unless the
institution with respect to which an application has been made is in a position to
provide such facilities and maintain such standards as may be prescribed by the
State Government.
(4) A certificate of registration granted under this section,
. shall, unless revoked under section 53, remain in force for such period as
may be prescribed by the State Government.
a. may be renewed from time to time for a like period; and
b. shall be in such form and shall be subject to such conditions as may be
prescribed by the State Government.
(5) An application for renewal of a certificate of registration shall be made not
less than sixty days before the period of validity.
(6) The certificate of registration shall be displayed by the institution in a
conspicuous place.
28. (1) The competent authority may, if it has reasonable cause to believe that the
holder of the certificate of registration granted under sub-section (2) of section 52
has -

33
 . made a statement in relation to any application for the issue or renewal of
the certificate which is incorrect or false in material particulars; or
a. committed or has caused to be committed any breach of rules or any
conditions subject to which the certificate was granted, it may, after
making such inquiry, as it deems fit, by order, revoke the certificate:
Provided that no such order shall be made until an opportunity is given to
the holder of the certificate to show cause as to why the certificate should
not be revoked.
(2) Where a certificate in respect of an institution has been revoked under sub-
section (1), such institution shall cease to function from the date of such
revocation:
Provided that where an appeal lies under section 54 against the order of
revocation, such institution shall cease to function -
b. where no appeal has been preferred immediately on the expiry of the
period prescribed for the filing of such appeal, or
c. where such appeal has been preferred, but the order of revocation has been
upheld, from the date of the order of appeal.
(3) On the revocation of a certificate in respect of an institution, the competent
authority may direct that any person with disability who is an inmate of such
institution on the date of such revocation, shall be -
d. restored to the custody of her or his parent, spouse or lawful guardian, as
the case may be, or
e. transferred to any other institution specified by the competent authority.
(4) Every institution which holds a certificate of registration which is revoked
under this section shall, immediately after such revocation, surrender such
certificate to the competent authority.
29. (1) Any person aggrieved by the order of the competent authority refusing to
grant a certificate or revoking a certificate may, within such period as may be
prescribed by the State Government, prefer an appeal to that Government against
such refusal or revocation.

(2) The order of the State Government on such appeal shall be final.
30. Nothing contained in this Chapter shall apply to an institution for persons with
disabilities established or maintained by the Central Government or a State
Government.

Institution for Persons with Severe Disabilities

31. The appropriate Government may establish and maintain institutions for persons
with severe disabilities at such places as it thinks fit.
(2) Where, the appropriate Government is of opinion that any institution other
than an institution, established under sub-section (1), is fit for the rehabilitation of
the persons with severe disabilities, the Government may recognise such
institution as an institution for persons with severe disabilities for the purposes of
this Act:
Provided that no institution shall be recognised under this section unless such

34
 institution has complied with the requirements of this Act and the rules made
thereunder.

(3) Every institution established under sub-section (1) shall be maintained in such
manner and satisfy such conditions as may be prescribed by the appropriate
Government.
(4) For the purposes of this section "person with severe disability" means a person
with eighty per cent. or more of one or more disabilities.

The Rehabilitation Council of India Act, 1992

The Act was created to provide for the constitution of the Rehabilitation Council of India
for regulating training of the Rehabilitation Professional and maintaining of a Central
Rehabilitation Register and for matters related to these issues.

The professionals who come under the purview of the Act are:
 Audiologists and Speech therapists
 Clinical Psychologists
 Hearing aid and Ear mould technicians
 Rehabilitation engineers and technicians
 Special educators for teaching and training the handicapped
 Vocational counselors, Employment officers, and Placement officers
 Multi-purpose rehabilitation therapists and technicians
 Speech pathologists
 Rehabilitation psychologists
 Rehabilitation social workers
 Rehabilitation practitioners in mental retardation
 Orientation and mobility specialist
 Community based rehabilitation professionals
 Rehabilitation counselors/administrators
 Prosthetists and Orthotists
 Rehabilitation workshop managers

The Mental Health Act, 1987

Statement of Objects and Reasons of Act 14 Of 1987

1. The attitude of the society towards persons afflicted with mental illness has
changed considerably and it is now realised that no stigma should be attached to
such illness as it is curable, particularly, when diagnosed at an early stage. Thus
the mentally ill persons are to be treated like any other sick persons and the
environment around them should be made as normal as possible.

2. The experience of the working of Indian Lunacy Act, 1912 ( 4 of 1912) has
revealed that it has become out-moded. With the rapid advance of medical science
and the understanding of the nature of malady, it has become necessary to have
fresh legislation with provisions for treatment of mentally ill persons in

35
 accordance with the new approach.

3. It is considered necessary -
I. to regulate admission to psychiatric hospitals or psychiatric nursing homes
of mentally ill-persons who do not have sufficient understanding to seek
treatment on a voluntary basis, and to protect the rights of such persons
while being detained;
II. To protect society from the presence of mentally ill persons who have
become or might become a danger or nuisance to others;
III. To protect citizens from being detained in psychiatric hospitals or
psychiatric nursing homes without sufficient cause;
IV. To regulate responsibility for maintenance charges of mentally ill persons
who are admitted to psychiatric hospitals or psychiatric nursing homes;
V. To provide facilities for establishing guardianship or custody of mentally
ill persons who are incapable of managing their own affairs;
VI. To provide for the establishment of Central Authority and State
Authorities for Mental Health Services;
VII. To regulate the powers of the Government for establishing, licensing and
controlling psychiatric hospitals and psychiatric nursing homes for
mentally ill persons;
VIII. To provide for legal aid to mentally ill persons at State expense in certain
cases.

4. The main object of the Bill is to implement the aforesaid proposals.

Comment

It is well settled that when the language of the statute is clear and admits of no ambiguity,
recourse to the Statement of Objects and Reasons for the purpose of construing a
statutory provision is not permissible. Court must strive to so interpret the statute as to
protect and advance the object and purpose of the enactment. Any narrow or technical
interpretation of the provisions would defeat the legislative policy. The Court must,
therefore, keep the legislative policy in mind in applying the provisions of the Act to the
facts of the case.

The law is well settled that though the Statement of objects and Reasons accompanying a
legislative bill could not be used to determine the true meaning and effect of the
substantive provisions of a statute, it was permissible to refer to the same for the purpose
of understanding the background, the antecedent state of affairs, the surrounding
circumstances in relation to the statute, and the evil which the statute sought to remedy.

Preamble

It is established law that preamble discloses the primary intention of the statute but does
override the express provisions of the statute4. Although a preamble of a statute is a key
to interpretation of the provisions of the Act, but the intention of Legislature is not

36
necessarily to be gathered from the preamble taken by itself, but to be gathered from the
provisions of the Act. Where the language of the Act is clear, the preamble cannot be a
guide, but where the object or meaning of the provisions of the Act is not clear then an
aid from the preamble can be taken into consideration for purpose of explaining the
provisions of the Act.

It is now well settled that the preamble of a statutory instrument cannot control the
express clear language and sweep of the operating provisions of such an instrument. Nor
can the express language of a statutory provision be curtailed or read down in the light of
the preamble in the absence of any ambiguity in the enacted provisions6.

37
Social Legislation pertaining to women
1. Protection of Women from Domestic Violence Act, 2005
2. The Dowry Prohibition Act, 1961
3. Sexual Harassment and Rape Laws
4. Right to Abortion

Protection of Women from Domestic Violence Act, 2005

Domestic Violence

Subordination of women has led to violence under this head to rise. Incidence of
domestic violence crosses all the barriers of class, income, rare, culture and religion and
in a highly under reported crime. Domestic violence is one of the greatest obstacles to
gender equality and securing for women their fundamental rights to equal protection
under the law and the right to life and liberty.

Domestic Violence may be of many types like

1. Physical Violence: Which may lead to assault, serious injury or burns even if
death of the victim.
2. Sexual Violence: Means robbing the dignity of women not only be indecent
behavior but also an esteem form of rape or ravishing her by use of force by
family members and outsides.
3. Verbal Violence: Which means indecency or use of abusive and filthy language
against a woman or her near and dear ones.
4. Social Violence: Which includes demeaning, disparaging and humiliating a
woman or her parental relatives and friends?
5. Emotional violence: Leading to internal deprivation of love and affection,
concern, sympathy and care and depriving her custody of children.
6. Financial Violence: Means depriving her of financial means and bare necessities
of daily life and this also include taking away the assets which a woman possesses
or earns.
7. Intellectual Violence: Means non submission for confrontation or discussion for
pressing issues, denial of rights to take part in decision making etc.
8. Other form of Violence: May include not letting her avail the educational
opportunities, denial of her reproductive rights, denial of access to health facilities
or opportunities and to use her political rights etc.
9. State, Communal and Caste Instigated Violence: Victims of state sponsored
violence are mostly women. Caste and communal violence mostly target the
women. Dishonoring" women in the most accepted norm of taking revenge on
specified castes and communities.

38
Reasons for Increase in Violence against Woman:

The basic reason for violence against women in their inferior status in a male dominated
society-educationally, economically, politically and socially. But there are also reasons
too.
1. More Awareness in Women of their Rights: Access to Mahila Courts, legal cells
and crime cells for women has helped indirectly to encourage women to resister
their complaints.
2. Role of Media: Indian society in quick is being influenced by the west. The
condition of cinema is deteriorating day-by-day. It is common to have scene of
sexual harassment or rape in Indian movies. It has become very embarrassing to
watch T.V. with the family as the heroes and heroines are doing vulgar dances
with that type of songs. Most of the movies portray heroines as sex objects.
3. Low Rate of Punishment of Guilty: Lack of evidence and lack of guidance, loop
holes in existing laws are some of the reasons for the rise in crime against women.

Law Pertaining to the Problem of Violence:

International conventions, the constitution and various other legal provisions provide for
certain rights for women. The Universal Declaration of Human Rights and Convention or
Elimination of all forms of Discrimination against Women (CEDAW) do enforce certain
special rights and privilege for women. Some of these have already been adopted by the
framers of our constitution. Equality of sexes is enshrined in the Constitution of India as a
fundamental right and any law which discriminates on the grounds of religion, race,
caste, sex or place of birth is held to be contrary to the Constitution as held in Article-15.

The clause 3 of the aforesaid article specifically provides for the state to make special
provisions for women and children. Article 39 directs state not to discriminate on the
ground of sex and it should direct its policy towards securing equal pay for equal work
irrespective of sex.

Several laws have been enacted to improve their social status, economic independence,
political participation and professional growth. Various welfare schemes have been
launched by the Government to raise the status of women. The law provides certain
remedies to the victims of violence. We have provisions like section 498 (a) and subject
of section 30A (b) of I.P.C. specially relating to subject of domestic violence.

Provision under IPC which aims at protecting the Women:

1. Under Sec. 125, the wife can file a suit against her husband if the husband fails to
maintain her.
2. Sec.375 and 376 specify the punishment for rape.
3. Under Sec.359-396, Kidnapping of women is punishable Sec.363 to 373 clarify as
to what constitute kidnapping and abduction.
4. Sec.302/304 (b) Define the meaning and punishment relating to homicide for
dowry, dowry death or their attempts. U/s 304 (b) death of a woman within seven

39
 years of her marriage shall be deemed to have been caused by any demand for
dowry.
5. Sec.306 says that any person who commits suicide, whosoever abert the
commission of such suicide is punishable with imprisonment up to 10 years and
also fine. The offence is cognizable, non-bail able, non compoundable.
6. Under Sec.312 to 314, a person causing miscarriage be punished with
imprisonment which may extend up to 3 years, or with fine or both.
7. Bigamy is an offence u/s 494. It is punishable with imprisonment for a term
extending up to 7 years or with fine.
8. U/S 407, a person who commits adultery shall be punished with imprisonment for
a term which may extend up to 5 years or with fine or both.
9. U/S 498 (a) FIR can be lodged at any Police Station or a Women Cell for torture,
both mental and physical by the husband or a in-laws. The offence is cognizable,
non-bailable, non compoundable. The punishment is imprisonment; which may
extend up to 7 years with fine.
10. Importation of girl up to 21 years of age from a foreign country shall be
punishable U/s 366 of IPC. The punishment can extend up to a term of 10 years
and also fine.
11. Section 354 deals with outraging modesty of women. Any act of molestation with
intent to outrage the modesty of a woman is punishable.
12. Section 509 is related to the suit of modesty of a woman (Sexual Harassment).
Such an act shall be punishable with imprisonment which may extend up to 10
years and also fine.

But there are so many factors that prevent women to seek justice through law are:
1. Individual fear and apprehensions relating to consequences of leaving her
matrimonial home;
2. Lack of support from her parental family;
3. Inadequacy of social support;
4. Cultural forces;
5. Non-availability of alternatives in terms of physical, economic and social
rehabilitation;
6. Care and custody of children, which prevent women to take a drastic step;
7. Inadequacy of legal provisions which takes long time to dispense justice and
8. Lack of political will to tackle the situation.

Social factors also play major role in reporting numbers of crime on a woman.
Compromise is another word used so often by the family members, counselors and
friends. The Police often turn a blind eye saying that domestic violence is really a 'private
affair'. Society uses symbolic emotional appeal to confine Indian
Women into the various circle of subjugation and oppression.

40
Sexual Harassment and Rape Laws

Sexual harassment and rape are two sides of the same coin. Both showcase the power of
man to dominate that of women. Both have one victim- ‘women’. Both are barbaric in
nature; but many people extenuate sexual harassment to rape, just because the victims are
not physically harmed. Whereas in rape- the victim is ravished like an animal for the
fulfillment of desire and lust of another man. Both have the same object- to undermine
the integrity of the victim, physically as well as mentally.

As observed by Justice Arjit Pasayat:

" While a murderer destroys the physical frame of the victim, a rapist degrades and
defiles the soul of a helpless female."

Sexual harassment is nothing less than the showcasing of male dominance. Given an
opportunity, such men (those committing sexual harassement) would try fulfilling their
desire. However, it also not true that all cases of sexual harassement are such- where the
accused is guilty of conceiving the intention of a sexual intercourse. But it also depends
on each individual case and circumstances, because it may well be the case that the
woman may also be at fault.

The question is not whether women have the right to bodily integrity, as this right is
already adumbrated under Article.21 of the Constitution of India. Article.21, which
guarantees the right to life and liberty to men and women both alike- but whether it is
really imperative to take a decisive step towards extirpating this evil and make the
contemporary and future society a safe haven for women.

According to the official statistics of 1991, one woman is molested every 26 minutes.
These statistics refer to the reported cases. Whereas, if the unreported cases were to be
included, it would be a matter of seconds- rather than minutes. investigation of Most
cases are not reported by victims because of various reasons such as family pressures, the
manner of the police, the unreasonably long and unjust process and application of law;
and the resulting consequences thereof.

In instances where women have reported such illegal and unwelcome behavior, there
have been significant victories in the past decade or so. Also considering the fact the
sometimes these victories are achieved after a wait of a decade or so.

In Rupan Deol Bajaj Vs. K PS.Gill, a senior IAS officer, Rupan Bajaj was slapped on the
posterior by the then Chief of Police, Punjab- Mr. K P S.Gill at a dinner party in July
1988. Rupan Bajaj filed a suit against him, despite the public opinion that she was
blowing it out of proportion, along with the attempts by all the senior officials of the state
to suppress the matter.
The Supreme Court in January, 1998 fined Mr.K P S.Gill Rs.2.5 lacs in lieu of three
months Rigorous Imprisonment under Sections. 294 and 509 of the Indian Penal Code.
In N Radhabai Vs. D. Ramchandran, when Radhabai, Secretary to D Ramchandran, the
then social minister for state protested against his abuse of girls in the welfare

41
institutions, he attempted to molest her, which was followed by her dismissal. The
Supreme Court in 1995 passed the judgment in her favour, with back pay and perks from
the date of dismissal.

Vishaka’s case

It was in 1997 in Vishaka Vs. State of Rajasthan and others, that for the first time sexual
harassment had been explicitly- legally defined as an unwelcome sexual gesture or
behaviour whether directly or indirectly as

1. Sexually coloured remarks

2. Physical contact and advances
3. Showing pornography
4. A demand or request for sexual favours
5. Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.

It was in this landmark case that the sexual harassement was identified as a separate
illegal behaviour.The critical factor in sexual harassement is the unwelcomeness of the
behaviour. Thereby making the impact of such actions on the recipient more relevant
rather than intent of the perpetrator- which is to be considered.

In the abovementioned case, the judgment was delivered by J.S.Verma. CJ, on behalf of
Sujata Manohar and B.N.Kirpal, JJ., on a writ petition filed by ‘Vihska’- a non
Governmental organization working for gender equality by way of PIL seeking
enforcement of fundamental rights of working women under Article.21 of the
Constitution.

The immediate cause for filing the petition was the alleged brutal gang rape of a social
worker of Rajasthan. The Supreme Court in absence of any enacted law (which still
remains absent- save the Supreme Court guidelines as stated hereunder) to provide for
effective enforcement of basic human rights of gender equality and guarantee against
sexual harassement, laid down the following guidelines:

1. All the employers in charge of work place whether in the public or the private
sector, should take appropriate steps to prevent sexual harassement without prejudice to
the generality of his obligation, he should take the following steps:

a) Express prohibition of sexual harassment which includes physical contact and

advances, a demand or request for sexual favours, sexually coloured remarks, showing
pornographic or any other unwelcome physical, verbal/ non-verbal conduct of sexual
nature should be noticed, published and circulated in appropriate ways.
b) The rules and regulations of government and public sector bodies relating to conduct
and discipline should include rules prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.

42
c) As regards private employers, steps should be taken to include the aforesaid
prohibitions in the Standing Orders under the Industrial Employment (Standing Orders)
Act, 1946.

d) Appropriate work conditions should be provided in respect of work leisure, health,

hygiene- to further ensure that there is no hostile environment towards women and no
woman should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.

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

3. Victims of sexual harassment should have the option to seek transfer of the
perpetrator or their own transfer.

As stated by the Supreme Court, these guidelines are applicable to:

a) The employer or other responsible persons or other institutions to prevent sexual

harassment and to provide procedures for the resolution of complaints;

b) Women who either draw a regular salary, receive an honorarium, or work in a

voluntary capacity- in the government, private or organized sector come under the
purview of these guidelines.

Preventive Steps:
1. Express prohibition of sexual harassment should be notified and circulated.
2. Inclusion of prohibition of sexual harassment in the rules and regulations of
government and public sector.
3. Inclusion of prohibition of sexual harassment in the standing orders under the
Industrial Employment (Standing Orders) Act, 1946 by the private employers.
4. Provision should be made for appropriate work conditions for women.

Procedure pertaining to filing of complaints:

1. Employers must provide a Complaints Committee which is to be headed by a woman;

of which half members should be women.
2. Complaints Committee should also include an NGO or other organization- which is
familiar with sexual harassment.
3. Complaints procedure should be time bound.
4. Confidentiality of the complaints procedure has to be maintained.
5. Complainant or witnesses should not be victimized Or discriminated against- while
dealing with complaints.
6. The Committee should make an annual report to the concerned Government
department and also inform of the action (if any) taken so far by them.

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Miscellaneous Provisions:

1. Guidelines should be prominently notified to create awareness as regards the rights

of the female employees.
2. The employers should assist the persons affected, in cases of sexual harassment by
outsiders or third parties.
3. Sexual harassment should be discussed at worker’s meetings, employer-employee
meetings and at other appropriate forums.
4. Both Central and State governments are required to adopt measures including
legislations to insure that private employers also observe these guidelines.

A K.CHOPRA’S case

A K.Chopra’s case, is the first case in which the Supreme Court applied the law laid
down in Vishaka’s case and upheld the dismissal of a superior officer of the Delhi based
Apparel Export Promotion Council who was found guilty of sexual harassment of a
subordinate female employee at the place of work on the ground that it violated her
fundamental right guaranteed by Article.21 of the Constitution.

In both cases the Supreme Court observed, that " In cases involving Human Rights, the
Courts must be alive to the International Conventions and Instruments as far as possible
to give effect to the principles contained therein- such as the Convention on the
Eradication of All forms of Discrimination Against Women, 1979 [CE DAW] and the
Beijing Declaration directing all state parties to take appropriate measures to prevent
such discrimination."

The guidelines and judgments have identified sexual harassment as a question of power
exerted by the perpetrator on the victim. Therefore sexual harassment in addition to being
a violation of the right to safe working conditions, is also a violation of the right to bodily
integrity of the woman.

Provisions of the Indian Pena Code:

In cases where the accused sexually harasses or insults the modesty of a woman by way
of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult
the modesty of a woman, he shall be punished under Sections.294 and 509 respectively.
Under Sec.294 the obscene act or song must cause annoyance. Though annoyance is an
important ingredient of this offence, it being associated with the mental condition, has
often to be inferred from proved facts. However, another important ingredient of this
offence is that the obscene acts or songs must be committed or sung in or near any public
place.

Section.509 of IPC, comes into effect when there is an intention to insult the modesty of
any woman by the offender by uttering any word, making any sound or gesture or by
exhibiting any object, with the intention that such word or such sound be heard, or that

44
such gesture or object be seen by such a woman, or by intruding upon the privacy of such
a woman.

Thus, this Section requires:

1. Intention to insult the modesty of a woman.
2. The insult be caused by
 Uttering any word or gesture, or
 Exhibiting any object with the intention that such word, gesture, or object be hear
or seen by such a woman, or
 By intruding upon the privacy of such woman.

Rape laws in India:

"The law of rape is not just a few sentences. It is a whole book, which has clearly
demarcated chapters and cannot be read selectively. We cannot read the preamble and
suddenly reach the last chapter and claim to have understood and applied it."
- Kiran Bedi., Joint Commissioner, Special

Branch.
In the Mathura rape case, wherein Mathura- a sixteen year old tribal girl was raped by
two policemen in the compound of Desai Ganj Police station in Chandrapur district of
Maharashtra.

Her relatives, who had come to register a complaint, were patiently waiting outside even
as the heinous act was being committed in the police station. When her relatives and the
assembled crowd threatened to burn down the police chowky, the two guilty policemen,
Ganpat and Tukaram, reluctantly agreed to file a panchnama.

The case came for hearing on 1st June, 1974 in the sessions court. The judgment however
turned out to be in favour of the accused. Mathura was accused of being a liar. It was
stated that since she was ‘habituated to sexual intercourse’ her consent was voluntary;
under the circumstances only sexual intercourse could be proved and not rape.
On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the
Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five
years of rigorous imprisonment respectively. The Court held that passive submission due
to fear induced by serious threats could not be construed as consent or willing sexual
intercourse.

However, the Supreme Court again acquitted the accused policemen. The Supreme Court
held that Mathura had raised no alarm; and also that there were no visible marks of injury
on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of
inevitable compulsion or the passive giving in is no consent. However, the Criminal Law
Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of

45
the Evidence Act, which states that if the victim girl says that she did no consent to the
sexual intercourse, the Court shall presume that she did not consent.

In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely
because there were no marks of injury on his penis- which the High Court presumed was
a indication of no resistance. The most important facts such as the age of the victim
(being seven years) and that she had suffered a ruptured hymen and the bite marks on her
body were not considered by the High Court. Even the eye- witnesses, who witnessed this
ghastly act, could not sway the High Court’s judgment.

Another classic example of the judicial pronouncements in rape cases is the case of
Bhanwari Devi, wherein a judge remarked that the victim could not have been raped
since she was a dalit while the accused hailed from an upper caste- who would not stoop
to sexual relations with a dalit.

In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from
Kerala, who was lured to Ernakulam with the promise of finding her a good job, where
she was sold and forced into prostitution. There for eighteen long months she was held
captive and raped by clients. Finally she was rescued by the police- acting on a complaint
filed by her neighbour.

With the help of her parents and an Advocate, Sakina filed a suit in the High Court-
giving the names of the upper echelons of the bureaucracy and society of Kerala.
The suit was squashed by the High Court, while observing that ‘ it is improbable to
believe that a man who desired sex on payment would go to a reluctant woman; and that
the version of the victim was not so sacrosanct as to be taken for granted.’

Whereas, in State of Punjab Vs. Gurmit Singh, the Supreme Court has advised the lower
judiciary, that even if the victim girl is shown to be habituated to sex, the Court should
not describe her to be of loose character.

The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar,
held that "the unchastity of a woman does not make her open to any and every person to
violate her person as and when he wishes. She is entitled to protect her person if there is
an attempt to violate her person against her wish. She is equally entitled to the protection
of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown
overboard."

Also the Bandit Queen case, which depicts the tragic story of a village girl. Phoolan
Devi- who was exposed from an early age to the lust and brutality of some men. She was
married to a man old enough to be her father. She was beaten and raped by him. She was
later thrown out of the village- accused of luring boys of the upper caste. She was
arrested by the police and subjected to indignation and humiliation. Was also kidnapped
and raped by the leader of dacoits and later by the leader of a gang of Thakurs- who
striped her naked and paraded her in front of the entire village. This is truly one story that
shows the apathy of the existing society.

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In Chairman, Railway Board Vs. Chandrima Das, a practicing Advocate of the Calcutta
High Court filed a petition under Article.226 of the Constitution of India against the
various railway authorities of the eastern railway claiming compensation for the victim
(Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by
the railway security men. The High Court awarded Rs.10 lacs as compensation.

An appeal was preferred and it was contended by the state that:

1. The railway was not liable to pay the compensation to the victim for she was a
foreigner.
2. That the remedy for compensation lies in the domain of private law and not public law.
i.e. that the victim should have approached the Civil Court for seeking damages; and
should have not come to the High Court under Article.226.

Considering the above said contentions, the Supreme Court observed:

"Where public functionaries are involved and the matter relates to the violation of
fundamental rights or the enforcement of public duties, the remedy would be avoidable
under public law. It was more so, when it was not a mere violation of any ordinary right,
but the violation of fundamental rights was involved- as the petitioner was a victim of
rape, which a violation of fundamental right of every person guaranteed under Article.21
of the Constitution."

The Supreme Court also held that the relief can be granted to the victim for two reasons-
firstly, on the ground of domestic jurisprudence based on the Constitutional provisions;
and secondly, on the ground of Human Rights Jurisprudence based on the Universal
Declaration of Human Rights, 1948 which has international recognition as the ‘Moral
Code of Conduct’- adopted by the General Assembly of the United Nation.

After having studied the case laws, it is necessary to also study the definition of Rape as
given in the Indian Penal Code, 1860. As per Section.375 of IPC a man is said to commit
the offence of rape with a woman under the following six circumstances:

Sexual intercourse against the victims will,

1. Without the victims consent,
2. With her consent, when her consent has been obtained by putting her or any
person that she may be interested in fear of death or hurt,
3. With her consent, when the man knows that he is not her husband,
4. With her consent, when at the time of giving such consent she was intoxicated, or
is suffering from unsoundness of mind and does not understand the nature and
consequences of that to which she gives consent,
5. With or without her consent when she is under sixteen years of age.
Further explanation provided to the section states that penetration is sufficient to
constitute the sexual intercourse necessary to constitute the offence of rape, whereas the
exception leaves out marital rape altogether if the wife is not under fifteen years of age.

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Marital Exception:

In R vs. R, the House of Lords widened the scope of criminal liability by declaring that
the husband could be charged as a principal offender in the rape of his wife.

This decision seems to have obliterated the protection of the husband from such
prosecution under the doctrine of marital exemption. This exemption was based upon the
belief under which the wife was regarded as the husbands’ chattel. She was supposed to
have given a general consent to her husband as a natural implication of the marriage. This
has now become an outdated view of marriage in England.

However, the above decision of the House of Lords has not been followed in India-
where marital exemption to the husband ‘still exists’.

Section 375 therefore requires:

 Sexual intercourse by a man with a woman

 The sexual intercourse must be under any of the six circumstances given in the
section.

Criminal Law Amendment Act, 1983:

The Criminal Law Amendment Act has substantially changed Sections.375 and 376 of
the IPC. Several new sections have been introduced therein- viz. Sections. 376(A),
376(B), 376(C), 376(D) of the IPC.
Section 376(A) punishes sexual intercourse with wife without her consent by a judicially
separated husband.
Section 376(B) punishes for sexual intercourse by a public servant with a woman in
custody.
Section 376(C) punishes sexual intercourse by superintendent of jail, remand house, etc.
whereas,
Section 376(D) punishes sexual intercourse by any member of the management or staff
of a hospital with any woman in that hospital.

These new sections have been introduced with a view to stop sexual abuse of women in
custody, care and control by various persons- which though not amounting to rape were
nevertheless considered highly reprehensible.

Attempt to Rape

In cases where an indecent assault is made upon the person of a woman, but where rape is
not committed- the culprit is charged with Section.354 of IPC, because unless the Court
is satisfied that there was determination in the accused to gratify his passion at any cost,
and inspite of all resistance, such person is not charged with rape.

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Section.354 of the IPC prescribes punishment for anyone who assaults or uses criminal
force to any woman with intent to outrage her modesty.

An indecent assault upon a woman is punishable under this section. Rape is punished
under Section.376; but the offence under this Section is of less gravity than rape. And
also because a person who is guilty of attempting rape cannot be allowed to escape with
the lesser penalty of this section.

An indecent assault, i.e., an assault which right minded persons would consider as
indecent- accordingly any evidence explaining the defendants conduct, or whether any
admission by him or otherwise is admissible to establish whether he intended to commit
an indecent assault, as is stated under Section.21 sub clause (2) of the Evidence Act,
which reads:

Section.21 (2): An admission may be proved by or on behalf of the person making it,
when it consists of statements of the existence of any state of mind or body, relevant or in
issue, made at or about the time when such state of mind or body existed, and is
accompanied by conduct rendering its falsehood improbable.

Impediments to Justice:

In the present circumstances when offences against women are on the rise- when young
girls are raped by their doctors, by presidential guards in broad daylight, the definition of
rape to be of any deterrence- falls extremely inadequate. It does not address forced
penetration of objects and parts of the body into the vagina and anus; and forced oral or
anal intercourse.

It also does not recognize other forms of sexual assaults- like protracted sexual assault
by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to
many victims. In many cases of child rape, the child has been penetrated through fingers
or by objects or been force to perform oral or anal sex; yet this is not considered rape by
the Courts.

Adding to this is Section. 155(4) of the Evidence Act, which allows the victim to be
questioned of her past sexual history- which the defense uses to humiliate the victim in
the Courtroom.

One of the major obstacles in delivering justice in rape cases is the poor quality of
investigations. The reason behind this ranges from gender bias and corruption to the
general inefficiency of the police. In many cases the police have even refused to lodge the
FIR or have lodged incomplete FIR.

The victims are not taken for prompt medical examination, because in cases of rape, or
attempt to rape- medical examination of the victim and of the accused soon after the
incident often yields a wealth of corroborative evidence. Therefore, such an opportunity
should not be lost by the police.

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 The manner in which some courts have interpreted the law or assessed the evidence has
often proved to be an obstacle also. Inspite of Supreme Court judgments to the contrary,
lower court judges often insist on evidence of physical resistance or marks of injuries to
hold that a woman has not consented. A woman’s evidence without corroboration is not
considered sufficient.

The long time that is taken to complete a rape trial often by allowing senseless
adjournments; and the giving of evidence by the victim in the presence of the accused
and the harsh cross examination in the Court are some other major obstacles.
As observed by Krishna Iyer, J. in Rafique’s case:

"When a woman is ravished, what is inflicted is not mere physical injury but the deep
sense of some deathless shame… judicial response to Human Rights cannot be blunted by
legal bigotry."

Therefore rape laws in order to be of great deterrence, must have a cooperative victim,
professional investigation, diligent prosecution; and an expeditious trial. For otherwise it
shall not be the law, that fails, but the applicants, the process and application.
Failure of law reflects the failure of the society to protect and serve humanity.

In view of the above, the Supreme Court has laid down the following guidelines for the
trial of rape cases:

1. The complaints of sexual assault cases should be provided with legal

representation. Such a person should be well acquainted. The Advocates role
should not merely be of explaining to the victim the nature of the proceedings, to
prepare for the case and assist her, but to provide her with guidance as to how she
might obtain help of a different nature from other agencies- for e.g. psychiatric
consultation or medical assistance.
2. Legal assistance should be provided at the police Station, since the victim may be
in a distressed state. Guidance and support of a lawyer at this stage would be of
great help.
3. The police should be under a duty to inform the victim of her right to a counsel
before being interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the
earliest, but in order that the victim is not questioned without one, the Advocate
shall be authorized to act at the police Station before leave of the Court is sought
or obtained.
6. In all rape trials, anonymity of the victim must be maintained
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the
Directive Principles contained under Article. 38(1) of the Constitution of India.
As some victims also incur Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of
the offender and by the Criminal Injuries Compensation Board- whether or not a

50
 conviction has taken place. The Board will take into account pain, suffering,
shock as well as loss of earnings due to pregnancy and child birth if this accrued
as a result of rape.

The National Commission for Women be asked to frame schemes for compensation and
rehabilitation to ensure justice to the victims of such crimes.

Women’s Right to Abortion

What is Abortion?
An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting
in, or caused by, its death.

This can occur spontaneously as a miscarriage, or be artificially induced through

chemical, surgical or other means. Commonly, "abortion" refers to an induced procedure
at any point in the pregnancy; medically, it is defined as a miscarriage or induced
termination before twenty weeks gestation, which is considered nonviable.

Abortion as a Human Right

Throughout history, induced abortions have been a source of considerable debate and
controversy. An individual's personal stance on the complex ethical, moral, and legal
issues has a strong relationship with the given individual's value system. A person's
position on abortion may be described as a combination of their personal beliefs on the
morality of induced abortion and the ethical limit of the government's legitimate
authority.

It is a woman's individual rights, right to her life, to her liberty, and to the pursuit of her
happiness, that sanctions her right to have an abortion. A women's reproductive and
sexual health and shape her reproductive choices. Reproductive rights are internationally
recognized as critical both to advancing women's human rights and to promoting
development. In recent years, governments from all over the world have acknowledged
and pledged to advance reproductive rights to an unprecedented degree. Formal laws and
policies are crucial indicators of government commitment to promoting reproductive
rights. Each and every women has an absolute right to have control over her body, most
often known as bodily rights.

A woman has a right to abortion if:

 The continuance of the pregnancy would involve risk to the life of the pregnant
woman greater than if the pregnancy were terminated
 The termination is necessary to prevent grave permanent injury to the physical or
mental health of the pregnant woman
 The continuance of the pregnancy would involve risk, greater than if the
pregnancy were terminated, of injury to the physical or mental health of the
pregnant woman

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  The continuance of the pregnancy would involve risk, greater than if the
pregnancy were terminated, or injury to the physical or mental health of any
existing child of the family of the pregnant woman
 There is substantial risk that if the child were born it would suffer from such
physical or mental abnormalities as to be seriously handicapped.
 Or in emergency, certified by the operating practitioner as immediately necessary:
to save the life of the pregnant woman or to prevent grave permanent injury to the
physical or mental health of the pregnant woman.

The Indian Perspective

Indian law allows abortion, if the continuance of pregnancy would involve a risk to the
life of the pregnant woman or grave injury to her physical or mental health.

Abortion was being practised earlier by many. Because it was illegal, it was practised in a
clandestine manner. The passing of the Act made medical termination of pregnancy legal,
with certain conditions for safeguarding the health of the mother.

Abortion is severely condemned in Vedic, Upanishadic, the laterpuranic(old) and smriti

literature. Paragraph 3 of the Code of Ethics of the Medical Council of India says: I will
maintain the utmost respect for human life from the time of conception.

The Supreme Court has said that the right to privacy is implicit in Article 21 of the
Constitution and a right to abortion can be read from this right.

The Medical Termination of Pregnancy Bill was passed by both the Houses of the
Parliament and received the assent of the President of India on 10th August, 1971. It
came on the Statute Book as the "The MTP Act, 1971". This law guarantees the Right of
Women in India to terminate an unintended pregnancy by a registered medical
practitioner in a hospital established or maintained by the Government or a place being
approved for the purpose of this Act by the Government. Not all pregnancies could be
terminated.

Section 3 of the said Act, says that pregnancy can be terminated:

1. As a health measure when there is danger to the life or risk to physical or mental
health of the women;
2. On humanitarian grounds - such as when pregnancy arises from a sex crime like
rape or intercourse with a lunatic woman, etc. and
3. Eugenic grounds - where there is a substantial risk that the child, if born, would
suffer from deformities and diseases.

A woman's right in this respect is doubtful because her right is dependant on certain
conditions: proof of risk to her life or grave injury to her physical or mental health,
substantial risk of physical or mental abnormalities to the child if born and a situation
where abortion could only save her life, all to be arrived at by the medical practitioners.

52
Can a woman request a medical practitioner to perform an abortion on the ground that
she does not want a child at that time? Where the liberty of the woman is fully dependant
on certain other factors, such are quest cannot be said to be just and reasonable. The
M.T.P. Act also does not classify the pregnancy period so that the woman's interests and
the state's interests could be given predominance in one's own spheres.

It is submitted that a decision as to abortion may be entirely left with woman provided
she is sane and attained majority. Only in cases where an abortion may affect her life, her
freedom may be curtailed. All other restrictions on the right to abortion are unwelcome.
True, a woman's decision as to abortion may depend upon her physical and mental health
or the potential threat to the health of the child. Apart from these reasons, there are also
various important factors. She or the family may not be financially sound to welcome an
addition. It may be a time when she wants to change her profession, which requires free
time and hard work. Her relationship with the husband may virtually be on the verge of
collapse and she may prefer not to have a child from him, for it may possibly affect a
future marriage. All these factors are quite relevant and the Indian statute on abortion
does not pay any respect to them. The law thus is unreasonable and could well be found
to be violative of the principles of equality provided under Article 14 of the Constitution.
Is it desirable to pay compensation to woman for all her physical and mental
inconveniences and liabilities, which arises in that context? Finally it may be noted that
the M.T.P. Act does not protect the unborn child. Any indirect protection it gains under
the Act is only a by-product resulting from the protection of the woman. The rights
provided as well as the restrictions imposed under the statute show that the very purpose
of the state is to protect a living woman from dangers which may arise during an abortion
process. It is the protection to the mother that protects the unborn.

The Court opined that if we refer Section 3 of the Medical Termination of Pregnancy Act,
1971, a doctor is entitled to terminate the pregnancy under particular circumstances and if
the pregnancy was terminated in accordance with the provisions of law, it must be
presumed that without the consent of the woman it could not be done. Present is a case
where a permanent scar has been carved on the heart and soul of the woman by depriving
her of her child. And the Doctor will be liable.

Thus, the case laws show that a woman has an absolute right to abortion and no one can
take away this right from her. The Judiciary has been playing a vital role in securing
these rights to women. Right to abortion is a fundamental right to privacy

Children's rights in India

Despite Constitutional guarantees of opportunity and civil rights, millions of children
face wide-spread deprivation and discrimination. A large part of this stems from being
seen hrough the lens of adults who make decisions for them, and who prefer to address
their welfare rather than their rights.

Indians constitute 16 per cent of the world's population, occupying 2.42 percent of its
land area. India has more working children than any other nation, as also among the
lowest female-male ratios. Despite Constitutional guarantees of civil rights, children face

53
discrimination on the basis of caste, religion, ethnicity and religion. Even the basic need
for birth registration that will assure them a nationality and identity remains unaddressed,
affecting children's rights to basic services.

India is also home to one of the largest illiterate citizenries in the world. In the not so
shining India we see, hear and read of, children are dying of starvation, while food in our
granaries rots and feeds rats. We watch while the female sex ratio dips. Little children,
barely able to stand, are married off flouting all laws. Little ones are sacrificed, trafficked
and sold; as others are locked, abused, sodomised - the list is endless. And there are all
those realities that never make the news. We know this is only the tip of the iceberg, but
we choose not to act. Our silence and tolerance not only condones such violation of
rights, it also makes us guilty of complicity.

Therefore, any understanding of human rights of children cannot be confined to some

children - 'poor children', 'working children' and 'marginalised children'. Such categories
only help us to remove ourselves from the problem. Let us not delude ourselves.
Violations of children's rights are not limited to the poor and downtrodden. They happen
in middle class and elite homes too, albeit in different forms, and the silence around these
is even deeper. Also, any analysis on the situation of children must be understood within
the context of the economic and political changes in the country. Of particular importance
are globalisation and liberalisation, and the gender, caste and religious attitudes that
prevail today. All these add to children's vulnerability and affect any action that may be
taken for them.

Children are not a homogeneous category. Like adults, they are divided into different
categories based on social and economic status, physical and mental ability,
geographical location etc. These differences determine the difference in the degree of
their vulnerability. While gender discrimination exists almost all over the world, it is
much greater in some countries - and India is definitely one of them. Girls in vulnerable
situations such as poverty, disability, homelessness etc. find themselves doubly
disadvantaged, by their gender and the physical, economic, political, social situation that
they find themselves in. It is therefore imperative to take a gender perspective into
account in examining the situation of children.

The Rights vs. Welfarist approach

The Constitution of India provides a comprehensive understanding of child rights. A

fairly comprehensive legal regime exists for their implementation. India is also signatory
to several international legal instruments including the Convention of the Rights of the
Child (CRC). However, the government seems to be more comfortable with the idea of
well-being rather than rights (with its political overtones). Child rights activists are faced
with challenges of promoting and protecting rights as a positive social value.

Needless to say, ours is not the only government to do so. The Union Government's
ideology resonates with the watering down of the rights based framework in the recent

54
UN Special Session on Children which failed to reaffirm international pledges made in
1990 to protect the rights of children.

The government's approach remains largely welfarist. India is yet to adopt a single
comprehensive code that addresses the provisions of the CRC. Clearly the draft National
Policy (Charter) for Children which has been recently passed in parliament, and is
envisaged as being such a code, is inadequate as it does not address the full range of
rights. It does not make any reference to the CRC. In the words of the Joint Secretary
Department of Women and Child, GOI, it captures the 'essence of the CRC' thereby does
not need to refer to it!

Child Rights - From an adult's perspective

An examination of the laws shows that although they are meant to protect the interests of
children, they have been formulated from the point of view of adults and not children.
They are neither child-centred, nor child friendly, nor do they always resonate with the
CRC.
The problem begins with the very definition of 'child' within the Indian legal and policy
framework. The CRC defines children as persons below the age of 18 years, however
different laws stipulate different cut-off ages to define a child. Only the Juvenile Justice
(Care and Protection) Act 2000 is in consonance with the Convention. In the absence of a
clear definition of a child, it is left to various laws and interpretations.

That our laws are not child friendly or child oriented is also evident in the distinction
family laws make between legitimate and illegitimate children depending on the status
of their parents' marriage or relationship. A child born out of wedlock or of a void or
illegal marriage is considered 'illegitimate'. Children pay for the decisions taken by the
parents and are denied inheritance rights. Even worse, a child born of rape is stigmatised
and treated as 'illegitimate', both by society and law.

Access to health - A chimera

The health of our children continues to be a matter of grave concern, especially in the
wake of growing privatisation of health services, and their increasing inaccessibility for
the poor. This is a particularly serious situation as environmental degradation and
pollution lead to a further deterioration in children's health. The working conditions that
many children are forced to suffer worsens matters.

In our shining India, children suffer from malnutrition or die of starvation and
preventable diseases. According to UNAIDS there are 170,000 children infected by
HIV/AIDS in India. Children affected by the virus-whether children of victims or those
who are infected themselves-- live on the fringes of society, ostracised by people they
call their own, unloved and uncared for, even as our government continues to squabble
over numbers of affected people. Even juvenile diabetes is reported to be taking on
pandemic proportions.

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While the Constitution lays down the duties of the State with respect to health care, there
is no law addressing the issue of public health. Children's health care needs continue to
be in great part dealt under the Reproductive and Child Health Programme of the
Ministry of Health and Family Welfare, with a focus on reproductive health and safe
motherhood and child survival. The other health needs of children are addressed by the
country's primary health care system; with very little attempt to address these needs
specifically or separately.

The population policy with its coercive manifestations in the states has of course proved
most 'children unfriendly'. Parents aspiring to political positions are now forced to choose
between children and politics. Law does not allow persons with more than two children
to hold elected positions in local self governments-and many choose politics as they
disown their children or give them up for 'adoption' in an effort to keep to the 'right'
family size.

The Government has announced its National Health Policy 2000. One cannot but note
that children do not find mention as a separate category - yet another example of the lack
of child focus in our planning and implementation.

Education for all - A promise yet to translate

Education for all is also a promise held out by the state. An examination of State policies
and programmes shows that education is not going to open the promised gateway to
equality. Indeed if anything, it is a promise of 'differential education for all' (read 'some'
even here). While some children continue to have access to mainstream schools or
expensive private schools, the rest must contend with 'non-formal' second grade
education provided by untrained and lowly paid 'para- teachers'. As if that was not
enough, the new curriculum framework has opened up a can of worms on the kind of
biased syllabus, with incorrect or incomplete content, that our children will be subjected
to.

The passing of the 93rd Amendment Bill (passed as the 86th Amendment to the
Constitution) making education a fundamental right, should have been an occasion to
rejoice. Instead it has become an issue for another long struggle because it only reinforces
the lack of political will to make education universal and accessible for all. By leaving
out those in the critical 0-6 years age group, putting the onus of creating conditions on
parents for sending children to school and making it their fundamental duty, by
reinforcing parallel streams of education, the amendment has once again sealed the fate
of poor and marginalised children.

Although the rhetoric speaks of free and compulsory education for all, in practice, the
education system seems to be designed to keep children out of it. To implement the 86th
Amendment, the government has drafted 'The Free and Compulsory Education Bill,
2003. Concerns and criticisms on this bill are being expressed by educationists and
activists.

56
Beatings, abuse, physical and mental torture faced by the students in schools is one of
the reasons for the high dropout rate. It is well established that corporal punishment is
detrimental to children's growth and development. It is in violation of their rights. But
there is no comprehensive national law banning it, although several states have even
enacted laws dealing with it. Moreover the National Education Policy, 1992 clearly
states that corporal punishment should be firmly excluded from the education system.
Despite that, however, there are several cases that have been registered against teachers
in schools for use of violence.

At a recent workshop attended by children from across the country was a young spastic
child named Debu.

I have a right to be called by my name. Why is it that all children are called by
their names and I am called langda (lame) or even pagal (mad)?

This made all the other children sit up and look at Debu in a new light. While they had
been discussing their rights, it had not occurred to them that children with disabilities
may be denied even this basic right. Children with disability continue to suffer unequal
opportunities for survival and development. They are denied personal or economic
security, health care, education and all basic needs necessary for their growth. Further
certain disabilities, such as, for example mental disability carry even greater stigma. And
if the disabled child is a girl, then the discrimination is doubled. The rights of disabled
persons has finally been recognised with the enactment of the Persons With Disabilities
(Equal Protection of Rights and Full Participation) Act, 1995.

Children in situations of crime and exploitation

Recognising the flaws of the 1986 Juvenile Justice Act, the government passed the
Juvenile Justice (Care and Protection) Act, 2000. But the knee jerk reaction in amending
the law without a wider discussion and consultation with child rights practitioners has left
many who are concerned with children and work with them deeply distressed. In 2003
the government drafted amendments to the law. But, because of criticisms and concerns
raised by several organisations and groups, it has been placed before a Parliamentary
Standing Committee. The Committee is currently reviewing the law.

The Child Labour (Prohibition and Regulation Act) was enacted in 1986, to specifically
address the situation of children in labour. However, this law distinguishes between
hazardous and non-hazardous forms of labour, and identifies certain processes and
occupations from which children are prohibited from working. It leaves out a large
range of activities that children are engaged in and are exploited and abused. The large-
scale exploitation and abuse of children employed in domestic work and hotels are cases
in point.

Child trafficking is one of the most heinous manifestations of violence against children.
This is taking on alarming proportions - nationally and internationally. Although, very
little reliable data or documentation is available, meetings and consultations across the

57
country have revealed the gravity and the extent of this crime. It is high time we
understood and realised that children are trafficked for a number of reasons and this
cannot be treated synonymously with prostitution. The absence of this comprehensive
understanding and a comprehensive law that addresses all forms of trafficking to back it
makes this issue even more critical.

Adoption: The need for greater checks and balances

Adoption is one of the best and appropriate forms of alternative family care. Indeed, it is
the only way to break the mindset of institutional care for children, which has been posed
as the only solution for many years.

However, adoption of children continues to be determined by religion of the adoptive

parents or the child when religion is known. Only Hindus, Jains, Buddhists and Sikhs can
adopt children. The personal laws of other religions - Muslims, Parsis, and Jews do not
allow it. Even as it exists for Hindus, the law has serious flaws discriminating against
married women. It allows only married men to adopt. Further, it only allows for adoption
of children of opposite genders.

The Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for
adoption making no exception on the basis of religion. So more complications may arise.
Besides, the large scale setting up of baby shops and the selling of babies from poor
families has caused panic across the country. We need to be careful not to throw the baby
out with the bath water. Greater checks and balances are required to ensure that adoption
is legal and proper, and that it is not being used as a means of trafficking of children.

58
Juvenile Justice Laws
To provide for the care, protection, treatment, development and rehabilitation of
neglected or delinquent juveniles and for the adjudication of certain matters relating to,
and disposition of, delinquent juveniles the Juvenile Justice Act, 1986 (53 of 1986) was
enacted by Parliament. Several provisions of the Constitution including clause (3) of
article (15), clauses (e) and (f) of article 39, articles 45 and 47 also impose on the State a
primary responsibility of ensuring that all the needs of children are met and that their
basic human rights are fully protected. On 20th November, 1989 General Assembly of
the United Nations adopted the Convention on the Rights of the Child wherein a set of
standards to be adhered to by all State parties in securing the best interests of the child
has been prescribed. The Convention emphasizes social re-integration of child victims, to
the extent possible, without restoring to judicial proceedings. The Government of India,
having ratified the Convention, has found it expedient to re-enact the existing law relating
to juveniles bearing in mind the standards prescribed in the Convention on the Rights of
the Child, the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice, 1985 (The Beijing Rules), the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (1990), and all other relevant international
instruments. To achieve this objective the Juvenile Justice (Care and Protection of
Children) Bill was introduced in the Parliament.

Act 56 Of 2000

The Juvenile Justice (Care and Protection of Children) Bill having been passed by both
the Houses of Parliament received the assent of the President on 30th December, 2000. It
came on the Statue Book as THE JUVENILE JUSTICE (CARE AND PROTECTION
OF CHILDREN) ACT, 2000 (56 OF 2000).

Short title, extent and commencement.- (1) This Act may be called the Juvenile Justice
(Care and Protection of Children) Act, 2000.
(2) it extends to the Whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint.

Definitions.- In this Act, unless the context otherwise requires,-

a. "advisory board" means a Central or a state advisory board or a district

and city level advisory board, as the case may be, constituted under
section 62;
b. "begging" means-
i. soliciting or receiving alms in a public place or entering into any
private premises for the purpose of soliciting or receiving alms,
whether under any pretence;
ii. exposing or exhibiting with the object of obtaining or extorting
alms, any sore, wound, injury, deformity or disease, whether of
himself or of any other person or of an animal;

59
c. "Board" means a Juvenile Justice Board constituted under section 4;
d. "child in need of care and protection" means a child -
i. who is found without any home or settled place or abode and
without any ostensible means of subsistence,
ii. who resides with a person (whether a guardian of the child or not)
and such person-
a. has threatened to kill or injure the child and there is a
reasonable likelihood of the threat being carried out, or
b. has killed, abused or neglected some other child or children
and there is a reasonable likelihood of the child in question
being killed, abused or neglected by that person,
iii. who is mentally or physically challenged or ill children or children
suffering from terminal diseases or incurable diseases having no
one to support or look after,
iv. who has a parent or guardian and such parent or guardian is unfit
or incapacitated to exercise control over the child,
v. who does not have parent and no one is willing to take care of or
whose parents have abandoned him or who is missing and run
away child and whose parents cannot be found after reasonable
injury,
vi. who is being or is likely to be grossly abused, tortured or exploited
for the purpose of sexual abuse or illegal acts,
vii. who is found vulnerable and is likely to be inducted into drug
abuse or trafficking,
viii. who is being or is likely to be abused for unconscionable gains,
ix. who is victim of any armed conflict, civil commotion or natural
calamity;
e. "children's home" means an institution established by a State Government
or by voluntary organisation and certified by that Government under
section 34;
f. "Committee" means a Child Welfare Committee constituted under section
29;
g. "competent authority" means in relation to children in need of care and
protection a Committee and in relation to juveniles in conflict with law a
Board;
h. "fit institution" means a governmental or a registered non-governmental
organisation or a voluntary organisation prepared to own the responsibility
of a child and such organisation is found fit by the competent authority;
i. "fit person" means a person, being a social worker or any other person,
who is prepared to own the responsibiliy of a child and is found fit by the
competent authority to receive and take care of the child;
j. "guardian", in relation to a child, means his natural guardian or any other
person having the actual charge or control over the child and recognised
by the competent authority as a guardian in course of proceedings before
that authority;

60
 k. "juvenile" or "child" means a person who has not completed eighteenth
year of age;
l. "juvenile in conflict with law" means a juvenile who is alleged to have
committed an offence;
m. "local authority" means Panchayats at the village and Zila Parishad at the
district level and shall also include a Municipal Committee or Corporation
or a Cantonment Board or such other body legally entitled to function as
local authority by the Government;
n. "narcotic drug" and "psychotropic substance" shall have the meanings
respectively assigned to them in the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985);
o. "observation home" means a home established by a State Government or
by a voluntary organisation and certified by that State Government under
section 8 as an observation home for the juvenile in conflict with law;
p. "offence" means an offence punishable under any law for the time being in
force;
q. "place of safety" means any place or institution (not being a police lock-up
or jail), the person incharge of which is willing temporarily to receive and
take care of the juvenile and which, in the opinion of the competent
authority, may be a place of safety for the juvenile;
r. "prescribed" means prescribed by rules made under this act;
s. "Probation officer" means an officer appointed by the State Government
as a probation officer under the Probation of Offenders Act, 1958 (20 of
1958);
t. "public place" shall have the meaning assigned to it in the Immoral Traffic
(Prevention) Act, 1956 (104 of 1956);
u. "shelter home" means a home or a drop-in-centre set up under section 37;
v. "special home" means an institution established by a State Government or
by a voluntary organisation and certified by that Government under
section 9;
w. "special juvenile police unit" means a unit of the police force of a State
designated for handling of juveniles or children under section 63;
x. "State Government" , in relation to a Union territory, means the
Administrator of that Union territory appointed by the President under
article 239 of the Constitution;
y. all words and expressions used but not defined in this Act and defined in
the Code of Criminal Procedure, 1973 (2 of 1974), shall have the
meanings respectively assigned to them in that code.

2. Continuation of Inquiry in respect of juvenile who has ceased to be a

juvenile.- Where an inquiry has been initiated against a juvenile in conflict with
law or a child in need of care and protection and during the course of such inquiry
the juvenile or the child ceases to be such, then, notwithstanding anything
contained in this Act or in any other law for the time being in force, the inquiry
may be continued and orders may be made in respect of such person as if such
person had continued to be a juvenile or a child.

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Rules/Laws regarding Adoption
Adoption can be defined as the statutory process of terminating a child's legal rights and
duties towards the natural parents and substituting similar rights and duties towards
adoptive parents. Adoption establishes a parent-child relationship between persons not so
related by the birth of the child. For the parentless or the abandoned child, adoption
means a balanced physical and psychological family environment and to the desirous
parents, chances to become parents and experience family growth. It is one of the means
of solving the problems of destitute and orphans. It is also a way of satisfying the interest
of person who is childless. It is prevalent in every nook and corner of the world. In India
also, adoption has been prevailing since ages. Even the great epics like Ramayana and
Mahabharata depicted adoption. Though the practice of adoption has been exercised from
ages, the concept of Inter-country Adoption is relatively a new concept.

It is great characteristic of Hindu culture that though out the Hindu period, right from the
Vedic age to this date, the Hindus have always desired to have natural born son for the
spiritual benefit and the continuation of lineage, yet right from the Vedic age, the
existence of secondary sons in one form or the other has been recognised. References of
Khetraja (Soil born son), Kanina (Mainden son), Dattaka (Adopted son) can be found in
the Vedic literature. Most of these concepts of secondary sons in the course of time
became obsolete and during the British period only natural sons and adopted sons existed.

This institution of adoption has become international. Inter-country adoption can be

defined as adoption of a child by a person of another country. Inter-Country adoption
may be more viable choice than domestic adoption for many families especially those
who want to adopt a healthy infant. Though Inter-Country adoption has become quite
regular through out the world, still it is most unfortunate that often Inter-country adoption
leads to misuse or ill use of children. Sometimes, it becomes a mask for trafficking in
children. These types of adoption involve Trans-racial, Trans-cultural and Trans -national
aspects and therefore care has to be taken that the process of solving the problems of such
children may not land them in more difficulties arising on the wake of maladjustment in
the new atmosphere.

Legislation

It may be noted that there is no concrete legislation present in India, which deals with
Inter-Country adoption. In fact before the Laxmikant Pandey's case, it did not have any
guidelines regarding it. High Court of Bombay and Delhi framed some rules, which were
found to be quite insufficient. In the international level though, attempts had been made
to legalise Inter-Country adoption through Rights of Child Resolution adopted by the
United Nations General Assembly on November 20, 1959 and Guidelines formulated by
Expert group and adopted by the Economic and Social Council of the United Nations its
20th session and also through adoption of Children Bill, 1980 relating to Inter-Country
adoption legislation. Under the Adoption of Children Bill, 1980 giving in and taking in

62
child for adoption was made unlawful. Clauses 23 and 24 of the said bill were most
relevant in this respect.

Clause 23 read as follows: "

(1) Except under the authority of an order under section 24, it shall not be lawful for any
person to take or send out of India a child who's a citizen of India to any place outside
India with a view to the adoption of the child by any person.
(2) Any person who takes or sends a child out of India to any place outside India in
contravention of sub-section (1) or makes or takes part in any arrangements for
transferring the care and custody of a child to any person for that purpose, shall be
punishable with imprisonment for a term which may extend to six months, or with fine or
with both."

Clause 24 of the above mentioned bill states that: "(1) if upon an application made by a
person who is not domiciled in India, the district court is satisfied that the applicant
intends to adopt a child under the law of or within the country in which he is domiciled,
and for that purpose desires to remove the child from India, either immediately or after an
interval, the court may make an order (in this section referred to as a provisional adoption
order) authorising the applicant to remove the child for the purpose aforesaid and giving
to the applicant the care and custody pending his adoption aforesaid

Provided that no application shall be entertained unless it is it is accompanied by a

certificate by the central government to the effect that:
I. the applicant is in its opinion a fit person to adopt the child.
II. the welfare and interests of the child shall be safeguarded under the law of the country
of domicile of the applicant.
III. the applicant has made proper provision by way of deposit or bond or otherwise in
accordance with the rules made under this act to enable the child to be repatriated to
India, should it become necessary for any reason.

(2) The provision of this act relating to an adoption order shall, as far as may be, apply in
relation to a provisional adoption order made under this section."
Thus it is quite clear from the above provision that, care has been taken to legalize the
process of Inter-Country adoption. Similarly, the Rights of the Child adopted by the
General Assembly made provisions for protection of children adopted by citizen of
another country. Principle 9 of the said declaration clearly mentions that: " The child
shall be protected against all forms of neglect, cruelty and exploitation. He shall not be
subject of traffic in any form ". Moreover in the draft formulated by the Expert Group
and adopted by the Economic and Social Council of the United Nations in its 20th
session, we find provisions relating to safety of children. Clause 24 the draft states " In
Inter-Country adoptions, legal validation of the adoption should be assured in the
countries involved." Thereafter, at the regional conference of Asia and Western Pacific
held by International Council on Social Welfare in Bombay in 1981, draft guidelines and
procedure concerning Inter-Country adoption were formulated and were at the workshop
held in Brigton,UK on 4th September. These guidelines were based on the draft
declaration and they are extremely relevant as they reflect the almost unanimous thinking

63
of participants from various countries who took part in the regional conference in
Bombay and in the workshop in Brigton, UK. Of these guidelines important ones are:
1.4: In all Inter-Country adoption agreements, the welfare of the child should be the
prime consideration.
2.6: parents should be encouraged, where possible to provide information about the
child's background and development and their own health.
3.5: Before any adoption placement is finalised, the child concerned shall be consulted in
a manner appropriate to his/her age and level of development.
5.5: The appropriate authority or agency in born countries shall monitor the
reimbursement of costs involved in inter-state adoption to prevent profiteering and
trafficking in children.
7.1:It is essential that in Inter-Country adoption child is given the same legal status and
rights of inheritance, as if he/she had been born to adoptive parents in marriage.
It is thus submitted that, though there exists no statute dealing with Inter-Country
adoption in India, sufficient rule shave been formulated to make it simple worldwide.

Supreme Court Guidelines

As already mentioned, the concept of Inter-Country adoption is relatively a new concept.

It did not find place in the top priorities of the legislators. There was not and still is not
exist a legislation which primarily provides for the rules regarding Inter-Country
adoption. But in the year 1984, the Hon'ble Supreme Court of India in a landmark case of
Laxmikant Pandey Vs. Union of India [AIR1984 SC469] laid down few principles
governing the rules for Inter-Country adoption. The case was instituted on the basis of a
letter addressed to the court by a lawyer, Laxmikant Pandey alleging that social
organisations and voluntary agencies engaging in the work of offering Indian children to
foreign parents are indulged in malpractices. It was alleged that these adopted children
were not only exposed to long horrendous journey to distant foreign countries at the risk
of their life but they also ultimately become prostitutes and beggars. Supreme Court in
this case expressed its opinion and framed certain rules for Inter-Country adoption. The
Hon'ble Court asserted in para 8 of the judgement that, " while supporting Inter-Country
adoption, it is necessary to bear in mind that the primary object of giving the child in
adoption being the welfare of the people, great care has to be exercised in permitting the
child to be given in adoption to foreign parents, lest the child may be neglected or
abandoned by the adoptive parents in the foreign country or the adoptive parents may not
be able provide to the child a life of moral and material security or the child may be
subjected to moral and sexual abuse or forced labour or experimentation for medical or
other research and may be placed in worse situation than that in his own country ." It
further went on to give the prerequisites for foreign adoption. It stated that " In the first
place, every application from a foreigner desiring to adopt a child must be sponsored by
social or child welfare agency recognised or licensed by the government of the country in
which the foreigner is a resident. No application by a foreigner for taking a child in
adoption should be entertained directly by any social welfare agency in India working in
the area of Inter-Country adoption or by any institution or centre or home to which
children are committed by the juvenile court." The Supreme Court did not stop at that. It
also insisted the age within which a child should be adopted in case of Inter-Country

64
adoption. " if a child is to be given in Inter-Country adoption, it would be desirable that it
is given in such adoption before it completes the age of 3 years." Such a ruling was
delivered by the Supreme Court because it felt if a child is adopted by a foreign parent
before he/she attains the age of 3, he/she has more chances of assimilating to the new
environment and culture. Another important rule framed by the Court during the course
of judgement was " Since there is no statutory enactment in our country providing for
adoption of a child by foreign parents or laying down the procedures which must be
followed in such a case, resort had to be taken to the provisions of Guardian and Wards
Act, 1890 for the purpose of felicitating such adoption.

Following this judgement, the Indian courts gradually broadened the scope of adopting
child to other countries. In the later judgements, the courts have also interpreted the word
' custody' to make adoption easier. The Bombay High Court in Re Jay Kevin Salerno
[AIR1988 BOM139] iterated that " where the custody of a child is with an institution, the
child is kept in a private nursing home or with a private party for better individual care of
the child, it does not mean that the institution ceases to have the custody of the child."
Therefore it may be submitted that in the absence of any explicit legislation on the
subject, the Supreme Court has played a pivotal role in regulating the adoption of
tendered aged children to foreign parents. It has taken the help of various international
guidelines and subject to Indian culture framed the rules thereof.

Appointment of guardian

Now the question arises how the guardian is to be appointed? This aspect is very
important because if care is not taken in selecting the parents then it may lead to
trafficking in children. It must be stated in this respect that the provisions of Guardian
and Wards Act, 1890 are applicable in case of Inter-Country adoption. Section 7 of the
said act provides that, when the district court is satisfied that appointment of the guardian
will be for the welfare of the minor, it appoints one. But the person appointed should
come under any of the four categories mentioned in the section 8 of the act. These four
categories are: a) Any person desirous of being guardian of the minor b) any relative or
friend of the minor c) The collector of the district within whose jurisdiction the minor
resides or in which he has property d) The collector having authority with respect to the
class to which the minor belongs. The foreign parents desirous of making the adoption of
an Indian child makes an application to the court for being appointed guardian of the
person and property of the child whom he wishes to take in adoption and on being
appointed the guardian, for leave of the court to take the child with him to his country for
taking it in adoption. As because most of the children sought to be adopted are destitute
and orphans, notice under section 11 of the act has no specific meaning. In their case
there is no agency, which can look into the question whether the proposed adoption will
be in their welfare, or not. Thus, the Delhi High Court rules provide that, a notice should
be sent to Indian Council of Child Welfare whereas the Bombay and Gujrat High Court
rules provides for notice being sent to Indian Council for Social Welfare. Every child
welfare agency is required to get license. They are also required to maintain a register in
which the names and particulars of all the children proposed to be given in Inter-Country
adoption through it should be kept. The child welfare agency processing the adoption

65
must place sufficient material before the court to satisfy that the child is legally available
for adoption. It is imperative that the application for adoption of an Indian child by a
foreigner should be sponsored by a social or child welfare agency recognized and
licensed by the government of the country in which the foreigner is a resident. There are
three reasons for this. a) It will reduce the possibility of profiteering and trafficking in
children. b) The court won't be able satisfy itself about the eligibility of the parents unless
it is sponsored by the agency of the country in which the foreigner resides. c) In case,
adoption is made without the intervention of any agency, there would no authority or
agency, which could be made responsible for supervising the growth of the child. These
agencies are required to submit a Home Study Report that includes amongst others the
following a) Source of referral b) schooling facilities c) current relationship between
husband and wife etc. Along with this report the agency is also required to send a
photograph of the family and a declaration stating that the family is willing to adopt the
child in accordance with the law prevailing in their country. In case, child's biological
parents exist, then they should be properly assisted in making a decision about giving
away the child in adoption to foreign parents by the child welfare agency to which the
child is surrendered for making arrangement for its adoption If the child is an orphan or
destitute child then the agency must try to trace its biological parents before giving in
adoption. If the agency is a non-registered agency, then it must contact a registered
agency for giving in adoption. The district court is required to dispose of all the
application at the earlier but in no case later than two months from the date of filing of an
application. Section 17 of the Guardian and Wards Act, 1890 provides that in appointing
guardian of a minor, the court shall be guided by what, consistently with the law to which
the minor is subject, appears in the circumstances to be for the welfare of the minor and
in considering what will be for the welfare of the minor, the court shall have regard to the
age, sex and religion of the minor. The main function of the Council of Social Welfare or
Council for Social Welfare or any other recognised agency in the Inter-Country adoption
is to help the court in finding what is for the welfare of the people. For this purpose the
council prepares a report called 'Child Study Report'. This report contains legal and social
data regarding the child. The report should also contain an assessment of child's
behavioral pattern and its intellectual, emotional and physical development. It should also
contain the recent photograph of the child, information about original parents.

Selecting an agency

It is another aspect needs to be taken care of when a person wants to adopt a kid of
another country. It is always advisable to use a reputable agency with experience in Inter-
Country adoption. Although the quality can vary, the adoption agencies are regulated by
state government. If the child is given in adoption without the help of the agency then
there are possibilities of involvement in the black market, loss of confidentiality,
infringements upon the child's right to privacy and permanency. Therefore, it is always
desirable to give the child in adoption through a reputed adoption agency.

66
Consumer Law

In Pre Civilization period there is no Consumer as we see in modern times. There is no

manufacturing - No services and no purchase system. Civilization creates multi
Requirements of men. One person himself is not capable to fulfill all of his requirements,
he needs help of other. He is now under compulsion to purchase Goods/Services. He do
not get honest dealings every time. Here now Law comes to help consumer it gives
certain rights to consumer. In case of violation of such laws it provides provisions to
enforce those rights.

The moment a person comes into this world, he starts consuming. He needs Food
Clothes, House and many more things and these needs keep taking one form or the other
all along his life. Thus we all are consumers in the literal sense of the term. When we
approach the market as a consumer, we expect value for money, i.e., right quality, right
quantity, right prices, information about the mode of use, etc. But there may be instances
where a consumer is harassed or cheated.

Earlier Position - Before the enactment of Consumer Protection Act, 1986 there are
many other laws which are related to Consumer. Some of them are Indian Contract Act,
Sale of Goods Act, Prevention of Food Adulteration Act, the Standards of Weights and
Measures Act, etc. They protect consumer interests to some extent. But these laws require
the consumer to initiate action by way of a civil suit involving lengthy legal process
which is very expensive and time consuming.

Who Is Consumer?

The Consumer Protection Act is for "Consumer". Here question arises who is Consumer.
The Act itself gives the definition of Consumer only those who falls into the definition
of Consumer given in Act can take benefit of this Act - This definition is some what
different than dictionary/literal meaning. It also specifically excludes some kind of
consumers from its preview.

The definition of Consumer is given in two parts:

1) Consumer of Goods
2) Consumer of Services

The basic feature of consumer definition is:

1. The Goods or Services must not be free. Some consideration (Price) should be
paid for them. It includes purchase on credit or part payment or in installments.
2. Second important feature is that it is not necessary that only purchase is consumer
- Condition is that Goods/Services are brought for consideration - Definition of
Consumer clearly states that any person through consideration is not paid by him
but if he uses Goods with the consent of Purchaser or is beneficiary is also a
Consumer i.e. A purchase some goods and gifted to B here B is also a consumer.
A telephone connection in the name of father used by son here son is also
consumer.

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 3. Third important feature is that it excludes commercial dealings or goods
purchased for resale from the definition of consumer with exception of goods and
services purchased for self employment - It means reseller and commercial
dealings except for self employment can not take benefit of Consumer Protection
Act.

For more clarity the reader should know that it is not necessary that purchaser is
commercial concern but such goods and services should be used for commercial purpose.

For example if a commercial concern purchases a Car for the use of its own staff, it did
not uses that Car as a Taxi or hiring to others etc. then such use can not be termed as
commercial. The purchaser of such car though a commercial concern but here he is
consumer because car is not used for commercial purpose.

Who Can Not Take Benefit of Consumer Protection Act

As per definition of “Consumer”, “Goods” and “Services” given in Act, following cannot
take benefit of Consumer Protection Act –

1. Free Goods/Services - Person having Goods/ Services free of cost is not

Consumer and cannot be benefited by this Act.
2. Reseller - Person Purchaser of Goods for resale cannot take benefit of this Act.
3. Commercial Purpose - Person purchasing Goods/ Services for commercial
purpose is also out of preview of this Act.
4. Personal Services - Definition of Service exclude personal services also from the
preview of this Act. Personal Services means where relation of Employer-
Employee exists. An Employer though paid Employee for his services so costing
to the definition of Consumer he can also be termed as “Consumer” but definition
of “Service” in Consumer Protection Act specifically exclude this relation out of
the definition of Service and thus out of the preview of the Act.
5. Statutory Services - Through various pronouncements of Supreme Court and
Consumer Courts now it is also clear that various services given by State i.e.
“Registration of Documents”, “Approval of Construction Plan” etc. do not fall
under “Service” as the fees paid for them is not consideration by statutory levy, so
user of such services also cannot take benefit of this

Wrongs against Consumer

1. Defect in Goods
2. Deficiency in Service
3. Charging of excess price
4. Hazardous Goods
5. Unfair trade practice of restrictive trade practice

Relief’s Available to Consumers

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Depending on the facts and circumstances, the Redressal Forums may give order for one
or more of the following relief.

1. Removal of defects from the goods;

2. Replacement of the goods;
3. Refund of the price paid;
4. Award of compensation for the loss or injury suffered;
5. Removal of defects or deficiencies in the services;
6. Discontinuance of unfair trade practices or restrictive trade practices or direction
not to repeat them;
7. Withdrawal of the hazardous goods from being offered to sale; or
8. Award for adequate costs to parties.

There is no limit on amount of compensation you can claim, but it has to be proportionate
& rational with the loss or injury suffered by you. Always be reasonable in the amount
you want to claim as this will make it easier for the court to make a finding in your
favour

Complaint

What can be complained?

An aggrieved consumer seeks redressal under the Act through the instrumentality of
complaint. It does not mean that the consumer can complain against his each and every
problem. The Act has provided certain grounds on which complaint can be made.
Similarly, relief against these complaints can be granted within the set pattern.

What constitutes a complaint?

[Section 2(1) (c)]
Complaint is a statement made in writing to the National Commission, the State
Commission or the District Forum by a person competent to file it, containing the
allegations in detail, and with a view to obtain relief provided under the Act.

Who can file a complaint?

[Sections 2(b) & 12]
At the outset it is clear that a person who can be termed as a consumer under the Act can
make a complaint. To be specific on this account, following are the persons who can file
a complaint under the Act:
 a consumer; or
 any voluntary consumer association registered under the Companies Act, 1956 or
under any other law for the time being in force, or
 the Central Government or any State Government,
 one or more consumers, where there are numerous consumers having the same
interest.
 in case of death of a consumer, his legal heir or representative.

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In addition to the above following are also considered as a consumer and hence they may
file a complaint:

Beneficiary of the goods/services - The definition of consumer itself includes

beneficiary of goods and services.

Where a young child is taken to the hospital by his parents and the child is treated by the
doctor, the parents of such a minor child can file a complaint under the Act - Spring
Meadows Hospital v. Harjot Ahluwalia JT 1998(2) SC 620.

Legal heirs of the deceased consumer - A legal heir of the deceased consumer can well
maintain a complaint under the Act - Joseph Alias Animon v. Dr. Elizabeth Zachariah
(1) 1997 CPJ 96.

Husband of the consumer - In the Indian conditions, women may be illiterate, educated
women may be unaware of their legal rights, thus a husband can file and prosecute
complaint under the Consumer Protection Act on behalf of his spouse - Punjab National
Bank, Bombay v. K.B. Shetty 1991 (2) CPR 633.

A relative of consumer - When a consumer signs the original complaint, it can be

initiated by his/her relative - Motibai Dalvi Hospital v. M.I. Govilkar 1992 (1) CPR
408.

Insurance company - Where Insurance Company pays and settles the claim of the
insured and the insured person transfers his rights in the insured goods to the company, it
can file a complaint for the loss caused to the insured goods by negligence of
goods/service providers. For example, when loss is caused to such goods because of
negligence of transport company, the insurance company can file a claim against the
transport company - New India Assurance Company Ltd. v. Green Transport Co. II
1991 CPJ (1) Delhi

What a complaint must contain

[Section 2(1)(c)]
A complaint must contain any of the following allegations:
(a) An unfair trade practice or a restrictive trade practice has been adopted by any trader;
Example: A sold a six months old car to B representing it to be a new one. Here B can
make a complaint against A for following an unfair trade practice.
(b) The goods bought by him or agreed to be bought by him suffer from one or more
defects;
Example: A bought a computer from B. It was not working properly since day one. A
can make a complaint against B for supplying him a defective computer.
(c) The services hired or availed of or agreed to be hired or availed of by him suffer from
deficiency in any respect.
Example: A hired services of an advocate to defend himself against his landlord. The
advocate did not appear every time the case was scheduled. A can make a complaint
against the advocate.

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(d) A trader has charged for the goods mentioned in the complaint a price in excess of the
price fixed by or under any law for the time being in force or displayed on the goods or
any package containing such goods.
Example: A bought a sack of cement from B who charged him Rs. 100 over and above
the reserve price of the cement declared by the Government. Here A can make a
complaint against B.
(e) Goods which will be hazardous to life and safety when used, are being offered for sale
to the public in contravention of the provisions of any law for the time being in force
requiring traders to display information in regard to the contents, manner and effect of
use of such goods.
Example: A bought a tin of disinfectant powder. It had lid which was to be opened in a
specific manner. Trader did not inform. A about this. While opening the lid in ordinary
way, some powder flew in the eyes of A which affected his vision. Here A can make a
complaint against the trader.

Time frame within which a complaint can be filed

Section 24A of the Act provides that a consumer dispute can be filed within two years
from the date on which the cause of action arises.

The point of time when cause of action arises is an important factor in determining the
time period available to file a complaint. There are no set rules to decide such time. It
depends on the facts and circumstances of each case.

Example: A house was allotted on 1-1-1999. Defects appeared in the house on 10-1-
1999. Here the cause of action will arise on 10-1-1999.

It may be noted that these time frames are not absolute limitations. If the Consumer
Forum is satisfied that there was sufficient cause for not filing the complaint within the
prescribed period, it can entertain a complaint beyond limitation time. However the
Forum must record the reasons for condo nation of delay.

Relief available against complaint

[Sections 14 and 22]
A complainant can seek any one or more of the following relief under the Act:
 to remove the defect pointed out by the appropriate laboratory from the goods in
question;
 to replace the goods with new goods of similar description which shall be free
from any defect;
 to return to the complainant the price, or, as the case may be, the charges paid by
the complainant;
 to pay such amount as may be awarded by it as compensation to the consumer for
any loss or injury suffered by the consumer due to the negligence of the opposite
party;
 to remove the defects or deficiencies in the services in question;

71
  to discontinue the unfair trade practice or the restrictive trade practice or not to
repeat it;
 not to offer the hazardous goods for sale;
 to withdraw the hazardous goods from being offered for sale;
 to provide from adequate costs to complainant.

When a complaint cannot be filed

Unidentifiable consumers - A complaint on behalf of the public which consists of

unidentifiable consumers cannot be filed under the Act.
Example: A complaint was filed on the basis of a newspaper report that passengers
travelling by flight No. 1C-401 from Calcutta to Delhi on May 13, 1989 were made to
stay at the airport and the flight was delayed by 90 minutes causing great inconvenience
to the passengers. It was held that such a general complaint cannot be entertained. No
passenger who boarded that plane came forward or authorised the complainant to make
the complaint - Consumer Education and Research Society, Ahmedabad v. Indian
Airlines Corporation, New Delhi (1992) 1 CPJ 38 NC.

A complaint by an individual on behalf of general public is not permitted -

Commissioner of Transport v. Y.R. Grover 1994 (1) CPJ 199 NC.

An unregistered association cannot file a complaint under the Act.

Example: The complainant was an association formed in the Gulf and was unregistered
in India. It was held that since the petitioner was not a voluntary organization registered
under any law in force in India, cannot come within clause (d) of section 2(1) of the Act
and hence can’t file a complaint - Gulf Trivendrum air Fare Forum v. Chairman &
Managing Director, Air India 1991 (2) CPR 129.

A complaint after expiry of limitation period is not permitted. A complaint cannot be

filed after the lapse of two years from the date on which the cause of action arise unless
the Forum is satisfied about the genuineness of the reason for not filing complaint within
the prescribed time.
Example: A supplied defective machinery to B on 12-1-1998. B filed a suit against A on
10-3-2001. It was not admitted before the Forum for the reason that the time available to
make complaint lapsed.

Unidentifiable consumers - A complaint on behalf of the public which consists of

unidentifiable consumers cannot be filed under the Act.
Example: A complaint was filed on the basis of a newspaper report that passengers
travelling by flight No. 1C-401 from Calcutta to Delhi on May 13, 1989 were made to
stay at the airport and the flight was delayed by 90 minutes causing great inconvenience
to the passengers. It was held that such a general complaint cannot be entertained. No
passenger who boarded that plane came forward or authorised the complainant to make
the complaint - Consumer Education and Research Society, Ahmedabad v. Indian
Airlines Corporation, New Delhi (1992) 1 CPJ 38 NC.

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A complaint by an individual on behalf of general public is not permitted -
Commissioner of Transport v. Y.R. Grover 1994 (1) CPJ 199 NC.

An unregistered association cannot file a complaint under the Act.

Example: The complainant was an association formed in the Gulf and was unregistered
in India. It was held that since the petitioner was not a voluntary organization registered
under any law in force in India, cannot come within clause (d) of section 2(1) of the Act
and hence can’t file a complaint - Gulf Trivendrum air Fare Forum v. Chairman &
Managing Director, Air India 1991 (2) CPR 129.

A complaint after expiry of limitation period is not permitted. A complaint cannot be

filed after the lapse of two years from the date on which the cause of action arise unless
the Forum is satisfied about the genuineness of the reason for not filing complaint within
the prescribed time.
Example: A supplied defective machinery to B on 12-1-1998. B filed a suit against A on
10-3-2001. It was not admitted before the Forum for the reason that the time available to
make complaint

Procedure

Procedure to be followed by the Consumer Courts

[Section 13]
The following procedure is equally applicable to the District Forum, State Commission
with required modifications and National Commission with additional procedures
required by the rules.

Where Laboratory Test is Required - A consumer is supposed to file as many copies of

the complaint as there are number of judges, with all essential information, supporting
papers like correspondence, and specifying the compensation demanded.
On receipt of such complaint -
 The District Forum should refer a copy of the complaint to the opposite party
directing him to give his version of the case within a period of thirty days which
can be extended to forty five days.
 The District Forum may require the complainant to deposit specified fees for
payment to the appropriate laboratory for carrying out the necessary analysis or
test in relation to the goods in question.
 The District Forum will obtain a sample of the goods, seal it, authenticate it and
refer the sample so sealed to the appropriate laboratory for an analysis or test,
whichever may be necessary, with a view to finding out whether such goods
suffer from any defect.
 The District Forum will remit the fees to the appropriate laboratory to enable it to
carry out required analysis or test.
 The laboratories supposed to report its findings to the District Forum within a
period of fifty-five days. This period is extendible by the District Forum.
 Upon receiving laboratory’s report, its copy will be forwarded by the District
Forum to the opposite party alongwith its own remarks.

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  In the event of any party disputing the correctness of the findings, or the methods
of analysis or test adopted by the appropriate laboratory, the District Forum shall
require the objecting party to submit his objections in writing.
 The District Forum will give an opportunity of hearing to the objecting party.
 The District Forum shall issue appropriate order after hearing the parties.

Where No Laboratory Test is required or Complaint Relates to Services -

1. On receiving the complaint, the District Forum should refer a copy of the
complaint to the opposite party directing him to give his version of the
case within a period of thirty days which can be extended to forty five
days.
2. The opposite party on receipt of a complaint referred to him may-
(i) admit the complaint
(ii) deny or dispute the allegations contained in the complaint, or
(iii) omits or fails to respond within the time given by the District
Forum.
3. Where the opposite party admits the allegation, the District Forum should
decide the matter on the basis of the merits of the case and the documents
before it. Where the opposite party denies or disputes the allegations made
in the complaint, the District Forum will proceed to settle the dispute on
the basis of evidence brought to its notice by both the parties. Where the
opposite party omits or fails to respond within the time given by the
Forum, the District Forum will proceed to settle the dispute on the basis of
evidence brought to its notice by the complainant.
4. The District Forum shall issue an appropriate order after hearing the
parties and taking into account available evidence

Procedure to be followed by the National Commission

[Section 22]
Section 22 of the Act provides that the National Commission shall follow such procedure
as prescribed by the Central Government. The Consumer Protection Rules, 1987 framed
by the Central Government lay down the procedure which is as follows:
1. A complaint containing the following particulars shall be presented by the
complainant in person or by his agent to the National Commission or be sent by
registered post, addressed to the National Commission:
 the name, description and the address of the complainant;
 the name, description and address of the opposite party or parties, as the
case may be, so far as they can be ascertained;
 the facts relating to the complaint and when and where it arose;
 documents in support of the allegations contained in the complaint;
 the relief which the complainant claims.

2. The National Commission shall, in disposal of any complaint before it, as far as
possible, follow the procedures laid down section 13 of the Act. (discussed in para
33.4-1)

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 3. On the date of hearing, it shall be obligatory on the parties or their agents to
appear before the National Commission. Where the complainant or his agent fails
to appear, the National Commission may either dismiss the complaint for default
or decide it on merits. Where the opposite party or its agent fails to appear on the
date of hearing the National Commission may decide the complaint ex parte.

4. The complaint shall be decided as far as possible within a period of three months
from the date of notice received by opposite party where complaint does not
require analysis or testing of commodities and within five months if it requires
analysis or testing of commodities.
5. After the proceedings, the National Commission shall issue the orders
accordingly.

Appeal

Appeal is a legal instrumentality whereby a person not satisfied with the findings of a
court has an option to go to a higher court to present his case and seek justice. In the
context of Consumer Forums –

(a) An appeal can be made with the State Commission against the order of the
District Forum within 30 days of the order which is extendable for further 15
days. [Section 15]
(b) An appeal can be made with the National Commission against the order of the
State Commission within 30 days of the order or within such time as the National
Commission allows. [Section 19]
(c) An appeal can be made with the Supreme Court against the order of the National
Commission within 30 days of the order or within such time as the Supreme Court
allows. [Section 23]
Now after 2002 amendment, the appellant has to deposit fifty percent amount which he is
required to pay in terms of an order of consumer court or twenty five thousand rupees in
State Commission/fifty thousand rupees in National Commission whatever is less.

Enforcement of Order

The Consumer Courts (District Court, State Commission and National Commission) are
given vast powers to enforce their orders.

In case of non compliance of any interim order, they can attach the property of the person
non complying their order. In case, non compliance continues for more than six months,
the Consumer Courts can sold such attached property.

In case, any amount is due from any person under an order of Consumer Court. The
person entitle to that amount can apply to consumer court and court can issue a certificate
for the said amount to the Collector of the District (by whatever named called) and the
Collector after receiving that certificate from court shall proceed to recover the amount in
the same manner as arrear of land revenue. After recovery by Collector, the amount is

75
paid to entitle person.

Penalties
Consumer Courts are empowered to punish the person who feels to comply with their
orders with an imprisonment up to three years or fine up to Rs. 10,000/- or with both

Miscellaneous
(a) To Sue Manufacturers and (or) Sellers - Normally when a consumer find the
goods to be defective, he sue the seller of such goods. But if the defect of goods
relates to manufacturing, the consumer may sue manufacturer also along with the
seller. The option is with the consumer to sue both of them or only the seller.
(b) Cause List on Web - The cause list in respect of a Consumer Forum having a
website is hosted on its website also. It is very convenient for litigants to see their
date of hearings on the website.
(c) Summons - In Civil and Criminal cases, the service of summon to other parties is
quite complicated. A person can delay the case by using many tactics by not
receiving summons for a long time. The case can not proceed further until the
required summon is received by all the parties.
(d) The Consumer Protection Act, 1986 provides for serving of summons through
Speed Post, Courier or even by Fax. In case, the party refuses to accept the notice,
the Consumer Court can declare that notice is duly served on the party and can
proceed further.
(e) Adjournment - It is normally practice to seek dates from Courts (Adjournment)
for one reason or another. Consumer Protection Law to stop such delay tactics has
imposed a cost of minimum Rs. 500/- for one such adjourning which can go to
more than Rs. 500/- on the basis of value and nature of case.
(f) Cost to Complainant - A Consumer Court as a routine allow cost to complainant
for expenses incurred by him for filing complaint – Court proceedings etc. –
While in other Courts this is done in very less cases.
(g) Frivolous or Vexatious Complaints - Consumer Protection Act is a liberal,
Welfare Law. There is possibilities of persons misusing its liberal provisions – To
stop them Consumer Courts can burden, Complainant of frivolous and vexatious
complaints, with cost up to Rs. 10,000/-.
(h) Court Atmosphere - Finally Courts has different atmosphere than other Courts –
its Judges do not require wearing usual Black Coats – Advocates also not required
wearing Black Gown. The chairs of Judges are simple, persons coming to
Consumer Courts are treated well. They had atmosphere of openness, simple but
impressive. Persons visiting them feel better in such courts.
(i) Illiterate Person - Where a party appears in person and is illiterate, the Court
Master or Bench Clerk shall give to that party the next date of hearing in writing.
(j) Priority Cases - The cases filed by or against the senior citizens, physically
challenged, widows and persons suffering from serious ailments shall be listed
and disposed of on a priority basis.

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The Labour Laws (Exemption from Furnishing Returns and Maintaining Registers
by Certain Establishments) Act, 1988

Short title, extent and commencement.—

1. This Act may be called the Labour Laws (Exemption from Furnishing Returns
and Maintaining Registers by Certain Establishments) Act, 1988.
2. It extends to the whole of India :
Provided that nothing contained in this Act, in relation to the Plantations Labour
Act, 1951 (69 of 1951), shall extend to the State of Jammu and Kashmir.
3. It shall come into force on such date as the Central Government may, by
notification in the official Gazette, appoint and different dates may be appointed
for different States, and any reference in any provision of this Act to the
commencement of this Act shall be construed as a reference to the coming into
force of that provision in that State.

Definitions.--In this Act, unless the context otherwise requires,--

a. “employer”, in relation to a Scheduled Act, and in relation to any other
Scheduled Act, means the person who is required to furnish returns or
maintain registers under that Act :
b. “establishment” has the meaning assigned to it in a Scheduled Act, and
includes --
 an “industrial or other establishment” as defined in Sec. 2 of the
Payment of Wages Act, 1936 (4 of 1936) ;
 a “factory” as defined in Sec. 2 of the Factories Act, 1948 ( 63 of
1948);
 a factory, workshop or place where employees are employed or
 work is given out to workers, in any scheduled employment to which
the minimum wages Act, 1948 (11 of 1948), applies.
 a “plantation” as defined in Sec. 2 of the Plantations Labour Act, 1951
(69 of 1951) ;
 a “newspaper establishment” as defined in Sec. 2 of the Working
Journalists and other Newspaper Employees (conditions of Service)
and Miscellaneous Provisions Act, 1955 (45 of 1955) ;
c. “Form” means a Form specified in the Second Schedule;
d. “Scheduled Act” means an Act specified in the first Schedule and is in
force on commencement of this Act in the territories to which such Act
extends generally, and includes the rules made thereunder ;
e. “small establishment” means an establishment in which not less than ten
and not more than nineteen persons are employed or were employed on
any day of the preceding twelve months;
f. “very small establishment” means an establishment in which not more
than nine persons are employed or were employed on any day of the
preceding twelve months.

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 Exemption from returns and registers required under certain labour laws.--On and
from the commencement of this Act, it shall not be necessary for an employer in relation
to any small establishment or very small establishment to which a Scheduled Act applies
to furnish the returns or to maintain the registers required to be furnished or maintained
under that Scheduled Act:

Provided that such employer --

a. furnishes, in lieu of such returns, a Core returns in Form A;
b. maintains, in lieu of such registers,--
 registers in Form B, Form C and Form D, in the case of small
establishments ; and
 register in Form E, in the case of very small establishments :

Provided further that every such employer shall continue to --

 issue wage slips in the Form prescribed in the Minimum Wages (Central) Rules,
1950, made under Secs. 18 and 30 of the Minimum Wages Act, 1948 (11 of 1948)
and slips relating to measurement of the amount of work done by piece-rated
worker required to be issued under the Payment of Wages (Mines) Rules, 1956
made under Secs. 13-A and 26 of the Payment of Wages Act, 1936 (4 of 1936);
and
 file returns relating to accidents under Secs. 88 and 88-A of the Factories Act,
1948 (63 of 1948), and Secs. 32-A and 32-B of the Plantations Labour Act, 1951
(69 of 1951).

(2) Save as provided in sub-section (1), all other provisions of a Scheduled Act,
including in particular, the inspection of the registers by, and furnishing of their copies to,
the authorities under that Act, shall apply to the returns and registers required to be
furnished or maintained under this Act as they apply to the returns and registers under
that Scheduled Act.

(3) Where an employer in relation to a small establishment or very small

establishment to which a Scheduled Act applies, furnishes returns or maintains the
registers as provide in the proviso to sub-section (1), nothing contained in that Scheduled
Act shall render him liable to any penalty for his failure to furnish any returns or to
maintain any register under that Scheduled Act.

5. Savings.--The commencement of this Act shall not affect--

 the previous operation of any provision of any Scheduled Act or the validity, invalidity,
effect or consequence of anything done or suffered under that provision, before the
relevant period ;
 any right, privilege, obligation or liability already acquired, accrued or incurred under
any Scheduled Act, before the relevant period ;
 any penalty, forfeiture or punishment incurred or inflicted in respect of any offence
committed under any Scheduled Act, before the relevant period :
 any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation , liability, penalty, forfeiture or punishment aforesaid, and any such

78
investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment shall be instituted, continued or
disposed of, as the case may be, in accordance with that Scheduled Act.
Explanation.---For the purpose of this section, the expression “relevant period” means the
period during which an establishment is or was a small establishment or a very small
establishment under this Act.

6. penalty.--Any employer who fails to comply with the provisions of this Act shall, on
conviction, be punishable,--
(a) in the case of the first conviction, with fine which may extend to rupees five
thousand ; and
(b) in the case of any second or subsequent conviction, with imprisonment for a
period which shall not be less than one month but which may extend to six
months or with fine which shall not be less than rupees ten thousand but may
extend to rupees twenty-five thousand, or with both.

7. Power to amend forms—

(1) The Central Government may, if it is of opinion that it is expedient so to do, by

notification in the official Gazette, amend any Form and thereupon such Form shall,
subject to the provisions of sub-section (2), be deemed to have been amended
accordingly.

(2) Any notification issued under sub-section (1) shall be laid before each House of
Parliament, if it is sitting as soon as may be after the issue of the notification, and if it is
not sitting, within seven days of its re-assembly and the Central Government shall seek
the approval of Parliament to the notification by a resolution moved within a period of
fifteen days beginning with the day on which the notification is so laid before the House
of the People, and if Parliament makes any modification in the notification or directs that
the notification should cease to have effect, the notification shall thereafter have effect
only in such modified form or be of no effect, as the case may be, but without prejudice
to the validity of anything previously done there under.

8. Power to remove difficulties.--If any difficulty arises in giving effect to the

provisions of this Act, the Central Government may, by order, not inconsistent with the
provisions of this Act, remove the difficulty:

Provided that no such order shall be made after the expiry of a period of two years from
the date on which this Act receives the assent of the President.

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Workmen’s Compensation Act, 1923 & Workmen’s Compensation
Rules, 1924
The Workmen’s Compensation Act, aims to provide workmen and/or their dependents
some relief in case of accidents arising out of and in the course of employment and
causing either death or disablement of workmen.

It provides for payment by certain classes of employers to their workmen compensation

for injury by accident.

Who is a workman?

Workman means any person (other than a person whose employment is of a casual nature
and who is employed otherwise than for the purposes of the employer’s trade or business)
who is-
i. a railway servant as defined in section 3 of the Indian Railways Act, 1890 not
permanently employed in any administrative, district or sub-divisional office of a
railway and not employed in any such capacity as is specified in Schedule II, or
ii. employed in any such capacity as is specified in Schedule II,

Whether the contract of employment was made before or after the passing of this Act and
whether such contract is expressed or implied, oral or in writing.

The provisions of the Act have been extended to cooks employed in hotels, restaurants
using power, liquefied petroleum gas or any other mechanical device in the process of
cooking.

Employees Entitled To Compensation

Every employee (including those employed through a contractor but excluding casual
employees), who is engaged for the purposes of employer’s business and who suffers an
injury in any accident arising out of and in the course of his employment, shall be entitled
for compensation under the Act

Employer to pay compensation: In case a personal injury is caused to a workman by

accident arising out of and in the course of his employment, his employer is liable to pay
compensation in accordance with the provision of the Act within 30 days from the date
when it fell due otherwise he would also be liable to pay interest and penalty.

When employer is not liable: In case the disablement of workman is three or less days;
except in case of death when the injury is caused due to influence of drink or drug taken
by the workman or upon his wilful disobedience to obey safety rules or removal of safety
guards by him.

Amount of compensation: (1) in case of death: - an amount equal to 50% of the monthly
wage multiplied by the relevant factor as given in Schedule IV of the Act or Rs. 80,000/-
whichever is more. (2) In case of permanent total disablement, it is 60% or Rs. 90,000/-

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whichever is more and (3) In case of permanent partial disablement occurs then the
compensation is proportionate to the disability arrived as at (2) above.

Notice: An injured person or his dependants have to give a notice to the employer to pay
compensation.

Claim: Upon the failure or refusal of an employer to give compensation, an application is

to the made in Form - F to the Commissioner under the Workmen's Compensation Act,
1923 who is the Assistant Labour Commissioner or the Labour-cum-Conciliation Officer
of the area where the accident took place or where the claimant ordinarily resides or
where the employer has his registered office. After hearing both the parties, the
Commissioner decides the claim.

Contracting out: Any contract or agreement whereby an injured person or his dependant
relinquishes or reduce his right to receive compensation is null and void to that extent.

Appeal: An appeal lie to the High Court against the orders of the Commissioner with
regard to the awarding or refusing to award compensation, or imposing interest or
penalty, or regarding distribution of compensation etc.

Recovery: The amount of compensation awarded by the Commissioner is to be

recovered as arrears of land revenue.

Public Interest Litigation (PIL)

The development of Public Interest Litigation (PIL) in the country has very recently
uncovered its own pitfalls and drawbacks. The genuine causes and cases of public interest
have in fact receded to the background and irresponsible PIL activists all over the country
have started to play a major but not a constructive role in the arena of litigation. They try
to utilise this extraordinary remedy, available at a cheaper cost, as a substitute for
ordinary ones. This mini article briefly narrates the ill effects of the emerging malady and
possible remedies.

Justice without force is impotent; force without justice is tyranny

-Pascal in Pensees.
There are times when even justice brings harm with it
-Sophocles in Electra.

Injustice anywhere is a threat to justice everywhere

-Martin Luther King,Jr.

Till 1960s and seventies, the concept of litigation in India was still in its rudimentary
form and was seen as a private pursuit for the vindication of private vested interests.
Litigation in those days consisted mainly of some action initiated and continued by
certain individuals, usually, addressing their own grievances/problems. Thus, the
initiation and continuance of litigation was the prerogative of the injured person or the

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aggrieved party. Even this was greatly limited by the resources available with those
individuals. There were very little organised efforts or attempts to take up wider issues
that affected classes of consumers or the general public at large.

However, these entire scenario changed during Eighties with the Supreme Court of India
led the concept of public interest litigation (PIL). The Supreme Court of India gave all
individuals in the country and the newly formed consumer groups or social action groups,
an easier access to the law and introduced in their work a broad public interest
perspective.

Origin of Public Interest Litigation

Prior to the 1980s only the aggrieved party could approach the courts for justice.However
post 1980s and after the emergency era the apex court decided to reach out to the people
and hence it devised an innovative way wherein a person or a civil society group could
approach the supreme court seeking legal remedies in cases where public interest is at
stake.Justice P.N.Bhagwati and Justice V.R.Krishna Iyer were among the first judges to
admit PIL's in the court. Filing a PIL is not as cumbersome as any other legal case and
there have been instances when even letters and telegrams addressed to the court have
been taken up as PIL's and heard by the court

Public Interest Litigation (PIL)-The legal history:

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in
the interest of that nebulous entity: the public in general. Prior to 1980s, only the
aggrieved party could personally knock the doors of justice and seek remedy for his
grievance and any other person who was not personally affected could not knock the
doors of justice as a proxy for the victim or the aggrieved party. In other words, only the
affected parties had the locus standi (standing required in law) to file a case and continue
the litigation and the non affected persons had no locus standi to do so. And as a result,
there was hardly any link between the rights guaranteed by the Constitution of Indian
Union and the laws made by the legislature on the one hand and the vast majority of
illiterate citizens on the other.

However, these entire scenarios gradually changed when the post emergency Supreme
Court tackled the problem of access to justice by people through radical changes and
alterations made in the requirements of locus standi and of party aggrieved. The splendid
efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this
juristic revolution of eighties to convert the apex court of India into a Supreme Court for
all Indians. And as a result any citizen of India or any consumer groups or social action
groups can approach the apex court of the country seeking legal remedies in all cases
where the interests of general public or a section of public are at stake. Further, public
interest cases could be filed without investment of heavy court fees as required in private
civil litigation.

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PIL- A BOON:

1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an
inexpensive legal remedy because there is only a nominal fixed court fee involved in this.

2. Further, through the so-called PIL, the litigants can focus attention on and achieve
results pertaining to larger public issues, especially in the fields of human rights,
consumer welfare and environment.

ABUSE OF PIL:

However, the development of PIL has also uncovered its pitfalls and drawbacks. As a
result, the apex court itself has been compelled to lay down certain guidelines to govern
the management and disposal of PILs. And the abuse of PIL is also increasing alongwith
its extended and multifaceted use.

Of late, many of the PIL activists in the country have found the PIL as a handy tool of
harassment since frivolous cases could be filed without investment of heavy court fees as
required in private civil litigation and deals could then be negotiated with the victims of
stay orders obtained in the so-called PILs.

Just as a weapon meant for defence can be used equally effectively for offence, the
lowering of the locus standi requirement has permitted privately motivated interests to
pose as public interests. The abuse of PIL has become more rampant than its use and
genuine causes either receded to the background or began to be viewed with the suspicion
generated by spurious causes mooted by privately motivated interests in the disguise of
the so-called public interests.

Steps Necessary:

With the view to regulate the abuse of PIL the apex court itself has framed certain
guidelines (to govern the management and disposal of PILs.) The court must be careful to
see that the petitioner who approaches it is acting bona fide and not for personal gain,
private profit or political or other oblique considerations. The court should not allow its
process to be abused by politicians and others to delay legitimate administrative action or
to gain political objectives. Political pressure groups who could not achieve their aims
through the administrative process or political process may try to use the courts (through
the means of PILs) to further their closely vested aims and interests.

There may be cases where the PIL may affect the right of persons not before the court,
and therefore in shaping the relief the court must invariably take into account its impact
on those interests and the court must exercise greatest caution and adopt procedure
ensuring sufficient notice to all interests likely to be affected.

At present, the court can treat a letter as a writ petition and take action upon it. But, it is
not every letter which may be treated as a writ petition by the court. The court would be

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justified in treating the letter as a writ petition only in the following cases-

a. It is only where the letter is addressed by an aggrieved person or

a public spirited individual
b. a social action group for enforcement of the constitutional or the legal rights of a
person in custody or of a class or group of persons who by reason of poverty,
disability
c. socially or economically disadvantaged position find it difficult to approach the
court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by
the government to regulate the PIL results in widespread protests from those who are not
aware of its abuse and equate any form of regulation with erosion of their fundamental
rights. Under these circumstances the Supreme Court Of India is required to step in by
incorporating safe guards provided by the civil procedure code in matters of stay orders
/injunctions in the arena of PIL.

In the landmark case of Raunaq International Limited v/s IVR Construction Ltd, Justice
Sujata V Manohar rightly enunciated that - when a stay order is obtained at the instance
of a private party or even at the instance of a body litigating in public interest, any interim
order which stops the project from proceeding further must provide for the
reimbursement of costs to the public in case ultimately the litigation started by such an
individual or body fails. In other words the public must be compensated both for the
delay in the implementation of the project and the cost escalation resulting from such
delay.

Examples of PIL

The Bombay High Court on 31 August, 2006 directed the broadcasters to give an
undertaking that they will abide by the Cable Television Network Act 1995 as well as the
court's orders by tomorrow, in view of larger public interest.

A division bench comprising Justices R M Lodha and S A Bobde were hearing a Public
Interest Litigation (PIL) filed by Professor Pratibha Nathani of St Xavier's College
alleging that films without certification by the Censor Board for Film Certification
(CBFC) allowing 'free public exhibition', were being shown on cable channels, which
have a bad impact on children. Hence, such films should not be shown and action be
taken against those still running such content on their channels.

The court on 23 August had allowed the cable operators and channels to screen only 'U'
and 'U/A' certified films.
However, before that order, the police had taken action against the Multi-system
operators and seized their decoders due to which they could not telecast certain channels.
Today, Assistant Commissioner of Police Sanjay Apranti told the court that they did not
have a problem if the channels provided the cable operators with new decoders.

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Also, Zee Television and Star Television networks applied for the declaration in writing
that they would abide by the said Act and court orders.
The court also directed seven channels -- Star Movies, Star One, Star Gold, HBO, ZEE
Movies, AXN and Sony Max -- to furnish a list of all the films that they were to screen to
the police.

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Judiciary,
Functioning and the
system

Chapter – 04

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Judiciary System

India has one of the oldest legal systems in the world. The Preamble defines India as a
'Sovereign Democratic Republic', containing a federal system with Parliamentary form of
Government in the Union and the States, an independent judiciary, guaranteed
Fundamental Rights and Directive Principles of State Policy containing objectives which
though not enforceable in law, are fundamental to the governance of the nation.

The fountain source of law in India is the Constitution which, in turn, gives due
recognition to statutes, case law and customary law consistent with its dispensations. One
of the unique features of the Indian Constitution is that, notwithstanding the adoption of a
federal system and existence of Central Acts and State Acts in their respective spheres, it
has generally provided for a single integrated system of Courts to administer both Union
and State laws. At the apex of the entire judicial system, exists the Supreme Court of
India below which is the High Courts in each State or group of States. Below the High
Courts lies a hierarchy of Subordinate Courts. Panchayat Courts also function in some
States under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri,
etc. to decide civil and criminal disputes of petty and local nature.

Fifty years after independence, the entire judicial system is on the verge of collapse.
While the superior courts have earned praise from citizens for intervening in citizen’s
concerns raised through public interest petitions, only those with resources or cunning
can hope to get ordinary justice. Over three crore cases are presently pending in various
courts. In most cases, citizens have little hope of getting justice in their lifetime.
Corruption and abuse of court processes are rampant.

The main reason for this state of affairs is that we are still wedded to the centralised
judicial system based on colonial practices. The local courts are under the administrative
control of the state high courts that obtain budget for them from the state governments.
State governments appoint local judges in state cadres, and transfer them on the
recommendation of high courts. There is thus no local accountability in the
administration of justice.

The courts still follow Anglo-Saxon jurisprudence, totally ignoring jurisprudence

developed in India over ages. Traditionally, village court settled village disputes.
Deprived of this facility, the village community now suffers abuse, delays and high
lawyer costs in local courts. The chief district or city judge has no method of redressing
genuine grievances of local communities.

Similarly, the high courts are under the administrative control of the Supreme Court. The
Supreme Court now also transfers high court judges from one state to another, often on
corruption charges, in effect merely transferring corruption, not a healthy practice. All
know that pending cases will keep building up but have no solution to offer.

Article 9.1 Democratising judiciary

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The judicial system, like the rest of public management, needs to be democratised
urgently. The local judiciary should be a part of local governance with superior courts
functioning only as appellate authority. Chief district and city judges will draw budget
from their respective governments but since they can be impeached only by the
district/city parliament, they shall be directly accountable to the people of the district or
city.

Thus the local judiciary will be under the appellate jurisdiction of the high court but not
under its administrative control. Similarly, the high courts will be under the appellate
jurisdiction of the Supreme Court but not under its administrative control.

Article 9.2 Local judiciary

The city/district Appointments Authority for Independent Functionaries shall identify the
chief district/city judge and other judges for appointment and refer them to the
city/district parliament for approving the appointment. A joint committee of the
city/district assembly and council will interview them and approve the appointment. On
approval, the city/district government will issue the appointment order. The appointment
shall be till the age of 70 years with total ban on extension or appointment on any other
paid, honorary, or elective assignment in the government. Serving judges can, if needed,
be seconded to various independent commissions and such other assignments.

If there are complaints against a judge that warrant an enquiry, the city/district assembly
shall request the concerned judge to clarify the matter. On receipt of his report, he will be
requested to appear before a committee of the city/district assembly. If, on considering
the report of the committee, the city/district assembly is of the opinion that impeachment
is called for, it shall refer the matter to the city/district council. Thereafter, on a date
intimated to the judge, he will appear before the city/district council and himself, or
through a counsel, explain his position. The city/district council shall thereafter take such
decision, as it deems fit.

It shall be the personal responsibility of the chief city/district judge to ensure that citizens
are not harassed due to delays, adjournments and petty corruption. If cases accumulate,
he will hold consultations with the city/district governor and eminent citizens for
additional budget, appointment of honorary judges and innovations such as setting up of
temporary courts.

Article 9.21 Appointment of judges through nonpolitical elections

If the people of any local jurisdiction, through referendum, vote that the appointment of
local functionaries such as the city or district chief judge, attorney or chief of police shall
be through election, they shall be elected for four years along with the general election
and can be reelected once. Those seeking election shall not be, nor have been, a member
of a registered political party.

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Article 9.22 Village courts

The chief city/district judge shall hold consultation with gram panchayats and encourage
them to take responsibility for dealing with certain types of cases. They will organise
training courses for the sarpanch and panchs in villages and, based on evaluation,
empower selected panchayats to exercise jurisdiction over specified criminal and civil
cases. The jurisdiction can be enlarged as they gain experience. Similar initiative can be
taken in regard to urban neighborhoods. Senior citizens with appropriate background can
be invited to assist.

Article 9.3 Jury trial

It is usual in democracies to associate citizens as jury in certain types of trials.

City/district governors and chief judges shall organise seminars on jury trial and
introduce it in a phased manner. When its usefulness becomes a felt need, it can be
gradually phased in. It will be particularly useful in cases such as dowry harassment and
other social ills.

Article 9.4 Honorary judges and police officers

The city/district governor, chief judge and police chief shall examine the usefulness of
appointment of honorary judges and police officers to deal with problems faced by
citizens. In many cities, security agencies set up by retired army and police officers have
come up and provide security guards to neighborhoods. Such security guards, appointed
honorary police officers, can become a useful extension arm of the police. Such local
innovations can promote better understanding between the government and citizens.

Article 9.5 Superior courts

The provisions of Article 8.1 regarding appointment of city/district judges shall mutatis
mutandis apply to appointment of judges of the superior courts. They too will have their
tenure till the age of 70 years and thereafter cannot hold any paid, honorary or elective
assignment, in any government organisation.

Article 9.6 Jurisprudence

The courts in India are still governed by Anglo-Saxon jurisprudence introduced by the
colonial rulers. India has sound concepts of jurisprudence developed over its long
civilisation. While it may not be desirable to totally discard Anglo-Saxon jurisprudence at
this stage, it will be appropriate to enrich it by integrating useful provisions from Indian
jurisprudence. Private jails, especially for under trial prisoners who can afford them,
prevalent in many countries, may be promoted. The sovereign rights commissions may
organise consultations on such issues and propose how useful elements of Indian as well
as progressive contemporary jurisprudence and practices can be adopted.

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Article 9.7 Dress code

The dress code introduced by the colonial rulers is still in vogue. It may suit air-
conditioned superior courts but is totally unsuited for local courts, especially in summer
months. The National Sovereign Rights Commission shall get the dress code reviewed by
design professionals and propose dress code options suiting the local climate, and the
culture in different parts of India.

Article 9.8 Discarding summer vacation

The colonial practice of closing courts during summer, designed to enable the British
judges to vacation in Britain or hill resorts in India, is still in vogue. It increases litigation
costs, delays and harassment to citizens. Even foreign investors have criticised this
colonial practise and the delay, harassment and cost associated with it. Since most public
and private offices function during the summer months, there is no reason why courts
should close during summer.

As soon as this Constitution comes into force or earlier, the colonial practice of vacation
for courts during summer shall be discontinued. Judges shall then be entitled to earned
leave in manner similar to other public servants.

Article 9.9 Contingency litigation

In view of high cost of litigation and delays, citizens are reluctant to seek relief in bona
fide cases. Contingency litigation, that is, lawyers bearing expenses and accepting pre
agreed share from the compensation awarded by courts may be introduced, to begin with,
in selected cases, such as, dowry and sexual harassment, nonpayment of statutory wage
or boned labour. If it serves the people well, it can be extended to other types of
litigation. The sovereign rights commissions may examine and recommend that it be
approved in selected local jurisdictions, through referendum

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Legal Aid and Para-
legal assistance

Chapter – 5

91
Legal Literacy

A citizen should be aware of his rights. He may know that he has a right to a ration card.
But he doesn't know how to get it in a reasonable time if he loses it. Similarly, the
question of personal liberty. He doesn't know what to do if a constable comes calling.
There are so many procedural things courts have laid down. It is in these matters —
regarding life and liberties — that legal literacy is not realized. Legislation like the Right
to Information Act will be blocked by bureaucrats if people don't know its provisions and
procedures. If there is an enlightened citizenry such things will not happen.

"People using the legal system must be able to guide themselves through a process that
they understand [...] and, at appropriate places along the way,
 recognize they have a legal right or responsibility, in order to exercise or
assume it;
 recognize when a problem or conflict is a legal conflict and when a legal
solution is available

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